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Jharkhand High Court · body

2009 DIGILAW 501 (JHR)

Dasrath Prasad v. State of Jharkhand

2009-04-05

PRASHANT KUMAR

body2009
Order By Court.-This appeal is directed against the judgment of conviction dated 25.9.2002 and order of sentence dated 26.9.2002 passed by 7th Additional Sessions Judge, Dhanbad in Sessions Trial No. 34 of 2001 whereby and where under the learned court below convicted the appellant for committing an• offence under Section 376 of the I.P.C. and sentenced him to undergo rigorous imprisonment for six years. 2. The case of prosecution, in short, as per the fardbeyan is that on 11.6.2000 at 12:00 p.m. in the noon informant went to the shop of appellant for taking tea. She further alleged that while she was making payment, the appellant caught hold and took her behind the shop and committed rape. It is stated that at the time of occurrence co-accused Arjun Thakur came and put a cloth on her mouth, due to that she could not raise alarm. It is stated that, after the commission of offence appellant released her then she raised alarm, thereafter people arrived and • appellant fled away. 3. On the basis of aforesaid fardbeyan, Jharia (Borasadha) P.S. Case No. 213 of 2000 under Sections 376/34 of the I.P.C. has been instituted and police took up investigation. After completing investigation, police submitted charge-sheet. It appears that learned C.J.M. took cognizance of the offence and committed the case to the Court of Sessions as the offence under Section 376 6f the I.P.C. is exclusively triable by the Court of Sessions. 4. It appears that learned Sessions Judge, Dhanbad framed and explained the charge to the appellant and co-accused Arjun Thakur under Sections 376/34 of the I.P.C. to which they pleaded not guilty and claimed to be tried Thereafter, the 'prosecution adduced oral and documentary evidence in support of its case. After close of the case of prosecution, statement of accused persons recorded under • Section 313 of the Cr.P.C. in which their defence is of total denial. The appellant had also taken a defence that the prosecutrix owe money to the appellant and when he requested her for returning the said money, he has been falsely implicated in the present case. 4 After considering the evidences available on record, co-accused Arjun Thakur has been acquitted by the learned court below, however, the appellant has been convicted under Section 376 and sentenced to undergo rigorous imprison-ment for six years. Against that the present appeal has been filed. 5. 4 After considering the evidences available on record, co-accused Arjun Thakur has been acquitted by the learned court below, however, the appellant has been convicted under Section 376 and sentenced to undergo rigorous imprison-ment for six years. Against that the present appeal has been filed. 5. It is submitted by learned counsel for the appellant that the entire case is based upon the sole testimony of P.W.-1. It is submitted that the statement of P.W.-1 does not find any corroboration from doctor or from any other independent sources. It is submitted that. P.W. 7 & P.W. 8 who owned shops near the place of occurrence, had not supported the case of prosecution. It is submitted that the prosecutrix owed some money to the appellant and when he demanded that money he has been falsely implicated. Accordingly, it is submitted that the impugned judgment cannot be sustained. 6. On the other hand learned Additional P.P. submits that in a rape case if the evidence of prosecutrix inspire confidence, then the conviction can be based on her sole testimony, without any support from medical evidence. It is submitted that in the instant case, the prosecutrix had been examined by the doctor on the next day of occurrence. The doctor found that she was under the period of menstruation from last two days. Thus, because of that, she might have washed her private parts in between the period of rape and medical examination. Under the said circumstance, the opinion of the doctor has no relevance. It is further submitted that the prosecutrix denied the suggestion of appellant that she owes any money to him. Therefore, in the absence of any positive evidence, it cannot be said that she is indebted to the appellant. Thus, the question of false implication does not arise. It is submitted that there is no illegality in the impugned judgment, which requires any interference by this Court. 7. Having heard the submission, I have gone through the record of the case and scrutinized the evidence carefully. P,W.1 (the prosecutrix), stated that on the date of occurrence at about 12:00 p.m., after performing her job she went to the shop of Dasrath (appellant) for taking tea. She further deposed that appellant molested her and took her to the back of the shop and fell her on the ground near a bush and ravished her. P,W.1 (the prosecutrix), stated that on the date of occurrence at about 12:00 p.m., after performing her job she went to the shop of Dasrath (appellant) for taking tea. She further deposed that appellant molested her and took her to the back of the shop and fell her on the ground near a bush and ravished her. During the cross-examination, she remain consistent to her earlier statement made in the examination-in chief She ,had denied the suggestion of defence that she owes Rs. 840/- to the appellant and when the same was demanded by the appellant she falsely implicated him. 8. P.Ws. 2, 3 & 4 are the husband, daughter-in-taw and son of prosecutrix. They have supported the case of prosecutrix to the extent that after the occurrence she narrated about the occurrence to them. P.W.5, is the doctor who had medically examined the prosecutrix on the next day of occurrence i.e. on 12.6.2000. However, from perusal of deposition of the doctor, I find that she has not given any opinion as to whether any rape committed on the prosecutrix or not. However, she deposed that no spermatozoa found in the vaginal swab collected from the prosecutrix. P.W. 6, is the I.O. who has proved the fardbeyan, F.I.R. and. endorsement made by Officer-in-charge of Jharia Police Station on the fardbeyan as well as F.I.R. He further stated that during the investigation he inspected the place of occurrence and found mark of violence on the bush situated near the place of occurrence. 9. Thus, from perusal of entire prosecution evidence, I find that the present case rests on the sole testimony of prosecutrix. It is well settled that in a rape case if the statement of prosecutrix is acceptable then it is open for the Court to convict the accused on her sole testimony without seeking any corroboration. From perusal of deposition of prosecutrix, I find that she remained consistent to her earlier statements made in fardbeyan as well as in her deposition in Court and stated that the appellant committed rape upon her. The aforesaid version of prosecutrix finds support from the evidence of I.O. who inspected the place of occurrence and found mark of violence on the bush, which situates behind the back of shop of appellant. The other witnesses i.e. P.Ws. The aforesaid version of prosecutrix finds support from the evidence of I.O. who inspected the place of occurrence and found mark of violence on the bush, which situates behind the back of shop of appellant. The other witnesses i.e. P.Ws. 2, 3 and 4 had also corroborated the statement of prosecutrix to the extent that after returning home, she disclosed about occurrence. 10. It is submitted by learned counsel for the appellant that in the fardbeyan prosecutrix stated that when she raised alarm number of persons of the locality arrived, but while deposing in court she stated that on alarm none had turned up. Thus, the prosecutrix is making different statement at different stages. Hence, her evidence cannot be accepted. In my view, the aforesaid contradiction shown by the appellant is minor in nature. It is worth mentioning that prosecutrix is an illiterate lady coming from scheduled tribe community. Thus, such type of contradiction is bound to occur in her testimony. As noticed above, she remained consistent about the manner of occurrence, genesis of occurrence and place of occurrence, which find full corroboration from physical finding of I.O. Thus, in my view her evidence regarding the occurrence is acceptable. 11. In view of the discussions made above, I find that the learned court below had rightly convicted the appellant under Section 376 of the I.P.C. 12. It is submitted by learned counsel for the appellant that the occurrence took place ten years ago and appellant remained in custody for about two and half years. Thus, the order of sentence may be modified. After going through the records, I find that the appellant remained in custody from 12.6.2000 to 13.12.2002. Thus, it is apparent that he was in custody for about two and half years. It further appears that• occurrence took place in the year 2000 and by now about 10 years had already been elapsed. Thus, during these periods, the appellant had also sustained mental agonies. 13. Considering the facts and circumstances of the case, I find that the ends of justice will be served if the appellant be sentenced to the period for which he already remain in custody Accordingly, I modify the order of sentence and sentenced him to undergo rigorous imprisonment for the period already he remain in custody. 14. In the result, this appeal is dismissed. The impugned judgment is affirmed. 14. In the result, this appeal is dismissed. The impugned judgment is affirmed. However, the order of sentence is modified to the aforesaid extent.