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2008 DIGILAW 658 (JHR)

Begha Mondal @ Manoj Mandal v. State Of Jharkhand

2008-07-01

D.G.R.PATNAIK

body2008
JUDGMENT D.G.R. Patnaik, J. 1. This appeal is directed against the judgment of conviction dated 11.08.2006 and order of sentence dated 14.08.2006, passed in Sessions Case No. 13 of 2006/33 of 2005, by the 01 st Additional Sessions Judge, Jamtara whereby the appellant was convicted for the offence under Section 376 of the I.P.C. and sentenced to undergo rigorous imprisonment for 10 years. 2. The case was registered on the basis of the First Information Report of the prosecutrix and the police after investigation, submitted charge sheet recommending trial of the appellant for the aforesaid offence. Thereafter charge against the accused was framed. The case of the prosecution in brief is that in the afternoon of 17.12.2004 at about 3:00 P.M., while the prosecutrix was grazing her cattle, in the fields near her house, at that time, the appellant who was also grazing his cattle nearby, came to her and after taking her to a lonely place and after laying her down, he stripped her undergarments and then ravished her. After sexually assaulting her, he fled away and then the informant came to her house and narrated the entire story to her mother (P.W. 4). The father of the prosecutrix (P.W. 3) was not at home and when he returned home in the evening, the matter was reported to him and thereafter the matter was reported to the Village Panchayat. The Panchayat meeting was convened but the accused did not appear and on account of his failure to appear, the prosecutrix and her father were advised by the Panchayat that they should take the help of the Police. Accordingly, the prosecutrix (P.W. 7) accompanied by her father (P.W. 3) went to the Police Station in the afternoon of the next day and lodged a complaint. The written complaint was prepared and submitted to the Police Officer. The case was accordingly registered for the offence under Section 376 of the Indian Penal Code against the accused. The prosecutrix was forwarded for her medical examination. After concluding investigation, the Police submitted charge sheet recommending trial of the appellant for the offence under Section 376 of the Indian Penal Code. The charge was framed against the appellant for the offence to which he pleaded not guilty. The prosecutrix was forwarded for her medical examination. After concluding investigation, the Police submitted charge sheet recommending trial of the appellant for the offence under Section 376 of the Indian Penal Code. The charge was framed against the appellant for the offence to which he pleaded not guilty. The appellant in his defence had stated that he has been falsely implicated in this case at the instance of his own uncle, who happens to be in inimical terms with him and the case was instituted by taking advantage of the fact that the father of the prosecutrix is employed as a servant in his uncles house. 3. As many as ten witnesses were examined by the Prosecution at the trial while two were examined by the accused in defence. Out of the Prosecution witnesses examined, P.W. 7 is the prosecutrix. P.W. 3 and P.W. 4 are father and mother of the prosecutrix respectively. P.W. 1 and 2 are the co-villagers, whose testimony is based on hearsay evidence and P.W. 5 is a witness to the seizure of blood-stained undergarments of the prosecutrix. P.W. 8 is the Doctor, who has medically examined the prosecutrix. P.W. 9 is the Investigating officer and P.W. 10 is the Police Officer, who had registered the F.I.R. on the basis of the written Report. 4. The trial court relying upon the testimony of the prosecutrix and finding support from the evidence of the witnesses as also from the medical evidence, recorded its finding of guilt against the appellant and sentenced him accordingly. 5. Assailing the impugned judgment of conviction and sentence, learned Counsel for the appellant submits that conviction of the appellant for the aforesaid offences is totally misconceived and is against the weight of evidences on record. Learned Counsel would explain that as a matter of fact, evidence of the prosecutrix on which the trial court has placed implicit reliance, is not worthy of credence for the main reason that her claim that she was subjected to forcible sexual intercourse by the appellant, has been totally contradicted by medical evidence. Learned Counsel explains that according to the claim of the prosecution, the prosecutrix was a minor girl aged 13 years and she was medically examined within 24 hours from the time of the alleged occurrence. Learned Counsel explains that according to the claim of the prosecution, the prosecutrix was a minor girl aged 13 years and she was medically examined within 24 hours from the time of the alleged occurrence. The Doctor who has examined the victim girl, has categorically stated that she did not find any mark of violence or any external injury around the private part of the prosecutrix, nor was the hymen of the girl found ruptured. Rather, she found the hymen totally intact. The Doctor has further stated that the vaginal swab was also collected and sent for pathological examination and result of the examination did not confirm presence or any trace of spermatozoa. Inviting further attention to the medical evidence, learned Counsel submits that the Doctor has categorically and assertively stated that in the event of sexual intercourse with a girl of the age of the prosecutrix, there was a definite chance of rupture of the hymen. This, according to the learned Counsel, is a fact, which totally contradicts the case of the prosecution. Learned Counsel would further invite attention to the evidence of the prosecutrix, wherein, she has categorically stated that at the time when she had gone to graze her cattle, her two friends, namely, Sunita Basky and Balika Besra were also present with her at the time and near the place of the alleged occurrence. The Investigating Officer (P.W. 9) has admitted that he had recorded the statements of both these friends of the prosecutrix at Para 9 of the case diary. Yet, neither of these two girls was named as chargesheet witnesses and the prosecution has very conveniently omitted to examine them. The appellant feeling convinced that neither of these two girls had made any incriminating statements against him or had offered any support to the prosecutions case, had filed a petition before the trial court praying that both the witnesses be examined as court-witnesses but the learned trial court did not pass any order to examine them as court witnesses. Under such circumstances and due to lack of proper advice, the appellant could not examine these two witnesses as defence witnesses. Learned Counsel adds further that non-examination of these two material witnesses has to be taken as a circumstance, to draw adverse inference against the Prosecution. Under such circumstances and due to lack of proper advice, the appellant could not examine these two witnesses as defence witnesses. Learned Counsel adds further that non-examination of these two material witnesses has to be taken as a circumstance, to draw adverse inference against the Prosecution. Learned Counsel adds further that the learned trial court has committed grave error in not appreciating the evidences of the defence witnesses both of whom have affirmed categorically that there was previous enmity between the appellant and his uncle and taking the advantage of the prosecutrixs father being employed under him, the uncle has taken advantage to institute a false case against the appellant. 6. Learned Counsel for the State on the other hand while supporting the impugned judgment of conviction and sentence as passed by the learned court below, submits that the statement of the prosecutrix is in itself sufficient to sustain conviction of the appellant and in fact her statement is clear, cogent, consistent and reliable. Furthermore, her testimony is supported by the testimony of the mother (P.W. 4). From the evidence of the prosecutrix (P.W. 7), it would appear that she has supported the prosecution case by reiterating the statements which she has earlier made before the Investigating Officer. Her statements would suggest that while she was grazing her cattle, the appellant came at the alleged place of occurrence and had outraged her modesty by making a sexual assault on her. 7. On reading the impugned judgment, it transpires that the trial court has convicted the appellant relying entirely on the testimony of the prosecutrix. No doubt a conviction can be based for an offence of rape even on the sole testimony of the prosecutrix. But before doing so, the veracity of her statements has to be tested to find out as to whether it inspires confidence and is reliable. The testimony of the prosecutrix cannot be taken at the face value and there is need to test the veracity of her statements by reference to other material circumstances. From the nature of the evidence adduced by the prosecution, it would transpire that there was no eye-witness to the alleged occurrence nor was there any occasion for any person to be present at or near the place of occurrence at the time when the alleged offence was committed. From the nature of the evidence adduced by the prosecution, it would transpire that there was no eye-witness to the alleged occurrence nor was there any occasion for any person to be present at or near the place of occurrence at the time when the alleged offence was committed. If this was so, then there could not be a possibility of any witness to come forward and support the claim of the prosecutrix. But in the instant case, even as admitted by the prosecutrix herself, it would appear that two other girls were present at or about the place of occurrence at the relevant time. She has not only admitted their presence but has also named them declaring them to be her own friends. Both these friends of the prosecutrix were examined by the Investigating Officer during investigation and their respective statements, as admitted by the Investigating Officer (P.W. 9) himself at the trial, were recorded in Paragraph 9 of the case diary. Yet, neither of these two witnesses were named in the chargesheet nor examined as prosecution witnesses. There is force in the argument of the learned Counsel for the appellant that being confirmed that neither of these witnesses would have supported the prosecutions case they were therefore suppressed. In course of arguments learned Counsel for the appellant had wanted to invite this Courts attention to the statements of the said witnesses recorded in Paragraph 9 of the case diary to convince that the statements of these witnesses totally belie the prosecutions case. The materials on record sufficiently affirm the presence of the two material witnesses at or near the alleged place of occurrence and their evidence could have thrown sufficient light on the prosecutions case. Failure of the prosecution to examine these two material witnesses and to produce them at the trial does amount to suppression of material witnesses. Presumption under such circumstances can certainly be drawn against the prosecution and support the suggestion of the defence that the alleged incident did not occur in the manner or as suggested by the prosecution. The learned trial court should have considered this aspect when it was brought to its notice by the defence and in order to obtain independent testimony, should have examined the witnesses as court witnesses. 8. The learned trial court should have considered this aspect when it was brought to its notice by the defence and in order to obtain independent testimony, should have examined the witnesses as court witnesses. 8. On appraisal of the evidence of the prosecutrix (claimed to be aged 13 years), it transpires that according to her while she was grazing cattle in the open fields, the appellant who was also grazing his cattle nearby approached her and after laying her on the ground, he undressed her, mounted on her and committed "Balatkar" on her and thereafter fled away. On being specifically asked as to whether she understands the meaning of the word "Balatkar", she says, she does not know. The evidence of the Doctor on the other hand is positive when she says that there was no sign whatsoever to confirm that the girl was subjected to sexual intercourse at all. The Doctor while explaining the basis of her opinion, has stated that the hymen of the girl of the age and physical constitution of the prosecutrix cannot remain intact, if subjected to sexual intercourse. In the present case, the Doctor had found the hymen of the prosecutrix totally intact. It is apparent therefore that the medical evidence eliminates and disproves the prosecutions theory of rape. The statement of the prosecutrix, even taken on its face value and read in juxtaposition with the evidence of the medical expert, may suggest at best that an attempt to sexually assault the girl was made and her modesty was outraged. However, before drawing such inference, it has to be seen as to whether the evidence of the prosecutrix, gives a true and correct representation of the occurrence without any suppression of material facts. 9. An attempt was made by the prosecution to introduce an evidence of rape suggestively by referring to the seizure of a purportedly blood stained undergarments of the prosecutrix. No evidence has been brought to confirm that the stains in the undergarments were actually blood stains and that too of the prosecutrix. On the contrary, the possibility of the undergarment being stained by blood as a result of sexual intercourse is eliminated firstly because even according to the prosecutrix, she was first completely undressed and then assaulted. No evidence has been brought to confirm that the stains in the undergarments were actually blood stains and that too of the prosecutrix. On the contrary, the possibility of the undergarment being stained by blood as a result of sexual intercourse is eliminated firstly because even according to the prosecutrix, she was first completely undressed and then assaulted. Secondly, she does not assert that she had suffered any bleeding injury to her genitals or to the portion of her body covered by her undergarments. The Doctor has also declared that there was no such injury on the body of the girl which would have caused bleeding from her genitals and corresponding stain on her undergarments. The Doctor has also affirmed that there was no any trace of spermatozoa found in the pathological examination of the vaginal swab of the girl which was collected within 24 hours of the time of the alleged occurrence. 10. The above circumstances, particularly the medical evidence cannot be ignored since the circumstance indicated by the medical expert creates a doubt as to whether the prosecutrix had suffered any sexual assault at all. It is apparent that the facts have not been placed fully and correctly by the prosecution. Rather, as observed above, there is suppression of material evidence and in absence of the total facts being placed correctly for consideration and in absence of support from medical evidence, it has to be considered that there is deficiency in the evidences of the prosecution placed before the trial court and a definite doubt is created against the prosecutions theory or rape. The benefit of such doubt has to be given to the accused- appellant and his conviction in the background of the bona fide and genuine doubt, cannot be sustained. The trial court appears to have placed implicit reliance on the testimony of the prosecutrix, without adverting to the material circumstance which appear in the evidences on record. 11. In the light of the above discussions, I find merit in this appeal. Accordingly, this Appeal is allowed. The impugned judgment of conviction and sentence as passed by the trial court against the appellant is hereby set aside. The appellant, who is in custody, is directed to be released forthwith, if not wanted in connection with any other case.