The State of Bihar (now Jharkhand) vs Bishwanath Prasad and Others

Pradeep Kumar, J.—The appeal is directed against the judgment and order of acquittal dated 20.6.1996 passed by Shri Bishwanath Prasad Singh, 1st Additional Sessions Judge, Palamau in Sessions Trial No. 112 of 1986 by which judgment the learned Sessions Judge found that the charges leveled against the accused persons had not been proved and acquitted the five accused persons.

The prosecution case was started on the basis of a fardbeyan given by Udainarain Giri (P.W.1), brother of the victim girl on 8.4.86 at 17:45 hr. stating therein that the occurrence took place in between 27.3.86 to 8.4.86. He stated that on 27.3.86 in the night at about 11 pm he got up hearing Hullah of his sister then he took a torch and went there he saw that accused, Bishwanath Prasad has made his sister naked and he was himself lying over the body of his sister and she was crying for help. Seeing this he also started making Hullah then the accused, Bishwanath Prasad gave threat to commit his murder and ran away. He said that if he will disclose the occurrence he will be shot dead. Out of fear he and his sister gave no information to anybody about the occurrence.

Then again on 29.3.86 when his sister-deceased Kaili Devi had gone to take water from the hand-pump, then accused, Suresh Prasad son of Gopi Sah and accused, Pradeep Prasad, son of Mundrika Sao caught hold of his sister and threw her down on the ground, when everybody started making Hullah then they ran away giving threats. Out of fear his sister told about the occurrence to her aunt, but she also asked her to keep mum.

Again on 4.4.06 when he and his sister at about 9 a.m. had gone for picking Mahua then suddenly accused persons, Bishwanath Prasad, Dinanath Prasad @ Kandru, Pradeep Prasad, Suresh Prasad and Kamlesh Prasad all of village Zalim, came under Mahua tree and caught hold of his sister and took her by the side of Mahua tree then after making her naked accused, Dinanath Prasad @ Kandru committed rape upon her.

Thereafter Kamlesh Prasad also committed rape upon her. Thereafter his sister became unconscious then they ran away giving threat that if he disclosed the occurrence he will be killed by putting kerosene oil. When his sister became conscious they came to their house and told about the occurrence to their uncle, Nanhaku Giri and aunt, who lived by the side of his house.

Then his uncle made complain to Machhinder Sao and Machhinder Sao on 4.4.1986 inquired about the occurrence from Kamlesh Prasad, then he denied the occurrence. Then on 5.4.86 at 2.30 pm. all the five accused persons assaulted his uncle, Nanhaku Giri as to why he told the occurrence to Machhinder Sao. Then again on 8.4.86 at about 12 am. when he came from his school to his house he saw, Bishwanath Prasad, Dinanath Prasad, Pradeep Prasad, Kamlesh Prasad and Suresh Prasad in his house and they were giving some white material in a glass to his sister by force. After she was forced to drink that white material then they left. After they left his sister became restless and started shouting for help. Then he along with his uncle, Nanhaku Giri cousin brother Nand kumar Giri, who came on information and took Kaili Devi to hospital, where she was declared dead. His brother-in-law has not come to house since last 7 months. He claimed that the five accused person committed rape upon his sister and committed her murder.

On the basis of the said F.I.R. police registered a case u/s 376, 328, 302/34 of the Indian Penal Code and after investigation police submitted charge-sheet and the case was exclusively triable by court of sessions and the case was committed to the court of sessions and trial was held as aforesaid.

It appears that in course of trial the prosecution has examined six witnesses. P.W.1, Udai Narain Giri, is the informant. P.W.2, Nanhaku Giri, is the uncle of the informant. P.W.3, Deorani Giri, is aunt of the informant. P.W.4, Nand Kumar Giri, is cousin brother of the deceased. P.W.5, Bipin Bihari Singh, Judicial Magistrate, proved the 164 Cr. P.C. statement and P.W. 6, Sachidanand Giri, is the Investigating Officer.

The learned trial court after hearing both the parties and after going through the evidences, found that the prosecution case is full of doubt and contradictions and accordingly acquitted the accused persons.

It is submitted by the learned Counsel for the appellants-State of Bihar that the prosecution case as disclosed by the evidence of P.W. 1, was fully corroborated by the evidence of P.Ws. 3 and 4 and as such the learned trial court committed an error of law and fact in passing an order of acquittal and hence the impugned judgment is fit to be set aside and all the five accused persons should be convicted for the offences charged.

On the other hand, learned Counsel for the respondent submitted that the version given by P.W. 1, informant-brother of the deceased is full of contradiction and doubt and his statement has not been corroborated either by the evidence of his uncle, P.W. 2 or his aunt P.W.3 moreover, no doctor was examined in the case. Apart from that the learned trial court found that the main case as disclosed by the evidence of the informant, P.W. 1 was that all the five accused persons administered poison to his sister, Kaili Devi, which caused the death. But the forensic laboratory report on the viscera sent by the doctor, who conducted post-mortem examination in her which was proved as Ext. 7, no poison in the viscera was found which made the case totally false and hence the reasoning given by the trial court are well founded and no interference by this Court is required.

It was further submitted by the learned Counsel for the appellants that now it is settled principle of law as enunciated by the Supreme Court of India in many cases and lastly settled in the case of Ramabhupala Reddy and Ors. v. State of A.P. reported in 1970 STPL 5518. If two reasonable conclusions can be reached on the basis of the evidence, on record. the appellate court should not disturb the findings of the trial court.

After hearing both the parties and going through the record, I find that the informant, P.W. 1 has given a lengthy fardbeyan covering three occurrences one on 27.3.86, second on 29.3.86, third on 4.4.86 and 4th on 8.4.86. When the F.I.R. was lodged in Court also he supported the said statement that on 27.3.1986 in the night he heard Hullah and when he went with a torch he saw the accused, Bishwanath Prasad committed rape upon his sister, Kaili Devi. The said accused gave threats, so no report was made to anybody by him or by his sister. Then again on 29.3.1986 while his sister was going to bring the water from the hand-pump in front of the house of the accused, Suresh Prasad and Pradeep Kumar, but no report was made due to threat given by the accused persons. Then again on 4.4.86 when he and his sister had gone to pick up Mahua then all the five accused persons came there under the mahua tree and caught hold of his sister and took her sister by the side of the tree, they made her sister naked then Dinanath Prasad and Kamlesh Prasad committed rape upon her. Whereupon her sister became unconscious, but thereafter also accused, Bishwanath Prasad became naked and committing rape upon her. Thereafter, they ran away from the place of occurrence giving threat that he will be burnt to death by putting kerosene oil, if he will report the matter. Still when they came back after his sister became conscious she told the matter to his uncle, Nanhaku Giri. Thereafter, Nanhaku Giri reported the matter to Machhinder Sao who questioned about the occurrence from accused, Kamlesh Prasad, but he denied the matter and subsequently all the five accused persons assaulted his uncle, Nanhaku Giri and stated that on 8.4.1986 at about 12 pm. in the noon when he came to his house from school then suddenly all the five accused persons entered his house by force. Thereafter they overpowered his sister. Then accused, Bishwanath Prasad brought a white material in a glass and by force he made his sister to drink that white material. Thereafter they left the house with glass then he informed uncle and aunt and thereafter his uncle, aunt and cousin brother came and took the victim lady to hospital where she was treated but died. In his crossexamination, at para 12 he stated that he was knowing the five accused persons from before since they are co-villagers. At para 14 he stated that his house and house of his uncle, Nanhaku Giri is in the same premises supported by one wall. Both the houses are Khaparpose and if one shouts on one side then it can be heard on the other side. At para 15 he stated that his house is surrounded by the house having Durgi Sao, Kaili Devi and others. There is a bank in the house of Kaili Devi, namely, Gramin Shetriya Bank and the Bank is opened in the day time. He stated that when he was taking his sister to hospital nobody asked him anything or he told them anything.

At para 18 he stated that in the night of 27.3.1986 in the neighbouring house also people were sleeping in the house of his uncle. Apart from his uncle, aunt and his sister were sleeping. He got up at about 11 in the night and took a torch. He stated before his went to sleep, the outer door was closed from inside by iron rod He also stated at para 17 that he had no wrist watch in his hand but the accused, Bishwanath Mandal had a wrist watch in his hand and that from his hand he saw that it is 11 pm. He stated that he went near the chawki where he committed rape he became furious, but he did hit him by torch nor removed him. At para 19 he stated that he had made Hullah, but no body came on Hullah. Thereafter, they made no statement to anybody in his neighbourer. At para 21 he stated that he had not disturbed the accused in committing rape nor he hit him by a torch. He saw the accused and his sister in the light of torch from the side of their mouth then from the side of their leg, but made no Hullah to his uncle. At para 22 he stated that he known of the occurrence was informed to anybody by him. At para 23 he stated that after accused left he talked with his sister but did not chase the accused, he came till the door and then they came back, when Bishwanath Prasad left, his sister wore her clothes. P.W.1, informant was cross examined at length about the four witnesses.

P.W. 2, Nanhu Giri who is the uncle of the deceased stated in court that on Friday Kaili Devi told him that all the five accused persons committed rape upon her one by one when she had gone to pick up Mahua by the side of the mahua tree in the field then he made complained to Machhinder Sao who called Kamlesh Pd., who denied the occurrence, but on the next day all the five accused persons came and assaulted him with lathi causing breaking of his teeth. He stated that on Tuesday Kaili Devi told him that all the five accused persons came and administered white material to her by force due to which she was in great pain then Nanhu Giri brought a rikshwa and took her to the hospital. He also went behind them, but she died in the hospital. He identified the accused persons in court. In his cross-examination, he stated at para 6 that on way to hospital he had not disclose about the occurrence to anybody, so Kaili Devi was unconscious on the way. He stated that doctor had not stated that all the five accused persons administered poison to her. He stated in para 7 that he made no complain about his assault at the police station by the accused persons. He also stated that he has not medically treated his breaking of teeth. P.W.3, Deorani Giri also stated that on 4.4.1986 Kaili Devi told her that committed rape upon her under the mahua tree when she had gone for picking mahua. She had also told her on 29.3.1986 on Saturday Suresh Prasad and Pradeep Prasad molested her near the hand-pump She further stated that on 8.4.1986 hearing Hullah of Kaili Devi when she went there then Kaili Devi told that all the five accused persons administered some white material in a glass to her by force. She was restless then Nanahu Giri brought and took her to hospital where she was declared dead. In para 6, in her cross-examination, she stated that she had no seen the occurrence of 4.4.1986 and when she came to know about the occurrence of 4.4.1986. He had not informed anyone in the village when she came to know about the occurrence of 8.4.1984 in the night. She had not stated about the occurrence which she came to know to Kaili Devi to her husband. She stated that she has young son, daughter in law and a daughter in her house. She stated in para 8 of her cross examination, that she had not taken Kali Devi for treatment after committing her rape by five accused persons. On 4.4.1986 since she was threatened by the accused persons she stated that her husband is a forester in Latehar, but she had not sent any information about the occurrence of 4.4.1986 to her husband at Latehear. In para 9 she has not informed to anybody about the occurrence of 8.4.1986. She stated in para 9 that after poison was administered to Kaili Devi she became restless and she was in pain, but she did not inform her neighbours. In para 10 she stated that apart from her there are three houses of her gotias at the same place, but she did not inform them. She is not in talking term with her gotias, but she has got no enmity with them. P.W. 4 is Nanahu Giri he stated in Court that on 8.4.1986 he was in Latehar when he was informed by Udai Narain Giri that on 8.4.1986 his sister was administered some white substance by the accused persons then he came and took her on a Rikshaw to hospital where she was declared dead . Her brother Udai Giri was with her on the rikshaw on way Uday Giri told him that in the night of 27.3.1986 accused, Bishwanath Prasad entered the house by opening the door and committed rape upon her on 29.3.1986. The accused, Pradeep Prasad and Suresh Prasad molested his sister and on 4.4.1986 committed upon his rape his sister one by one. He also stated that on 5.4.1986 all the five accused persons assaulted the informant and his uncle Nanahu Giri inquired about the occurrence from Kamlesh. He identified his signature on the fardbeyan which was marked as annexure-2 He also proved the signature on the 164 statement as Ext.1/2. In his crossexamination he stated that he reached the hospital at about 2 pm. He was at Latehar, but had not made information to Latehar Police Station. He stated that when they demanded the dead body from the doctor then he stated that the dead body will be given after police come, but had not informed the doctor that Kaili Devi was given poison by the accused persons. At para 8 he stated that they have got enmity with the family of Machhinder Sao he is accused in a case u/s 396 I.P.C. in which informant is Machinder Sao. He denied that all the accused persons are son of Machinder Sao. In para 9 he stated that informant Udai Narain Giri is his cousion brother.

Thus, after going through the evidence of these four witnesses, I find that the statement given by informant P.W.1 disclosing occurrence of 27.3.1986, 29.3.1986, 4.4.1984 seems to be unnatural. He, in his cross-examination, admitted that the house of his uncle Nanahu Giri, is by the side of his house separated by only one wall and one can hear all the sounds from one side to that side, in spite of that in the night of 27.3.1986 on Hullah when his sister is being raped in the torch light he made no Hullah nor hearing Hullah of his sister, his uncle came. It is admitted by the evidence of P.W.3, Deorani Giri that the houses of his gotias are also at the same place, but nobody was informed nor anybody came on Hullah.

Similarly, with regard to the occurrence of 29.3.1986 he stated that his sister was molested in front of the house, while she had gone to bring the water from the handpump, neither the uncle or aunt nor his gotia saw the occurrence nor they stated the occurrence to any of his relatives. Similarly, the occurrence of 8.4.1986 was also not reported to his gotia or to the neighbour as admitted by the evidence of P.W. 1. In his cross-examination, apart from gotia there is a Chhetriya Gramin Vikash Bank gramin bank in the neighbourhood which is generally open in the day time, but no body saw the accused persons entering the house by force or administering poison to her sister and no body had came on Hullah. Then his sister was restless and suffering badly, still nobody accompanied them when his sister was being taken to the hospital. P.Ws, 1,2,3 and 4 all have stated at the hospital and also they never told the doctor that Kaili Devi was administered poison by the five accused persons. Thus, it seems that the prosecution case is full of doubts. It has been admitted by P.W. 4, Nand Kumar Giri that they had enmity with the family of the accused and one of their relatives had lodged a case u/s 396 of the Indian Penal Code against them.

Accordingly, I also find that the prosecution has failed to bring the charges beyond all reasonable doubt. The learned court below also while discussing the evidences, at para 5 found that the evidence of P.W.1 is full of inconsistencies, improbable and absurd and does not inspire confidence. The very route of the prosecution case seems to have been shaken by his shaky testimony. The court found that the evidence of P.Ws, 2, 3 and 4 are hearsay had been acquired knowledge either from P.W. 1 or from the deceased and after knowledge also they made no information to any of their relatives, neighbour or to the police, which also creates doubt in their evidence.

I do not find that the trial court has taken any perverse finding. The principle laid down by the Hon''ble Supreme Court reported in the case of Ramabhupala Reddy (Supra) that the appellate court should keep in mind the fact that the trial court had benefit of seeing the witnesses in the witness box and the presumption of innocence is not weekend by the order of acquittal, if two reasonable conclusions can be reached on the basis of the evidence on record. The appellate court should not disturb the finding of the trial court.

In this case as discussed above, I find that the reasons given by the trial court are in accordance with my finding as aforesaid. I find no merit in this appeal, which is accordingly, dismissed.