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2019 DIGILAW 1212 (JHR)

Ambika Prasad Khilari v. State of Jharkhand

2019-06-26

ANANT BIJAY SINGH

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JUDGMENT : Anant Bijay Singh, J. This appeal has been preferred by the sole appellant Ambika Prasad Khilari being aggrieved and dissatisfied by the judgment of conviction dated 16.01.2007 and order of sentence dated 17.01.2007 passed in Sessions Trial Case No. 390 of 2005 by Sri Ram Bachan Singh, learned Additional Sessions Judge, Fast Track Court No. 1, Ghatsila whereby and whereunder, the learned Additional Sessions Judge held the appellant guilty for the charge under Section 376, I.P.C. and further sentenced him to undergo rigorous imprisonment for seven years with fine of Rs. 2,000/- for the offence under Section 376, IPC and in default of payment of fine, the appellant was directed to undergo further simple imprisonment for six months. 2. This appeal was filed on 02.02.2007 and under order dated 05.02.2007 this appeal was admitted for hearing and L.C.R. was called for which has been received. Further, under order dated 12.03.2007, the prayer for bail of the appellant was rejected and under order dated 13.10.2009 during pendency of this appeal the appellant was granted bail thereafter the matter was listed on 17.01.2019 after ten years and adjourned for 14.02.2019, 24.04.2019, 14.05.2019 and 18.06.2019. 3. The case of prosecution as unfolded in the written report given by informant, Prafullo Giri (PW 8) addressed to officer-in-charge, Shyamsundarpur P.S. on 05.05.2005 alleging therein that on 24.04.2005, his daughter namely, Supriya Giri @ Dobhi (victim) aged about ten years complained of pain in her private parts and accordingly there was a verification by her mother and then she found swelling in the private part of the victim, thereafter victim was taken to Dr. R.N. Soren (PW 11) on 25.04.2005 where first aid like ointment and medicine was provided to her, but despite that there was no improvement in the complaint of pain and therefore the victim was again taken to the said doctor where on enquiry the victim told the doctor about the incident disclosing that on 04.04.2005 she had gone to see the Sitla Puja in her village temple and when she was returning at about 11.00 a.m., reached near the house of appellant-Ambika Prasad Khilari, he caught her and dragged inside his house where nobody was present and they removed her pant and committed rape upon her. However, she protested the same but the appellant threatened him to kill and later on she left her. 4. However, she protested the same but the appellant threatened him to kill and later on she left her. 4. It is further alleged that out of fear the victim daughter of informant continued in concealing the incident, but after suffering from pain, the incident was disclosed to the doctor by her. Thereafter the incident was reported to the villagers by the informant and accordingly a panchayati was held on 04.05.2005 but the same was in-vain. 5. On this basis of aforesaid allegations, Shyamsundarpur P.S. Case No. 27 of 2005 dated 05.05.2005 was instituted for the offence under Section 376 of the I.P.C. 6. After investigation, police submitted charge-sheet and the case was committed to the Court of Sessions vide order dated 15.09.2005 passed by learned Additional Chief Judicial Magistrate, Ghatsila and further charge was framed in this case on 04.01.2006. 7. The prosecution in support of its case examined altogether 11 witnesses-PW 1 is Mihir Nayak who has been declared hostile, PW 2 is Nilkanth Giri, PW 3 is Kalipado Giri who is hearsay witness, PW 4 is Pratap Chandra Giri who has been declared hostile, PW 5 is Sushank Sekhar Giri-Member of Panchayat, PW 6 is Smt. Sandhyarani Giri-mother of the victim, PW 7 is Supriya Giri-victim of this case, PW 8 is Prafullo Giri-father of the victim and informant of the case, PW 9 Dr. Uma Kumari-doctor who has examined the victim, PW 10-Hari Singh Bari, I.O. of the case. PW 11-Dr. Rabindranath Soren-who has firstly examined the victim. 8. As per exhibits, Ext.1 is medical report prepared by PW 9 Dr. Uma Kumari, Exhibit 2 is-entire formal F.I.R., Exhibit-3 is endorsement over fardbeyan and Exhibit-4 is application to M.O. Ghatsila written by O/C Shyamsunderpur P.S. for medical examination to the victim. 9. In order to demolish the case of the prosecution, learned counsel for the appellant has vehemently contended that, (i) PW 7-Supriya Giri, who is the victim of the case was examined on 06.06.2006. In examination-in-chief she has stated that the occurrence took place in the year, 2005 when she was returning to her house after seeing Sheetla Puja and reached near the house of appellant, the appellant dragged her inside his house and forcibly committed rape upon her causing injury to her private parts. She disclosed this fact to her parents, thereafter her father took her treatment to Dr. She disclosed this fact to her parents, thereafter her father took her treatment to Dr. Ravindranath Soren-PW 11 where her treatment was made but there was no improvement. Further, she has stated that a panchayati was held but the appellant has not accepted his guilt, hence this case. In cross-examination, PW 7 has stated that after occurrence the fact was disclosed to the police. She has further stated that she has received injury in private parts and blood was oozing and she gave her pant to the Chowkidar where police was present. She has further stated that Dr. Soren noticed the injuries and given treatment for which prescription was made but the said prescription was not produced by her father before the police. (ii) PW 8-Prafullo Giri, who is the father of the victim and informant of the case, has supported the case of prosecution. (iii) PW 9-Dr. Uma Kumari, his witness has stated that on 05.05.2005 she was posted at P.H.C., Ghatsila as a Medial Officer and on the same day at 2.15 she has examined the victim and found the following injuries : "Physical Examination-Built Average, weight 24 kgs. Height 4'8". Auxiliary Hair-Absent. Pubic Hair, Absent. Breast - Developed, but no adult size. Per Abdomen-No palpable lump. Menstrual History-Not Menstruated till now. Local Examination of Valva, Vagina-No external injury of viva, vagina, and thigh. No foreign body found. Clitoris-Normal. Hymen-old ruptured. No sign of inflammation. Vagina fully dry due to dry vaginal region, vagina swab not taken. The doctor has further opined that after conclusion, it is found that the subject examined seems to between 13-14 years old and the examination did not suggest sexual offence positively. (iv) PW 10-Hari Singh Bari-who is I.O. of the case has proved the signature of the then officer-in-charge Srikant Upadhyay which has been marked as Exhibit-2 on the formal F.I.R. This witness has proved his signature on the endorsement over fardbeyan which has been marked as Exhibit-3. This witness has mentioned the place of occurrence which is the house of appellant situated in village Mudal where it has been alleged by the victim that the appellant has committed rape upon her. This witness has stated that he recorded the statement of Sanjay Rani Giri, Pratap Giri, Kalipado Giri, Nilkanth Giri, Mihir Nayak and also took the beyan of Dr. R.N. Soren thereafter he sent the victim to Dr. This witness has stated that he recorded the statement of Sanjay Rani Giri, Pratap Giri, Kalipado Giri, Nilkanth Giri, Mihir Nayak and also took the beyan of Dr. R.N. Soren thereafter he sent the victim to Dr. Uma Kumari for her medical examination. This witness has proved the application for medical examination which has been marked as Exhibit-4. (v) PW 11-Dr. Ravindra Nath Soren, who has firstly given treatment to the victim. This witness has stated that he has given treatment to the victim for cough and cool. During cross-examination this witness has stated that he has not examined the private part of the victim and he does not maintain register. 10. Learned counsel for the appellant has submitted that from perusal of deposition of aforesaid witnesses, it appears that there is delay in lodging the F.I.R. Further, medical examination does not support the case of prosecution. So, prosecution has not been able to prove its case beyond reasonable doubt, so, the appellant is entitled for acquittal from the charge levelled against him. 11. Learned A.P.P. opposed the prayer made on behalf of appellant and has submitted that victim-PW 7, informant-PW 8 and the mother of victim-PW 6 have supported the case of prosecution. 12. In view of above discussion made above, it appears that the victim-PW 7 has been examined and cross-examined at length and she has supported the case of prosecution and nothing has been taken from the cross-examination, although, doctor-PW 9-Dr. Uma Kumari who has medically examined the victim, has not found any sign of rape, this Court has taken note of the fact that the victim has been medically examined after much delay. It is settled principle of law that on the sole testimony of the victim even uncorroborated, conviction may be maintained. As the father of the victim is not an accomplice rather has status of injured witness. Admittedly, the victim has no personal grievance to implicate the appellant and there is no reason to disbelieve the testimony of the victim, I find no merit in the instant criminal appeal. Accordingly, this criminal appeal is hereby dismissed. 13. Accordingly, judgment of conviction dated 16.01.2007 and order of sentence dated 17.01.2007 passed in Sessions Trial Case No. 390 of 2005 by Sri Ram Bachan Singh, learned Additional Sessions Judge, Fast Track Court No.1, Ghatsila is hereby confirmed. The bail bond of the appellant is cancelled. Accordingly, this criminal appeal is hereby dismissed. 13. Accordingly, judgment of conviction dated 16.01.2007 and order of sentence dated 17.01.2007 passed in Sessions Trial Case No. 390 of 2005 by Sri Ram Bachan Singh, learned Additional Sessions Judge, Fast Track Court No.1, Ghatsila is hereby confirmed. The bail bond of the appellant is cancelled. The appellant is directed to surrender before the trial Court, if he fails to surrender, the trial Court is directed to take steps for apprehension of the appellant for serving remaining period of sentence.