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2015 DIGILAW 1273 (JHR)

Amarnath Mahto v. State of Jharkhand

2015-10-12

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : The appellant was put on trial on the accusation of committing rape upon the victim. The court, having found the charge being proved, convicted the appellant under section 376 of the Indian Penal Code vide its judgment dated 15.04.2013 and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs.20,000/- and in default to undergo simple imprisonment for one year. 2. The case of the prosecution, as has been made out in the written report (Ext.2), is that on 26.07.2012, while Chirni Devi (P.W.2) the mother of the victim (P.W.3) and other family members had gone to village Lilori to attend the marriage ceremony, the victim (P.W.3) was alone in the house. At 6.00 p.m., this appellant, the cousin of the victim, residing in the neighbourhood, working in C.R.P.F., came to her house and had had talk with her. During that course, she told him that she is alone, as her mother and other family members have gone to other village to attend marriage. When she came inside the house, the appellant also followed her. All on a sudden, the appellant caught hold of her and made her to fall over a cot and then committed rape upon her. During that course, Chirni Devi (P.W.2), the mother of the victim reached home and knocked the door but she could not respond, as she was under pain. Meanwhile, the appellant opened the door and fled away. When her mother came inside the room, she told about the occurrence to her mother. Thereafter, her mother took her to the house of the appellant and then told all about it to the mother of the appellant, who, upon hearing, started abusing her and also held out threat not to speak out to anyone. On the next day i.e. 27.07.2012 at 6 a.m., the mother of the appellant and her two sons came and again held out threat. 3. On 28.07.2012, Chirni Devi (P.W.2)- the mother of victim, took her to the house of Mukhia, who, along with one Naresh Kumar Mahto, came to police station where a written report (Ext.2) written by Mukhia was submitted to the Officer -in -Charge of Tetulmari Police Station. 3. On 28.07.2012, Chirni Devi (P.W.2)- the mother of victim, took her to the house of Mukhia, who, along with one Naresh Kumar Mahto, came to police station where a written report (Ext.2) written by Mukhia was submitted to the Officer -in -Charge of Tetulmari Police Station. The said written report was forwarded to Katras Police Station for institution of the case, upon which Katras (Tetulmari) P.S. Case No.181 of 2012 was registered under Section 376 of the Indian Penal Code. The matter was taken up for investigation, initially by some other officer, which was taken over subsequently by Ram Niwas Singh-P.W.6, who seized under paint of the victim under a seizure list (Ext-3). 4. The I.O. got the victim examined by Dr. Sudha Singh (P.W.1), who, upon examining the victim, did find hymen torn, Vagina admitting two fingers over no injury was found. Spermatozoa was not found. Upon radiological examination, age of the victim was found to be 18 years. No external injury was found. However, opinion was given to the effect that sexual intercourse appears to have been made. The report of the doctor has been admitted into evidence as Ext-1. 5. Meanwhile, the I.O. recorded the statement of the witnesses. On completion of the investigation, charge sheet was submitted, upon which cognizance of the offence was taken. In due course, when the appellant was put on trial, the prosecution examined six witnesses. Of them, P.W.2 (Chirni Devi) is the mother of the victim, who has testified that after attending marriage at village Lilori, when she returned home, she found the door of the house closed. She called her daughter to open the door, but no response was made from inside. While she was standing near the door, she found the appellant opening the door and running away. When she came inside the room, the victim told her that the appellant, after pressing her mouth, has committed rate upon her. Immediately, thereafter, she took her daughter (victim) to the mother of this appellant and told about the incident but she started abusing them. Thereupon, on the same night, they went to Mukhia and then on 28.07.2012, the case was lodged. Immediately, thereafter, she took her daughter (victim) to the mother of this appellant and told about the incident but she started abusing them. Thereupon, on the same night, they went to Mukhia and then on 28.07.2012, the case was lodged. P.W.3 (victim) has testified, though with much variation with the statement made in the F.I.R that while she was entering in the house for offering evening puja, the appellant came from behind and took her to room and made her to fall over a cot and after closing the door committed rape upon her. When her mother knocked the door, the appellant opened the door and fled away. Thereupon, when her mother entered into the room, she told her about she being raped by appellant forcibly. P.W.4 (Chona Kumari) is the elder sister of the victim, who has also testified that she along with her mother had gone to attend the marriage and when they returned back, they found the door closed and then her mother asked the victim to open the door, but it was not opened. After some time, the appellant came out of the room and fled away and when she along with her mother came inside the room, they were told by the victim about she being raped by the appellant. P.W.5 (Kailash Mahto), the father of the victim is a hearsay witness, who derived knowledge about the occurrence from the victim. 6. After closure of the prosecution case, when the appellant was questioned over the incriminating evidences appearing against him under Section 313 of the Cr.P.C., the appellant denied. 7. Thereafter, the trial court, after placing implicit reliance on the testimony of the victim P.W.3, getting corroboration from the testimony of P.W.2 (Chirni Devi) and P.W.4 (Chona Kumari) and also from the medical evidence, did find the appellant guilty and, accordingly, recorded the judgment of conviction and order of sentence, which is under challenge. 8. Mr. 7. Thereafter, the trial court, after placing implicit reliance on the testimony of the victim P.W.3, getting corroboration from the testimony of P.W.2 (Chirni Devi) and P.W.4 (Chona Kumari) and also from the medical evidence, did find the appellant guilty and, accordingly, recorded the judgment of conviction and order of sentence, which is under challenge. 8. Mr. Mahesh Tewari, learned counsel appearing for the appellant submits that if the entire facts and circumstances are taken into consideration, one would come to the conclusion that it could not be a case of forcible rape upon the victim, who claimed herself to be aged about 13 years, but her age has been found to be 18 years by the doctor (P.W.1) rather the act of appellant, as alleged, appears to be with the consent of prosecutrix (P.W.3) and thereby, the appellant cannot be said to have committed offence under section 376 of the Indian Penal Code, but the trial court did not take into account all those circumstances, suggesting the case to be a consensus act and thereby, learned trial court committed illegality in recording the judgment of conviction and order of sentence, which is fit to be set aside. 9. As against this Mr. Krishna Shankar, learned A.P.P appearing for the State submits that there has been no reason to disbelieve the version of the victim, as no victim would come with a false case that she had been raped by someone. Here, in the instant case, the victim has categorically testified that it was the appellant, who committed rape upon her and the appellant was seen coming out of the room and fleeing away by Chirni Devi(P.W.2)-the mother of the victim and also by elder sister Chona Kumari (P.W.4) and furthermore the testimonies of the witnesses, get corroboration from the medical evidence, as the doctor did opine that there appears to be a case of intercourse. It was further pointed out that even if it was found that the act of the appellant was with consent of the victim, that would not absolve the appellant from the liability, as the age of the victim, as per the witnesses, was less than 16 years. Thus, it was submitted that the trial court was absolutely justified in recording the judgment of conviction and order of sentence, which needs no interference. 10. Thus, it was submitted that the trial court was absolutely justified in recording the judgment of conviction and order of sentence, which needs no interference. 10. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the case of the prosecution, as has been testified by the victim P.W.3 is that while she was alone in her house and was entering inside the house for offering evening puja, the appellant came suddenly over there and made her to fall over the cot and after closing the door committed rape upon her.. But this piece of evidence does not seems to be consistent with the statement made in the written report wherein it has been stated that while P.W.3 was alone in the house as the mother and other family members had gone to village Lilori, the appellant came and had had a talk with her to whom she told that no one is there in the house. The appellant followed her inside the house and then the appellant made her to fall on the cot and then committed rape. From the statement made in the F.I.R., semblance of the fact, appears to be there that the appellant never entered into the room forcibly, rather he entered inside the room without any objection being raised by the victim and then there was a sexual act on the part of the appellant, which further appears to be consensual on account of the fact that when Chirni Devi (P.W.2), the mother of the appellant came and asked the victim to open the door, the door was not opened for some time nor the victim raised any alarm from inside. 11. Further, it does appear from the evidence of P.W.4 (Chona Kumari) that when P.W.2 (Chirni Devi) called the victim to open the door neither the door was opened nor anything was said from inside. After some time, the door was opened and the appellant fled away from there. It is the case of the prosecutrix, she could not raise alarm as her mouth had been closed by hands, which is hard to accept as it would not have been possible for the appellant to close the mouth throughout the period of commission of act of rape. 12. It is the case of the prosecutrix, she could not raise alarm as her mouth had been closed by hands, which is hard to accept as it would not have been possible for the appellant to close the mouth throughout the period of commission of act of rape. 12. Further, if the act of the appellant would not have been with the consent of the victim, the victim must have raised alarm as soon as the appellant entered inside the room. 13. Under the circumstances, the picture, which emerges out is that the act of appellant was consensus and when during that period the mother Chirni Devi (P.W.2) and the sister Chona Kumari (P.W.4), who had gone to other village to attend the marriage, reached home, P.W.3 gave altogether a different picture whereby the victim came with the case that she was raped forcibly, but for the reason, as stated above, it is not acceptable. 14. Coming to the other submission advanced on behalf of the State that the victim was under the age of 16 years as her age has been recorded in the written report as 13 years and has also been assessed by the court during her evidence as 13 years. It is true such situation is there but in proof of age, nothing has been placed on behalf of the prosecution, rather from the evidence of the doctor, who, did assess the age of the victim as 18 years on the basis of radiological report, which, in absence of any other material, cannot be ignored and thereby, the age of the victim has to be accepted as 18 years. 15. Under the circumstances, we do find that the trial court has committed illegality in recording the judgment of conviction and order sentence, hence, it is hereby set aside. 16. In the result, the appellant is acquitted of the charges. The appellant, who is on bail, is discharged from the liability of his bail bond. 17.Accordingly the appeal stands allowed.