Darwan vs State of Chhattisgarh

R.S. Garg, J.—The appellant being aggrieved by the judgment dated 28-2-2001 passed in Session Trial No. 139/2000 by the Additional Sessions Judge, Khairagarh (Rajnandgaon) (Shri F.L. Unjan), convicting the appellant for offences punishable under Sections 376, 450, 342 and 323, IPC and sentencing him to undergo R.I. for 7 years and pay fine of Rs. 1,000/-, in default of payment of fine to undergo R.I. for six months, 3 years R.I. and pay fine of Rs. l,000/- in default of payment of fine to undergo R.I. for six months, to pay fine of Rs. 1,000/- in default of payment of fine to undergo R.I. for six months and pay fine of Rs. 1,000/- in default of payment of fine to undergo R.L for six months respectively, has filed this appeal.

The prosecution case, in brief, is that on 21-7-1999 at about 10.00 a.m. the applicant/accused unauthorisedly with an intention to commit an offence entered into the house of proseculrix (Indrabai), wrongfully confined her, caused injuries and committed rape upon her.

Indrabai (P. W. 3) is a married woman and is living with her husband-Dulurwa (P.W. 4). On 21-7-1999 at about 6.00 a.m. the husband of the prosecutrix went to the fields and when he returned at about 10.00 a.m., he found that the accused was committing rape upon his wife. According to the prosecutrix, the accused, who is a neighbour, entered into her house, asked for some drinking water, when the prosecutrix had entered inside the house to bring water, the accused pounced upon her, fell her on the ground and committed rape. In the incident she suffered certain injuries. Immediately on arrival of her husband, the matter was reported to him and thereafter at about 12.00 noon report (Ex. P-4) was lodged at Police Station, Gandai. Crime No. 65/1999 was registered and the Police agency came into action. The prosecutrix was sent for her medical examination, the statements of the witnesses were recorded, certain seizures were made and on completion of the investigation, the challan was filed. As the accused denied the commission of the offence he was put to trial. After hearing the parties, the learned Trial Court convicted the accused and awarded the sentences as referred to above.

Shri Awadh Tripathi, learned counsel for the appellant submits that from the statements of P.W. 3 and P.W. 4, it would clearly appear that the prosccutrix had some intimacy with the accused and a fair reading of the statements of P.W. 3 and P.W. 4 would show that as the husband of the prosecutrix came a little early on that day, the accused and the prosecutrix were caught red-handed. He further submitted that the learned Court below did not care to read the cross-examination of the witnesses and the injuries suffered by the prosecutrix which were caused to her by her husband have been wrongly shown to have been caused by the accused. According to him, the applicant is innocent and he deserves to he released.

Shri Gautam Bhadhuri, learned counsel for the State, on the other hand, submits that the judgment of the Court below is well merited and does not call for any interference.

5-A. P.W. 4-Dulurwa is the husband of the prosecutrix. In the examination-in-chief, he stated that he had gone to his fields but because of rains he came to his house a little early. When he entered into his house he found that the accused was committing rape upon his wife. He, thereafter, lifted the accused, brought him out but the accused after giving a push to said P.W. 4 ran away from the spot. In Paragraph 3 of the cross-examination he clearly admitted that in routine course, he used to go to his fields at 6.00 a.m. and was returning back at about 12.00 noon. He, however, stated that the accused is not a neighbour. He admitted that his house is situated in a dense locality and if somebody raises any cry in his house then the same can be heard by the others. In Paragraph 5, he clearly admitted that on the date of the incident because of rains he came to his house a little early. According to him, after reaching his house, he went to the kitchen, thereafter to the cattle-shed and thereafter he started searching for his wife in another room. According to him, he did not open the door but his wife had opened the door. It was suggested to him that because of the third degree methods used to his wife, she suffered certain injuries. The suggestion was denied by him. In Paragraph 7, he was confronted with this case diary statements. He, however, stated that the fact that the door was bolted from inside and on his shouts the door was opened, was not dictated by him to the Police. He also denied that he ever informed the Police that after his wife came out he started beating his wife. The above two statements in fact find place in Ext. D-2.

P.W. 3-Indrabai in the examination-in-chief, did support the prosecution case but in Paragraph 9, she stated that while the accused bolted the door from inside, she had raised the cries. She also stated that she tried to run-away from the room but the accused did not permit her. In Paragraph 10, she stated that she was silting with the accused in her bed room and at that point of time her husband came and on his knocking the door, she opened the door. She denied the suggestion that immediately after the door was opened, her husband brought the accused to the lane but she stated that her husband brought her and the accused to the corner of the lane. She further stated in para 10 that ordinarily her husband used to come back at 12,00 - 1.00 noon, but as on that day her husband came a little early she and the accused were caught on the spot. She had denied some other suggestions. In last line of para 10, she had stated that when she refused to lodge the report her husband Dulunva had beaten her which was seen by 10-15 villagers.

P.W. 1-Dr. Leelaram found two abrasion marks on the left hand and left shoulder. The abrasion sizes are: 1/2 x 1/4 cms. and 1.00 x 1/4 cms. Though the prosecution says that the prosecutrix suffered these injuries when the accused committed rape upon her, but in view of the statements of P.W. 3, the possibility that she had suffered the injuries when her husband was beating her, cannot be ruled out. P.W. 2 is the Doctor, who had medically examined the accused. P.W. 5 - is the resident of the said village. In Para 3 he clearly stated that P.W. 4-Dulurwa brought the prosecutrix out and started beating her. He was declared hostile but in the cross-examination he did not support the prosecution case. P.W. 6 (R.C Lahari) is the person, who had recorded the first information report P.W. 7 (K.P. Banjare) had made certain investigation. This is the sum total of the prosecution evidence.

The learned Trial Court in its judgment has attributed the injuries, found on the person of the prosecutrix, to the accused. Whether she suffered the injuries or not would be material if P.W. 3-prosecutrix is shown to be a reliable witness. The learned Trial Court in Para 8, referred to the examination-in-chief of the prosecutrix, thereafter in Paragraph 9, referring to the further examination-in-chief the Trial Court found that her bangles were broken and she was medically examined and thereafter the broken pieces of bangles, saree, petty-coat etc., were seized. In Para 10, the learned Trial Court stated that before placing reliance upon the statements of the prosecutrix, it was necessary to look into the attending circumstances. In Para 11, the learned Trial Court referring to the principles of contradictions and omissions amounting to contradictions statements, observed that if Indrabai made improvements in her statement, then her entire statement could not be rejected. In Para 12, the learned Trial Court referred to the statements of P.W. I-Dr. Leelaram and referred to the medical report. In Para 13, the Trial Court referred to the negative report of the chemical analysis. In Paragraph 16, the learned Court below rejected the defence evidence that the prosecuirix was not reliable. The Court below observed that immediately after the incident the matter was reported by the prosecutrix to number of persons which would lend support to her testimony. The Court also observed that if the present was a matter of consent, it was not expected of P.W. 3 (Indrabai) to narrate the incident to others. The Court also observed that statements of P.W. 4-Dulurwa suffer with vice of improvements. In Paragraphs 17, 18 and 19, the learned Court below referred to certain judgments cited before it. In Para 20, it referred to the statements of P.W. 7 and P.W. 6. All of a sudden, in Paragraph 21 the Court started placing reliance upon the statements of P.W. 3-Indrabai and convicted the accused for offence punishable under Sections 376, 450, 342 and 323, IPC.

I referred to the judgment of the Court below in details to show that the learned Court below probably without appreciating the basic criminal jurisprudence and the effect of the statements recorded during the course of the trial, has recorded a finding against the accused.

The statement of a witness is not complete unless the said witness has been cross-examined. Cross-examination of a witness is not a mere formality but it is an absolute right of the accused and forms integral part of the statements of a witness. The basic principle of the criminal jurisprudence is that a person shall be presumed to be innocent unless he is proved guilty. To prove that the man committed an offence, the prosecution is required to prove the basic ingredients constituting an offence bring on record the statements of the witnesses or circumstances which may connect the accused with the alleged crime and also show to the Court that the statements and/or circumstances brought on the record do not suffer with any dent of falsity. While recording the finding against the interest of the accused a Court must examine the case from every angle and come to a positive Finding that the accused is answerable to the charge and is liable to be convicted. If there arc loop-holes or unfolded mysteries in the prosecution case, the benefit must go to the accused. If there are contradictions in the statements of the witnesses or there are omissions amounting to contradiction in the statements of the witnesses which may shake the reliability of the witnesses, findings must be recorded in favour of the accused. If from the cross-examination of the witnesses or from the favourable circumstances brought on record innocence can be spelled out in favour of the accused, then also the benefit would go to the accused. The prosecution is required to establish the commission of the crime at the hands of the accused, if not beyond shadow of doubt, but at-least to the reasonable certainty. The words "reasonable certainty" would mean that a man of ordinary prudence under the given set of the circumstances would accept the case of the prosecution and would record a finding against the accused. An ordinary man ordinarily may record a finding against the accused but the Courts which possess the wisdom to sift the grain from the chaff and having been trained properly to appreciate the evidence in accordance with law are not expected to record the findings just on nothing.

From the entire judgment of the learned Court below it does not appear that it cared to read the cross-examination of P.W. 3 and P.W. 4. The approach of the learned Trial Court in not reading the cross-examination of the witnesses would show that learned Trial Court was bent upon convicting the accused. The perversity is writ large. If the law says that the cross-examination is an integral part of the statement of the witness, then the said cross-examination cannot be ignored. The Court cannot lose sight of the cross-examination of a witness specially in a case where in the cross-examination the witnesses were making certain admissions in favour of the accused and were virtually supporting his defence.

The entire judgment of the learned Court below does not refer to the conduct of the prosecutrix. It does not take into consideration Paragraphs 9, 10 and 11 of the cross-examination of P.W. 3-Indrabai wherein the prosecutrix clearly stated that her husband ordinarily used to come back at about 12.00 -1.00 noon, but on that particular day her husband came back at 10.00 a.m., therefore, she and the accused were caught in her bed room. I fail to understand as to why such an approach of ignoring the cross-examination could be adopted by a seasoned Judge. Conviction of an accused does not add a feather in the cap of a Judge, in fact, a good reasoned and legal judgment adds to the honour of the Court and persuades public to rely upon the judicial process and repose their confidence in the judicial system. If the convictions are bad, irrational, perverse illogical or illegal then that speaks bad about the Court and the judicial system. A Court is not required to record conviction of a person in a case where there is no evidence or where the defence had proved its case or in a case where there is no evidence against the accused, a Court should not be afraid of recording the acquittal. A conviction can only be based on the evidence which is reliable, leaves no of room doubt and connects the accused with the crime.

In the present case P.W. 3 (Indrabai) clearly admitted that her husband used to go to the fields at 6.00 a.m. and was always returning back between 12.00 - 1.00 noon. She also admitted that on that particular day, the husband of the prosecutrix came back at 10.00 a.m., when her husband came to the house, she and the accused were sitting in her bed room and as the husband had come a little early she and the accused were caught in her bed room. To show consent, what else is required. From her statements, it would clearly appear that the accused, who was a neighbour, used to come to her house but on that particular day because of the early return/arrival of the husband, the proscculrix and the accused were caught in her house.

The findings recorded by the Court below are perverse and contrary to the records and, in fact having been arrived at after ignoring the entire cross-examination and the substantial pieces of evidence which tend to support the defence.

The findings recorded by the Court below deserve to and are accordingly set aside. The accused is acquitted of all the charges. The amount of fine, if any, deposited by him, be returned back.

On number of occasions this Court had directed the Trial Judges to give the details of the period undergone by the accused in the judgment itself. In the present case, contrary to the directions of the High Court, the learned Trial Judge in Para 28 of the judgment simply wrote that the benefit of the period of the detention be given to the accused in accordance with Section 428, Cr.P.C. Neither in the judgment nor in any other document it is shown that for what period the accused remained in jail. It is not expected of a Judge subordinate to the High Court that he would ignore the mandatory provisions contained u/s 428, Cr.P.C., and the judicial directions issued by the High Court.

Issue notice to the Additional Sessions Judge, Khairagarh (Rajnandgaon) to show cause why proper action be not taken against him for ignoring the mandatory judicial directions issued by this Court in relation to Section 428, Cr.P.C.

Let a copy of the judgment be also sent to the Trial Judge for future guidance. A separate M.Cr.C, be registered. The records be retained with the said M.Cr.C. The office is directed to issue the release warrant. The accused shall immediately be released, if not required in any other case.

Criminal Appeal allowed.