JUDGMENT
Vishnudeo Narayan, J.
1. Both the appeals at the instance of appellant-Ghosaban Singh as well as appellants-Hemant Purti, Maru Basi and Sunil Jamuda are directed against the impugned judgment and order dated 30-6-1997 passed in S.T. No. 434 of 1995 by Sri Tabarak Hussain, 1st Assistant Sessions Judge, Jamshedpur whereby and whereunder all the appellants were found guilty for the offence punishable under Section 376 of the Indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment for nine years. However, co-accused-Langra Say, Jogen Chaki and Krishna Banra alias Dharu Banra were not found guilty and accordingly, acquitted for the said charge.
2. The prosecution case has arisen on the basis of the fardebyan (Exhibit-3) of informant P.W. 1 Fulmani Kunkal, aged about 17 years, the alleged victim of ravishment, recorded by Vijay Kumar Singh O/C Parsudih P.S. on 28-12-1994 at 13.00 hours regarding the occurrence which is said to have taken place on 27-12-1994 at 17.30 hours in a Government School near Janigora Chowk, P.S. Parsudih District East Singhbhum and the case was instituted against the appellants and acquitted accused persons on that very day at 13.15 hours by drawing of the formal FIR (Exhibit 2) which was received on 30-12-1994 in the Court empowered to take cognizance.
3. The prosecution case, in brief, is that the informant works as a labourer in Jamco Company under a contractor and she is 17 years old and her duty hour is from 7 O’clock in the morning to 4 O’clock in the evening and when she was going on foot to her house in village Tupudang at 17.30 hours on 27-12-1994 and reached near Janigora Chowk, appellant-Ghosaban Singh, a resident of Janigora Chowk along with his co-villagers i.e. appellants-Maru, Sunil and Hemant prevented her from going ahead and asked her to proceed towards the Government School and on her protest, they forcibly took her towards the said school intimidating her and out of fear she went with them in the said school. It is alleged that all the appellants intended to ravish her in the said school on intimidation and on her protest they forcibly felled her on the ground and thereafter appellant-Ghosaban Singh pushed her on the floor and ravished her and thereafter appellants-Maru and Sunil and Hemant ravished her one after the other and in the meantime, their three friends also came there and they also ravished her. It is alleged that she does not know the name of the aforesaid three persons but she can identify them. It is alleged that she became unconscious due to the ravishment and she regained consciousness at about 4 O’clock in the morning and she went to her house and narrated the incident to her parent. It is also alleged that appellant-Ghosaban Singh had covetous eyes over her since long but she did not have any talk with her and due to this he has ravished her along with his three friends besides three unknown persons.
4. The appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this got up case. It has been contended on behalf of the appellant-Ghosaban Singh that he has been falsely implicated in this case as a result of vendetta as he had declined to perform his marriage with the informant.
5. The prosecution has examined in all eight witnesses to substantiate its case, P.W. 1 Fulmani Kunkal is the informant of this case and she is the alleged victim of ravishment in the occurrence in question and she is the only ocular witness of her alleged ravishment P.W. 2 Bhajo Kunkal and P.W. 3 Basi Kunkal are the father and mother respectively of the informant and they are the hearsay witnesses of the occurrence to have learnt in respect thereof from the informant P.W. 5 Shanti’ P.W. 6 Kali Dass and P.W. 7 Mangal Samad are also the hearsay witnesses of the alleged occurrence but they have turned hostile and do not support the prosecution case even as hearsay witnesses. P.W. 8 Shambhu Nath Roy is a formal witness who has proved the formal FIR and the fardbayan which are Exts. 2 and 3 respectively. The I.O. has not taken oath in this case, P.W. 4 Dr. Banita Sahay has examined the informant on 28-12-1994 at 16.45 hours and the report per her pen is Ext. 1 in this case. No oral or documentary evidence has been brought on the record on behalf of the defence.
6. The learned Court below relied upon the testimony of P.W. 1, the informant and came to the finding of the guilt of the appellants and accordingly convicted and sentenced them as stated above,
7. Assailing the impugned judgment as perverse, it has been submitted by the learned counsel for the appellants that the learned Court below did not at all scan and scrutinize the evidence on the record properly and has committed a manifest error in coming to the finding of the guilt of the appellants. It has been submitted that the evidence of P.W. 4 Dr. Banita Sahay (in) totally demolishes the case of the prosecution regarding the ravishment of the informant, as alleged and the medical witness has not found any external injury on the person of the informant as well as any internal injury in her vulva and vagina especially when the Informant was felled on the ground and ravished by seven persons one after the other. It has also been submitted that no sperm, dead or alive, was found in the vaginal swab of the informant and in this view of the matter, the medical evidence is not at all in conformity with the manner of the occurrence of the prosecution case as averred by the informant and also equally belies the testimony of the informant in respect thereof. It has also been submitted that there is no evidence on the record to corroborate the testimony of the informant specially when there are several houses and shops in the close vicinity of the Government School. It has also been contended that the entire prosecution case is highly improbable and the false implication of the appellants in this case cannot be totally ruled out in view of the fact that appellant-Ghosaban Singh had refused to solemnize his marriage with her. Lastly it has been contended that the appellants stand seriously prejudiced in this case due to the non-examination of the I.O. as they have been debarred of eliciting facts regarding the objective finding of the I.O. in respect of the place of occurrence and also controverting the evidence of the informant with her statement as recorded under Section 161 of the Cr. P.C. and viewed thus, the impugned judgment is unsustainable.
8. Learned A.P.P. has very fairly submitted that the medical evidence does not at all support the case of the ravishment of the informant but the evidence of the informant is reliable and trustworthy and she has no apparent reason to falsely implicate the appellants and the learned Court below has rightly believed her evidence in coming to the finding of the guilt of the appellants.
9. According to the prosecution case, P.W. 1, the informant was proceeding to her village after her duty hour working as a labourer under a contractor in Jamco Company on the day of the occurrence and when she reached at Janigora Chowk at about 17.30 hours, all the four appellants prevented her from going to her village and intimidating her they brought her inside the Government School nearby the said Janigora Chowk. There is evidence on the record that said school has no boundary wall and there was also no door planks or window planks in the said school. According to the prosecution case, seven persons including the appellants have ravished her felling her on the ground inside the said school and as a result of ravishment she has become unconscious. P.W. 4 Dr. Banita Sahay has examined her on 28-12-1994 at 16.45 hours i.e. within 24 hours after the ravishment of the informant. She has deposed that she did not find any external injury on the body of the informant as well as any injury on her vulva and vagina. Her evidence is further to the effect that her hymen revealed old rupture which admits one finger easily but it was tender. She has also deposed that no sperm dead or alive was found in her vaginal swab on microscopic examination. According to the medical witness the informant is between 15 and 151/2 years old and her secondary sex character is well developed and her breast was also well developed. The medical witness has further deposed that no definite opinion of rape can be given in this case. However, in paragraph 4 of her cross-examination, she has deposed that the informant was accustomed to regular sexual intercourse. The medical witness has also deposed that the informant might have gone to intercourse before her examination by her. It is pertinent to mention here that in this case seven persons are alleged to have ravished the informant after felling her on the ground and the absence of any external injury on her person such as on her back, waist, buttock and hip as well as on her vulva and intritous, casts a cloud of suspicions to the very credibility of the prosecution case regarding her ravishment. P.W. 1, the informant has deposed that she was known to all the appellants much prior to the occurrence and she was well acquainted with them. She has also deposed that all the appellants were on visiting terms in the house of her Foofa (uncle) i.e. father of P.W. 7 Mangal Samad and she got acquaintance with them there. She has further deposed in paragraph 25 of her evidence that negotiation of her marriage with appellant-Ghosaban Singh has taken place much prior to the occurrence but her marriage was not solemnized and she is still unmarried. She has denied that appellant-Ghosaban Singh has declined to solemnize his marriage with her and for that he along with his friends has been falsely implicated in this case. In the background of the acquaintance between the informant and the appellant, let us now advert to the evidence of the informant regarding the manner of the occurrence. She has deposed that when she reached at Janigora Chowk while going to her village on the day of the occurrence after duty hours all the appellants aforesaid forcibly took her to the said school at the point of pistol and appellant-Maru was armed with a pistol and he intimidated her to be done to death if she raise alarms. The fardbeyan (Ext. 3) of the informant does not disclose the fact that either of the appellant was armed with a pistol. The fardbeyan further reveals that it was appellant-Ghosaban Singh who had intimidated her while taking her inside the school. According to the fardbeyan all the four appellants besides three unknown persons had ravished her but in her evidence on oath she had deposed that only the appellants had ravished her. She has deposed in paragraph 5 of her cross-examination that she does not know the name of three appellants out of all the four appellants. She has , also deposed that the said school is not far away from the Janigora Chowk and there are a large number of houses and shops at the said chowk. Her evidence is further to the effect that the said school was not surrounded by the boundary wall, and there are no doors and windows in the said school. She has also deposed that she has not stated before the I.O. that in course of her ravishment the appellants have disclosed their names but the persons residing at the said chowk had told her the names of the appellants. She has also deposed in paragraph 20 of her evidence that she did not raise alarms at Janigora Chowk when she was prevented by the appellants from proceeding to her village and she also did not raise alarms when she was being taken in the said school and she also did not raise alarms when she was being ravished inside the said school. In paragraph 21 of her cross-examination she has deposed that she was not seized by any of the appellants or acquitted co-accused person in course of her ravishment. In paragraph 22 of her evidence she has deposed that she was ravished while she was wearing her sari and her sari was never pulled up in course of her ravishment. Lastly in paragraph 24 of her (cross-examination) she has deposed that she has not received any injury such as abrasion and scratches on her person in course of her ravishment. The evidence of P.W. 1, the informant referred to above is highly improbable to evidence the fact of her ravishment in the manner as alleged in her fardbeyan and it does not give an inkling of the fact that she was in fact ravished by the appellants as alleged. It does not stand to reason as to how a woman can be ravished without pulling up of her sari. Absence of any injury on vulva and vagina of the informant also belies the case of her ravishment especially when the prosecution case is that seven persons have ravished her. The medical evidence is not in conformity with the manner of ravishment as deposed by the informant. I have already stated above that the medical witness totally belies the case of ravishment of the informant. In this view of the matter, the evidence of the informant is not reliable and trustworthy and there is no ring of truth at all in her evidence regarding her ravishment by the appellants along with three other persons as alleged. There is total absence of any evidence on the record to corroborate the testimony of the informant. According to the evidence of the informant she has narrated the incident first of all to P.W. 7, who is her cousin brother but P.W. 7 has turned hostile and do not support the prosecution case. The appellants also stand seriously prejudiced due to the non-examination of the I.O. in the facts and circumstances of this case as they could not elicit the fact showing their innocence in the cross-examination of the I.O. regarding his objective finding of the place of occurrence as well as controverting the evidence of the informant as stated before him in course of investigation. Considering the facts, circumstances and the material on the record, the prosecution case of the ravishment of the informant appears to be highly improbable and equally unacceptable. Therefore, in the facts and circumstances in this case, the false implication of the appellants in this got up case cannot be totally ruled out as a result of vendetta at the instance of the informant as appellant-Ghosaban Singh has declined his marriage with her. Therefore, the defence version in the facts and circumstances of this case appears to be natural and probable. Learned Court below did not at all consider the evidence on the record meticulously in proper perspective and has gravely erred in relying upon the evidence of the informant which is not at all in comformity with the medical evidence for coming to the finding of the guilt of the appellants. Viewed thus the impugned judgment of the learned Court below suffers with illegality and it cannot be sustained.
10-11. There is merit in these appeals and they succeed. The appeals are hereby allowed. The Impugned judgment of the learned Court below is set aside. All the appellants above-named are not found guilty of the charge levelled against them and they are, accordingly, acquitted and discharged from the liabilities of their bail bonds.
