JUDGMENT
Vishnudeo Narayan, J.
1. This appeal at the instance of the appellant has been directed against the impugned judgment and order dated 19.4.1999 and 21.4.1999 passed in Sessions Case No. 178 of 1998/ 165 of 1998 by Sri Mungeshwar Sahoo, 1st Additional Sessions Judge, Godda whereby and whereunder the appellant was found guilty for the offence punishable under Section 376 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for seven years.
2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of Informant PW 4 Zahida Khatoon, a married woman, said to be aged about 15 or 16 years as per medical evidence and alleged to be the victim of ravishment, recorded by PW 8 S.I. Nand Kishore Sharma, the I.O. on 20.1.1998 at 13.00 hours in Godda Muffasil PS regarding the occurrence which is said to have taken place on that very day at 6.00 hours on the pinda of the pond in village Zamni Paharpur P.S. Godda Town District Godda and a case was instituted by drawing a formal FIR Ext. 3/1 under Sections 354 and 323/34 of the Indian Penal Code against the appellant.
3. The prosecution case, in brief, is that PW 4, the informant had gone in the Bahiyar near the village pond at 6.00 hours on 20.1.1998 for nature’s call and the appellant caught her hand with intention to outrage her modesty and she was also assaulted by fist and slap when she raised alarms and, thereafter, he further assaulted her by stick (danda) causing bleeding injury. Prosecution case further is that she went to the house of the appellant along with her family members where Buddin Ansari, the younger brother of the appellant also assaulted her by fist and slap and removed her from his house failing which she will be further assaulted and, thereafter, she came to the police station in the company of her father, where her fardbeyan was recorded. It is also alleged that PW 1, Bibi Halima, and Alauddin Ansari (not examined) had seen the occurrence and they have intervened in the occurrence rescuing her.
4. In course of investigation the statement of the informant was again recorded on 23.1.1998 in which she had stated to the I.O. regarding her ravishment in the said occurrence by the appellant and charge-sheet under Section 376 of the Indian Penal Code was submitted against the appellant and, accordingly, charge was framed under Section 376 of the Indian Penal Code against the appellant.
5. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case due to enmity existing and alive between him and her in-laws as well her father.
6. The prosecution has in all examined eight witnesses to substantiate its case PW 4, Zahida Khatoon, is the informant and said to be the victim of the said ravishment of this case PW 1, Bibi Halima, is the mother-in-law of the informant. PW 5, Afzal Ansari, is her father-in-law and PW 2, Md. Salim Ansari, is her father and they are hearsay witnesses of the alleged occurrence. PW 3, Mazbul, a 13 years old boy resident of the same village and said to be a relative of PW 4, claims himself to be an ocular witness of the occurrence in question. PW 6, Dr. Pradeep Kumar Sinha, has examined the informant on 20.1.1998 and the injury report per his pen in respect thereof is Ext. 1. PW 7, Dr. Prabha Rani Prasad, has examined the informant on 23.1.1998 and her report in respect thereof is Ext. 2 in this case. PW 8, Nand Kishore Sharma, is the I.O. of this case. Two witnesses i.e. DW 1, Md. Jallaluddin, and DW 2, Talib Hussain Ansari, have been examined on behalf of the defence.
7. Relying upon the testimony of PW 4, the informant, and PW 3, Mazbul, read with the testimony of PW 7, the medical witness, the learned Court below had come to the finding of the guilt of the appellant and convicted and sentenced him as stated above.
8. Assailing the impugned judgment as perverse and not based on the evidence on record it has been submitted by the learned counsel of the appellant that the fardbeyan of the informant which is the earlier statement does not show regarding the ravishment of the informant by the appellant and as a result of afterthought, consultation and deliberation the informant in her further statement before the I.O. on 23.1.1998 has deliberately stated regarding her ravishment by the appellant in the alleged occurrence and she has deliberately shifted the place of occurrence from the pinda of the pond to a vacant place between two heaps of paddy straw nearby the said pinda. It has further been submitted that there is material contradiction in the evidence of PW 6 and PW 7 regarding the existence of the injuries on the person of the informant, as found by them, and PW 7, in her objective finding, has not found any external injury on her private part or any other material in her examination regarding her ravishment and her opinion regarding the informant having been ravished is totally incorrect and. unfounded. It has also been submitted that the evidence of PW 3 Mazbul lacks credence in view of the inherent inconsistencies appearing in his evidence and he has been deliberately set up to depose against the appellant and furthermore his statement has been recorded by the I.O. after a lapse of 38 days when he was throughout available in the village and as such, his evidence suffers with legal infirmities and the same is fit to be discarded in this case. It has also been submitted that the medical evidence on the record does not at all substantiate the fact of ravishment of the informant as alleged in her subsequent statement recorded on 23.1.1998 and the medical evidence is definitely not inconformity with the manner of occurrence. It has further been submitted that admittedly there were several persons present in the barn in which as per the prosecution case, the informant has been ravished but none of them is forth-coming to support the prosecution case. Lastly, it has been contended that there is enmity between the appellant, on the one hand and the in-laws as well as the father of the informant, on the other hand, prior to the occurrence in question and due to said enmity, the appellant has been falsely roped in this got up case and the learned Court below did not meticulously scan and scrutinize the evidence on record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant.
9. In contra, it has been submitted by the learned A.P.P. that PW 4, the informant in her evidence on oath has specifically deposed to have been ravished by the appellant and her evidence stands corroborated as per the testimony of PW 3 as well as PW 7, the medical witness, who has found that her hymen was torn at 2 o’clock position and it was painful on touch, though the vaginal orfic admits two fingers tightly and she has opined that the possibility of sexual intercourse cannot be ruled out. It has also been submitted that the informant did not mention the fact of ravishment in her fardbeyan earlier due to shame and the learned Court below on proper appreciation of the evidence on the record has rightly come to the finding of the guilt of the appellant.
10. It is essential to mention at the very outset that PW 4 the informant is a married girl and her marriage was solemnized two years prior to the occurrence and she has been living in her matrimonial home for the last 15 days prior to the occurrence. Her parent’s house is also in the same village where her matrimonial home is situated. She has not disclosed her age in her fardbeyan but PW 7, the medical witness, has opined that the informant is aged about 15 or 16 years but PW 4 who has taken oath in this case on 19.11.1998 i.e. only ten months after the alleged occurrence has disclosed herself to be 20 years old and the learned Court below has also assessed her age as 20 years. Admittedly there is evidence on the record to establish the fact that there was enmity existing and alive between the appellant on the one hand and PW 1, mother-in-law as well as PW 2, the father of the appellant, on the other hand, much prior to the occurrence in question. PW 2 in Paragraph 6 and 10 of his evidence has admitted the existence of the enmity as stated above. In Paragraph 11 of his evidence, he has deposed that PW 1 was pressurizing him to file a false case against the appellant but he did not accede to her request and got this case lodged by the informant with true and correct allegations and due to that, PW 1 did not take the informant to her house and only 10 days prior to his evidence in the Court, PW 1 has brought PW 4, the informant, to her house. PW 4, the informant, in paragraph 6 of her evidence has deposed that there was enmity between her in- laws and the appellant’s family, but in the next breath she has denied the existence of the said enmity. It is equally relevant to mention here that PWs 1, 2, 3, 5 and 4 are inter se closely related and in view of the existence of enmity referred to above and the witnesses being closed relatives of the informant their evidence has to be scanned and scrutinized with due care and caution. It is essential to mention at the very outset that the fardbeyan (Ext. 3) of the informant does not at all whisper regarding the ravishment of the informant by the appellant. The said fardbeyan has been recorded on the statement of the informant in presence of PW 2, her father as well as PW 1, her mother-in-law. For this a reference is made to the evidence of PW 4 appearing in Paragraph 7 of her testimony. PW 4 has deposed that after recording her fardbeyan her restatement was recorded by the I.O. and after three days of the occurrence she went to the police station again but no cogent reason has come in the evidence of the informant as to what compelled her to go again to the police station on the third day of the occurrence and there is also no reason for PW 8, the I.O. about re-recording the statement of the informant in which it is said that she has stated about her ravishment by the appellant in the said occurrence. Place of occurrence as per the averment made in the fardbeyan (Ext. 3) is the pinda of the pond in village Zamni Paharpur. PW 8, the I.O. has deposed that the said pond is 100 yards east from village Zamni Paharpur and there is ridge by the side of the said pond and contiguous to the said ridge towards north, there are barns of Rahmatullah Ansari, Yakub and several other persons and in the said barn there were heaps of paddy straw kept therein. According to evidence of the informant she is said to have been ravished in a vacant place between the two heaps of paddy straw kept in the nearby barn from the said pinda of the pond. However, the I.O. in his objective finding has not found any incriminating material either at the pinda of the said pond or in the vacant place in between the heaps of paddy straw in the said barn in course of inspection of the place of occurrence. Here it is relevant to mention about the evidence of DW 1 and DW 2. DW 1 and DW 2 have deposed that they have their barn adjacent to the pinda of the said pond and the barn of the appellant is also there and they were present in the said barn with the appellant at 6.00 hours on the day of the occurrence and they saw the informant coming in the said barn abusing the appellant and she had scuffle with the appellant and in course of the scuffle with the appellant she fell down and they pacified the quarrel. Therefore, it become an established fact that the appellant and the informant were present at 6 O’clock in the said barn where some occurrence had taken place between them. PW 6 Dr. Pradeep Kumar Sinha has deposed to have examined the informant on 20.1.1998 at 14.00 hours and he has found one abrasion 1/2″ x 1/4″ over left lower forearm posteriorly reddish black in colour, the nature of which is simple caused by hard and blunt substance, and its age is within 24.00 hours. In paragraph 4 of his evidence the medical witness has further deposed that the said injury may be caused if one falls on a hard substance. Let us now advert to the evidence of PW 4, the informant. She has deposed that she has come to the pond for nature’s call and after attending the call of nature she was returning and the appellant caught her and ravished her in the vacant place between the two heaps of paddy straw in the barn in the close vicinity of the pinda of the pond. She has further deposed that the appellant felled her on the ground and ravished her and whenever she tried to raise alarms he used to stuff her mouth. She has further deposed that the appellant was also threatening her to be done to death if she raised alarms and her body was roughed due to her ravishment and at that time she was wearing red sari and yellow petticoat. She has further deposed that as a result of her ravishment her vagina was ruptured and injury was caused on her person and her petticoat was besmeared with spermatozoa. She has also deposed that the I.O. has seized her sari and petticoat having blood stains thereon. In paragraph 29 of her evidence she has deposed to have made the statement regarding her ravishment in the open space between the two heaps of paddy straw to the I.O. at the time of recording her fardbeyan. PW 8, the I.O. has deposed in paragraph 22 of his evidence that PW 4 has not stated before him that the appellant has ravished her in the vacant place between the two heaps of paddy straw and when she was trying to raise alarms he had stuffed her mouth. In paragraph 21 of his evidence he has denied to have seized the sari and petticoat of the informant.
Therefore, the testimony of the I.O. materially contradicts the statement of the ravishment of the informant as stated by her to him. PW 3 Majbul a 13 years old boy said to be the cousin brother of the husband of the informant has deposed to have come to the pond at 6 O’clock in the morning on the day of the occurrence and to have seen the informant weeping at the pond. He has not specifically deposed to have seen the appellant ravishing her. However, this witness has deposed to have told PW 1 Bibi Halima that appellant was over the body of the informant. PW 3 has, thereafter, deposed that he has seen the appellant having sexual intercourse with the informant. He has also deposed that he was seen neither by the informant nor by the appellant there. The evidence of PW 3 is self inconsistent and contradictory. It appears highly improbable that how can he see the appellant ravishing the informant when he has seen the informant weeping on the pinda of the pond. In paragraph 7 of his evidence he has further deposed that several persons were present in the barn aforesaid. PW 1, the mother-in-law of the informant has deposed that PW 3 informed her that the appellant was over the body of the informant and on this information she went to the said barn and when she reached there the appellant stood up and the informant started weeping. She has further deposed that the appellant has ravished the informant. In paragraph 14 of her evidence she has deposed that she has stated before the I.O. that when she reached at the place of occurrence she saw the appellant over the body of the informant on the pinda of the pond. This evidence of PW 1 totally demolishes the prosecution case as well as the evidence of the informant regarding her alleged ravishment in the vacant place between the two heaps of paddy straw. PW 8, the I.O. in paragraph 11 of his evidence has categorically deposed that PW 1 has not stated before him that she had gone to the place of occurrence and had seen the appellant over the body of the informant committing sexual intercourse on the pinda of the pond she has also not stated to him that PW 3 Majbul had informed her that the appellant is over the body of Zahida on the pinda of the pond. The testimony of PW 1 and PW 3 does not appear to have any semblance regarding the truth therein and it lacks credence. The learned Court below has rightly disbelieved the testimony of PW 1. The statement of PW 3 has been recorded by the I.O. on 28.2.1998 i.e. after a lapse of 40 days. There is no evidence on record to show that PW 3 was not available in the village. Evidence of PW 3 is very material as he claims himself to be an ocular witness of the occurrence in question. The statement of most of the prosecution witnesses were recorded by the I.O. on the day of the occurrence itself after the inspection of the place of occurrence. No cogent explanation is forthcoming on the record as to why the statement of PW 3, Majbul was recorded after 40 days of the occurrence and as such the unjustified and unexplained long delay on the part of the I.O. in recording the statement of PW 3, a material eye witness during the investigation in the case of rape renders the evidence of PW 3 unreliable and it can safely be inferred that he has been set up by PW 1 purposely to support the case of ravishment of the informant as per the subsequent statement of the informant as a result of afterthought, deliberation and consultation. It is equally relevant to mention here the evidence of PW 2, the father of the informant, who has deposed that the informant came weeping to his house and on query she stated that the appellant has abused her and tried to assault her and he took her to the house of the appellant as to why he has abused her and they asked him to do whatever he likes and thereafter he went to the police station with her where the fardbeyan was recorded. In paragraph 7 of his cross-examination he had gone to the place of occurrence and found several persons including Rahmatullah Ansari present in the said barn and on query they had stated that the appellant had abused the informant and beat her by fist and pushed her. PW 3, a hearsay witness, does not support the ravishment of the informant by the appellant as deposed by her. PW 5, also a hearsay witness, claims to have come to the place of occurrence on the cry of the informant where he saw the appellant and the informant and the blood fallen on the pinda of the pond and the informant told him about her ravishment. He has further deposed that he directed the informant to report the matter to her father and he proceeded from there for nature’s call. In paragraphs 9 and 14 of his cross- examination, he had deposed that when he reached on the pinda of the pond he saw the informant weeping on the western pinda of the said pond and from there she went to her parent’s house. The evidence of PW 5 having seen blood fallen at the pinda of the pond is not at all corroborated as per the testimony of the I.O. Therefore, the evidence of PW 5 totally lacks credence even as a hearsay witness in this case. The informant has deposed that prior to the occurrence she had no physical contact with any male. It, therefore, means that inspite of her marriage two years ago and living in her matrimonial home she claims herself as a nubile virgin, whereas DW 2 in paragraph 8 has deposed that the character of the informant is not good and she has illicit relationship with many persons. In this background let us now come to the evidence of PW 7, Dr. Prabha Rani Prasad, the medical witness has deposed that when she has examined the informant she was wearing a synthetic sari which was of green and cream colour and green blouse and orange faded cotton petticoat and there were dried white and red stains on the said petticoat and the sari. It is relevant to mention here that PW 4, the informant has deposed that at the time of occurrence she was wearing a red synthetic sari. Therefore, there is material contradiction and inconsistency in the evidence of the medical witness aforesaid as well as in the testimony of the informant herself regarding the clothes which the informant was wearing at the time of the occurrence and this contradiction definitely goes at the root of the prosecution case regarding its authenticity. Furthermore, the aforesaid clothes were not seized in course of investigation by the I.O. and these clothes were also not sent to the Forensic Science Laboratory for chemical examination for the reasons best known to the prosecution. PW 7 has found two further injuries on the person of the informant other than one found by PW 6 and these two injuries are as follow:–
“(ii) One small circular abrasion 1/2” diameter on the middle boarder of left scapula with black formation, and
(iii) One abrasion 1/2″ x 1/4″ on the middle of back 6″ above the tip of coccyx with black scab formation.”
The medical witness has further deposed that injuries aforesaid are simple in nature and the age of which is about 3 or 4 days. In paragraph 22 of her cross-examination she has deposed that the aforesaid injuries might have been caused due to rough ground and the injuries are on back portion. This is one of the ground on the basis of which the medical witness has come to the finding that possibility of sexual intercourse cannot be ruled put with the informant. In this connection paragraph 30 of the evidence of PW 4 is referred to in which she has deposed that her father dragged her as a result of which there were abrasion caused on her person. Therefore, the existence of the aforesaid two injuries appearing on the person of the informant has no connection or any co-relation whatsoever, with the occurrence of her ravishment after falling her on the ground as alleged. The said medical witness has deposed that on internal examination she has found no external injury, on her private part, however, her hymen reveals rupture at 2 O’clock position and it is painful on touch and the vaginal orfic admits two fingers tightly. The medical witness has further deposed that no spermatozoa was found in the vaginal swab of the informant. In nubile virgin, the hymen as a result of complete sexual intercourse, is usually lacerated, having one or more radiate tears, more so in posterior half, the edges of which are red, swollen and painful, and bleed on touching, if examined within a day or two after the act. It is equally relevant to mention here that the informant is said to have been ravished by the appellant after falling on the ground and there was resistance by the informant also but absence of any external injury on her person as well as on her private parts casts a cloud of suspicion regarding her ravishment as alleged. In case of ravishment when grown up virgin girl, unmarried or married woman, offer resistance, marks of violence, such as bruises, scratches of fingernails, etc. may be found on the external genitals, perineum, abdomen, chest, back, limbs, neck and face. Love bite marks are also seen on the cheeks, neck, inner thigh etc. due to sucking pressure and teeth imprints. Therefore, the finding of PW 7, the medical witness, regarding the possibility of ravishment of the informant by the appellant does not appear to be tenable in the facts and circumstances of this case and equally not based on the data found by her in this case. The allegation of ravishment is the result of afterthought consultation and deliberation subsequently made after three days of recording of the fardbeyan of the informant and the subsequent statement has resulted due to the existence of enmity existing and alive between the appellant on the one hand and the father and mother-in-law of the informant on the other hand. Therefore, the prosecution has not come before the Court with a true picture of the occurrence. It is equally relevant to mention here that the fardbeyan discloses that the appellant has abused and assaulted the informant. The fardbeyan does not clearly state that the appellant has tried to commit rape on her and in this view of the matter, the case of rape is not at all made out in this case. Therefore, there is no legal evidence at all on the record to substantiate the prosecution case and there is also no ring of truth in the testimony of PW 4, the informant. The medical evidence on the record cannot be said to be in conformity with the manner of the occurrence of the prosecution case as alleged and therefore, the ratios of the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753, Chandan Paswan v. State of Bihar, 1998 (3) PLJR 23, State of U.P. v. Ashok Kumar Srivastava, 1992 Cri LJ 1104 and Krishna Korah v. State of Bihar, 1997 (1) East Cr C 638 (Pat) relied upon by the learned Court below for coming to the finding of the guilt of the appellant have no application at all in the facts and circumstances of this case and the learned Court below has misconstrued the aforesaid ratio. The learned Court below did not meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant. I, therefore, see substance in the contention of the learned counsel for the appellant. Viewed thus the impugned judgment is unsustainable.
11. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is set aside. The appellant is not found guilty and he is, accordingly acquitted and discharged from the liability of his bail bond.