Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 2689 (JHR)

Maheshwar Tigga v. State Of Jharkhand

2018-12-07

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - The instant Criminal Appeal has been preferred against the judgment of conviction dated 12.02.2004 and order of sentence, dated 13.02.2004, passed by learned Additional Judicial Commissioner, Fast Track Court No. IV, Ranchi, in Sessions Trial No. 15 of 2000, whereby the sole appellant Maheshwar Tigga has been found guilty for the offence committed and punishable under Sections 376, 323 and 341 of the Indian Penal Code and awarded rigorous imprisonment for seven years with fine of Rs. 5000/-, which shall be payable to the victim and in default in payment of fine, further to undergo rigorous imprisonment for six months. The learned trial court has also awarded rigorous imprisonment for one year for the offence committed and punishable under Section 323 of the Indian Penal Code and simple imprisonment for one month for the offence committed and punishable under Section 341 of the Indian Penal Code. All the sentences are directed to run concurrently. The learned trial court has acquitted the appellant under Section 504/34 and 420/34 of the Indian Penal Code. It is relevant to state here that other co-accused persons of this case namely Mahabir Oraon, Jatiya Oraon @ Bhagat and Mohan Tigga @ Oraon have also been convicted by the learned trial court for the offence committed and punishable under Section 323/34 of the Indian Penal Code but after considering the age and offence of co-accused persons, they have been released under Section 3 of the Probation of Offenders Act after due admonition for their offence. 2. The prosecution case is based upon the written report submitted by the informant Ansu Mala Tigga (P.W. 9), before the Officer-in-Charge, Mandar Police Station in the district of Ranchi on 13.04.1999, alleging therein that Maheshwar Tigga, son of Badhna Uraon, a co-villager of the informant, has committed rape against her will and subsequently assured the informant of solemnizing marriage and thus the relationship between parties continued as husband and wife. Informant has further stated that Maheshwar Tigga is working in Indian Army and three months ago, he came to his home after taking leave from the service and took the informant to his house, where the informant resided for 15 days and was raped and after expiry of his leave, Maheshwar Tigga went to join his service. Informant has further stated that Maheshwar Tigga is working in Indian Army and three months ago, he came to his home after taking leave from the service and took the informant to his house, where the informant resided for 15 days and was raped and after expiry of his leave, Maheshwar Tigga went to join his service. The informant has further alleged that when her mother went to see her in the house of Maheshwar Tigga, the elder brother of Maheshwar Tigga namely Mohana Tigga @ Oraon younger brother Mahabir Oraon and uncle of the appellant namely Jatiya Oraon @ Bhagat have surrounded them and assaulted the informant and her mother and also dragged the informant out of their house. The informant has further alleged that by cheating her, the appellant Maheshwar Tigga is now solemnizing his marriage on 20.04.1999 at some other place. It is also alleged that on 09.04.1999, in the night Maheshwar Tigga has also committed rape against her will but because of conciliation, the delay has been caused in informing the police. 3. On the basis of written report of the informant, police has registered Mandar P.S. Case No. 25 of 1999 dated 13.04.1999, under Sections 376/ 420/ 341/ 323/ 504 of the Indian Penal Code against four accused persons namely Maheshwar Tigga, Mahabir Oraon, Mohana Oraon and Jatiya Oraon @ Bhagat. 4. After investigation, the police has submitted charge sheet against all the named four accused persons vide charge sheet no. 55 of 1999, dated 23.10.1999, under Sections 420/ 376/ 341/ 323/ 504 of the Indian Penal Code. 5. The cognizance of the offence has been taken vide order dated 08.11.1999 and the case has been committed to the Court of Sessions vide order dated 14.12.1999. 6. The charge has been framed against all the four accused persons under Sections 420/34, 323/34, 341/34 and 504/34 of the Indian Penal Code vide order dated 30.11.2000 and Maheshwar Tigga has further been separately charged under Section 376 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 eleven witnesses and also exhibited a number of documentary evidence up to Exhibit- 6 series. 7. The prosecution, to prove its case, has examined altogether eleven witnesses and also exhibited a number of documentary evidence up to Exhibit- 6 series. Barnawas Tigga, brother of the victim/informant has been examined as P.W. 1, Martin Tigga, cousin of the informant/victim, has been examined as P.W. 2, Vincent Tigga, an independent hearsay witness, has been examined as P.W. 3, Jabier Tigga, another independent hearsay witness, has been examined as P.W. 4, Amartush Tigga, father of the victim/informant, has been examined as P.W. 5, Rooth Toppo has been examined as P.W. 6, Bimla Tigga has been examined as P.W. 7, James Kujur has been examined as P.W. 8, Ansu Mala Tigga, informant and victim of the case has been examined as P.W. 9, Dr. Shobna Toppo, Medical Officer, has been examined as P.W. 10 and Surendra Prasad, Sub- Inspector of Police and Investigating Officer of the case, has been examined as P.W. 11. 8. Written application of the informant has been proved and marked as Exhibit- 1, letter written by accused/appellant Maheshwar Tigga to the informant has been proved and marked as Exhibit- 2 series i.e. Exhibits- 2, 2/1, 2/2 and 2/3 without objection, photograph of the informant with appellant Maheshwar Tigga has been proved and marked as Exhibit- 3 without objection, letter purported to be written by the appellant to the informant has been proved and marked as Exhibit- 4 without objection, injury report of the victim Ansu Mala Tigga has been proved and marked as Exhibit- 5, formal F.I.R. has been proved and marked as Exhibit- 6 and endorsement on the written report has been proved and marked as Exhibit- 6/1. 9. After closure of the prosecution evidence, statement of the accused/appellant has been recorded under Section 313 Cr.P.C. on 19.02.2003, to which the accused/appellant has denied about the occurrence and has also denied that he has written any letter to the informant. The appellant has also denied of having any photograph taken with the informant but admitted that the boy standing with the informant in the photograph is his photo. The appellant has also claimed to adduce evidence on behalf of the defence and examined three defence witnesses namely Maheshwar Tigga, appellant himself as D.W. 1 and proved the certificate issued by his Unit as Exhibit- A, Sudhu Lohara as D.W. 2 and Bilu Oraon as D.W. 3. 10. The appellant has also claimed to adduce evidence on behalf of the defence and examined three defence witnesses namely Maheshwar Tigga, appellant himself as D.W. 1 and proved the certificate issued by his Unit as Exhibit- A, Sudhu Lohara as D.W. 2 and Bilu Oraon as D.W. 3. 10. 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. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant named above has preferred the present criminal appeal, assailing the same. 11. Heard, learned learned counsel for the appellant Mrs. Priya Shrestha assisted by Mr. Faisal Allam and Ms. Nehala Sharmin, Advocates. 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 submitted that it is a false case instituted by the informant to solemnize marriage with the appellant, who is employee in Indian Army and for that, she has filed the present case just to pressurize him. Learned counsel for the appellant has further submitted that even if it is accepted that appellant has physical relationship with the informant, then also no offence is made out as both have consensual relationship with each other, being major persons. Learned counsel for the appellant has further submitted that the informant has been examined as P.W. 9 and in paragraphs- 10 and 29 of her cross-examination, she has admitted, that because of error, she has stated before the police that she was also raped on 09.04.1999. Learned counsel for the appellant has further submitted that the case of the appellant is fully covered by the judgment as reported in Kaini Ranjan versus State of Kerala , (2013) 9 SCC 113 as such in view of the said judgment, the appellant may be acquitted of the charge and conviction under Section 323, 341 and 376 of the Indian Penal Code by extending benefit of doubt. 12. Heard, learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. 12. Heard, learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the materials available on record and the first occurrence committed by the appellant amounts to rape as defined under Section 375 of the Indian Penal Code. Learned counsel for the State has submitted that although the informant has filed this case after a delay of four years but there was sufficient reason for the informant in not informing the police as the appellant Maheshwar Tigga has agreed before the parents of the informant that he will solemnize marriage and thereafter local ritual of lota-pani was performed, even the victim/informant was taken to the house of appellant and kept there for fifteen days and thereafter, the appellant left his house and went on duty, as the appellant was working in Military Service. When the mother of the victim went there to see her daughter, the brothers and uncle of the appellant namely Mohana Tigga @ Oraon, Mahabir Oraon and Jatiya Oraon @ Bhagat surrounded them and assaulted them. Learned counsel for the State has further submitted that subsequently the appellant who has earlier committed rape without consent of the informant has cheated the informant by fixing his marriage with another lady to be solemnized on 20.04.1999, that forced the informant to inform the police and as such, the informant who belongs to a society, where they are not so aware of the legal process and as such, there is no delay in lodging the F.I.R. and the same is also not fatal for the prosecution. Learned counsel for the State has further submitted that the letters written by the appellant to the informant, have been proved and marked as Exhibit- 2 series without objection from the side of defence. The contents of the letter speaks in volume, that both were in love and that is the reason the case was not instituted for a long period of four years but subsequently when the girl found herself helpless, she filed the present case. The contents of the letter speaks in volume, that both were in love and that is the reason the case was not instituted for a long period of four years but subsequently when the girl found herself helpless, she filed the present case. Learned counsel for the State has further submitted that Exhibit- 2/3 is a letter showing, the sepoy number of the appellant which gets corroborated from Exhibit- A produced by the appellant, proved by himself and that is sufficient to establish that these letters are written by the appellant to the informant as the sepoy number found in the letter i.e. exhibit- 2/3 corroborates with the ExhibitA, produced and proved by the appellant himself as D.W. 1. Learned counsel for the State Mrs. Laxmi Murmu, Additional Public Prosecutor has further submitted that even in the statement of the appellant recorded under Section 313 CrPC, he has admitted that his photograph is at Exhibit- 3, which is the photograph of the victim and the appellant. Learned counsel for the State has further submitted that investigating officer of the case has also proved the prosecution case and after finding the case to be true, has submitted the chargesheet against the appellant and other co-accused persons. Learned counsel for the State has further submitted that other co-accused persons namely Mohana Tigga @ Oraon, Jatiya Oraon @ Bhagat and Mahabir Oraon, have also been convicted for the offence committed an punishable under Section 323/34 of the Indian Penal Code, but they have not preferred any appeal assailing their conviction and they have faced the Admonition as awarded by the learned trial court under Section 3 of the Probation of Offenders Act. Learned counsel for the State has thus submitted that the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court on the basis of the materials available on record, as the first occurrence which has been committed with the informant by the appellant was under threat of knife and that amounts to rape, which constitute the offence under Section 375 of the Indian Penal Code punishable under Section 376 of the Indian Penal Code. Learned counsel for the State has further submitted that the appellant has also kept the victim-cum-informant at his house for 15 days and as such, the learned trial court has rightly convicted the appellant under Section 341 of the Indian Penal Code. Learned counsel for the State has explained the facts of judgment cited by the learned counsel for the appellant and has distinguished the facts of the present case with the facts of that judgment and has stated that the said judgment is not applicable in the present case. Learned State Counsel has further submitted that evidence brought on record has been rightly appreciated by the learned trial court and the impugned judgment of conviction and order of sentence does not warrant any interference from this Hon''ble Court. 13. Heard, learned learned counsel for the appellant Mrs. Priya Shrestha assisted by Mr. Faisal Allam and Ms. Nehala Sharmin, Advocates and learned counsel for the State, Mrs. Laxmi Murmu, Additional Public Prosecutor and perused the evidence brought on record including the F.I.R., framing of charge, evidence of eleven prosecution witnesses, six prosecution exhibits, statement of the appellant recorded under Section 313 Cr.P.C., Exhibit- A adduced by the defence and three defence witnesses as well as the impugned judgment of conviction and order of sentence. This Court has minutely scrutinized the materials brought on record. Although the informant has filed this case after delay of four years but there was sufficient reason for the informant in not informing the police as after the incident of rape, the appellant Maheshwar Tigga has agreed before the parents of the informant that he will solemnize marriage and thereafter local ritual of lota-pani was performed, even the victim/informant was taken to the house of appellant and kept there for fifteen days and thereafter, the appellant left his house and went on duty, as the appellant was working in Military Service. When the mother of victim went to see her daughter, the brothers and uncle of the appellant namely Mohana Tigga @ Oraon, Mahabir Oraon and Jatiya Oraon @ Bhagat surrounded them and assaulted them. When the mother of victim went to see her daughter, the brothers and uncle of the appellant namely Mohana Tigga @ Oraon, Mahabir Oraon and Jatiya Oraon @ Bhagat surrounded them and assaulted them. Subsequently the appellant who has earlier committed rape without consent of the informant, has cheated the informant by fixing his marriage with another lady to be solemnized on 20.04.1999 and that is the reason the informant was forced to inform the police and they are not so aware of the legal process, as such, there is no delay in lodging the F.I.R. This Court has perused the letters written by the appellant to the informant, which have been proved and marked Exhibit- 2 series without objection from the defence. The contents of the letter speaks in volume that both were in love after first incident of rape and that is the reason the case was not instituted for a long period of four years but subsequently when the girl found herself helpless, she filed the present case. Exhibit- 2/3 is a letter which shows the sepoy number of the appellant, which gets corroborated from ExhibitA produced by the appellant, proved by himself as D.W. 1 and that is sufficient to establish that these letters were written by the appellant to the informant. This Court has also looked into the contents of the letters and the photograph of the appellant with the informant which have been marked as Exhibits- 2, 2/1, 2/2, 2/3 and 3 respectively, which shows that they were in love but subsequently the appellant has fixed his marriage with other girl. Further, in the statement of the appellant recorded under Section 313 CrPC, he has admitted that his photograph is at Exhibit- 3, which is the photograph of the victim and the appellant. The Investigating Officer of the case has also proved the prosecution case and after finding the case to be true, has submitted the chargesheet against the appellant and other co-accused persons. The Investigating Officer of the case has also proved the prosecution case and after finding the case to be true, has submitted the chargesheet against the appellant and other co-accused persons. This Court is of the opinion that the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court on the basis of the materials available on record as the first occurrence which has been committed against the informant by the appellant was under threat of knife and the rape has been committed which constitute the offence under Section 375 of the Indian Penal Code punishable under Section 376 of the Indian Penal Code. The appellant has also kept the victim at his house for 15 days and as such, the learned trial court has rightly convicted the appellant under Section 341 of the Indian Penal Code. Further, the Investigating Officer has also admitted in paragraph- 9 of his cross-examination that victim/informant has stated before him that appellant has committed rape against her will forcibly. From perusal of the fact, this Court is not satisfied with the facts of the judgment cited by the learned counsel for the appellant. This Court has not taken judicial notice regarding acquittal of the appellant under Section 504/34 and 420/34 of the Indian Penal Code as neither the State nor the informant has assailed the same by filing any acquittal appeal under the aforesaid sections and as such, this Court is not considering the materials with respect to Section 420/34 and 504/34 of the Indian Penal Code while passing the judgment in the present criminal appeal. 14. Under the aforesaid circumstances, considering the evidence of the prosecution witnesses, who have supported the prosecution case, the exhibits containing the letters written by the appellant to the informant, photograph of the appellant with the informant and statement of the appellant recorded under Section 313 CrPC, this Court is of the opinion that the learned trial court has rightly convicted the appellant under Sections 376, 323 and 341 of the Indian Penal Code, as the charge against the appellant is well proved as discussed above, as such this Court affirms and upheld the charge and conviction of appellant under Sections 376, 323 and 341 of the Indian Penal Code passed by learned trial court. 15. 15. In the result, the impugned judgment of conviction dated 12.02.2004 and order of sentence, dated 13.02.2004, passed by learned Additional Judicial Commissioner, Fast Track Court No. IV, Ranchi, in Sessions Trial No. 15 of 2000, arising out of Mandar P.S. Case No. 25 of 1999, corresponding to G. R. No. 819 of 1999, is hereby upheld and affirmed. 16. The appellant, who is on bail, his bail bond is hereby cancelled to serve out rest of the sentence as awarded by the learned trial court. The appellant is directed to surrender before the court below forthwith to serve out rest of the sentence. In case, the appellant fails to appear, the learned trial court is directed to take all coercive methods for procurement of the appellant to serve out rest of the sentence. 17. Accordingly, the present criminal appeal is dismissed without any interference. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.