Patna High Court
Jhandu @ Sundar Paswan vs The State Of Bihar on 10 January, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No. 2319 of 2017
Arising Out of PS. Case No.-10 Year-2001 Thana- DANIYAWAN District- Patna
======================================================
Jhandu @ Sundar Paswan son of Late Ramashish Paswan Resident of Arai
Benipur, P.S. Daniawan, District - Patna.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Kumari Anupam, Advocate
For the Respondent/s : Mr. A.M.P. Mehta, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 10-01-2024
1. Heard learned counsel Ms. Kumari Anupam
appearing on behalf of the appellant and learned APP Mr.
A.M.P. Mehta appearing on behalf of the State.
2. The present appeal has been preferred under
Section 374(2) of Criminal Procedure Code (in short "Cr.P.C.")
by above named accused/appellant, challenging the judgment of
conviction dated 12.06.2017 and order for sentence dated
17.06.2017
passed in connection with S. Tr. No. 1370 of
2011(arising out of Daniawan P.S. Case No.10 of 2001),
whereby and whereunder learned Additional District & Sessions
Judge-IV, Patna City convicted under Section 376/34 and under
Section 452/34 of I.P.C. and ordered to be sentenced to undergo
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
R.I. for a period of Ten years for the offence under Section
376/34 of I.P.C. each and a fine of Rs.15,000/- each and in
default of payment of fine, he shall further be served one year
imprisonment. Further, the appellant has been sentenced to
undergo R.I. for a period of 5 (five) years each for the offence
under Section 452/34 I.P.C. and a fine of Rs. 5000/- each and in
default of payment thereof, he has to serve sentence of three
months. Both sentences shall run concurrently.
3. The crux of prosecution case as it springs from the
fard-e-beyan of informant that on 3/4.5.2001 at about 12 A.M.,
while the informant was sleeping in her house alongwith her
two children, three accused persons entered into her house, to
whom she recognized as Jagdip Beldar, Moti Paswan, Jhandu
Dusadh. She has further stated that all three persons entered in
her room and raped her one after another, where 4-5 unknown
persons were standing in "Angan" (court-yard) armed with
"Lathi" & "Danda". She has further stated that her husband had
gone to other village for installing pump and her mother-in-law
was sleeping in another room in the same house. It had been
further stated that Jagdip Beldar tied her mouth with a
"Gamcha", Moti Dusadh caught hold her hands and Jhandu
Dusadh caught hold of her legs and they have committed rape
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
upon her one after another. It had been further stated that after
committing rape all the accused persons fled away alongwith
the 'Gamcha'. It has been further stated that upon raising alarm
Lal Bahadur Das (Bhaisur/Brother-in-law), Smt. Gunja Devi
and Mithlesh Das reached there to whom the complainant/
victim narrated the incident. The complainant/victim had further
stated that on the following day i.e. on 3.5.2001 Lal Bahadur
Das (Bhaisur/Brother-in-law) went to bring Lal Bihari Das, the
husband of the complainant and they come back to the house at
6 P.M. on 3.5.2001 and the complainant's Bhaisur informed
about the occurrence to his brother Lal Bihari Das. It is further
stated in the complaint petition that both the brothers alongwith
complainant went to the house of accused and asked them why
they had committed the crime, upon which the accused
threatened them to face consequences if they would report the
matter to the Police, upon which they returned to their houses. It
is further stated that on the following day ie. on 4.5.2001 at 9
A.M. the complainant alongwith her husband went to Police
Station Daniawan and matter was reported to the Police, upon
which the Police said that it would come to the place of
occurrence at the evening but the Police did not come. It had
also been stated that the complainant's husband again visited to
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
the Police Station on 19.5.2001 and learnt that the Police has not
registered the case in collusion with the accused.
4. Due to aforesaid non co-operation of police, having
no option left a complaint Case No. 354(c)/2001 was lodged
before CJM Patna, which was transferred to concerned police
station to investigate after lodging FIR under Section 156(3) of
Cr.P.C., where police registered a case being Daniwana P.S.
Case No. 10 of 2001 for the offence under Sections
376/448/504/345 of the I.P.C. After completion of investigation,
the police submitted charge-sheet against all accused persons
including appellants under Sections 452/376/504/34 of I.P.C.,
where learned Jurisdictional Magistrate took cognizance for
afore-mentioned offences and after compliance of Section 207
of Cr.P.C., committed case to session court for trial and disposal
as per mandate available under Section 209 of Cr.P.C.
5. Learned trial Court after perusal of record and
materials/evidences collected during course of investigation
framed charges against accused persons under Sections
452/376/504/34 of I.P.C, which were duly explained to accused
persons including accused/appellant, where he pleaded "not
guilty" and claimed trial.
6. On commencing trial, to establish its case before the
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
learned trial court, the prosecution altogether examined three
witnesses, namely, Mithlesh Das (PW-1), Mahazani
Devi/victim(PW-2), Lal Bahadur Das (PW-3).
7. After closure of the prosecution case, the
statement of accused/appellant was recorded under Section 313
of Cr.P.C. by putting all incriminating circumstances/evidences
as surfaced during trial, where he had shown their complete
innocence by denying all incriminating circumstances/evidences
explained to him.
8. In defense no evidence was produced.
9. After conclusion of trial, learned trial court by
taking note of evidences available on record, legal positions and
argument advanced by the parties, convicted the accused/
appellant for the offence under Sections 376/34/452 of I.P.C.
and sentenced to undergo R.I. for a period of ten years for the
offence under Section 376/34 of I.P.C. each and a fine of
Rs.15,000/- each and in default of payment of fine, they shall
further to undergo one year imprisonment. Further the appellant
has been sentenced to undergo R.I. for a period of 5 (five) years
each for the offence under Section 452 I.P.C. and a fine of Rs.
5000/- each and in default of payment thereof, he has to serve
sentence of three months. Being aggrieved, with aforesaid order
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
of conviction and sentence accused/appellant preferred the
present appeal.
10. Hence, the present appeal.
11. Learned counsel appearing on behalf of the
appellant-convict submitted that the trial court has erred in
convicting the accused for the offences under sections 376 and
452 of the IPC. It is submitted that neither the I.O. of the case
has been examined nor the lady doctor who had medically
examined the victim, had been examined by the prosecution. It
is stated that the learned trial court has erred in properly
appreciating the fact that medical report does not support the
case of the prosecution. As per the medical report, no injury
whatsoever, either on external part of the victim or on the
private part of the victim was found during examination and
even it is difficult to say that victim is sexually assaulted as also
no spermatozoa was found near genital organ of the victim.
Clothes of the victim were also not sent for chemical analysis,
but this aspect has not been fully considered by the trial court to
reach on the conclusion as to whether the alleged incident has
been committed or this is a case of false implication due to
previous enmity on the issue of Tar-tree. Even the chemical
examination did not reveal anything to substantiate the offence
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
of rape on the victim. While concluding the argument, learned
counsel submitted that no doubt, conviction in case of rape can
be secured on the basis of sole testimony of victim/prosecutrix
but she must qualify the criteria of "Sterling Witness", which is
calling in present case.
12. Learned counsel while arguing the matter relied
upon the legal report of Hon. Supreme Court in the matters of
[Raju and others v. State of Madhya Pradesh (2008) 15 SCC
133] and Rai Sandeep @ Deepu v. State (NCT) [(2012)8 SCC
21].
13. Learned Additional Public Prosecutor while
arguing for the State submitted that learned trial court has
rightly convicted the appellant/convict under section 376 and
452 of the IPC. Learned A.P.P. further submitted that the victim
except minor contradiction appears to be "Sterling Witness"
having no apparent reason to disbelieve her. It is pointed out that
on the ground of sole witness of rape victim, conviction can be
secured and in support of his submission, he relied upon legal
report of Vishnu @ Undriya (2006) 1 SCC 283.
14. Lower Court records and proceeding was
perused and also upon consideration of arguments as canvassed
by the learned counsel appearing on behalf of the parties, it
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
appears apposite to discuss evidence for the sake of re-
appreciation which is as under:-
15. PW-1 is Mithilesh Das, who has been declared
hostile by the prosecution. This witness has stated in his
evidence in chief that occurrence is of 2-5-01 at 12 hrs. night.
By that time he was in Patna and when he went after 3-4 days of
occurrence, he knew about that, but he has not remembered
about said knowledge and that his statement was not recorded
by the police. Learned Addl. PP has cross examined this hostile
witness with the permission of the court and drawn this attention
towards statement allegedly made by him before the police
previously supporting the prosecution case, but he has denied to
have made any such statement before the police.
15.1. In cross examination by the defence he has
stated that since he was in Patna, hence he did not get any
information about the occurrence. This witness has further
denied about dispute with accused persons of Tar tree and false
implication rather he has given his statement voluntarily. In the
court question he has stated that he was at Patna at Musllahpur
Haat to the house of Girja Babu where he was doing the work of
painting, but he denied to have remember the exact date of
doing said work there. Although this witness has been declared
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
hostile but his whole evidence cannot be discredited.
16. PW-2, Mahazani Devi, is victim herself. She
has stated that on the day and time of occurrence, she was
sleeping in the room, where accused Jagdip Beldar, Moti
Paswan, Jhnadu Paswan and Jai Nandan Paswan entered and
tied her mouth with red Gamcha. Accused Moti Dusadh tied her
hands and Jhandu Dusadh caught her legs and all the four
accused persons committed rape with her one by one and
threatened that if she filed any case then they would kill her. Her
husband and bhaisur were also threatened by accused persons
on next day for not to file any case. When the police failed to
register the case then only then, she filed the case in the court
from where the case was sent to police station for institution of
case. She has stated that she put her LTI on complaint petition
and police has also recorded her statement.
16.1. In cross examination she has stated that the
occurrence was held inside her house and there is no any gate
affixed in the door, consequently the door was opened and at the
time of occurrence, no other persons were present except her
and accused persons as on the day of occurrence her husband
had gone to village Falnama to affix the hand pump. Further she
has stated that she filed the case after two days of the occurrence
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
and after occurrence she came at Kankarbagh Colony where her
Nandosi(sister-in-law) lived. She has no any dispute with
accused persons. Further she has stated that at the time of
occurrence she had slept on the ground and she had wore sari,
which was stained during occurrence but due to poverty she
washed that sari. She has further stated that the blood was not
oozed from her hands, legs or from any part of her body and that
the occurrence is of 12 hrs. night and due to fear she could not
chase the accused persons.
17. PW-3 Lal Bahadur Das is Bhaisur/brother-in-
law of prosecutrix/victim and he has deposed that occurrence is
of 2/3-5-2001 at 12-1 hrs. night. By that time he was on the roof
of Ramdeo Das together with Mithilesh and 2-4 children. He
heard the sound of wife of his younger brother (Bhabhu)
Mahajani Devi and mother Girja Devi and thereafter, he along
with one, Mithilesh Das came to his house where his Bhabhu
and mother told that Jagdip Beldar, Moti Paswan, Jhandu
Paswan and Jai Nandan Paswan all the four persons have raped
her one by one. He has further stated that accused Jagdip Beldar
had covered her mouth with Gamcha and Moti Paswan had
caught her hand and Jhandu Paswan had caught her legs. He has
further stated that due to night, he could not go anywhere. The
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
husband of Mahajani Devi(victim) was not at home and he had
gone to affix hand pump at village Faldawa and on next
morning, he went to call him and returned along with his brother
at 6-7 hrs. evening and then they went along with 2-4 villagers
to ask the accused Jhandu and Moti as why they have
committed such occurrence, but they threatened to kill his whole
family, if case is filed. Then his brother and Bhabhi went to
Daniawan police station to lodge the case, but the police did not
register the case and told them to go and he will come in the
evening but the police did not come to his home and thereafter,
they filled the case in the court on 22 nd, whereafter the police
recorded his statement.
17.1. In cross examination he has stated that from
the roof of Radeo Das the house of Mahajani Devi is at distance
of 50 meters and there is KHAND in between them and he used
to sleep on the roof due to hot weather. Further he has stated that
his Bhabhu has two children one is son aged about 8-9 years and
another is girl child aged about 1- 1½ years. Further he has
been cross-examined on the point of boundary of the PO house.
Further he has denied the suggestion put by the defence by
negating false implication.
18. As per the statement in the complaint petition,
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
the alleged occurrence was said to had been taken place at 12
A.M. in the night of 2/3-5-2001 and the complaint in question
had been filed before the court of A.C.J.M., Patna City on
22.5.2001. The trial court has failed to appreciate that there is no
iota of evidence to support the case of the prosecution that the
victim and her husband on the next date i.e. on 4.5.2001, had
gone to the Police Station-Daniyama and matter was recorded
there upon which the Police said that they would come to their
residence, in the evening but the Police did not turn up and on
19.5.2001, when they again visited Police Station Daniyama,
they learnt that F.I.R. was not registered, then they filed
complain petition on 22.5.2001. For that statement of the victim
had been recorded by the Police on 27.05.2001 at Para-4 of the
case diary wherein the victim has stated that after the occurrence
the victim and her husband alongwith her children had fled to
Patna and stayed there in the residence of her "Nandoshi" and
from there she has lodged the complaint on 22.5.2001. She has
also stated that she had not gone to Police. For that trial Court
has failed to appreciate and consider that the victim P.W.2 has
stated in her deposition that she had gone to Kankarbagh Colony
(Patna) after the occurrence and this falsify the explanation that
the Police did not lodge the F.I.R.
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
19. From the impugned judgments and orders
passed by the learned trial court, it appears that the appellant has
been convicted solely relying upon the deposition of the
prosecutrix. Neither any independent witness nor even the
medical evidence supports the case of the prosecution. It has
also come on record that there was a dispute going on between
both the parties. It further appears that there is no eye witness in
this case and the only private witness who had been named as
witness in complaint petition namely Mithlesh Das has been
declared hostile as he did not support the case of the victim.
20. It cannot be disputed that there can be a
conviction solely based on the evidence of the prosecutrix.
However, the evidence must be reliable and trustworthy.
Therefore, now let us examine the evidence of the prosecutrix
and consider whether in the facts and circumstances of the case
is it safe to convict the accused solely based on the deposition of
the prosecutrix, more particularly when neither the medical
report/evidence supports nor other witnesses support and it has
come on record that there was an enmity between both the
parties.
21. With aforesaid factual aspects, oral and
documentary evidences in hand, it appears apposite to discuss
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
the legal ratio settled through different legal reports of Hon'ble
Supreme Cout as under:
In the matter of [Raju and others v. State of
Madhya Pradesh (2008) 15 SCC 133], it was held while
answering the reference in the following terns:
"11. It cannot be lost sight of that rape
causes the greatest distress and
humiliation to the victim but at the same
time a false allegation of rape can cause
equal distress, humiliation and damage
to the accused as well. The accused must
also be protected against the possibility
of false implication, particularly where a
large number of accused are involved. It
must, further, be borne in mind that the
broad principle is that an injured witness
was present at the time when the incident
happened and that ordinarily such a
witness would not tell a lie as to the
actual assailants, but there is no
presumption or any basis for assuming
that the statement of such a witness is
always correct or without any
embellishment or exaggeration.
12. Reference has been made in Gurmit
Singh case [(1996) 2 SCC 384 : 1996
SCC (Cri) 316] to the amendments in
1983 to Sections 375 and 376 of the
Penal Code making the penal provisions
relating to rape more stringent, and also
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
to Section 114-A of the Evidence Act with
respect to a presumption to be raised
with regard to allegations of consensual
sex in a case of alleged rape. It is
however significant that Sections 113-A
and 113-B too were inserted in the
Evidence Act by the same amendment by
which certain presumptions in cases of
abetment of suicide and dowry death
have been raised against the accused.
These two sections, thus, raise a clear
presumption in favour of the prosecution
but no similar presumption with respect
to rape is visualised as the presumption
under Section 114-A is extremely
restricted in its applicability. This clearly
shows that insofar as allegations of rape
are concerned, the evidence of a
prosecutrix must be examined as that of
an injured witness whose presence at the
spot is probable but it can never be
presumed that her statement should,
without exception, be taken as the gospel
truth. Additionally, her statement can, at
best, be adjudged on the principle that
ordinarily no injured witness would tell a
lie or implicate a person falsely. We
believe that it is under these principles
that this case, and others such as this
one, need to be examined."
In the context of "sterling witness", it would be
further apposite to refer paragraph 22 of the legal report in the
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
matter of Rai Sandeep alias Deepu v. State (NCT) [(2012)8
SCC 21].
"22 In our considered opinion, the
"sterling witness" should be of a very
high quality and calibre 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 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
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
have co-relation with each and every one
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 such similar tests to be applied,
can it 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 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."
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
22. No doubt from the above discussed legal
propositions, conviction can be secured on the basis of sole
testimony of prosecutrix/victim of the rape but she must qualify
the criteria of "sterling witness" in view of aforesaid legal
propositions. This court finds that victim, who was examined as
PW-2 in present case does not qualify the criteria of sterling
witness for the following reasons:
23. Firstly, this case was instituted on the basis of
complaint, which was filed on 22.05.2001 for the occurrence
which was lodged to be committed on intervening night of
02.05.2001, this delay at the first instance makes a doubt
regarding the occurrence as alleged. Secondly, in complaint
petition, it is averred categorically that accused persons, namely,
Jagdeep Beldar, Moti Paswan and Jhandu Dusad entered into the
house of victim and thereafter, they committed rape one after
another but during the course of trial victim stated that Jai
Nandan Paswan also committed rape upon her, which makes
material contradiction regarding allegation of rape as how a
victim can miss the name of person in her complaint petition
who committed rape upon her alongwith other co-accused
persons. Thirdly, victim categorically stated in her cross-
examination that at the time of occurrence, no one was present
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
in room but she stated in complaint petition, which is the basis
of present FIR that in very next room her mother-in-law,
namely, Gunja Devi was sleeping with her son, she is also a
cherge-sheeted witness but could not be examined before the
Court. She also stated in her cross-examination that on the date
of occurrence her mother-in-law was not present in the house
but subsequently, she stated that she was sleeping in next room.
Fourthly, she stated in her examination-in-chief that after the
occurrence, she went to her Bhaisur (Brother-in-law), who was
examined as PW-3 and narrated the occurrence but PW-3 stated
that he came to place of occurrence on alarm, which was raised
from his house and thereafter, occurrence was narrated to him
by victim. Fifthly, PW-3 stated that her wife was also present in
the next room of the house but victim is silent in her deposition
about her presence.
24. Having aforesaid evidence in hand, it cannot be
said that prosecution established its case during trial beyond
reasonable doubt and, as such, the judgment of conviction and
order of sentence is hereby quashed and set-aside.
25. Accordingly, the present appeal stands allowed.
26. The impugned judgment of conviction dated
judgment of conviction dated 12.06.2017 and order of sentence
Patna High Court CR. APP (SJ) No. 2319 of 2017 dt.10-01-2024
dated 17.06.2017, passed by the learned Additional District &
Sessions Judge-IV, Patna City in Sessions Trial No. 1370 of
2011 (arising out of Daniawan P.S. Case No. 10 of 2001) is set
aside. Accordingly, above named accused/appellant is acquitted
of the charges levelled against him. He is directed to be set at
liberty forthwith unless his detention is required in any other
case.
27. LCR, if any, be sent back to learned trial court
along with the copy of this judgment. Fine, if any, paid by
accused/appellant in furtherance of order of sentence, be
returned to him immediately.
(Chandra Shekhar Jha, J)
Archana/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 24.01.2024
Transmission Date 24.01.2024
