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2010 DIGILAW 471 (JHR)

Alam Ansari v. State of Jharkhand

2010-04-15

PRASHANT KUMAR

body2010
JUDGMENT Prashant Kumar, J.-This appeal is directed against the judgment of conviction and order of sentence dated 9.10.2002 and 22.10.2002 respectively passed by the Additional Sessions Judge, F.T.C.-III, Bokaro in connection with S.T. Case No. 323 of 1998, whereby and whereunder the appellant has been convicted under Section 376 of IPC and sentenced to undergo R.1. for seven years. 2, The case of the prosecution, in short is that the daughter of informant was going to the house of her maternal aunt on 19.9.1996 at about 1 P.M. and when she reached near the house of the appellant, the appellant forcibly dragged her in his house and committed rape upon her. It is further stated that after the occurrence she returned to her house and disclosed about the incident. It is further stated that on the same day informant called a Panchayati in the village, in which Panches directed the appellant to marry with the girl. Appellant refused to do so. Thus, the present case has been lodged. 3. On the basis 9f aforesaid information; Chas P.S. Case No. 214 of 1996 under Section 376 of• the IPC instituted and police took up investigation. It appears that police after completing the investigation submitted charge-sheet against the appellant under Section 376 of the IPC. After cognizance, case committed to the Court of Sessions, as the offence under Section 376 of the IPC is exclusively triable by the Court of Sessions. 4. From perusal of record, I find that learned Court below framed and explained the charge to the appellant under Section 376 of the IPC, to which he pleaded not guilty and claimed to be tried. Thereafter prosecution examined altogether 11 witnesses in support of its case. It appears that after close of the case of prosecution, statement of appellant recorded under Section 313 of the Cr.P.C. in which his defence is of total denial and false implication. The appellant also examined two defence witnesses. It then appears that after considering the evidence available on record, learned court below convicted and sentenced the appellant as aforesaid, against that present appeal has been filed. 5. It is submitted by learned counsel for the appellant that Doctor had given a definite opinion that no rape has been committed upon the prosecutrix. It is further submitted that the surrounding circumstances shows that evidence of prosecution is not worth reliable. 5. It is submitted by learned counsel for the appellant that Doctor had given a definite opinion that no rape has been committed upon the prosecutrix. It is further submitted that the surrounding circumstances shows that evidence of prosecution is not worth reliable. It is further submitted that the independent witnesses stated that negotiation of the marriage between the appellant and victim girl resulted in failure, therefore, appellant has been falsely implicated. 6. On the other hand, learned APP submits that the victim girl fully supported the prosecution case and stated that appellant had committed rape upon her. It is submitted that Doctor admitted in her deposition that she had not collected vaginal swab for examination. But in spite of that, Doctor had given opinion that "intercourse not done in this case". Thus, opinion of Doctor is not based on any scientific examination, therefore on the basis of aforesaid opinion, the statement of prosecutrix cannot be thrown overboard. It is further submitted that suggestion given by the appellant that since appellant refused to marry with victim girl, therefore he has been falsely implicated has been denied by the prosecutrix, and her father. There is no other positive evidence in this regard. It is further submitted that even assuming that there' was negotiation of marriage which resulted in failure, then also it is not probable that prosecutrix will falsely implicate the appellant in a rape case, because prosecutrix comes from village side, where offence of rape casts a social stigma on victim girl, which jeopardize her future prospect of marriage. Thus, the defence created by the appellant is not worth acceptable. Accordingly, it is submitted that there is no illegality in the impugned judgment of the court below which requires any interference by this court. 7. Having heard the submissions, I have gone through the record and carefully scrutinized the evidences available on record. In the instant case, the prosecution had examined altogether 11 witnesses. It also appears that the entire case of the prosecution is based• upon testimony of P.W. 5, the victim girl. She had stated that on 18.9.1996 at about 1 P.M. while she was going to the house of her maternal aunt, in the way, the appellant forcibly took her inside his house. When she raised alarm, the appellant put clothes in her mouth and threatened her with dire consequences by showing a knife. She had stated that on 18.9.1996 at about 1 P.M. while she was going to the house of her maternal aunt, in the way, the appellant forcibly took her inside his house. When she raised alarm, the appellant put clothes in her mouth and threatened her with dire consequences by showing a knife. She further deposed that appellant twice committed rape upon her. Thereafter she went to her house and narrated about the occurrence to her father. Thereafter, in the night, Panchayati held in which, Panches asked the appellant to marry her and when he refused to do so, her father informed the police. 8. Aforesaid statement of, P.W. 5, that after the occurrence, she went to her house and narrated about the occurrence to her father has been fully supported by her father (P.W. 4). P.W. 1, P.W. 2, P.W. 3, P.W. 4, and P.W. 10 had supported the version of victim (P.W. 5) that Panchayti was held in the village after the occurrence and when the matter not resolved, information given to the police. Thus, from perusal of record, I find that in material particulars, the evidence of P.W. 5 finds full corroboration from other witnesses. 9. It is submitted by learned counsel for the appellant that from the surrounding circumstances of the case, it appears that the evidence of P.W. 5 is not worth acceptable. It is submitted that victim girl stated that at the time of occurrence, when the appellant caught hold her and took her inside the house, she raised alarm. But none of the villagers examined to prove the aforesaid version. In this respect, it is worth mentioning that victim girl had stated that she had been immediately dragged inside the room and door has been closed. Thereafter, appellant put cloth in her mouth and threatened by showing a knife. Thus, in the aforesaid circumstances it may be possible that the persons residing in neigh-bour could not heard the alarm. Thus, aforesaid submission has no leg to stand. It is next submitted that Anzuman Committee had also investigated the matter and come to the conclusion that the appellant has been, implicated in this case because negotiation of marriage between the appellant and the victim girl resulted in failure. Thus, aforesaid submission has no leg to stand. It is next submitted that Anzuman Committee had also investigated the matter and come to the conclusion that the appellant has been, implicated in this case because negotiation of marriage between the appellant and the victim girl resulted in failure. It is worth mentioning that from perusal of Ext.-B it appears that Anzuman Committee on 19.9.1996 had come to the conclusion that the appellant had committed rape, therefore, matter was referred to the police. In that report (Ext.-B), nothing has been mentioned that during the inquiry, the Committee had received any information regarding the failure of marriage negotiation. However, Ext.-A shows that the Committee on 28.9.1996 gave a different report. The aforesaid report in Ext.-A appears to be manufactured later on only to create a defence, because Anzuman Committee, after inquiry on 19.9.1996, has already come to the conclusion that rape has been committed and referred the matter to the police. Thus, after 19.9.1996 the Committee had no jurisdiction to make inquiry. If the members of the Committee had received another information, they ought to have informed the police regarding the same, but in the instant case no such information was given to the police. In that view of the matter, Ext.-A does not inspires any confidence. 10. It is also submitted that medical evidence does not support the version of victim girl, because the Doctor has given definite opinion that no sexual intercourse done in the instant case. In this respect, it is worth mentioning that from perusal of deposition of Doctor (P.W. 6), as well as Ext.-2 it appears that opinion given by the Doctor is not based on any scientific examination. The Doctor has deposed that from two days back she started her normal menses and because of that vaginal swab has not been collected. Doctor has further stated that there is no fresh tear of hymen. Thus, the Doctor has not given opinion regarding the age of tear. Since the vaginal swab has not been collected, thus, it is also not clear as to whether any spermatozoa was present in it or not. Under the circumstance, there is no clinical, or microscopic examination for coming to the conclusion that no intercourse has been done. Thus, only on the basis of aforesaid vague report, evidence of P.W. 5 cannot be discarded. 11. Under the circumstance, there is no clinical, or microscopic examination for coming to the conclusion that no intercourse has been done. Thus, only on the basis of aforesaid vague report, evidence of P.W. 5 cannot be discarded. 11. From perusal of evidence of P.W. 5, I find that her evidence is consistent, clear and cogent with regard to the occurrence. Some minor discrepancies were found in her evidence, which, in my view, has no bearing on her credibility. It is well settled that in a rape case, when the evidence of prosecutrix inspires confidence and credibility, then conviction can be based on it without, any corroboration from other source. Reference in this connection can be made to a judgment of Hon'ble Supreme Court in Wahid Khan vs. State of Madhya Pradesh reported in 2010(2) JLJ SC-13. 12. In view of discussions made above, I find that there is no illegality and/or irregularity in the impugned judgment which requires any interference by this court. 13. In the result, this appeal is dismissed. The impugned judgment of conviction and order of sentence is hereby confirmed. It appears that the appellant is on bail. He is directed to surrender in the court below for serving out the sentence. Trial Court is also directed to take all coercive steps for his appearance.