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2004 DIGILAW 779 (JHR)

Soma Tirkey v. State of Jharkhand

2004-08-04

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J.-This appeal at the instance of appellant stands directed against the impugned judgment and order dated 27.5.2002 and 28.5.2002 respectively passed in Sessions Trial No. 85 of 2000 by Shri Alok Kumar Dubey, Additional Sessions Judge, Fast Track Court, Gumla whereby and whereunder the appellant was found guilty for the offence punishable under Section 376 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment •for five years and to pay a fine of Rs. 2000/- and in default of the payment of fine to undergo rigorous imprisonment for one month. 2. The prosecution case has arisen on the basis of the petition of complaint of P.W.5 Gandauri Kumari the complainant informant, said to be the victim of ravishment lodged before the Court of Chief Judicial Magistrate, Gumla on 8.9.1999 which has been registered as Complaint Case No. 170 of 1999 regarding the occurrence which is alleged to have taken place on 4.9.1999 at about 12.30 hours inside Bandwari Jungle of Village-Narekela, Police Station-Basia, District-Gumla. The complaint petition was sent to the concerned Police Station for institution of the case, investigating and submission of the final form and Basia Police Station Case No. 53 of 1999 was registered on the basis of the said complaint petition on 11.12.1999. 3. The prosecution case, in brief, is that P.W.S, the informant is a student of Class-X and she had gone to her school in the morning situate in Village-Kumhari and the school was closed at 10.30 hours as it was Saturday and thereafter she got her cycle repaired and thereafter proceeded for her house situate in Village-Narekela. It is alleged that she was passing through Bandwari Jungle for her house and when she was half-mile away from her house, the appellant came there from behind and obstructed her from going ahead and also intimidated her at the point of dagger and forcibly brought her 25 meters inside the Jungle from the said road and he felled her on the ground pressing her neck and after removing her undergarment ravished her and when she attempted to raise alarms he pressed her neck. It is alleged that after satisfying his lust for three or four minutes he left her and fled inside the Jungle. It is alleged that after satisfying his lust for three or four minutes he left her and fled inside the Jungle. The prosecution case further is that she came weeping to the road and after waiting for sometime for recomposing herself, she came to her house and narrated the incident to her brother and sisters. It is further alleged that she was unable to walk and suffered from fever after the incident and at the advice of the co-villagers who were told by her brother, she did not go to the Police Station on that day as the villagers had proposed to settle the matter in the Panchayat and they had also made hectic search of the appellant who had fled away from there. It is also alleged that the appellant has also intimidated her to be done to death if she go to the police station, which has resulted in the delay of the lodging of the complaint petition. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence. It has been contended that the informant is a girl of easy virtues having illicit affair with Mani Tirkey \ and there was a Panchayati in respect of their affairs in which this appellant has prepared the document of verdict of the Panchayat in respect thereof and due to that he has been implicated in this got up case by the informant ~at the instance of Mani Trikey aforesaid. 5. The prosecution has, in all, examined six witnesses to substantiate its case. P.W.6 Gandauri Kumari is the complainant/informant of this 'case and said to be the alleged victim of ravishment and her signature on the -petition of complaint is Ext. 2. P.W.5 Dr. Parvati Kumari Oraon has examined the informant on 11.12.1999 at 1.30 hours and her report per her pen is Ext.1. P.W.1 Budhani Kumari and P.W.2 Champu Kumari are the sisters of the informant and P.W.4. Anghanu Oraon is her brother whereas P.W.3 Mani Tirkey is the co-villagers of the informant and thy are the hearsay witnesses of the occurrence having come to know about the same from the informant. The Investigating Officer has not taken oath in this case for the prosecution. No oral and documentary evidence has been brought on the record on behalf of the defence. 6. The Investigating Officer has not taken oath in this case for the prosecution. No oral and documentary evidence has been brought on the record on behalf of the defence. 6. In view of the evidence oral and documentary on the record, the learned court below has come to the finding of the guilt of the appellant and has convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned court below did not consider the evidence in proper perspective and has erroneously come to the finding of the guilt of the appellant. It has been submitted that the entire occurrence is totally false and is equally highly improbable and the evidence of the informant lacks credence having no ring of truth therein in view of the fact that there was also a road for coming to her house from her school but she has deliberately introduced the case that she was coming to her house through the said Jungle and further her testimony is replete with inherent inconsistencies and material contradictions which totally belie the case of her ravishment as alleged. It has further been submitted that the informant has admitted in her evidence that the way passes through the Jungle is also a busy one but no independent witness has come forward to support the prosecution case and all the witnesses who have taken oath in this case are highly interested and partisan witnesses and they are hearsay witnesses. It has also been submitted that the medical evidence also does not support the factum of ravishment of the informant as alleged and this appellant has been implicated in this case to feed fad her grudge and annoyance by the informant at the instance of Mani Tirkey who has illicit relationship with the informant due to the reason that there has been a Panchayat prior to the occurrence in respect of their affairs in which this appellant had participated and has prepared the document regarding the verdict of the Panchayat. It has further been contended that the non-examination of the Investigating Officer has caused serious prejudice to this appellant in view of the fact that there is no legal evidence on the record regarding the objective finding of the Investigating Officer in respect of the alleged place of occurrence and this appellant stands debarred of the opportunity eliciting facts in the cross-examination of the Investigating Officer regarding the alleged place of occurrence which would have falsified the prosecution case regarding the alleged occurrence having taken place in the Jungle as alleged by the informant. Lastly, it has been contended that the complaint-petition was lodged after four days of the alleged occurrence and no satisfactory explanation is forthcoming on the record in respect thereof which is indicative of the fact that the case has been lodged as afterthought on due deliberation and consultation and thus, the impugned judgment is unsustainable. In the alternative it has been submitted that this appellant is in custody since 26.1.2000 and has served the sentence for about four and half years and in this view of the matter, if the appeal is dismissed then in that case his sentence may be modified to the period already undergone by him in custody. 8. In contra, the learned Additional Public Prosecutor has submitted that the learned court below has properly scanned and scrutinized the evidence of P.W6, the informant, and finding ring of truth therein the appellant has been found guilty and thus, there is no illegality in the impugned judgment requiring an interference therein. 9. It will admit of no doubt that the appellant was known to and acquainted with P.W.6, the informant, along with her sisters and brother besides Mani Tirkey' prior to the occurrence in question and there had been a Panchayati in Village Narekela in respect of an incident between the informant and P.W.3 Mani Tirkey prior to the alleged occurrence and in that Panchayati this appellant has acted as a Panch and has also reduced into writing the verdict of the Panches. P.W.3 Mani Tirkey, who is admittedly on visiting terms at the house of the appellant and also said to be the uncle by relation of the appellant, in para-2 of his evidence has admitted that there had been a Panchayati on Wednesday in Village-Narekela Patra Toli at about 12 O'clock in the day prior to this occurrence in which fifteen or twenty persons had participated. He has further deposed that the Panches did not arrive at to any decision regarding the alleged affairs between him and the informant in which appellant Soma Tirkey has participated as a Panch. Thus, the existence of a Panchayati prior to the alleged occurrence having taken place in Village-Narekela stands admitted by him though P.W.6, the informant, has falsely denied in respect thereof in her evidence on oath and in this view of the matter, it can safely be inferred that P.W.6, the informant, is suppressing the material facts in this case for the reasons best known to her. P.W.2, the eldest sister of the informant and also the informant have deposed that P.W.3 Mani Tirkey has advised her to institute a case against the appellant. P.W.6 has also stated that said Mani Tirkey figures as a witness in this case for the prosecution. Let us now scan and scrutinize the evidence of the witnesses of the prosecution keeping in view the admitted background as stated above. P.W.5, the medical witness has deposed to have examined P.W.6, the informant and said to be the alleged victim of ravishment on 11.12.1999 at 13.30 hours i.e. after three months and six days of the alleged occurrence. Therefore, the medical evidence has no relevancy at all in this case except the fact that the medical witness has found that the hymen of the informant reveals old tear admitting two fingers tightly and she was accustomed to sexual intercourse. It, therefore, means that the informant was definitely not a nubile virgin on the alleged day of the occurrence and besides that the medical witness has ascertained the age of the informant being 17 years and more and she is of stout physique' able to put resistance in case of rape. It, therefore, means that the informant was definitely not a nubile virgin on the alleged day of the occurrence and besides that the medical witness has ascertained the age of the informant being 17 years and more and she is of stout physique' able to put resistance in case of rape. The Investigating Officer has not taken oath in this case and no evidence has been brought on the record regarding the objective finding of the Investigating Officer in respect of the place of occurrence where the informant is alleged to have been ravished. The informant was wearing white blouse and blue skirt at, the time of the alleged occurrence. There is evidence on the record that her clothes were besmeared with mud and there were stains of semen also on her clothes. The said clothes has neither been seized in course of investigation nor brought on the record as material evidence to substantiate the allegation against the appellant. Therefore, the non-examination of the Investigating Officer in this case has caused serious prejudice to the appellant in the facts and circumstances of this case, as he stands debarred of the opportunity of eliciting facts in the cross-examination of the Investigating Officer showing his innocence in respect thereof. P.W.1, P.W.2, P.W.4 and P.W.3 are the hearsay witnesses of the occurrence having come to know about it from the informant. Informant Gandauri Kumari was examined as P.W.6 on 19.3.2001 and she has disclosed her age as 16 years therein. In the complaint petition, which is the basis of the case, she has not disclosed her age. However, the medical witness has assessed her age as 17 years or more. P.W.1, her eldest sister, has deposed that she is aged 35 years and the informant is 12 years younger to her and in this view of the matter, the informant was 23 years of age on the date of the alleged occurrence and in this view of the matter, age of the informant as per her evidence as 16 years on the day of the occurrence cannot be believed. P.W.6, the informant, has deposed that there was morning session of her school being Saturday situate in village-Kumhari and the morning session of the school came to end at 10.30 hours on that day and thereafter she got her cycle repaired and she proceeded for her house at 11.30 hours. P.W.6, the informant, has deposed that there was morning session of her school being Saturday situate in village-Kumhari and the morning session of the school came to end at 10.30 hours on that day and thereafter she got her cycle repaired and she proceeded for her house at 11.30 hours. She has further deposed that there are two ways for coming to her house from the school. There is a road from her school to her village made of Morang, which further goes to Village-Sisai, and this is a very busy road. The other way is through Bandwari Jungle but it is not a road, rather, a trodden path. She has also deposed that this path is equally very busy. No explanation has been brought on the record in the evidence of P.W.6 as to why she has opted for Jungle trodden path for coming to her house from the school. She has deposed that while she was passing through Bandwari Jungle for coming to her house, the appellant who has concealed himself in a bush, all of a sudden, came there and caught her cycle and dragged her inside the Jungle. Here I will advert to the averments made in - the complaint petition in which it has been stated that the appellant came there from behind and caught her cycle from behind. There is no reference in the petition of complaint that the appellant was in a bush waiting for her. Her evidence is further to the effect that she attempted to raise alarms and the appellant has pressed her neck and intimidated her at the point of dagger and thereafter ravished her. In her cross-examination she has deposed that the place - where she was allegedly ravished by the appellant is visible from the Morang road and the appellant has not beat her but he has scratched her cheeks. P.W.1, P.W.2, P.W.4 and also P.W.3 Mani Tirkey do not state about the existence of any scratch injury on the cheek of the informant when they were immediately told about the alleged occurrence by the informant. There is no evidence on the record of any natural, competent and independent witness of" the alleged occurrence to corroborate her testimony regarding her ravishment in the manner as alleged by her. There is no evidence on the record of any natural, competent and independent witness of" the alleged occurrence to corroborate her testimony regarding her ravishment in the manner as alleged by her. It is true that such type of occurrence is committed on the sly but as per the testimony of the informant herself, the said path which passes through Bandwari Jungle, is a very busy road and in such a situation, absence of any independent witness to corroborate her case casts a cloud of suspicion to the very credibility of the prosecution case in respect thereof. The testimony of P.W.1, P.W.2, P.W.3 and P.W.4 being hearsay in nature cannot be believed, as they are highly interested and partisan witnesses being the close relatives of the informant. The solitary testimony 'of the informant in the facts and circumstances of this case in view of the background of the case as stated above also lacks credence and there appears no ring of truth therein. No witness of the village has testified the fact regarding the holding of Panchayat in respect of the incident in question. Therefore, in the facts and circumstances of this case, the false implication of this appellant at the instance of P.W.3 Mani Tirkey due to enmity existing and alive between them cannot be totally ruled out when admittedly there was a Panchayati on 1.9.1999 i.e. three days prior to the alleged occurrence had taken place in respect of a matter relating to P.W.3 and the informant in which this appellant had played a prominent part. The non-examination 01 the Investigating Officer is, equally a fatal lacunae of the prosecution case causing prejudice to the appellant and there is no legal evidence on the record regarding any objective finding of the Investigating Officer in respect of the place of occurrence to give an inkling of the fact that the informant has been ravished in the said Jungle. Absence of any resistance put by the informant coupled with any hue and cry raised by her when according to the evidence on the record she is a stout woman equally casts a cloud of suspicion to the very warp and woof of the prosecution case. Therefore, there is no iota of legal evidence on the record to substantiate the prosecution case. Therefore, there is no iota of legal evidence on the record to substantiate the prosecution case. And last but not the least, no explanation is forthcoming on the record regarding the inordinate delay in lodging the complaint petition by the informant on 8.9.1999 i.e. after four days of the occurrence. It, therefore, appears that the complaint petition lodged by the informant is the result of afterthought as per due deliberation and consultation at the instance of P.W.3 Mani Tirkey and this aspect of the matter also goes at the very root of the prosecution case. I, therefore, see substance in the contentions made by the learned counsel for the appellant. The learned court below did not meticulously consider the evidence on the record and has been swayed by the assumption that a girl cannot impute her character regarding her chastity attaching a permanent stigma on her to settle scores with the appellant at the instance of Mani Tirkey. Here in this case, I do not find any ring of truth in her evidence and as such the reasons given by the learned court below for believing the' testimony of the informant on the score that she will not stigmatize herself by lodging a false case do not hold good in the facts and circumstances of this case. The learned court below has failed to consider the evidence on the record in proper perspective and has erroneously come to the finding of the guilt of the appellant and viewed thus, the impugned judgment cannot be sustained. 10. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is set aside. The appellant is found not guilty and he is, accordingly, acquitted. Let the appellant be set free forthwith if not wanted in any other case. The appellant shall withdraw the amount of fine, if any, deposited by him.