Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 848 (JHR)

Shyam Nayak v. The State Of Jharkhand

2007-11-06

D.G.R.PATNAIK

body2007
JUDGMENT D.G.R. Patnaik, J. 1. This appeal is directed against the judgment of conviction and sentence dated 28" of August, 2003, passed by the learned Additional Sessions Judge, Fast Track Court-II, Chaibasa in Sessions Trial No. 300 of 2001, whereby the appellant was convicted for the offence under Section 376 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of ten years and also to pay a fine of Rs. 5,000/-. 2. The case against the appellant was registered on the basis of the complaint filed by the prosecutrix before the learned Chief Judicial Magistrate, Chaibasa, which on being forwarded by the Magistrate to the Police, was registered at the Tonto Police Station for the offences under Sections 366A, 376 and 201 of the Indian Penal Code. At the conclusion of the investigation, the Police submitted chargesheet recommending trial of the appellant for the offences under Sections 366A, 376 and 201 of the I.P.C. The cognizance for the aforesaid offences was taken by the learned Magistrate, whereafter the trial commenced against the appellant in the court of the Additional Sessions Judge. 3. The case of the prosecution in brief is that the prosecutrix, a girl aged about 16 years, used to live with her mother at village-Hessabera. In the early hours of the morning of 18.11.2000, she went to attend the call of nature towards a nearby pond. The appellant accosted her at the pond and forcibly took her up to the nearby bushes, where he forced himself upon her and committed tape on her against her will and consent and in the process, he had threatened her of dire consequences and had also silenced her by promising to marry with her. However, the girl came home and reported the matter to her mother, Lalita Nayakin. The mother called her brother Kuiso Nayak and informed him about the occurrence, whereafter the mother accompanied by her brother and others went to the house of the father of the appellant and reported the matter to his father. On query made by his father, the appellant admitted to have committed the offence and had agreed to marry the girl. On such an understanding, the matter was not reported to the Police. On query made by his father, the appellant admitted to have committed the offence and had agreed to marry the girl. On such an understanding, the matter was not reported to the Police. Later on 21.04.2001, the appellant and his father had refused to consent for the marriage of the appellant with the prosecutrix and thereafter, the complaint was lodged on 24.04.2001 in the court of the Chief Judicial Magistrate. 4. The appellant had denied the charges and had preferred to be tried. His case in defence was of total denial of the allegation and of false implication. (sic) has not reported the alleged occurrence to the Manki or the Munda of the Village or to the village head and such conduct on the part of the prosecutrix raises serious doubt about the veracity of her testimony. It is further submitted that contrary to the claim of the prosecutrix of her being a minor on the alleged date of occurrence, the opinion of the Doctor (P.W.7), confirms that the prosecutrix was more than 18 years of age on the alleged date of occurrence and she was not a minor. Referring to the evidences of the prosecutrix, learned Counsel submits that the evidence of the prosecutix, it read together with the evidence of the Doctor would confirm that the prosecutrix was not a virgin on the alleged date of occurrence and was in fact a lady habituated to sexual intercourse and the allegation of physical contact, even if taken to be true, the evidence of the prosecutrix suggests that she was a consenting party. Learned Counsel argues that the testimony of the prosecutrix cannot, therefore, be relied upon to infer the offence of rape against the appellant. 8. Learned Counsel argues that the testimony of the prosecutrix cannot, therefore, be relied upon to infer the offence of rape against the appellant. 8. Learned Counsel for the State on the other hand, offers support to the findings as recorded in the impugned judgment of the trial court and submits that considering the fact that the prosecutrix and her parents happen to be the members of the tribal community and also considering the fact that the prosecutrix had promptly reported the matter to her parents, who in their turn had taken up the matter with the parents of the appellant and a settlement was arrived at between the parties, whereby the parents of the appellant and the parents of the prosecutrix had agreed that the appellant would marry the prosecutrix, though eventually, they had failed to honour their commitments, the delay in lodging the F.I.R. has adequately been explained by the prosecutrix. Learned Counsel argues further that the testimony of the prosecutrix alone is sufficient to convict the appellant for the offence of commission of rape and the fact that the appellant has indulged in the offensive act with the prosecutrix is also confirmed from the testimony of the witnesses, who have affirmed that in their presence, the appellant had admitted his guilt and had promised to marry the prosecutrix and such fact has also been recorded in the agreement (Exhibit 1), which was executed by the father of the appellant. 9. From the perusal of the evidences, it appears that the incident is alleged to have occurred in the morning of 18.11.2000, though report thereof was made by way of a complaint by the prosecutrix about five months later. The explanation for the delay in lodging the F.I.R. has been offered by the prosecutrix in her complaint and reiterated by the witnesses examined on her behalf. The explanation is that the occurrence was promptly reported by the prosecutrix to her parents, who took up the matter with the father of the appellant and a settlement was arrived at between them, whereby an assurance was given by the appellant and his father that the appellant would make amends by marrying the girl and thereby the complainant and her parents were persuaded not to lodge any complaint in respect of the occurrence to the Police. The appellant and his father retracted from their commitments about five months later, whereafter the complaint was lodged by the prosecutrix. Considering the above fails and circumstance and also the fact that the complainant and her parents belong to the tribal community living in village and had acted in accordance with the traditional practices, the delay in my opinion has adequately been explained. Even, otherwise, the mere delay in lodging the complaint in itself cannot be taken as a ground for rejecting the prosecutions case. 10. In her evidence, the prosecutrix has reiterated the same statements as contained in her complaint She has described in detail the manner of occurrence, affirming that the appellant had ensnared her at a lonely place, when she gone to attend the nature of call at the village pond and by threatening her with dire consequences, he had ravished her, despite her objections and alarms. She has further affirmed that on returning home, she immediately informed her mother about the occurrence and thereafter the mother and maternal uncles complained against the incident to the father of the appellant. She further affirms that on being queried, the appellant accepted his guilt in presence of his own father and in presence of the prosecutrix and her mother and maternal uncles, whereupon the appellant and his father had agreed that the appellant would marry her. She affirms further that about five months later, the appellant and his father had refused to honour their commitments. The evidence of P.W. I, P.W. 2, and P.W. 3, who are the maternal uncles of the prosecutrix, supports the version of the prosecutrix and corroborates her statements that on being informed about the occurrence, these witnesses had gone to the house of the appellant and reported the matter to the appellants father and in their presence, the appellant had confessed his guilt and had agreed to marry with the prosecutrix. The evidence of P.W. 4, Lalita Nayakin, the mother of the prosecutrix, confirms that in the morning of the date of occurrence, the prosecutrix had gone towards the village pond to ease herself and when she returned home, she informed that she was sexually abused by the appellant, Shyam Nayak. The evidence of P.W. 4, Lalita Nayakin, the mother of the prosecutrix, confirms that in the morning of the date of occurrence, the prosecutrix had gone towards the village pond to ease herself and when she returned home, she informed that she was sexually abused by the appellant, Shyam Nayak. This witness has further affirmed that she immediately informed her brothers and together with them and taking the prosecutrix alongwith her, she went to the house of the appellant and complained about the incident to his father and in her presence as well as in presence of her brothers, the accused had confessed to have sexually assaulted the prosecutrix and had agreed to many with the prosecutrix. 11. P.W. 7, Dr. Neeru Jha has though been examined by the prosecution but admitted that she had not examined the prosecutrix. The Prosecution has, however, proved the Medical Report prepared by the Doctor who had examined the prosecutrix, P.W. 7 had concurred with the opinion of the Doctor, recorded in the Medical Report on the basis of the data found by the examining Doctor as mentioned in the Report. Admittedly, the girl was examined more than five months after the alleged date of occurrence and on such delay, the presence of any evidence suggesting rape is ruled out. The Medical Report, however, suggests that in the opinion of the Doctor, the age of the victim girl was about 17-18 years on the date of her medical examination. 12. On careful scrutiny of the evidence of the prosecutrix, there appears a ring of truth in her testimony. Her conduct in promptly reporting the matter to her mother, suggests that she was highly aggrieved by the sexual assault made on her by the appellant. The evidence of her mother and maternal uncles lends support to the evidence of the prosecutrix in respect of the sequence of events, which transpired, after the victim had reported the occurrence to her mother. The mere fact that these witnesses happen to be the near relations of the prosecutrix, does not render their evidence as unworthy of credit. 13. Learned Counsel for the appellant has tried to suggest that the entire allegations against the appellant is false and the case was instituted only to pressurize the appellant to marry the prosecutrix. The mere fact that these witnesses happen to be the near relations of the prosecutrix, does not render their evidence as unworthy of credit. 13. Learned Counsel for the appellant has tried to suggest that the entire allegations against the appellant is false and the case was instituted only to pressurize the appellant to marry the prosecutrix. The appellant has not adduced any evidence to suggest that prior to the alleged date of occurrence, the parents and guardians of the prosecutrix had ever approached the appellant and his father with a proposal for the marriage of the prosecutrix with the appellants and that the appellant and his father had rejected the proposal. On the contrary, the evidence of the prosecutrix and her witnesses confirm on being confronted with the complaint against the appellant, the appellant had made extra judicial confession in presence of the witnesses and he and his parents had proposed that the appellant would many the prosecutrix and had even entered into a written agreement (Exhibit 1), to lend assurance to the complaint and her parents and to persuade them not to lodge any complaint with the Police regarding the occurrence. 14. The trial court has elaborately discussed the evidences on record and has assigned reasons for placing reliance upon the testimony of the prosecutrix, with the support of the evidence of the other witnesses. I do not find any infirmity or impropriety in the finding of conviction and sentence recorded by the learned trial court against the appellants for the offence under Section 376 of the I.P.C. In the light of the discussions made above, I do not find any merit in this appeal. Accordingly, this appeal is dismissed. The impugned judgment of conviction and sentence, as passed by the trial court against the appellant is hereby confirmed.