Ghanshyam Prasad, J.
1. The appellants of both Jibe appeals have called in question their conviction and sentence dated 16.12.20,02/17.12.2002 passed by Fast Track Court No.IV, Sitamarhi in Sessions Trial No. 285 of 2002/198 of 2002. Both the appellants have been convicted under Section 376 I.P.C. and sentenced to undergo R.I. for ten years and to pay fine of Rs. 3,000/- each and in default to undergo S.I. for one year.
2. The incident as narrated by the prosecution is not only shocking but also put question mark upon us to be called. as a civilized society. The young lady of unsound mind leading a vagabond life was subjected to gang rape under cover of her mental condition. A lady who deserves sympathy and care of the society was used to satisfy sexual lust.
3. The informant Ramashankar Mishra (P.W.6), the then Havaldar of Dumra P.S. and posted at outpost No. 3 lodged a fardbeyan on 6.4.2002 at 10.30 A.M. stating therein that on getting information about presence of a lady of unsound mind he went near rickshaw stand situated near Shankar Chauk and saw a lady aged about 25 years with a female child of four years laying in semi unconscious condition. He came to know from secret information that she was subjected to rape by someone. There is a Kali Mandir near the Chauk. The informant came in the Temple and enquired from its pujari Mahesh Giri(P.W.3), who disclosed in detail about the occurrence of rape.
4. According to the prosecution story, as unfolded in the fardbeyan, the victim lady Manwati Devi(C.W.1) had. come to that place on 18.3.2002 and began to live near Shankar Chauk. On 25.3.200.2 at 11.30 P.M. the Pujari Mahesh Giri was sleeping inside the temple. He woke up upon hearing cry of the child of the victim; came out of the temple premises and began to search the mother of the child. When he came near the meat shop situated within premises of rickshaw stand he saw both the accused-appellants, namely, Ashok Kumar and Bhajan Paswan committing rape upon the victim one by one. He tried to protest by calling them upon which both the accused-appellants threatened him with dagger. Out of fear he returned to the temple and told about the occurrence to other persons who were sleeping in the temple premises. Later on accused-appellant Bhajan Paswan came in the temple premises and left the victim there after giving threat to him.
5. On the basis of fardbeyan lodged by the informant, the police registered case against both the accused-appellants under Section 376 I.P.C. In course of investigation, the victim was medically examined by Dr. Usha Jaiswal(P.W.8), the Medical Officer, Sadar Hospital, Sitamarhi. The statement of main witness Mahesh Giri(P.W.3) was also recorded under Section 164 Cr.P.C. The statement recorded under Section 164 Cr.P.C. is Ext.2. However, statement of victim was not recorded as she was mentally not fit to give statement. The police after investigation submitted chargesheet against both the accused persons under Section 376 I.P.C.
6. The prosecution in course of the trial examined altogether eight witnesses. The victim Manwati Devi was also examined by the court as C.W.1. Except informant(P.W.6), I.O. Mahadeo Sah(P.W.7) and the Doctor(P.W.8), all other witnesses i.e. P.Ws.1 to 5 turned hostile.
7. No specific defence has been taken by the accused-appellants in their statements recorded under Section 313 Cr.P.C. In cross examination of witnesses, particularly informant, they have taken plea of only false implication by the informant as he used to eat meat and rice on credit. However, no oral or documentary evidence has been adduced in support of their defence.
8. It is to be noted here that the informant was not the eye witness of the occurrence. His evidence is hearsay inasmuch as it is based on the disclosure made by P.W.3 Mahesh Giri. The victim being a lady of unsound mind was also not in a position to narrate the entire story in a manner as expected from a prudent person. As said above, all other private witnesses including P.W.3 Mahesh Giri have turned hostile and refused to support the prosecution story. However, the learned lower court relying on the material available in the evidence of P.Ws.3, 6, 7 and C.W.1 coupled with Exts.2 and 3 has recorded the finding of guilt and has convicted the accused-appellants in a manner said above.
9. The learned Counsel for the appellants in course of submission assailed the verdict in question on several grounds. It is submitted that the findings of the lower court is based on mere surmises and conjecture and There is no legal material on the record to sustain the verdict of guilt of the accused-appellants. The only material witness i.e. P.W.3 has turned hostile. The learned lower court has seriously erred to rely on statement of P.W.3 recorded under Section 164 Cr.P.C. as substantive piece of evidence. He also challenged the genuiness and admissibility of Ext.3, which was produced for the first time in course of recording the evidence of P.W.3. It is further submitted by the learned Counsel for the appellants that the court below has erred to place reliance on the evidence of victim (C.W.1), who has not claimed to identify her rapists.
10. The victim of this case is admimissibly a lady of unsound mind. She was neither examined by the I.O. in course of investigation nor by the state in course of trial. However, the trial court in order to probe about the truth, examined her as a court witness no. 1. The court has put some relevant questions to her. On careful scrutiny of the question and answer, it is quite clear that while she was in Sitamarhi she was raped by someone. In answer to a question put by the court she has stated that the persons who committed rape upon her has been arrested. However, she did not identify any appellants and has stated that due to darkness she could not identify the culprits. The court has mentioned the mental condition of the witness in deposition. She has not been cross examined either by the prosecution or the defence. Both the parties have declined to put any question to her in cross-examination.
11. Another witness who has thrown some light on prosecution story is informant(P.W.6) Ramakant Mishra. His evidence is based on the disclosure made by P.W.3 Mahesh Giri. He has stated that on receipt of secret information he went to Shankar Chauk and found a lady aged about 25 years with a child aged about four years in her lap. On interrogation she did not speak anything. However, from pujari of Kali Mandir, namely, Mahesh Giri he came to know about the incident of rape. He has further stated that Mahesh Giri disclosed to him that in the night of 25th March, 2002 the lady was raped by both the accused-appellants near a meat shop of one Ashok Raut. He has further stated that Mahesh Giri disclosed before him that on hearing cry of child he came out of the temple and saw both the accused-appellants committing rape upon her and on his protest both of them threatened him to assault with Chhura. This witness has also identified both the appellants in dock.
12. In cross - examination, the accused-appellants have failed to elicit any material contradiction. However, the entire evidence of this witness is dumped by the learned Counsel for the appellants as hearsay and hence not admissible in law. Apparently, the submission of the learned Counsel appears to be correct. Section 60 of the Evidence Act bars hearsay evidence to be taken as admissible in law for proof of any occurrence/ fact
13. However, not all hearsay statement is inadmissible. There is a distinction between proving the factum of statement and proving the truth of statement. It is admissible if such evidence proposes to establish only the factum of statement made by other person and not the truth of the statement. This question has been dealt and answered by the apex court in a case reported in : (1982)ILLJ54SC (J.D. Jain v. The Manager of S.B.I.). In paragraph-10 of the judgment; it has been held as follows:
The next question is, is the evidence in the domestic enquiry really hearsay, as held by the Tribunal?
The word 'hearsay' is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever a person declares on information given by someone else .
The Privy Council in the case of Subramaniam v. Public Prosecutor (1956) I WLR 965 observed; 'Evidence of a statement made to a witness who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. The fact that it was made quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or some other persons in whose presence these statements are made.
14. The view was also followed in another decision of the Supreme Court in Balram Prasad Agrawal v. State of Bihar reported in 1997 S.C. 1830.
15. Now let us examine the evidence of P.W.6 in the light of above decision of the Supreme Court. The evidence of P.W.6 admittedly is based on the disclosure made by P.W.3 Mahesh Giri. The evidence of P.W.6 apparently does not sought to establish the truth of the statement. It only proposes to establish the factum of statement which was given to him by Mahesh Giri. Therefore, it is admissible and it cannot be rejected or dumped out rightly as contended by the learned Counsel for the appellants.
16. Now I turned to the evidence of Mahesh Giri(P.W.3). In examination-in-Chief, he has resiled from his earlier statement given before the police and denied to have given any statement before the police in course of the investigation. However, he has admitted that he is pujari in Kali Mandir and on the alleged date of the occurrence on hearing cry of the child he came out of the mandir in search of her mother. Apart from above, he has not made any statement in support of the prosecution story. Therefore, he has been declared hostile by the prosecution. In cross-examination, paragraph-2, taking U turn he denied entire prosecution story. However, from paragraph-3 of the cross-examination, it would appear that he did not muster courage to directly resile from the statement given be-fore the Magistrate under Section 164 Cr.P.C. While admitting about his statement before the Magistrate he simply said that he did not remember what statement he gave before him. To a query made by the court he tried to justify his evidence of ignorance by saying that due to failing memory he often forgets the happenings of last four months.
17. Now turn to the statement of this witness given before Magistrate under Section 164 Cr.P.C., which is Ext.2. This document is an admitted document inasmuch as the P.W.3 in cross-examination has not only admitted about his statement before the Magistrate but also has proved his signature and endorcement upon it as Ext.I.
18. The alleged occurrence of rape took place in the night of 25th March, 2002. The fardbeyan was lodged on 6.4.2002 and the statement of this witness was recorded by Magistrate on 8.4.2002. On perusal of Ext.2, it would appear that this witness in his statement has fully supported the prosecution story of gang rape upon the victim by these two accused-appellants. He has claimed himself as an eye witness of the occurrence of rape. The contents of the statement of Ext. 2 fully , corroborate the factum of statement narrated by the informant(P.W.6).
19. On perusal of evidence of P.W.3, it would further appear that in course of re-examination, a written statement, in pen and signature of this witness was produced before him which was owned by him and exhibited as Ext.3. It also contains the same statement of facts as contained in Ext.2 and fardbeyan as also in evidence of P.W.6. There is also statement regarding threat to his life at the hands of the accused-appellants.
20. From above facts, it is quite clear that this witness took 'U' turn from his earlier statements made before the police as well as Magistrate due to threat given by the accused-appellants or otherwise and turned hostile before the court. There is no doubt that the fate of the prosecution is largely dependent on the evidence or statement of this witness.
21. I am conscious of the well settled law that the statement of witness recorded under Section 164 Cr.P.C. even on oath cannot be used as a substantive piece of evidence. However, here the matter is not so plain or simple. Actually, P.W.3, Mahesh Giri is the person on whose disclosure the prosecution of the accused-appellants was set on motion. First of all he disclosed about the occurrence of rape committed by the appellants to the informant(P.W.6). On the basis of his disclosure, P.W.6 lodged fardbeyan before the police. The police in course of investigation recorded his statement. Thereafter, the statement of this witness was also recorded under Section 164 Cr.P.C. before the Magistrate at the earliest opportunity. Not only it, in course of investigation, he also gave written statement supporting the allegation which is Ext.3. In all these statements P.W.3 supported about the occurrence and claimed to be an eye witness of the incident of rape. Surprisingly, in evidence before the court he did not support about the occurrence and became turtle. Apparently, it was either due to some threat perception or due to some other consideration which prompted him to take 'U' turn from his consistent earlier statement made before the different persons or authorities.
22. Now the question is whether this person Mahesh Giri be allowed to highjack justice by turning hostile before the court. In my opinion, he should not be allowed and his previous statement made before the Magistrate at the earliest opportunity under Section 164 Cr.P.C. must get some credence if it is being corroborated on material points by other evidence.
23. It is needless to say, as discussed above, that there are other evidence also on record to corroborate the statement mentioned in Ext.2. P.W.6 Ramakant Mishra, the informant, has proved factum of the statement disclosed to him by P.W.3 Mahesh Giri which fully corroborates the statement made by P.W.3 under Section 164 Cr.P.C. Not only it, we also may get some corroboration from the evidence of victim(C.W.1) Manwati Devi, She has stated in her evidence that she was subjected to rape by someone who was in jail.
24. I do not propose to discuss the evidence of other witnesses in detail as they are not going to affect the merit of the case or throw any light upon the prosecution story. P.Ws.1, 2, 4 and 5 have also turned hostile before the court, though according to the I.O.(P.W.7), they gave supporting statement before him during the investigation. P.W.7, Mahadeo Sah is the 1.0. of the case. P.W.8, Dr. Usha Jaiswal is the doctor, who on requisition of the police examined the victim. Ext.4 is the medical report. The victim was examined after lapse of several days of the alleged occurrence and hence no definite opinion was given with regard to commission of rape.
25. I would be failing in my duty if I do not discuss about admissibility or relevancy of Ext.3, the written statement of Mahesh Giri, alleged to be given to the police during the investigation, but not produced at the time of submission of chargesheet alongwith other police papers. The learned lower court has discussed this matter as well as contention of the defence in thread-bare and has rightly held that there is no legal bar against accepting such document even at later stage of the trial if the matter of delay is satisfactorily explained by the prosecution and for which he has relied upon a decision of the Supreme Court reported in 2002(2) PCCR 152. It is to be mentioned here that P.W.3, the maker of the statement has admitted about it in his evidence. Apart from it, even if it is excluded from the evidence, the fate of the prosecution case is not going to be affected in any manner as there are other sufficient material on the record to support the prosecution story.
26. Thus, from the above discussions of material available on the record, it is quite apparent that the court below has rightly found the accused-appellants guilty of committing rape upon a lady of unsound mind. Having regard to the nature of the offence as well as mental condition of the victim the quantum of sentence awarded to the accused-appellants does not warrant any interference.
27. Before parting with the judgment I wish to give some direction to the lower court in ends of justice. Now a days a peculiar trend has developed. Witnesses change their statement during different stages of the criminal proceeding at their own sweet will and thereby effecting the course of justice though, under the law, they are bound to state truth and truth only. In the instant case also P.W.3 Mahesh Giri tried to pollute the course of justice by turning turtle from his original version of the occurrence at later stage of the proceeding/trial. This trend should be arrested and such witnesses should not be allowed to escape consequences of their sin. Therefore, it is expedient in the interest of justice that P.W.3, Mahesh Giri must be prosecuted for perjury under relevant provision of law. I direct the court below to initiate criminal proceeding against P.W.3 Mahesh Giri under appropriate provision for intentionally giving contradictory and statement at different stages of judicial proceeding.
28. With the above direction, both the appeals are hereby dismissed and the judgment and order in question is confirmed.