Allowed

Satyendra Singh v. State of Bihar

Patna HC9 Apr 2013CR. APP (SJ)/338/2001

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court at Patna set aside the conviction and sentence of the appellant for rape and abduction. The appellate court held that the conviction relied on surmises, noting a significant delay in filing the FIR, contradictions in the prosecution witnesses' testimony, and a lack of corroboration for material evidence.

What did the court decide?

The criminal appeal was allowed; the judgment of conviction and order of sentence were set aside; the appellant was discharged and released.

Satyendra Singh Vs State of Bihar — Criminal Trial and Appeal | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.338 of 2001 ========================================================= (Against the judgment of conviction dated 05-09-2001 and order of sentence dated 07-09-2001 passed by VIIth Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No. 2/2 of 1999/99) Satyendra Singh, S/o Suresh Singh, resident of Village-Katar, P.S. Indrapuri, District-Rohtas. .... .... Appellant. Versus The State of Bihar .... .... Respondent/s ========================================================= Appearance : For the Appellant/s : Mr. Keshav Shrivastava. Sr. Advocate. Mr. Raj Kumar, Advocate. For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P. Dated/ the 9th day of April 2013. ========================================================= CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA C.A.V JUDGMENT

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Hemant Kumar 1. This Cr. Appeal has been preferred against the judgment of Srivastava,J . conviction dated 05-09-2001 and order of sentence dated 07-09-2001 passed by VIIth Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No. 2/2 of 1999/99 by which and whereunder, he convicted the appellant for the offences punishable under Sections-366, 376, 386 & 463 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for ten years each for the offences punishable under Sections-366, 376, 386 of the Indian Penal Code and to undergo rigorous imprisonment for two years for the offence under Section-463 of the Indian Penal Code for which, the punishment has been provided under Section-

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465 of the Indian Penal Code. However, the learned Additional Sessions Judge directed that all the sentences would run concurrently.

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In brief, prosecution case, is that the P.W. 4 namely, Priyanka Devi gave her fardbeyan to Officer-in-charge, Dehri Police Station at her home on 26-07-1998 at 5.00 p.m. to this effect that since last one year, she was running a beauty parlour in Choudhary Market after taking a shop on rent whereas; her husband, namely, Ramjee Sao (P.W. 3) was working as collection agent in Sahara India. Satyendra Singh was also working as Senior Field Manager in Sahara India. Since her husband as well as Satyendra Singh were working together in Sahara India, the relation between her husband and Satyendra Singh became cordial and Satyendra Singh used to call her Bhabhi and also used to visit her home. She further stated that on 14-06-1998 while she was working in her beauty parlour, Satyendra Singh came there by Maruti car bearing registration No. BR 32(M)/9726 and said that her daughter was seriously ill, upon which, she closed her shop and sat down in the car of Satyendra Singh. The glasses of the car were black coloured. The accused/appellant Satyendra Singh drove the vehicle and when the aforesaid vehicle reached near coal depot at G.T. road, she asked as to where he was taking her and also directed him to stop the car. Thereafter, Satyendra Singh stopped the car for two minutes. He took out water from the thermos flask and having mixed some white powder in the water, forcibly administered her the said water and when she tried to raise alarm, Satyendra Singh pressed her mouth with handkerchief and also threatened to kill her. She became afraid and her body became irresistible due to intoxication. Satyendra Singh, again, drove the car and proceeded

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ahead. She further stated that after half an hour, she regained her consciousness and found herself near Shilpa Hotel at Sasaram. The accused, Satyendra Singh took her in room No. 102 of Shilpa Hotel by catching her hand and bolted the door of room from inside. After sometimes, he ordered for chicken and rice. She was afraid and helpless due to fear of Satyendra Singh as well as due to intoxication. She was also unable to resist and speak anything. She was feeling drowsiness. Satyendra Singh forced her to take meal and after sometime, he started removing her clothes from her body. When she made protest, Satyendra Singh, again, threatened to kill her and stated that your dead body would not be traced out. She became helpless out of fear of Satyendra Singh and after that, Satyendra Singh removed her all clothes and he also became nude. Satyendra Singh put an automatic camera on cooler and started committing sexual intercourse with her and also took photographs of the above said sexual intercourse. He also took several nude photographs of her. He committed sexual intercourse with her about 5 to 6 times. She further stated that he gave a written paper and forced her to read the same. She read the aforesaid paper and her voice was got recorded by Satyendra Singh in a tape recorder. He took wine and also forced her to take wine. She further stated that at about 6.30 p.m. Satyendra Singh took her in the same car and dropped her at Dehri Bazar at about 7.00 p.m. and at the time of dropping her from the car, Satyendra Singh gave threatening not to disclose anything, otherwise, she would be killed. She did not disclose the aforesaid fact to any person, out of fear, but after drawing courage, she disclosed the aforesaid incident to her husband on the date of making her fardbeyan. Satyendra Singh, also,

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stated that the photographs would be viewed by him upon a colour T.V. Satyendra Singh had disclosed his name as Mahendra Verma at the time of making entry in the hotel register.

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On the basis of aforesaid fardbeyan of P.W. 4, Dehri (Town) P.S. Case No. 243 of 1998 for the offences under Sections-376, 386, 419, 420 of the Indian Penal Code was registered and on the same day, formal FIR was drawn up for the above-said offences against the appellant. The formal FIR and fardbeyan of P.W. 4 were put up before learned Chief Judicial Magistrate, Sasaram on 28-07-1998.

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P.W. 7 Bifai Tirki, the then A.S.I. of Dehri Police Station, took the charge of investigation from officer-in-charge of Dehri Police Station. He recorded the further statement of P.W. 4, inspected the place of occurrence. He recorded the statement of witnesses and in course of investigation, on 27-07-1998, raided the house of the appellant and recovered Maruti Car bearing registration No. BR 32(M) 9726, colour Onida T.V., one tape recorder as well as one cassette, kept in a black colored bag. The then, Officer-in-charge of Dehri Police Station namely, Ram Ashish Kamathi prepared seizure list of the aforesaid recovery in presence of witnesses; Baban Singh and Ramchandra Singh. The aforesaid seizure list has been exhibited as Ext. 5 whereas; black cololured bag was exhibited as material Ext (i) and tape recorder as material Ext. (ii) and cassette as material Ext. (iii). He arrested the appellant on 27-07-1998 and also sent P.W. 4 for medical examination. He also got recorded the statement of P.W. 4 u/S 164 of the Cr.P.C. in course of investigation. He visited Shilpa Hotel on 30-07-1998 and checked the register of hotel and found that on 14-06-1998, one

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Mahendra Verma alongwith a lady had stayed in room No. 102 of the aforesaid hotel. The entry No. 3539 of hotel register was marked as “X” for identification in course of trial. He obtained medical report of P.W. 4 as well as supervision notes of his Higher Officials and submitted charge sheet for the offences under Sections-376, 386, 419 & 420 of the Indian Penal Code.

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On being receipt of the charge sheet, cognizance of the offence was taken and the proceeding was committed to the court of sessions, in usual way.

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The sole appellant stood for trial and he was charged for the offences under Sections-366, 376, 386 & 463 of the Indian Penal Code, to which, he denied the charges and claimed to be tried.

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In course of trial, altogether 10 witnesses were examined on behalf of the prosecution. Besides it, documentary evidence as well as material evidences were also adduced by the prosecution.

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The statement of appellant was recorded u/S 313 of the Cr.P.C. in which, he denied the allegation. Although no evidence was adduced by the appellant in support of his defence but from perusal of his statement recorded u/S 313 of the Cr.P.C. as well as trends of crossexamination of the prosecution witnesses, it appears that the defence of appellant was total denial of the prosecution story as well as his false implication on account of dispute of a shop, in which, the beauty parlour was being run.

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The learned trial court, having analyzed the materials available on the record and having relied upon evidences of P.Ws. 1, 2, 3, 4, 5, 6, 7, 8 & 9, convicted and sentenced the appellant in the manner as

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stated above.

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Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that the findings of the learned court below are erroneous and the learned court below passed the impugned judgment of conviction only on the basis of surmises and conjectures. Continuing his submission, he submitted that the learned trial court failed to appreciate this fact that the alleged occurrence took place on 14-06-1998 whereas; fardbeyan of P.W. 4 was recorded on 26-07-1998 and no plausible explanation for the aforesaid delay was given by the prosecution. He further submitted that P.W. 4 and other witnesses developed their statement in course of trial, just with intent to explain the aforesaid delay. He further submitted that no doubt, the hotel register was produced before the trial court but the relevant entry of the aforesaid register was not brought in evidence in accordance with law and the aforesaid entry was only marked as “X” for identification but in spite of that, the learned trial court, relied upon the aforesaid entry. He, further, submitted that moreover, the writing and signature of the appellant was not compared with the above said entry of the register and except the statement of P.W. 4, there was nothing before the trial court to show that the appellant had put signature on the aforesaid register changing his name. He further submitted that the alleged photographs were neither seized nor produced before the court and furthermore, even there is no whisper in the fardbeyan of the P.W. 4 that the appellant gave threatening to blackmail showing her nude photographs. He further submitted that so far as seizure of tape recorder and cassette is concerned, as a matter of fact, the aforesaid tape recorder and cassette were not seized from the

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house of the appellant and, moreover, the voice in the aforesaid cassette was not examined by an expert and, therefore, it cannot be said that the voice in the aforesaid cassette was of the appellant and P.W. 4. He submitted that as a matter of fact, except the testimony of P.W. 4, there is no legal and cogent evidence to connect the appellant in the alleged crime. He submitted that no doubt, sole testimony of the victim of rape, can be made basis for conviction but the aforesaid testimony of P.W. 4, does not inspire confidence, particularly, in the circumstance, when there was dispute between the parties, regarding a shop, in which, the beauty parlour was being run at the relevant time and so far as giving the registration No. and description of vehicle is concerned, admittedly, the appellant and husband of P.W. 4 were well-known to each other, much prior to the alleged occurrence and, therefore, it is not surprising that the registration No. of vehicle of the appellant was known to the P.W. 4 as well as her husband. In the backdrop of the aforesaid submissions, learned counsel for the appellant submitted that the conviction of the appellant cannot sustain in the eye of law.

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On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction arguing that the sole testimony of P.W. 4 was sufficient for convicting the appellant and, therefore, learned trial court, rightly, convicted and sentenced the appellant. He further submitted that so far as delay in lodging the first information report is concerned, the appellant had given threatening of dire consequences to P.W. 4 and when on the alleged date of occurrence, P.W. 3, the husband of P.W. 4 learnt about the alleged occurrence, he alongwith P.W. 4 was going to lodge the FIR but uncle of the appellant as

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well as one, Ajay Sharma prevented them from lodging the FIR on the pretext that the recorded voice as well as the nude photographs of P.W. 4 would be returned and on account of the aforesaid assurance, P.W. 3 & P.W. 4 did not lodge the case just after the alleged occurrence but again, the appellant came at the house of P.W. 4 and asked favour for sexual intercourse showing her nude photographs and then, P.W. 3 & P.W. 4 went to the Superintendent of Police, Rohtas and narrated the entire story to him and after that, the present case was lodged and, therefore, there was sufficient explanation for the above-said delay.

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As I have already stated that altogether 10 prosecution witnesses were examined on behalf of the prosecution and out of whom, P.W. 1 Arjun Choudhary was owner of the shop in which, beauty parlour was being run. P.W. 2 Yashwant Kumar is a neighbour to the shop in which, beauty parlour was being run. P.W. 5 Praveen Kumar @ Munna is a hostile witness, P.W. 6 is Dr. Sunila Singh who examined the P.W. 4 (victim) after institution of the case and P.W. 7 is I.O. of the case. P.W. 8 Babban Singh and P.W. 9 Ramchandra Singh are also hostile witnesses whereas; P.W. 10, is Ram Yagya Singh whose attention was drawn towards his previous statement recorded by police in his examination-inchief. Apart from the aforesaid witness, P.W. 3 Ramjee Sao is husband of the victim and P.W. 4, Priyanka Devi is the victim herself.

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P.W. 1 stated that he had given his shop to the appellant and in the aforesaid shop, a beauty parlour was being run in which, the P.W. 4 was working as an employee. This witness further stated that at the time of letting out the aforesaid shop, the appellant had given Rs 20,000/- to him. This witness also stated that there was sweet relation

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between the appellant and P.W. 4 and the appellant used to call P.W. 4 as “Bhabhi”. This witness stated nothing in respect of the alleged occurrence and stated only to this extent that he had heard that there was an altercation between P.W. 4 and the appellant. This witness also stated in his cross-examination that there was strained relation between P.W. 4 and the appellant on account of the above said shop. P.W. 2, Yashwant Kumar stated that he was not aware about this fact as to whether the appellant and P.W. 4 were partners in the business of beauty parlour or not. This witness also stated nothing in respect of the alleged occurrence.

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P.W. 5 Praveen Kumar @ Munna has been declared hostile and stated nothing about the alleged occurrence. Although the attention of this witness was drawn towards his previous statement to which, he denied but I do not find any material in the deposition of this witness.

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P.W. 6, Dr. Sunila Singh stated that on 30-07-1998 at about 8.55 p.m. she examined P.W. 4. She proved medical report of P.W. 4 as Ext. 3. She further stated that she did not find any apparent sign of rape on the person of P.W. 4 and she also stated that P.W. 4 was aged about between 20-24 years.

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P.W. 3 Babban Singh appears to be a witness on seizure list but this witness stated that nothing had been recovered in his presence though he proved his signature as Ext. 4 on the seizure list. This witness denied to have made any statement before the police when his attention was drawn towards his previous statement, recorded by police in course of investigation. Similarly, P.W. 9 Ramchandra Singh appears to be a witness on seizure list but stated that nothing had been recovered

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from the house of appellant in his presence. This witness also proved his signature on seizure list as Ext. 4/1. This witness denied the factum of recovery on being cross-examined by the prosecution.

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P.W. 10 Ram Yagya Singh was examined by the prosecution but it appears from perusal of the statement of this witness that without declaring him hostile, the prosecution drew the attention of this witness towards his previous statement recorded u/S 161 of the Cr.P.C. by the police in course of investigation.

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Now let us examine the depositions of P.W. 3, P.W. 4 &

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P.W. 5.

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P.W. 3 is the husband of P.W. 4. This witness stated that on the alleged date of occurrence, he returned his home at 6.00 p.m. but did not find his wife at home. He further stated that his wife came at 7.45 p.m. and narrated the entire story, saying that the appellant came in her beauty parlour at 9.00 a.m. and on the pretext of illness of her daughter, asked her to sit in a maruti car, bearing Registration No. UP-32(M) 9726. All the glasses of the aforesaid maruti car, were black coloured. He further stated that P.W. 4 disclosed that the appellant took her near coal depot and forcibly administered intoxicated water and also threatened her not to raise alarm, otherwise, she would be killed. He also came to know from P.W. 4 that the appellant brought P.W. 4 near Shilpa Hotel and after that, P.W. 4 was brought forcibly in room No. 102 of Shilpa Hotel, where the appellant took wine and also pressurize P.W. 4 to take wine and after that, he committed rape on P.W. 4 for 4-5 times. P.W. 4 also disclosed that the appellant took 8-10 photographs of P.W. 4 and also recorded her voice in a tape recorder. P.W. 4 also narrated him that at about 6.30 p.m. the

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appellant alongwith P.W. 4 left the hotel but before leaving the hotel, he gave threatening of dire consequences to P.W. 4 and after that, P.W. 4 sat in maruti car of the appellant who later on, dropped her in the way. P.W. 4 also narrated him that the appellant entered his name as Mahendra Verma in the register of the hotel and while dropping the P.W. 4, he again threatened her. P.W. 3 further stated that having got the aforesaid information from P.W. 4, he alongwith his wife (P.W. 4) proceeded towards Dehri Police Station at about 9.00 p.m. and when reached near Tal Bangla, Babban Singh, the uncle of the appellant and one, Ajay Sharma stopped him and thereafter, he narrated the entire incident to them, upon which, the aforesaid persons asked him to keep mum and assured him that the entire photographs of P.W. 4 would be returned. The aforesaid persons also advised him to return his home, otherwise, he would be terminated from Sahara India and his shop would also be closed. This witness further stated that he waited for return of photographs of P.W. 4 for 15-20 days and also made contact with Ajay Sharma for return of photographs but later on, aforesaid Ajay Sharma refused to return the photographs. This witness further stated that on 25-07-1998, when he had gone outside in connection with his official work, the appellant came in his house and showed nude photographs to P.W. 4 and asked her to accompany him. He further stated that when on the same day, at about 5.00 p.m. he returned to his home, his wife (P.W. 4) narrated the above-said incident to him and after that, he alongwith his wife (P.W. 4) went to the residence of Superintendent of Police, Rohtas and narrated the entire incident to him. He further stated that Superintendent of Police, Rohtas advised him as well as his wife to go to their house and a police

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official would visit their house and at about 9.00 p.m. on the same day, police came at his house and recorded the statement of his wife and his statement was also recorded. This witness proved his signature as well as signature of P.W. 4 as Ext. 1 and Ext. 1/1 respectively. This witness further stated that the police had also taken his signature as well as signature of P.W. 4 on two plain papers. This witness admitted at paragraph-1 of his cross-examination that the appellant was his partner in the business of beauty parlour but the papers relating to partnership and shop, were prepared only in the name of appellant. He denied the suggestion of the defence that the appellant wanted to evict him from the shop. He further admitted that he used to teach the son of a constable before the alleged occurrence. At paragraph-3 of his cross-examination, this witness stated that when P.W. 4 disclosed about the alleged occurrence to him, she did not make any complaint of pain before him. This witness also did not find any stain on the clothes of P.W. 4. This witness also admitted at paragraph-5 of his cross-examination that he had gone to Sasaram jail to meet with the appellant but denied the suggestion of the defence that he had demanded Rs 1,00,000/- (one lac) from the appellant. This witness also denied the suggestion of the defence that he wanted to blackmail the appellant on account of dispute of the shop. This witness stated that he had made statement before the police to this effect that when he alongwith P.W. 4 were going to lodge the FIR, Ajay Sharma and Babban Singh had met and stopped him from lodging the case. This witness also stated that he had made statement before the police that on 25-07-1998, the appellant had gone to his house and had shown nude photographs to his wife.

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P.W. 4 Priyanka Devi is prosecutrix as well as victim of this case. She stated that on 14-06-1998 at about 9.15 a.m. she was working in her beauty parlour and at that time, she alongwith her family members were residing in the house, given by father of the appellant. She further stated that at the relevant time, she was cutting the hair of Minakchhi Devi, daughter of Mukhraj Singh and in the meantime, the appellant came there and on the pretext of illness of her daughter, brought her in a maruti car bearing Registration No. UP-32(M)-9726. She further stated that she sat on rear seat of aforesaid maruti car whereas; the appellant started driving the aforesaid maruti car and when the aforesaid maruti car reached near coal depot at G.T. road, she asked the appellant to drop her there but the appellant stopped the vehicle near a lonely place and threatened her, whereupon, she became perplexed and after that, the appellant administered intoxicated water to her. She tried to raise alarm but the appellant put handkerchief on her mouth and threatened that, if, she raises alarm, she would be killed by pressing the neck. She further stated that she started feeling drowsiness and when she regained her consciousness, she found herself in front of Shilpa Hotel, where the appellant again threatened her and after covering her head with her Sari, took her in room No. 102 of aforesaid hotel. She requested the appellant to leave her but the appellant did not listen her request. In the meantime, the waiter of the aforesaid hotel, brought food and after that, the appellant took out wine from black coloured bag and also took out a tape recorder and automatic camera from the aforesaid bag. The appellant, forcibly, administered wine to her and he also took wine. She further stated that he took the meals and pressurized her to take meals. She further stated that

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the appellant started removing her Sari, whereupon, she made protest but the appellant started assaulting her with slaps and also threatened to kill her. She further stated that the appellant, forcibly, removed her clothes and made her completely nude. The appellant removed his clothes also and committed rape upon her and at the time of committing rape, he took photographs by automatic camera. The appellant committed rape on her thrice and after committing rape, he again, took her photographs and the appellant also provided her clothes and again, took photographs in the aforesaid clothes. He also recorded her voice in tape recorder. She further stated that after the aforesaid occurrence, the appellant took her by maruti car towards Dehri and dropped her near Thana More and before dropping her, the appellant disclosed that he had written his name in the register of hotel as Mahendra Verma and the appellant, again, threatened her of dire consequences, if she disclosed the aforesaid incident to her family members. She further stated that she, anyhow, reached at her home at about 7.45 p.m. and narrated the entire incident to her husband (P.W. 3). She also stated that she as well as her husband disclosed the aforesaid incident before Ramlal who happens to be her brother and after that, she alongwith her husband, proceeded towards Dehri Police Station, at about 9.00 p.m. with intent to lodge the FIR but while they were on the way, Manager, Ajay Sharma and Babban Singh met and stopped them and asked them not to lodge the case and also gave threatening to them. She further stated that the aforesaid persons also assured that they would return her photographs but the aforesaid photographs were not returned to her though she waited for return of photographs for near about one and a half months and lastly, the appellant and aforesaid persons refused to

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return the aforesaid nude photographs and on 25-07-1998, the appellant came at her home and by showing her nude photographs, asked her to accompany him to hotel and when her husband, returned to home at about 4/5 p.m. she disclosed the aforesaid fact to him and after that, she alongwith her husband went to the Superintendent of Police, Rohtas and narrated the entire story to him. The Superintendent of Police, Rohtas sent a police official at her residence on the same day, at about 9.00 p.m. and after that, her statement was recorded. She identified her signature on fardbeyan. She also stated that police took her signature as well as signature of her husband on two plain papers. She further stated that she alongwith her husband and police officials came at Shilpa Hotel where; police inspected room No. 102 of Shilpa Hotel. She further stated that she was, medically, examined at Bikram Hospital and her statement u/S 164 of the Cr. P.C. was recorded by the court. This witness proved her statement recorded u/S 164 of the Cr. P.C. as Ext. 2. This witness has been crossexamined by the defence at length.

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On perusal of the aforesaid evidences, it is apparent that only P.W. 3 and P.W. 4 have supported the prosecution story and so far as P.W. 3 is concerned, admittedly, he is not eye witness of the alleged occurrence, rather he learnt about the alleged occurrence from P.W. 4.

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P.W. 7 Bifai Tirki is the I.O. of this case. This witness stated that he recorded the further statement of the informant, inspected the place of occurrence and also recorded the statements of prosecution witnesses, raided the house of the appellant and seized maruti car bearing Registration No. UP-32(M)-9726, coloured Onida T.V., one tape recorder and cassette, kept in a black coloured bag and prepared the seizure list.

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This witness stated that he inspected room No. 102 of Shilpa Hotel and also checked the register of the aforesaid hotel and found that on 14-061998, one name having nomenclature as Mahendra Verma with one female had stayed in room No. 102. On being cross-examined by the defence, this witness admitted that Dehri Thana More is a busy place. This witness admitted that he did not seize the clothes of P.W. 4 for examination nor pasted paper on the seized black coloured bag. He further admitted that he did not obtain signature of witnesses on the seized black coloured bag nor mentioned mark on the bag in seizure list. He also admitted that he did not paste any seizure list on the tape recorder and did not get verified the voice of seized cassette. This witness admitted at paragraph-4 of his cross-examination that P.W. 3 had not made statement before him to this effect that while he alongwith his wife were going to police station, Ajay Sharna and Babban Singh stopped them from going to police station. Similarly, this witness further admitted that P.W. 3 had not made statement before him to this effect that on 25-071998, the appellant Satyendra Singh had shown nude photographs and asked from her wife to go to hotel. This witness also admitted that he did not record the statement of Minakchhi Devi. This witness further admitted that P.W. 4 had not made statement before him to this effect that the appellant had asked her to go to hotel by showing her nude photographs.

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As I have already stated that except P.W. 4, none of the prosecution witnesses has claimed to have seen the alleged occurrence and not a single prosecution witness has come forward to claim that they had seen the appellant in the company of P.W. 4 on the date of occurrence, prior to or after the alleged occurrence. No doubt, it is not

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possible to witness the occurrence of rape because according to prosecution case, the occurrence of rape had taken place in room No. 102 of Shilpa Hotel but not a single employee of Shilpa Hotel came forward to support this fact that on the alleged date of occurrence, P.W. 4 and the appellant had stayed in the room No. 102 of Shilpa Hotel. The P.W. 4 admitted in her deposition that while she had been confined in room No. 102 by the appellant, one waiter of the aforesaid hotel had come to the aforesaid room but the said waiter of the aforesaid hotel has also not been examined by the prosecution, at least, to prove this fact that the appellant and P.W. 4 had stayed in room No. 102 of Shilpa Hotel on the alleged date of occurrence. No doubt, the register of the aforesaid hotel was brought before the trial court in course of trial and entry No. 3539 dated 14-06-1998 was marked “X” for identification at the instance of P.W. 6 but admittedly, the aforesaid entry has not been proved legally and neither scribe of the aforesaid entry nor any person who was acquainted with the writing of scribe of the aforesaid entry, came forward to prove the aforesaid entry. P.W. 4 has admitted in her deposition that it was the appellant who disclosed her about the aforesaid entry and she did not see the appellant making the above-said entry in the register of hotel. The prosecution did not take any pain to get tallied the writing of aforesaid entry with the writing and signature of the appellant and, therefore, in the aforesaid circumstance, it is difficult to say that the aforesaid entry was made by the appellant and in my view, on the basis of aforesaid entry, it cannot be said that on 14-06-1998, the appellant had stayed in room No. 102 of Shilpa Hotel alongwith P.W. 4.

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Admittedly, the so-called nude photographs as well as

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automatic camera were neither seized nor produced before the trial court in course of trial and only tape recorder, cassette and maruti car were seized but from the aforesaid material exhibits, it is not established that on the alleged date of occurrence, P.W. 4 was taken away by the appellant in said Maruti car and, after that, she was raped by the appellant. No doubt, the seized cassette contains the voice of male and female but admittedly, the aforesaid voice was not examined by any expert to prove this fact that the aforesaid voice belonged to the appellant and P.W. 4.

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It is not in dispute that sole testimony of a victim of rape is sufficient to make basis for conviction if the aforesaid testimony inspires confidence and, therefore, now it has to be seen whether the testimony of P.W. 4 inspires confidence or not.

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According to prosecution case, the alleged occurrence took place on 14-06-1998 and P.W. 4 was taken away by the appellant from beauty parlour at about 9.15 p.m and after that, she was brought to the room No. 102 of Shilpa Hotel, where she stayed till 6.30 p.m. but admittedly, the fardbeyan of P.W. 4 was recorded on 26-07-1998 at about 5.00 p.m. at her home. The explanation of aforesaid delay has been given by P.W. 3 and P.W. 4 that while they were going to lodge the case, on the date of occurrence, one, Babban Singh and Ajay Sharma stopped them from lodging the case giving assurance to return nude photographs of P.W. 4 and also giving threatening of dire consequences. Furthermore, the explanation has been given that on 25-07-1998 when the appellant came to the house of P.W. 4 and asked her to go to hotel showing her nude photographs, the P.W. 3 and P.W. 4 met the Superintendent of Police, Rohtas, on whose direction, the fardbeyan was recorded by the

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police. P.W. 4 has not stated the aforesaid fact in her fardbeyan rather she stated that after the alleged occurrence, she kept herself mum out of fear and after sometime, she mustered courage and disclosed about the aforesaid occurrence to P.W. 3 on the date of recording of her fardbeyan. P.W. 4 has also not stated this fact in her fardbeyan that on 25-07-1998, the appellant came to her house and showing her nude photographs, asked her to go to hotel but in course of trial, P.W. 3 & P.W. 4 both stated the above said facts. P.W. 7 has categorically admitted in his crossexamination that P.W. 3 had not made the above-said statement before him in course of investigation and, therefore, it appears that the aforesaid fact was developed by the P.W. 3 and P.W. 4 in course of trial with intent to patch up the factum of delay in lodging the first information report. Apart from this, P.W. 4 has stated in her fardbeyan that she disclosed about the alleged occurrence to P.W. 3 on 26-07-1998 on the date when her fardbeyan was recorded by the police but when she deposed before the court, she stated that she disclosed about the alleged occurrence to P.W. 3 on the date of alleged occurrence, i.e. on 14-06-1998 and almost similar statement has been made by P.W. 3. The above contradiction also creates doubt about this fact as to when P.W. 4 disclosed about the alleged occurrence to P.W. 3. Moreover, there is long delay in lodging the first information report and to explain the aforesaid delay, the prosecution added new story in course of trial and, therefore, in my view, the prosecution could not succeed to explain the aforesaid delay in lodging the first information report.

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P.W. 6 Dr. Sunila Singh examined P.W. 4 on 30-07-1998 and found her aged about between 22-24 years. Furthermore, P.W. 3

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admitted in his deposition that at the time of alleged occurrence, P.W. 4 was mother of three children. Furthermore, P.W. 4 admitted in her deposition that at the time of alleged occurrence, she was running a beauty parlour and, therefore, the aforesaid facts clearly suggest that at the time of alleged occurrence, P.W. 4 was a matured working lady.

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It is an admitted case of the prosecution that P.W. 3 and the appellant were friends since their childhood and according to P.W. 3, he as well as the appellant started a business of beauty parlour in partnership and, therefore, it is an admitted position that the appellant was well-known to P.W. 3 and P.W. 4 from before the alleged occurrence. It has also come in deposition of P.W. 3 that after the occurrence, the aforesaid beauty parlour was closed and he as well as the appellant put their respective locks on the door of the aforesaid beauty parlour. It is specific case of the appellant that due to dispute of running of beauty parlour, and when he ousted the P.W. 4 from the aforesaid beauty parlour, she (P.W.4) in connivance with her husband (P.W. 3) lodged this false case. Furthermore, it has been admitted by P.W. 4 in her deposition that at the time of alleged occurrence, she was residing in a house which had been provided to her as well as her family members by the father of the appellant.

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P.W. 4 stated that the appellant came at beauty parlour and took her in maruti car and when the aforesaid maruti car reached near coal depot, the appellant, forcibly, administered her intoxicated water and also gave threatening of dire consequences. She also deposed that having consumed intoxicated water, she started feeling drowsiness and she did not make any attempt to raise alarm because the glasses of the

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aforesaid vehicle were closed. Moreover, when she was brought in front of Shilpa Hotel and while she was being taken into hotel, she did not make any protest nor raise any alarm. Similarly, while she was being taken out from the hotel, she again, did not raise any alarm and when, she was dropped, she went to her home straightway without making any attempt to lodge the case in police station, which was situated at a stone throw distance from the place where she was dropped by the appellant. No doubt, it can be stated that out of fear of the appellant, she could not dare to lodge the case with police station when she was dropped by the appellant but it is surprising enough that she did not disclose anything to P.W. 3 on the date of occurrence about such a gory incident. Furthermore, P.W. 4 deposed before this court that in course of intercourse, sperm had fallen on her cloth and, she had shown the aforesaid clothes to P.W. 7 but P.W. 7 did not seize the aforesaid clothes nor the aforesaid clothes were produced before the trial court even at the time of recording the deposition of P.W. 4. Therefore, the story as propounded by P.W. 4, appears to be absurd and improbable and in my view, the testimony of P.W. 4, does not inspire confidence.

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The defence of the appellant was false implication due to dispute of shop in which, beauty parlour was being run and the aforesaid dispute has been admitted not only by P.W. 4 but also by her husband (P.W. 3) and, therefore, the defence succeeded to make dent in the prosecution case and, in my view, the prosecution could not succeed to prove its case beyond shadow of all reasonable doubts.

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On the basis of aforesaid discussions, I am of the opinion that this criminal appeal is liable to be allowed and, accordingly, this Cr.

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Appeal is allowed and impugned judgment of conviction dated 05-09-2001 and order of sentence dated 07-09-2001 is, hereby, set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds.

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Patna High Court
Dated/ the 9 th day
of April, 2013.
A.K.V./-

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(Hemant Kumar Srivastava, J)

Satyendra Singh v. State of Bihar

Case brief

What is this about?

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Satyendra Singh v. State of Bihar

Case brief

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