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2006 DIGILAW 289 (JHR)

Mithan Mahto v. State Of Bihar (Now Jharkhand)

2006-03-29

AMARESHWAR SAHAY

body2006
JUDGMENT Amareshwar Sahay, J. 1. This appeal is directed against the judgment dated 13.1.1998 passed by the Sessions Judge, Deoghar In Sessions Trial No. 126 of 1996, whereby and whereunder, the learned Sessions Judge has convicted the appellants Mithan Mahto and Bhukhan Mahto for committing the offence under Sections 366, 366-A and 376 of the Indian Penal Code and has sentenced them to undergo R.I. for a period of 7 years for the said offence and they have been also directed to pay fine of Rs. 2000/- each in default to undergo S.I. for a further period of one month each. 2. The prosecution case in short is that the victim girl Kalawati Devi (PW 10) aged about 16 years developed intimacy with the appellants Mithan Mahto and Bhukhan Mahto, who were the residents of adjacent village and they used to visit the village of the informant frequently in connection with cultivation work. Further case of the prosecution is that on 31,12.1995 at about 7.00 p.m. the girl Kalawati Devi, i.e. the daughter of the informant went to fetch water from a tube-well, which was situated outside her house and since, thereafter, she did not return. The informant tried to search her out but failed. He also went to the house of those two appellants and then he came to know that actually these two appellants had kidnapped his daughter and took her away to Bengal. The informant came to know that his daughter was living with these two appellants in Bengal and then on 2.3.1996 he lodged the FIR thereafter during course of investigation the victim girl was recovered from the house of Mithan Mahto, i.e. appellant No. 1 in village Birajpur. After recovery, the victim girl was examined medically by the doctor on 4.3.1996 and according to the doctor the girl was found to be aged about 15-16-years. 3. In order to establish the charges, altogether 14 witnesses were examined on behalf of the prosecution. PW 1 Bishwanath Rana is the brother of the victim girl. He has supported the statement made in the FIR. He also stated about the recovery of the girl from the house of the appellant Mithan Mahto. In paragraph 6 of his cross-examination he has admitted that the accused persons used to visit his house and they used to talk with his sister also. He has supported the statement made in the FIR. He also stated about the recovery of the girl from the house of the appellant Mithan Mahto. In paragraph 6 of his cross-examination he has admitted that the accused persons used to visit his house and they used to talk with his sister also. However, in paragraph 8 of his cross-examination he denied that his sister got married with the appellant Mithan Mahto in Basukinath Temple in presence of his father. PW 2 Kokil Rana is hearsay witness. However, in his cross-examination he has stated that he had seen the victim girl talking to the accused persons prior to the alleged occurrence. PW 3 Nilkanth Rana, PW 4 Anil Rana and PW 5 Sunil Rana are also the brothers of the victim girl Kalawati Devi. Their statements are also on the same line to that of PW 1 Biswanath Rana. However, all the aforesaid three witnesses have stated that the girl was not recovered in their presence. PW 6 Tilki Devi is the mother of the victim girl. She, in her examination-in-chief, has stated that when her daughter did not return then search was made in that course Ram Prasad and Bhuwaneshwar told her that they had seen her daughter talking to the twice and her first marriage was with one Tripurari Rana of Jasidih, which was performed about four years back and the second marriage was with Shiv-charan Mistry after about 15 days of the recovery from the house of the appellant Mithan Mahto. In para 8 of her cross-examination she has stated that she did not remember as to whether she had stated before the Magistrate that she got married with the appellant Mithan Mahto in Basukinath Temple in presence of her father. In fact she denied marriage with the appellant Mithan Mahto. PW 11 Jai Prakash Singh and PW 12 Khushru Sah are the formal witnesses and they are on the point of recovery of the girl from the house of the appellant Mithan Mahto. PW 13 is Dr. Nir-mala Singh, who had examined the victim girl medically. From her evidence it appears that he did not find any evidence of rape and she found the age of the girl to be 15-16 years. PW 14 is the Investigating Officer. 4. PW 13 is Dr. Nir-mala Singh, who had examined the victim girl medically. From her evidence it appears that he did not find any evidence of rape and she found the age of the girl to be 15-16 years. PW 14 is the Investigating Officer. 4. On behalf of the defence the statement of the victim girl given under Section 164, Cr PC was adduced in evidence and was marked as Ext.-A without any objection. 5. On the basis of the evidence adduced on behalf of the prosecution, the learned trial Court convicted and sentenced the appellants as stated in earlier paragraphs. 6. Assailing the judgment of conviction and sentence, passed by the trial Court, Mr. Jha, learned counsel appearing for the appellants submitted that though the alleged occurrence took place on 31.12.1995 but the First Information Report was lodged after about three months of the date of occurrence and that also without any explanation whatsoever for such an inordinate delay in lodging the FIR and, therefore, that creates doubt in veracity of the prosecution case. He further submitted that in course of investigation the girl was examined under Section 164, Cr PC before the Magistrate (Ext.-A) wherein she had made categorical statement that she was married with the appellant Mithan Mahto in Basukinath Temple in presence of her father and this aspect of the matter has not been taken into consideration by the trial Court while considering the case of the prosecution as well as of the defence. Relying on the said Ext.-A it is submitted that in view of the statement made by the victim girl made under Section 164, Cr PC, the whole case of the prosecution falls on the ground. He further submitted that admittedly even according to the prosecution, the victim girl was already married at the time of alleged occurrence and, therefore, it cannot be said that she was a minor innocent girl. He further submitted that even according to the doctor, who examined the victim girl medically, found the physical appearance of the victim like a matured and grown- up lady. The medical report did not even support the case of the prosecution regarding the commission of rape. He has further submitted that all material witnesses, who were examined on behalf of the prosecution, were close relatives of the victim girl and, therefore, are interested witnesses. 7. The medical report did not even support the case of the prosecution regarding the commission of rape. He has further submitted that all material witnesses, who were examined on behalf of the prosecution, were close relatives of the victim girl and, therefore, are interested witnesses. 7. I have perused the evidence adduced by the prosecution, which has already been discussed by me in foregoing paragraphs. From the evidence of PW 1 Bishwanath Rana coupled with the statement of PW 2 Kokil Rana, PW 5 Sunil liana and PW 6 Tilki Devi and also of the victim girl it appears that the appellants were known to the victim girl from before and they were not strangers to the family rather they were on visiting terms with the family of the informant and they used to visit the house of the informant regularly and used to talk with the victim girl frequently. From the evidence of the victim girl herself I find that she has not stated a word that any force was used by these two appellants while she was being taken to Burdwan from her village Birajpur. It also does not appear from the evidence of the victim girl that she at any time raised any alarm when she was being taken by these two appellants. Therefore, it can well be inferred from her evidence that she with her own free will went with these two appellants and no force was used by these two appellants against her and, therefore, it cannot be said that in fact she was kidnapped by these appellants. She has further admitted in her evidence that when she was at Burhanpur both the appellants had sexual intercourse with her but she has not stated any word that she at any time even resisted or raised any alarm. Therefore, it cannot be said that the sexual intercourse was committed against her will. In this situation, it can well be inferred that the informant was a grownup lady and that the sexual intercourse was committed on her with her consent. 8. Though the statement made by a person under Section 164, Cr PC cannot be said to be substantive piece of evidence but there is no doubt that it has got some value for the purpose of contradiction or cor-roboration of the statement of that person. 8. Though the statement made by a person under Section 164, Cr PC cannot be said to be substantive piece of evidence but there is no doubt that it has got some value for the purpose of contradiction or cor-roboration of the statement of that person. Ext.-A, i.e. the statement of the victim girl, made under Section 164, Cr PC, which was admitted in evidence without any objection clearly shows that the girl has stated before the Magistrate that she got married with the appellant Mithan Mahto in presence of her father in Basukinath Temple. In her evidence in Court she has not denied that fact rather she has stated that she did not remember as to whether she had made such statement. Therefore, her statement made in Court becomes somewhat doubtful. It is also significant to note that the FIR was lodged after an inordinate delay of about three months without giving any explanation whatsoever and, therefore, that also creates doubt in my mind with regard to the veracity of the prosecution case. 9. Considering all the above facts, I find that the prosecution has not been able to establish the charges beyond all reasonable doubt against the appellants and the appellants are entitled to benefit of doubt. 10. Accordingly, this appeal is allowed. The conviction and sentence passed by the trial Court in Sessions Trial No. 126 of 1996 is hereby set aside. The appellants, who are on bail, are discharged from the liabilities of their bail bonds.