LAWS(PAT)-2018-1-87

CHANDAN KUMAR SAH Vs. STATE OF BIHAR

Decided On January 04, 2018
Chandan Kumar Sah Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) The present Appeal under Section 374(2) and 389 (1) of the Code of Criminal Procedure , 1973 (hereinafter referred to as the "Cr.P.C.") has been preferred by the aforesaid three appellants against judgment of their conviction and sentence dated 26.6.2012 and 3.7.2012 respectively passed in Sessions Trial No. 96 of 2012 [arising out of Sour Bazar (Patarghat O.P.) P.S. Case No. 73 of 2012] by learned 1st Additional Sessions Judge- cum- Special Judge, S.C. / S.T. (Prevention of Atrocities ) Act , Saharsa ( hereinafter referred to as the "trial judge"). By the said judgment the learned trial judge has convicted the aforesaid three appellants for offence under Section 376(2)(g) of the Indian Penal Code, 1860 ( hereinafter referred to as the "I.P.C.") and sentenced them to undergo rigorous imprisonment for life and fine of Rs. 10,000/- each and in default of payment of fine, they have further been directed to undergo simple imprisonment for a period of six months.

(2.) Short fact of the case is that a written information with L.T.I of one Lakho Devi /P.W. 1 was submitted before the Officer -inCharge, Patarghat O.P. Police Station, in which it was disclosed that the informant/ wife of Chandra Kishor Ram /P.W. 2 of village: - Terasi, O.P. Patarghat, Police Station:- Sour Bazar , District- Saharsa on 30.03.2012 with her husband had gone to watch Raslila in Tekanama Yagya-sthal in village: -Tekanama. In the same night after witnessing the said Raslila at about 3.00 Hours in the night they were returning to their residence. However, on way, on Western side of Yagya-sthal on a puliya (bridge) the informant noticed some persons. While informant arrived near the puliya (bridge); 1- Chandan Kumar Sah [hereinafter referred to as "A-1"] , S/o Hirday Sah, 2 - Md. Khursheed (A-2), S/o Md. Nabi and 3- Anil Ram (A-3), S/o Birendra Ram , all residents of Tekanama surrounded the informant and her husband. Firstly, Md. Khursheed (A-2) carried her husband to a wheat field . Thereafter, Chandan Kumar Sah (A1) and Anil Ram (A-3) carried the informant to a bamboo orchard , and thereafter, both the accused raped her . Subsequently, Chandan Kumar went near to her husband and Md. Khursheed came and raped her . After committing rape accused persons went towards the Yagya place, then the informant raised hulla and on her hulla villagers who were witnessing raslila and returning back, after chase apprehended the accused persons near the place of occurrence . The accused persons were handed over to Police. On the basis of the said written report on 31.03.2012 at 11.00 A.M. a formal F.I.R. vide Sour Bazar ( Patarghat O.P. ) P.S. Case No. 73 of 2012 was registered for the offence under Section 376(2)(g) of the I.P.C. against the three accused, who are appellants before this Court. Police thereafter sent the victim for medical examination and after conducting investigation within 24 hour i.e. on 01.04.2012 charge- sheet was submitted against three accused persons i.e. the aforesaid appellants. On 02.04.2012 learned Magistrate took cognizance of offences and the case was committed to the court of Sessions on 18.04.2012 and thereafter the case was numbered as Sessions Trial No. 96 of 2012. After commitment, on 27.04.2012 charges were framed under Section 376(2)(g) of the I.P.C. and Section 3(2)(V) of the Scheduled Castes and the Scheduled Tribes ( Prevention of Atrocities) Act, 1989 (hereinafter referred to as the "S.C./S.T. Act") . It is made clear that during investigation itself the penal provisions of the S.C. /S.T. Act was added against appellant no. 1 and 2. During the trial to prove its case from the prosecution side altogether eleven witnesses were examined, out of them Lakho Devi ( informant / victim) was examined as P.W. 1 and her husbandChandra Kishor Ram was examined as P.W. 2, whereas Bharat Ram ( father of the victim ) was examined as P.W. 3 as a hear say witness. Similarly, Renu Devi (mother of the victim) was examined as P.W. 5 as a hear say witness. P.W. 4/ Dr. Bibha Rani who had medically examined the victim has proved the medical report in respect of examination of the victim, which was marked as Exhibit -1. P.W. 7 / Nilambar Bharti was a police personnel and also witness to the seizure list relating to preparation of seizure of saya of the victim and he has proved his signature on the seizure list, which was marked as Exhibit 4-1. P.W. 8 / Pankaj Kumar was Officer- In- Charge of O.P. Patarghat and conducted investigation after submission of charge -sheet against the aforesaid appellants. P.W. 9/ Md. Nazimuddin was Officer- InCharge of Sour Bazar Police Station and he had proved the formal F.I.R., which was marked as Exhibit - 3/2 and he also proved his endorsement on the fardbyan, which was marked as Exhibit -3/1 . P.W. 10/ Das Ashok Kumar was Senior Scientist in Forensic Science Laboratory and he had proved the F.S.L. report, which was marked as Exhibit -5 and he also proved his short signature on the seal of material exhibit , which was marked as Exhibit- 6. P.W. 11/ Ajay Kumar was a Technician in Forensic Science Laboratory and he has proved the report on grouping and bloodmark and same was marked as Exhibit- 5/1. In the case Vinod Kumar, the main investigating officer, was examined as P.W. 6 and he proved his forwarding endorsement on the written report which was marked as Exhibit- 2, endorsement by Nazimuddin / P.W. 9 on the F.I.R., which was marked as Exhibit- 3 and he has also proved one signature on formal F.I.R., which was marked as Exhibit -3/1. He proved the seizure list relating to saya and same was marked as Exhibit- 4 and he also proved the material exhibit (saya) as material exhibit no. I. After completion of the prosecution evidence, on 23.05.2012 the circumstances and evidences collected during the trial were explained to the accused persons and their statement under Section 313 of the Cr.P.C. was recorded and thereafter, defence to demolish the prosecution case also examined one witness namely: Tarani Ram as D.W. 1.

(3.) Sri Bikramdeo Singh, learned counsel, assisted by Sri Md. Nafisuzzoha, learned counsel for all the three appellants, after placing the entire evidence has argued that it was out and out a case of false implication and he submits that in any event, the appellants were required to be acquitted by way of extending the benefit of doubt. He has argued that the informant appears to be not trust -worthy witness since in the F.I.R. she had given specific statement as if she was raped by three appellants and after committing rape while she raised hulla villagers arrived and apprehended them, however, during her evidence she has given entirely a different story and she has deposed as if after she was raped by the accused persons she along with her husband went to the Police Station and gave information regarding the occurrence. Sri Bikramdeo Singh, learned counsel for the appellants has further argued that the victim / P.W. 1 though in the F.I.R. had specifically stated that at the time of occurrence there were only three accused persons and out of three, one of the accused, who is appellant no. 2 had firstly carried her husband to an another field and remaining two appellants carried the informant to a bamboo orchard and thereafter, two accused raped her and subsequently, one accused went near her husband and the earlier accused reached to the informant and he also committed rape with her. He submits that in the F.I.R. there was no whisper regarding any fourth person in the occurrence, however, it appears that after pondering over the matter that it would be difficult to establish as to how only one accused had captured her husband, the prosecution developed an another story and came out with a case that in the occurrence there were six accused persons and three accused persons, who were not named in the F.I.R. had captured the husband of the informant and the present three appellants had committed rape with her. It has been argued by learned counsel for the appellants that change of version by the informant / P.W. 1 itself creates serious doubt on the prosecution case. It has further been argued by Sri Bikramdeo Singh that immediately after the case was instituted the victim was sent to the Medical Officer for her examination and she was examined by P.W. 4 / Dr. Bibha Rani, however , Dr. Bibha Rani on her examination had found no sign either external or internal on the person of the victim. In categorical term the doctor had stated that she had not noticed any sign of rape or recent intercourse on the person of the victim. He submits that evidence of medical report, which is Exhibit- 1 and evidence of P.W. 4 / Dr. Bibha Rani categorically falsifies the entire prosecution case. Besides this, it has been argued that once it was the case of prosecution that all the appellants were apprehended immediately after committing rape, as per mandatory provision, it was necessary on the part of the investigating officer to get all the apprehended accused persons medically examined, but it appears that purposely the investigating officer did not produce either of the accused persons before the Medical Officer for their medical examination. He submits that had the accused persons been examined by the Medical Officer immediately after their arrest, the prosecution case would have been falsified and this was the reason that purposely the investigating officer had not produced three appellants for their medical examination. By way of referring to Section 53A of the Cr.P.C., learned counsel for the appellants has argued that once there was statutory provision for getting medical examination of accused in a case of rape, it was mandatorily required on the part of the investigating officer to get all the appellants examined by the Medical Officer, which has not been done in the present case. Besides this, it has also been argued that under Section 54 of the Cr.P.C., which is a mandatory provision, it is necessary that immediately after arrest of the accused person he must be produced for medical examination, but in the present case neither provision contained in Section 53A of the Cr.P.C. nor Section 54 of the Cr.P.C. has been followed. Sri Bikramdeo Singh has further argued that the seizure list relating to saya of the victim specifically suggests that color of the saya was green, which was having stain of semen but the F.S.L. report suggests that the saya which was examined by the F.S.L. was having yellowish color. On the saya besides mark of semen, there were number of blood marks available on the saya . He submits that in any event colour of saya would not have been changed, nor at the time of its examination by the F.S.L. the saya would have got blood stain whereas, at the time of seizure there was no indication of blood stain on the saya . After referring entire evidences he further submits that the appellants were made victim due to village politics. It has been argued that the defence witness i.e. D.W. 1/ Tarani Ram has stated that the victim was earlier married to brother of P.W. 2/ Chandra Kishor Ram, however, subsequently without any divorce she started living with brother of her own husband i.e. P.W. 2 / Chandra Kishor Ram and thereafter, Panchayati was held in the village in which parents of all the three appellants besides other villagers had scolded P.W. 2 and this was the reason that on a trivial issue a false case was made out and they were implicated. According to learned counsel for the appellants this fact has been corroborated by D.W. 1 / Tarani Ram. He further submits that the victim / informant had started living with P.W. 2 after leaving her husband, who was brother of P.W. 2 which was accepted by P.W. 2 during his evidence . In sum and substance it has been argued that keeping in view glaring contradiction in the prosecution case it was a fit case for acquittal by way of extending benefit of doubt to all the appellants.