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2003 DIGILAW 947 (JHR)

Suresh Mahto v. State of Jharkhand

2003-08-04

VISHNUDEO NARAYAN

body2003
JUDGMENT : By Court.- Both the appellants named above have preferred these appeals against . the impugned judgment and order dated 01.08.2002 and 02.08.2002 respectively passed in Sessions Trial No. 326 of 2001 by Shri Prabhu Tiwary, Special Judge-cum Additional Judicial Commissioner, Ranchi whereby and whereunder they were found guilty for the offence punishable under Section 376 (2) (g) of the Indian Penal Code and they were convicted and sentenced to undergo R.1. for 10 years each. Both the appeals are hereby disposed of by this judgment. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 1) of P.W. 3, Lalo Kumari, the informant who is an unmarried woman aged about 21 years and alleged to be the victim of ravishment in this case recorded on 12.12.2000 at about 22.00 hours in the village Barway Barsati by S.I., Shri PR. Sharma, O.C. Ormanjhi P.S. regarding the occurrence which is said to have -taken place on that very day at 19.30 hours in a bamboo clump between village Oahu and Buribagi, P.S. Ormanjhi District Ranchi and a case under Section 323 and 376/34 of the Indian Penal Code was instituted against both the appellants by drawing a formal F.I.R. on the following day at 01.30 hours which was received on 14.12.2000 in the court empowered to take cognizance. 3. According to the prosecution case as averred in Ext. 1, P.W. 3, the informant works as a daily wage labourer in the construction of a building at Ranchi along with others including P.W. 5, Sita Devi and due to the late hours of the work. P.W. 5, Sita Devi missed the train for going to her house situate in village Bargawo, P.S. Namkom and at the instance of the informant she accompanied her for her house on a trekker and they came to Ormanjhi and got down from the trekker and by that time it has become dark. It is alleged that the informant also purchased eggs at the Block Chowk Ormanjhi and from there the informant in the company of P.W. 5, Sita Devi proceeded for their village on foot and when, they were in between villages Oahu and Buribagi they met both the appellants who started teasing them and on being told that they will report against them at their respective houses, both the appellants allowed them to proceed ahead. It is alleged that when the informant and P.W. 5, Sita Devi proceeded further and when they reached near a lonely place in between the aforesaid villages, both the appellants cam~ there and restrained them from going ahead and both the appellants caught the informant and took her inside the bamboo clump away from the road where they ravished the informant one by one in spite of the protest made by P.W. 5, Sita Devi. It is also alleged that the informant had attempted to raise alarms but her mouth was gagged and she was intimidated and also slapped. The prosecution case further is that after ravishing the informant appellant Suresh Mahto took P.W. 5, Sita Devi with him to some other place and he has also ravished Sita Devi aforesaid and during that period appellant Mahaveer Mahto was ravishing the informant. Lastly it has been alleged that after ravishing the informant Mahaveer Mahto attempted to escape away and at that moment she raised an alarm on which P.W. 1, Jogendra Mahto and P.W. 2, Hari Mahto besides other persons came there who were told about the occurrence. 4. Both the appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case by the informant at the instance of Jogeshwar Thakur, the mukhiya of the village due to enmity which was existing and alive between appellant Suresh Mahto on the one hand and the Mukhiya on the other hand as the appellant Suresh Mahto was appointed as village Postmaster and the candidature of the son of Mukhiya was rejected. 5. The prosecution has, in all, examined six witnesses to substantiate its case. P.W. 6, Deelip Kumar Singh is a formal witness who has proved the fardbeyan (Ext. 1) the formal F.I.R. (Ext. 2) and the seizure list (Ext. 3) in respect of the seizure of the petticoat and bangles of the informant. P.W. 3. Lalo Kumari is the informant of this case and she is said to have been ravished by the appellants in the occurrence of this case along with P.W. 5, Sita Devi. 1) the formal F.I.R. (Ext. 2) and the seizure list (Ext. 3) in respect of the seizure of the petticoat and bangles of the informant. P.W. 3. Lalo Kumari is the informant of this case and she is said to have been ravished by the appellants in the occurrence of this case along with P.W. 5, Sita Devi. P.W. 1, Jogendra Mahto and P.W. 2, Hari Mahto both residents of village Dahubar Toli are said to have come to the place of occurrence on the alarms raised by P.W. 3, after fleeing away of the appellants. P.W. 4, Rajesh Mahto is the brother of the informant who was told about the incident by her. P.W. 5, P.W. 1, P.W. 2 and P.W. 4 have turned hostile and they do not at all corroborate the prosecution case regarding the occurrence in question as alleged by P.W. 3, the informant in her fardbeyan (Ext. 1). The medical witness who has examined P.W. 3 and P.W. 5 on the requisition of the police has also not taken oath in this case to support the prosecution case. However, the photo copy of the report of the medical witness has been brought on the record on behalf of the appellants which are Ext. A series. The I.O. has also not taken oath in this case for the reasons best known to the prosecution. However, six witnesses have been examined on behalf of the defence to probabilise the defence version that appellant Suresh Mahto and one Devendra Thakur son of Jogendra Thakur, the Mukhiya of the village were the candidates for appointment to the post of Postmaster in the village Post Office in which appellant Suresh Mahto was appointed and the candidature of the son of the said Mukhiya was rejected and due to this the Mukhiya of the village was harbouring grudge and annoyance against this appellant and he got appellant Suresh Mahto falsely implicated in this got up case through the informant. D.W. 3 and 5 are on the question of alibi of appellant Mahaveer Mahto as according to them Mahaveer Mahto also was 10 kms. away at the house of his relative where he had gone for doing cultivation work 6n the day of the occurrence. 6. D.W. 3 and 5 are on the question of alibi of appellant Mahaveer Mahto as according to them Mahaveer Mahto also was 10 kms. away at the house of his relative where he had gone for doing cultivation work 6n the day of the occurrence. 6. In view of the oral and documentary evidence on the record the learned court below has placed reliance on the uncorroborated solitary testimony of P.W 3, Lalo Kumari, the informant and came to the finding of the guilt of the appellants and convicted and sentenced them as stated above. 7. Assailing the impugned judgment as perverse and against the weight of the evidence on the record it has been submitted by the learned counsel appearing for the appellant that the learned court below did not at all scrutinize and consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. Elucidating further it has been submitted that the entire case of the prosecution regarding the ravishment of PW 3, Lalo Kumari, the informant as alleged is highly improbable and there is no iota of legal evidence on the record at all to substantiate the prosecution case and even PW 5, Sita Devi who was going with her and also alleged to have been ravished by appellant Suresh Mahto has gilA3n a total go by to the prosecution case, totally denying the occurrence as averred in the fardbeyan and not only this even PW 4, Rajesh Mahto, the brother of the informant is also not coming forward to support the prosecution case even as hearsay witness. PWs. 1 and 2 have also not supported the prosecution case even as hearsay witnesses. PWs. 1 and 2 have also not supported the prosecution case even as hearsay witnesses. The non-examination of the doctor who has examined PW 3 and PW 5 on the requisition of the police as well as of the I.O. is a fatal lacuna of the prosecution case and there is no objective finding of the medical witness to support the existence of any external or internal injury on the person of PW 3 and P.W 5 as well as any objective finding of the I.O. regarding the place of occurrence where according to the prosecution case PW 3 and PW 5 have been ravished and in such a situation 'there is no legal evidence on the record to corroborate the testimony of PW 3 and PW 5 regarding her ravishment as alleged. It has also been submitted that the petticoat of pink colour which has been handed over by PW 3 to the I.O. on the following day of the occurrence and seized as per Ext. It has also been submitted that the petticoat of pink colour which has been handed over by PW 3 to the I.O. on the following day of the occurrence and seized as per Ext. 3 has neither been sent to the Forensic Science Laboratory for its chemical examination nor it has been produced before the court for the reasons best known to the prosecution which equally casts a cloud of suspicion to the very credibility of the prosecution case and in course of evidence a new story have been introduced by P.W 3, the informant producing a wrapper of blue colour spread in the bamboo clumps on which she is said to have been ravished only with a view to explain absence of any external injury on the back portion of her body alleging that the said wrapper belongs to appellants Suresh Mahto which she has carried to her house and kept it with her during the pendency of this case but she has not whispered in respect thereof to the I.O. Lastly it has been submitted that the solitary testimony of the informant is replete with inherent improbabilities, material contradictions and inconsistencies which totally belies the prosecution case and even if for the sake of argument it is established that the informant has been ravished by the appellants who were known to her and fully acquainted with her being co-villager there in that case the alleged ravishment is nothing but a consented sexual inter course and the facts elicited in the cross examination of PW 3, the informant, if meticulously considered will definitely establish the fact that it is not a case under Section 376 of the Indian Penal Code rather it is a case of consented sexual inter course and viewed thus the impugned judgment is unsustainable. 8. 8. It has been submitted by the learned A.P.P that though both the appellants and the informant were resident of the same village but the informant cannot be said to be a consenting party in the occurrence in question rather both the appellants first teased the informant and her companion and, thereafter, on protest they allowed them to go further and when they reached at some lonely place they caught them and both the appellants took the informant in a bamboo clump where she was ravished by them one by one and, thereafter, the appellant Suresh Mahto also took away with him, P.W. 5, Sita Devi to some other place where she has also been ravished though P.W. 5, Sita Devi does not support the fact of her ravishment. It has also been submitted that there is no reason for the informant to falsely implicate both the appellants in this case and it cannot be inferred that prior to the institution of the case she had gone to the Mukhiya of the village to report about the occurrence in question and the appellants have been roped in this case as per direction of the village Mukhiya who was inimical to them. 9. According to the prosecution case P.W. 3, the informant was going to her house in the company of P.W. 5 from Ormanjhi Block Chowk and when she reached in between Oahu and Buribagi both the appellants who were known to the informant starting teasing and vexing her and her companion and on being told by the informant that the matter shall be reported to their respective houses, they left them and allowed them to proceed. The prosecution case further is that when they reached at some lonely place they were caught by both the appellants and they brought P.W. 3, the informant in a bamboo clump where she as ravished by both the appellants one by one and P.W. 5, Sita Devi was standing near by protesting to them in respect thereof. Therefore, according to the prosecution case place of occurrence is a bamboo clump. The I.O. has not taken oath in this case, therefore, there is no objective finding of the I.O. regarding the topography of the place of occurrence and the nature of the land inside the bamboo clump. The medical witness has also not taken oath in this case. Therefore, according to the prosecution case place of occurrence is a bamboo clump. The I.O. has not taken oath in this case, therefore, there is no objective finding of the I.O. regarding the topography of the place of occurrence and the nature of the land inside the bamboo clump. The medical witness has also not taken oath in this case. However, the report of the medical witness of the examination of P.W. 3 and P.W. 5 is on the record as Ext. A series. It is relevant to mention that the objective finding of the medical witness as contained in her medical report Ext. A series do not at all corroborate the case of ravishment as alleged by the informant. Ext. A and All are the medical reports in respect of P.W. 5, Sita Devi and P.W. 3, Lalo Kumari respectively who were examined by Dr. Ragini Minz at Sadar Hospital, Ranchi on 13.12.2000 between 1.00 P.M. and 1.45 P.M. Ext. A reveals that there was no mark of injury on the private part of P.W. 5, Sita Devi or any where on her body and no seminal stain on her private part or on her clothes was also found and there was also total absence of spermatozoa either dead or alive in her vaginal swab and the medical witness has recorded a finding that there is no positive evidence of rape. Ext. Al1 is in respect of P.W. 3, Lalo Kumari which also reveals that her hymen had old rupture which admits two fingers and there was no mark of injury / on her private part or on her body and there was also no seminal stain either on her private part or on her clothes. It further reveals that there was total absence of spermatozoa in her vaginal swab and in view of the' facts aforesaid it has been stated that no positive finding can be given that the informant has been ravished. Now in this background let us now scrutinize the evidence of P.W. 5. Sita Devi who has turned hostile. P.W. 5, has deposed to have accompanied the informant from Ranchi to her house and they had come from Ranchi on trekker and got down at Ormanjhi Block Chowk and from there they proceeded towards the house of the informant and in the way at. Sita Devi who has turned hostile. P.W. 5, has deposed to have accompanied the informant from Ranchi to her house and they had come from Ranchi on trekker and got down at Ormanjhi Block Chowk and from there they proceeded towards the house of the informant and in the way at. about 8.30 P.M. they met the appellants and they invited them on payment of Rs. 200/- for the satisfaction of their carnal desire and at this P.W. 3, Lalo Kumari is said to have retorted them and asked for Rs. 300/- and, thereafter, they have proceeded towards their village. In para 2 of her evidence she has specifically deposed that neither of the appellants has ravished them. Therefore, P.W. 5, who is the companion of the informant gives a death blow to the prosecution case as averred by the informant in her fardbeyan (Ext. 1) P.W. 4 has also specifically deposed that no other incident has taken place with P.W. 3 by the appellants. Therefore, P.W. 4 negates the case of ravishment of the informant as well as of P.W. 5, Sita Devi as averred in the fardbeyan. P.W. 3, Lalo Kumari has deposed that at about 7.00 or 7.30 P.M. she got down at Block Chowk Ormanjhi from the bus in the company of P.M. 5, Sita Devi. It is relevant to mention here that there is averment in the fardbeyan that she had come with Sita Devi on a trekker and not on a bus. She has further deposed that she was proceeding to her village with P.W. 5 and they met both the appellants in the way and they started teasing them. In para 2 of her evidence she has deposed that, thereafter, both the appellants ravished her one by one and in course of ravishment by appellant Mahaveer Mahto, appellant, Suresh Mahto went to P.W. 5, Sita Devi and said P.W. 5 was ravished by Suresh Mahto. In para 3 she has deposed that when she attempted to raise alarms her mouth was gagged and she was intimidated. In para 5 she has deposed that appellant Suresh Mahto while fleeing away had left the wrapper at the place of occurrence which she is producing before the Court and the same has been marked as material Ext. In para 3 she has deposed that when she attempted to raise alarms her mouth was gagged and she was intimidated. In para 5 she has deposed that appellant Suresh Mahto while fleeing away had left the wrapper at the place of occurrence which she is producing before the Court and the same has been marked as material Ext. I. It is pertinent to mention here that this wrapper was never produced before the I.O. in course of investigation and P.W. 3 in her cross examination has deposed that before indulging sexual inter course with her, appellant Suresh Mahto had spread the said wrapper on the ground. This evidence of the informant casts a cloud of suspicion to the very credibility of the prosecution case regarding the ravishment of the informant by the appellants. After all what prevented the informant not to escape away when she had the occasion for that when the wrapper was being speared on the ground by appellant Suresh Mahto. She has deposed about the manner of her ravishment in para 40 and 41 from page 14 to 22 of her deposition and a critical perusal and analysis of the evidence gives a clinching inference that the alleged sexual inter course if committed is definitely a consented sexual inter course. It is equally pertinent to mention here that neither the informant nor P.W. 5, Sita Devi have raised any hue and cry in course of the ravishment of the informant firstly by appellant Suresh Mahto and, thereafter, by appellant Mahaveer Mahto rather on the other hand evidence of P.W. 4, Sita Devi shows that there was some demand of money for having sexual into course with the informant and there was, also higgling in respect of the said demand. The manner of the occurrence as (deposed by P.W. 3, the informant definite;) gives as impression that it is not a case of forceful rape committed by the appellant on the informant. The prosecution case regarding ravishment of Sita Devi stands totally falsified in view of the evidence of Sita Devi herself. And last but not the least, there is no legal evidence on the record to corroborate the prosecution case of the ravishment of the informant by the appellants. The prosecution case regarding ravishment of Sita Devi stands totally falsified in view of the evidence of Sita Devi herself. And last but not the least, there is no legal evidence on the record to corroborate the prosecution case of the ravishment of the informant by the appellants. Therefore, the solitary testimony of the informant uncorroborated in materials particulars in the facts and circumstances of this case does not inspire confidence and is fit to brushed aside as I see no ring of truth therein. To sum up there is no legal evidence at all on the record to support the prosecution case. The defence version appears to be natural and probable in the facts and circumstances of this case. The learned court below did not consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant and as such the impugned judgment cannot be sustained. 10. There is merit in these appeals which succeed. The appeals are hereby allowed. Both the appellants are found not guilty to the charge levelled against them and they are, accordingly, acquitted. Let both the appellants be set free forthwith if not wanted in any other case.