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2021 Supreme(Pat) 702
IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Manoj Kumar Tatma - Appellant
Versus
The State Of Bihar - Respondent
Criminal Appeal (Sj) No. 5171 of 2019
Decided On : 14-09-2021
Mr. Vikram Deo Singh, Advocate, Mr. Manish Kumar, Advocate, Mr. Ziaul Quamar, Advocate, for the Appellant; Mr. Syed Ashfaque Ahmad, A.P.P., for the Respondent.
Headnote:
Indian Penal Code,1860 – Sections 366 and 376 – Kidnapping and rape – Conviction and sentence – Testimony of victim of rape stands to some extent on better footing to that of an injured witness for reason that no lady living in tradition bound non-permissive Indian society would speak against her own dignity and self-respect just to falsely implicate some innocent person – Prosecution has examined altogether 11 witnesses – These witnesses have been declared hostile by prosecution – Evidence of previous statement is not on record – Therefore, it cannot be treated that these witnesses are really hostile witnesses – Prosecution evidence is conflicting and contradictory on manner of leaving house by victim lady alongwith appellant – What victim has deposed regarding manner of her abduction is not corroborated by her own family members who claimed that they were also present in house at the time of occurrence – Prosecution evidence is doubtful to prove charge under Section 366 IPC against appellant – She was not only a major knowing consequences of her relationship with appellant rather was in consensual relationship with appellant if she is believed at all – Charge under Section 376 IPC also fails – Parties are next door neighbours, however, old litigations are there – Sharp contradictions in testimony of eye witnesses regarding manner of alleged abduction and identity of person involved leaves a lot of room to doubt real incident – Prosecution case suffers from suppression of material facts on real incident – Conduct of victim in not making any protest or disclosure of act of appellant to others though she had enough opportunity and occasion for the same, goes to show that she was in consensual relationship with appellant and old enmity between two families might be a reason for this case – Testimony of victim suggests that she is not a sterling witness – Impugned judgment and sentence set aside and appellant acquitted of charges levelled against him. (Paras 6, 7, 9, 12, 14 and 15)
Indian Evidence Act, 1872 – Section 145 – Hostile witness – A witness is said to be hostile when he has made some statement supporting case of prosecution in the past and is not consistent with his earlier statement while deposing before court – Besides confronting hostile witnesses with his earlier statement as required under Section 145 of Evidence Act, earlier statement must also be brought on record to ensure that witness is really hostile. (Para 7)
JUDGMENT
1. 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 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) PS. 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 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 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 c
