Allowed

Gokul Sah Alias Bhutka Sah v. State of Jharkhand

Jharkhand HC23 Jan 2020Cr.A(DB)/515/2001

Case brief

AI extract

What is this about?

The High Court in an oral order acquitted the appellant of rape charges. The court held that the prosecution failed to prove the charge as the sole testimony of the prosecutrix was not reliable, lacked medical corroboration indicating recent sexual intercourse, and was unsupported by independent witnesses.

What did the court decide?

Appellant acquitted; conviction set aside; liability of bail bonds discharged.

Gokul Sah Alias Bhutka Sah Vs State of Jharkhand — Jharkhand HC (2020) — LawSathi Research

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IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction)

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Criminal Appeal (D.B.) No. 515 of 2001

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(Against the judgment of conviction dated 17.10.2001 and the order of sentence dated 18.10.2001 passed by the learned Sessions Judge, Sahibganj in Sessions Case No. 201 of 1994)

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Gokul Sah @ Bhutka Sah, son of Matru Sah, resident of village Chasgawan, PS-Borio, District-Sahibganj ..... Appellant

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Versus

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The State of Jharkhand …... Respondent

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PRESENT

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HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Ms. Khusboo Kataruka Modi, Amicus For the State : Ms. Amrita Kumari, APP

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JUDGEMENT

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Per, Shree Chandrashekhar, J. Dated: 23^rd January, 2020

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Oral Order

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The sole appellant has been convicted and sentenced to R.I for life under section 376 of the Indian Penal Code.

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The victim lady is informant in this case. On the basis of her fardbeyan which was recorded on 25.01.1990, Borio P.S. Case No. 16 of 1990 was registered under section 376 of the Indian Penal Code against the appellant. During the trial the prosecution has examined nine witnesses; the prosecutrix is P.W.5 and her husband is P.W.3.

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The defence set-up by the accused-appellant is that when he demanded payment of outstanding dues he has been falsely implicated by the prosecutrix at the instance of her husband. In support of his defence the accused-appellant has examined two

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witnesses who are the co-villagers.

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In her fardbeyan, the prosecutrix has stated that on 24.01.1990 she was at home and her husband had gone for work. At around 12:00 noon the accused came to her house and demanded outstanding dues of Rs. 12/- and when she went inside her room for bringing money the accused followed her, over-powered her and sexually ravished her. When she tried to raise hulla the accused put towel in her mouth. Somehow she could remove the towel and raised hulla whereupon her husband who was working on road came running there and tried to apprehend the accused, however, he escaped. She has stated that several villagers including Dubai Kisku and Badrai Murmu had arrived there on hearing hulla . Explaining the reason for not lodging a First Information Report on 24.01.1990, the informant has stated that a panchayati was to be convened and the matter was to be discussed by the panchas but when panchayati was not convened next day she along with her husband went to the police station and informed the police about the incident. In the court she has deposed that around noon on Wednesday when the incident had happened she was alone in her house and at that time her husband had gone for work. The accused came to her house and asked payment of the outstanding dues and when she had gone to bring money the accused came behind her and committed rape upon her. When her husband came there by that time the accused was leaving her house. Her husband tried to over-power him by holding his shirt but somehow he escaped and in the process his shirt was torned. Her husband who has been examined as P.W.3 has deposed that when on hearing hulla he reached home he has seen the accused committing rape upon his wife and when he tried to apprehend him somehow he managed to flee away and on his raising hulla Dubai Kisku and Badrai Murmu came there.

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P.W.1 is a formal witness and P.W.4 and P.W.6 are the co-villagers who have turned hostile. They have stated in the court

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that they have no knowledge about the occurrence. P.W. 4 has stated that his statement was not recorded by the police. P.W.7, P.W.8 and P.W.9 are seizure witnesses. In his cross-examination P.W.7 has stated that under fear of the police he has signed the seizure list. P.W. 8 has also stated that he has signed the seizure memo under fear of Daroga Ji and nothing was seized in his presence rather Daroga Ji has taken his signature on the seizure memo while he was on the bus. P.W. 9 has proved seizure memo in respect of seizure of cycle, sweater, a shirt and a lungi but in his cross-examination he has admitted that without reading the seizure memo he has signed it.

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In the context of the above evidence of P.W. 4, P.W.6, P.W.7, P.W.8 and P.W.9, non-examination of the investigating officer has become an important factor in this case. It is not that in every case in which the investigating officer has not been examined during the trial it must be concluded that prejudice has been caused to the accused, but then, in a case like the present one in which seizure of the material objects would be a relevant fact for connecting the accused with the crime non-examination of the investigating officer would certainly cause prejudice to the accused.

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The initial case projected by the prosecution is that the prosecutrix is the only eye-witness, however, during the trial her husband has claimed that when he reached home he found the accused committing rape upon his wife. But on his own saying he cannot be an eye-witness of the occurrence. The prosecutrix has stated that at the time when the accused came to her house for demanding money her husband had gone for work. In paragraph no. 8 of her cross-examination she has stated that her husband was working at a distance of half a kilometer from the house and he came back home at around 2:00 p.m; the incident has happened at around 12:00 noon. Her husband in his cross-examination has stated that when he heard hulla he was working at a distance of one and half kilometer from his house. On such evidence, the claim of P.W.3 that

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he is an eye-witness to the incident is unbelievable. The prosecutrix has claimed that the accused has remained in her house for about one hour whereas her husband claims that he came running to the house after hearing hulla . She has further admitted that there are around 100 houses in the village and around her house there are five houses. Dubai Kisku and Badrai Murmu are the co-villagers who are residing adjacent to her house but Dubai Kisku has not support the prosecution’s case and Badrai Murmu could not be examined as by that time he had passed away.

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In a case under section 376 of the Indian Penal Code testimony of the prosecutrix which is treated at par with an injured witness may form basis for conviction of an accused and delay in lodging the report with the police or absence of internal or external injury on her person may not be the determinative factor, but then, in a case under section 376 of the Indian Penal Code these factors cannot be overlooked altogether. If delay in lodging the First Information Report or absence of injury; external or internal, is explained satisfactorily it would not count against the prosecution, however, in a case in which medical examination of the prosecutrix has been conducted within a short span of time and there is no explanation on absence of external and internal injury on her person, testimony of the prosecutrix alone cannot form foundation for conviction of an accused under section 376 of the Indian Penal Code. In “ State (Govt. of NCT of Delhi) Vs. Pankaj Chaudhary ” reported in 2018 SCC OnLine SC 2256 , the Supreme Court has observed thus :

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“26. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu alias Undrya v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim

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does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State v. N.K. The accused (2000) 5 SCC 30].”

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The defence witnesses have spoken about demand of outstanding dues by the appellant and the prosecutrix herself has stated that the accused came to his house demanding outstanding dues. The occurrence has happened in the broad daylight and there are several houses around the house of the prosecutrix. According to the prosecutrix the appellant has remained in her house for about one hour and she has raised hulla but no one from the village has supported the prosecution’s story of the appellant committing rape upon her. The seizure of cycle, shirt and lungi has not been proved by the prosecution and the medical evidence does not corroborate testimony of the prosecutrix.

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Dr. Subhdra Sinha-P.W. 2 who has medically examined the prosecutrix on 26.01.1990 has found hymen old torn and ruptured. No mark of violence over external genitals or thigh was detected and no foreign hair was found. The vaginal swab was sent for pathological examination and it was reported that no spermatozoa dead or alive was found in the vaginal swab. The doctor has not found any evidence of recent sexual intercourse and the prosecutrix was found habitual of intercourse.

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As observed by the Supreme Court in “ Raju and Others Vs. State of Madhya Pradesh ” reported in (2008) 15 SCC 133 , testimony of the prosecutrix is not like a gospel truth and it has to be tested like evidence of any other eye-witness. The inherent improbability in the evidence of the prosecutrix which is not supported by any other independent witness, in our opinion, makes her testimony not reliable and trustworthy and it cannot be the basis for convicting the appellant under section 376 of the Indian Penal

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Code.

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Having said so, we hold that the prosecution has failed to prove the charge under section 376 of the Indian Penal Code against the appellant and, accordingly, his conviction for the said offence is set-aside.

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