Evidence Law; Girija Shankar Dubey @ Girija Vs. State of Bihar [Patna High Court, 08-09-2017]

Penal Code, 1860 – S. 376G – Evidence Act, 1872 – S. 119 – Gang Rape – Witness unable to communicate verbally – Admissibility of Evidence of such a Witness – No doubt this case is heinous in nature considering the allegation of kidnapping and thereafter gang rape of a deaf and dumb girl but the courts are not to be swayed by sentiments, rather has to consider the materials available on record to come to a finding on the basis of materials available on record, specially when the evidence of P.W.5 itself appears to be impeachable in character and not free from reasonable doubt. As the same does not inspire confidence, the conviction of appellants on her testimony cannot be held to be sustainable.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA

Date: 08 -09-2017

Criminal Appeal (SJ) No.172 of 2014

Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR)

Girija Shankar Dubey @ Girija Dubey, son of Late Ram Singasan Dubey, resident of village- Dadara, P.O.- Pahariya, P.S.- Bhagwanpur, District- Kaimur at Bhabua …. …. Appellant Versus The State of Bihar …. …. Respondent With Criminal Appeal (SJ) No. 173 of 2014 Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR) Radhey Shyam Tiwary, son of Shri Daya Shankar Tiwary, resident of village- Kathaura, P.S.- Sonhan, District- Bhabua (Kaimur) …. …. Appellant Versus The State of Bihar …. …. Respondent With Criminal Appeal (SJ) No. 210 of 2014 Arising Out of PS.Case No. -333 Year- 2012 Thana -BHABHUA District- BHABHUA (KAIMUR) Jalim Bind, son of Tulsi Bind, resident of Village Bahuara, P.S. Sonhan, District Kaimur (Bhabua)….. …. Appellant Versus The State of Bihar through Dudhnath Tiwary (informant) S/o Late Chandrika Tiwary R/o Village Kathaura, P.S. Sonhan, District Kaimur (Bhabua). …. …. Respondent Appearance : (In CR. APP (SJ) No.172 of 2014) For the Appellant/s : Mr. Ranjeet Kumar Mishra, Advocate For the Respondent/s : Mr. Binod Bihari Singh, APP (In CR. APP (SJ) No.173 of 2014) For the Appellant/s : Mr. Ajay Kumar Thakur with Nilesh Kumar, Advocates For the Respondent/s : Mr. Bipin Kumar, APP For the informant : Mr. Rajni Kant Pandey, Advocate (In CR. APP (SJ) No.210 of 2014) For the Appellant/s : Mr. Radha Mohan Pandey, Advocate For the Respondent/s : Mr. D.K.Sinha, APP.

JUDGMENT

All the above appeals are directed against the judgment dated 15.2.2014 and order dated 17.2.2014 passed by Shri Hari Dayal Patel, 1st Additional Sessions Judge, Bhabua, Kaimur in Sessions Trial No. 83 of 2013/63 of 2013 by which the appellants in all the above appeals had been convicted under Section 376-G of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.10,000/- each and in default in payment of fine, further simple imprisonment for six months. As all the appeals are directed against the same judgment and order, they are taken up together and being disposed of by a common judgment.

2. Prosecution case, in brief, based on the fardbeyan of the informant, Dudh Nath Tiwary (P.W.4) is that on 1.10.2012 at around 10 P.M. after having dinner he along with his wife, Sushila Devi (P.W.3) and daughter, Rekha Kumari (P.W.5), who is deaf and dumb, but has cleared her Matriculation Examination, and can communicate by reading and writing, went off to sleep. His wife and daughter were sleeping in the adjoining room on separate cots when at around 11.30 P.M., his wife woke up and found her daughter missing from the cot. After searching for her, when she could not find her, she informed the informant about the same. Thereafter, the informant (P.W.4) along with brother Lalmuni Tiwary (P.W.2) and other villagers searched for her in and around the village but could not find her. He kept on searching on 2.10.2012 as well but there was no information about her. At around 3 P.M., some village boys informed that the victim was lying under the staircase of the newly constructed school building. The informant with other villagers went there and brought back his daughter. The victim told through the sign and gesture that 4-5 people took her away by covering her mouth. The informant further stated that he has a firm belief that the accused Radhey Shyam Tiwary along with some other has taken away his daughter.

3. On the basis of fardbeyan of the informant, FIR was registered and Bhabua (Sonhan) P.S.Case No. 333 of 2012 was instituted under Section 376/34 of the Indian Penal Code against accused Radhey Shayam Tiwary and other unknown persons and investigation commenced. On completion of investigation, the Investigating Officer submitted charge sheet against Radhey Shyam Tiwary, Jalim Bind and Girija Shankar Dubey (all appellants) underSection 376/34 of the Indian Penal Code.

4. The Chief Judicial Magistrate took cognizance of the offence and on 14.2.2013, the case was committed to the court of sessions. Accordingly, charge was framed under Section 376-G/34 of the Indian Penal Code to which the accused persons pleaded not guilty.

5. Defence of the appellants as per the statement made under Section 313 Cr.P.C. and from documents produced by the appellants, is that they are not guilty and that no such incident happened and they are being falsely implicated in the present case as there were cases going on between appellant Radhey Shyam Tiwary and his uncle and in collusion with his uncle he has falsely been implicated.

6. During trial altogether seven witnesses have been examined on behalf of prosecution, they are P.W.1 Dr.Sangha Mitra Singh, P.W.2 Lalu Tiwary, P.W.3 Sushila Devi, P.W.4 Dudh Nath Tiwary (Informant), P.W.5 Rekha Kumari, P.W.6 Ajit Kumar Singh and P.W.7 Abhay Kumar.

7. Apart from the above, following documents have been admitted as exhibits in this case, they are Ext.1- report of doctor Sangh Mitra Singh (P.W.1), Ext.1/A- Signature of Doctor Sangh Mitra Singh on report of medical examination for determination of age, Ext.2- Signature of Dudh Nath Tiwary on Fardbeyan, Ext.3- Application to Chief Judicial Magistrate by Investigating Officer for recording of statement of victim, Ext.4- Statement of victim (P.W.5) under Section 164 Cr.P.C., Ext.5- Fardbeyan and endorsement in writing by Abhay Kumar on Fardbeyan.

8. On behalf of defence, following documents have been admitted as exhibits, Ext.A- Certified copy of judgment dated 25.10.2011 in the matter of State v. Radhey Shyam, Ext.B- Certified copy of FIR in Bhabua P.S.Case No. 101 of 2007, Ext.C- FIR of Bhagwanpur P.S.Case No. 83 of 2002, Ext.D- Title Suit No. 208 of 2002, Ext.E- Complaint Case No. 541 of 2002, Ext.F- Trial No. 146 of 2013, Ext.G- order in Revision Case No. 126 of 2011 to show that there was enmity between appellant Radhey Shyam Tiwary with his uncle because of which he has falsely been implicated in this case at the instance of his uncle.

9. After conclusion of trial, the learned Trial Judge has convicted the appellants under Section 376-G of the Indian Penal Code and sentenced them, as stated above.

10. Being aggrieved by the aforesaid judgment and order, the appeals have been filed by the appellants on various grounds.