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2021 DIGILAW 114 (JHR)

Sahjamal Ansari v. State of Jharkhand

2021-01-22

RAJESH KUMAR

body2021
ORDER : The matter was taken up through Video Conferencing. Learned counsels for the parties had no objection with it and submitted that the audio and video qualities are good. Heard Mr. Rajeeva Sharma, learned senior counsel for the appellant assisted by Mr. Darshan Singh and Mr. Shekhar Sinha, learned A.P.P., appearing for the State. 2. This appeal is directed against the judgment of conviction and order of sentence dated 03.03.2006 passed by Shri Udai Narayan Singh, Sessions Judge, Pakur in Sessions Case No. 20 of 2005 whereby and whereunder the appellant has been convicted for the offence under Sections 376 and 417 of the Indian Penal Code and has been sentenced to undergo R.I. for seven years for the offence under Section 376 of the Indian Penal Code and R.I. for one year for the offence under Section 417 of the Indian Penal Code. A fine of Rs.20,000/-has also been imposed against the appellant under Section 376 of the Indian Penal Code and in default of payment of fine, further R.I. for two years. 3. The criminal law has put into motion by filing P.C.R. Case No.55 of 2002 by the prosecution against the appellant. It has been alleged in the said complaint that the appellant used to say all good words of love and express his love and passion for the complainant whenever he met with her and used to promise that he will marry her. 4. About 11 months before filing of the complaint petition, when the complainant was alone in her house, the appellant entered into her house and expressed his love and promise to marry her soon. In spite of resistant of the complainant and against her will, the appellant had made sexual intercourse with her and thus committed rape. The complainant started crying upon which the appellant asked her not to disclose the incident to anybody and he has assured that he will marry her very soon. The complainant did not disclose the fact for sometime but after 3 to 4 months, she felt pregnant and accordingly, she conveyed this fact to the appellant. Thereafter, the appellant gave her some medicine for termination of her pregnancy, but the complainant did not agree with the same and thereafter the appellant started evading her. The complainant did not disclose the fact for sometime but after 3 to 4 months, she felt pregnant and accordingly, she conveyed this fact to the appellant. Thereafter, the appellant gave her some medicine for termination of her pregnancy, but the complainant did not agree with the same and thereafter the appellant started evading her. Thereafter, she told this fact to her parents i.e. mother and father upon which panchayati has been called in which the appellant has accepted his guilt and then panchnama was prepared, in which he promised to marry with the complainant after delivery of child. Even after delivery of child, the appellant refused to marry her on 19.03.2002. Thereafter, the present complaint petition has been filed. 5. The matter was heard by the concerned court and finds the complaint maintainable. The same has been committed to the Court of Session for the offence under Section 376 of the IPC. The charge has been framed under Sections 376 and 417 of the Indian Penal Code to which appellant pleaded not guilty and claimed to be tried. 6. To substantiate the prosecution story, altogether four witnesses have been examined and two documents have been exhibited. Exhibit-1 is the panchnama and Exhibit-2 is the affidavit sworn by the appellant. After prosecution evidence, the appellant has been examined under Section 313 of the Cr.P.C. in which he merely denied the circumstances leveled against him. Upon conclusion of trial, the learned trial court has found sufficient material on record and accordingly, he has been convicted by the impugned judgment of conviction vide order dated 03.03.2006 and accordingly he has been sentenced vide order dated 03.03.2006 and the same has been impugned in the present appeal. 7. Heard learned senior counsel for the appellant and learned counsel for the State. Learned senior counsel for the appellant has referred two judgments reported in 2002 (1) JCR 259 [: 2002(1) JLJR 431 ] Sahdeo Pandit & Ors. vs State Of Jharkhand & Anr. and 2003 (4) SCC 46 Uday vs State Of Karnataka. The main argument of the appellant was that it was at best a case for the offence under Section 417 of the Indian Penal Code and the case for the offence under Section 376 is not made out as she was a consenting partner. vs State Of Jharkhand & Anr. and 2003 (4) SCC 46 Uday vs State Of Karnataka. The main argument of the appellant was that it was at best a case for the offence under Section 417 of the Indian Penal Code and the case for the offence under Section 376 is not made out as she was a consenting partner. It has been argued that she herself stated in her cross-examination during course of enquiry under Section 202 of the Cr.P.C. that she was in love with the appellant. Further, in her cross-examination at Para7, she has admitted that she herself removed her cloth and removed the stained bed sheet without disclosing it to her mother. 8. On the other hand, learned counsel for the State has supported the judgment of conviction and argument has been advanced that the complainant has clearly stated in the complaint petition as well as in her deposition that the sexual intercourse was against her will and only when she started crying, false promise of marriage has been made which has been reiterated the panchayati and in the affidavit, however, the commitment made by the appellant has not been fulfilled. Further, her pregnancy and birth of child is proof of sexual intercourse and this fact has been accepted by appellant before the panchayati as well as in his affidavit. Thus, the allegation of complainant finds corroboration and the charge stands proved beyond all reasonable doubt and finding of guilt is correct and requires no interference by the Appellate Court. 9. The points involved in the present appeal is “Whether the prosecution has able to prove the charge of Sections 376 and 417 of the Indian Penal Code beyond all reasonable doubt on the basis of evidence adduce in trial?” From perusal of record, it appears that P.W.-1 is the father of the complainant and he has reiterated the allegation as narrated by the complainant but he is a witness of panchnama wherein the appellant has confessed his guilt and has signed on the panchnama. Nothing has been elicited in the cross-examination worth consideration. P.W.2 is a Co-villager, who has participated in the panchayati. He has deposed that the appellant has accepted his guilt of having sexual relationship with the complainant which has resulted in her pregnancy. Nothing has been elicited in the cross-examination worth consideration. P.W.2 is a Co-villager, who has participated in the panchayati. He has deposed that the appellant has accepted his guilt of having sexual relationship with the complainant which has resulted in her pregnancy. Appellant has agreed to marry with the complainant after delivery of child and this has been noted down in the panchnama which has been signed by the P.W.-2 and the appellant also. In cross-examination, only suggestion has been given that there was no panahcyati and the panchnama has been prepared wrongly but the appellant was silent regarding his signature on the panchnama. 10. P.W.-3 is an advocate, who has prepared the affidavit dated 01.12.2001. He has been deposed that the said affidavit has been typed by Tarkeshwar Singh and has been explained to the appellant and after being satisfied, he has signed the same and subsequently notorized in his presence and other witnesses have also put their thumb impression. In cross-examination, he has stated that the appellant was not known to this witness and on getting notice, he has appeared for evidence. 11. P.W.-4 is the complainant herself. She has deposed that in the morning around 8 to 9 A.M., the appellant came to her house and asked about her father and mother and on her replying that they were not present in the house and she is alone, taking benefit of that the appellant committed rape upon her and when she starts weeping, he promised to marry. After two to three months, when she felt pregnancy, she informed the appellant upon which he gave her some medicine for termination of pregnancy to which the complainant did not agree. After some month, the appellant denied for marriage. Thereafter, panchayati has been held where the appellant has accepted his guilt and promised to marry her after delivery of child. The appellant has also got prepared affidavit giving the same assurance to the complainant. Even after delivery of child, he did not marry the complainant rather the appellant married with another girl. Upon that, the complaint petition has been filed. In para-5, it has been admitted that appellant was not the frequent visitor rather he has come once only. In para-7, she has deposed that rape has been committed on the bed sheet which was on the ground. Upon that, the complaint petition has been filed. In para-5, it has been admitted that appellant was not the frequent visitor rather he has come once only. In para-7, she has deposed that rape has been committed on the bed sheet which was on the ground. When the appellant left the place, the same has been removed by the complainant and the blood stain has been cleared and it has not been shown to the parents. She was undressed by the appellant. 12. From perusal of deposition of the witnesses and the contents of the affidavit, the story comes out that the prosecutrix and the appellant are the resident of same village rather neighbour to each other. The complainant also like the appellant as stated by her in question put by the court enquiry made under Section 202 of the Cr. P.C. The appellant finds the complainant alone and indulge in sexual intercourse with her. The story as put forth by the prosecution is that the intercourse was against the will of the prosecutrix and with a view to keep the matter secret, the appellant has promised for marry and on such promise, the complainant has not disclosed the said incident to anybody including her parents. Only after getting pregnant, she has reported the matter to the appellant and the appellant has tried to terminate the pregnancy by providing some medicine to which complainant has not agreed. On attaining 6 to 7 months of her pregnancy, ultimately, the matter has been reported to the parents by the complainant and thereafter, panchayati was held in which the appellant has accepted his guilt and this extra judicial confession has been proved by P.W.-1 and P.W.-2. 13. Exhibit-2 i.e. the affidavit also suggests the same fact which has been proved by P.W.-3. The appellant has not disputed by putting any question to the witness regarding his signature on Exhibits 1 and 2. Thus, there is ample evidence, which suggests that the appellant has sexually assaulted the complainant. The consent has been denied by the complainant and the conduct of the appellant to keep secrecy regarding the incident is another factor which was due to promise of marriage. 14. Learned senior counsel for the appellant has relied upon two judgments as quoted above, however, the same are not mate with the facts of the present case. The consent has been denied by the complainant and the conduct of the appellant to keep secrecy regarding the incident is another factor which was due to promise of marriage. 14. Learned senior counsel for the appellant has relied upon two judgments as quoted above, however, the same are not mate with the facts of the present case. As per the judgment reported in 2003 (4) SCC 46 , the Hon’ble Apex Court has held that indulgence into sexual activity on the false promise of marriage is not always rape. In above case both the parties were of different caste and the prosecutrix was well aware of the hurdle in the marriage and she was a college going student aged about 25 years. In the present case, the sexual activity is against the will of the prosecutrix and promise of marriage is only to keep the incident under carpet. 15. A plea has also been taken by the learned senior counsel for the appellant that the statement imputed on the appellant that he will marry the girl only after delivery of child does not appear to be a normal promise. This argument of the appellant is fallacious as much as in Muslim tradition, marriage is prohibited during pregnancy and as such the statement of the appellant is in consonance with the Muslim tradition. 16. Thus, from the above discussion, this Court finds that the prosecution is able to substantiate the charge of Section 376 of the Indian Penal Code beyond all reasonable doubt by placing sufficient evidence on record. Charge under Section 417 of the Indian Penal Code also stands proved as the prosecutrix has been duped by the appellant on getting pregnant and she gave birth to a child. In view of above discussion, this Court finds that no interference is required in the judgment of conviction and order of sentence dated 03.03.2006 passed by Shri Udai Narayan Singh, Sessions Judge, Pakur in Sessions Case No. 20 of 2005. Consequently, the appeal fails. 17. Office is directed to return the file to the trial court. 18. Court below is directed to take steps for apprehension of the accused and committing him to the prison to serve out rest of the sentence as awarded to him vide judgment of conviction and order of sentence dated 03.03.2006.