Usha Devi, W/o Jageshwar Ram Rajak, R/o Village Mahuri, P.O. & P.S. Bagodar, District v. ……
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Acquittal Appeal (D.B.) No.14 of 2021 ----- Usha Devi, W/o Jageshwar Ram Rajak, R/o Village Mahuri, P.O. & P.S. Bagodar, District- Giridih 1.The State of Jharkhand 2.Santosh Rajak, S/o Munshi Rajak Versus …… … Appellant(s). … Respondent(s). CORAM : SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. For the Appellant(s) For the State For the Resp. No.2 ------ : Mr. Binod Kumar Jha, Advocate : Mr. Shailendra Kr. Tiwari, A.P.P. : Mr. Pradeep Kumar Choubla, Advocate …...... 06 /07.08.2024: Admit. 2. This is an appeal against the judgment of acquittal on 27.03.2021 passed by learned District and Additional Sessions Judge-II at Giridih in Sessions Trial No.141 of 2018, whereby the opposite party No.2 has been acquitted from the charge framed under Section 376 of the Indian Penal Code. 3. Learned counsel for the appellant (victim) submits that there is overwhelming evidence to convict the opposite party No.2 i.e. the accused. The statement of the victim i.e. complainant is clear which suggest that she was raped. P.W.-1, who is the daughter of the victim also stated that on hearing scream of her mother, she went to the place of occurrence where her mother went to ease herself and saw the opposite party No.2 fleeing, which suggest that he was involved in the commission of rape. It is his contention that when the evidence of the victim is clear and unambiguous and inspire confidence, conviction can be based on the sole testimony of the victim. As per the
Facts
appellant, the Trial Court has not considered the evidence of the appellant in proper perspective. 4.
Legal Reasoning
10. Thus, from the evidence, we find that the prosecution case is based on the sole testimony of the victim. The prosecution case was initiated on the basis of the complaint. Though the victim has stated that she went to the police station, but there is nothing on record to suggest that she went to the police station to get the F.I.R. lodged. Surprisingly, no Doctor has been examined in this case on behalf of the prosecution. The prosecutrix stated that she was medically examined by the Doctor of a private hospital but those documents and papers were also not produced. She -5- had given the name of one person to be the Doctor but when the said person namely, Ramu Prasad Patel was examined as D.W.- 1, he clearly stated that he is not a Doctor, rather he is an employee in the medical shop. 11. From the evidence on record, we find that there is serious dispute between the parties, this appellant not only had filed case against the accused person, but the accused also filed cases against her and her family members. There is evidence which suggest that this appellant has filed cases against the Government Officials also. The Government Officials also initiated a proceeding under the Essential Commodities Act against this appellant. This shows the nature and conduct of this appellant. The other witnesses on behalf of the prosecution had admitted about the long standing dispute between the appellant and accused. This evidence, which has been brought by the prosecution clearly suggest that there is long standing enmity between the appellant and the family of the accused. Further, the evidence suggest that the conduct of the appellant is not above the Board. 12. Further, from the evidence, we find that once the occurrence had taken place and the appellant came to her house, she had not raised any hue and cry. She stated that she had narrated the aforesaid fact to her mother-in-law and father-in- law, but none of them have been examined. Though the P.W.-1 i.e. the daughter had stated that on hearing scream, she immediately rushes to the place of occurrence and saw this appellant fleeing, but surprisingly P.W.-2, who is the victim never stated that this P.W.-1 reached the place of occurrence. The victim also not stated that she had screamed. It is her case that her mouth was gagged by towel. 13. Further, it is the case of the prosecution that prosecutrix -6- was gagged with the towel and thereafter she was raped. But the said towel was also not produced. P.W.-1 stated that her mother told her that under the threat, by brandishing a knife, the rape was committed, but surprisingly P.W.-2 i.e. the victim had never whispered about the fact that the accused with the knife, had threatened her. Further in this case the Investigating Officer and the doctor was also not examined. There is no medical evidence of rape. All these facts create doubt about in the mind of this Court about the version of P.W.-1 as to whether actually she had gone there at the place of occurrence and was raped. 14. This is an appeal against acquittal. The parameter for consideration of appeal against acquittal is different, than that of an appeal against conviction. When there are two views possible, the view taken by the Trial Court has to be honored and the Appellate Court should stand by the judgment of acquittal. Only in case where the judgment of the Trial Court is perverse and against the settled principle of law, then only the Appellate Court can interfere. 15. The Hon’ble Supreme Court in the case of Mallappa v. State of Karnataka, reported in (2024) 3 SCC 544 at para Nos.26 and 27 has held as under:- “26. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to reappreciate or re-visit the evidence on record. However, the power of the High Court to reappreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the trial court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the trial court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the trial court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity. 27. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The “two-views theory” has been judicially recognised by the courts and it comes into play when the appreciation of evidence results into two equally plausible -7- views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the trial court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by reappreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eye of the law. 16. While going through the impugned judgment, we find that the each and every aspect of this case has been dealt with by the Trial Court. The Trial Court considering all the evidences, both documentary and oral, had come to a conclusion about the falsity of the case. There is no perversity or illegality in the judgment. We find no material to differ with the judgment passed by the learned Trial Court. Thus, this appeal has no merit, the same is dismissed. (ANANDA SEN, J.) (GAUTAM KUMAR CHOUDHARY, J.) R.S. A.F.R -8-
Arguments
Learned counsel appearing on behalf of the opposite party No.2 and learned counsel for the State submits that the O.P. No.2 -1- has been falsely implicated in this case, which has been held by the Trial Court after appreciation of evidence. It is their contention that there was severe enmity between the parties, which is apparent from the evidence itself. Further, neither the Doctor nor the Investigating Officer had been examined in this case, which gives a death blow to the prosecution case. Due to non-examination of the I.O., the defence has been prejudiced, as because the actual fact including the animosity between the parties which supports the defence case has been prejudiced. 5. After hearing the parties, we have gone through the entire records. The parties are aggregable for disposal of this appeal at this stage itself as the entire Trial Court Records is also available, thus we are disposing the appeal at this stage only. 6. This case arises out of a complaint, wherein the complainant had alleged that while she was going to ease herself at the back side of her house, the accused came with knife and committed rape upon her and threatened her. The charge was framed under Section 376 of IPC against this appellant. 7. To prove the prosecution case altogether four witnesses were examined:- P.W.-1 is the daughter of the complainant, who stated that she heard a scream from the back of her house and when she rushed to the place where her mother went to ease herself, she saw the accused fleeing. On query, her mother stated that accused has raped her on the point of knife. She further stated that she was being threatened by him to not to give any statement in Court. She admits that this accused is her cousin. She stated that none of the neighbour reached the place of occurrence after the alarm was raised by her mother. She stated that she also did not raise any alarm. She further admits that -2- there was dispute going on between her family and family of the accused. P.W.-2 is the victim herself, she stated that she had gone to ease herself where the accused was waiting. He caught hold of her and gagged her with towel, as a result of which she could not scream. Thereafter, accused slammed her on the ground and committed rape upon her and fled. She stated thereafter, she returned her house crying and narrated the story to all, including her mother-in-law, father-in-law and daughter, and thereafter went to the police station, but no action was taken and after two months, the F.I.R. was lodged. As the F.I.R. was not lodged during that period, she filed the complaint. She stated that her statement under Section 164 of Cr.P.C. was also recorded. She admitted that the accused is the son of her elder brother-in-law and there is land dispute going on between them. She further stated that earlier in respect of land dispute, she had lodged a case and levelled allegation against this accused that he has torn her blouse. She also admitted that in 2014, she had lodged a case against the B.D.O., Bagodar, Giridih under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. She also admits that she has a PDS shop and the accused is the Mukhiya of that area. She denied the suggestion that as she used to commit irregularity and illegality in Public Distribution System, which was opposed by the accused thus false case has been lodged. She denied the suggestion that on the complain of the accused her licence of Public Distribution Shop has been suspended. She admits that Manju Devi is aunty of the accused and Manju Devi had filed a case under Section 376 of IPC against her husband. She also admits that there is a case against her under the Essential Commodities Act, which was lodged by Block Supply Officer, Giridih and she admits that she has filed a -3- case under Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act against the said Officer also. She also admits that this accused has filed a criminal case against her husband, which is still pending. She further admits that after fight on 23.06.2015 at about 03.30 P.M. she also got injured, but the police did not get her medically treated, rather she herself had gone to private hospital and got herself treated by a Doctor whose name is Ramu Patel and the prescription was also given, but the same is not with her now. P.W.-3 is Jageshwar Ram Rajak, who stated that he was not present in his house on the date of occurrence and when he returned on the next day, his wife i.e the victim told him that Santosh Rajak had committed rape upon her, by gaging her mouth with towel. He admits that the accused is his nephew and he states that there is no land dispute amongst them, but there is a criminal case, which is still pending. He admits that there was a case under the Essential Commodities Act against his wife. He admits that 3 to 4 criminal cases are pending against him. He also admits that one Manju Devi had filed a criminal case alleging rape by him upon her. There are case and counter case between the parties. He admits that one Dr. Ramu Patel had treated her wife. P.W.-4 is the Judicial Magistrate, who recorded the statement of the victim under Section 164 Cr.P.C. He stated that the statement was voluntary and was in respect of commission of rape upon her. The statement was read over and explained to her and thereafter she had signed. 8. After closure of the evidence, the statement of the accused was recorded under Section 313 of Cr.P.C. D.W.-1 is Ramu Prasad Patel @ Ramu Patel, he stated that he is not a Doctor neither he treats anyone. He is only serving in -4- a medical shop. He only read the prescription and provides the medicine as per prescription. He works under Dr. S.N. Lal at the Nursing Home. He admits that the accused had filed a criminal case against him and he also filed a criminal case against the accused. D.W.-2 is Rambilash Paswan, who in evidence had verified the fact that there was dispute between the appellant and the accused and the appellant had also filed cases against the Government Officials. D.W.-3 is Ramesh Paswan, who also stated that there are several cases filed by this appellant against Government Officials and others. He also stated that there was serious land dispute between the parties. He also stated that this appellant is involved in black-marketing of food grains and she had filed several cases against the villagers. D.W.-4 is Sunita Devi, who also stated in the similar line. 9. Several documents have been produced by the defence, which have been exhibited to show the criminal cases filed by this appellant against several persons and cases which have been filed against her also, showing dispute between the parties. The F.I.R. and several other documents have also been brought on record.