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2006 DIGILAW 1186 (JHR)

Mobin Mian @ Mobin Ansari v. State of Jharkhand

2006-09-13

D.G.R.PATNAIK

body2006
JUDGMENT D.G.R. Patnaik, J.-Appellant Mabin Mian @ Mabin Ansari was charged with and tried for the offence under sections 366 and 376 of the Indian Penal Code and convicted for the offence under section 366 of the Indian Penal Code and sentenced to undergo R.I. for five (5) years by the additional Sessions Judge, Fast Track Court No. III, Gumla. The case was registered at the police station on the basis of the F.I.R. lodged by the prosecutrix (PW 3) on 30.1.1986. Brief facts of the case is that in the morning of the same day i.e. 30.1.1986, prosecutrix alongwith her father Ram Bilash Bharti came from her village to Chainpur market for purchasing provisions. When on their return journey, they missed the bus, her father went in search of conveyance leaving her alone at the Chainpur-Gumla bus stand. Meanwhile, a boy who had on a previous occasion met her at the same market and had introduced himself as a Brahmin boy hailing from a rich family and proposed to marry her, had met her again and after asking her as to why she was standing at the bus stand alone, he offered assistance for providing conveyance and took her alongwith him to a lonely place and again declared that he intends to marry her. At that time, an unknown boy came there and called out the companion of the present appellant by his name Mobin Mian with a passing comment that he had trapped a cute girl. The prosecutrix adds that on being called upon by his name, she could learn that the boy, who had earlier introduced himself as a Brahmin boy, was in fact a Muslim and having realized that he had taken her alongwith him on false pretext, she ran away towards the roadside where she met a policeman, to whom she narrated the entire story. She was brought by the policeman to the police station where she met her father: On the statements of the lady, the case was initially registered for the offence under sections 363 and 366 of the Indian Penal Code. In course of investigation, statement of the prosecutrix was recorded under section 164 Cr.P.C. and the accused/appellant Mobin Mian was put on T.I.P., in course of which, he was identified by the prosecutrix. After concluding the investigation, the investigating officer submitted charge-sheet for the aforesaid offences recommending trial of the accused/appellant. In course of investigation, statement of the prosecutrix was recorded under section 164 Cr.P.C. and the accused/appellant Mobin Mian was put on T.I.P., in course of which, he was identified by the prosecutrix. After concluding the investigation, the investigating officer submitted charge-sheet for the aforesaid offences recommending trial of the accused/appellant. Charge for the offence under section 366 of the Indian Penal Code was framed against the appellant on 18.7.1990. At the trial, prosecutrix was examined as PW 3 on 25.3.1991. Later, a fresh charge for the offence under section 376 of the Indian Penal Code was framed against the accused/appellant on 6.1.1993.- 2. Appellant had pleaded not guilty to the charge, claiming false implication. 3. At the trial, prosecution had examined altogether seven witnesses including the prosecutrix (PW 3), her father Ram Bilash Bharti (PW 2), the doctor (PW 1) who had medically examined the prosecutrix and the Judicial Magistrate (PW 5) who had recorded the statement of the prosecutrix under section 164 Cr.P.C. and had also conducted the T.I.P. of the accused. 4. Learned trial court on considering the evidences on record, convicted the accused for the offence under section 366 of the Indian Penal Code, but acquitted him for the offence under section 376 of the Indian Penal Code in absence of sufficient evidence. Learned trial court has observed that the evidence relating to the offence under section 376 of the Indian Penal Code, as appearing in the statement of the prosecutrix (PW 3), cannot be considered on account of the fact that subsequent to the framing of the charge for the said offence, the prosecutrix was not produced by the prosecution for her cross-examination. Learned trial court further relied upon the statement of the prosecutrix and that of her father (PW 2) for recording its finding of guilt against the accused/appellant for the offence under section 366 of the Indian Penal Code. 5. Assailing the impugned judgment of conviction and sentence, learned counsel for the appellant submits that the judgment of conviction for the offence under section 366 IPC is misconceived, contrary to the evidence on record and is not sustainable. 5. Assailing the impugned judgment of conviction and sentence, learned counsel for the appellant submits that the judgment of conviction for the offence under section 366 IPC is misconceived, contrary to the evidence on record and is not sustainable. Elaborating his argument, learned counsel submits that the learned trial court has erred in placing implicit reliance upon the testimony of the prosecutrix (PW 3), ignoring the entire contradictions and inconsistencies on material particulars appearing in her F.I.R. and in her statement recorded under section 164 Cr. PC. as compared to her deposition before the trial court. Learned counsel explains that according to her F.I.R., the appellant was a familiar face to the prosecutrix, since on previous occasion, he had met her at the same market and had proposed to marry her. On the alleged date of occurrence also, he met her at the market place and she accompanied him voluntarily. He again made his proposal to marry her, but on learning that the appellant was not a Brahmin boy, she left the place and had a chance meeting with the police constable with whom, she came to the police station where she found her father. In her statements under section 164 Cr.P.C. which was subsequently recorded two days later, she had repeated the same statements, as contained in her F.I.R. In her deposition at the trial, she adds a totally different story claiming that she was raped by the appellant. Learned counsel adds that th(~ allegation of rape is a deliberate improvement in the girl's statement and it does not find support either from the earlier statement of her father (PW 2) or even by the medical report of the doctor (PW 1) who had medically examined her on 1.2.1986 and had not found any sign of rape nor any sign of recent sexual intercourse. Rather, the doctor had found definite evidence that the girl was habituated to sexual intercourse. Learned counsel adds further that since offence under section 376 IPC has not been proved and established, the remaining allegation that the appellant had taken the prosecutrix from near the bus stand to a lonely place on the pretext of arranging for conveyance, does not constitute any offence under section 366 IPC. Learned counsel adds further that since offence under section 376 IPC has not been proved and established, the remaining allegation that the appellant had taken the prosecutrix from near the bus stand to a lonely place on the pretext of arranging for conveyance, does not constitute any offence under section 366 IPC. Learned counsel adds further that the investigating officer having not been examined in this case, the appellant has suffered serious prejudice in his defence, as because the material contradictions appearing in the evidence of the prosecutrix, as compared to her statement recorded under section 161 Cr.P.C., could not be brought on record. Learned counsel adds further that the medical report• also confirms that the prosecutrix was aged 18 years and more and she was definitely not a minor girl. 6. Learned counsel for the State, on the other hand, submits that from the evidence of the prosecutrix, it is apparent that while she was waiting at the bus stand for return of her father, the appellant approached her and under false pretext of searching her father out, he induced the prosecutrix to go alongwith him and had taken her to a lonely dark place and had tried to seduce her to illicit intercourse with him. He had gained over the confidence of the girl on pretending himself to be an eligible Brahmin boy It was only when a stranger who happened to pass by, had seen and called the appellant by his name, the girl could learn that the appellant was not a Brahmin boy and that he had brought her to the lonely place with evil intentions. Learned counsel asserts that the manner in which the appellant had taken the prosecutrix alongwith him with intent to seduce her, clearly suggests that the girl was abducted by the appellant with illegal motives and this indeed makes out an offence punishable under section 366 IPC. 7. From perusal of the evidence on record, it appears that the entire case revolves around the statement of the prosecutrix. In a case of rape, statement of the victim is significant and conviction can be sustained on the testimony of the victim. However, the statement of the victim should have its intrinsic merits of reliability and trustworthiness. 7. From perusal of the evidence on record, it appears that the entire case revolves around the statement of the prosecutrix. In a case of rape, statement of the victim is significant and conviction can be sustained on the testimony of the victim. However, the statement of the victim should have its intrinsic merits of reliability and trustworthiness. The test of reliability is found from the attending circumstances in which the victim had fallen prey to her assailant, supported by the evidence of violence at the place of occurrence, the medical evidence and probability. The question which often arises in such cases is, whether the girl was a minor and if not, whether she was subjected to forcible sexual intercourse against her will and, whether she was not a consenting party to the sexual intercourse. In the instant case, according to the statement of the prosecutrix, she had accompanied her father from her village for purchasing provision from the market. On their return journey, they had missed the bus. Her father left her at the bus stand and went in search of conveyance. While she was waiting there, the appellant had approached her finding her alone at the bus stand. The appellant was familiar face for the prosecutirx, since on previous occasion in the same market, he had met her and had proposed to marry her, declaring :-dmself to be an eligible Brahmin boy. Her evidence further suggests that though, she was expected to wait at the bus stand for her father to return, she had left the place and accompanied the appellant in search of her father when the appellant had offered to take her along. Both were seen going together by PW 4. The appellant had again made his proposal to marry her. Apparently, the place where the appellant had taken her, was not a desolate place. The statement of the victim girl, that at that time one stranger happened to pass by and see her alongwith the appellant, suggests that it was not a place not frequented by people. In her F.I.R. as also in her statement recorded under section 164 Cr.P.C., she does not allege that the appellant had used any kind of force upon her or even tried to molest her. In her F.I.R. as also in her statement recorded under section 164 Cr.P.C., she does not allege that the appellant had used any kind of force upon her or even tried to molest her. Her statement that on realizing that the appellant was a Muslim boy and not a Brahmin boy, as earlier professed by him, and hence she had dissociated herself from him and ran away, indicates that till that time she accompanied the appellant voluntarily on her belief that the appellant could probably be a suitable match for her. This explain the reason why instead of waiting at the bus stand for her father to return, she had left with the appellant unhesitatingly from the bus stand. The part of her evidence in which she adds that the appellant had sexually molested her, has rightly been discarded by the trial court, since the defence had no opportunity to cross-examine her on this issue. The prosecutrix has tried to explain that on account of shame and ignominy, she did not reveal the fact of rape committed on her at the time of recording of her F.I.R. or at the time of recording her statement under section 164 Cr.P.C., her explanation does not appear to be convincing. If she was unwilling to the sexual advances of the appellant, she would have resisted him and in the process, would have scuffled with him and raised alarms. Some marks of violence would naturally have been left on her body, It is not her case that she was ravished after being silenced and pacified under threats of injury to her life and person. The doctor who had examined her one day later, did not find any mark of violence on her body. These are definite indications which militate against the claim of forcible sexual assault. Furthermore, I find that the defence has suffered definite prejudice on account of non-examination of the investigating officer. Not only has the defence been prevented from eliciting contradiction appearing in the statement of the prosecutrix recorded earlier by the investigating officer under section 161 Cr.P.C., but also not fixing the exact place of occurrence, since prosecutrix has not given any specific description in her statement that it was a totally lonely place. Not only has the defence been prevented from eliciting contradiction appearing in the statement of the prosecutrix recorded earlier by the investigating officer under section 161 Cr.P.C., but also not fixing the exact place of occurrence, since prosecutrix has not given any specific description in her statement that it was a totally lonely place. From the evidence of PW 2, who is the father of the prosecutrix, it appears that on his return to the bus stand when he did not find his daughter (prosecutrix) at the place where he had left her, he searched for her and eventually went to the police station to seek their help to locate his daughter. After about two hours, the girl was recovered by the police and brought to the police station alone and on, interrogation by her father and by the police, she had given out the statement, which was recorded, as her F.I.R. Though, prosecutrix has declared her age as 16 years in her F.I.R., but medical examination indicates that she was 18 years old. Prosecution has not led any evidence to suggest that the prosecutrix was a minor on the alleged date of occurrence and neither has any issue been framed in this regard by the trial court. 8. Thus, on reading the evidence of the prosecutrix read together with the evidence of her father (PW 2) and that of the doctor (PW 1), I find that ingredients of Section 366 IPC are essentially lacking. The trial court does not appear to have considered the evidence on record in proper perspective and its finding of guilt of the appellant for the offence under section 366 IPC is misconceived. 9. In the result, this' appeal is allowed. The judgment of conviction and sentence, as passed by the trial court, is hereby set aside. The appellant who is on bail, is acquitted of the charges and is absolved from the liability of his bail bond.