Research › Search › Judgment

Jharkhand High Court · body

2014 DIGILAW 713 (JHR)

Deepak Mahto v. State of Jharkhand

2014-07-09

D.N.UPADHYAY

body2014
JUDGMENT D.N. Upadhyay, J. This Criminal Appeal has been directed against the Judgement dated 24.02.2004 and order of conviction dated 28.02.2004 passed by A.J.C. (F.T.C. No. VIII), Ranchi in Sessions Trial No. 624 of 2002/Trial No. 81 of 2003 whereby the appellant has been held guilty for the offence punishable under Section 376 of the Indian Penal Code and he has been sentenced to undergo R.I. for seven years and further to pay fine of Rs.10,000/-and in default of making payment of fine further R.I. for one year. It is also directed that if the fine amount is realised, Rs.5,000/-may be paid to the prosecutrix by way of compensation. 2. The prosecution case in brief is that on 13.09.2001 the informant lodged written report addressing to the Officer Incharge, Kanke Police Station alleging therein that she fell in love with the appellant/ accused while they were studying in a school and the accused after assuring her to marry established sexual relation since the year 1997. It is further alleged that the accused was also hurling threat to spoil career and reputation of the informant due to that she did not report the incident to her parent. On 22.08.2001, the informant was taken by the accused to maize field belonging to Moti Mahto where she was subjected to rape. After commission of rape, accused Deepak Mahto threatened her not to disclose the incident to anyone otherwise she will have to face the consequence. Considering the threat and the promise given by the accused that he would marry her, she did not report the incident. On the basis of written report lodged by the prosecutrix, Ranchi Kanke Police Station Case No. 81/2001, dated 13.08.2001 under Section 376 IPC was registered against accused Deepak Mahto (appellant). After due investigation, chargesheet was submitted, the case was committed to the Court of Sessions and charge was framed on 13.01.2003. Since the accused had not pleaded his guilty, he was put on trial. 3. Prosecution has examined altogether 13 witnesses including the Investigating Officer (P.W.-9), Dr. Ragini Minz (P.W.-11), the prosecutrix/informant (P.W.-4), father, uncle and mother of the prosecutrix (P.Ws.-1,2 and 3 respectively). The written report, formal F.I.R. and medical reports have been marked exhibits. In course of trial, the prosecution has produced love letters allegedly written by the accused which have also been marked exhibits. Ragini Minz (P.W.-11), the prosecutrix/informant (P.W.-4), father, uncle and mother of the prosecutrix (P.Ws.-1,2 and 3 respectively). The written report, formal F.I.R. and medical reports have been marked exhibits. In course of trial, the prosecution has produced love letters allegedly written by the accused which have also been marked exhibits. The appellant has also proved order dated 13.09.2001, passed in Complaint Case No. 629/2001 in order to show that he had lodged a complaint case against Suresh Mahto and others. On the basis of evidence and documents, learned Additional Judicial Commissioner (F.T.C.-VIII), Ranchi held the appellant guilty and hence this appeal. 4. Appellant has assailed the impugned Judgement on the ground that the prosecutrix was a consenting party and she was also enjoying sexual relations. There is inordinate delay in lodging the F.I.R. No explanation regarding delay was extended by the informant in her written statement. Dineshwar Mahto (P.W.-1), Sumeshwar Mahto (P.W.-2), Lalo Devi (P.W.-3) [father, uncle and mother of the prosecutrix respectively] have given a different story in their deposition in Court. According to deposition of these witnesses, on 22.08.2001, Deepak Kumar (appellant) had taken the prosecutrix to the maize field of Moti Lal where she was subjected to rape. The occurrence was witnessed by Bablu and Suresh who caught hold of Deepak (appellant) and assaulted him by means of fist and slaps. The people assembled at the place had learnt about the incident. A Panchayati was held in which the appellant was requested to marry the prosecutrix but he refused and thereafter the matter was reported to the Police and this was the reason behind the delay in lodging the F.I.R.. These witnesses have gone to the extent of saying that the accused was caught at the spot and he was brought to the shop of one Bittu where the people had assembled. It was submitted that Babloo and Suresh have not been examined to support the contention made by P.Ws.-1, 2 and 3. No villagers except the family members of the prosecutrix have come forward to support the prosecution case as made out by father of the prosecutrix. The Investigating Officer did not find any incriminating articles at the place of occurrence. Dr. Ragini Minz (P.W.-11) has proved the medical report as Ext.-5/1. According to opinion of the Doctor, no positive evidence of rape was found at the time of examination of the victim. The Investigating Officer did not find any incriminating articles at the place of occurrence. Dr. Ragini Minz (P.W.-11) has proved the medical report as Ext.-5/1. According to opinion of the Doctor, no positive evidence of rape was found at the time of examination of the victim. No dead or alive spermatazoa was found in the examination of vaginal swab. According to Ext.-5/1, age of the prosecutrix was assessed between 15 to 17 years. It was contended that age assessed on the higher side should be considered and if it is done so, the prosecutrix was above the age of 16 years and she was a consenting party and, therefore, no offence under Section 376 IPC is made out. 5. Learned counsel has also drawn my attention towards the statement of prosecutrix (P.W.-4). She has stated that she was having love affair with the accused and he was writing love letters to her. She has produced love letters allegedly written by the accused which have been marked Ext.-2 to 2/18. She has stated that the accused had been committing rape by keeping her under threat. On 22.08.2001, at 6:00 p.m., while she was going to purchase articles from the shop of Bittu, the accused suddenly appeared, forcibly took her to the maize field of Moti Lal and committed rape on her. The occurrence was witnessed by Babloo Mahto and Suresh Mahto who apprehended the accused and took him to the house of the informant, a Panchayati was held in which parent of the accused were called but they did not appear. The prosecution has brought a fact on record that Babloo and Suresh had witnessed the occurrence, they apprehended the accused and assaulted him and took him to the house of the informant, but these facts are not appearing in the written report. The prosecutrix has given only one date of occurrence i.e. 22.08.2001 and she did not disclose any previous date on which or place of occurrence where she was subjected to rape by the appellant. The evidence of the prosecutrix is neither consistent nor inspiring confidence and she has developed a new story in court which appears to have been suggested by her parent and, therefore, conviction cannot be sustained on such contradictory statement of the prosecutrix. 6. The learned counsel has placed reliance on the Judgements reported in AIR 2010 SC Page 392 [Sunil Vs. 6. The learned counsel has placed reliance on the Judgements reported in AIR 2010 SC Page 392 [Sunil Vs. State of Haryana], 2013(9) SCC Page 113 [Kaini Rajan Vs. State of Kerala], AIR 2007 SC Page 155 [Ramdas and others Vs. State of Maharashtra], 2002(3) JCR 90 (Jhr) [Manjar Imam Vs. State of Bihar], 2003(3) East Cr. Cases 1958 (Pat) [Qurban Mian @ Md. Qurban Vs. State of Bihar], 2004(1) East Cr. Cases 152 [Subhasj Das Vs. State of Bihar (now Jharkhand)], 2000(3) East Cr. Cases 2079 (Pat) [Maheshwar Sahu Vs. State of Bihar], 2003 (3) East Cr. Cases 135 (Jhr.) [Dindayal Kewat Vs. State of Bihar (Now Jharkhand)], 2002 (3)East Cr. Cases 101 (Jhr.) [Jilo Tigga Vs. State of Bihar] and 2000(3) East Cr. Cases 1987 [Nimah Chandra Saha Vs. State of Bihar and analogous cases]. Last but not the least, it was submitted that the learned Additional Judicial Commissioner has failed to consider all these aspects and held the appellant guilty only on the ground that the prosecutrix was below the age of 16 years and, therefore, her consent is no consent in the eyes of law. The findings of the learned Additional Judicial Commissioner is highly erroneous and therefore liable to be set aside. 7. Learned counsel appearing for the State has opposed the arguments and submitted that the prosecutrix has fully supported the prosecution case. She was subjected to rape by the appellant on various occasions, lastly on 22.08.2001. She was below the age of 16 years at the time of commission of rape. The father, uncle, mother and cousin brother of the victim have corroborated the prosecution case. No positive sign of rape was detected during medical examination because the prosecutrix was examined after delay of 23 days and in such circumstances, the evidence of prosecutrix is to be considered. She has fully supported the prosecution case which find support from the evidence of P.Ws-1, 2 and 3. The learned AJC has rightly held the appellant guilty and the impugned Judgement needs no interference. 8. On the basis of arguments advanced, following points have emerged for consideration and discussions:- The first point is delay in lodging the First Information Report. It is true that mere delay in lodging the First Information Report is not necessarily fatal to the case of the prosecution. 8. On the basis of arguments advanced, following points have emerged for consideration and discussions:- The first point is delay in lodging the First Information Report. It is true that mere delay in lodging the First Information Report is not necessarily fatal to the case of the prosecution. The delay either explained or unexplained in lodging the F.I.R. is to be considered in the facts and circumstances prevailing in each individual case and there should not be any straight jacket formula either to reject or to accept the explanation extended in lodging the F.I.R., but the facts remain F.I.R. lodged belatedly is certainly relevant fact to be discussed and decided by the Court while admitting or rejecting the prosecution case. In the light of the totality of the evidence, the Court of fact has to consider whether the delay in lodging the report adversely affects case of the prosecution and that depends upon appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation there may be circumstances appearing on record which provide a reasonable explanation for the delay and that may be required to be discussed. There may be many circumstances causing delay in lodging the F.I.R. and those circumstances may be of more importance in the facts of concerned case than to report the matter to the Police. Particularly in a case of sexual assault the prosecutrix number of times gives thought whether to disclose the incident or not. After being ravished, besides the physical injury the victim suffers with trauma and mental agony. She will have to think about her prestige and future life and normally she does not wish to lead her future life with stigma. But then, there are cases in which it is experienced that false allegation of rape is being levelled for wrecking vengeance, some times in cases of property disputes and some time for other reasons. Hon'ble Supreme Court and Hon'ble High Courts in number of cases of sexual assault have held, if the evidence of prosecutrix is free from influence, consistent and convincing, conviction can be recorded on her sole testimony. Under these background, I have examined the facts of the case in hand. Hon'ble Supreme Court and Hon'ble High Courts in number of cases of sexual assault have held, if the evidence of prosecutrix is free from influence, consistent and convincing, conviction can be recorded on her sole testimony. Under these background, I have examined the facts of the case in hand. According to victim (informant) she had fallen in love with the appellant while she was studying in Class-V and she had permitted the accused to have sexual relations with her. In the F.I.R. she had stated that the accused had committed rape by putting her under threat and this was the reason she did not report the incident to anyone. What is available on record is that on 22.08.2001 while she was going to the nearby shop for purchasing some articles she was intercepted by the appellant who took her to the nearby maize field belonging to Moti Mahto and committed rape on her. She was threatened not to disclose the incident to anyone and that was the reason she did not report the incident. The other prosecution witnesses who are none else but father, uncle and mother of the informant, have said that the occurrence was witnessed by Babloo and Suresh who apprehended the accused and brought him to the village where a Panchayati was held. During trial, the victim (informant) has also supported this fact. The villagers as well as the people who assembled at the place learnt about the incident. If it was so, there was no reason as to why the matter was not reported to the Police on the very date of incident. The matter was reported to the Police after 23 days i.e. on 13.09.2001 and the prosecutrix has not extended any explanation for the delay in lodging the F.I.R. and therefore, in the prevailing circumstance the information lodged by the prosecutrix is shrouded with doubt. The explanation given by the defence appears more plausible that parent of the prosecutrix were compelling the appellant to marry her. When he refused, this case with false allegation was lodged. Therefore, the situation remain that the informant did not give explanation against delay in lodging the F.I.R. in her written report but later by making a new story the prosecution comes up with some explanation which can not be accepted in the facts and circumstances of the case. When he refused, this case with false allegation was lodged. Therefore, the situation remain that the informant did not give explanation against delay in lodging the F.I.R. in her written report but later by making a new story the prosecution comes up with some explanation which can not be accepted in the facts and circumstances of the case. The second point is the story which the prosecution has developed in course of trial. P.Ws. 1, 2, 3 and 8 have stated that the victim and the appellant were apprehended by Babloo and Suresh who assaulted the appellant and brought him to the village and the informant disclosed the incident to everyone present. This important aspect of the prosecution case is completely missing in the F.I.R. which was lodged by non else but the prosecutrix herself. The prosecution has withheld those two important witnesses namely Babloo and Suresh and they did not come forward to support the new story introduced by parent of the prosecutrix. Not only that out of 13 witnesses, P.Ws. -5, 6, 7, 10, 12 and 13 who are the villagers, did not support the prosecution case and turned hostile. Since Babloo and Suresh have not been examined evidence of P.Ws.-1, 2 and 3 stood uncorroborated and that cannot be relied upon. The 3rd point is the medical report (Ext.-5/1) which has been proved by the Dr. Ragini Minz (P.W.-11) According to medical report, the victim was examined on 14.09.2001 and the Doctor did not notice any positive evidence of rape. There might not be evidence of recent intercourse because the prosecutrix was examined by the Doctor almost after 24 days of the incident. The Doctor had noticed hymen old ruptured, admits one finger. There was slight redness and swelling over the vagina. No foreign hair was found on her private part. No stain was detected in her private part. There was no mating of pubic hair. The opinion of the Doctor is not conclusive on the point of commission of rape. Therefore, the medical report does not support case of the prosecution. The 4th and most important point is evidence of the prosecutrix. In the written report, she has stated that she was having sexual relations with the accused since the year 1997 and she was having love affairs with him. The accused was also assuring her to marry and sometimes he was hurling threats. The 4th and most important point is evidence of the prosecutrix. In the written report, she has stated that she was having sexual relations with the accused since the year 1997 and she was having love affairs with him. The accused was also assuring her to marry and sometimes he was hurling threats. Again she has given two contradictory statements. At one point of time she admits that she was having love affairs with the appellant and he had assured her to marry and established sexual relations but again she says that she was put under threat and then subjected to rape by the appellant. She had not disclosed any date of incident or place of occurrence as to when and where she was subjected to rape prior to the occurrence which alleged to have taken place on 22.08.2001. She did not disclose in her written report that the accused was apprehended with her at the spot by Suresh and Babloo. This story has been developed in course of further evidence under influence of her parent. At this juncture it is necessary to mention that the occurrence which took place on 22.08.2001, was witnessed by Babloo and Suresh who caught hold of them and brought them to the village and the incident was known to everyone present. The prosecutrix did not say that she ever raised alarm when the appellant took her to the maize field of Moti Lal in order to have intercourse with her. If the incident as alleged in the F.I.R. had taken place on 22.08.2001 and it was known to the villagers on the very same date, the prosecution has failed to explain as to why the prosecutrix and her parent kept mum for 23 days. The victim had produced love letters allegedly written by the accused to her and those love letters have been marked exhibit. On reading the contention of those letters, it would reveal that the prosecutrix was also having some relation with another boy to which the scribe of those letters had objected to and due to that the relations between them got strained for some time. This is another aspect of the prosecution case which puts the question mark on the character of the victim. This is another aspect of the prosecution case which puts the question mark on the character of the victim. She has not come up with all fairness and thus statement of the victim is not of that value and worthy of credence which would alone be sufficient to record order of conviction. The fifth point is age of the victim on the basis of which the learned Additional Judicial Commissioner has held the appellant guilty. According to statement of victim and her parent, she was student of a local school but to prove her age, no birth certificate or the admission register disclosing her date of birth has been brought on record. The prosecutrix has not disclosed date of any incident or place of occurrence where she was subjected to rape by the appellant prior to date of incident reported i.e. prior to 22.08.2001. The Doctor has opined age of the victim between 15 to 17 on 14.09.2001. The circumstances available on record and admission of the prosecutrix suggests, if there was sexual relations between the appellant and the prosecutrix, it was with consent. If the higher side of age opined by the Doctor is taken, the prosecutrix was above the age of 16 years on the date of incident. At this occasion again I would like to express my observation that testimony of prosecutrix is not free from doubt and suffers from vital contradiction and exaggeration. If the evidence of victim itself is not worthy of credence, the question of her age whether she was below or above the age of 16 years, does not carry importance. The medical report does not support the prosecution case. Under the circumstances, conviction can not be sustained. 9. The view expressed by this Court in the preceding paragraphs, more or less find support from the Judgements reported in AIR 2010 SC Page 392 [Sunil Vs. State of Haryana], 2013(9) SCC Page 113 [Kaini Rajan Vs. State of Kerala], AIR 2007 SC Page 155 [Ramdas and others Vs. State of Maharashtra], 2002(3) JCR 90 (Jhr) [Manjar Imam Vs. State of Bihar] and 2003(3) East Cr. Cases 1958 (Pat) [Qurban Mian @ Md. Qurban Vs. State of Bihar] and other cases. 10. State of Haryana], 2013(9) SCC Page 113 [Kaini Rajan Vs. State of Kerala], AIR 2007 SC Page 155 [Ramdas and others Vs. State of Maharashtra], 2002(3) JCR 90 (Jhr) [Manjar Imam Vs. State of Bihar] and 2003(3) East Cr. Cases 1958 (Pat) [Qurban Mian @ Md. Qurban Vs. State of Bihar] and other cases. 10. In the facts and circumstances discussed above, the Judgement dated 24.02.2004 and order of conviction dated 28.02.2004 passed by A.J.C. (F.T.C. No. VIII), Ranchi in Sessions Trial No. 624 of 2002/Trial No. 81 of 2003 cannot be sustained and stands set aside. The appellant, who is on bail, is discharged from the liability of bail bonds and set at liberty. Accordingly, the appeal stands allowed.