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2009 DIGILAW 1481 (JHR)

Arjun Toppo v. State of Jharkhand

2009-11-19

JAYA ROY

body2009
JUDGMENT Jaya Roy, J.- The appellant has tiled this appeal for setting aside the judgment of conviction and sentence dated 4.2.2009 and 5.2.2009 passed in S.T. No. 502/ 2006, arising out of Kanke P.S. Case No. 85 of 2005, corresponding to G.R. Case No. 3593 of 2005 by the Additional Judicial Commissioner, Fast Track Court-X, Ranchi. Whereby the appellant has been convicted for the offence under Section 376 of the Indian Penal Code and sentenced to R.I. for seven years and to pay a fine of Rs. 500/- and in default he is ordered to undergo for a further period of 15 days. 2. Prosecution case in brief is that this case was instituted on 17.11.2005 on the basis of a written report of Aruna Sara wherein she has stated that in the year 1997 when she was student of Intermediate, there was love developed between her and the accused/appellant and physical relationship was also established with her on the assurance of marriage. This was continued up to March 2005 which is a pretty long time. Thereafter, when she insisted for marriage, the accused/appellant refused to marry her. Thereafter, her relative also approached to him but he refused them also. Lastly, she filed this case on the allegation that the accused/ appellant committed rape on her since 1997 to March 2005 on the false assurance of marriage and ultimately he refused to marry her. 3. The prosecution has examined seven witnesses to prove its case. Amongst them, P.W. 1 is Anita Gari, P.W. 2 is Shanti Lakra, P.W. 3 is Kamla Tirkey, P.W. 4 is Aruna Bara (the informant), P.W.5 is Shakuntala Kachhap, P.W. 6 is Smt. Nirmala Bara, and P.W. 7 is Dr. Bina Sinha and two documents were exhibited i.e. Exhibit-1 is Written Report and Exhibit-2 is Medical Report. 4. Mr. Nilesh Kumar, the learned counsel for the appellant submits that the evidence of P.W. 4 the informant who is the alleged victim, is very important. She has stated in her evidence that in the year 1997 she was student of Intermediate in Sanjay Gandhi Memorial College. She had developed friendship with the accused/appellant and on the allurement of marriage, the accused /appellant started visit to her house and also made physical relationship with her and this was continued for 1997 to March 2005. She has stated in her evidence that in the year 1997 she was student of Intermediate in Sanjay Gandhi Memorial College. She had developed friendship with the accused/appellant and on the allurement of marriage, the accused /appellant started visit to her house and also made physical relationship with her and this was continued for 1997 to March 2005. But in her cross, she has very specifically stated that they were in deep love with each other and due to this attachment, they used to go each others house even once they went to Gangtok /Sikkim and stayed there two days which she did not tell her parents even. She has admitted in her evidence that accused/appellant committed sexual intercourse with her on 17.4.2002 in her house and thereafter 11.5.2002 in his own house. She has stated in paragraph-22 of her evidence to that extent that the accused /appellant left her without satisfying her. She has further stated that when she used to go his house, she usually stayed there for 5-6 hours after taking their meal together. 5. The informant in Paragraph-10 of her statement very fairly stated that she met with the accused/appellant and thereafter a deep love was developed between them and they cannot live without each other. She has further accepted due to this attachment, both of them used to go each others house but she did not informed her family members before 2005 about this. 6. The next important witness P.W. 6 the mother of the informant who has also deposed that the informant and the accused had developed love from the year 1997 and they have also physical relationship between them. She has further admitted in her evidence that the informant and the accused/appellant went to Gangtok/Sikkim for few days even and they used to stay together outside the house but they never informed all these facts to P.W. 6 the mother of the informant. She has stated further in her evidence that her daughter did not inform earlier about their love affairs, only after returning from Gangtok/Sikkim, she informed her mother that Arjun Toppo the appellant had proposed to marry her but now he refused her. Upon this, the P.W. 6 alongwith other went to the appellant but lastly he refused to marry the informant. 7. Upon this, the P.W. 6 alongwith other went to the appellant but lastly he refused to marry the informant. 7. P.W. 2, aunt of the informant has also stated that the informant was in love with each other from 1997 and used to visit each others house very often. She has accepted in Paragraph-13 of her evidence that she and her sister wanted to settle the marriage of Aruna Bara with Arjun Toppo. But when he refused to marry, this case was filed. It has also come in the light from Paragraph-11 of her evidence' that even in 2006 the informant and the accused /appellant used to roaming together after returning from Sikkim. She has further deposed that Aruna is very intelligent and she has sufficient maturity to understand her welfare. It has also come from her evidence that the informant was more than 30 years old in 2007 (the date of deposition) and the appellant is younger from her. Thus, it is very clear that the informant was more than 20 years in the year 1997 when the informant had developed intimacy with the appellant. 8. P.W. 1, Anita Gari is member of an institution "National Alliance of Womens" she has stated that in June 2005 the informant gave oral information to her institution about her sexual exploitation. She has stated that the informant had told her that she and the accused/ appel~ant were in love from 1995 to 2005 and they used to go together here and there and once they went to Gangtok/ Sikkim for few days. On her oral information P.W. 1 after some enquiry, she (P.W.1) referred the matter to "Mahila Helpline" where both the parties were present and the accused /appellant though admitted about physical relationship but refused to marry the informant. Thereafter, the informant was suggested to lodge the case. 9. P.W. 3 the friend of the informant. She has also deposed in her evidence given on 16.4.2007 in this case that the informant and accused appellant were known to her from 1997. She has further stated that both of them used to come to her house together. Her friend (the informant) accepted before her that she has love affairs with the accused appellant and they used to roaming together often on motorcycle. She has further stated that both of them used to come to her house together. Her friend (the informant) accepted before her that she has love affairs with the accused appellant and they used to roaming together often on motorcycle. She has further stated that they used to stay in her house for 2-3 hours: It has come in her evidence (at Paragraphs-1 and 2) that her marriage was 'performed in the year 2007 and prior to her marriage and even after her marriage, the informant and the accused appellant came to her house together. Thus, it clearly shows that even accepting the informant's allegation that the accused appellant has refused to marry her in the year 2005 but even after such refusal, she used to roaming with him. . 10. P.W. 5 the other aunt of the informant has also stated that the informant and the accused appellant were in love since 1997 and she had knowledge about this fact. She has further stated that both of them frequently used to go outside together. She has stated in March 2005 she came to know from the informant about physical relationship between her and the accused appellant and also about the refusal of the accused to marry her. 11. Mr. Nilesh Kumar has further pointed out that the informant herself accepted in her evidence that she has stated regarding threatening given by the appellant for the first time in the court and even she has not mentioned in her written report regarding any threatening given by the appellant to her. 12. Mr. Kumar has argued that the informant was not minor rather according to her own evidence she was 31 years old in the year 2007 when she adduced the evidence. Furthermore, the medical report (Ext.-2) clearly shows that she was above 23 years of age, at the time of her medical examination i.e. on 23.11.2005. Therefore, it cannot be said that she was incapable of understanding the nature and implication of the act which she consented to, She was fully aware of the moral quality of the act and the inherent risk involved in it. 13. Mr. Jamilur Rahman, the learned counsel of the informant submits that the consent of the informant was taken only on the allurement of the marriage and thereafter giving her threatening. 13. Mr. Jamilur Rahman, the learned counsel of the informant submits that the consent of the informant was taken only on the allurement of the marriage and thereafter giving her threatening. He has cited a decision of the Apex Court i.e. (2009)3 SCC page 761, I have gone through the said decision but the fact of the present case as appeared from the discussion of the aforesaid evidence of the prosecution witnesses, is absolutely different. In the present case, there is no prove that the victim lady who was admittedly more than 20 years at the time of alleged occurrence, was ever subjected to sexual intercourse without her consent. Moreover, it has come in the evidence that she was in deep love from 1997 as such she has continued her intimacy with the appellant even after his refusal to marry her. 14. Under these aforesaid circumstances, the inference can be drawn that the informant and the appellant were in love and the appellant for one or other reason when refused to marry the informant, she lodged this case alleging firstly that her consent was taken on allurement of marriage and secondly on threatening. But utter surprise even after his refusal, she continued her intimacy with him. 15. In my opinion and the facts and circumstances• stated above, it is clear that the informant enjoyed her young days with the appellant. She did not even file the F.I.R. immediately after the refusal of the appellant to marry her. So at any stretch of imagination it cannot be held that the appellant is guilty of rape. The informant had happily consented for physical enjoyment so she has no right now to turn round and implicate the appellant in a rape case. It is impossible for a prudent man to believe her cock and bull story. 16. Considering all these circumstances, I allow this appeal and set aside the judgment of conviction and sentences dated 4.2.2009 and 5.2.2009, passed by the Additional Judicial Commissioner, Fast• . Track Court-X, Ranchi in S.T. No. 520 of 2006 imposed upon the appellant by the trial court and discharge him from the liability of his bail bonds.