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2010 DIGILAW 482 (JHR)

Maheshwar Singh Munda v. State of Jharkhand

2010-04-16

PRASHANT KUMAR

body2010
Order Prashant Kumar, J.-This appeal is directed against the judgment of conviction and order of sentence dated 25.11.2002 passed by Additional Sessions Judge, Fast Track Court, Seraikella in S.T. No. 4 of 1996 whereby and where under he convicted the appellant under Sections 363 and 376 of the IPC and sentenced to undergo R.1. for four years for the offence under Section 363 of the IPC and R.1. for seven years for the offence under Section 376 of the IPC. 2. The case of prosecution, as per the fardbeyan of Thakur Das Mahto, is that on 24.7.1995 at about 7.30 p.m., his daughter aged about 15 years, had gone for easing, but she did not return. It is stated that Maheshwar Singh Munda (appellant) in the month of February had given letters to his daughter because of that informant chided him, but at that time the appellant threatened him and said that he will take away his daughter and' marry her. Accordingly, it is alleged that on 24.7.1995 Maheshwar Singh Munda took away his daughter, on the allurement of solemnizing marriage and concealed her. 3. On the basis of aforesaid information Ichagarh P.S. Case No. 36 of 1995 dated 27.7.1995 instituted under Sections 363 and 366A IPC and police took up investigation. It appears that during the investigation the victim girl recovered alongwith the appellant from Mosabani. Thereafter statement of victim girl recorded under Section 164 of the Cr.P.C. The victim girl medically examined by the doctor. The record further shows that after completing investigation police submitted charge-sheet under Sections 366A, 368, 376/34 of the IPC against the appellant and two others, namely, Diwakar Singh Munda and Mihir Banerjee. It appears that after taking cognizance the case has been committed to the Court of Sessions as the offence under Sections 366A, 376 of the IPC are exclusively triable by the Court of Sessions. 4. Learned Additional Sessions Judge vide his order dated 6.1.1999 framed and explained charges to the appellant and two others under Sections 363/34, 366A and 376 of the IPC to which they pleaded not guilty and claimed to be tried. Thereafter prosecution examined altogether nine witnesses in support of its case. After close of the case of prosecution, the appellant and other accused examined under Section 313 Cr.P.C. in which their defence is of total denial and false implication. Thereafter prosecution examined altogether nine witnesses in support of its case. After close of the case of prosecution, the appellant and other accused examined under Section 313 Cr.P.C. in which their defence is of total denial and false implication. Appellant and two others filed some documents in support of their case. After considering the evidence available on record, learned Sessions Judge acquitted co-accused Mihir Banerjee and Diwakar Singh Munda from all the charges. However, by the same judgment, he convicted the appellant under Sections 376 and 363 of the IPC and sentenced him as stated above, against that the present appeal filed. 5. It is submitted by Sri A.K. Sahani, learned counsel for the appellant, that in the instant case it is admitted by the informant and others prosecution witnesses that there is love affair in between appellant and victim girl. It is submitted that victim girl eloped with the appellant out of her own sweet will.' It is submitted that the doctor had stated that the victim girl is aged about 16 to 17 years on the date of her examination. It is further submitted that since the victim girl is more than sixteen years and she consented for sexual intercourse, offence under Section 376 of the IPC is not made out. It is further submitted that since the girl had eloped with the appellant, offence under Section 363 of the IPC is also not made out. Accordingly, it is •submitted that the impugned judgment of the court below cannot be sustained. 6. On the other hand, learned Additional P.P. Sri Shekhar Sinha, submits that the victim girl stated in her deposition that she was not in love with the appellant. She also stated that she never written any love letter to the appellant rather the appellant gave her a letter, which she handed over to her mother. She then stated that because of that, her father chided appellant. Accordingly, it is submitted that the story narrated by the appellant does not inspire confidence. The victim girl categorically stated that the appellant kidnapped her and took her to Mosabani and committed rape upon her. She further stated that from Mosabani she had been recovered by the police. She then stated that because of that, her father chided appellant. Accordingly, it is submitted that the story narrated by the appellant does not inspire confidence. The victim girl categorically stated that the appellant kidnapped her and took her to Mosabani and committed rape upon her. She further stated that from Mosabani she had been recovered by the police. It is submitted that in view of evidence of victim girl supported by the doctor and other witnesses, the court below had rightly convicted and sentenced the appellant under Sections 363 and 376 of the IPC. Thus, the same does not require any interference by this Court. 7. Having heard the submission, I have gone through the record of the case. In the instant case, the prosecution examined altogether nine witnesses. P.W. 1 is a formal witness. P.W. 2 mother of victim girl, P.W. 5 Narhari Mahto (uncle of victim girl), P.W. 6 Ganesh Chandra Mahato (brother of victim girl), P.W. 7 Usha Bala Mahato (victim girl), P.W. 8 Thakur Das Mahato (informant and father of victim girl) are witnesses of fact. P.W. 3 is the doctor who examined the victim girl, P.W. 4 is a Sarpanch of the village who is a witness of written report, P.W. 9 is the I.O. 8. P.W. 7 (victim girl) is the star witness. She stated that on the date of occurrence, at about 7 p.m., she went towards village pond, where Maheshwar Singh Munda came and caught hold her hand and took her towards forest, When she tried to raise hulla, he forbade her from doing so. She states that she has been given allurement that he will provide service and pay her Rs. 3,000/- per month, She then deposed that he took her to Mosabani and committed rape upon her. She urther deposed that police came and recovered her. She also stated that Maheshwar Singh Munda arrested from there. She specifically stated that at the time of occurrence she was aged about 15 years. She has been cross-examined by the appellant at length. She remain consistent with respect to manner of occurrence. She denied the suggestion that she was in love with the appellant. She had also denied the suggestion of appellant that she had written love letters to the appellant. The deposition of P.W. 7 finds full corroboration from her earlier statement made under Section 164 Cr.P.C. ( Ext.-4). 9. She remain consistent with respect to manner of occurrence. She denied the suggestion that she was in love with the appellant. She had also denied the suggestion of appellant that she had written love letters to the appellant. The deposition of P.W. 7 finds full corroboration from her earlier statement made under Section 164 Cr.P.C. ( Ext.-4). 9. The doctor P.W. 3 who examined the victim girl on 29.7.1995 had stated that on examination she found rupture of hymen, which is a positive finding of rape. Thus, the doctor had also given opinion that the rape committed upon the victim girl. P.W. 2 the mother of victim girl has stated that on the date of occurrence in the evening her daughter went to village pond for easing, but she did not return and later on recovered by the police alongwith Maheshwar Singh Munda. This fact is also supported by P.Ws. 5 6 and 8. The I.O. (P.W. 9) also stated that the victim girl has been recovered from a quarter of Mosabani and from there itself appellant Maheshwar Singh Munda was arrested. Thus, the aforesaid witnesses fully supports the version of victim girl. 10. The contention of learned counsel for the appellant that the victim girl was in love with the appellant does not inspire confidence. Though it is admitted by informant and P.W. 7 that in the month of February, 1995 the appellant gave a letter to victim girl but only by the same it cannot be presumed that the victim girl was in love with the appellant. P.W. 7 categorically stated that she was not in love with the appellant. The appellant had tried to establish aforesaid fact by filing Ext.-Y series, alleged to be written by victim girl. From the perusal of the said letters, I find that most of them were written in Hindi and some of them were written in Bengali language. From the perusal of the same, I find that in most of the letters, the name of its author not mentioned, whereas in some of the letters Antri and in some Madhuri mentioned however in none of the letter, the name of victim girl was mentioned as its author. Thus, the defence has not been able to prove that the aforesaid Ext.-Y series were written by the victim girl. Thus, the defence has not been able to prove that the aforesaid Ext.-Y series were written by the victim girl. Thus the defence version that the victim girl eloped with the appellant cannot be accepted. 11. In view of the discussion made above, as the victim girl stated that she had been kidnapped and raped by the appellant and also taking into account that her deposition find full support from the medical evidence and other evidence available on record, I find that the prosecution had been able to prove the charges against the appellant. Therefore, I find no illegality and/or irregularity in the impugned judgment which require any interference by this Court. 12. In the result, I find no merit in this appeal, the same is accordingly, dismissed.