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2018 DIGILAW 573 (JHR)

State of Jharkhand v. Azad Khan

2018-03-12

B.B.MANGALMURTI, H.C.MISHRA

body2018
ORDER : 1. Heard learned counsel for the appellant-State. 2. The appellant-State is aggrieved by the impugned judgment of acquittal dated 11.7.2016, passed by the learned Sessions Judge, Koderma, in Sessions Trial No. 10 of 2014, whereby the accused-respondent, who was facing the trial for the offence under Sections 341, 342, 366, and 376 of the Indian Penal Code, has been acquitted after trial. 3. The present appeal is filed after a delay of 327 days, and for condonation of this delay, I.A. No. 7187 of 2017 has been filed giving the reasons for the delay, which only relate to the procedural delay in taking the concurrence of the Deputy Commissioner, Koderma, and the Law Department. Another I.A. No. 7897 of 2017 has been filed, seeking leave to appeal against the impugned judgment of acquittal. 4. According to the prosecution case, as revealed, from the impugned judgment, a written report was given by the prosecutrix before the Police Station on 22.3.2013, stating inter alia, that she was a married woman and after about five years of marriage, she was driven out of her matrimonial home, and thereafter, she was living with her widow mother. She has alleged that on 28.4.2011, she was going from mother's house to Telaiya and while she was going towards Hirodih railway station, the accused Azad Khan abducted her by force on his motorcycle and took her to Chouparan and in one hotel room, he committed rape upon her twice, within five hours. Thereafter, the accused dropped the prosecutrix to her house, threatening her not to disclose the matter to anyone. Due to the said threatening, she kept mum. It is alleged that the accused thereafter repeatedly committed rape upon her giving threatening and ultimately, the prosecutrix had to call a panchayati, which took place on 17.2.2013. When she did not get any justice in the panchayati, she lodged the case before the Police on 22.3.2013. 5. The sole accused was ultimately, put to trial in the case, in which, in all fifteen witnesses were examined by the prosecution, including the I.O., and the Doctor. Naturally, due to long tame gap, no evidence of rape was found in the medical examination of the prosecutrix. 5. The sole accused was ultimately, put to trial in the case, in which, in all fifteen witnesses were examined by the prosecution, including the I.O., and the Doctor. Naturally, due to long tame gap, no evidence of rape was found in the medical examination of the prosecutrix. The impugned judgment shows that PW 1 Sehrun Nisha, PW 2 Samim Khan, PW 3 Hakim Khan, PW 4 Jamal Khan and PW 14 Dhiraj Kumar Singh, who is the owner-cum-Manager of the hotel, in which the occurrence was alleged to have been committed, have not 'supported the prosecution. case at all Some of these prosecution witnesses have also stated that the false case had been lodged by the prosecutrix, as she wanted to marry the respondent-accused, and PW 1 Sehrun' Nisha had also stated that the prosecutrix was in habit of filing false cases and she had also instituted a false case of rape against her son also. 6. The prosecution case was supported by the prosecutrix herself, who was examined as PW 5, stating that on 28.4.2011 while she was going towards Hirodih station to catch a train, the accused abducted her on his motorcycle and took her to a hotel at Chouparan where he committed rape upon her twice. Thereafter, she was dropped at her house and given threatening. She has also stated that the accused again came to her house and tried to ravish her. Then she called a panchayati and when she did not get any justice from panchayati, she jumped in a well. In her cross-examination, she has stated that no one had seen her, while she was being carried on the motorcycle by the accused. 7. The other witnesses PW 6 Kasim Khan, PW 7 Samim Khan, PW 8 Jamal Khan, PW 9 Irfan Khan, PW 11 Ekram Khan and PW 15 Sahjad Atam have deposed about the panachayati, stating that the panchayati was held in which the accused was asked to make the payment of Rs. 2,50,000/- to the prosecutrix. PW 6 Kasim Khan, PW 7 Samim Khan and PW 8 Jamal Khan, have also stated that when the accused did not give the money, the prosecutrix jumped in a well. PW 11 Ekrarn Khan has stated that when the accused did not pay Rs. 2,50,000/- to the prosecutrix, she was advised to lodge the case. 8. PW 12 Dr. PW 6 Kasim Khan, PW 7 Samim Khan and PW 8 Jamal Khan, have also stated that when the accused did not give the money, the prosecutrix jumped in a well. PW 11 Ekrarn Khan has stated that when the accused did not pay Rs. 2,50,000/- to the prosecutrix, she was advised to lodge the case. 8. PW 12 Dr. Bhawana is the Medical Officer, who had examined the prosecutrix and did not find any sign of rape on her, and PW 13 Pradeep Kumar, who is the I.O. of the case, who has stated about the investigation made by him. 9. On the basis of the evidence on record, the trial Court below came to the conclusion that the occurrence had admittedly taken place on 28.4.2011, and thereafter she kept mum for a long time and the alleged panachayati had taken place on 17.2.2013. Even after the panachayati, there was a long gap in lodging the case against the accused, as the case was instituted only on 22.3.2013. The Court below has found that the distance, between the place from where the prosecutrix was abducted, and Chouparan where she was subjected to rape in a hotel, was about 60 kilometers and it was improbable that for this long distance, while the prosecutrix was being abducted, she did not raise any alarm. The Court below has taken into consideration the undue delay in lodging the case, and found that the accused was entitled to benefits of doubt and accordingly, acquitted him by the impugned judgment dated 11.7.2016. 10. Learned counsel for the appellant-State has submitted that the impugned judgment of acquittal passed by the trial Court below is absolutely illegal, inasmuch as, the prosecutrix has supported her case fully, and it is well-settled principle of law that the conviction of an accused for the offence under Section 376 of the IPC can be secured even on the basis of the sole uncorroborated evidence of the prosecutrix. Learned counsel submitted that other witnesses have also supported the fact that the panchayati had taken place for the purpose, in. which, the accused was asked to give Rs. 2,50,000/- to the prosecutrix and when the same was not paid, the police case was instituted by the prosecutrix. Learned counsel submitted that other witnesses have also supported the fact that the panchayati had taken place for the purpose, in. which, the accused was asked to give Rs. 2,50,000/- to the prosecutrix and when the same was not paid, the police case was instituted by the prosecutrix. Learned counsel submitted that on the basis of the evidence of the prosecutrix, the Court below ought to have found the accused-respondent guilty, and convicted him for the charge and also suitably punish him for the same. Learned counsel accordingly, submitted that the impugned judgment of acquittal cannot be sustained in the eye of the law. 11. Having heard learned counsel for the appellant and upon going through the impugned judgment, we find that the occurrence is of 28.4.2011 when the prosecutrix was allegedly subjected to rape in a hotel. It is alleged in the written report that even thereafter the accused repeatedly committed rape upon her giving threatening to her and thereafter, panchayati was called. However, these. subsequent acts of rape have not been supported by the prosecutrix in her evidence while she was examined as PW 5 in the Court below. She has only stated that after leaving her at the house, the accused again tried to ravish her and then she called the panchayati. The material brought on record also shows that the prosecutrix was living with her widow mother, but the mother of the prosecutrix has not been examined in the case, which also creates substantial doubt about the correctness of the prosecution case. The five prosecution witnesses examined have not supported the prosecution, case at all, and some of, them have stated that since the. prosecutrix wanted to marry the accused, she has falsely implicated the accused. One witness has even stated that the prosecutrix had filed a false case of rape against her son also. There is no mention in the FIR, that when the prosecutrix did not get any justice in the panchayati, she jumped in a well, but this fact has come for the first time in the evidence of the prosecutrix and PW 6 Kasim Khan, PW 7 Samim Khan, and PW 8 Jamal Khan. 12. In the backdrop of these evidences, we find that the Court below has rightly taken into consideration the long delay in lodging the present case. 12. In the backdrop of these evidences, we find that the Court below has rightly taken into consideration the long delay in lodging the present case. Admittedly, the occurrence was of 28.4.2011 and the prosecution case was filed on 22.3.2013, i.e., after slightly less than two years and there is no cogent explanation for this undue delay, except the fact that she was threatened. Even the panchayati had taken place on 17.2.2013 and according to PW 11 Ekram Khan, soon after the panchayati, she was advised to lodge the case, but even thereafter, there is a considerable delay in lodging the case of about one month. We are of the considered view that these undue delays were certainly fatal to the prosecution case, and the accused respondent was entitled to the benefits of doubt, which has been rightly given by the learned trial Court below. We do not see any illegality in the impugned judgment passed by the trial Court below, worth interference by this Court. 13. Since we do not find any illegality in the impugned judgment of acquittal, we do not find any valid reason for granting leave to appeal against the judgment of acquittal, and for that reason, we also find no valid reason for condoning the undue delay of 327 days in filing this appeal. Accordingly, I.A. No. 7187 of 2017, filed for condonation of delay and I.A. No. 7897 of 2017, seeking leave to appeal against the impugned judgment of acquittal, stand dismissed. 14. Consequently, this acquittal appeal also stands dismissed, being bereft of any merit, and hopelessly barred by limitation. Appeal dismissed.