Allowed

Mahaveer Lohra And Anr. v. State of Jharkhand

Jharkhand HC16 Jan 2020Cr.A(DB)/559/2009

Case brief

AI extract

What is this about?

In a criminal appeal against conviction for dacoity and rape, the High Court set aside convictions due to lack of medical examination of the accused for rape, failure to prove possession of stolen goods for section 412 IPC, and contradictory witness testimony indicating police interference in prosecutions.

What did the court decide?

Appellants convicted under sections 395, 412 IPC acquitted; conviction under section 376 IPC set aside; all appellants discharged or set free.

Mahaveer Lohra And Anr. Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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Criminal Appeal (DB) No. 383 of 2009 With Criminal Appeal (DB) No. 374 of 2009 With Criminal Appeal (DB) No. 559 of 2009

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(Against the judgment of conviction dated 21.03.2009 and the order of sentence dated 23.03.2009 passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi in S.T No.31 of 2008 and S.T No. 118 of 2008 )

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Karam Singh Bedia S/o Late Sukhdeo Bedia, resident of Jaradih Tola, Hazari Tanr, P.S Angara, Dist. Ranchi … Appellant

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[in Criminal Appeal (DB) No. 383 of 2009] Laldeo Bedia S/o Late Amar Singh Bedia, resident of Village Harwa Beda , P.S. Angara, Dist. Ranchi … Appellant

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[in Criminal Appeal (DB) No. 374 of 2009]

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Mahaveer Lohra son of Shri Mongla Lohra, resident of Asua Bera, Plice Station Sikidri, District Ranchi

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Somra Bedia son of late Molia Bedia, resident of Village Chukrubuha, Police Station Angara, District Ranchi

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… Appellants

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[in Criminal Appeal (DB) No. 559 of 2009]

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Versus

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The State of Jharkhand … Respondent

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For the Appellant(s) : Ms. Renuka Trivedy, Amicus

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[in Criminal Appeal (DB) No. 383 of 2009] Mr. Prem Pujari Roy, Amicus [in Criminal Appeal (DB) No. 374 of 2009] Mr. Indrajit Sinha, Advocate Mr. Awinash Kumar, Advocate

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[in Criminal Appeal (DB) No. 559 of 2009] For the State : Mr. Satish Kumar Keshri, A.P.P

[in all cases]

PRESENT

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

JUDGMENT

Per, Shree Chandrashekhar, J

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Dated: 16th January, 2020 Oral Order

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In her fardbeyan which was recorded on 03.06.2007 at 15:30 hrs. the victim lady has named Karam Singh Bedia who along with 8-9 unknown persons have committed dacoity in her house in the night of 2/3.06.2007 and Karam Singh Bedia has sexually ravished her. On the basis of her fardbeyan , Angara P.S. Case No. 48 of 2007 has been registered against Karam Singh Bedia and 8-9 unknown persons under sections 395 and 376 of the Indian Penal Code. After the investigation, a charge-sheet was submitted against Karam Singh Bedia, Laldeo Bedia, Mahaveer Lohra, Boka Oraon @ Suresh Oraon and Somra Bedia who have faced the trial on the charge under section 395 of the Indian Penal Code, section 412 of the Indian Penal Code and section 376(2)(g) of the Indian Penal Code.

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2. The accused, namely, Boka Oraon @ Suresh Oraon has been acquitted of the criminal charges framed against him.

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3. The appellants, namely, Karam Singh Bedia, Laldeo Bedia, Mahaveer Lohra and Somra Bedia have been convicted and sentenced to R.I for Ten Years and fine of Rs. 2000/- each, both under section 395 of the Indian Penal Code and section 412 of the Indian Penal Code.

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4. The appellant, namely, Karam Singh Bedia has also been convicted and sentenced to R.I for life and fine of Rs. 5000/- under section 376(2)(g) of the Indian Penal Code.

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5. The informant of this case who is the victim lady has been examined in the court as P.W.1. Her husband, namely, Tara Lal Bedia-P.W.2 and sister-in-law, namely, Baishakhi Kumari-P.W.3 have also claimed that they are the eye-witnesses.

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6. In her fardbeyan the informant has stated that in the night of 02.06.2007 she was sleeping with her husband and two

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minor children in her house. At about 12:00 a.m, 8-10 persons climbed the roof of her house and on the gun point brought them down. They took away Rs. 2000/- in cash from tin-box, purse of her husband which carried Rs.550/- in cash, election photo identity card, a silver chain and a black bag. They took her husband to the house of her elder uncle-in-law and one of the accused persons brought her on the top of her house. He was whitish complexioned, wearing full-pant and ganji and had covered his face with handkerchief. He sexually ravished her and she has identified him in the moonlight. The accused was Karam Singh Bedia, son of late Sukhdeo Bedia. Other dacoits were aged between 25 years to 30 years and they were speaking Hindi. She has further stated that one amongst the accused persons was also carrying a round object like bomb. Later on, her elder uncle-in-law told her that the accused persons have looted Rs.360/- in cash, one silver chain and bangle of his daughter-in-law.

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7. The victim lady has been examined in the court as P.W.1. In her examination-in-chief, she has stated that at about 11:00 p.m in the night five accused persons carrying pistol climbed on the top of her house and brought her on the ground floor. They have looted cash and jewelleries from her house and from the house of her uncle-in-law. She has claimed that she has seen face of the accused who has committed rape upon her. He was Karam Singh Bedia and brandishing pistol he was threatening to kill her. She has claimed that she has identified three accused persons in jail during the Test Identification Parade. Her husband who has been examined as P.W.2 has deposed in the court that 8-10 dacoits came at the top of his house at about 11:00 p.m. At that time he was sleeping with his wife and children. The accused persons threatening him at gun point brought him down and took away Rs. 2550/- in cash and gold and silver ornaments. He has further claimed that the accused persons have looted cash and jewelleries from the house of his uncle. The accused persons had tied him in the house of

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his uncle and when he came back home in the morning his wife informed him that Karam Singh Bedia has sexually ravished her. He has claimed to have identified three accused persons in the Test Identification Parade. P.W. 3 is another eye-witness. She is daughter of Lakhan Bedia; Lakhan Bedia who is the uncle-in-law of the informant has not been examined during the trial. She has also spoken about the accused persons carrying gun, pistol and entering her house. They took away cash and jewelleries from her house and while fleeing away the towel with which they had covered their face fell on the ground and that is how she could see their face. In the Test Identification Parade she has identified two accused persons namely, Somra Bedia and Mahaveer Lohra.

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8. In “Hari Nath Vs. State of U.P” reported in (1988) 1 SCC 14 , the Hon'ble Supreme Court has observed that the value of the Test Identification depends on the promptitude in point of time with which the suspects were put on test identification. In the present case, Laldeo Bedia and Somra Bedia were arrested on 24.06.2007 and Mahaveer Lohra was arrested on 05.07.2007. The Test Identification Parade in respect of these three accused persons was conducted on 20.08.2007, but no explanation has been offered by the prosecution for delay in conducting the Test Identification Parade. In “Lal Singh Vs. State of U.P” reported in (2003) 1 SCC 554 , the Hon'ble Supreme Court has observed that if the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such identification. The Hon'ble Supreme Court has observed as under :

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“ 43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest-possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative

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evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety.”

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9. In the context of identification of Laldeo Bedia, Somra Bedia and Mahaveer Lohra, it needs to be recorded that P.W.1, P.W. 2 and P.W.3 were examined on 05.04.2008; the incident has happened in the intervening night of 2/3.06.2007.

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10. The identification of an accused in the Test Identification Parade is a primary evidence but not substantive evidence. The law on the subject is well-settled by now. The evidence on identification of an accused in Test Identification Parade is used to corroborate identification of the accused in the court. It is also well-settled that the identification of an accused in the court by a witness is a substantive evidence but identification of an accused by a witness in the court for the first time is inherently of a weak character unless corroborated by his previous identification in Test Identification Parade or with any other evidence. In absence of any corroborative evidence, normally conviction on the basis of identification of an accused for the first time in the court cannot be recorded. In “Dana Yadav alias Dahu and Others Vs. State of Bihar” reported in (2002) 7 SCC 295 , the Hon'ble Supreme Court has held that ordinarily identification of an accused for the first time in the court by a witness should not be relied upon, the same being from its very nature inherently of a weak character unless it is corroborated by any other evidence.

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11. In her cross-examination the victim lady has stated that the police had threatened her; she has given evidence as instructed by the police; and she has identified the accused persons at the instance of the police (iqfyl Mjk /kedk dj eq>ls iwNh FkhA iqfyl ds dgs vuqlkj cksyh Fkh] iqfyl ds le{kA iqfyl ds dgus ij vfHk;qDrksa dks igpkuh FkhA). Her husband who has stated in his examination-in-chief that he came back home the next day and there were 8-10 dacoits who have participated in the occurrence – his wife has spoken about only five accused persons – changed his version

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in the cross-examination and said that about ½-2 hours after the dacoits left he met his wife. On his own accord, he has not seen anyone of the appellants – his wife has identified Karam Singh Bedia whom she could see in the moonlight – and has stated in his cross-examination that before the police he has claimed that he can identify one accused person. On a reading of paragraph no. 6 of his cross-examination it transpires that he has stated that it was a moonlit night but the occurrence has taken place in dark. In paragraph no. 9 he has stated that the accused persons brought him down in a room which was dark but he has seen them in the torch light. His wife and P.W. 3 do not say about the dacoits holding torch and all of them have admitted that the accused persons had covered their face with towel. Besides this, P.W. 3 has identified only two accused persons namely, Somra Bedia and Mahaveer Lohra in the Test Identification Parade. P.W.2 has said that he did not know Mahaveer Lohra and Laldeo Bedia and P.W.3 has said that she had no previous acquaintance with Mahaveer Lohra and Somra Bedia. They have said that these accused persons are resident of a nearby village. In these facts and particularly the evidence of the prosecutrix that the police threatened her and she has identified the accused persons at the instance of the police, possibility of the appellants being shown to the witnesses before the Test Identification Parade cannot be ruled out.

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12. Dashrath Bedia-P.W.6 and Ghanshi Ram Bedia-P.W.7 are the seizure list witnesses. P.W.6 has stated that no seizure was made in his presence and in his cross-examination he has stated that under fear of the police he has signed on a blank paper. P.W.7 has also stated that the police called him and threatened him then he has signed on a plain paper. He has stated that his statement was not recorded by the police.

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13. The appellants have been convicted under section 412 of the Indian Penal Code on the allegation of taking

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away cash and jewellries from the house of the informant and her uncle-in-law but recovery of Rs. 2550/- only was effected by the police. The descriptions of the cash and jewelries which allegedly were looted by the appellants were not given by the informant or P.W.2 or P.W.3. On such evidence, conviction of the appellants under section 412 of the Indian Penal Code, which is attracted only when a person is found to have received or retained any stolen property dishonestly and it is proved that he knows or has reason to believe that such property has been transferred by the commission of dacoity or he received such property from a person whom he knew or has reason to believe to belong or to have belonged to a gang of dacoits and that the property which he knows or has reason to believe to have been stolen, is not found proved and, accordingly, the appellants are acquitted of the charge framed against them under section 412 of the Indian Penal Code.

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14. On commission of the offence under section 376(2)(g) of the Indian Penal Code, testimony of the victim lady and the the medical evidence are important. The victim lady has stated that Karam Singh Bedia took her on top of her house and sexually ravished her. The incident has happened in the midnight of 02.06.2007 and her fardbeyan was recorded at about 15:30 hrs. the next day in which she has named Karam Singh Bedia as the person who has committed rape upon her but nowhere she has alleged that the other accused persons have abetted or participated in commission of the offence under section 375 of the Indian Penal. Dr. (Smt.) Vijaya Dashami Oraoin-P.W.13, who has medically examined the victim lady on 04.06.2007 at about 10:45 a.m, has not found any external or internal injury on the victim lady. Neither any evidence of sexual intercourse was detected by the doctor at the time of her examination nor any foreign body was found in her private parts. No spermatozoa alive or dead was found in the swab which was sent for medical examination. In this case it is also relevant to record that Karam Singh Bedia was not medically

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examined and he has also stated during his examination in the court that his medical examination was not conducted. The doctor has also admitted in her cross-examination that Karam Singh Bedia was not produced before her for medical examination.

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15. Section 53 of the Code of Criminal Procedure provides that when a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, he shall be examined by a registered medical practitioner. Section 53-A was inserted in the Code of Criminal Procedure by Act of 25 of 2005. Section 53-A deals with medical examination of a person who has been arrested on the charge of committing an offence of rape or an attempt to commit rape. Section 53-A is on similar lines as section 53 but incorporation of section 53-A in the Code of Criminal Procedure by an amendment is a sufficient indication on the legislative intendment that even if not mandatory, non-compliance of section 53-A would count against the prosecution. In “A. Kamaraju Patro Vs. State of Orissa , reported in 1991 CriLJ 2009 ”, on non-examination of an accused by a medical practitioner as indicated under section 53 Cr.P.C, it has been observed, thus;

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“6. In this case the petitioner has not been admittedly examined by any doctor. The evidence on record shows that P.W.6 the medical officer had only examined the victim woman (P.W. 3). Relying on a decision of the Supreme Court in the case of Dr. S. P. Kohli v. High Court of Punjab and Haryana, AIR 1978 SC 1753: (1978 Cri LJ 1804), it is contended by Mr. Misra that non-examination of the accused charged with offence of rape is fatal for the prosecution in as much as the smegma test of the accused is a sure and infallible test to determine whether the male agent in the offence of rape had actually committed sexual intercourse or not and in the absence of such a test for want of medical examination of the petitioner, it is submitted that the petitioner cannot be said to have committed the offence of rape, especially when some other persons are also alleged to have committed rape along with the petitioner. On a perusal of the evidence on record and the aforecited decision of the Supreme Court, I am of the view that non-examination of the petitioner by the

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doctor supports the defence theory of non-participation of the petitioner in the offence of rape.”

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16. The facts in the present case are almost similar to the facts in “Kamaraju Patro” case. A charge of gang rape was framed against all the accused persons but only Karam Singh Bedia has been convicted under section 376(2)(g) of the Indian Penal Code.

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17. In a prosecution under section 376 of the Indian Penal Code it is statement of the prosecutrix which may alone form the basis for conviction of an accused for the offence of rape and many a times medical evidence or injury on the external or internal part of the victim lady is not decisive. Section 375 of the Indian Penal Code before the amendment of 2013 which defines rape provides that,

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“Section 375. Rape. - A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

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First .- Against her will.

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Secondly .- Without her consent.

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Thirdly . - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

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Fourthly .- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly .- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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Sixthly .- With or without her consent, when she is under sixteen years of age.

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Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

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Exception. - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

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18. It is well-accepted that normally a women would not falsely implicate someone for the offence of rape; the incident brings stigma to the women. It is also well-settled that absence of spermotozoa is not a conclusive factor and penetration is not sine qua non to complete the offence under section 376 IPC. But then, testimony of the prosecutrix is not like a gospel truth. 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 6 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 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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19. In the present case the medical evidence laid by the prosecution does not support the story of rape upon the prosecutrix.

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20. Accordingly, we hold that the prosecution has failed to establish the charge under section 376(2)(g) of the Indian Penal Code against Karam Singh Bedia. The conviction of the appellant, namely, Karam Singh Bedia under section 376(2)(g) of the Indian Penal Code is set-aside.

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21. The enmity between husband of the informant and Karam Singh Bedia is admitted by the prosecution witnesses. In fact, the prosecution witnesses have stated that a Panchayati was convened in connection to the occurrence – some says a theft while the others have said dacoity – in which Laldeo Bedia has made allegation against Somra Bedia and Somra Bedia has made allegation against the other accused persons. It

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has also come on record that under the pressure of the villagers Karam Singh Bedia, Laldeo Bedia and Somra Bedia have admitted that they have committed the crime and above all the prosecution witnesses have stated that the informant and her husband have stated in the Panchayati that Karam Singh Bedia has not committed any crime. P.W. 6 has stated in his cross-examination that the informant did not inform him about dacoity or rape. P.W.7 has also admitted that the informant or her husband never told him who has committed dacoity and rape. P.W.8 has stated that his statement was not recorded by the police. He is the Gram Pradhan and at his instance a Panchayati was convened. He has stated that husband of the informant told him that on suspicion he has made the appellants as accused and that Karam Singh Bedia has not participated in the occurrence. He has further stated that except Somra Bedia none of the accused persons has admitted about the occurrence and he has written to the police that Karam Singh Bedia and Laldeo Bedia are innocent. In his cross-examination, he has stated that the informant and her husband both participated in Panchayati in respect of which a paper was prepared which is marked as Exhibit-A. He has also identified Exhibit-A/1 which bears signature of the informant and her husband. P.W.9 has spoken about theft in the house of Tara Lal Bedia, the husband of the informant. In his cross-examination, he has said that under pressure of the Panchas the accused persons have admitted the crime. In paragraph no. 5 of his cross-examination, P.W.9 has stated that the informant has admitted that on suspicion she has made a complaint of rape. He has further stated that under pressure of the officer-in-charge of the police station this case was lodged by the informant. P.W.10 has also admitted that under pressure of the police at Gram Sabha the accused persons have admitted their involvement in the occurrence. He has further stated that his statement under section 164 of the Code of Criminal Procedure was recorded under threat. He has further stated

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that he gave statement in the court as told to him by the police and the informant has stated before him that she did not identify any dacoit. In his cross-examination, he has stated that he has stated before the police that he does not know anything about the occurrence. P.W.11 has also stated that his statement under section 164 of the Code of Criminal Procedure was recorded under threat of the police. And, none of these witnesses has been declared hostile at the instance of the prosecution.

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22. In the aforesaid state of evidences, not only identification of the appellants by P.W.1, P.W.2 and P.W.3 during Test Identification Parade and also in the court cannot form basis for their conviction, from the testimony of P.W.1, P.W.6, P.W.7 and P.W.8, P.W.9, P.W.10 and P.W.11 it stands proved that the appellants have been implicated in this case at the instance of the police. Their conviction under section 395 of the Indian Penal Code was not legal and proper and, accordingly, it is set-aside.

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23. The appellants are acquitted of the charges framed against them in S.T No. 31 of 2008 and S.T No. 118 of 2008.

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24. Accordingly, the appellants, namely, Laldeo Bedia in Criminal Appeal (DB) No. 374 of 2009, Mahaveer Lohra and Somra Bedia in Criminal Appeal (DB) No. 559 of 2009, who are on bail, shall stand discharged of liability of the bail-bonds furnished by them.

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25. The appellant, namely, Karam Singh Bedia in Criminal Appeal (DB) No. 383 of 2009, who is in jail, shall be set free forthwith, if not wanted in connection to any other case.

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26. In the result, Criminal Appeal (DB) No. 383 of 2009, Criminal Appeal (DB) No. 374 of 2009 and Criminal Appeal (DB) No. 559 of 2009 are allowed.

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27. Let a copy of the Judgment be transmitted to the court concerned through FAX.

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28. Let the lower-court records be sent to the court

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concerned forthwith.

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29. We appreciate the assistance rendered by Ms. Renuka Trivedy and Mr. Prem Pujari Roy, the learned Amici.

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(Shree Chandrashekhar, J.)

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