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2017 DIGILAW 1732 (JHR)

Archana Sarkar v. State of Jharkhand

2017-10-05

RONGON MUKHOPADHYAY

body2017
JUDGMENT : 1. Heard Mr. Sanat Kumar Jha, learned counsel for the petitioner and Mr. Shekhar Sinha, learned A.P.P. for the State as well as Mrs. Nitu Sinha, learned counsel for the opposite party no. 2. 2. This application is directed against the judgment dated 23.7.2005 passed by the learned Sessions Judge, Pakur in Sessions Case No. 151/2004, arising out of Pakur (M), P.S. Case No. 139/2004, corresponding to G.R. Case No. 300/2004, whereby and where under the opposite party no. 2 has been acquitted for the offence u/s 376 of the Indian Penal Code. 3. The petitioner had instituted a First Information Report on the allegation that she had come out of her house for answering the call of nature when the opposite party no. 2 had forcibly caught hold of her pressed her mouth and taken her to his room and, thereafter, had committed rape upon her on two occasions. It has been alleged at about 4:00. A.M. the opposite party no. 2 had released the petitioner and after she returned home she had narrated the incident to her parents and, thereafter, Pakur (M) P.S. Case No. 139/2004 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken the case was committed to the Court of Sessions wherein charge was framed u/s 376 of the Indian Penal Code and trial proceeded. 4. In course of trial 8 witnesses have been examined on behalf of the prosecution. P.W. 1 Rando Rani Sarkar is the mother of the prosecutrix who had stated about the disclosure made by the prosecutrix about the rape committed upon her by the opposite party no. 2. However, this witness had admitted that she did not find any injury on the face of the prosecutrix nor any injury on her hand. PW. 2-Chandan Sarkar is the brother of the prosecutrix who had stated that it was disclosed' by the prosecutrix about the forcibly committing of rape upon her by the opposite party no. 2. PW. 3-Sanjay Sarkar is another brother of the prosecutrix who has also stated on similar terms to what has been stated by P.W. 2. PW. 4-Dr. Anita Sinha had examined the prosecutrix who did not find any mark of violence over the body or over the private, parts. 2. PW. 3-Sanjay Sarkar is another brother of the prosecutrix who has also stated on similar terms to what has been stated by P.W. 2. PW. 4-Dr. Anita Sinha had examined the prosecutrix who did not find any mark of violence over the body or over the private, parts. P.W. 5-Subir Sarkar is the brother-in-law of the prosecutrix who had stated that the prosecutrix had informed him about the act of the opposite party no. 2. P.W. 6-Shyamali Sarkar is the sister-in-law of the prosecutrix who has also stated about the disclosure made by the prosecutrix. P.W. 7 -Archana Sarkar is the prosecutrix herself who has stated that when she came out from her house to answer the call of nature the opposite party no. 2 had pressed her mouth and had forcibly taken to his house where after she was subjected to sexual assault. This witness had stated in cross-examination that she could not raise alarm because her mouth was gagged. She has further stated that she did not sustain injury on her body while the accused was dragging her towards his house. This witness has further stated that there was bleeding from her private parts at the time of rape. She has also stated about forcibly tying of her hands by the accused. P.W. 8 Upendra Kr. Mandai is the Investigating Officer who had examined the witnesses visited the place of occurrence and after finding the allegation to be true had submitted charge- sheet against the opposite party no. 2. 5. The case of the prosecutrix rests upon the evidence of PW. 7 (the informant) who had stated about the incident. So far as PW. 1 to P.W. 6 barring PW. 4 are concerned they all are related to P.W. 7 and apart from being interested witnesses they have merely stated about the disclosure made to them by P.W. 7. The Doctor PW. 4 has in very categorical terms disproved the claim of the petitioner that her hands were tied and she was thrown to the ground and also dragged to the house of the opposite party no. 2 as no injury was found on her person or her private parts. The Doctor PW. 4 has in very categorical terms disproved the claim of the petitioner that her hands were tied and she was thrown to the ground and also dragged to the house of the opposite party no. 2 as no injury was found on her person or her private parts. So far as the bleeding injury which is said to have been suffered by P.W. 7 is concerned the same also seems to have been contradicted by the evidence of the Investigating Officer that he did not find any blood on the place of occurrence. It is the case of the prosecutrix that she was forcibly dragged by the opposite party no. 2 in his house and after her mouth was gagged she was subjected to rape. Her own evidence discloses that there are three rooms in the house of the accused and two of the rooms are occupied by the tenants. This version of the prosecutrix gets corroborated by the evidence of P.W. 8 the Investigating Officer. 6. Thus the question of the tenants or the other persons staying in the complex. being not aware of the act of rape committed by the opposite party no. 2 upon the petitioner thus seem to be improbable and absurd. The prosecutrix herself has claimed that she had remained in the room for more than three hours but it is. indeed surprising that she had not raised any hue and cry and merely making an excuse that her mouth was gagged the same is not believable as even in case of gagging if efforts were made her sounds could have been heard by the tenants staying in the other rooms. The story which has been propounded by the prosecutrix in the First Information Report as also in her evidence does not get corroborated from any corner whatsoever as neither any injury was suffered by her in spite of her stating so nor the alleged incident of rape was committed in an isolated place rather the same was in a house in which other tenants also resided. If further appears that although some of the witnesses have stated about the gathering of several persons on the weeping of the prosecutrix but not a single independent witness has been examined and the entire evidence rests upon the evidence of P.Ws. 1, 2, 3, 5, 6 and 7. If further appears that although some of the witnesses have stated about the gathering of several persons on the weeping of the prosecutrix but not a single independent witness has been examined and the entire evidence rests upon the evidence of P.Ws. 1, 2, 3, 5, 6 and 7. It is also clear that several litigations were going on between the parties and the long standing enmities between both the sides were established by the defence. 7. Thus the false implication by the petitioner for committing an offence u/s 376 of the Indian Penal Code is clearly palpable from what has been discussed above and considering such facts circumstances the learned trial court had rightly acquitted the opposite party no. 2 for the offence u/s 376 of the Indian Penal Code. There being no reason to conclude otherwise, this application fails and the same is, accordingly, dismissed.