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2013 DIGILAW 989 (JHR)

Ram Swarath Paswan v. State of Jharkhand

2013-08-29

R.R.PRASAD

body2013
ORDER 1. This appeal is directed against the judgment and order dated 24.9.2012 and 27.9.2012 passed by the Sessions Judge, Pakur in Sessions Case No. 128 of 2008 whereby and whereunder the appellant was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and was further sentenced to pay a fine of Rs. 5000/- and in default of payment of fine to undergo rigorous imprisonment for one year. 2. The case of the prosecution is that one Radhika Devi (PW 8), wife of Ram Nath Bhagat (PW 1) was resident of village Amrapara. Her husband was having a shop at village Kujbana situated within the Police Station of Littipara. In the night, her husband some times used to stay at Kujbana and some times used to come to Amrapara. Her husband became familiar with this appellant, who was posted as Supply Inspector at Littipara. Thereafter the appellant started visiting the house of the victim where he used to have had meal. After some times, the appellant was posted at Amrapara and then he started visiting her house frequently and thereby he became quite intimate with her children. 3. On 12.1.2007, the appellant when came to the house of the victim in search of her husband, the victim told him that her husband has gone to his shop and will be staying over there in the night. Upon it, the appellant told the victim that he will be staying in her house in the night. The appellant took meal and retired to bed. The victim also went to sleep in her room. In the night, the victim heard the appellant calling her daughter. She asked from the appellant as to what is the matter about, the appellant asked for a glass of water. When the victim came to the room where the appellant was sleeping with a glass of water, the appellant caught hold of her and committed rape upon her. She felt quite bad and waited for her husband to come. Meanwhile, in the morning at about 5.30 a.m. the appellant left home and went away. In the morning of 13.1.2007 when husband of the victim came, she told about the occurrence to him but he out of shame did not tell anybody. She felt quite bad and waited for her husband to come. Meanwhile, in the morning at about 5.30 a.m. the appellant left home and went away. In the morning of 13.1.2007 when husband of the victim came, she told about the occurrence to him but he out of shame did not tell anybody. Next day the appellant called her on her Mobile and threatened her not to divulge the matter to anyone. He started talking her in indecent words. Thereupon he started visiting oftenly and started calling her frequently on Mobile and used to have talk with her in indecent words. Those talks were recorded. After getting it recorded, the Mobile was given to one Sanjeev @ Tuntun Bhagat for recording it in C.D but he did not give C.D and therefore, she got it recorded in C.D through someone else. 4. Almost after 2 and 1/2 month, the victim gave her fardbeyan before the police on 20.3.2007, upon which Amrapara P.S. Case No. 14 of 2007 was registered under Sections 376, 509, 201/34 of the Indian Penal Code. 5. Upon submission of the charge-sheet, cognizance of the offences was taken and the appellant was put on trial. During trial, the prosecution did examine 8 witnesses. Of them, PW 1 is the husband whereas PWs 2, 3, 5 and 6 are the hearsay witnesses; PW 4 is the son of the victim whereas PW 7 is the daughter of the victim. The victim has examined herself as PW 8. The appellant also examined their witnesses in his defence. The Court having found the appellant guilty for the offence under Section 376 of the Indian Penal Code convicted him for the said charge whereas acquitted for rest of the charges as the prosecution failed to prove those charges. 6. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been filed. 7. Mr. Rajeev Sharma, learned senior counsel appearing for the appellant submits that the circumstances appearing in the case would go to suggest that act of the appellant was consensual and thereby the Court did commit illegality in convicting the appellant. 8. 6. Being aggrieved with the judgment of conviction and order of sentence, this appeal has been filed. 7. Mr. Rajeev Sharma, learned senior counsel appearing for the appellant submits that the circumstances appearing in the case would go to suggest that act of the appellant was consensual and thereby the Court did commit illegality in convicting the appellant. 8. In this regard, it was further submitted that it is the version of the prosecutrix itself that after the alleged act which was committed on 12.1.2007, the appellant went on visiting the house of the Victim and even before the act was committed, the appellant was in visiting term and that had the alleged act of the appellant would have been without consent of the prosecutrix, the prosecutrix or her husband (PW 1) would have reported the matter to the police or to anyone else immediately but only after 2 and 1/2 month the case was lodged which must be with ulterior purpose and under the circumstances the Court should not have convicted the appellant. 9. As against this, learned counsel appearing for the State did submit that though there has been delay in lodging the case but there does not appear any reason on the part of the prosecutrix as to why she falsely implicate the appellant. 10. Admittedly, the matter was reported on 20.3.2007 before the police though alleged act of commission of rape was of the dated 12.1.2007. According to prosecutrix (PW 8) she reported the matter to her husband (PW 1) on the next morning when he came home from Kujbana but it is strange to note that he did not report the matter either to the police or to anybody or to his relatives or local residents, though PW 2, PW 5 and PW 6 have deposed that they were told about the occurrence by the husband (PW 1) on the very next day but PW 1 has deposed in his testimony that he did not tell anybody about the occurrence and therefore, the testimony of PW 2, PW 5 and PW 6 would not be worth reliable. Similarly, evidence of PW 3 appears to be inadmissible as he has simply deposed that he came to know by rummer that the occurrence has taken place on 12.1.2007. Similarly, evidence of PW 3 appears to be inadmissible as he has simply deposed that he came to know by rummer that the occurrence has taken place on 12.1.2007. PW 4, son of the victim has not stated anything about the occurrence said to have taken place in the night of 12.1.2007. However, PW 7, daughter of the victim has deposed that in the morning she was told about the occurrence by her mother but at the same time, she says that none of the villagers were told about the occurrence. According to PW 7, the appellant was in visiting term, who used to visit frequently and used to have had meal in her house. The victim (PW 8) in her fardbeyan has also accepted this fact. She has also stated that after the occurrence also the appellant used to visit her house which fact itself does suggest about the consensus act on the part of the appellant and the victim. Had the appellant indulged himself in the sexual act with the victim without her consent, the victim must have raised an alarm at the time of occurrence when grown up daughter was there in the house and even the other houses were there in that vicinity. Furthermore, it appears to be quite improbable that when two children were in the house, the appellant would indulge himself in the sexual act without consent of the victim. That apart, the matter seems to have been reported to the police station almost after 2 and 1/2 month. During which period, according to PW 1, nobody was informed about the occurrence. This fact casts serious doubt over the version of the prosecutrix, her husband and her daughter. 11. Thus, the circumstance appearing in the case does suggest that sexual act of the appellant was never without the consent of the prosecutrix. In that event, the trial Court certainly seems to have committed illegality in convicting the appellant. 12. Accordingly, the judgment of conviction and order of sentence is hereby set aside. 13. Consequently, the appellant is discharged from the liability of the bail bonds. Appeal allowed.