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2006 DIGILAW 1148 (JHR)

Jiyan Manjhi v. State Of Jharkhand

2006-09-01

DHANANJAY PRASAD SINGH

body2006
JUDGMENT Dhananjay Prasad Singh, J. 1. Heard the parties. 2. This appeal arises against the judgment of conviction dated 25th June, 2002 and order of sentence dated 26th June, 2002 passed by the learned Sessions Judge, Jamtara in Sessions Case No. 146 of 2001 (Dumka)/340 of 2001 whereby the learned trial Court convicted the appellant, abovenamed, for the offence under Sections 366 and 376, IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay fine of Rs. 2,000/- for the offence under Sections 366 and 376, IPC, each. In default of payment of fine, the learned trial Court further sentenced the appellant to undergo rigorous imprisonment for six months for the offence under Sections 366 and 376, IPC, each, and all sentences shall run concurrently. 3. Brief facts leading to this appeal are that the informant/complainant, Mamta Ghosh, used to reside with her father in village Dumaria, P.S. Bindapathar and the appellant was also residing in the vicinity by same village. According to the informant, in the night of 14th November, 1999, she has gone to ease her out in the fields. As alleged, when she was returning home, the appellant forced to her to accompany with him on the point of pistol. Thereafter, she was taken away from the village and subjected to rape twice same night on the side of Ajoy river. She further stated that she was carried over to various places by the appellant on threats of being killed and, further forced to live with him for nearly eight months at Golsi, District Burdwan, West Bengal. The informant further alleged that she was subjected to repeated rapes during this time and kept as mistress. In the result, she became pregnant and the appellant became interested in termination of baby. However, after some time, she was left alone and she returned home in July, 2000. She preferred a complaint case, as P.C.R. Case No. 226 of 2000. in the Court of Additional Chief Judicial Magistrate, Jamtara, District Dumka, which was sent to Nala (Bindapathar) police station for registration of a case. On the basis of which. Nala (Bindapathar) P.S. Case No. 78 of 2000, dated 4th September, 2000 was registered under Sections 366 and 376, IPC. 4. The police investigated the case and finally submitted charge-sheet against the appellant for both the offence. On the basis of which. Nala (Bindapathar) P.S. Case No. 78 of 2000, dated 4th September, 2000 was registered under Sections 366 and 376, IPC. 4. The police investigated the case and finally submitted charge-sheet against the appellant for both the offence. The case of the appellant was committed to the Court of Sessions, wherein the appellant was charged under Sections 366 and 376, IPC on 7th July, 2001. The appellant pleaded not guilty and claimed false implication. The learned trial Court after examination of witnesses has found and held the appellant guilty under both sections and sentenced him, as stated above. 5. The present appeal has been preferred on the ground that learned trial Court has failed to consider that the story of kidnapping and confining for her sexual exploitation has been lodged after much delay. It is further asserted that no independent witness has supported the prosecution version. According to this memo of appeal, the prosecutrix was a lady of easy virtue and she has not corroborated her allegations with materials within her knowledge. The memo of appeal further mentions that when she was remained with the appellant for nearly seven months at Golsi, she had every opportunity to come back or report the matter to police or neighbourers. It is also asserted that the whole prosecution story suffers from material irregularity. 6. The learned A.P.P. opposed the prayer. 7. I have carefully gone through the materials available on record along with submissions of the learned Counsel for the appellant. The prosecution version is that in the night of 14th November, 1999, Mamga Ghosh was forcibly taken away from village Dumaria to distant place and subjected to forcible sexual intercourse. 8. The informant, PW-2, has supported her complaint case in examination-in- chief. However, she admitted during cross-examination that she was married with one Om Prakash, but after this case, she was deserted by him. She further admitted that she has lodged a complaint case of assault etc. upon her husband and father-in-law, which has been finally compromised. She further admitted that she went along with the appellant on foot in the night of alleged occurrence to Asansol from where she went to Burdwan. She admitted that she did not raise alarm, nor tried to move away from the clutch of the appellant during this period. upon her husband and father-in-law, which has been finally compromised. She further admitted that she went along with the appellant on foot in the night of alleged occurrence to Asansol from where she went to Burdwan. She admitted that she did not raise alarm, nor tried to move away from the clutch of the appellant during this period. According to her version, the appellant used to go out for doing work and she remained in the house, as wife and husband. She further admitted that four days after her came back the case was lodged. PW-1, Muktabala Ghosh, mother of PW-3, Satyavan Ghosh, father of the informant have admitted during cross-examination that when they started searching Mamta Ghosh, they found that the appellant was also not available in his house. PW-1 admitted that she did not search for. her daughter afterwards. PW-3 similarly admitted in Para 6 that after some time, he left searching his daughter. PW-4, Alakh Niranjan Choudhary, is the Investigating Officer of this case, who admitted in Para 6 that he did not go to village Golsi. District Burdwan, West Bengal, for ascertaining of the truth. He further admitted that the informant has not got herself examined by the doctor. 9. In the facts, as stated above, the informant, Mamta Ghosh, has admitted that she along with the appellant has gone to Asansol and Burdwan without any protest and remained with him for nearly seven months, though she was free to flee from the clutch of the appellant. It is also admitted case on record that during this period, she remained with the appellant as his wife or mistress. This shows that she was not under any threat or immediate danger to subject herself to the lust of the appellant. She was admittedly a married woman at the time of alleged occurrence and except her allegation, no proof is available that she forced to go with the appellant on 14th November, 1999. This fact is also doubtful with her conduct that she remained with the appellant for nearly seven months and she never tried to flee from the clutch of the appellant. 10. Having regard to the facts and circumstances of the case, I find and hold that the prosecution, in fact, has not been able to prove the charges of abduction as well as committing rape on the informant by the appellant beyond all reasonable doubts. 10. Having regard to the facts and circumstances of the case, I find and hold that the prosecution, in fact, has not been able to prove the charges of abduction as well as committing rape on the informant by the appellant beyond all reasonable doubts. In the result, I find that the present appeal has got merit and deserves to be allowed. Accordingly, order of conviction and sentence of the appellant passed by the learned trial Court in Sessions Case No. 146 of 2001 (Dumka)/340 of 2001 cannot be sustained and is hereby set-aside. The appellant further stands released from the liability of bail bonds. In this view of the matter, this appeal is allowed.