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2009 DIGILAW 525 (JHR)

Raja Ram Mahato v. State of Jharkhand

2009-04-09

PRADEEP KUMAR

body2009
JUDGMENT : By Court.-The appeal is directed against the judgment of conviction and sentence dated 19.9.2001 passed by Shri Sitaram Mahato, 2nd Additional Sessions Judge, Seraikella, Kharswan in Sessions Trial No. 87/2000, by which judgment he found the appellant, Raja Ram Mahato, guilty under Section 316 of the Indian Penal Code and convicted him thereunder to undergo R.I. for 7 years for the said offence. However, the appellant was acquitted from the charges under Sections 376 and 493 of the Indian Penal Code. 2. The prosecution case was started on the basis of first information report given by' the informant, Sarita Kumari on 28.6.99 stating therein that she had been suffering from paralysis by one hand and one leg. Three years back she was alone in her house and the accused, Rajaram Mahto entered into her house and stated that he wants to marry her and on the pretext of marriage he made sexual relationship with her. Since the accused-appellant promised her to marry her, if she did not disclose the occurrence to anybody. It is alleged that whenever she was alone in her house the accused-appellant seeing the opportunity always used to enter into her house and committed rape upon her by force. When she became four months pregnant then she informed about the occurrence and about her pregnancy to mother of Bikhari Mahto on 20.5.1.999. Thereafter, she disclosed the matter to her parents, she stated that on 22.5.99 at about 3 p.m. the accused Rajaram Mahato finding her alone entered into her house and brought her to his own house on the promise of marriage, but subsequently he refused to marry her then the mother and father of the accused-appellant with the help of nurse got her aborted. When she became fit she lodged this F.I.R. 3. On the basis of the said F.I.R. a case under Sections 376/493/313 of the Indian Penal Code was registered and after investigation the police submitted charge-sheet under Sections 376/493/313/ 316 of the Indian Penal Code. 4. Since, the case was exclusively triable by a court of sessions, learned Magistrate after taking cognizance of the case committed the same to the Court of Sessions. Subsequently, the case was transferred to the Court of 2nd Additional Sessions Judge, Seraikella where the trial was held as aforesaid. 5. 4. Since, the case was exclusively triable by a court of sessions, learned Magistrate after taking cognizance of the case committed the same to the Court of Sessions. Subsequently, the case was transferred to the Court of 2nd Additional Sessions Judge, Seraikella where the trial was held as aforesaid. 5. In course of trial the prosecution has examined 10 witnesses in this case and after considering the evidences of the witnesses the trial court found the accused guilty under Section 316 of the Indian Penal Code as aforesaid and acquitted him from the charges under Sections 376 and 493 of the Indian Penal Code. 6. It is submitted by the learned counsel for the appellant that the trial court after considering the evidences of the witnesses, has given a clear finding that the appellant, Rajaram Mahato with consent of the victim girl, Sarita Kumar co-habited, which resulted into her pregnancy and there is no evidence that the pregnancy was aborted by force and as such the conviction of the appellant under Section 316 of the Indian Penal Code is bad in law and is fit to be set aside. 7. On the other hand, learned counsel for the State has submitted that there is sufficient evidence to prove that the pregnancy of the victim lady was aborted. The victim girl was suffering from paralysis, yet she was forced to go for abortion by this accused person, and as such there is sufficient evidence to prove that the offence under Section 316 of the Indian Penal Code was committed by the appellant. 8. After hearing both the parties and going through the evidence, I find that in course of trial the prosecution has examined as many as 10 witnesses. P.W. 1 is Sushari Mahatain, P.W. 2 is Mangal Mahato, who was tendered for cross-examination. P.W. 3 is Satyaban Bisai, who had proved formal F.I.R. P.W. 4, Jawahar Mahato, who was declared hostile. P.W.5 is Senapati Mahto, brother of the informant, P.W. 6, Parbati Mahatain, sister of the informant, P.W. 7 is Sarita Kumari (informant), P.W. 8 is Jagari Mahato, who was declared hostile, P.W. 9 is Bhim Sen Sinduriya, the Investigating Officer of the case and P.W. 10 is B.B.Topno, the Medical Officer, who examined the victim lady, Sarita Kumari and has proved the medical report as Ext. 3. 9. 3. 9. It appears from the evidence of P.W. 7 that the informant was taken for abortion by this accused-petitioner by force and he got her injected at village 'Jaikan' and also gave some medicine for abortion and while she was coming back with him on motorcycle she started bleeding profusely whereupon the appellant left her on the way and ran away. Her statement is corroborated by the evidence of P.W. 1, Sushari Mahatain, who stated that she was also informed by the informant that the accused-appellant had taken the victim girl for abortion and left her on the way. Similar statements had been given by P.W. 5 and P.W. 6 and the factum that abortion was done to the victim girl, has also been proved and accepted by Dr. B.B. Topno. In that view of the matter that there is sufficient evidence to prove beyond all reasonable doubt that the accused appellant who had love affairs with the victim girl finding that she has become pregnant and she was not ready to go for abortion, he took her to a nurse at village 'Jainki', where abortion was attempted upon her by force and finally the abortion took place. 10. In my opinion, the accused-petitioner has committed the offence under Section 316 of the Indian Penal Code, and he has rightly been convicted. 11. However, it is submitted by the learned counsel for the appellant that the sentence of R.I. for 7 years is harsh on the young man aged about 40 years. Since, it has been found by the court that the appellant, Rajaram Mahto and informant Sarita were consenting partner in sex which resulted in this pregnancy, and if he had married her, there would have been no offence. In that view of the matter, lenient view may be taken in favour of the appellant, who has remained in jail custody during trial for 2% years. 12. After hearing the learned counsel for the appellant and learned A.P.P. for the State in the facts and circumstances, since, the appellant is a young man and the victim girl is a .handicapped lady with Paralysis. In my opinion, the ends of justice will meet if the accused, who has been found guilty under Section 316 of the Indian Penal Code, sentenced to undergo the period of sentence already undergone i.e. 21/2 years during trial coupled with a fine of Rs. In my opinion, the ends of justice will meet if the accused, who has been found guilty under Section 316 of the Indian Penal Code, sentenced to undergo the period of sentence already undergone i.e. 21/2 years during trial coupled with a fine of Rs. 5,000/- and in default to undergo S.I. for one year. If the fine is realized it should be paid entirely to the victim girl, who is a handicapped girl. 13. With the alteration in the sentence the appeal is dismissed.