GANGA PRASAD MAHTO versus STATE OF BIHAR & ANR. on 26 March 2019

GANGA PRASAD MAHTO

v.

STATE OF BIHAR & ANR.

(Criminal Appeal No. 526 of 2019)

MARCH 26, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Penal Code, 1860:

s. 376 – Rape – Conviction by courts below – On appeal,held: It is evident from the facts of the case that prosecution failedto prove the case beyond reasonable doubt – Accused is entitled tobe acquitted.

Allowing the appeal, the Court

HELD: The complainant was not examined by the Doctorafter the alleged incident. In absence of any medical examinationdone, the prosecution did not examine any doctor in the trial insupport of their case. It was not disputed that similar type ofcomplaints were being made in past by the complainant againstother persons also and such complaints were later found false. Itwas also not disputed that there was enmity between the appellantand the husband of the prosecutrix, due to which their relationswere not cordial. It had also come in evidence that the prosecutrixwas in the habit of implicating all the persons by making wildallegations of such nature against those with whom she or/andher husband were having any kind of disputes. There was no eyewitness to the alleged incident and the one, who was cited aswitness, i.e., PW-2 was a chance witness on whose testimony, acharge of rape could not be established. So far as PW-1, husbandof the complainant, is concerned, he admitted that he was awayand returned to village the next day morning of the incident. Inthe light of the aforementioned reasons, the prosecution has failedto prove the case of rape alleged by the Complainant (PW-3)against the appellant beyond reasonable doubt. The appellant isacquitted from the charges leveled against him. [Paras 11, 12and 14] [23-C-G; 24-B]

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ACRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 526 of 2019.

From the Judgment and Order dated 30.01.2014 of the High Courtof Judicature at Patna in Criminal Appeal (SJ) No. 251 of 2002

Rajnish Kumar, Amrendra Singh, Shantanu Kumar, Advs. for theBAppellant.

Abhinav Mukerji, Ms. Bihu Sharma, Ms. Pratishtha Vij,Ms. Purnima Krishna, Advs. for the Respondents.

The Judgment of the Court was delivered byCABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderdated 30.01.2014 passed by the High Court of Judicature at Patna inCrl.A. No.251 of 2002 whereby the High Court dismissed the appealfiled by the appellant herein and upheld the order dated 24.04.2002 ofDthe 4[th] Additional District & Sessions Judge, Samastipur in Sessions TrialNo.233 of 1999.

3. The appeal involves a short point as would be clear from thefacts stated infra.

4. The appellant was prosecuted and eventually convicted for anEoffence punishable under Section 376 of the Indian Penal Code, 1860(hereinafter referred to as “IPC”) and sentenced to undergo rigorousimprisonment for 7 years by the Sessions Judge. The conviction andsentence was upheld by the High Court. The appellant (accused) is nowin appeal in this Court against his concurrent conviction/sentence.

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5. So, the short question, which arises for consideration in thisappeal, is whether the two Courts below were justified in convicting theappellant for an offence punishable under Section 376 IPC.

6. PW- 3 lodged a complaint on 15.12.1997 complaining thereinthat the appellant in the previous night at around 8.00 PM entered intoGher house when she was alone and threatened her by showing pistol andcommitted rape on her. This, in substance, was the allegation in theFIR, which was lodged by PW-3 on the next day of the incident.

7. The prosecution examined three witnesses. Hari Narain Singh(PW-1) is the husband of the complainant. Ram Udgar Singh(PW-2)

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claims to be the person living near the complainant’s house and PW-3 isthe complainant(prosecutrix).

8. As mentioned above, the Sessions Judge and the High Courtconvicted the appellant placing reliance on the evidence of threeprosecution witnesses.

9. Having heard the learned counsel for the parties and on perusalof the record of the case, we are constrained to allow the appeal and setaside the impugned order.

10. In our considered opinion, the prosecution has failed to provethe case of rape alleged against the appellant at the instance of thecomplainant(PW-3). This we say for the following reasons:

11. First, the complainant was not examined by the Doctor afterthe alleged incident. Second, in absence of any medical examinationdone, the prosecution did not examine any doctor in the trial in support oftheir case; Third, it was not disputed that similar type of complaintswere being made in past by the complainant against other persons alsoand such complaints were later found false; Fourth, it was also not disputedthat there was enmity between the appellant and the husband of theprosecutrix, due to which their relations were not cordial; Fifth, it hadalso come in evidence that the prosecutrix was in habit of implicating allthe persons by making wild allegations of such nature against those withwhom she or/and her husband were having any kind of disputes; Sixth,there was no eye witness to the alleged incident and the one, who wascited as witness, i.e., PW-2 was a chance witness on whose testimony,a charge of rape could not be established; and lastly, so far as PW-1,husband of the complainant, is concerned, he admitted that he was awayand returned to village the next day morning of the incident.

12. In the light of the aforementioned seven reasons, we are ofthe considered opinion that the prosecution has failed to prove the caseof rape alleged by the Complainant(PW-3) against the appellant beyondreasonable doubt. In other words, there is no evidence adduced by theprosecution to prove the commission of the offence of rape by theappellant on PW-3 and the evidence adduced is not sufficient to provethe case of rape against the appellant.

13. Both the Courts below were, therefore, not justified inconvicting the appellant for an offence punishable under Section 376

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AIPC and sentenced him to undergo rigorous imprisonment for sevenyears. He was entitled for acquittal.

14. In view of the foregoing discussion, the appeal succeeds andis accordingly allowed. The impugned order is set aside. The appellantis acquitted from the charges leveled against him. He is accordingly setBfree. His bail bonds are accordingly discharged.

Kalpana K. Tripathy

Appeal allowed.

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