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2006 DIGILAW 960 (JHR)

Naresh Mahto v. State Of Jharkhand

2006-07-28

DHANANJAY PRASAD SINGH

body2006
ORDER D.P. Singh, J. 1. The sole appellant Naresh Mahto stands convicted for the offence Under Section 376 of the Indian Penal Code and sentenced to serve rigorous imprisonment for eight years, by the Sessions Judge, Hazaribagh in Sessions Trial No. 133 of 1993. 2. Brief facts leading to this appeal are that in the afternoon of 26-7-1992, informant Lalita Devi has gone to field situated in MauzaKhutra to throw cow- dung. Further stated that when she was returning, she sat to ease herself in Rohania tand where all of a sudden, the appellant came there. Further stated he overpowered the informant and forcibly committed rape. The informant tried to resist, but because of the place being situated in a tand, nobody came to rescue her. The appellant fled away after committing rape threatening the informant not to disclose this incident to anyone. However, the informant reached her house and narrated the incident to her husband, and parents-in-law etc. Since in the evening heavy rains started, the matter was reported to the police next day on 27-7-1992 at about 10.15 a.m. 3. The statement of the informant was recorded on the basis of which, Ickak Police Station Case No. 57 of 1992 under Section 376 of the Indian Penal Code was registered and investigation taken up. The police are rested the appellant and submitted charge sheet after completion of the investigation. The case was committed for trial by the Court of Sessions where Sessions Judge Hazaribagh framed charge under Section 376 of the Indian Penal Code against the appellant on 28-8-1993. The appellant has pleaded not guilty and claimed false implication due to previous enmity. The trial Court after examining witnesses found and held the appellant guilty and sentenced him to serve R.I. for eight years. 4. This appeal has been preferred on the grounds that the learned trial Court has not considered the materials on record properly. It is also asserted that the first information report was lodged after much delay and the prosecution version suffers from material contradictions in the statement of the witnesses examined before it. According to this memo of appeal, the prosecutrix and her mother-in-law have developed the prosecution story beyond the first information recorded by the police. It is also asserted that the first information report was lodged after much delay and the prosecution version suffers from material contradictions in the statement of the witnesses examined before it. According to this memo of appeal, the prosecutrix and her mother-in-law have developed the prosecution story beyond the first information recorded by the police. It is further asserted that the first information report was sent after three days to the Court of Chief Judicial Magistrate, Hazaribagh, which creates a reasonable doubt, on the prosecution case. According to this memo of appeal, the doctor did not find any sign of rape or mark of violence on the body of the informant. It is further asserted that the defence version including the materials brought on record regarding the previous enmity has not been considered properly by the trial Court. Therefore, the conviction of uncorroborated statement of the witnesses deserves to be set aside. 5. Learned A.P.P. for the State supports the conviction of the appellant relying on the witnesses of the informant. 6. I have given anxious consideration to the points raised by the learned Counsel for the appellants. The facts on record and brought on record by the prosecution witnesses, P.W. 1 Lalita Devi and P.W. 2 Budhani Devi her mother-in- law, are that in the afternoon of 26-7-1992, the appellant has exploited the informant sexually using force. According to the first version, at that time, no one could come in spite of her protest and alarms raised. However, she has asserted in her examination-in-chief before the trial Court that her mother-in- law (P.W. 2) came in the tand itself searching for her then she was informed regarding the incident. P.W. 2 has asserted in her examination-in-chief that when Lalita Devi did not come she went in search of her and found the appellant fleeing away from the field where she has gone to throw cow-dung. This fact has not been asserted in the first information report. These two witnesses have been cross-examined at length, in which P.W. 1 admitted that she cannot say in whose field or land, the offence was committed. She further admitted that in the field she remained for one hour. She has stated in cross-examination that the police reached to re-examine her after fifteen days. She has denied that on earlier version made in the fardbeyan. She further admitted that in the field she remained for one hour. She has stated in cross-examination that the police reached to re-examine her after fifteen days. She has denied that on earlier version made in the fardbeyan. Both of these witnesses have admitted that mother of the appellant had filed a case before the Village Gram Panchayat against the family members of the informant. P.W. 3 is the husband of the informant, who is a hearsay witness of the occurrence. According to him, the police has visited the place of occurrence where broken bangles of his wife was present. However, he could not say that the police seized the same along with the clothes worn by his wife at the time of the occurrence or not. He admitted that the village Chowkidar could not be found and thereafter they went to police station and got the statement recorded. P.W. 4 Mahadeo Mahto, brother-in-law of the informant was tendered. P.W. 5 Dr. (Mrs.) Madhubala Rana, who has not given any definite opinion about the rape, as she could not find any injury on the private parts or spermatozoa etc. The prosecution has failed to examine the Investigating Officer and got the first information report marked Ext. 3 formally as well as the written report as Ext. 4. 7. The defence taken by the appellant has been brought on record as Ext. A and Ext. A/1 in which Gram Panchayat Khutra Case No. 1 of 1992 regarding an occurrence dated 22-7-1992 took place between Most. Balia and Beni Mahto, Mahendra Mahto and Parmeshwar Mahto etc. This shows that the accused in that case were convicted and sentenced to pay a fine of Rs. 50/- by the Gram Panchayat. According to the appellant, Parmeshwar Mahto, the husband and Beni Mahto, the father-in-law of the informant have been involved in that case filed by his mother Balia. This counter case has been filed on false grounds. The fact remains on record that the Gram Panchayat case was instituted before the registration of the present case. It also appears that the incident as alleged took place in broad day light on 26-7-1992 just after four days of the incident tried by Gram Kuthchery. This counter case has been filed on false grounds. The fact remains on record that the Gram Panchayat case was instituted before the registration of the present case. It also appears that the incident as alleged took place in broad day light on 26-7-1992 just after four days of the incident tried by Gram Kuthchery. It is also found that the prosecution version is not supported by any cogent evidence of rape committed by the appellant as the doctor could not find any injury on the person of the informant on the next day (27-7-1992). The conduct of P.W. 3, the husband of the informant has brought on record in cross-examination that he was informed by his wife when he returned back to his house in the night. He admitted that the matter was reported to him after he took his meals. Admittedly, he has not tried to search the appellant nor informed to the village Chowkidar or any one nor the villagers. P.W. 2 has stated that the matter was reported immediately after the incident to daughter- in-law Munshi Mahto and some other females. She farther asserted that she went, to the house of village Chowkidar who had gone along with them next day to the police station, which contradicts her son. It has further, been found that P.W. 1 and P.W. 2 have developed the prosecution version by including P.W. 2 as eyewitness to see the appellant fleeing away from the place of occurrence. The father-in-law of the informant has not been examined. 8. In absence of the probable witnesses i.e. village Chowkidar, father-in-law of the informant and further non-examination of the Investigating Officer in the present case, creates a reasonable doubt on the whole prosecution version. 9. Having considered the above-mentioned facts and circumstances of the case, I find and held that the prosecution has failed miserably to bring home the charge under Section 376 of the Indian Penal Code against the appellant beyond all reasonable doubts. Accordingly, I find that the present appeal has got merit and deserves to be allowed. 10. In the result, the present appeal has got merit and is allowed. The judgment of the trial Court is hereby set aside. The ap pellant is acquitted from the charge levelled against him and lie is discharged from the liability of his bail bond.