Patna High Court
Radhey Shyam Tiwary vs The State Of Bihar on 8 September, 2017
Author: Vinod Kumar Sinha
Bench: Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.172 of 2014
Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR)
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Girija Shankar Dubey @ Girija Dubey, son of Late Ram Singasan Dubey, resident
of village- Dadara, P.O.- Pahariya, P.S.- Bhagwanpur, District- Kaimur at Bhabua
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
With
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Criminal Appeal (SJ) No. 173 of 2014
Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR)
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Radhey Shyam Tiwary, son of Shri Daya Shankar Tiwary, resident of village-
Kathaura, P.S.- Sonhan, District- Bhabua (Kaimur)
.... .... Appellant
Versus
The State of Bihar
.... .... Respondent
With
===========================================================
Criminal Appeal (SJ) No. 210 of 2014
Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR)
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Jalim Bind, son of Tulsi Bind, resident of Village Bahuara, P.S. Sonhan, District
Kaimur (Bhabua).
.... .... Appellant
Versus
The State of Bihar through Dudhnath Tiwary (informant) S/o Late Chandrika
Tiwary R/o Village Kathaura, P.S. Sonhan, District Kaimur (Bhabua).
.... .... Respondent
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Appearance :
(In CR. APP (SJ) No.172 of 2014)
For the Appellant/s : Mr. Ranjeet Kumar Mishra, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
(In CR. APP (SJ) No.173 of 2014)
For the Appellant/s : Mr. Ajay Kumar Thakur with Nilesh
Kumar, Advocates
For the Respondent/s : Mr. Bipin Kumar, APP
For the informant : Mr. Rajni Kant Pandey, Advocate
(In CR. APP (SJ) No.210 of 2014)
For the Appellant/s : Mr. Radha Mohan Pandey, Advocate
For the Respondent/s : Mr. D.K.Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date: 08 -09-2017
Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017
2/18
All the above appeals are directed against the judgment dated
15.2.2014and order dated 17.2.2014 passed by Shri Hari Dayal Patel, 1st Additional Sessions Judge, Bhabua, Kaimur in Sessions Trial No. 83 of 2013/63 of 2013 by which the appellants in all the above appeals had been convicted under Section 376-G of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.10,000/- each and in default in payment of fine, further simple imprisonment for six months. As all the appeals are directed against the same judgment and order, they are taken up together and being disposed of by a common judgment.
2. Prosecution case, in brief, based on the fardbeyan of the informant, Dudh Nath Tiwary (P.W.4) is that on 1.10.2012 at around 10 P.M. after having dinner he along with his wife, Sushila Devi (P.W.3) and daughter, Rekha Kumari (P.W.5), who is deaf and dumb, but has cleared her Matriculation Examination, and can communicate by reading and writing, went off to sleep. His wife and daughter were sleeping in the adjoining room on separate cots when at around 11.30 P.M., his wife woke up and found her daughter missing from the cot. After searching for her, when she could not find her, she informed the informant about the same. Thereafter, the informant (P.W.4) along with brother Lalmuni Tiwary (P.W.2) and other villagers searched for her in and around the village but could not find her. He kept on searching on Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 3/18 2.10.2012 as well but there was no information about her. At around 3 P.M., some village boys informed that the victim was lying under the staircase of the newly constructed school building. The informant with other villagers went there and brought back his daughter. The victim told through the sign and gesture that 4-5 people took her away by covering her mouth. The informant further stated that he has a firm belief that the accused Radhey Shyam Tiwary along with some other has taken away his daughter.
3. On the basis of fardbeyan of the informant, FIR was registered and Bhabua (Sonhan) P.S.Case No. 333 of 2012 was instituted under Section 376/34 of the Indian Penal Code against accused Radhey Shayam Tiwary and other unknown persons and investigation commenced. On completion of investigation, the Investigating Officer submitted charge sheet against Radhey Shyam Tiwary, Jalim Bind and Girija Shankar Dubey (all appellants) under Section 376/34 of the Indian Penal Code.
4. The Chief Judicial Magistrate took cognizance of the offence and on 14.2.2013, the case was committed to the court of sessions. Accordingly, charge was framed under Section 376-G/34 of the Indian Penal Code to which the accused persons pleaded not guilty.
5. Defence of the appellants as per the statement made under Section 313 Cr.P.C. and from documents produced by the appellants, is Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 4/18 that they are not guilty and that no such incident happened and they are being falsely implicated in the present case as there were cases going on between appellant Radhey Shyam Tiwary and his uncle and in collusion with his uncle he has falsely been implicated.
6. During trial altogether seven witnesses have been examined on behalf of prosecution, they are P.W.1 Dr.Sangha Mitra Singh, P.W.2 Lalu Tiwary, P.W.3 Sushila Devi, P.W.4 Dudh Nath Tiwary (Informant), P.W.5 Rekha Kumari, P.W.6 Ajit Kumar Singh and P.W.7 Abhay Kumar.
7. Apart from the above, following documents have been admitted as exhibits in this case, they are Ext.1- report of doctor Sangh Mitra Singh (P.W.1), Ext.1/A- Signature of Doctor Sangh Mitra Singh on report of medical examination for determination of age, Ext.2- Signature of Dudh Nath Tiwary on Fardbeyan, Ext.3- Application to Chief Judicial Magistrate by Investigating Officer for recording of statement of victim, Ext.4- Statement of victim (P.W.5) under Section 164 Cr.P.C., Ext.5- Fardbeyan and endorsement in writing by Abhay Kumar on Fardbeyan.
8. On behalf of defence, following documents have been admitted as exhibits, Ext.A- Certified copy of judgment dated 25.10.2011 in the matter of State v. Radhey Shyam, Ext.B- Certified copy of FIR in Bhabua P.S.Case No. 101 of 2007, Ext.C- FIR of Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 5/18 Bhagwanpur P.S.Case No. 83 of 2002, Ext.D- Title Suit No. 208 of 2002, Ext.E- Complaint Case No. 541 of 2002, Ext.F- Trial No. 146 of 2013, Ext.G- order in Revision Case No. 126 of 2011 to show that there was enmity between appellant Radhey Shyam Tiwary with his uncle because of which he has falsely been implicated in this case at the instance of his uncle.
9. After conclusion of trial, the learned Trial Judge has convicted the appellants under Section 376-G of the Indian Penal Code and sentenced them, as stated above.
10. Being aggrieved by the aforesaid judgment and order, the appeals have been filed by the appellants on various grounds.
11. Learned counsels for the appellants have assailed the judgment on several grounds but most important ground for assailing the judgment is that the victim girl(P.W.5) is the sole eye-witness to the commission of gang rape but she is deaf and dumb and her statement was recorded by producing paper to adduce her evidence in chief in writing and thereafter she was cross-examined by putting questions in writing but from perusal of her answers, it clearly show that she has no understanding of the questions put to her and she has only given a tutor answer naming the appellant and she could not answer correctly, even a single question put forward by defence. In such a situation, conviction of appellants, relying on evidence of P.W.5, is not just and proper. It Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 6/18 has also been submitted that though her statement under Section 164 Cr.P.C. was recorded and learned court has also relied upon the same but from perusal of her statement, which is Ext.4, it appears that she could not answer the questions put to her by learned Magistrate by supplying her paper and she has given her statement in writing, as such, the statement recorded under Section 164 Cr.P.C. is also not free from reasonable doubt. Further submission is that even if it is accepted at its face value, it is not substantive piece of evidence and that can only be used for corroboration. Further submission is that if her statement under Section 164 Cr.P.C. is compared with whatever she has stated in her evidence in chief, it will appear that she has given a tutor version as the wording is almost same in her chief, which she has given under Section 164 Cr.P.C.
12. On the other hand, learned counsel for the State has opposed the above submission on the ground that she has named these appellants as the persons who have committed gang rape and her statement has been corroborated by her statement recorded under Section 164 Cr.P.C. and that is the case of the prosecution as per FIR also.
13. Learned counsel for the appellants has further submitted that so far the version in FIR is concerned, the same is given by the father of the victim girl and the evidence of father of victim girl Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 7/18 (P.W.3) clearly shows that when she was recovered she has given everything in writing and she is a Matriculate and on the basis of the information he has lodged this case but at first the written statement of the victim girl has not been brought on record by the prosecution and that also creates a doubt about the prosecution story. Further submission is that FIR also shows that he (informant) has a firmed belief that appellant Radhey Shyam Tiwary has committed the offence and all these facts make evidence of P.W.5 an impeachable piece of evidence and the same is not trustworthy and reliable, hence no reliance can be placed on her evidence.
14. Before going into the evidence of informant (P.W.4) and other witnesses, on examination of evidence of P.W.5, the victim girl, it appears that she is a deaf and dumb girl. Her statement before the Magistrate has been recorded under Section 164 Cr.P.C. (Ext.5) and the Magistrate has found her deaf and dumb and her statement has been recorded in writing. So far recording of evidence of a deaf and dumb witness is concerned, the same has been dealt with in the Indian Evidence Act, 1872. Section 119 of the Act provides as follows:
"Witness unable to communicate verbally- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 8/18 evidence :
Provided that if the witness is unable to
communicate verbally, the Court shall take
assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed."
The aforesaid provision has been examined by the Apex Court in a case of State of Rajasthan vs. Darshan Singh : AIR 2012 SC 1973 where the Hon'ble Apex Court has discussed the admissibility of evidence of such a witness in paragraphs 18, 19 & 21 of the judgment, which are as follows :
"18. The object of enacting the provisions of Section 119 of the Evidence Act reveals that deaf and dumb persons were earlier contemplated in law as idiots. However, such a view has subsequently been changed for the reason that modern science revealed that persons affected with such calamities are generally found more intelligent, and to be susceptible to far higher culture than one was once supposed. When a deaf and dumb person is examined in the court, the court has to exercise due caution and take care to ascertain before he is examined that he possesses the requisite amount of intelligence and that he understands the nature of an oath. On being satisfied on this, the witness may be administered oath by appropriate means and that also be with the assistance of an interpreter. However, in case a person can read and write, it is most desirable to adopt that method being more satisfactory than any sign language. The law required that there must be a record of signs and not the interpretation of signs.
19. In Meesala Ramakrishna v. State of A.P., (1994) 4 SCC 182 : (1994 AIR SCW 1978), this Court has considered the evidentiary value of a dying declaration recorded by means of signs and nods of a person who is not in a position to speak for any reason and held that Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 9/18 the same amounts to a verbal statement and, thus, is relevant and admissible. The Court further clarified that „verbal‟ statement does not amount to „oral‟ statement. In view of the provisions of Section 119 of the Evidence Act, the only requirement is that witness may give his evidence in any manner in which he can make it intelligible, as by writing or by signs and such evidence can be deemed to be oral evidence within the meaning of Section 3 of the Evidence Act. Signs and gestures made by nods or head are admissible and such nods and gestures are not only admissible but possess evidentiary value.
21. To sum up, a dead and dumb person is a competent witness. If in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able to read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language with the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath."
15. In this case prosecution evidence shows that prosecutrix is a Matriculate, as such, it appears that the Court has adopted the method of examining her in writing and it appears that her evidence in chief has been produced in court in writing. It does not appear from perusal of her evidence as to whether she had been administered oath or evidence in chief has been filed in court on affidavit. It appears from the evidence and order-sheet that a copy of the evidence in chief has been provided to the defence and defence has also cross examined her by putting questions to the victim girl (P.W.5) in writing. On perusal of Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 10/18 her answers to the questions in writing, it appears that she was unable to answer simple questions put to her, for example :
Q. Ghatna ke bad Aapko pahel pahal hosh kaha aaya ?
A. Radhey Shyam Tiwary, Girja Dubey, Jalim Bind.
Q. Aapko pahel pahal hosh ghar me aaya tha school me ?
A. Aapko Pahel pahal thora ghar me aaya tha school hai.
Considering the same, it appears that she was unable to understand the questions, even the court has provided further chance to her and placed the matter for cross examination on next date, so as defence may examine her but even in spite of that it appears from perusal of her answers in cross examination that she has no intelligence and has no understanding of the questions put to her, i.e., Q. Ghatna ki bad pahle pahal hosh kahan aaya ?
A. Hamko ghatna ke bad hosh samay pahale pahal hai.
Q. Daroga ji ghar mainaye to upne unhein apna ghatna ke bare me likh kar diya ?
A. Ghatna ke rat main aur Mas alag alag khat par soyae thi.
16. No doubt, her statement was also recorded under Section 164 Cr.P.C. It appears from her statement whatever she has disclosed, she has given in writing and to the Magistrate also she could not reply properly. It also appears from the above statements under Section 164 Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 11/18 Cr.P.C. and her evidence in court that the victim girl though claimed to be a Matriculate but she has no intelligence and has no understanding of the questions, as such, the argument of defence/appellants that whatever she has written, that is tutored and all the answers in cross examination appear to be irrelevant, and the whole testimony of this witness is unreliable and untrustworthy, appears to have substance.
17. P.W. 3 is the only eye-witness of the occurrence of rape and so far other witnesses are concerned, i.e., P.Ws. 3 and 4, are mother and father of the victim. Their evidence shows that victim girl was not found at about 11.30 P.M. in night on her bed. Thereafter they searched her at night and even in the morning on the next day. Evidence of P.W.4 further shows that he has informed the same to police. His evidence further shows that on the next day at about 3 P.M. some boys, namely, Onkar Tiwary and Vivek Kumar Tiwary, have informed him that the girl is lying in the school near the staircase. Thereafter he went there and found hand of his daughter tied and she was unconscious. Thereafter police was informed. His evidence also disclosed that the girl in gesture has told the name of Radhey Shyam Tiwary. At best P.W.4 appears to be the witness on the point of girl being traceless since night and her recovery on information by two boys, Onkar and Vivek. However, his evidence in chief also shows that the victim girl (P.W.5) disclosed in gesture the name of Radhey Shyam Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 12/18 Tiwary. This written report also shows that she named appellant Radhey Shyam on belief. P.W.3, mother of the victim, has stated in her chief that the victim girl (P.W.5) disclosed about name of all appellants by gesture and also about gang rape. P.W.2 has stated in his chief that she disclosed about gang rape by appellants in writing. Hence, PWs. 2, 3 & 4 do not appear to be eye-witnesses to the occurrence and they appear to be hearsay witnesses and at best witnesses on circumstances of her recovery.
18. Evidence of P.Ws. 2 and 3 clearly shows that the girl has given in writing names of appellants but as submitted by learned counsel for the appellants, the aforesaid piece of writing in which, she named these appellants, has not been produced before the court and even the I.O. (P.W.7) has stated that the girl has not given anything in writing before him.
19. P.W.1 is the Doctor, who has examined the girl and she has stated in her medical examination report (Ext.1/1) as follows :
" Name of person examined - Rekha Kumari, D/o Mr. Dudh Nath Tiwary, vill. Kalhaura, P.S. Sonhan, Dist. Kaimur Place of Examination - Sadar Hospital, Bhabhu, Date of Examination- 3.10.12 M.I (i) Tilla over ® Zygoma (ii) old scar adjacent to lateral angle of (L) Eye Secondary Sexual character - Developed Dental status - 7 + 7/ 7 + 7 Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 13/18 Radiological Examination - (1) X-ray ® klrist AP/Lat - IGEMS. X-ray done at KEMS Sadar Hospital Bhabua shows complete fusion of Epiphysis with distal end of radius and Ulna (2) X-ray Pelvis (AP) - X-ray done at 16 Ems Sadar Hospital Bhabua dated 3.10.12 shows partial fusion of illic crest with illium"
On the basis of above clinical and radiological examination the age of person examined is between 17 - 19 years."
She has further stated that no bleeding was found and on the basis of the findings arrived at there was no sign of sexual intercourse. As per prosecution case, occurrence has taken place in the night of 1.10/2.10.2012 and the girl has been examined by doctor on 3.10.2012. She has also stated in her cross examination that the girl was aged 17- 19 years.
20. P.W.7 is the I.O. of this case and he has stated that there was no eye-witness of commission of rape and he has also stated about the contradiction and improvement made in the statement of P.W.3 Sushila Devi. His cross examination further shows during investigation that he has not recorded the statement of the girl under Section 161 Cr.P.C.
21. Submission of learned counsel for the appellants is that evidence of P.Ws. 2 to 4 and even the victim girl shows that she was ravished badly by the three appellants and their evidence also shows that her clothes were torn and she was in a very precarious condition Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 14/18 but the evidence of Doctor falsifies the whole prosecution case as she has not found any sign of rape and/or any injury on her body. Further submission is that the clothes were not produced before the police. Even though P.W.4 has also claimed that blood was fallen at the staircase of the school but no bloodstained soil was seized by police. Further submission is that not a single independent witness has been examined in this case, including the boys, namely, Onkar Tiwary and Vivek Tiwary, who have informed about her to P.W.4, who may be the important witnesses in this case and even no other witness has been examined but later on prosecution has come with a developed story that there was altercation between the victim girl and Radhey Shyam Tiwary and, as such, the appellant had committed rape upon her but that is only development as there was no such prosecution story in FIR. Even the victim girl in her statement under Section 164 Cr.P.C. has not written so.
22. There is catena of decisions of the Supreme Court that in a case under Section 376-G IPC conviction can be held on the sole evidence of prosecutrix. However, Hon'ble Apex Court in a case of Mohd. Ali alias Guddu vs. State of Uttar Pradesh : (2015) 7 SCC 272, has held in para-29, as follows :
"29. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 15/18 themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had traveled from place to place and she was ravished a number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non-examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon."
23. In the present case, as I have discussed above, the evidence of the prosecutrix does not inspire confidence as from cross examination it appears that she has no intelligence and has no understanding about the questions put to her even in writing and she could not answer properly any question put to her and whatever evidence that comes in cross examination, shows that she cannot withstand the test of cross examination. No doubt her evidence in chief has been supported by her statement under Section 164 Cr.P.C. but that is also in writing not in question answers form and that can be tutored Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 16/18 one. It is needless to say that cross examination is inseparable part of examination of a witness to test his impeachable character and to find out whether her evidence is reliable or trustworthy. However, in present case, considering her answer in cross examination, the possibility of her evidence, being tutored and manufactured one, cannot be ruled out, hence those evidence of P.W.5 are not free from reasonable doubt.
24. The P.Ws. 2, 3 and 4 are the witnesses to the circumstances of her being traceless and thereafter of recovery, but once the evidence of P.W 5 does not appear to be reliable and trustworthy, conviction under Section 376-G IPC only on the basis of evidence of P.Ws. 2 to 4, which relates to circumstances of recovery, cannot be sustained. Moreover, evidence also shows that she was ravished by three persons and she was found hand tied condition and her mouth gagged and also her clothes were torn but Doctor (P.W.1) does not find any injury or sign of rape on her body. Even the torn clothes has not been produced before the I.O. Apart from that, as per prosecution evidence she has given in writing the names of the appellants but paper has not been produced before the court.
25. On the other hand, from perusal of the evidence it appears a suggestion has been given by appellant Radhey Shyam Tiwary to the witness that he has been falsely implicated in this case at the instance Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 17/18 of his uncle with whom large number of cases are going on and the documents have also been produced in support of his defence, i.e., Ext. A to G. Further suggestion is given to the witness that as she has some affairs with Amrendra Kumar Tiwary, she fled away with him and thereafter the present false and concocted case has been lodged to implicate these appellants.
26. Learned Trial Court has convicted the appellants under Section 376-G considering the evidence of P.W.5, the victim girl and evidences of P.Ws. 2, 3 and 4 and it seems that the trial court was swayed by sentiments, emotion and heinous nature of case and has not considered the circumstances discussed above and convicted the appellants under Section 376-G.
27. No doubt this case is heinous in nature considering the allegation of kidnapping and thereafter gang rape of a deaf and dumb girl but the courts are not to be swayed by sentiments, rather has to consider the materials available on record to come to a finding on the basis of materials available on record, specially when the evidence of P.W.5 itself appears to be impeachable in character and not free from reasonable doubt. As the same does not inspire confidence, the conviction of appellants on her testimony cannot be held to be sustainable.
28. Considering the evidence in totality, the sole testimony of Patna High Court CR. APP (SJ) No.172 of 2014 dt.08-09-2017 18/18 evidence of prosecutrix about commission of gang rape by appellants in all the above appeals, does not appear to be sustainable and, the appellants are entitled to benefit of doubt in this case.
29. Accordingly, these appeals are allowed. The conviction and sentence of the appellants under Section 376-G IPC are set aside. As the appellants are in custody, they are directed to be released forthwith, if not required in any other case.
(Vinod Kumar Sinha, J) spal/-
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