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2018 DIGILAW 2070 (JHR)

Nagendra Mahto v. State Of Jharkhand

2018-09-13

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 22.09.2004, passed by learned Additional Judicial Commissioner-II, Khunti, in Sessions Trial No. 135 of 2003, whereby the sole appellant has been convicted for the offence committed and punishable under Section 354 of the Indian Penal Code and has been awarded rigorous imprisonment for two years. By the same impugned judgment, other co-accused namely Indranath Mahto has been acquitted by the learned trial court. The acquittal of Indranath Mahto has neither been challenged by the State nor by the informant before competent court of law. 2. The prosecution case is based upon the fardbeyan of the informant Padda Devi (P.W. 1), recorded by Sub-inspector of police B.P. Mandal, in charge, Rahe O.P. on 05.08.2002, at 19.30 Hrs., where the informant has alleged, that yesterday, on 04.08.2002 (Sunday), in the morning Chandra Mohan Mahto, father-in-law of the informant went to graze his cattle at Haru Pahar and mother-in-law, Dulari Devi and sister-in-law, Deoki Kumari went to Haru Pahar for working as labourers under afforestation programme of Forest Department and the informant was alone at her house. It is stated that at around 10.00 A.M., co-villagers namely Indranath Mahto (acquitted person) and Nagendra Mahto (appellant) entered into the house of the informant. It is alleged, that Indranath Mahto disclosed to the informant that they wanted to have physical relationship with her and asked her for consent, upon which the informant immediately gave threatening by saying that she will disclose the incident to all persons. Thereafter, both the accused persons went away. The informant also under fear went near her father-in-law, who was grazing cattle at Haru Pahar. At around 5.00 P.M., her father-in-law asked the informant to go to house and prepare the food, as it is dusk. The informant came to her house. When the informant was arranging for preparing food, suddenly accused Indranath Mahto and Nagendra Mahto came to her house. Nagendra Mahto entered into the house and thrashed the informant and removed her apparel i.e. saree and started touching her breast. The informant raised brawl and fled away from there. It is further alleged that Indranath Mahto and Nagendra Mahto had entered into her house with intention to commit rape upon her. Nagendra Mahto entered into the house and thrashed the informant and removed her apparel i.e. saree and started touching her breast. The informant raised brawl and fled away from there. It is further alleged that Indranath Mahto and Nagendra Mahto had entered into her house with intention to commit rape upon her. While Nagendra Mahto was teasing her, Indranath Mahto was standing and watching near the door. On brawl raised by the informant, both the accused persons fled away. It is further alleged that later on, when her mother-in-law, father-inlaw and sister-in-law returned home from Haru Pahar, she disclosed about the occurrence to them and after returning of her husband, Haldhar Mahto from Ranchi, the informant went to the police station to lodge the complaint. 3. On the basis of the fardbeyan of the informant, police has registered Sonahatu P.S. Case No. 47 of 2002, dated 05.08.2002, under Section 376 (G)/511 of the Indian Penal Code against both named accused persons. 4. After investigation, the police submitted charge sheet vide charge sheet no. 69 of 2002, dated 02.11.2002, under Section 376 (G)/511 of the Indian Penal Code against both the accused persons. 5. The cognizance of the offence has been taken vide order dated 09.01.2003 and the case has been committed to the Court of Sessions vide order dated 20.02.2003. 6. The charge has been framed against both the accused persons on 07.05.2003, under Section 376 (G)/ 511 of the Indian Penal Code, to which the accused persons have pleaded their innocence and thus, they were put under trial. 7. The prosecution, to prove its case, has examined altogether six witnesses and also exhibited two documentary evidence. Padda Devi, informant of the case, has been examined as P.W. 1, Deoki Kumari, sister-in-law of the victim, has been examined as P.W. 2, Haldhar Mahto, husband of the informant, has been examined as P.W. 3, Ganeshwar Mahto, has been examined as P.W. 4, who has been declared hostile by the prosecution, Chandra Mohan Mahto, father-in-law of the informant, has been examined as P.W. 5 and Vinay Prasad Mandal, Investigating officer of the case, has been examined as P.W. 6. The Signature of Padda Devi, on the fardbeyan, has been proved and marked as Exhibit-1, signature of Haldhar Mahto, on the fardbeyan, has been proved and marked as Exhibit- 1/1. Padda Devi, has been examined as P.W. 1. The Signature of Padda Devi, on the fardbeyan, has been proved and marked as Exhibit-1, signature of Haldhar Mahto, on the fardbeyan, has been proved and marked as Exhibit- 1/1. Padda Devi, has been examined as P.W. 1. She has stated during her examination-inchief that under fear of the accused persons, she did not return from Haru Pahar, where her father-in-law was grazing cattle and she has disclosed the incident to her father-inlaw. The father-in-law of the informant has assured the informant, that he will ask those persons and thereafter the father-in-law has directed the informant to go to the house and cook the food. This witness has further stated, that when she was preparing to cook food, Narendra Mahto (appellant) had entered into the house, caught hold of her breast and completely disrobed her and was removing his own pant for committing rape upon her. In the occurrence, her bangles were also damaged but somehow, she saved herself by running away from the house through another door along with her petticoat and blouse. This witness has further stated, that on Monday, she called her husband through telephone and thereafter, went to the police station to lodge the case. This witness has proved her signature on the fardbeyan which has been marked as Exhibit- 1. During cross-examination, this witness has stated that nobody was present in the entire village at around 10.00 A.M. as she was alone in the village. She has further stated that she left Haru Pahar followed by her father-in-law but as soon as she reached the house, the accused persons entered into her house. This witness has further stated, that she has stated before the police that she was completely disrobed by Nagendra Mahto, who thrashed her, due to which she has sustained injury but the same has not been shown to the doctor. She has further stated, that injury has been shown to the sub-Inspector. Deoki Kumari, (P.W. 2) is a hearsay witness, who is sister-in-law of the victim. Haldhar Mahto (P.W. 3) is husband of the victim and a hearsay witness, who has proved his signature on the fardbeyan, which has been marked as Exhibit- 1/1. This witness has stated that, he knew about the occurrence from his wife. Deoki Kumari, (P.W. 2) is a hearsay witness, who is sister-in-law of the victim. Haldhar Mahto (P.W. 3) is husband of the victim and a hearsay witness, who has proved his signature on the fardbeyan, which has been marked as Exhibit- 1/1. This witness has stated that, he knew about the occurrence from his wife. This witness has categorically stated in paragraph- 1 of his examination-in-chief that because of lajja (embarrassment), his wife could not disclose about the occurrence to her father-in-law and she rescued herself by coming out of the house from another door. She saw Indranath Mahto standing at the door. Ganeshwar Mahto (P.W. 4) has been declared hostile by the prosecution. Chandra Mohan Mahto has been examined as P.W. 5. This witness has stated that in the morning, he went at Haru Pahar to graze his cattle, leaving behind his daughter-in-law since his wife and daughter were also working at Haru Pahar under forest department. This witness has stated that Indranath Mahto and Narendra Mahto entered into the house for establishing physical relationship with his daughter-in-law but she has threatened them and thereafter, they have fled away. This witness has further stated that his daughter-in-law came to Haru Pahar, where he was grazing cattle and remained till evening, when this witness has directed his daughter-in-law to go to house and prepare the food. This witness has also reached the house and saw his daughter-in-law crying. On query, her daughter-in-law has disclosed that Indranath Mahto and Nagendra Mahto came into the house and Nagendra Mahto has caught her and also removed her cloths and was opening his pant. In the meantime, she fled away towards the courtyard. This witness has further stated that the accused persons have also broken her bangles and subsequently fled away. This witness has further stated that he has found the broken pieces of bangle in the kitchen but the same has not been shown to the Sub-Inspector. This witness has admitted in paragraph- 14 of his cross-examination, that a dispute and litigation with respect to partition of land is pending between the parties. Vinay Prasad Mandal, the investigating officer and the Officer-in-charge has been examined as P.W. 6. This witness has admitted in paragraph- 14 of his cross-examination, that a dispute and litigation with respect to partition of land is pending between the parties. Vinay Prasad Mandal, the investigating officer and the Officer-in-charge has been examined as P.W. 6. This witness has proved his hand writing and signature on the fardbeyan of the informant and which has been marked as Exhibit- 1/A and the handwriting and signature on the formal F.I.R. has been proved and marked as Exhibit-2. This witness has stated that he has inspected the place of occurrence. This witness has stated during cross-examination that informant has not shown any injury on her person and as such, no requisition was issued for her treatment nor the informant has explained the reason for lodging the case with delay. This witness has also stated that broken bangle pieces were produced by the father-in-law and he has also seen the injury on the hand of the informant. 8. After closure of the prosecution evidence, the statement of the accused persons including appellant have been recorded on 10.09.2004 under Section 313 Cr.P.C., 1973 where they have denied about the occurrence and have stated that they have been falsely implicated in this case and there is no legal evidence against them but the defence has not examined any witness or adduced any documentary evidence. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence against the appellant but by the same judgment the learned trial court has acquitted the co-accused Indranath Mahto. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, passed by the learned Trial Court, the appellant has preferred the present criminal appeal before this Hon''ble Court, assailing the impugned judgment of conviction and order of sentence. 10. Heard, learned counsel for the appellant, Mr. N.K. Chatterjee, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that there is an inordinate delay in lodging the F.I.R. and the impugned judgment is based on sole testimony of the informant Padda Devi (P.W. 1). Learned counsel for the appellant has further submitted, that there is an inordinate delay in lodging the F.I.R. and the impugned judgment is based on sole testimony of the informant Padda Devi (P.W. 1). Learned counsel for the appellant has further submitted that Deoki Kumari (P.W. 2- sister-in-law of the informant) and Haldhar Mahto (P.W. 3- husband of the informant) are hearsay witnesses. Ganeshwar Mahto (P.W. 4) has been declared hostile by the prosecution. Chandra Mohan Mahto (P.W. 5- father-in-law of the informant) is also a hearsay witness. Vinay Prasad Mandal (P.W. 6) is the investigating officer of the case. Learned counsel for the appellant has submitted that the evidence of P.W. 2, P.W. 3 and P.W. 5 are inconsistent with the evidence of P.W.1, informant of the case. Learned counsel for the appellant has further submitted that there is major contradiction in the evidence of the prosecution witnesses, First Information Report and the deposition of the informant (P.W. 1). Learned counsel for the appellant has further submitted that from perusal of the First Information Report, it appears that in the morning, the accused persons came to the house of the informant and were asking her consent for establishing sexual intercourse, which was refused and they were threatened by the informant, thereafter the accused persons fled away. The informant under fear also went to Haru Pahar, where father-in-law (P.W. 5) was grazing his cattle and did not disclose anything about the occurrence, rather on the direction of the father-in-law, in the evening at 5.00 P.M., she returned to her house and was preparing to cook food. In the meantime, Narendra Mahto (appellant) entered into her house, disrobed her cloth but somehow the informant fled away and raised brawl, thereafter accused persons fled away but when the informant was examined as P.W. 1, she has categorically stated that after disrobing the cloth of the informant, making her complete naked, the appellant Narendra Mahto (appellant) was opening his pant to commit rape but in the meantime, she ran away through another door and rescued herself. Such vital contradictions are fatal for the prosecution case, as the entire prosecution case is based upon the sole testimony of the informant. Learned counsel for the appellant has further submitted that on perusal of the evidence of the informant as P.W. 1 and her fardbeyan, there are vital contradictions. Such vital contradictions are fatal for the prosecution case, as the entire prosecution case is based upon the sole testimony of the informant. Learned counsel for the appellant has further submitted that on perusal of the evidence of the informant as P.W. 1 and her fardbeyan, there are vital contradictions. Learned counsel for the appellant has further submitted that in the fardbeyan, the informant has never stated that, she has disclosed about the occurrence to her father-inlaw, when she went to Haru Pahar under fear but during deposition as P.W. 1, she has categorically stated that she has disclosed about the occurrence to her father-in-law at Haru Pahar, who has assured her that he will ask them after returning to house. The husband of the informant has been examined as P.W. 3. He has stated that because of lajja (embarrassement), his wife has not disclosed about the occurrence to his father and the father-in-law Chandra Mohan Mahto who has been examined as P.W. 5, has stated that occurrence has been disclosed to him by his daughter-in-law at Haro Pahar, who has assured her that he will ask them about the occurrence. Under such, background learned counsel for the appellant has submitted that there are vital contradictions in the evidence of informant (P.W. 1) from her fardbeyan and also from the evidence of P.W. 2, P.W. 3 and P.W. 5. Learned counsel for the appellant has drawn attention of this Court towards paragraph- 8 of the cross-examination of the informant, where she has categorically stated that at around 10.00 A.M., the entire villagers went out except herself and she was alone in the village. Learned counsel for the appellant has submitted that the informant has herself admitted that the village comprises of 100 houses, but it does not seem probable that entire villagers went out of the house except the informant, when the two accused persons entered into the house of the informant at 10.00 A.M., who were seeking her consent to establish sexual intercourse. Under such background the appellant cannot be convicted under Section 354 of the Indian Penal Code relying upon the testimony of the sole witness P.W. 1. Learned counsel for the appellant has further drawn attention of this Court towards paragraph- 11 of the cross-examination of the informant, where she has alleged that she has worn petticoat and panty and Nagendra has disrobed her making complete naked. Learned counsel for the appellant has further drawn attention of this Court towards paragraph- 11 of the cross-examination of the informant, where she has alleged that she has worn petticoat and panty and Nagendra has disrobed her making complete naked. Learned counsel for the appellant has submitted that it is not possible to make a person naked without using any force or without causing any mark of injury. Such removal of cloth is not possible from a young lady without harming her or damaging the apparels worn by her. Learned counsel for the appellant has further submitted that there was a dispute prevailing between the parties since 1970 as admitted by P.W. 5 in paragraph-14 of his cross-examination. Under such background, the appellant may be acquitted of the charge and conviction under Section 354 of the Indian Penal Code by extending benefit of doubt. 11. Heard, learned counsel for the State, Mr. Ajeemuddin, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and the learned trial court, has rightly convicted the appellant under Section 354 of the Indian Penal Code. Learned counsel for the State has further submitted that the learned trial court has rightly acquitted the accused Indranath Mahto, who, as per the prosecution case was standing near the door to keep watch and has not committed any offence. Learned counsel for the State has further submitted that there are minor contradictions in the evidence of the prosecution witnesses but those are not fatal for the prosecution case. Learned counsel for the State has further submitted that the investigating officer has been examined in this case and after finding the case to be true, the charge sheet has been submitted and as such, the learned trial court has rightly convicted the appellant by passing the impugned judgment of conviction and order of sentence from the materials available on record. 12. Heard, learned counsel for the appellant, Mr. N.K. Chatterjee, Advocate and learned counsel for the State, Mr. Ajeemuddin, Additional Public Prosecutor and perused the evidence brought on record i.e. the First Information Report, framing of charge, evidence of six prosecution witnesses, exhibits of prosecution, statement of the appellant under Section 313 Cr.P.C., 1973 and the impugned judgment. This Court has scrutinized the evidence of the prosecution witnesses. N.K. Chatterjee, Advocate and learned counsel for the State, Mr. Ajeemuddin, Additional Public Prosecutor and perused the evidence brought on record i.e. the First Information Report, framing of charge, evidence of six prosecution witnesses, exhibits of prosecution, statement of the appellant under Section 313 Cr.P.C., 1973 and the impugned judgment. This Court has scrutinized the evidence of the prosecution witnesses. Except Padda Devi (P.W. 1), all other witnesses are hearsay witnesses, such as Deoki Kumari (P.W. 2), Haldhar Mahto (P.W. 3) and Chandra Mohan Mahto (P.W. 5). Ganeshwar Mahto (P.W. 4) has been declared hostile by the prosecution. From perusal of the evidence of the prosecution witnesses, it appears that the informant (P.W. 1) is victim of this case and no other prosecution witnesses have seen the occurrence. From scrutiny of the deposition of P.W. 1 and her fardbeyan, this Court is of the opinion that there are vital contradictions in the prosecution story. From the deposition of the victim recorded as P.W. 1 and her fardbeyan recorded by the police Officer, it appears to the Court that minor contradictions are acceptable but where there are major contradictions with regard to manner of occurrence, doubt is created. This Court is also of the opinion that when the informant was alone in the village at 10.00 A.M., as per the prosecution case, both the accused came and asked her consent to establish sexual intercourse and at that time, they have not taken any attempt to commit rape, rather on threatening given by the informant, both the accused persons have fled away, but in the evening when all the relative of the victim are supposed to return, these two accused entered into the house of the informant and Nagendra Mahto (appellant) entered into the kitchen, where she was preparing to cook food, thrashed her, disrobed her saree and tried to commit rape as stated in the fardbeyan but while examining in the Court as P.W. 1, she has stated that she was completely disrobed and made naked, meaning thereby that her saree, petticoat, blouse and panty were removed. Such removal of cloth from a young lady is not possible unless and until the cloth is damaged or the lady has sustained some injury but nothing has been brought on record and as such, this Court has doubt about the authenticity of the case under the background, when there was a dispute and litigation prevailing between the parties since, 1970. Apart from this, victim (P.W. 1) has not stated in her fardbeyan that she has disclosed the occurrence to her father-in-law, who was grazing cattle at Haru Pahar whereas victim while deposing in the court has contradicted her statement by saying that she disclosed about the matter to her father-in-law, who was grazing cattle at Haru Pahar, upon which her father-in-law has said that, he will ask them after reaching the house. Subsequently, the father-in-law in the evening asked the informant to go home and prepare food. If a lady has apprehension or fear that someone can shatter her chastity, then, she will not go alone to the house nor the father-in-law will ask her to go home alone and prepare food, as such, these materials are not generating the confidence of this Court, in the background that none of the co-villagers has been examined in this case and there is an admitted dispute between the parties. Under the aforesaid background, this Court is of the opinion that appellant is entitled for the benefit of doubt. 13. In the result, the impugned judgment of conviction and order of sentence, both dated 22.09.2004, passed by learned Additional Judicial Commissioner-II, Khunti, in Sessions Trial No. 135 of 2003, in connection with Sonahatu P.S. Case No. 47 of 2002, corresponding to G. R. No. 441 of 2002, is hereby set aside and the appellant is acquitted of the charge and conviction under Section 354 of the Indian Penal Code by giving benefit of doubt. 14. Accordingly, the present criminal appeal is allowed. 15. The appellant, who is on bail, is discharged from the liability of his bail bond. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.