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2018 DIGILAW 39 (JHR)

Arjun Sawaiya v. State of Jharkhand

2018-01-05

RATNAKER BHENGRA

body2018
JUDGMENT : Ratnaker Bhengra, J. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 20.9.2008 and 23.9.2008 respectively passed by 1st Additional Sessions Judge, West Singhbhum, Chaibasa in Sessions Trial No. 137 of 2007 whereby and whereunder appellant was convicted u/s 376 IPC and sentenced to undergo R.I. for seven years and to pay a fine of Rs. 10,000/- and in default of it to undergo simple imprisonment of six months. The amount of fine realized was to be paid to the victim as compensation. 2. The case of the prosecution case as per, fardbeyan (Ext.-3) of the prosecutrix, P.W. 6 (name concealed) is that on 7.3.2007 at about 5:30 p.m. while she was uprooting linseed (Tissi) crop in her field then her co-villager Arjun Sawaiya came to her and seeing her alone caught hold 'of her and forcibly dragged her to the field of Kiti Purty, just two fields South to her field and laid her down there and after removing her clothes, forcibly raped her and threatened her that if she disclosed the said incident to anyone in the house and village, she would be killed. Thereafter, he fled away from there. She came weeping to her house and narrated about the occurrence to her parents. Thereafter, her father informed the village Munda and other villagers about the occurrence and then the village Munda informed the Tant Nagar O.P. Police Station through a man. Thereafter, police officer of Tant Nagar O.P. came to the village and recorded her fardbeyan. 3. On the basis of her fardbeyan (Ext.-3) containing the aforesaid allegations, a case was registered as Manjhari P.S. Case No.8 of 2007. After completion of investigation, a charge-sheet was submitted against the accused person and after taking cognizance, the case was committed to the Court of Sessions for its trial. Charges was framed against the accused under Section 376(2)(f) of the Indian Penal Code (I.P.C.) 4. In examination u/s 313 Cr.P.C., the accused person denied the allegations. The version of the accused was that no occurrence as alleged ever took place. He said that there was a dispute with the father of the prosecutrix and therefore he has been falsely implicated in the case. 5. The prosecution examined altogether fourteen witnesses and on the conclusion of the trial the learned trial court convicted and sentenced the appellant as aforesaid. He said that there was a dispute with the father of the prosecutrix and therefore he has been falsely implicated in the case. 5. The prosecution examined altogether fourteen witnesses and on the conclusion of the trial the learned trial court convicted and sentenced the appellant as aforesaid. Hence, this appeal. 6. P.W. 6 is the prosecutrix of the case. She deposed that in the month of March, 2007, Wednesday at about 5:30 p.m. she was uprooting linseed (Tissi) in her field. At that time, Arjun Sawaiya came and took her to the field of Kiti Purty by dragging her and laid her down and removing her clothes forcibly raped her. He fled away and threatened to kill her. She, thereafter informed her parents, and subsequently, her father informed the village Munda about the occurrence and the village Munda in turn informed the police. Police came and recorded her statement. She was sent for medical examination on 9th March, 2007, and was medically examined by the lady Doctor. In her cross-examination she stated that she visited her field at 2:30 p.m. At that time her parents were not in the house. Her field is situated at a distance of about 1 k.m. from her house and 15 to 20 minutes is consumed in visiting the field from her house. She had gone alone to the field' from her house. The said linseed field was besides the fields of others. No one was uprooting linseed crop in the fields situated on either side of her field. The persons who were working in their respective fields situated on either side of her field, left the fields prior to the occurrence, i.e. at about 4 p.m. In cross-examination, she further said that it was not dark at the time of occurrence. Accused was known to her prior to the occurrence. The house of accused is situated at a distance of about 500 yards from her house. In para 10, she stated that Arjun Sawaiya has two wives and many children but she did not see them. His one child was studying in High School. In para 11 she said that prior to the occurrence, accused Arjun was eating khesari in the down field. That field is situated at a distance of about 30-40 yards from her linseed field. His one child was studying in High School. In para 11 she said that prior to the occurrence, accused Arjun was eating khesari in the down field. That field is situated at a distance of about 30-40 yards from her linseed field. 10 to 15 minutes prior to the occurrence, she saw him eating khesari in a field but she did not know to whom said field belonged to. At para 12 she deposed that she was going to her house by carrying the bundle of linseed crop. Arjun caught hold of her from the front side. She shouted but there was no one there. She did not sustain injury on her person. At para 13 she said that Arjun dragged her about 15 feet by holding her leg. She did not injure the accused for her defence. Accused raped her for ten minutes. She did not become unconscious. She felt pain. She walked back to her house immediately from the place of occurrence. Police seized her clothes in which there was no stain of semen or blood. She reached her house wearing clothes at 6:05 p.m. One girl named Suru who is of her age had also gone for nature's call, and she accompanied the prosecutrix to her house. When she reached her house, at that time, her mother was in the house. She called her father by informing him. Police interrogated her twice. Police came on the same day in the night. 7. P.W. 7 is Lalmati Oevi mother of the victim, and PW-8 father of the victim, Yugeshwar Gope have deposed that the victim being their daughter aged about 13 years old was forcibly raped by the accused on 7.3.2007 (Wednesday) at 5:30 p.m. when she had gone to her field for uprooting linseed crop and after occurrence, she came to her house and narrated about the occurrence to her mother and thereafter, her mother gave the information to her father about the occurrence. 8. PW-1-Purn Chand Sawaiya the village Munda deposed that on 7.3.2007 the father of victim, informed him that Arjun Sawaiya raped his daughter. On hearing the said news, he went to the house of victim and inquired from her who told him that about 5:30 p.m. Arjun Sawaiya dragged her to the field, just two fields south to her field and removed her clothes and raped her. On hearing the said news, he went to the house of victim and inquired from her who told him that about 5:30 p.m. Arjun Sawaiya dragged her to the field, just two fields south to her field and removed her clothes and raped her. The said statement was narrated by victim while weeping and she further said that she was threatened that she would be killed if she disclosed the said facts to anyone. Villagers assembled there, thereafter, he informed the Tant Nagar OP. police by sending one Ramesh Kumar Gope. After receiving information, police came and recorded the Fardbeyan of victim and he also put his signature on the Fardbeyan of the victim which is marked as Ext. -1. Police also seized her clothes of Katha colour (Maroon) and prepared seizure list on which he put his signature which is marked as Ext.-2. 9. P.W. 13 is Dr: Niru Jha who deposed that by the order of Civil Surgeon, a medical board was constituted in which along with her, Dr. Usha Rani Agarwal was there both of them examined the "victim girl and gave their opinion that the age of victim girl was 14 to 15 years at the time of occurrence and sexual intercourse took place. No foreign hair was found on the private part of the body. This medical report was written by Dr. Usha Rani Agarwal and she put her signature upon it. The medical report was marked as Ext. 7. 10. P.W. 14 is Dr. Usha Rani Agarwal. She deposed that by the order of Civil Surgeon a medical board was constituted comprising her and Dr. Niru Jha. They examined the victim and on examination of victim girl she found that no spermatozoa was present either dead or alive. She opined that sexual intercourse took place, victim is aged about 14 to 15 years and no foreign hair found on private part of the body. 11. P.W. 9-Nirmal Kumar Jha was the In-charge of Tant Nagar O.P. He deposed that on 7.3.2007, village Munda, Purn Chand Sawaiya sent a person to the out post police and then he visited Purnia village and recorded the fardbeyan of the victim at 8 p.m. In para 5 he deposed that on 7.3.2007 at about 7 p.m. one person came from village, he does not remember his name and he left the police station at about 7.15 p.m. 12. P.W. 11-Ramesh Kumar Gope is co-villager. He deposed that the incident is of 7.3.2007 at about 5:30 p.m. and at that time he was in his house. Then victim's father called him and he had also called Munda Jee. Victim's father told him that Arjun Sawaiya had raped his daughter in the Tisi field. The Munda was also present when the narration about rape was made. When he asked the victim then she informed that it is true that Arjun Sawaiya had raped her. They informed the police and then Police Officer came. The police had seized one underwear and made a seizure list. He had signed on the seizure list and he proved his signature on the seizure list which is Exhibit-2/a. 13. PW-12 is Muneshwar Prasad, the Investigating Officer of the case. He has deposed that on 7.3.2007 he was posted at Tant Nagar O.P. According to the direction of the then officer-in-charge Sri Nirmal Kumar Jha, he took over the investigation of Manjhari P.S. Case No. 0008 of 2007. He had taken the statement of the prosecutrix and other witnesses. On the next day he sent the victim for medical examination to the Sadar Hospital, Chaibasa. While sending the victim for medical examination, the requisition slip was made in his handwriting and bears his signature. The requisition is exhibited as Ext.-5. As told by the prosecutrix he inspected the place of occurrence. He further deposed that in the place of occurrence in a radius of 4 x 4 feet the grass was in a disturbed and pressed state from which it appears that the place had been stamped and pressed upon by the feet and body of some man. On sitting at this place nothing can be seen from outside. He further deposed that the accused had brought her to this place and forcibly raped her. In paragraph no. 4 he said that the place of occurrence is quite and desolate place and about 1 k.m. North East the Banasanju village is located. In paragraph no. 5 he deposed that he had taken the statements of Lalmati Devi, Yogeshwar Gape, Purn Chandra Sawaiya, Jagdish Gope, Bare Jal Sewaiya, Ramesh Gape, Surya Kumar Gope, Bhudan Gope, Sidheshwar Sewaiya. In paragraph no. 7 he said that he recognized the signature of Purn Chandra Sewaiya and Ramesh Chandra Gope on the seizure list which is marked as Ext.-6. 5 he deposed that he had taken the statements of Lalmati Devi, Yogeshwar Gape, Purn Chandra Sawaiya, Jagdish Gope, Bare Jal Sewaiya, Ramesh Gape, Surya Kumar Gope, Bhudan Gope, Sidheshwar Sewaiya. In paragraph no. 7 he said that he recognized the signature of Purn Chandra Sewaiya and Ramesh Chandra Gope on the seizure list which is marked as Ext.-6. In the cross-examination, he said that in the night of 7.3.2007 he was given the responsibility of the investigation. On that day he had stayed for about one and half hour at the house of the prosecutrix. He had taken the statements of witnesses at 8 p.m. on 7.3.2007 in the village of the prosecutrix. He had taken the statements of all the witnesses in one day. 14. Learned counsel for the appellant has argued that conviction is basically on the basis of the victim being a minor but that is not the case, because she was an adult and that has been determined by ossification report wherein it has been said that she was about 14 to 15 years. He submitted that if a margin of two years is made she would have been 17 years or so and plus and hence, the victim would be an adult and the sex was between two consenting adult and therefore, the allegation of rape cannot be made out. He has also argued that it has been alleged that the rape was committed in broad open space and broad daylight. In such situation in broad open daylight, in villages, people are normally working in the fields and many persons would have been in the area or in the agricultural fields and so the allegations are simply not believable. The house of the appellant and the house of the prosecutrix are adjacent to each other and they are very much known to each other and familiar to each other and on this ground also the allegation would be totally false. Learned counsel for the appellant has also argued about the distance and time. The house of the appellant and the house of the prosecutrix are adjacent to each other and they are very much known to each other and familiar to each other and on this ground also the allegation would be totally false. Learned counsel for the appellant has also argued about the distance and time. He has tried to argue that the agricultural field is about 1 k.m. from the residence of victim girl and for her to return back after 5:30 p.m. which is the time mostly indicated, to the house and then to inform her parents or her father, and the same to be further informed to the 'Munda and then the Munda again came to her house and inquired and subsequently the Munda sent a person to the police station which was again at a certain distance and the police again left for the place at 7:15 p.m. and reached at the place of occurrence and took the statements of the prosecutrix and other witnesses within a very short span of time is unbelievable. The compressed time and distance that are involved, while coming and going raises the doubt whether the occurrence took place or it is a concoction. He has also pointed out that that PW-3 deposed that the police took statements at 4 p.m. in the evening. Counsel argued that this is not possible because incident is reportedly of 5:30 p.m., and. therefore this is a major inconsistency on this point. Learned counsel has referred to the evidence of PWs-13 and 14 who are Dr. Niru Jha. and Dr. Usha Rani Agarwal and read out the deposition and said that there is no mark of violence on the victim and no spermatozoa was present and therefore, rape is not made out by the medical evidence. The X-ray was done in a private X-ray clinic and neither the report of the same was produced and nor the name of the said X-ray clinic was mentioned and therefore, the age of the prosecutrix cannot be said to be that of a minor. Learned counsel for the appellant has also relied upon the judgments reported in AIR 1998 SC 2694 , Kuldeep K. Mahto vs. State of Bihar and 1999 Cr.L.J. 4482, Sudhamay Nath @ Bachhu VS. State of West Bengal. He has also relied upon the judgment of Mukarrab VS. Learned counsel for the appellant has also relied upon the judgments reported in AIR 1998 SC 2694 , Kuldeep K. Mahto vs. State of Bihar and 1999 Cr.L.J. 4482, Sudhamay Nath @ Bachhu VS. State of West Bengal. He has also relied upon the judgment of Mukarrab VS. State of U.P., (2017)2 SCC 210 [:2017(1) JLJR (SC)152]. On the basis of these cases he has tried to show, particularly in the first case i.e. Kuldeep K. Mahto (supra) that when medical evidence has not proved rape then conviction could not be sustained. In the second case Sudhamay Nath @ Bachhu (supra) he has argued that in that case also prosecutrix was above the age of sixteen and knew the nature of the sexual intercourse and therefore, the allegation of rape should not be sustained. Finally from the case of Mukarrab (supra) he has submitted that as per ossification report her age would have been that of an adult therefore, the issue of minor does not arise and sex was between two consenting adults. Therefore, the allegation of rape has no leg to stand. 15. On the other hand, learned A.P.P. has said that the consent is immaterial if the girl is minor and it has been stated by the doctor as well as by the witnesses that she was minor hence, there is no issue of consent and as such the rape is thoroughly made out. Even otherwise she has said that the prosecutrix categorically said that she was raped and that too in a place that was quite and secluded and people from the surrounding areas were not able to see the occurrence particularly when anybody was lying down within. So in this situation the defence of consent is not available to him. She submitted that the appellant has not raised the issue of consent in his statement u/s 313 Cr.P.C. She said that prosecutrix or victim consistently informed P.Ws. 1, 3, 4, 7 and 8 that rape was committed upon her by the appellant. Regarding the absence of injury, counsel for the State has said that there is no mark of injury because the victim was scared due to threat made by the appellant and so appellant was able to carry out his evil intent without violent opposition from the victim and therefore, no injury marks were available. Regarding the absence of injury, counsel for the State has said that there is no mark of injury because the victim was scared due to threat made by the appellant and so appellant was able to carry out his evil intent without violent opposition from the victim and therefore, no injury marks were available. Moreover, the place of occurrence was a field and not on bare ground and rocky surface and therefore, no marks were on the body. Learned counsel for the State also said that it has come in the evidence of the I.O. that the place where the rape had taken place, had been trampled upon by the feet and body of a human. Finally she referred to the judgments cited by the appellant and said that consent is not an issue here because the rape was committed in a secluded place with threat so it was sexual intercourse which amounts to rape. She further submitted that the judgment cited for ossification test has to be seen with all other evidences taken together and therefore, offence of rape is totally made out and therefore judgment of conviction and sentence passed by learned court below requires no interference. FINDINGS: 16. Having heard both counsels and having gone through the records of the case and evidences available, in the facts and circumstances of the case following is concluded: (1) The victim or prosecutrix is reportedly of tender years, from 14 to 15 years and she categorically asserted that she was raped in the agricultural field. She consistently alleged the same when she informed to P.W. 1, P.W. 3, P.W. 4, P.W. 7, P.W. 8, P.W. 11 and P.W. 12 and it is well established that an allegation by a prosecutrix who alleged rape, is reliable or is, to be believed if there is consistency in her deposition. In the case of Sudhamay Nath @ Bachhu (supra) prosecution failed to prove that the girl was below 16 years of age at that relevant time. (2) Moreover, the doctor PW-13 and PW-14 have both deposed she was raped. The 1.0., PW-12 investigated the place of occurrence and said that the location on the field seems to have been trampled upon or suppressed by a person, and if rape was committed then the bodies of the person in question' would have done the same. (2) Moreover, the doctor PW-13 and PW-14 have both deposed she was raped. The 1.0., PW-12 investigated the place of occurrence and said that the location on the field seems to have been trampled upon or suppressed by a person, and if rape was committed then the bodies of the person in question' would have done the same. (3) Regarding the age aspect, both the doctors including the father and mother of the prosecutrix have claimed that at the time of incident she was 13 years or around 14-15 years of age. Appellant counsel has cited the judgment Mukarrab (supra) and said ossification test would indicate she was above 16 years of age as per old law and since both were known to each other, it was a case of consensual sex. This line of argument would mean as it is argued by the counsel is that if two years is added, she would be 16 years and adding one more year, she would be 17 years and, hence, as per old law she was a major and, therefore, no case of rape is made out. In the aforesaid judgment at para 28 an article has been quoted which reads as under: "28... There are various criteria for age determination of an individual, of which eruption of teeth and ossification activities of bones are important. Nevertheless age can usually be assessed more accurately in younger age group by dentition and ossification along with epiphyseal fusion." A careful examination of teeth and ossification of wrist joint provide valuable data for age estimation in children." In para 29 of the judgment it has been observed that: "29....Therefore, the age determination based on ossification test though may be useful is not conclusive. An X-ray ossification test can by no means be so infallible and accurate a test as to indicate the correct number of years and days of a person's life." (4) Viewing the aforesaid it seems ossification test also may not be conclusive, moreover prosecution witnesses p.w. 7, PW-8, PW-13 and PW-14 have said she was 13 years or 14-15 years of age, and even if she was 16 years and above, this is a case of forcible sex and not of consent. (5) Even, otherwise, victim has consistently said it was a case of forcible rape. No witness has said anything about the two being in intimate relationship. (5) Even, otherwise, victim has consistently said it was a case of forcible rape. No witness has said anything about the two being in intimate relationship. The evidence that the place of occurrence was suppressed in a small diameter in the field also leads to the conclusion that rape was committed. It was also a very secluded place and not visible to others when one lay or sat down. So based on all the aforesaid reasons, I am unable to a acquit the appellant of his crime. 17. Accordingly, the judgment of conviction and order of sentence dated 20.9.2008 and 23.9.2008 passed by the learned court below in Sessions Trial Case No. 137 of 2007 is therefore upheld and requires no interference. The bail bond of the appellant is hereby cancelled and the learned concerned or successor court is directed to issue process to serve out the remaining sentence. 18. This criminal appeal is accordingly dismissed.