ORDER
1. The appellant has been convicted for commission of offences punishable under Sections 376 and 366 of the Indian Penal Code, 1860 (in short 'IPC') by the sessions judge, Samstipur and the saidconviction has been upheld by the High Court.
2. In a case where there are concurrent findings of fact, this Court will normally not examine evidence in order to find whether there are any infirmities, unless and until it is satisfied that grave miscarriage of justice has taken place and circumstances which were in favour of the accused have not been given due consideration and materials which are relevant have been ignored.
3. The case of the prosecution as unfolded during trial was that Pramila Devi (PW1) along with her sister-in-law and mother-in-law were sleeping in the house on 28th November, 1995. The accused Ashok Kumar Jha allegedly entered the room after pushing the thatched enclosure, took Pramila Devi (PW1) in his lap and came out of the house. PW1 is then alleged to have seen that her sister in law Indira Devi (PW2) was picked up in lap by the other accused Tuntun Jha and also brought out of the hut. Both these ladies are alleged to have raised an alarm whereupon their mother-in-law got up; but she was caught hold of by accused Ravindra Mishra and also the three ladies were then taken to an arhar field. It was in that field that Pramila Devi and Indira Devi are alleged to have been raped, while the mouth of PW1's mother-in-law, Badami Devi (PW3), was closed by some cloth, and accused Ravindra Mishra had thus kept the said mother-in-law confined. It was further stated that at dawn they left the field and then they ran away fearing threat to their life. Subsequently, the villagers suggested that a complaint should be lodged whereupon the FIR was lodged in the police station on 9th December, 1995.
4. It is not necessary for us to refer to evidence in great detail except to the extent relevant. It may be noticed that on behalf of the accused 8 witnesses were examined, four of the witnesses were produced who contradicted the testimony of PW1 who had stated that at the time of lodging of report with the police station, the chowkidar (DW1), dafadar (DW3), mukhiya (DW4) and sarpanch (DW2) had gone alongwith her to police station to see that the complaint is filed.
5. PW1 in her statement in court repeated what had been recorded in the FIR. She inter alia stated that she had five daughters all of whom were sleeping in the house with her on the night of the alleged incident. It is significant to note that in her cross examination she stated that the three ladies came back from the field where two of them had been raped in the morning and there were villagers who were present there. None of them were informed about the alleged incident. No complaint was lodged at that point of time and in her testimony PW1 had stated that she and the other two ladies left the village. It is after few days that the villagers contacted them and they came back whereupon the FIR was lodged on 9th December, 1995.
6. The accused denied their involvement in the incident but the trial court did not attach importance to the statements ofDW1, DW2, DW3 and DW4 who had contradicted PW1 with regard to lodging of the report in the police station by observing that these four defence witnesses were highly interesting. There is nothing on record to support this conclusion.
7. The High Court in appeal did refer to the testimony of the defence witnesses but thereafter did not deal with the same. It only referred to the fact that the testimony of the DWs. has not been accepted by the trial court and that defence witnesses 5 and 8 were only formal witnesses.
8. In the instant case, the FIR was lodged long after the date of the alleged incident. The only explanation for the delayed in lodging the FIR is that the ladies after coming back to the houses in the morning left the village concerned. It is, however, seen that they claimed to have come back to the village after the villagers asked them. PW1 categorically stated that other villagers were present when they returned after the rape. Even the children of PW1 were present in the hut. No explanation has been given as to why at that point of time no complaint was lodged or anybody informed. Though delayed lodging of FIR may not be fatal in all cases, in view of several other suspicious circumstances, they assume importance. It has also not been explained as to how villagers came to know of the incident to call the three ladies to lodge complaint. Apart from the improbability of the story of the three ladies who were living in a house in which no male member was present being taken away in themiddle of the night on 28th November, 1995 for the purpose of committing rape outside, rather than performing the heinous act in the hut itself. It is highly improbable that three ladies spent nearly three hours without any cloth in a bitter cold night. The acceptability of the evidence of DW 1 to DW4 has not been dealt with. These four witnesses namely, DW1 to DW4 are not stated to be related to any of the accused. They are four independent persons. It is unfortunate that the High Court did not deal with this aspect of the case. It also did not attach any importance to the admitted position of bitter hostility between the parties. Though that by itself may in some cases be not of much relevance to make prosecution case vulnerable, in the present case along with other factors it is relevant. By totally ignoring the evidences of DWs 1 to 4 which more than cast doubt on the case of the prosecution grave injustice has been done to the accused. What weight could, have been attached to it is another matter. But non-consideration is not proper. That adds vulnerability to the prosecution case, as the discussions supra go to show. We also notice in that the FIR it was alleged that one Birju Jha the fourth accused had also committed rape but in her testimony PW1 did not state so and on the contrary she said that the name of Birju Jha was inserted because his name was being mentioned at the time when the incident was taking place. She further stated that she has seen Birju Jha for the first time in the court. We also note that in the FIR, it has not been mentioned that Ravindra Mishra had committed rape, even thoughin her testimony PW1 accused him of the same. Statement of PW1 was wholly unreliable. Similar is the case with the evidence of PWs 2 & 3. The cumulative effect of the vulnerable circumstances corrodes credibility of the prosecution evidence.
9. For the aforesaid reasons, we allow the appeal and acquit the appellant of the offences he has been charged with. He should be released from jail forthwith unless he is required to be in custody otherwise.