). ……… Munna Bhuiyan, S/o Late Laxman Bhuiyan v. The State of Jharkhand
Case Details
Cr. Appeal (D.B.) No. 173 of 2018 ….. (Against the judgment of conviction dated 17.08.2017 and order of sentence dated 19.08.2017 passed by learned Additional Sessions Judge-II, Palamau at Daltonganj in S.T. No.661 of 2012). ……… Munna Bhuiyan, S/o Late Laxman Bhuiyan Versus The State of Jharkhand ….. Appellant …. Respondent For the Appellant For the State ……… : Ms. Amrita Sinha, Advocate Mr. Rohit Ranjan Singh, Advocate Ms. Khyati Singh, Advocate : Mrs. Priya Shrestha, Spl. Public Prosecutor ----------- PRESENT Hon'ble Mr. Justice Ananda Sen Hon'ble Mr. Justice Subhash Chand J U D G M E N T Per Ananda Sen, J.: Heard learned counsel for the appellant, Ms. Amrita Sinha assisted by learned counsel, Mr. Rohit Ranjan Singh and learned counsel for the State, Mrs. Priya Shrestha, Spl. Public Prosecutor. 2. The instant criminal appeal is directed against the conviction of the appellant under Section 376 & 448 of IPC vide judgment of conviction dated 17.08.2017 and order of sentence dated 19.08.2017, whereby the sole accused has been convicted for the offence committed and punishable under Sections 376 and 448 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years under Section 376 of IPC and to pay a fine of Rs.2,000/- and in default of payment of fine the appellant will have to undergo S.I. for a period of three months separately. He has been sentenced to undergo R.I of one year for the offence under Section 448 of IPC.
Legal Reasoning
materials on record. From perusal of the evidence, we find that P.W.-3 has levelled an allegation against this appellant that he entered her house when she was sleeping in the courtyard. When this appellant came, he forcibly took her inside the room gagging her mouth and thereafter closing the door committed rape. As per her deposition, the villagers came and caught this appellant and later on handed over to the police. Surprisingly, from the record we find that no villagers came forward to state that they had apprehended the accused from the house of this appellant. When there is specific case that the villagers had caught the accused and brought him out him from the room of this informant, it was a duty of the prosecution to atleast bring one of the villagers in support of the prosecution case, more so when, the learned counsel for the appellant submits that there was some element of consensus in the aforesaid act. Further after going through the evidence of the Doctor, we find that the Doctor has specifically concluded that there is no sign of intercourse. Be it noted that victim was a major who was immediately examined by the Doctor. P.W.-1, who is the brother of the victim and was not a resident of the same village states that on telephonic information which he received, he came to the house of his sister and could come to know about the said occurrence. He also stated that -6- villagers caught hold of this appellant. He is hearsay witness, but his statement is not corroborated by any other witnesses as none of the witness of the village came and stated that they had caught hold the appellant. He also an interested witness. Further, surprising aspect is that the victim was sleeping in the veranda and thereafter on hearing some pebbles being thrown, she went to see, when it is alleged that this appellant caught hold her. Surprisingly, she never screamed nor raised any alarm, she allowed this appellant to take her inside the room, get the room locked and then ravished her. Be it noted that it is not the case of the prosecution that he was armed with any weapon. This conduct of the appellant creates some doubt in the mind of this Court as to whether this act was consensual or not. Further the victim, after she was ravished opened the door and raised alarm. The appellant then concealed himself in the room, till the villagers assembled. This conduct also raises doubt as to why the appellant will conceal in the room when there was opportunity to flee. All the aforesaid aspects create doubt in the mind of this Court. Once a doubt is created in the mind of the Court, the same has to go in favour of the accused. Thus, the benefit of doubt must always go in favour of the appellant. 13. In view what has been held above we give benefit of doubt to
Arguments
3. Learned counsel for the appellant submits that the lady, who is the major stated that she was subjected to rape, but surprisingly when she was examined by Doctor, on the very next day the Doctor did not found any sign of rape nor any injury. She further argues that in the FIR, she stated that when she made hue and cry after rape was committed in her room, several villagers including relatives gathered, who assaulted the appellant also, but none of them were examined during trial, which creates a doubt about the version of the prosecutrix. It is further argued that the villagers, who had kept the appellant confined in the room and later on handed over again to the police were also not examined in this case, which also creates a doubt about the prosecution case. She further argues that in the cross- examination of the victim she had stated that her door at night was kept open which creates a doubt as to whether the victim was a consenting party or not and when they were caught by the villagers, this false case has been cooked up by the informant/ prosecutrix. There is contradiction in the statement of the victim/ prosecutrix while deposing as a witness and statement which was recorded as fardbeyan. On this ground it has been prayed that the sole appellant be acquitted. 4. Learned counsel for the State opposes the prayer and submits that the statement of the victim/ prosecutrix inspire confidence where she stated that this appellant has committed rape upon her. She further submits that though the Doctor did not find any sign of violence or rape, yet the statement of the victim/ prosecutrix should be taken to be gospel truth and there are no materials to disbelieve her. It has been argued that non-production of the other witnesses is immaterial, when the victim herself has stated that she was subject to rape by this appellant. 5. We have heard the learned counsel for the parties and we have gone through the records. The fardbeyan is Exhibit-1/2 and the same is at the instance of the victim. In the fardbeyan she has stated that her -2- marriage was solemnized about seven years ago and her husband lives in Bombay for to earn his livelihood and she lives in her residential home alone with her five years old child Jitendra Singh. It is further stated that on 29.04.2012, Sunday, after taking dinner at the house of one Jivlal Singh she was sleeping in her courtyard on cot and her son was also sleeping in verandah. In the meantime at about 7.00 P.M. she suddenly heard sound of throwing of stones in her house and accordingly, she went there, where she was caught hold by the accused Munna Bhuiyan of Tenuia Tola, who gagged her mouth and dragged her forcibly inside the room and locked the door of the room from inside and committed rape upon her. Thereafter an alarm was raised by her and accordingly, neighbours and villagers assembled there and the accused, Munna Bhuiyan concealed himself inside her house. She then opened the door and the villagers caught the said accused from her house and in that incident accused, Munna Bhuiyan received some injuries also. 6. On the aforesaid fardbeyan, Bishrampur P.S. Case No.43 of 2012 was registered under Sections 376 & 448 of IPC. The police after investigation filed chargesheet No.71/12 dated 28.07.2012 under Sections 376 and 448 of IPC. 7. As the appellant pleaded not guilty, charge under Sections 376 & 448 of IPC was framed and he was put on trial. 8. Eight witnesses have been examined in this case. P.W.-1 Satendra Kumar (brother of the victim/informant). P.W.-2 Dr. Neelam Horo (Medical witness). P.W.-3 Victim-cum-informant of this case. P.W.-4 Tulsi Singh P.W.-5 Udit Bhuiyan P.W.-6 Patiya Devi -3- P.W.-7 Amrit Yadav P.W.-8 Satish Kumar Sinha (Investigating Officer of this case). 9. P.W.-3 is the informant/victim of this case. She deposed in her examination-in-chief that occurrence occurred at about 4 years ago inside her house. At that time, she was alone in her house. At about 8 P.M. accused, Munna Bhuiya entered her house and committed rape, for which she has filed a case. Her medical examination was also done in the Hospital. Police had recorded her fardbeyan in which she had put her signature, which was marked as Exhibit-1/1 and Satyendra Kumar (P.W.-1) had also put his signature in her presence on it. P.W.-1 Satendra Kumar, who is the brother of the victim/informant has deposed in his examination-in-chief that occurrence occurred 2 and ½ years ago. At that time, he was in his village. He received telephonic massage that something wrong has happened with his sister. Thereafter he reached there and asked her about the same whereafter she told him about the entire occurrence. The accused was apprehended Police came there and inquired about the matter from his sister in his presence and he had also put his signature on the fardbeyan, which has been marked as Exhibit-1. P.W.-2 (Dr. Neelam Horo) is the Doctor. She deposed that on 30.04.2012 she was posted as Medical Officer at Sadar Hospital, Daltonganj and on that day a Medical Board was constituted by the order of Deputy Superintendent of Sadar Hospital, Palamau comprising of Dr. V.K. Singh, Dr. Birendra Prasad and herself and on that day at about 4.00 P.M. the Board examined Anita Devi and found the following:- “General Examination: She is of average built. Secondary sexual character is well developed. There was defused swelling about 1 ½” over left forearm. -4- X-ray Examination: X-ray of pelvis and elbow and wrist joint and x-ray of clavicle report all epiphyses fused completely. Internal Examination: There is no injury mark in and around vaginal orifice, vagina admits two fingers easily. Hymen old ruptured. Vaginal smear taken for microscopic examination. Her under garments handed over to Ram Lal Driver of P.S. Bishrampur. There is no facility for forensic examination available so undergarment sent to RIMS for forensic examination. Report of vaginal smear: No. 14/Path dated 30.04.12 Spermatozoa not found. Epileal cells present in large number. Conclusion: There is no sign of recent intercourse. There is no foreign hair in vagina. There was no injury in and around of vagina.” He has proved the medical examination report, which was marked as Exhibit-2. P.W.-4 Tulsi Singh and P.W.-5 Udit Bhuiyan are hearsay witnesses. Nothing important could be extracted from their statement. P.W.-6 (Patiya Devi) and P.W.-7 (Amrit Yadav). They have not supported the case of the prosecution and thus, declared hostile. P.W.-8 (Satish Kumar Sinha) is the Investigating Officer of this case. He deposed that on 30.04.2012, he recorded the fardbeyan of victim, where she put her signature in his presence and Satyendra Kumar has also put his signature on it. On his formal identification, fardbeyan of the informant has been marked as Exhibit-1/2 and forwarding report has been marked as Exhibit-1/3. He further deposed that victim/informant was sent to hospital by him with Medical requisition slip and on his formal identification said medical requisition slip has been marked as Exhibit-3. He also recorded the statement of some of the witnesses and recorded re-statement of victim. He visited the place of occurrence and disclosed about the boundary of the place of occurrence. He arrested the accused from -5- the courtyard of the victim. Finding the occurrence true he submitted chargesheet against the sole appellant. 11. After conclusion of the evidence, the statement of the appellant was recorded under Section 313 of Cr.P.C. Appellant did not adduce any evidence. Ultimately the Trial Court finding the appellant guilty has convicted him under Sections 376 and 448 of IPC. 12. After hearing both the parties, we have gone through the
Decision
the appellant and we hold that the conviction of the appellant under Sections 376 and 448 of IPC is not sustainable in the eyes of the law. The judgment of conviction dated 17.08.2017 and order of sentence dated 19.08.2017 passed by learned Additional Sessions Judge-II, Palamau at Daltonganj in S.T. No.661 of 2012 is hereby set aside. 14. Accordingly, the instant Criminal Appeal is allowed. -7- 15. Pending Interlocutory Application(s) if any stands disposed of. 16. This Court directs the above named appellant to be released forthwith from custody, if not required in any other case. 15. Let L.C.R. along with a copy of this judgment be sent to the concerned trial court forthwith. (Ananda Sen, J.) (Subhash Chand, J.) High Court of Jharkhand, Ranchi Dated 24th April 2024 R.S./NAFR -8-