RINKU SINGH @ AMRIKA SINGH vs STATE OF JHARKHAND

Heard learned counsel for the appellant and learned Addl. PP for the State.Â

This appeal has been preferred by the appellant being aggrieved by the Judgment of conviction dated 1.12.2005 and order of sentence dated

2.12.2005 passed by the learned 1st Additional Sessions Judge, Gumla in Sessions Trial No. 158 of 1995 whereby and whereunder, the appellant Rinku

Singh @ Amrika Singh has been held guilty and convicted for the offences punishable under Section 376,365 and 379 of the IPC and sentenced to

undergo RI for eight years with fine, RI for five years with fine and RI for one year with fine, respectively. Â

The brief fact of this case as mentioned in the complaint, basing upon which, Palkot P.S. case No. 66 of 1993 corresponding to G.R. No. 719 of

1993 was registered, is that the prosecutrix is a married lady having two issues. When the prosecutrix had gone to attend the call of nature, with her

daughter aged two years, to the nearby field, the accused-appellant came there and at the point of Bhujali threatened her to kill and after terrorizing

her, took the prosecutrix to his house and committed rape upon the prosecutrix there and threatened her that if she raises alarm, she will be killed. The

appellant took the prosecutrix on a cycle to Teser. From there, the accused-appellant took the prosecutrix in a bus to Rourkela and kept the

prosecutrix for fifteen days at Rourkela and also committed wrong with her. In the meantime, the appellant accused took away her gold jewelry of ear

and nose and also took silver necklace from her. While in captivity one day, the prosecutrix fled from the confinement and by boarding a bus going to

Ranchi, she reached to her maternal house on 27.07.1993 and disclosed about the occurrence to her brother and mother. She went to Palkot police

station where it was suggested that she should institute a case in the court.

Hence, the prosecutrix filed complaint which was numbered as C-95 /1993 and the same was referred to the police station for institution of the

case. After institution of the said case, police took up investigation. Upon completion of the investigation, police submitted the charge-sheet. The case

was committed to the Court of Session and charges for the offences punishable under Section 376, 365, 379 and 452 of IPC were framed against the

accused appellant and upon the accused pleading not guilty to the charge, he was put to trial.Â

In support of its case, the prosecution has altogether examined seven witnesses including the prosecutrix who has been examined as P.W.1. After

recording the examination-in-chief of P.W.1 on 23rd February, 1996,   on that day, she was put two questions by the defence and her

crossexamination was deferred because of paucity of time. But thereafter, the P.W.1 never turned up before court below for her cross-examination.

In her examination-in-chief, P.W. 1 has corroborated the averments made in her complaint.Â

P.W. 2- Rukmani Devi, who is the mother of the prosecutrix, has stated that the appellant-accused took the prosecutrix to Rourkela and assaulted

her and snatched away her jewelry and committed rape on her. P.W.1 informed about the said occurrence to the P.W.2. In her cross examination,

she stated that she does not know where P.W.1 is. P.W.1 has been absconding for more than five years from the date of the cross examination of

P.W. 2 in the court. P.W. 2 was cross-examined on 02.05.1998.

P.W. 3 â€" Dharam Mahto @ Charan has stated that he came to know about the occurrence from the prosecutrix. The prosecutrix told him that

the accused -appellant took her to Rourkela. The accused-appellant snatched away her jewelry and committed rape on her. In his cross-

examination, P.W. 3 has stated that the prosecutrix is his step sister. The prosecutrix has been absconding for more than five years.Â

P.W. 4 - Mohan Gope, is the husband of prosecutrix. He has stated that the accused -appellant took away his wife and the case was instituted on

that basis. In his cross â€"examination, he has stated that he has no personal knowledge about the case.Â

P.W. 5 - Raja Prasad has stated that he was informed by P.W. 4 that the accused -appellant took away the wife of the P.W. 4. In his

crossexamination, he has stated that he has mentioned the date of occurrence in the palm. He has narrated the occurrence to the police.Â

P.W.6- Dr. Shakuntala Pandey, examined the prosecutrix. She has  stated that the prosecutrix is habituated to sexual act. No

spermatozoa          were found. She further stated that no evidence of sexual act was found on her body. On being proved by her

the injury report prepared by her was marked Exhibit 1.

P.W.7- Chaturdhan Pradhan is a formal witness and he is an Advocate’s clerk. He has proved the formal FIR which has been marked as

Exhibit 2. In his cross examination, he has stated that the formal FIR was not written in his presence. After closure of the evidence of the

prosecution, the statement under Section 313 Cr.P.C. of the appellantaccused was recorded wherein he denied the circumstances appearing in

evidence against him.

Taking into consideration the evidence available in the record, learned court below convicted and sentenced the accused-appellant as already

indicated above.Â

Learned counsel for the appellant submitted that as P.W. 1 having not turned up for cross-examination, the court below ought not have relied upon

her testimony as in the absence of her cross-examination, the same could not be relied upon. Learned counsel for the appellant further submitted that

except P.W. 1, no other witness has any personal knowledge about the occurrence and P.W.6-the doctor who examined the prosecutrix has not found

any sign or symptom of recent sexual act. It is submitted that though the attention of the material prosecution witness other than P.W.1 was drawn in

their crossâ€"examination vis-à -vis their statement recorded under Section 161 Cr.P.C. but the Investigating Officer was not examined in the case

and there is no evidence regarding the place of occurrence in this case, hence defence has been prejudiced by the nonexamination of the investigating

Officer. It is also submitted that the impugned judgment of conviction and order of sentence passed by the court below being not sustainable in law, be

set aside and the appellant be acquitted of all the charges.Â

Learned Addl. PP fairly submitted that in absence of cross- examination of the P.W.1, her testimony ought not to have been relied upon by the

learned court below, but he submits that since other material witnesses of the prosecution have proved the ingredients of the charges for which the

appellant has been convicted, hence, learned court below has rightly convicted and sentenced the appellant, thus, this appeal being without any merit

be dismissed.Â

Having heard learned counsels for  both the parties and going through the materials in the record, I found as already indicated above that

P.W. 1 did not turn up for her cross-examination. The Hon’ble Supreme Court of India in Gopal Saran v. Satyanarayana (1989) 3 SCC 56 held as

under:

“In view of what has been decided in the above reported cases, it is clear that when a witness does not make himself available for being cross-

examined after his examination-in-chief, it will be difficult on the part of a court to rely on his evidence in examination-in-chief. The purpose of cross-

examination of a witness is to test the veracity of the statement made by a witness in his examination-in-chief and where a witness is not cross-

examined, for his non-availability it will be unsafe to reply on examination-in-chief of such a witness.†(Emphasis Supplied)         Â

The Hon’ble Calcutta High Court in Sanatan Daw v. Dasarathi Ta reported in AIR 1959 6 Calcutta 677 reiterated the principle settled by that

court that evidence unless complete by cross-examination cannot be proved.

In view of the principle of law as discussed above, in the absence of any specific reason for the P.W.1 not turning up for cross-examination, her

testimony should be excluded from consideration. After excluding the testimony of P.W.1 from consideration, the perusal of the record reveals that

none of the material witnesses i.e. P.Ws. 2, 3, 4, 5 had any personal knowledge about the occurrence and P.W.6 has also did not find any sign or

symptom of any recent sexual act on her person. So her testimony is of no help to the prosecution. P.W.7 is a formal witness. Obviously, he has no

personal knowledge about the facts of the case.

So far as non-examination of the Investigating Officer is concerned, it is a settled principle of law that non-examination of the Investigating Officer

per se is not fatal to the prosecution case unless the defence is seriously prejudiced by non-examination of the Investigating Officer. Perusal of the

record reveals that the attention of the P.W.3 and P.W.5 was drawn in their respective cross-examinations in respect of their statements recorded

under Section 161 Cr.P.C before the police. There is absolutely no evidence regarding the place of occurrences, though the alleged occurrence

continued for several days and as per prosecution, there was more than one places of occurrence, hence this is a case where the defence has been

prejudiced by the non-examination of Investigating Officer. In view of the discussions made above I have no hesitation in holding that the evidence in

this case is insufficient to establish any of the charges against the appellant Rinku Singh @ Amrika Singh and this a fit case where the accused

appellant Rinku Singh @ Amrika Singh be acquitted of all the charges by giving him the benefit of doubt. Accordingly, the impugned Judgment of

conviction dated 01.12.2005 and order of sentence dated 02.12.2005 passed by the learned 1st Additional Sessions Judge, Gumla in Sessions Trial No.

158 of 1995 being not sustainable in the law, is set aside and the appellant Rinku Singh @ Amrika Singh is acquitted of all the charges. The appellant

Rinku Singh @ Amrika Singh is on bail, in view of his acquittal, he is discharged of the liability of his bail bond.Â

Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment.Â

In result, this appeal is allowed.Â