Manoj Kumar Tatma vs The State Of Bihar
2021 Latest Caselaw 4635 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.5171 of 2019
       Arising Out of PS. Case No.-398 Year-2008 Thana- ARARIA District- Araria
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MANOJ KUMAR TATMA Son of Gulabi Tatma Resident of Village- Baturbari, Masjid Tola, P.S.-Tarabari, District-Araria.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s     :        Mr.Vikram Deo Singh, Advocate
                        :        Mr.Manish Kumar, Advocate
                        :        Mr. Ziaul Quamar, Advocate
For the Respondent/s    :        Mr.Syed Ashfaque Ahmad, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 14-09-2021 The sole appellant-Manoj Kumar Tatma, has

challenged, his conviction for offences under Sections 366 and

376 IPC recorded by judgment dated 18.10.2019 passed in S. Trial

No.431 of 2009 corresponding to CIS No.3892 of 2014 arising out

of Araria (Tarabari) P.S.Case No.398 of 2008. The learned Trial

Judge (Additional Sessions Judge-II, Araria) has sentenced the

appellant to undergo rigorous imprisonment for three years and to

pay a fine of Rs. 5,000/- for offence under Section 366 IPC. Seven

years imprisonment has been awarded for offence under Section

376 IPC alongwith a fine of Rs.5,000/-. In default of payment of

fine, the appellant would undergo further three months in jail for

both the aforesaid offences. The sentences are to run concurrently.

There is direction for payment of half of the fine amount to the Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

victim. The order of sentenced dated 25.10.2019 is also under

challenge in this appeal.

2. The prosecution case as disclosed in the written

report dated 29.07.2008 of Ram Chandra Tatma (P.W.9) is that on

28.07.2008 at about 10.00 A.M. he was sleeping at his shop in

Mumtaj market. The mother (P.W.7) came and disclosed that

daughter of the informant has been taken away by the appellant, a

co-villager with intent to marry with her. Thereafter, the informant

and his brother Kishan Lal Tatma (P.W.6) started searching out the

victim girl (P.W.8) at the Registration Office, Araria and the

railway station thereat besides at other places including residence

of the relatives but could not get trace of the two. The victim

daughter of the informant was already married two months back

with Raj Kumar Tatma of village Kubari. It is alleged that

chaukidar-Gulabi Tatma (father of the appellant), chaukidar-Tara

Devi, the step-mother of the appellant, in collusion, abducted the

victim with intent to get her married with the appellant.

3. On the basis of written report aforesaid vide Ext.-

1, Araria (Tarabari) P.S.Case No.398 2008 was registered and after

completion of the investigation, the police submitted chargesheet

against the appellant and investigation against the parents of the

appellant was kept pending which was subsequently concluded Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

and the parents faced trial in S.Tr.No.505 of 2010 which resulted

in their acquittal as orally informed by learned counsel for the

parties.

It is worth noting that informant of this case was

examined in S.Tr.No.505 of 2010 on 01.02.2012 as P.W.7.

Certified copy of his deposition is Ext.-A which would be referred

later on.

4. The defence of the appellant is that probably it was

a case of love affairs between the victim an adult and the appellant

who are neighbours and the marriage of the victim was solemnized

against her wishes. Consequently, she eloped with the appellant

and the criminal case was instituted to put undue pressure for

wrongful gain.

5. Mr. Vikram Deo Singh, learned counsel for the

appellant assails the impugned judgment and order of sentence on

the ground that the testimony of the victim lady (P.W.8) would

show that she never made any protest in being in physical relation

with the appellant even though she had ample opportunity because

during alleged period of her abduction she was kept in the family

houses of two different persons on two different occasions and in

both the families, there were females and the victim lady had

opportunity to meet with those females alone but she did not make Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

any complaint that the appellant had abducted her and was

committing sexual assault against her without her consent in the

house of those persons. Learned counsel for the appellant submits

that there are lots of contradictions in the manner of elopement of

the victim lady. Hence, bare statement that the victim was

forcefully taken away by the appellant and other co-accused and

the appellant forcefully ravished the victim without her consent

would not make any difference in coming to the conclusion that

the prosecution miserably failed to prove the charges against the

appellant. Learned counsel for the appellant contends that the

prosecution witnesses have admitted that there is old enmity

between the parties. The victim lady had admitted that she had

lodged a case of rape against another co-villager and soon she

resiled from this statement. The overall, conduct of the victim does

not inspire confidence that she is a "sterling witness".

6. To contra, Mr. Syed Ashfaque Ahmad, learned

A.P.P. for the State contends that once the victim says that she was

sexually exploited without her consent the court would presume

"no consent" and for trivial infirmities or lapses in the prosecution

evidence the victim cannot be disbelieved. The law is settled that

the testimony of the victim of rape stands to some extent on better

footing to that of an injured witness for the reason that no lady Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

living in tradition bound non-permissive Indian society would

speak against her own dignity and self-respect just to falsely

implicate some innocent person.

7. The prosecution has examined altogether 11

witnesses. P.W.1-Samir Ansari, P.W.2-Sk. Fekan and P.W.3 Gulai

Tatma have deposed that they known nothing about the

occurrence. These witnesses have been declared hostile by the

prosecution and their attention has been drawn to the statement

made under Section 161 Cr.P.C. before the police.

A witness is said to be hostile when he has made some

statement supporting case of the prosecution in the past and is not

consistent with his earlier statement while deposing before the

court. Besides confronting the hostile witnesses with his earlier

statement as required under Section 145 of the Evidence Act, the

earlier statement must also be brought on the record to ensure that

the witness is really hostile. Attention, of P.W.11-Narendra Kumar

the investigating officer, was not drawn to the statement made by

these witnesses before him, hence, evidence of previous statement

is not on the record. Therefore, it cannot be treated that these

witnesses are really hostile witnesses.

8. P.W.-4 Shiv Lal Tatma is cousin brother of the

informant and is a hearsay witness on the occurrence. P.W.5- Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

Manki @ Manti Devi is wife of P.W.6-Kishan Lal Tatma. Kishan

Lal Tatma is full brother of the informant of this case. P.W.7-Ugiya

Tatma is mother of the informant. These witnesses claimed to be

eye witnesses of the occurrence of taking away of P.W.8 by the

appellant and others. According to P.W. 5, the mother of the

appellant namely Tara Devi, a co-accused took P.W.8 on the

pretext of plucking vegetables. Thereafter, Gulabi Tatma and Tara

Devi, both parents of the appellant, forcefully got the victim seated

on the motorcycle and appellant fled away alongwith the victim. In

para-7 of the cross-examination, the witness deposed that when the

appellant was taking away the victim lady on the motorcycle only

she and her husband P.W.6 were there. Others had gone to work in

their field or at the place of their duty. According to P.W.6 he was

not at the place of occurrence alongwith P.W.5 at the time rather he

was at Mumtaj Chowk in his shop. He had only seen the appellant

and victim going on the motorcycle. This witness not only

contradicts the claim of his wife P.W.5 that both were there at the

time of alleged abduction of the victim lady rather P.W.6

contradicts the victim lady P.W.8 also, as victim lady had deposed

that when the appellant was carrying her on the motorcycle, father

of the appellant, namely, Gulabi Tatma was also sitting behind her

on the same motorcycle, and was there all along till they got a boat Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

to cross the river to go to Katihar. P.W.7-Ugiya Tatma has deposed

that Gulabi Tatma and Tara Devi the parents of the appellant came

to her house and took P.W.8 to their own house and thereafter the

appellant took the victim lady on a motorcycle to village Belbat. In

para-3, she deposed that she had seen the appellant going

alongwith the victim lady but she did not protest or obstruct them.

According to this witness, P.Ws.5 and 6 were not there at the time

of occurrence. In para-8 she admitted that only appellant-Manoj

Kumar Tatma had taken the victim on the motorcycle.

9. P.W.8 the victim lady deposed that Gulabi Tatma,

the father of the appellant was also there on the motorcycle

alongwith the appellant and they took her to Hasanpur. If P.W.8 is

believed that Gulabi Tatma was also there all along up to

Kisanganj, it falsifies the claim of other witnesses, as referred

above, to have witnessed any part of the occurrence. This is a

material contradiction in the prosecution evidence and cannot be

separated to record guilt of the appellant and innocence of Gulabi

Tatma rather creates serious doubt on the trustworthiness of the

prosecution witnesses to be eye witness as claimed.

10. The sole testimony of the victim lady on the point

of the occurrence of her abduction cannot be relied upon in view

of the deposition of the informant of this case recorded in Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

S.Tr.No.505 of 2010 vide Ext.A wherein he stated that the mother

(P.W.7) disclosed that the victim lady fled away. The prosecution

witnesses including the victim lady are consistent that on the date

of occurrence she was in between 21-22 years. Ext.-A would show

that the informant admitted that he had several litigations with the

father of the appellant and now all the matters have been

compromised and settled including the trial of co-accused-Gulabi

Tatma. The witness said that under some misconception he had

lodged the case. There is no reason that the appellant would not

rely on the aforesaid testimony to raise doubt against the

prosecution version. Besides admission of the informant, the three

prosecution witnesses P.Ws.1,2 and 3 have admitted that there are

lots of cases between Gulabi Tatma, the father of the appellant and

Ram Chandra Tatma, the informant of this case. The prosecution

has drawn attention of P.W.1 to his statement under Section 161

Cr.P.C. wherein P.W.1 stated that on the date of occurrence, he was

at the Bank and Chaukidar Gulabi Tatma was also there at 10.30

A.M. on his duty. This suggestion of the prosecution goes to make

out a case that in fact Gulabi Tatma was not there at the time of so

called abduction of the prosecutrix and the prosecutrix is not

making truthful statement of the entire occurrence. Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

11. According to P.W.8, after abduction she was taken

to Hasanpur. She was kept at Hasanpur for one day and thereafter

taken to Kisanganj. At Kisanganj, she remained for 5-6 days.

Thereafter, she came to village-Belbat and remained there for 4-5

days and in these periods, the appellant was in physical relation

with her. In para-11 of her deposition, she admits that when Tara

Devi had come to call her she was alone in her house. The

aforesaid statement belies the claim of other witnesses that they

had actually seen the incident. The witness admitted in para-21

that at Hasanpur she stayed in the house of one Dharkab. The

females were also in that house. The appellant had slept alongwith

the victim in the night. In para-16, she stated that at Kisanganj she

stayed for 4 to 5 days in a house. She does not know the name of

owner of the house, however, one male, a female and children

were there in the house. There also she used to share bed with the

appellant. For attending call of nature, she used to go outside

alongwith female member of the family. She did not make any

complain of the act of the appellant in ravishing her. From

Kisanganj she came to village Belbat on the motorcycle of the

appellant sitting behind the appellant. At Belbat, the police came

and found the appellant and the victim lady in the house. At village

Belbat, she stayed in the house of a family where female members Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

were also there. There also she did not disclose about the previous

act of the appellant committed at Kisanganj or at Hasanpur.

P.W.9 the informant of the case has supported the

occurrence as hearsay witness. P.W.10-Dr.Husne Ara Begum had

medically examined the victim lady on 09.08.2008. The Doctor

did not find any recent sign of sexual assault, however, noticed

that the victim lady was carrying pregnancy of 1 ½ to 02 months.

P.W.11- Narendra Kumar is investigating officer of the case, he has

deposed about the investigation done by him.

12. Thus on careful scrutiny, of the prosecution

evidence, it is noticed that the prosecution evidence is conflicting

and contradictory on the manner of leaving the house by the victim

lady alongwith the appellant. What the victim has deposed

regarding manner of her abduction is not corroborated by her own

family members who claimed that they were also present in the

house at the time of occurrence. Therefore, the prosecution

evidence is doubtful to prove the charge under Section 366 IPC

against the appellant.

On consideration of the sole testimony of the

prosecutrix and her conduct, as deposed by her, would reveal that

she was not only a major knowing the consequences of her

relationship with the appellant rather was in consensual Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

relationship with the appellant if she is believed at all. Therefore,

charge under Section 376 IPC also fails.

13. In the case of Rai Sandeep @ Deepu, reported

in 2012 (8) SCC 21, the Hon'ble Supreme Court said that before

relying on the sole testimony of the prosecutrix, the Court must be

satisfied that the prosecutrix is a "sterling witness".

Para 22 of the judgment is being reproduced below:

"22. In our considered opinion, the 'sterling witness'

should be of a very high quality and caliber whose

version should, therefore, be unassailable. The Court

considering the version of such witness should be in

a position to accept it for its face value without any

hesitation. To test the quality of such a witness, the

status of the witness would be immaterial and what

would be relevant is the truthfulness of the statement

made by such a witness. What would be more

relevant would be the consistency of the statement

right from the starting point till the end, namely, at

the time when the witness makes the initial statement

and ultimately before the Court. It should be natural

and consistent with the case of the prosecution qua

the accused. There should not be any prevarication Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

in the version of such a witness. The witness should

be in a position to withstand the cross- examination

of any length and howsoever strenuous it may be and

under no circumstance should give room for any

doubt as to the factum of the occurrence, the persons

involved, as well as, the sequence of it. Such a

version should have co-relation with each and

everyone of other supporting material such as the

recoveries made, the weapons used, the manner of

offence committed, the scientific evidence and the

expert opinion. The said version should consistently

match with the version of every other witness. It can

even be stated that it should be akin to the test

applied in the case of circumstantial evidence where

there should not be any missing link in the chain of

circumstances to hold the accused guilty of the

offence alleged against him. Only if the version of

such a witness qualifies the above test as well as all

other similar such tests to be applied, it can be held

that such a witness can be called as a 'sterling

witness' whose version can be accepted by the Court

without any corroboration and based on which the Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

guilty can be punished. To be more precise, the

version of the said witness on the core spectrum of

the crime should remain intact while all other

attendant materials, namely, oral, documentary and

material objects should match the said version in

material particulars in order to enable the Court

trying the offence to rely on the core version to sieve

the other supporting materials for holding the

offender guilty of the charge alleged".

14. To sup up, in the case on hand, prosecution

evidence discloses that the parties are next door neighbours,

however, old litigations are there. Sharp contradictions in the

testimony of the eye witnesses regarding manner of alleged

abduction and identity of the person involved leaves a lot of room

to doubt the real incident. The prosecution case suffers from

suppression of material facts on the real incident.

Since the victim was married two months back and was

neighbour of the appellant, the prosecution evidence suggests that

the chances of elopement with freewill cannot be completely ruled

out. The conduct of the victim in not making any protest or

disclosure of the act of the appellant to others though she had

enough opportunity and occasion for the same, goes to show that Patna High Court CR. APP (SJ) No.5171 of 2019 dt.14-09-2021

she was in consensual relationship with the appellant and old

enmity between the two families might be a reason for this case.

Moreover, the testimony of the victim suggests that she is not a

"sterling witness". The aforesaid circumstances leaves the

prosecution case doubtful and unworthy of acceptance to prove the

charges. The learned Trial Judge has not considered the aforesaid

infirmities in the prosecution evidence. Hence, the appellant

deserves benefit of doubt.

15. In the result, the impugned judgment and sentence

are hereby set aside and the appellant is acquitted of the charges

levelled against him. The appellant is in jail, hence, let him be set

free at once.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR                AFR
CAV DATE                01.09.2021
Uploading Date          14.09.2021
Transmission Date       14.09.2021