Criminal Appeal (S.J.) No.485 of 2009 With Criminal Appeal(S.J.) No. 625 of 2009 --- Against the common judgment of conviction dated 8.5.2009 and order of sentence dated 12.5.2009 passed by Shri Vijay Shankar Singh, 13 th Additional Sessions Judge, Dhanbad in Sessions Trial No. 322 of 2008. ------------ Anil Goswami -------Appellant( Cr. Apl. No. 485 of 2009) Ashok Rawani -------Appellant(Cr. Apl. No. 625 of 2009) -Versus- The State of Jharkhand ------- Respondent. --------- For the Appellants(Both Cases) : Mr. S.K.Murari, Advocate For the Respondent (State) : Mr. Tapas Roy, A.P.P. ------- P R E S E N T THE HON BLE MR JUSTICE PRADEEP KUMAR ---- By Court Heard the learned counsel for the appellants and learned counsel for the state 2. The instant appeal is directed against the judgment of conviction dated 8.5.2009 and sentence dated 12.5.2009 passed by Sri Vijay Shankar Singh, 13 th Additional Sessions Judge, Dhanbad in Sessions Trial No. 322 of 2008 by which judgment he found both the appellants guilty u/s 376(2)(G) of the I.P.C. and sentenced them to undergo R.I. for 10 years and also to pay a fine of Rs.1000/- and in default to undergo R.I. for 3 months. They have also been convicted u/s 342 of the I.P.C. and sentenced to undergo R.I. for 1 years. Both the sentences were directed to run concurrently. 3. It is submitted by learned counsel for the appellants that during course of trial, although 9 witnesses have been examined, but except the prosecutrix, P.W.5 Sandhya Devi @ Geeta Devi-informant/victim, nobody supported the prosecution case and even Geeta Devi has very specifically stated in court that these two appellants, Anil Goswami and Ashok Rawani, who are present in the court have not committed rape upon her and she had named them on the basis of the name given by the villagers, who had caught hold of one of the person named as
2 Anil Goswami and they also stated about the other persons who ran away named as Ashok Rawani. Independent witnesses are the villagers who had caught hold of appellant, Anil Goswami on the spot have not been brought by the prosecution. In that view of the matter,in the absence of independent witnesses, who caught hold of the accused, conviction of the appellants in absence of any such evidence and only on the basis of the statement of the victim made u/s 164 Cr.P.C before the Magistrate is bad in law and fit to be set aside. 4. On the other hand, learned counsel for the state has submitted that since, the informant-victim,p.w.5 named the appellants in her examination in chief which is corroborated in the evidence of the doctor, P.W.8, the impugned judgment of conviction requires no interference from this court. 5. After hearing the parties and after going through the evidences on record, I find that the prosecution case started on the basis of the written report given by the victim- Geeta Devi stating therein that on the date of occurrence i.e on 12.5.2008 the accused, Chotu Gorai came to her house and stated that she will get a job of Rs.1500/- per month at a Itta Bhathi. Then she stated that she will go and asked him to go ahead. It is stated that at 5 p.m she reached Nirsa Bazar and met Chotu Gorai in the market. Thereafter, he took her to his house at Kusumkanali and closed her in a room. Thereafter, he came along with two other friends and then they again closed the door of the room and one after another, all the three persons committed rape upon her. It is stated that she raised hulla on which villagers came and caught hold of Chotu Gorai and other person. The other person who was caught disclosed his name as Anil Goswami and third person i.e Ashok Rawani ran away. 6. On the basis of the said written report, police registered a case u/s 376, 342 /34 of the I.P.C and after investigation submitted chargesheet against all the 3 accused persons u/s 376(2)(G), 342 of the I.P.C. 7. Since, the case was exclusively triable by the court of sessions, learned Magistrate after taking cognizance committed the case to the court of Sessions and lastly the case was tried by 13 th Additional
3 Sessions Judge, Dhanbad, who found the two appellants guilty and convicted them as aforesaid. 8. It appears that during the course of trial, the prosecution has examined 9 witnesses. P.W.1 is Kamal Kumar Gorai who has turned hostile. P.W.2 is Krishna Pado Gorai who has turned hostile. P.W.3 is Kailash Pati Gorai who has turned hostile P.W.4 is Rajan Gorai who has turned hostile. P.W.5 is the victim-informant, Sandhya Devi @ Geeta Devi who has supported her case. P.W.6 is Bulu Devi, daughter of the informant has also turned hostile. P.W.7 is Mohan Ram, Investigating Officer of the Case. P.W.8 is Dr. Miss Gayatri Kumari who has examined the prosecutrix on the next date of the occurrence. P.W.9 is Ajay Kumar Srivavstava, Judicial Magistrate who has taken the statement of the victim u/s 164 Cr.P.C and proved the same as Ext.4. 9. Thus, after going through the entire evidences on record, I find that the only evidence which has supported the prosecution case is the statement of P.W.5, Sandhya Devi @ Geeta Devi given in the court that when she was being called by Chotu Gorai for service she went to Nirsa Bazar and after roaming for sometime she was taken by Chotu Gorai to his house saying that he will call his wife and closed her in a room. He came with two of his friends. Thereafter, they closed the door and committed rape upon her one by one. On hearing hulla the villagers came and caught hold of two persons. Thereafter they went with the villagers to the police station where she gave her R.T.I on the application prepared by the villagers. In her cross examination she has very clearly stated at para 3 that she does not identify Anil Goswami, the person who was caught by the villager. The name of that person was given by the villagers. She was not knowing that person. Seeing the two accused Anil Goswami and Ashok Rawani, she stated in court at para 5 that they have
4 not committed rape upon her. At para 8 of her evidence she has stated that she had gone to the police station along with the villagers and she only put her R.T.I on the written report. It is important to note that the Investigating Officer, who was examined as P.W.7 has also stated in para 7 of his cross examination that he does not know as to who had written the written report which is the basis of drawing the F.I.R. He only stated that written report was given by the prosecutrix herself and she put her R.T.I on the same. At para 9 he has stated that when he went to the place of occurrence, then only the villagers stated the name of the accused Anil Goswami. The victim belonged to another village and she was not knowing the name of the other accused persons. The doctor, P.W.8 who examined the prosecutrix found the sign of violence on the body of the victim and also found spermatozoa on the vaginal swab of the victim during the pathological examination. It appears from the evidences of the prosecutrix as also the Investigating Officer and the Doctor that no doubt rape was committed upon the victim lady and she has very clearly stated in her examination in the court and supported the fact that she was brought in the room and locked by Chotu Gorai and he committed rape upon her and as such it is not surprising, if, the doctor also found the sign of rape. The other accused person arrested namely Anil Goswami and the person who ran away namely Ashok Rawani could not be identified, since not a single villager, who caught hold of Anil Goswami or who saw Ashok Rawani running away turned up in the court to prove the same. Further, the victim lady emphatically stated during cross examination in para 3 and 5 that the person who were present in the court namely Anil Goswami and Ashok Rawani have not committed rape upon her and she named them as told by the villagers. She was not knowing them. 10. In that view of the matter, since, the fact that these two appellants, Anil Goswami and Ashok Rawani are the persons who committed rape upon the victim has not been proved
5 beyond reasonable doubts, in absence of any evidence of independent witnesses who have caught hold of one of the appellant and seen the other running away, these two appellants Anil Goswami and Ashok Rawani are given benefit of doubt and acquitted from the charges levelled against them. 11. In the result, the appeal is allowed. The judgment of conviction dated 8.5.2009 and order of sentence dated 12.5.2009 passed against the appellants only on the basis of the statement of the victim u/s 164 Cr.P.C recorded by the Magistrate is set aside. 12. Appellants are on bail. Hence, they are released from the bondage of the bail. Jharkhand High Court, Ranchi Dated 7.1.2010 A.K.M./N.A.F.R [Pradeep Kumar, J]