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2003 Supreme(Pat) 470
PATNA HIGH COURT
Chandra Mohan Prasad, J.
Hari Mian @ Haro Mian
Versus
State Of Bihar
Criminal Appeal No. 77 of 2002 ;
Decided On : APRIL 23, 2003
The reliability and absence of infirmities in the victim's testimony are crucial for a conviction based on sole testimony.
Headnote:
Rape - Indian Penal Code - Sections 376, 458 - The court discussed the evidence presented by the victim informant and the infirmities in her testimony, including lack of corroboration, absence of means of identification, and discrepancies in medical evidence. The court found that the prosecution failed to prove the charges beyond a shadow of doubt, leading to the acquittal of the appellant.
Fact of the Case:
The victim informant alleged that she was raped by the appellant and another accused, but several witnesses turned hostile, and the medical evidence had discrepancies.
Finding of the Court:
The court found that the prosecution failed to prove the charges beyond a shadow of doubt, leading to the acquittal of the appellant.
Issues: Lack of corroboration, absence of means of identification, discrepancies in medical evidence, and infirmities in the victim informant's testimony.
Ratio Decidendi: A conviction based on the sole testimony of the victim must be reliable and free from infirmities. In this case, the prosecution failed to prove the charges beyond a shadow of doubt.
Final Decision: The appellant was acquitted due to the prosecution's failure to prove the charges beyond a shadow of doubt.
CHANDRA MOHAN PRASAD, J.
1. This appeal arises out of the judgment dated 24th of December 2001, passed by the 2nd Additional Sessional Judge, Banka in Sessions Trial No. 29 of 1984 whereby the appellant has been convicted under Sections 376 and 458 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under each count. However, the sentences were directed to run concurrently.
2. The victim informant Bibi Jaitun came to the Officer-in-Charge of Banka Police Station on 30.1.1978 along with her uncle and gave a written report i.e.fardbeyan alleging that in the preceding night at about 10 Oclock while she along with her dewar Adbul @ Mahboob aged ten years was sleeping in her house after completing her meal, her villager Hari Mian (Appellant) and Jattu Mian accused (absconding) came and they pushed the door from the outside due to which the door opened. Jattu Mian caught hold of her dewar and Hari Mian (appellant) came to her and started lifting her sari. She tried to raised hulla but Hari Mian gagged her mouth with cloth and he (Hari Mian), carrying a chhura threatened to kill her if she raised hulla. The informant further alleged that Hari Mian penetrated his penis into her vagina and ejaculated sperm inside her private part and thereafter Jattu Mian also came and committed rape on her making ejaculation inside. Then the two accused went away threatening to kill her if the occurrence was disclosed to anybody. After the departure of the accused the informant and her dewar raised hulla and the witnesses as named in the written report came there and they saw the accused fleeing away. The informant further alleged that her husband was working at Asansol, therefore, weeping she went to her mothers house and from there she came to the police station with her uncle and gave the written fardbeyan and put her LTI on the same.
3. As many as nine witnesses have been examined by the prosecution. PW 1 Abdul Mian said to be the dewar of the victim informant has turned hostile and he deposed that he knows nothing about the occurrence and that he does not know if any occurrence had ever taken place with respect to Bibi Jaitun.
4. PW 2 Sakina Bibi, PW 3 Munshi Mian,. PW 4 Doman Mian and PW 5 Israil Mian who are said to be the co-villagers have also turned hostile and they have said that they know nothing about the occurrence. The hostile witnesses have denied to have made any statement before the police supporting the case of the prosecution. PW 9 Samir Singh is a formal witness who has proved the writings of the formal first information report marked Ext. 3.
5. PW 6 Bibi Jaitun is the informant herself. She deposed that on the night of occurrence at 10 p.m. while she was sleeping in her house with her dewar aged about ten years the appellant Hari Mian and other accused Jattu Mian pushed the door from outside due to which the door opened and then Jattu Mian caught hold of her dewar and appellant Hari Mian committed rape on her by lifting her sari and he also penetrated his penis inside her private part. She further deposed that at the time of occurrence the accused had gagged her mouth with cloth and appellant Hari Mian also threatened her with chhura saying that she would be killed if she raised hulla. Thereafter she further alleged that Jattu Mian also committed rape on her making ejaculation inside the private part and then the accused persons fled away. She raised hulla. Then the villagers came and saw the accused fleeing away. At para 10 of her examination she deposed that accused Jattu is her bhagina and appellant Hari Mian is her nephew. She had given the report to the darogaji and darogaji thereafter sent her for medical examination to the doctor who examined her. She identified the appellant and other accused. In paragraph 8 of her cross-examination she deposed that the door was closed with sackle inside the door but the sackle was not very strong and that it had broken in two pieces. At paragra
