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2003 Legal Eagle (JHAR) 49

IN THE JHARKHAND HIGH COURT

Equivalent Citations : 2003 AIR(Jhar) 1162 : 2003 CrLJ 4215

[Before : Lakshman Uraon,Vishnudeo Narayan]

Bodho Sah versus State of Bihar (Now Jharkhand)

Case No. : 336 of 1996, Date of Decision : 03-03-2003

(A) Seems to be full of concoction, embellishment and after thought in a well planned way to implicate both
these appellants in a rape case committed on her who is nearing 60 years of age as per voters list (ext. The
age of appellant - arjun sah was assessed 30 years on 10 - 7 - 1995 and that of appellant bodho sah aged
about 45 years. The manner in which they have possessed the lands of these appellants is also
contradictory as to whether they got the lands in bhudan or got it recorded in their names on the basis of
gift deed executed in their favour as they have not produced any document in support of possessing the
lands of the appellants.

(B) In the result. The only reason to implicate accused persons, these appellants, seems to be grabbing of
the lands when they failed to possess the lands legally and in the recent survey settlement, the lands were
recorded in the name of the appellants for which a proceeding is pending, then they have chosen the other
method to implicate these appellants in such a case so that they may remain behind the bars till their lives
and the interested witnesses may enjoy their lands by possessing and cultivating. (12) In the result, this
criminal appeal is allowed and the appellants are acquitted. The conviction and sentence passed by the
learned court below is hereby set aside. As both appellants are in custody, hence it is ordered that they be
released forthwith if not wanted in any other case.

Advocates : +

Statutes Referred : +

JUDGMENT/ORDER:
Lakshman Uraon, J.:-

(1) The appellants being aggrieved and dissatisfied with the order of conviction dated 19/06/1996 and sentence
dated 20 - 6 - 1996 passed by learned 3rd additional sessions judge, deoghar in sessions case nos. 175 of 1992/65
of 1992 where by and whereunder they have been convicted under s. 376, i. P. C. And sentenced to undergo
imprisonment for life, have preferred this appeal.

(2) The prosecution case, in short, is that informant sugani devi (p. W. 5) went to the police station on 1/07/1990 at
9. 30 p. M. Alongwith her husband p. W. 2 chhotu thakur taking old sari, green colour black spotted polyester and
one old petticoat and alleged that on 30 - 6 - 1990 in the morning at 8. 00 p. M. , she had gone to mehdi sah of
village kandadih to offer "mali" to his grand - son. She was returning at about 5. 00 p. M. And when she reached in
between dahajor and mauza tuhio near a sugarcane field, both appellants - arjun sah and bodho sah came to her
and asked her to go inside the sugarcane field and on her query she was caught by both the appellants and taken
into the sugarcane field. She was laid down and was raped first by appellant - arjun sah and thereafter appellant
bodho sah ravished her. After committing rape, they left for their houses. Informant came out of the sugarcane field.
She saw shivnath mahto and sukhdeo thakur (p. W. 1) both of village deonathdih coming whom she narrated the
entire occurrence. They also saw both the appellants fleeing away. At home, her husband was not there as he had
been to deoghar. Her husband returned home in the evening on 1/07/1990. Then she narrated the entire occurrence
to him and thereafter, she alongwith her husband went to the police station where the first information report (ext. 3)

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was recorded on which she gave her l. T. I. And her husband thakur sah signed on it.

(3) The prosecution has examined altogether 8 witnesses in order to prove its case. P. W. 1 sukhdeo thakur claims to
be a witness who saw informant sugani devi weeping outside the sugarcane field. When she informed regarding
commission of rape by these appellants, then he also saw both the appellants fleeing away. P. W. 2 chhotu thakur is
the husband of the informant - victim who is hearsay witness. P. W. 3 girdhari mahto and p. W. 4 parsuram mahto are
seizure list witnesses who signed on the seizure list (exts. 1/1 and 1/2) respectively in respect of seized sari and
petticoat by the i. O. In carbon process in their presence. P. W. 7 chandrashekhar singh, a formal witness, has proved
fir (ext. 3) in the pen and signature of sohan prasad, o/c, sakho ps. P. W. 8 ashok kumar mishra, another formal
witness, has proved the seizure - list (ext. 4) prepared by sohan prasad. O/c. Sakho ps in his pen and signature. P. W.
5 victim sugani devi is the informant of this case. P. W. 6 dr. (smt.) sardha singh examined the victim lady sugani
devi and issued injury report (ext. 2).

(4) In this present case, i. O. Has not been examined. The defence has taken the plea that due to land dispute,
appellants have been implicated in this case only to put pressure on them so that they may not claim the lands
where survey settlement proceeding is going on in the village and have filed khatian of zamabandi no. 95 (ext. A) of
mauza bela and extract copy of entry in voter list 159 jarmundi assembly constituency for the year 1988 (ext. B) to
show that there is land dispute and the victim informant sugani devi, wife of p. W. 2 chhoto napit (thakur) , was 57
years of age in the year 1988 when the voter list was prepared.

(5) The learned 3rd additional sessions judge, deoghar relied on the evidence of p. W. 1, p. W. 2, p. W. 5 and p. W. 6
(doctor) and found the prosecution case proved against both these appellants and convicted them and sentenced
them to undergo imprisonment for life under s. 376, ipc.

(6) Assailing the judgment of conviction and sentence passed by the learned 3rd additional sessions judge, deoghar,
the learned counsel for the appellants has submitted that due to non - examination of the i. O. , the appellants could
not take contradiction which has greatly prejudiced them. The place of occurrence has also not been proved. All the
interested witnesses only have been examined in this case. P. W. 2 chhotu thakur, husband of the informant, is
cultivating the lands of both the appellants since last 50 years. Only to grab the lands of the appellants, the
interested witnesses have falsely implicated these appellants. P. W. 1 sukhdeo thakur is in joint cultivation with p. W.
2 chhotu thakur. Victim sugani devi (p. W. 5) has a son lalmohan bhandari, who has also a son. Thus, victim is a
grand mother who is an old lady who could not have been subjected to rape in the manner as alleged by her in the
first information report. Even after the alleged occurrence p. W. 1 uncle of the victim, did not accompany her to go to
her house. She waited for her husband and on the next day after delay, concocting a case, these appellants have
been made accused. P. W. 6 dr. (smt) sardha singh examined the victim lady on 2 - 7 - 1990 at about 11. 45 a. M.
And found no sign of violence either on her body or in her private part. Although she found from the pathological
report that spermatozoa was present in her private part, was a sign of recent intercourse. The spermatozoa were
sent for pathological report without being sealed and also the report was not before her. The alleged occurrence
took place on 30 - 6 - 1999 at 5. 00 p. M. And the victim was examined on 2 - 7 - 1990 at 11. 45 a. M. Thus, the
chance of any sperm having been found in the vagina of the victim lady after a long interval is highly improbable
which seems to be concoction. The appellants have filed certified copy of parcha (ext. A) , certified copy of order
passed in misc. Petition no. 527a of 1990 (ext. C). Certified copy of misc. Petition case no. 527a of 1990 (ext. D) ,
and other documents to show that the lands of these appellants were forcibly possessed by the prosecution party.
In the survey settlement proceeding, the claim of the appellant - arjun sah had been accepted. The lands, which are
being claimed by the prosecution party, are raiyati and non transferable land of the appellants. Only to possess the
lands in a wrongful manner, they have been implicated in this case taking shelter of sugani devi alleging that she
was ravished by these appellants.

(7) Learned app has submitted that the place of occurrence is the sugarcane field in between village dahia and
tohio. Both these appellants took her inside the sugarcane field and ravished her. Thereafter, they fled away. They
were seen by p. W. 1 sukhedo thakur and another witness sheonarayan mahto (not examined) fleeing away. Victim
sugani devi narrated them regarding the commission of rape on her by these appellants. P. W. 6 dr. (smt) sardha
singh examined her and found sign of recent rape on her. On these grounds, he has submitted that the learned court
below has rightly convicted the appellants and sentenced them to undergo imprisonment for life for the offence
punishable under s. 376, ipc.

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(8) In this present case, the material witnesses are p. W. 1 sukhdeo thakur and p. W. 2 chhotu thakur, who are uncle
and husband of the victim lady respectively. Both of them have admitted that they are in possession of the lands
jointly since last 50 years which belonged to the appellants and their ancestors. P. W. 5 is the victim herself and p.
W. 6 is the doctor who examined her. Thus, only the interested witnesses have been examined in this case who are
on inimical terms with the appellants as they have possessed their lands since last 50 years. The age of the victim
p. W. 5 has been assessed 45 years on the day of her deposition on 27/06/1994, where as per voters - list (ext. B)
her age in the year 1988 was 57 years, which is the voters list of jarmundi assembly constituency for the year 1988.
Thus, she has suppressed her age who is grand mother of her son's son. So i have to consider the evidence of
interested witnesses i. E. P. W. 1, p. W. 2 and p. W. 5, cautiously.

(9) P. W. 1 saw both the appellants fleeing away from the sugarcane field when he was informed by victim sugani
devi (p. W. 5) that she was ravished by both of them. Even then, this witness p. W. 1, who is uncle of the victim and is
in joint cultivation of the lands of these appellants along with p. W. 2 chhotu thakur (husband of the victim) , did not
go to the village with victim sugani devi (p. W. 5) nor he took her to the police station which is hardly 6 km. Away
from the place of occurrence. Neither the p. W. 1 nor the informant sugani devi (p. W. 5) informed anybody else in
the village. P. W. 2 chhotu thakur, husband of sugani devi, returned home on the same day at 7. 00 - 8. 00 p. M. Night.
He found his wife weeping who narrated that she was raped by both these appellants in the sugarcane filed on the
bank of the river. Her age was given by this witness to be in between 30 - 35 years which is contradictory statement
with that of voters list of the year 1988 in which he mentioned the age of his wife to be 57 years. He did not go
taking his wife to the police station, rather on the next day morning i. E. 1/07/1990 he went to the p. S. Along with
his wife at 7. 30 a. M. The o. C. Was not present there, hence reader of the police station did not record the first
information report. They waited for arrival of the o/c. When he came to the police station, the o/c recorded her
statement on which p. W. 5 gave her l. T. I. And p. W. 2 signed on it (ext. 1). P. W. 5 sugani devi was sent for
examination to deoghar hospital. On that day, they remained at the police station and next day, went to deoghar
hospital, p. W. 2 and p. W. 1 have admitted that they cultivate the lands recorded in the name of jalal sah and lallu
sah, agnates of the appellants. The plea taken by p. W. 2 chhotu thakur that he obtained the land in bhudan is
without any corroboration. He has not produced any receipt issued to him in respect of lands given to him in
bhudan. He claims that he is in possession of the lands of the appellants on the basis of deed of gift and a decree
obtained in his favour on the basis of that deed of gift, which was recorded in the name of mahajan sah. He admits
that in the recent survey settlement, all the three plots which he claims to have been gifted, were recorded in the
name of mahajan sah. He claimed those plots in the recent survey settlement but that could not be settled in his
favour. He admits that the lands of appellant - bodho sah are in the name of sugani devi (p. W. 5). The i. O. Has not
been examined to support the statement of p. W. 5 sugani devi that she handed over sari and petticoat, which were
bloodstained. P. W. 5 sugani devi has alleged regarding commission of rape on her. She did not inform anybody else
in the village, nor she went to the police station. Her uncle p. W. 1, who knew about the commission of rape on her,
did not accompany her up to their village, although they are of the same village and it was evening hour at about 5.
00 p. M. Her husband when returned in the evening at about 10. 00 p. M. , then she narrated him. But they did not
inform any of the villagers, nor they went to the police station. Next day, they went to the police station and in the
evening at about 9. 00 p. M. , when the o/c returned to the police station, then her statement was recorded. Next
morning, she was sent to deoghar hospital along with chaukidar for her medical examination. She admits that her
son lal - mohan bhandari was married 10 years ago who had also a son, but he died. One daughter, aged 3 years,
also died. Another daughter sanyukata kumari of lalmohan is aged about 6 years. The informant was ravished in the
sugarcane field where 10 - 15 sugar - cane plants were broken which were hardly one "bitta" in height. P. W. 6 dr.
(smt.) sardha singh examined sugani devi on 2 - 7 - 1990 at 11. 45 a. M. She did not find any sign of violence on the
body and private part, nor semen was found on the clothes. The clothes were preserved by the police which she had
worn at the time of committing rape, on her. She took vaginal sperm and sent for pathological examination to sadar
hospital, deoghar. As per pathological report, epithelial cell was present, leocoyte present, spermatozoa present. R.
B. C. A few present. She found sign of recent intercourse and the age of the victim was more than 30 years. She
issued injury report (ext. 2). The spermatozoa were sent for pathological examination without any seal and cover.
She even does not remember as to who did pathological examination. She opined regarding sign of recent
intercourse on the basis of pathological report. She also deposed that sperms remain alive only for 24 hours.

(10) Admittedly there is long standing enmity in between accused the appellants and the p. Ws. Who are interested
witnesses. The lands of the appellants are being cultivated by p. W. 1 and p. W. 2. Who are cultivating jointly since

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more than 50 years of the lands of the appellants, which are recorded in the name of ancestors and agnates of the
appellants. Land of appellants bodho sah has been also shown in the name of victim lady p. W. 5 sugani devi, wife
of p. W. 2. The lands are not transferable, even then the husband of the victim p. W. 5 and her uncles p. W. 1 are
forcibly and illegally claiming the lands and the proceeding is still pending regarding entries in the recent survey held
in the area. The alleged occurrence took place on 30 - 6 - 1990 at 5. 00 p. M. P. W. 1 saw both the appellants fleeing
away from the sugarcane field, but neither he nor the victim p. W. 5 informed the alleged occurrence to anyone in the
village. Police was also not informed. At about 7. 00 - 8. 00 p. M. When p. W. 2 returned back to his house from
deoghar then found p. W. 5 weeping who narrated him the episode which took place upon her. Even then p. W. 2 did
not inform the villagers nor he went to inform the police to lodge the case. On the next day also, he did not inform
anyone in the village and went to the police station where the fardebeyan (ext. 3) of p. W. 5 was recorded on 1 - 7 -
1990 at 9. 30 p. M. At that night, they remained at the police station itself. The victim was not examined by any
doctor till that time. On 2 - 7 - 1990 at 11. 45 a. M. Victim p. W. 5 was examined by dr. (smt.) sardha singh (p. W. 6)
who found recent sign of rape on her and spermatozoa present. However, she did not find any injury of violence on
her person or any injury on her private part. The doctor had not mentioned the time of the alleged commission of
rape upon her, but she simply opined that the intercourse was recent one. This can be possible as two night p. W. 5
remained with her husband (p. W. 2) and on the third at about 11. 45 a. M. , she was examined by the doctor. So the
symptom of recent intercourse does not lead towards conclusion that she was ravished on 30 - 6 - 1990 at 5. 00 p.
M. Which should be 40 - 42 hours from the time of her examination by p. W. 6 dr. Smt. Sardha singh. The conduct of
these interested witnesses p. W. 1, p. W. 2 and p. W. 6 is quite unnatural as they did not inform anyone in the village
which shows that the delay in recording the fardbeyan (ext. 3) of the victim p. W. 5 seems to be full of concoction,
embellishment and after thought in a well planned way to implicate both these appellants in a rape case committed
on her who is nearing 60 years of age as per voters list (ext. B) p. W. 6 did not find any injury on the person of the
victim p. W. 5 sugani devi, who has alleged that she was laid down on sugarcane field. The stump of sugarcane
plants were crushed. But no injury on the back portion of the victim p. W. 5 was found. Non - examination of the i. O.
In this case has caused prejudice to defence who could not take contradiction and the p/o could not be established.
The interested witnesses have purposely suppressed the age of sugani devi (p. W. 5) and have deposed that at the
time of alleged occurrence, she was aged about 30 years, whereas she was grand mother at that very time. The age
of appellant - arjun sah was assessed 30 years on 10 - 7 - 1995 and that of appellant bodho sah aged about 45
years. In view of these circumstances, i find that these appellants would not have ravished an aged lady. On the
other hand, i find that these interested witnesses i. E. P. W. 1, p. W. 2 and p. W. 5, have implicated these appellants in
a rape case so that they may remain behind the bars and their lands which are still in dispute, would be possessed
and cultivated by these witnesses. Non - examination of any of the independent witnesses of the village also creates
doubt in the prosecution story which is a preplanned case by the interested witnesses. The police was informed
after two days of the alleged commission of rape upon sugani devi. In view of these facts, i find that the prosecution
case is full of doubt p. W. 1 and p. W. 2 are hearsay witnesses and the only evidence is of p. W. 5 who claimed that
she was ravished and the evidence of p. W. 1 sukhdeo thakur is that he saw fleeing away both these appellants from
the sugarcane field and the commission of rape upon sugani devi was narrated by her to him. As i have considered
above that the conduct of these three witnesses is quite unnatural as they did not inform anyone. On the other hand,
they have admitted that they are cultivating the lands of these appellants for more than 50 years. The manner in
which they have possessed the lands of these appellants is also contradictory as to whether they got the lands in
bhudan or got it recorded in their names on the basis of gift deed executed in their favour as they have not produced
any document in support of possessing the lands of the appellants. The delay in recording the fardbeyan (ext. 3) of
the victim p. W. 5 and her examination by the doctor (p. W. 6) also seem to be after thought and a managed one. The
learned court below has not considered these evidence meticulously and erroneously came to the conclusion
holding the charge under s. 376, ipc proved against these appellants, which cannot be sustained in the facts and
circumstances and the evidence considered above by me in respect of the interested witnesses.

(11) In the result. I find merit in this appeal. The only reason to implicate accused persons, these appellants, seems
to be grabbing of the lands when they failed to possess the lands legally and in the recent survey settlement, the
lands were recorded in the name of the appellants for which a proceeding is pending, then they have chosen the
other method to implicate these appellants in such a case so that they may remain behind the bars till their lives and
the interested witnesses may enjoy their lands by possessing and cultivating.

(12) In the result, this criminal appeal is allowed and the appellants are acquitted. The conviction and sentence
passed by the learned court below is hereby set aside. As both appellants are in custody, hence it is ordered that

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they be released forthwith if not wanted in any other case.

(13) Vishnudeo narayan, j. : - i agree. Appeal allowed.

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