Shashank Shekhar Bera @ Shashankar Bera vs State Of Jharkhand

Rongon Mukhopadhyay, J

Heard Mr. Yogesh Modi, learned counsel for the appellants and Mr. Saket Kumar, learned A.P.P.

This appeal is directed against the judgment and order of conviction and sentence dated 28.11.2015 (sentence passed on 30.11.2015) passed by Shri Satya Prakash Sinha, learned Additional Sessions Judge-I, East Singhbhum, Jamshedpur in S.T. No.247/13, whereby and whereunder the appellants have been convicted for the offence under Section 376(D) IPC and have been sentenced to rigorous imprisonment for 20 years along with a fine of Rs.15,000/- each and in default in payment of fine, to undergo further rigorous imprisonment for 6 months.

The prosecution case arises out of the Fardbayan of victim ‘X’ recorded on 13.02.2013 in which it has been stated that the husband of the informant works in a soap factory at Chakulia. On 12.02.2013 at 8.30 pm the informant had served dinner to her mother-in-law and after answering the call of nature she returned to her house where she found two persons in the kitchen. In the light the informant identified them as Shashank Shekhar Bera and Setu Bera. Both the said persons caught hold of the informant and by pressing her mouth forcibly took her towards the house of Anil Bera. The informant struggled and became unconscious. It has been stated that the husband of the informant returned from work at midnight and was searching for her when she called out at which the husband of the informant brought her home. It has been alleged that when the victim regained consciousness, she found her entire body paining and blood was oozing from her private parts and the informant realized that she had been subjected to rape and she was thrown by the accused persons from the roof.

Based on the aforesaid allegations, Chakulia P.S. Case No. 11 of 2013 was instituted under Section 376(G) and 307 I.P.C. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the court of sessions where it was registered as S.T. No. 247 of 2013. Charge was framed against the accused under Section 376(A), 376(D) and 307 IPC which was read over and explained to the accused to which they pleaded not guilty and claimed to be tried.

The prosecution has examined as many as seven witnesses in support of its case.

P.W.1 is the informant who has proved her signature as well as the signature of her husband in the Fardbayan which have been marked as Exhibit-1 and 1/1. She has stated that her husband was not at home. Setu Bera had caught hold of her from the back and when she raised an alarm, he pressed her mouth. Shashank had come thereafter and had caught her legs and subsequent thereto both committed rape upon her. She had become unconscious. She had an injury on the waist for which she had to undergo an operation.

In cross-examination she has deposed that about a month back she had instituted a case of outraging of modesty against Falguni Bera. Both the accused had committed rape upon her outside her house. She does not know Anil Bera, but she had seen his house. She cannot say as to whether she was taken towards the house of Anil Bera or not. She had not stated before the police that she had become unconscious. She had also not stated before the police that both the accused after closing her nose and mouth had carried her on their shoulder towards the house of Anil Bera. She had also not stated before the police that the accused persons had pushed her from the roof. There is no eyewitness to the occurrence. At the time of the occurrence her mother-in-law and three daughters were inside the house. The incident happened when she returned home after answering the call of nature.

P.W.2 Thakur Das Bera is the husband of victim ‘X’ who has stated that on 12th February 2013 at midnight he had come back home from work in the factory and despite knocking on the door nobody replied. He called out the name of his daughter Shilpa Bera when his wife replied that she is beside the road. When he went to the said place, he found his wife struggling and he picked up his wife on his lap and brought her inside the house. His wife had disclosed that at 8.00 pm Setu Bera and Shashank Bera had forcibly taken her away and committed rape upon her and dumped her from the roof. She was thrown from the roof of Anil Bera and the said house was not inhabited. The house of Anil Bera is in front of his house. When his wife returned home after answering the call of nature, Shashank Bera and Setu Bera were found sitting in front of the kitchen. Both were identified in the light of the mobile.

In cross-examination he has deposed that his duty is from 8.00 am to 7.30 pm. It takes about 20 minutes to travel from the factory to his house. He had not given any statement before the police that he goes for work in the factory at 8.00 am and returns at midnight. He had not stated before the police that on calling out his wife had replied that she was on the road. He had met his wife for the first time under the roof of the house of Anil Bera. She was not unconscious at that time. His wife had not disclosed the incident to him at that point of time. When his wife had disclosed about the incident to him, his mother and daughters were also present. Both the accused are uncles in village relation. He has deposed that Phalguni Bera is the son of Shashank Bera against whom a case of outraging of modesty was instituted by his wife and after one month the rape case was instituted. He had not disclosed about the incident to anyone except the petitioner.

P.W.3 Shaktipado Bera, P.W.4 Kavita Kherwar and P.W.5 Dhananjay Bera did not support the case of the prosecution and were declared hostile by the prosecution.

P.W.6 Dr. Mrs. Ranju Jha was posted as a Senior Resident, Gynecological Department, MGM Hospital, Jamshedpur and on 13.06.2013 she had examined victim ‘X’ and had found the following:

M/I- (i) Black mole in left cheek.

(ii) Black spot on nose.

On examination victim looked weak, complained of pain in legs, clothes and hair mismanaged. She was having three children.

Her LMP was on 15.01.13.

On examination of private parts, there was sign of trauma, thigh, perineum and valve. There was bleeding from vaginal orifice.

Hymen was torn and tender.

Investigation done-

Vaginal smear for spermatozoa – No spermatozoa was found in supplied smear. Ossification study for the age of subject – According to Radiology estimated age of subject was above 19 years.

It was opined that sexual assault has been done.

In cross-examination she has deposed that the age of sexual intercourse could not be ascertained. Whatever signs of sexual intercourse were found may be as a result of union of husband and wife.

P.W.7 Vishwanath Singh was posted as an Officer In-Charge of Chakulia PS and on 13.02.2013 the Fardbayan of victim ‘X’ was recorded on the basis of which Chakulia PS Case No. 11 of 2013 was registered. He had taken over the investigation after which he had recorded the restatement of the informant and the statement of Thakur Das Bera. He had inspected the place of occurrence. The first place of occurrence is village Namopara, P.S. Chakulia and the second place of occurrence is the house of the victim. The house of the victim is built with mud which has two rooms; in one room the mother-in-law of the victim resides while in the other room the victim stays with her children. There is a kitchen adjacent to the room of the victim and in the south of the house there is an alley. The other place of occurrence is the roof of Anil Bera situated on the eastern side of the house of the victim. Some blood was found in the roof. In front of the house of Anil Bera there is a field bounded with bamboos where the victim is said to have been lying. He had recorded the statements of other witnesses. He had submitted charge sheet on completion of investigation. He has proved the Fardbayan and the endorsement on the Fardbayan which has been marked as Exhibit-3. The formal F.I.R has been proved and marked as Exhibit-4.

In cross-examination he has deposed that on 22.02.2013 the treatment related documents were given to him by her husband which have been marked as Exhibit-A and A/1. The report merely discloses about fracture. The report of MGM Hospital dated 03.03.2013 was received by him on 04.03.2013. The victim had never shown him the place of occurrence. The victim had not disclosed that she was subjected to rape in the roof of the house of Anil Bera. He had not recorded the statement of Anil Bera. He had not recorded the statements of the children of the victim or the mother-in-law of the victim. None of the witnesses had stated about the persons committing rape upon the victim on the date when such incident had taken place.

The statements of the accused were recorded under Section 313 Cr.P.C in which they have denied their complicity in committing rape upon the victim.

It has been submitted by Mr. Yogesh Modi, learned counsel for the appellants that there are several contradictions in the evidence of the victim who has been examined as P.W.1. The entire facets of the case reveal that the appellants have been falsely implicated on account of previous enmity with the victim. None of the inmates of the house present at the time of occurrence have been examined by the prosecution.

Mr. Saket Kumar, learned A.P.P has submitted that the evidence of P.W.1 and P.W.2 clearly shows that P.W.1 was subjected to rape by the appellants and the medical report is also supportive of the said fact.

We have heard the learned counsel for the respective parties and have also perused the trial court record.

The victim ‘X’ is said to have been forcibly taken away by the appellants and she was subjected to rape and thereafter thrown from the roof of the house of Anil Bera. So far as the charge under Section 307 IPC is concerned, the same has been disbelieved by the learned trial court. As regards the allegation of gang rape is concerned, it seems that when the victim had gone outside her house to answer the call of nature, both the appellants had stealthily entered into her kitchen and as soon as she returned, she was abducted and subjected to rape. As per the victim, she has stated about the time of occurrence at 8.30 p.m. while in her evidence as P.W.1, the time has been altered to 10.00 p.m. The husband of the victim, who has been examined as P.W.2, has stated about the disclosure made by the victim to him about the time of the incident which is at 8.00 p.m. As per P.W.2, he had returned home at midnight and on hearing the sound of his wife, he had picked and brought her to the house where the entire occurrence unfolded before P.W.2. The improvement in the version of P.W.1 with respect to the timing of the incident seems only in order to fill up the lacuna in the prosecution case regarding the time gap to the incident of rape and the time when her husband brought her back apart from the possibility of she being recovered earlier as she was lying beside the road, if she persisted with the timing of 8.30 p.m. as the moment when the incident had occurred. The other noticeable factor would be the absence of any eyewitness at least to the abduction of the victim. The informant lived in a mud house comprising of two rooms and a kitchen. Any goings-on would not have escaped the attention of the inmates of the house. The informant was abducted from the kitchen and even the mother-in-law of the informant not knowing anything about such abduction seems to be strange. The prosecution has not bothered to examine the mother-in-law and her evidence would have been vital for the prosecution. None of the inmates who were present in the house were also examined. The other feature of the case is of a complaint made to the police about a month prior to the incident by the victim against Falguni Bera, the son of the appellant no. 1 and nephew of appellant no. 2 for outraging her modesty. This would indicate a prior enmity thereby not ruling out the possibility of false implication. The description of the house of the victim and its vicinity by P.W. 7 (I.O.) reveals about the presence of houses but even though the victim continued to remain lying beside the road not a single person seems to have even been aware about the incident. P.W. 3 and P.W. 5 are the neighbours of the victim but both have been declared hostile by the prosecution.

Mr. Saket Kumar, learned A.P.P has laid much stress on the medical report which has opined about sexual assault committed upon the victim. In her cross- examination P.W.6 has stated that whatever signs of sexual intercourse she had found, may be as a result of union of husband and wife. The narration made by us above would indicate that the victim has given contradictory statements when we consider the same in the backdrop of the evidence of her husband (P.W.2) and major contradictions and infirmities are apparent in such statements which would lead us to conclude that the prosecution has not been able to prove its case beyond all reasonable doubt.

We, therefore, on the basis of the discussions made herein above, set aside the judgment and order of conviction and sentence dated 28.11.2015 (sentence passed on 30.11.2015) passed by Shri Satya Prakash Sinha, learned Additional Sessions Judge-I, East Singhbhum, Jamshedpur in S.T. No.247/13.

This appeal is allowed.

Since the appellants are in custody, they are directed to be released immediately and forthwith, if not wanted in any other case.

Pending interlocutory application(s), if any, stand(s) closed.