Md.Lalu Mian Vs State of Jharkhand

The present appeal has been file for setting aside the judgment of conviction dated 06.12.2006 and order of sentence dated 08.06.2006 passed by learned Additional Sessions Judge-III, FTC, Dumka in Sessions Case No.392 of 2003 whereby and whereunder, the appellant has been held guilty for the offences under section 376 of Indian Penal Code and sentenced to undergo R.I. of 7 years along with fine of Rs.3.000/- with default stipulation.

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FACTUAL MATRIX

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Factual matrix giving rise to this appeal is that the husband of the informant namely Hamid Miya lodged a written report with allegation that at about 8 O’ clock at night of 27.03.2001, the present appellant entered into the house of the informant and committed rape with his wife in his absence. When the informant returned to his house, then his wife told about the above incidence. It is further alleged that due to life threatening given by the appellant, his wife did not inform the above incidence to any of the villagers.

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On the basis of above information, an FIR being Shikaripara P.S. Case No.26 of 2001was registered for the offence under section 376 of IPC. The police conducted thorough investigation of the case and submitted final form with conclusion that the above incidence has not been proved and the false FIR has been lodged and also recommended for prosecution of the informant under sections 182 and 211 of the Indian Penal Code. .

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The informant filed a protest-cum-complaint petition against the final form, which was registered as complaint Case No.415 of 2001. After conducting enquiry, learned JM 1^st Class, Dumka found prima-facie case for offence under section 354 of IPC

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against the appellant and proceeded with trial of the case. After closure of the prosecution witness, the case was fixed for appearance of the accused person for recording his statement under section 313 of Cr.P.C on 18.11.2003. Learned Judicial Magistrate, Dumka on the basis of evidence available on record found offence under section 376 of IPC, hence, the case was committed to the court of Sessions for Trial and disposal. After conclusion of the trial before the Sessions Court, the impugned judgment and order was passed, which has been assailed in this appeal.

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Learned counsel for the appellant submits that only the informant and his wife (victim lady) are main witnesses of the case and other witness namely Amdadul Mian(P.W.1) has not supported the prosecution story. Dr. Aruna Chattarjee(P.W.4) has medically examined the victim lady and found no sign of rape as alleged by the victim lady and P.W.5 Md. Mosafir Ansari is Advocate Clerk and a formal witness. The FIR was lodged after eleven days of the alleged occurrence with simple explanation offered by the informant that he was out of station and his wife was alone in the house and also due to fear of life threatening, she did not disclose the alleged incidence to any of the villagers, which does not satisfy the reasons for delay in

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lodging the FIR. The villagers may lie but after thorough investigation of the case, the Investigating Officer found the case false and also recommended a proceeding under sections 182 and 211 of IPC against the informant and due to that fear, the complaint case was filed. It is utter surprising that learned Magistrate found sufficient materials for proceeding only for the offence under section 354 of IPC on the basis of sworn affirmation of the complainant and the victim lady. After charge, the prosecution story was twisted by the witnesses with of commission of without allegation rape any corroboration from any source and the case was committed to the court of Sessions. It is further submitted that learned trial court has also committed serious illegality while accepting the testimony of the victim and her husband as a gospel truth without proper appreciation of the fact that due to enmity, this false case was lodged and the version of the witnesses including the victim lady always remained inconsistent, colourable and changing stage wise, therefore, how such witnesses can be categorized as wholly reliable for the purpose of conviction. It is further submitted that the law is trite that the testimony of the victim, if appears to be unblemished, wholly reliable having no animus for false implication, her

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testimony cannot be discarded and can form sole basis of conviction. In the instant case, the victim and her husband in collusion have lodged this false case and changing their versions from time to time to make serious offence against the appellant only with a view to harass and humiliate him due to previous enmity. The informant, with a view to save himself from the prosecution under sections 182 and 211 of IPC, instituted protest-cum-complaint petition culminating into conviction of the appellant. The victim lady is mother of three children; she was not a newly wedded woman to have any shame or fear to promptly state, the commission of such a ghastly offence with her, to the villagers in absence of her husband. Learned trial court has also ignored from consideration the testimony of defence witnesses, who have categorically stated about false implication of the appellant due to previous enmity between the parties. Therefore, the impugned judgment and order of conviction and sentence of the appellant is liable to be set aside, allowing this appeal.

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On the other hand, learned Additional Public Prosecutor appearing for the State defending the conviction and sentence of the appellant on merits and submitted that there is no illegality and infirmity in the impugned judgment and order

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calling for any interference. This appeal is devoid of merits and fit to be dismissed.

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I have gone through the record of the case along with impugned judgment and order in the light of contentions raised on behalf of both parties.

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First of all, I have to apprise the evidence of victim lady, who was examined herself as P.W.3. In her evidence, she has stated that about four years ago i.e. on Wednesday at about 8:00 PM, she was sleeping alone in the night, meanwhile, the present appellant breaking open the door, entered into her house and committed rape with her. She raised alarm and also protested, then she was given threatening to be killed and the appellant fled away. In the next day of morning, she informed about the alleged incidence to Amin Soren, Charka Mian and Amdadul Mian(P.W.1) and when her husband returned i.e. on Thursday, she narrated the incidence to her husband. Thereafter, she along with her husband went to police station and lodged the case.

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In her cross-examination, she admits that on the date of occurrence, three children, eldest son about 14 years and her youngest child of seven years were present in the house. Further, this witness was asked about her previous statement

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at the time of enquiry and before the charge, wherein she has stated that just after the occurrence, she raised alarm and also disclosed the alleged incidence to Amin Soren, Charka Mian and Amdadul Mian(P.W.1), who are neighbours but she did not reply to the above questions. Her demeanor has been noted by the learned trial court. Three questions have been asked by the learned trial court drawing her attention towards pervious statement which she deliberately did not reply and kept mum.

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P.W.2 Hamid Mian is the husband of the victim lady

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and admittedly he is hearsay from his wife.

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P.W.1 Amdadul Mian has clearly expressed no knowledge about the said incidence. Although, the victim lady has stated that at first after hearing hulla, Amadadul Mian along with two other persons reached to whom she narrated about the incidence.

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P.W.4 Aruna Chatterjee has not found any sign of commission of rape with the victim lady and no internal or external injury or any injury on private part and foreign hair found.

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P.W.5 Md. Musafir Ansari has proved protest-cum-

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complaint petition of the victim as Ext.2.

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On the other hand, D.W.1 Rahman Ansari is own brother of the informant. According to his evidence, he resides in the same house, which has been partitioned with his brother. Since, 10-12 years, the informant and the accused Lalu Mian are under litigating terms due to that reason he has falsely been implicated in this case and no such occurrence has ever took place between his brother and the victim lady.

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In his cross-examination, this witness remained affirmed and nothing has been elucidated in his crossexamination to disbelieve him.

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D.W.2 Qutub Ansari has also deposed about the inimical term since long between the informant and the appellant due to that reason, he has falsely been implicated in this case.

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10.It is also here pertinent to observe that the victim lady has given contradictory statement from stage to stage of proceeding during enquiry, before the charge evidence and at the trial also. Learned trial court has also asked specific question from the victim lady to which, she did not reply and remained mum in spite of repeated questions by the court and her demeanor has also been recorded by the concerned trial court.

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From perusal of the impugned judgment, I find that learned trial court has swayed upon the sole testimony of the victim lady under assumption that the conviction can be based upon uncorroborated testimony of the victim. No doubt, there is no rule of law to insist upon the corroboration against the testimony of the victim of rape, who is deemed to be injured witness. But at the same time, it is duty of the court to observe that the victim lady has given colourable statements and not wholly reliable and there are also some materials showing the possibility of false implication. The court must as a matter of prudence must seek corroboration from some independent source before acting upon the testimony of the victim lady. In the instant case, there are various suspicious circumstances, which have been ignored by the learned trial court. From very inception, when the case was initiated after delay of 10 days without any explanation and after thorough investigation of the case, the final form was submitted by the police. Not only this case was found to be false, but recommendations were also made for prosecution of the informant himself for the offence under sections 182 and 211 of IPC. In spite of the enquiry conducted by learned Magistrate upon protest-cumcomplaint lodged by the informant, the court was of the view

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that there is prima facie material for proceeding for the offence under section 354 of IPC only. Even at the stage of charge, offence of section 376 of IPC was not found to be committed and there was no charge in this connection. The accused went upon facing the trial of charge under section 354 of IPC and at the stage of section 313 Cr.P.C., the case was committed to the court of Sessions. Learned Additional Sessions Judge, who conducted the trial has clearly indicated that the demeanor of complainant-cum-victim, she was not disclosing truth deliberately in respect to her previous statements recorded during enquiry and at the trial by the Magistrate for the offence under section 354 of IPC.

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In view of the above discussion and reasons, I am of the firm view that the victim lady is not wholly reliable witness, and except her husband, who happens to be a hearsay witness, none of the neighbourers disclosed about the incidence. The conduct of the victim lady during her examination cast doubt on her versions. Therefore, I find substance in the contentions raised on behalf of the appellant and merits in this appeal. Accordingly, this appeal is allowed. The appellant is acquitted from the charges leveled against him.

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