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2011 DIGILAW 549 (JHR)

Ashok Kumar Yadav v. The State of Jharkhand

2011-06-27

DILIP KUMAR SINHA

body2011
Order D.K. Sinha,J. -This appeal is directed against the judgment of conviction and order of sentence recorded by Shri Satish Chandra Singh, 1st Additional Sessions Judge, Godda in Special Case No. 26 of 2006 arising out of Godda P.S. Case No.288 of 2006. The petitioner was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 5,000/- ( Five thousand) with default stipulation. 2. The prosecution story in short was that in the night of 09.08.2006 at about 11 p.m. the daughter of the informant Tersa Soren, aged about 12 years when came out for urination, she was caught hold by the appellant Ashok Kumar Yadav on the point of dagger and the appellant after gagging her mouth ravished her on a 'Chauki'. The appellant after commission of the offence threatened her of dire consequences in case she reported the matter to else. She immediately returned after escape of the appellant and narrated the occurrence to the members of her family. The matter was conveyed to the father of the appellant, who though assured "Panchayati" but the informant and the other members were abused by calling them tribes. A complaint was filed in this regard before the Court of C.J.M., Godda on 30.08.2006 of the occurrence which took place on 09.08.2006 and the complaint petition was sent under Section 156 (3) of the Code of Criminal Procedure and accordingly a police case was registered and the charge-sheet was submitted under Section 376 of the Indian Penal Code as also under Section 3(i)(xii) S.C. and S.T (Prevention of Atrocities), Act, 1989 accordingly, cognizance was taken for the said offence. The appellant was put on trial after framing of charge and his statement was recorded thereafter under Section 313 Code of Criminal Procedure wherein he was confronted with the incriminating materials brought on the record during course of trial against him wherein he expressed his innocence. 3.Six witnesses altogether were produced and examined on behalf of the prosecution. The appellant was put on trial after framing of charge and his statement was recorded thereafter under Section 313 Code of Criminal Procedure wherein he was confronted with the incriminating materials brought on the record during course of trial against him wherein he expressed his innocence. 3.Six witnesses altogether were produced and examined on behalf of the prosecution. The victim P.W. 4 Tersa Soren testified after her age was assessed about 14 years that in the night of 09.08.2006 at about 11 O'clock when she went out from her house for urination and was returning after answering the call, she was caught hold by the appellant from her behind who gagged her mouth with clothes, lifted her and brought her on a "Chauki" where she was ravished on the point of knife. She admitted that she remained silent at the time of occurrence but she returned back home immediately and narrated the occurrence to her parents, relatives and neighbours. She admitted that complaint was drafted at her instance wherein she had put her signature and she proved Ext.1. She identified the appellant in the dock. She denied the suggestion that instant was the false case instituted against the appellant in order to put undue pressure on him and one Ruplal Hembram. P.W. 2 & 3 were the neighbours of the victim who admitted to be hearsay witness having derived information from the prosecutrix complainant. P.W. 1 the mother of the victim girl Tersa Soren testified that admittedly she was not the eye-witness of the occurrence but she was apprised by her daughter about the rape being committed on her by the appellant on the point of knife when she had gone out of the house in the night for urination and was returning back to her home. She further testified that her daughter (victim) narrated the occurrence before her and other members of the family to which a "Panchayati" was also held but no solution could be arrived at. 4.The victim girl Tersa Soren was examined by P.W.5 Dr. Bandevi Jha on 14.10.2006 at Sadar Hospital, Godda who found the following:- Height- 141 c.m. Weight- 38 K.G. Teeth- 14/14 Age-16-17 years. P.W. 5 further testified that the girl had changed clothes and had also taken bath. No external injury was found on the examination of whole of her body. 4.The victim girl Tersa Soren was examined by P.W.5 Dr. Bandevi Jha on 14.10.2006 at Sadar Hospital, Godda who found the following:- Height- 141 c.m. Weight- 38 K.G. Teeth- 14/14 Age-16-17 years. P.W. 5 further testified that the girl had changed clothes and had also taken bath. No external injury was found on the examination of whole of her body. During internal examination moderate growth of black pubic hair were found but no injury was seen at or around her private part. No foreign hair was present and that no abnormal discharge was also found. Hymen was old ruptured. Veginal opening admitted two fingers loose and on microscopic examination of veginal swab, no spermatozoa was found but epithelial cell, were present. In the opinion of the witness lady Doctor, the victim girl had undergone sexual intercourse in past and that she proved the medical examination report of the victim Ext. 2. In the cross-examination the Doctor further opined that Tersa Soren might have been in habitual sexual contacts. 5. Since the case was instituted under S.C. & S.T. ( Prevention of Atrocities) Act, 1989 the investigation was undertaken by the Police Officer of the rank of Dy. S.P. being the Special Case who deposed before the Special Court as P.W. 6 and he testified that he took up the charge of investigation on 13.10.2006 and recorded the statement of the witnesses. He visited the place of occurrence and arrested the accused-appellant. The victim was sent for her medical examination and received the medical report on 26.10.2006. The case was supervised by the S.P. and on his direction charge-sheet was submitted under Section 376 of the Indian Penal Code as also under Section 3(i) (xii) of the S.C. and S.T. (Prevention of Atrocities) Act. He admitted that the accused was not put to medical test after his arrest. He further testified in the cross-examination that "Chauki" on which the offence of rape alleged to have been committed was without bed. The occurrence as alleged took place on 09.08.2006 but he had visited the place of occurrence on 13.10.2006 and did not find any significant thing. He further testified in the cross-examination that "Chauki" on which the offence of rape alleged to have been committed was without bed. The occurrence as alleged took place on 09.08.2006 but he had visited the place of occurrence on 13.10.2006 and did not find any significant thing. The learned Trial Judge after elaborate discussion in the judgment observed that the charge under Section 3 (i) (x) as also under Section 3(ii) (v) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989 could not be proved and hence the appellant was acquitted but appreciating the evidence adduced on behalf of the prosecution and considering the sole testimony of the prosecutrix corroborated by the statements of her father and mother as also the medical evidence, the Trial Court found their testimony natural, trustworthy and worth to be relied upon. Admittedly, there is no eye-witness of the occurrence except the eye-account of the occurrence by the victim girl as to how she was ravished by the appellant-Ajay Kumar Yadav when she came out for urination in the night of occurrence and was returning back to her home. I find that the prosecutrix Tersa Soren was a minor girl whose age was assessed about 13 years by the Trial Judge but to the contrary, her age was determined to be about 17 years by the lady Doctor. She was ravished on the point of dagger and thereby giving her no room for raising alarm, yet immediately thereafter she narrated the occurrence to her father Patras Soren, mother Merry Hansda, uncle Daud Soren and many other witnesses and in this connection a Panchayati was also held but of no avail. The statement given by the victim girl in the Trial Court appears to be consistent and in sequence which inspires confidence. 6. Assailing the judgment of conviction and order of sentence recorded against the appellant by the Trial Judge, the learned Counsel submitted that the complaint was filed on 30.08.2006 for the alleged occurrence which took place on 09.08.2006 and no explanation was given about such inordinate delay in filing the complaint. Even no explanation was made as to why not the matter could be reported to the police for the institution of the case and therefore, the entire prosecution story was doubtful in so far as it related to involvement of the appellant Ajay Kumar Yadav was concerned. Even no explanation was made as to why not the matter could be reported to the police for the institution of the case and therefore, the entire prosecution story was doubtful in so far as it related to involvement of the appellant Ajay Kumar Yadav was concerned. The lady Doctor, who examined the prosecutrix was specific that she was habitual to sexual contacts and for such reason her private parts admitted two fingers loosely. The appellant was innocent and was in custody since 13.10.2006 which need indulgence of the Court for consideration on the merit of appeal. In the alternative the learned Counsel for the appellant argued that the appellant has already served out the sentence in imprisonment adequately and therefore his sentence may be modified to the period already undergone by him in custody for the ends of justice. 7. Heard learned A.P.P. on behalf of the State, who submitted that the judgment of conviction and order of sentence recorded by the Trial Judge were self-explanatory and the appellant was held guilty for the charge under Section 376 of the Indian Penal Code and accordingly he was adequately sentenced to serve out 7 years rigorous imprisonment and to pay fine with default stipulation which needed no interference in appeal. 8. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the charge under Section 376 of the Indian Penal Code has been well proved against the appellant for ravishing a minor girl while she was alone in the night and had gone out for urination. It appears that the appellant had pre-meditation and was watching for the opportune moment to ravish a minor girl. The prosecution has explained that on account of proposed "Panchayati" called by the father of the appellant the complaint could not be filed on an early date but the learned S.D.P.O. after investigation submitted charge-sheet against the appellant. Admittedly, the charge under the Special Act could not be proved but on this ground alone the entire prosecution case including the charge under Section 376 of the Indian Penal Code against the appellant cannot be disbelieved. Admittedly, the charge under the Special Act could not be proved but on this ground alone the entire prosecution case including the charge under Section 376 of the Indian Penal Code against the appellant cannot be disbelieved. For the reasons stated above and appreciating the evidence of the prosecutrix and the testimony of the other witnesses, I find that the charge against the appellant was well proved and the learned Trial Judge was justified in holding the appellant guilty under Section 376 of the Indian Penal Code. I further find that the appellant has been adequately sentenced which needs no interference, accodingly this appeal is dismissed.