Patna High Court
Laxman Singh & Anr vs State Of Bihar on 20 March, 2009
Author: K.Mandal
Bench: Kishore Kumar Mandal
CRIMINAL APPEAL No.9 OF 1998 (S.J.)
(Against the judgment dated 3-12-1997 and
order of conviction dated 05-12-1997 passed by
Additional Sessions Judge- Ist, Samastipur in
Sessions Trial No. 276/4 of 1996/1997 and
Sessions Trial No. 389/27 of 1996/1997)
1. Laxman Singh
2. Umesh Singh
( Both sons of Late Nandu Singh, Resident of Village, Berai, Police Station
Sarai, District Vaishali
--------- (Appellants)
Versus
State of Bihar --------- (Respondent)
CR. APP (SJ) No. 24 of 1998(S.J.)
Jaleshwar Singh S/o Late Sukhi Chand Singh Resident of village Berai, Police
Station Sarai, Dist. Vaishali
---------- (Appellant)
Versus
State of Bihar -------- (Respondent)
For the Appellants: Sri Birendra Kumar Sinha, Sr. Advocate
Sri B.J.Oja, Advocate
For the State: Sri S.N.Prasad,A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL
Kishore Both these appeals arise out of
K.Mandal,J.
judgment dated 3rd December, 1997 and order of
conviction dated 05-12-1997 passed by Ist Additional
Sessions Judge, Samastipur in Sessions Trial No.
276/4 of 1996/1997 and Sessions Trial No. 389/27 of
1996/1997. The appeals have been heard together.
2
The present order shall govern both the appeals.
2. By the judgment under challenge
appellant Umesh Singh and Laxman Singh (Cr. App.
(S.J.).No. 9/1998) have been convicted under Sections
344, 366 of the Penal Code and sentenced to undergo
R.I. for 02 years and 04 years respectively. Appellant
Jaleshwar Singh (Cr. App. (S.J.) No. 24/1998) has
been convicted under Sections 344, 366 and 376 of
the Penal Code and sentenced to undergo R.I. for 02
years, 04 years and 08 years respectively.
3. Background facts in a nut shell are
as follows:-
The present trial germinates out of
G.R.P.S. Samastipur case no. 66/95 lodged on
22.09.1995 (Ext.4) by one 'Nirmala Devi' (P.W.3)
alleging therein that on 21.08.1995, in the early
morning she left her 'sasural' in a village and reached
Samastipur town in connection with her treatment.
She went to the clinic of Dr. N.Tigga. She left the clinic
of Dr. Tigga at about 06 P.M. and came to the
Samastipur bus stand for taking a bus in order to
reach her matrimonial home. There was no bus
available at the bus stand and as such she went to the
Samastipur Railway Station at about 08.00 P.M. in
the night. She went towards the extreme eastern
3
portion of the platform no.1 for easing herself. As she
was about to leave after easing herself she was
captivated at the said place by three persons. Her
mouth and eyes were tied by 'gamacha'. Her hands
were also tied. She wanted to raise 'halla' but was
unable as her mouth was muffled. All the three
accused persons forced/ dragged her and then made
her to sit on a motorcycle on the road and thereafter
all of them traveled thereon up to the house of
appellant Jaleshwar Singh. It appears they travelled
for about 02 to 2 ½ hours to reach the house of
appellant Jaleshwar Singh. At the house of this
appellant she was kept confined by the three accuseds
persons (appellants herein). The house of appellant
Jaleshwar Singh was in Village Berai, under Sarai P.S.
of Vaishali District. On 22.09.1995 she escaped from
the confinement on the pretext of attending call of
nature and met one Nilam Sinha (P.W.1). She narrated
the entire episode to her whereafter she brought her to
the police station where the F.I.R. was lodged on
22.09.1995 giving rise to the said case. A positive
allegation therefore was made that accused/appellant
Jaleshwar Singh had under threat to life committed
rape on her for about 10 days before she escaped on
22.09.1995 from the unlawful confinement. The
4
matter was thereafter investigated by PW-4 Ganesh
Paswan (Investigating Officer), who upon conclusion of
investigation, submitted charge sheet against all the
three appellants under various Sections of the Penal
Code including Sections 366, 376 and 344 of the
Penal Code. It appears that appellants Laxman Singh
and Umesh Singh were committed to the court of
Sessions first on 08.07.1996 giving rise to Sessions
case no. 389/1996. Subsequently, appellant
Jaleshwar Singh was also committed to the court of
Sessions for facing trial which gave rise to Sessions
Trial No. 276/4 of 1996/1997. Under the orders of the
court dated 03.04.1997 passed in Sessions Case No.
276/1996 both the Sessions cases were amalgamated
for hearing and thereafter they were heard together.
4. The charges were framed under
different Sections/heads as noticed above which were
read over and explained to the appellants. The
appellants abjured their guilt and thus claimed to be
tried. The defence of the accuseds/appellants was
total denial of the occurrence.
5. The prosecution in order to bring
home the charges examined altogether 05 witnesses.
P.W.1 Nilam Sinha is a stranger who met the victim on
her way back home after escape from her alleged
5
confinement at the house of appellant Jaleshwar
Singh and brought her (victim) to the police station for
recording the F.I.R. She has proved her signature on
the written statement (Exhibit-1).
P.W.2 Dr. Srigdha Sinha is the doctor who
examined the victim/prosecutrix and submitted injury
report (Ext.2).
P.W.3 Nirmala Devi is victim/prosecutrix of
the present case. P.W.4 Ganesh Paswan is the
Investigating Officer of the case who made
investigation and having found the charges prima-
facie true submitted charge-sheet against the
appellants.
P.W.5 Bhola Singh is own brother of the
informant/victim. It is to be noted here that this
witness has neither been named in the F.I.R. nor cited
in the charge-sheet.
6. Mr. B.K. Sinha, learned senior
counsel appearing on behalf of all the appellants,
made elaborate submissions in order to assail the
judgment and order of conviction recorded by the
learned trial court. The submissions advanced by him
shall be considered at the later part of the judgment.
Per contra, learned A.P.P. appearing on
behalf of the State, supported the judgment and order
6
of conviction. According to him, prosecution has been
able to prove the case beyond all reasonable doubts
and as such order under appeal merits no
interference.
7. Before this court proceeds to
delineate and consider the evidence brought on
record, it is considered apposite to first refer to the
submissions advanced on behalf of the parties
regarding the yardstick(s) to be applied by court in
cases of rape while appraising the evidence of the
prosecutrix who is the victim of sexual assault.
Learned counsel for the appellants referred
to and relied upon few decisions of the Supreme
Court. They are as follows:-
(i) 2007 AIR SCW 2732 Naravan @ Naran
Versus State of Rajasthan,
(ii) AIR 2003 SCC 818 Vimal Suresh
Kamble Versus Chaluverapinake Apal S.P. and
another.
(iii) (2007)12 SCC page 57 Radhu Versus
State of Madhya Pradesh.
(iv) (2008) 10 SCC page 69 Lalliram and
another versus State of Madhya Pradesh.
Learned A.P.P. on the other hand, placed
reliance on the following judgments:-
7
(i) (2006)1 CRI. L.J., page 562, equivalent
to AIR 2006 SCC 747 Parbata Versus State of
Rajasthan.
(ii) AIR 1999 SC 3916 State of Himachal
Pradesh Versus Lekh Raj and another.
8. This court proceeds to consider the
judgments cited on behalf of the parties in order to
decipher what is the law and/ or the yardstick to be
applied by a court of law while appreciating the
evidence of a prosecutrix who is a victim of sexual
assault in our society.
In Radhu Versus State of Madhya Pradesh
(supra) this court on appreciating the rival
submissions in paragraph no.6 of the report ( at page
60) held as under:
"6. It is now well settled that a
finding of guilt in a case of rape, can be
based on the uncorroborated evidence of
the prosecutrix. The very nature of offence
makes it difficult to get direct corroborating
evidence. The evidence of the prosecutrix
should not be rejected on the basis of
minor discrepancies and contradictions. If
the victim of rape states on oath that she
was forcibly subjected to sexual
intercourse, her statement will normally be
accepted, even if it is uncorroborated,
unless the material on record requires
8
drawing of an inference that there was
consent or that the entire incident was
improbable or imaginary. Even if there is
consent, the act will still be a " rape", if the
girl is under 16 years of age. It is also well
settled that absence of injuries on the
private parts of the victim will not by itself
falsify the case of rape, nor construed as
evidence of consent. Similarly, the opinion
of a doctor that there was no evidence of
any sexual intercourse or rape, may not be
sufficient to disbelieve the accusation of
rape by the victim. Bruises, abrasions and
scratches on the victim especially on the
forearms, wrists, face, breast, thighs and
back are indicative of struggle and will
support the allegation of sexual assault.
The courts should, at the same time, bear
in mind that false charges of rape are not
uncommon. There have also been rare
instances where a parent has persuaded a
gullible or obedient daughter to make a
false charge of a rape either to take
revenge or extort money or to get rid of
financially liability. Whether there was
rape or not would depend ultimately on the
facts and circumstances of each case."
In Lalliram and another versus State of
Madhya Pradesh (Supra) the Supreme Court was
considering a case where the lady was gang raped.
9
While appreciating the evidence on record the
Supreme Court held that injury sustained in course of
such ravaging although is not a sine quo non for
deciding whether rape had been committed. But has
to be decided on the factual matrix of each case. If the
allegation of rape by many persons and on several
occasion/times but no injury is noticed then certainly
is an important factor to be borne in mind.
Summarizing the position in law the Supreme Court
in paragraph no.12 of the report (at page 72, SCC)
held as under:-
"12. As rightly contended by
learned counsel for the appellants, a
decision has to be considered in the
background of the factual scenario. In
criminal cases the question of a precedent
particularly relating to appreciation of
evidence is really of no consequence. In
Aman Kumar Case it was observed that a
prosecutrix complaining of having been a
victim of the offence of rape is not an
accomplice. There is no rule of law that her
testimony cannot be acted upon without
corroboration in material particulars. She
stands on a higher pedestal than the
injured witness. In the latter case there is
injury in the physical form while in the
former both physical as well as
psychological and emotional. However, if
10
the court finds it difficult to accept the
version of a prosecutrix on the face value, it
may search for evidence direct or
circumstantial."
In Vimal Suresh Kamble Versus Chalu
Verapinake Apal S.P. and anothers (Supra) it was held
that the evidence of the prosecutrix if does not inspire
confidence then the court has to look for corroboration
which can lend assurance to the evidence of the
victim. The overall appreciation of the evidence of the
prosecutrix and her conduct can always persuade
court of law to look for corroborative evidence in order
to assure itself that what the prosecutrix is deposing
in court is nothing but truth. This is what the
Supreme Court has to say in paragraph no.21 of the
report:
"21. On an overall appreciation
of the evidence of the prosecutrix and her
conduct we have come to the conclusion
that P.W.1 is not a reliable witness. We,
therefore, concur with the view of the High
Court that a conviction cannot be safely
based upon the evidence of the prosecutrix
alone. It is no doubt true that in law the
conviction of an accused on the basis of the
testimony of the prosecutrix alone is
permissible, but that is in a case where the
evidence of the prosecutrix inspires
confidence and appears to be natural and
11
truthful. The evidence of the prosecutrix in
this case is not of such quality, and there is
no other evidence on record which may
even lend some assurance, short of
corroboration that she is making a truthful
statement. We, therefore, find no reason to
disagree with the finding of the High Court
in an appeal against acquittal. The view
taken by the High Court is a possible,
reasonable view of the evidence on record
and, therefore, warrants no interference.
This appeal is dismissed."
Learned APP appearing on behalf of the
State, on the other hand, referred to few decisions in
order to buttress his submission that in a case of rape
in our society the court should normally and generally
accept evidence/version of a prosecutrix as she has
suffered condemnation of the society both physically
and psychologically. In this connection he referred to a
judgment rendered in the case of Perbata Vrs. State of
Rajashtan (supra). This was a case in which the
prosecutrix while picking up cow-dung in a 'jungle'
was overpowered by the accused and thereafter rape
was committed. The prosecutrix raised alarm which
attracted few witnesses to the occurrence. The case of
the prosecutrix was that out of fear she could not do
anything since the appellant was carrying an axe and
12
threatened her. The doctor on examination of the
victim, found injuries on her person displaying
violence/struggle. The said fact can be gathered from
paragraph no.3 of the judgment. In that factual
scenario, the Supreme Court in paragraph no.7 of the
report held as under:-
"7.The prosecutrix has fully
supported the case of the prosecution.
Much was sought to be made of the fact
that no blood was found., We do not think
in a case of this nature there could be
possibility of any bleeding. The fact that
the broken bangles were not found at the
place of occurrence has been unduly
exaggerated by the trial court to disbelieve
the witness. We find no good reason to
disbelieve the prosecutrix when she was
fully supported the case against the
appellant. It is not suggested that she had
any enmity with the appellant or there
was any particular reason for her to
involve the appellant in this offence. Some
far-fetched disputes were sought to be
highlighted, but there is nothing on record
to suggest that the prosecutrix or her
husband had any motive to falsely
implicate the appellant."
In the case of State of Himachal Pradesh
Versus Lekh Raj and another (Supra) a widow
(prosecutrix) aged about 55 years was criminally
13
assaulted and subjected to forcible intercourse by the
accused (respondents) near her village. On medical
examination various injuries were found on her
person. The medical report opined that the injuries
reflected the signs of struggle. The trial court
convicted the appellant for the offence punishable
under Sections 376 (2)(g) )and 323 of the Penal Code.
In appeal preferred by the accused/appellant the High
Court took some what different view and acquitted the
accused of the charges framed against them. In the
appeal preferred against the said judgment the
Supreme Court on appraisal of the evidence appearing
from the record in paragraph no.5 of the report ( at
page 3918) held as under:
"5. We are, however, of the opinion
that the High Court was not justified in
holding that the prosecutrix had not been
subjected to forcibly sexual intercourse or
the prosecution had failed to prove the case
against the respondent No.1 also. To hold
that the prosecution had not proved the
case against the respondent, beyond
reasonable doubt, the High Court mainly
relied upon the medical evidence and
finding that "no dead or alive spermatozoa
were seen. Absence of such dead or mobile
spermatozoa either in the vagina or in the
cervix of the prosecutrix rules out the
14
possibility of the prosecutrix having been
subjected to sexual intercourse on the date
and time alleged by the prosecution".
Such a conclusion is not referable to any
evidence on record. No such suggestion
was put to the doctor nor any medical
authority referred to in support of the
conclusions arrived at by the High Court."
9. This court thoughtfully reflected
over the rival submissions advanced on behalf of the
parties and carefully perused the judgment cited in
support thereof. In my considered view, the position
in law emerging therefrom are that normally findings
of guilt in a case of rape can be based on the
uncorroborated evidence of the prosecutrix if found
truthful and trustworthy. Such evidence should not be
rejected on the basis of minor discrepancies and
contradictions unless the material on record requires
drawing of an inference that there was consent or that
the entire incident is improbable and imaginary.
However, if the evidence of the prosecutrix is not
found above board and is open to question based on
attending factual circumstances of the case and the
court has doubts in mind that the evidence appears
to be artificial then the court shall definitely be within
its bounds to look for corroboration in order to assure
itself that whatever prosecutrix is deposing is true and
15
conviction can be recorded safely on her deposition. It
is always the duty of the prosecution to bring the
offence home by reliable evidence dispelling the
possibility of reasonable doubts on the basis of legal
evidence and material on the record.
10. Having considered the yardstick to
be applied in such cases and keeping those yardsticks
in focus, this court now proceeds to examine the
evidences which have been brought on record by the
prosecution to prove the case as unfolded in the F.I.R.
and during trial.
11. P.W.3 is the prosecutrix. According
to the F.I.R. (Ext.4) she has disclosed her age as 23.
Admittedly she is a married woman and as per the
prosecution case on the date of occurrence in wee
hours she left her matrimonial home all alone in order
to visit a lady doctor called 'N.Tigga', in connection
with her ailment. At the time of deposition, the trial
court has assessed her aged about 28 years. In her
deposition, she has stated that on the date of
occurrence she left her matrimonial home very early in
the morning and reached the dispensary/clinic of the
doctor where she was detained till evening but could
not be medically examined. Thereafter she went to the
bus stand but as there was no bus available at the
16
Bus stand, she went to the Samastipur Railway
Station where she reached at about 08 P.M. She kept
waiting for the train on the platform no.1 when she
felt the call of nature and in order to relieve herself
she went to the eastern side of the Railway platform
but in the meanwhile, three miscreants captivated
her, muffled her face including eyes. The hands were
also tied with the help of 'gamchha' and thereafter she
was dragged to some distance and loaded on a
motorcycle and all the three miscreants sat on the
said motorcycle and drove for about 02 to 2 ½ hours.
She reached the house of appellant Jaleshwar Singh
where she was untied and thereafter all the three
appellants committed rape on her. They ravaged her
for about 10 days. She was confined there under
threat to her life for about 30 days. On 22.09.1995
she escaped from that place/house on the pretence of
attending call of nature and thereafter reached the
main road where some person made her sit on a bus
and from there she reached Mahuwa from where she
boarded on another bus destined for Samastipur.
While travelling on the said bus, she met a lady called
'Nilam Sinha' (PW-1) to whom she disclosed the
painful happenings that had occurred with her.
Aforesaid Nilam Sinha (PW-1) took her to the Town
17
police Station and from there she was re-directed to
Rail police station where her 'fardbeyan' was
recorded. She has proved her signature on the
'fardbeyan' (Ext. 1/1). In her cross-examination she
admits that in her matrimonial home there are
altogether three adult male and four female members.
However on the date of occurrence there was no male
member present in matrimonial house and as such for
the first time she left the home and went to
Samastipur on her own. She left her 'sasural' at about
04 A.M. in the morning and as soon as she reached
Samastipur and consulted the compounder of the
doctor she was made to know within an hour that the
doctor was busy enough and she was not going to be
treated on that particular day. The evidence indicates
that the distance of Samastipur and her matrimonial
home can be covered within 02 hours. She is emphatic
in stating that the only purpose of her visit on that
day to Samastipur was to consult the doctor and there
was absolutely no other work. In order to return home
she went to the bus stand and thereafter to the
Railway Station where she could not find any train
and as such she decided on waiting for the train as
somebody disclosed her that at about 09 P.M. a train
will arrive on the platform. However, in the
18
subsequent paragraph, this witness has categorically
admitted that her home is not connected with Railway
line/route and as such for reaching her home or her
'naihar' she always used to travel on bus. She has
gone to the extent of saying that, for the first time, she
had gone to the Railway Station in order to catch a
train where she felt a call of nature. She did not
enquire about the lavatory/bath rooms available on
the platform no.1 but went to the extreme eastern side
of the Railway Station in order to ease herself.
However, it appears that this witness subsequently
stated that she in fact, looked for the lavatory/bath
room on the platform but did not find any on platform
no.1. The place where she visited for easing herself
was dark but subsequently she says that there was
bulb light which continued till the entire occurrence of
captivating her by the three miscreants (appellants)
was over. In paragraph no.5 of her deposition the
prosecutrix states that after being captivated she was
dragged up to the main road adjacent to the Railway
Station. She was dragged up to 1 'lagga'. One of the
appellants commanded her at pistol point and made
her to sit on the motorcycle at the road whereon the
accuseds /appellants also sat and thereafter she
was driven to the house of the appellant Jaleshwar
19
Singh. This witness has further deposed that she
could not identify as to who amongst the appellants
dragged and lifted her and thereafter made her to sit
on the motorcycle. At the house of appellant
Jaleshwar Singh she was untied. Paragraph no.6 of
her deposition would show the factual scenario which
prevailed at the place (house of appellant Jaleshwar
Singh) where she was captivated for 30 days and in
the meanwhile ravaged on several occasions by all the
three appellants. According to her, the wife, mother
and a girl (10 years old daughter) of appellant
Jaleshwar Singh were other inmates of the house.
They did not enquire about her. The house in which
she was confined was thatched house which were
made of bamboo clumps/tatti. The room in which she
was kept was also used as a room for cooking and
eating food. On the day of occurrence while going to
consult the doctor she had put on all the jewelleries,
details whereof have been set out in the said
paragraph which include necklace, golden ear rings,
golden bangles, lockets, nose pins, pajeb, silver pajeb,
Silver belt (jerkin) etc. She was, however, relieved of all
her belongings including ornaments/jewelleries at the
house of appellant Jaleshwar Singh and was offered
only one sari which she used to wear all through her
20
stay for 30 days in the said house. She made efforts to
escape but was not allowed in so much so she was not
allowed to raise alarm through all these 30 days as in
absence of appellant Jaleshwar Singh, his mother and
wife used to keep vigil on her. She was under constant
surveillance even when easing herself in the field by
the lady inmates of the house including the 10 year
old girl of the appellant Jaleshwar Singh. After having
spent about one month in such condition she escaped
and took the bus with the help of few unknown person
who made her sit on a bus. This witness, however,
admits that as on today if she is made to identify the
house of appellant Jaleshwar Singh where she was
kept confined for 30 days and ravaged all through
these periods, she may not be able to identify the said
house. The conductor of the bus she first boarded did
not charge any ticket and she was carried up to
Mahuwa from where with the assistance of another
unknown person she changed the bus and boarded
thereon which carried her to Samastipur. The
conductor of the second bus did not charge her for the
travel. Upon reaching Samastipur in the evening she
along with Nilam Sinha (PW 1) went to the police
station and lodged the case and thereafter she went to
her 'Naihar'. She disclosed the entire mis-happenings
21
to her mother, and another family member. She has
admitted further that after the occurrence she could
not go to her 'sasural' (matrimonial home) as her
husband had contracted second marriage for which a
'panchayati' was also organized. Paragraph no.7
indicates that no sooner she returned to Samastipur
she was forwarded to doctor for her medical
examination which was actually conducted on her.
She visited the hospital along with her father who
remained with her all through the radiological tests so
carried on her. Paragraph no.9 of her deposition
indicates that this witness is emphatic in alleging that
owing to her continuous ravaging by appellants there
was swelling around her private parts rendering her
unable to walk properly. Paragraph nos
12,13,14,15,16,17,18 and 19 of her deposition narrate
the manner she was ravaged by all the three
appellants one after another on several occasions.
According to her, on the first day of her captivity,
appellant Jaleshwar Singh committed rape on her
several times. At the time of committing rape her
hands were tied on her back. Appellant Jaleshwar
Singh committed rape on her more than 10-15 times.
The apparels (sari) she was wearing through all these
days did contain stains of semen. 2-3 days after
22
appellant Jaleshwar Singh again committed rape on
her and thereafter the two appellants, namely Laxman
Singh and Umesh Singh also committed rape on her.
In paragraph no.14 she is emphatic in saying that
appellant Laxman Singh and Umesh Singh also
committed rape on her on innumerable times in the
same fashion as was done by appellant Jaleshwar
Singh. Appellant Jaleshwar Singh subsequently also
committed rape. A perusal of these paragraphs show
that one after another the appellant Jaleshwar Singh
and appellants Laxman Singh and Umesh Singh
committed rape on her during her period of captivity.
Paragraph no.16 of her deposition does indicate that
she was kept inside the room without any fetter on her
face and mouth even prior and after the commission of
rape by the appellants. She admits that all through
her period of confinement at the house of appellant
Jaleshwar Singh she did not raise any cry/'hulla'. She
however adds that this was because she was under
threat of being assaulted by means of a sword.
Paragraph no.17 of her deposition would show that
appellant Jaleshwar Singh used to first commit rape
on her and then used to retire and sleep in the room
where his wife used to sleep which was just opposite
the room where she was kept confined. She used to
23
make complaint with the mother and wife of appellant
Jaleshwar Singh but no help was forthcoming. In
paragraph no.18 she admits that all through her stay
she wore one sari which was offered to her during her
confinement in the house. From her deposition it
appears that she would know about the name(s) of the
miscreants/appellants after 10-15 days of the
occurrence of her kidnapping/abduction.
12. As admitted by this witness she was
subjected to medical test soon after the F.I.R. was
lodged by her. The doctor has been examined as
P.W.2, namely, Dr. Srigdha Sinha. This witness in her
deposition has stated that on 27.09.1995 she
examined the prosecutrix and found her physically
well developed. She, however, opined that no external
or internal injury was/were found on her vagina or
any part of the body. She thus opined that no positive
findings of recent rape can be said on the basis of the
medical examination conducted on the prosecutrix.
The report submitted by her is (Ext.2).
13. The other witnesses which have
been brought to dock to support the prosecution case
is/are P.W.1 Nilam Sinha who is said to have met her
on the bus the prosecutrix was traveling on after her
escape from the house of appellant Jaleshwar Singh,
24
P.W.4 the Investigating Officer and P.W.5 Bhola Singh
brother of the prosecutrix.
14. Before I proceed to consider the
evidence of PWs 1 and 4, I deem it appropriate to
consider the evidence of P.W.5. Learned Senior
counsel for the appellants has severely criticized the
legal value of his deposition.
15. P.W.5 Bhola Singh is own brother of
the prosecutrix (PW-3). As the records indicate he has
been examined as a last witness after the examination
of the Investigating Officer (PW-4). Learned counsel for
the appellants states that this witness has neither
been named in the F.I.R. nor cited in the charge-sheet.
According to him, this witness was not earlier
examined by the Investigating Officer. The prosecution
in order to fill up the lacuna in the prosecution
evidence got him examined after the evidence of the
Investigating Officer (PW-4) was over. Learned counsel
for the appellants submits that the deposition of P.W.5
is nothing but the ingenuinity of the conducting
counsel in order to cover up the deficiencies which
loomed large in the evidence of the prosecutrix (P.W.3)
in the light of the evidence on record particularly those
of the doctor (PW-2) and the Investigating Officer (PW-
4). P.W.5 Bhola Singh claims to be the younger
25
brother of the prosecutrix. During the relevant time he
was student of B.Sc. (Honours). In his deposition he
has stated that on 21.08.1995 his sister had left her
matrimonial home to reach Samastipur in order to
consult the doctor at Samastipur. As she was found
missing from that date his 'bahnoi' (husband of the
prosecutrix) came to his house in order to check
whereabout of his wife on 21.08.1995. Both of them
went to the clinic of Dr. Tigga and met the head
compounder who disclosed that she (prosecutrix) was
instructed to come on the next day (i.e. 22.08.1995)
for consultation but she did not turn up. On
26.08.1995 he made an attempt to lodge information
relating to her missing but the Havalder at the police
station after querying him did not allow him to meet
the Officer-in-charge. He was driven away from the
police station whereafter he again started searching
his sister at different places. All on a sudden on
22.09.1995 the prosecutrix (his sister) along with an
unknown lady (PW-1) arrived at his house late in the
night, whereafter the prosecutrix disclosed to the
entire family members about her
kidnapping/abduction on 21.08.1995 when she was
waiting on the railway Station for taking a train. In
paragraph no.28 of his deposition this witness has
26
stated that his statement was recorded in course of
investigation and in his such statement he had stated
that his sister was missing from 21.08.1995.
16. P.W.4 Ganesh Paswan is the
Investigating Officer of the case. On 22.09.1995 he
was posted at the Samastipur G.R.P.S. when
prosecutrix accompanied by Nilam Sinha (PW-1) met
him and thereafter statement of the prosecutrix was
recorded which was read over to her by P.W.1 and
thereafter the prosecutrix signed the same. The
'Fardbeyan' is Exhibit-3 and signatures of the
prosecutrix and Nilam Sinha (PW-1) appearing thereon
have already been marked as Exts. 1/1 and 1
respectively. The formal F.I.R. is on record as Ext. 4.
The Investigating Officer thereafter inspected the place
of occurrence i.e. platform no.1 of Samastipur,
Railway Station. It appears while inspecting the place
of occurrence the prosecutrix was accompanying him
and he was shown the actual place from where she
was gagged, kidnapped and thereafter lifted on a
motorcycle and driven to the house which is said to be
the house of appellant Jaleshwar Singh. Next day he
went to the house of appellant Jaleshwar Singh
located in village Berai. He found that the house was
thatched hut/house. In paragraph no.10 of his
27
deposition this witness has stated that after making
investigation of the case it came to light that the
prosecutrix was kept confined in the house of
appellant Jaleshwar Singh from where she escaped in
the morning of 22.09.1995. Paragraph no.13 discloses
that the prosecutrix was sent for medical examination
on 27.09.1995. The requisition respecting the same is
Ext.6. In paragraph no.14 he states that witnesses
were examined without disclosing their names.
Paragraph no.18 of his deposition shows that this I.O.
did not examine and record the statement of the
husband of the prosecutrix. A perusal of his
deposition further indicates that the prosecutrix did
not produce any cloth or apparel containing
sperm/stains before the I.O. and that the Doctor upon
medical examination forwarded a report in which a
positive opinion was made that no apparent sign(s) of
rape having been committed on the prosecutrix was
/were found. His entire evidence gives an impression
that this witness proceeded in the matter of
investigation in a very casual manner as no family
member belonging to the victim's matrimonial home or
parental home was/were examined by him respecting
the occurrence and/or her continued missing from
both homes for a period of over 30 days as per the
28
prosecution case unfolded in the F.I.R. (Ext.4) and at
the trial. Paragraph nos. 25 and 26 of his deposition
further need attention. This witness has stated that on
the Samastipur Railway platform there is one police
station where police personnel are always deputed but
nobody informed about the occurrence to the said
police station on the date of alleged occurrence
(21.08.1995). It further appears from those
paragraphs that the I.O., on physical verification,
found that there were toilets meant for both male and
female on the platform no.1. The casualness of the
investigation can further be seen from paragraph
no.27 where he has admitted that he did not verify
whether the prosecutrix had indeed come to the clinic
of doctor in connection with her ailment on the date of
occurrence. The topography of the first place of
occurrence (eastern portion of platform no.1) has been
described by him in paragraph no.28 which indicates
that the victim (prosecutrix) was dragged through a
lane up to the Station road. The I.O. has found several
shops lined up on the said road and has also stated
that there is deputation of a mobile jeep on the said
road. Paragraph no.32 is again relevant wherein this
witness (I.O.) has said that in between the Samastipur
Railway Station and the house of appellant Jaleshwar
29
Singh there is/are more than one police stations.
Paragraph no.36 is again a reflection on the slackness
on his part when this witness admitted that he did not
care to verify as to how many male/female members
were residing in the house of appellant Jaleshwar
Singh. From his entire evidence it is not found that
PW 5 even approached him and/or got his statement
recorded. The evidence of PW-5, therefore, cannot be
safely relied upon to corroborate the attending
circumstance in general and the deposition of the
prosecutrix in particular.
17. P.W.1 is, therefore, the only witness
which can be said to be an independent witness
throwing some light on some part of the prosecution
case. This court now proceeds to scan her evidence.
She is a teacher in a Sanskrit school and is aged
about 52 years. According to her, on 22.09.1995 she
left Hasanpur (her home) and took a mini bus on the
main road. She could find a lady sitting in the said
bus from before. Looking to her mental condition, she
enquired from her whereafter she disclosed her name
as Nirmala and then the entire story that one month
ago she had gone to the clinic/dispensary of Dr. Tigga
in connection with her ailment where she was
detained late in the evening. The prosecutrix in order
30
to go back home went to the bus stand but she could
not catch any bus and thereafter she went to the
station platform and as she was easing (urinating) on
the eastern part of the platform 04 unknown persons
gagged her, muffled her face and all of them drove her
on a motorcycle up to village Berai in the District of
Vaishali and thereafter all of them committed rape on
her one after another on every day. She (prosecutrix)
disclosed her names of the miscreants as the present
appellants.
In her cross-examination she admits that
prior to such meeting with Nirmala Devi by chance
she had not met her earlier and in fact after recording
of the 'fardbeyan' she never met her again. She has
however denied the suggestion that a concocted
allegation has been levelled against her at the instance
of PW-1 who claims to be a social worker.
18. Learned counsel for the appellants
in view of the evidence available on record, submits
that the following are the circumstances which would
definitely justify the court in looking for corroborations
in order to come to the conclusion that the allegations
have been proved beyond all reasonable doubts.
A young married woman having several
male and female members in the matrimonial home
31
leaves the matrimonial home in the wee hours after
putting on all her belongings including jewelleries for
treatment by a doctor at Samastipur. Details of her
jewelleries are available on record in the deposition of
P.W.3. According to the prosecutrix, this is for the first
time, that she went out alone. She goes to the Doctor.
As per her deposition within an hour i.e.
approximately by 8.30 or 9.00 A.M. it was made
known to her that the Doctor will not be able to attend
to her as such and she was not required to stay
further at the clinic. She further admits that apart
from consulting the doctor there was absolutely no
other work at Samastipur town. She continues there
in the town till late in the evening and thereafter goes
to the bus stand for catching a bus as she has
admitted in her deposition that her matrimonial home
is not on the rail route and she always used to travel
on bus while going either to her matrimonial home or
'naihar'. She does not get bus and then goes to the
platform knowing fully well that the train will not
carry her to her matrimonial home/village. The I.O. in
his deposition has found that lavotory/toilets both for
male and female were found located on the platform
no.1. She however decides to go to the extreme corner
( a lonely place) of the platform where she is said to
32
have been gagged, muffled and kidnapped by the
appellants. P.W.1 Nilam Sinha in her deposition has
said that the prosecutrix PW-3 disclosed her that she
was gagged and kidnapped on a motorcycle by as
many as 04 persons whereas the prosecutrix in her
deposition as well as in her earlier version recorded in
the F.I.R.(Ext.4) has categorically stated and reiterated
that the accused were 03 in number who kidnapped
her and thereafter drove her up to the house of
appellant Jaleshwar Singh on one motorcycle. The
evidence on record further indicates that the passage
through which she was dragged for a distance of
about 30 to 40 ft. and then loaded on the motorcycle
is the station road which the Investigating Officer has
found lined up by several shops. It is common
knowledge that the shops close to Railway Stations
are open till late in night. The evidence of the I.O.
further is to the effect that there is a police station
located on the platform no.1 itself apart from the
deputation of the Railway Magistrate. No such factum
of kidnapping by the miscreants of a woman was
reported to the police on that particular day. The
Investigating Officer is further on record that normally
on the Station road there is a deputation of mobile
police van till late in the evening. So far as kidnapping
33
on a motorcycle is concerned, there is/are two
versions on record. According to P.W.3 the three
appellants kidnapped and made her to sit on a
motorcycle and all of them thereafter drove her for
about 02 to 2 ½ hours to cover the distance up to the
house of appellant Jaleshwar Singh located in village
Berai, in the District of Vaishali. On the contrary,
P.W.1 in her deposition has stated that the
prosecutrix disclosed to her that 04 persons had
kidnapped, lifted and driven her on a motorcycle to
the house of Jaleshwar Singh. The evidence of the
prosecutrix P.W.3 is to the effect that she was kept
confined in a hut/house made up of bamboo clumps/
'tatti' which was also used as kitchen and dining
room. The another part of the house was just across
the room in which she was kept confined for 30 days.
Evidence is available on record to show that the wife,
mother and 10 years old daughter of appellant
Jaleshwar Singh are/were the other inmates of the
house. Evidence on record is clear and specific that
these female inmates always kept guard on her even
when she was attending to call of nature outside the
house. Going by the deposition of P.W.3 it further
appears that she was raped by all the three
accuseds/appellants one after another on several
34
occasions during the period of 30 days of her
confinement. She has also admitted that her mouth
and eyes were never muffled but she could not raise
alarm for all these days while she was at the house of
appellant Jaleshwar Singh. Referring to her deposition
it has been submitted that this witness has
categorically admitted that the continual ravishing by
all the three appellants for all these days (30 days)
caused swelling of her vaginal part and she was even
unable to move properly. The doctor (PW-2) in her
deposition has stated that medical examination(s)
have found that no sign(s) of rape and or violence/
struggle was found on her person. No apparel (sari)
was handed over to verify stains of sperm although as
per the prosecutrix she was made to wear one sari
which did contain stains. Going by the records in
general and the evidence of the I.O. (PW-4) in
particular it would appear that no member either
male or female including husband of the prosecutrix
all through these 30 days made any effort to locate her
and on their failure to do so report the matter to the
police station. The I.O. appears to have definitely not
examined and recorded the statement of any member
either male or female from her both houses i.e.
matrimonial home and parental home. The I.O.
35
further did not take trouble to go to the clinic of the
doctor and verify whether on that particular day i.e.
21.08.1995 the prosecutrix (PW-3) had ever visited the
clinic in connection with her ailment. The judgment
under appeal shows that appellants Laxman Singh
and Umesh Singh (in Cr. APP. (SJ) No. 9/1998 were
although charged under Section 376 of the Penal Code
but the learned trial court having appraised and
analysed the evidence on record did not find the said
charge proved and as such an order of acquittal has
been recorded thereunder so far as these two
appellants are concerned. Referring to the deposition
of the victim (PW-3) appearing in paragraph nos. 12 to
19 it has been stated that this part of her deposition
becomes thoroughly unreliable as the learned trial
court on appraisal of her evidence has found the
allegation of committing rape by these two appellants
for all these days not credit worthy. Thus the evidence
of the prosecutrix in material part has already been
disbelieved by the learned trial court.
19. Having delineated and highlighted
these glaring facts emanating from the records, it is
contended that these disturbing facts/circumstances
definitely oblige the court to look for corroboration on
material aspects of the case in order to safely conclude
36
that the appellants particularly, appellant Jaleshwar
Singh ( Cr. APP. (SJ) No. 24/1998) had committed the
offence of kidnapping and thereafter subjecting her to
sexual assault for 30 days while kept in a room of his
house where his mother, wife and 10 years old girl
also resided.
20. Having thoughtfully reflected over
the submissions, this court is of the considered view
that here is a case in which the evidence of the
prosecutrix cannot be said to be wholly trustworthy
and above board. The court, therefore, looked for the
corroborations on material aspects from the
records/evidence on record. In stead of finding
corroboration this court finds material omissions and
contradictions in the prosecution evidence as have
already been highlighted and taken note by this court
in the previous paragraph(s). The medical evidence of
the doctor and the report (Ext.2), if the evidence of the
prosecutrix is to be believed in toto, would have
definitely supported the case as the prosecutrix is
assertive in her evidence that owing to her continued
ravaging by the appellants she had developed swelling
on and around her private parts (vagina) rendering her
unable to walk properly. Surprisingly, the doctor did
not find any such injury in so much so no sign(s) of
37
violence/struggle was found on her person. The sari
which she was wearing all through her confinement
which, as per her evidence, contained mark/stain of
sperm was not produced. This court, therefore, does
not consider safe to rely on the evidence of the
prosecutrix in order to convict the appellants of the
charges for which they have been booked. There may
be a case purely of false implication or of consent but
this court is not obliged to consider that aspect of the
matter. Suffice is to say that the prosecution has not
been able to prove its case beyond all reasonable
doubts.
21. For the reasons stated above, the
present appeal stands allowed. The conviction
recorded against the appellants is set aside.
Appellants are on bail. They are discharged from the
liabilities of their bail bonds.
Patna High Court, ( Kishore K. Mandal, J.)
Dated the 20th March, 2009
Sym/NAFR