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2022 DIGILAW 694 (JHR)

Munshi Hansda v. State of Jharkhand

2022-06-20

NAVNEET KUMAR

body2022
ORDER : 1. The present appeal is directed against the judgment of conviction dated 30.06.2004 and order of sentence dated 05.07.2004 passed by the court of 3rd Additional Distt. & Sessions Judge, Dumka in Sessions Trial Nos. 347 of 2003 & 699 of 2003 whereby and where under the learned court below convicted the appellant for the offence punishable under section 376 of the Indian Penal Code and ordered to undergo R.I. for 7 years. 2. The prosecution case arose in the wake of beyan of the victim informant P.W. 6 (aged about 23 years at the time of recording fardbeyan) P.W. 6, whose statement was recorded by S.I. Shyam Lal Tudu on 23.08.2003 at Kathi Kund P.S. by 15 hours. She stated that she used to live with her parents’ house along with her husband at Bichiya Pahari. She further stated that her father-in-law is living in the village Pokhariya and she along with her husband used to go to her in-laws place off and on and they have no any child. In her beyan she alleged that on 21.08.2003, her father-in-law, P.W. 3- Chhota Bhim Hansda and appellant Munshi Hansda had gone to Kathikund hat (market) and after coming back from the hat both stayed in the house of the prosecutrix in the night. On the next day at 3.00 p.m. informant was making meal and her husband, parents and other persons had gone to field for doing agricultural work and her father-in-law, Chhota Bhim Hansda had gone outside to attend nature’s call. Meanwhile, accused Munshi Hansda closed the door from inside and finding her alone in the house and all of a sudden forcibly grounded her and committed rape on her. She raised alarm and thereafter, accused person opened the door and fled away. After some time, her father-in-law came back home and the prosecutrix narrated him about the occurrence and when her husband and parents came back home from field, prosecutrix also narrated him about the alleged occurrence. She raised alarm and thereafter, accused person opened the door and fled away. After some time, her father-in-law came back home and the prosecutrix narrated him about the occurrence and when her husband and parents came back home from field, prosecutrix also narrated him about the alleged occurrence. Thereafter, informant convened a Pancahyati, but, the accused person did not honour the decision of the Panchayati rather accused threatened them to run away from the house at the point of arrow and bow and the informant stated that the cause of delay in lodging FIR was that there was a decision in the village : POKHARIYA (village of in-laws of the informant), but, the appellant Munshi Hansda refused to abide with the decision 3. On the basis of the beyan of the victim S.I. Kathi Kund registered a case drawing up a formal F.I.R. (Kathi Kund P.S. Case No. 46/2003) against the accused Munshi Hansda U/S. 376 of IPC. After investigation, I.O. has submitted the charge sheet against the accused appellant u/s 376 of IPC. Accordingly, learned C.J.M. took up cognizance and committed the case to the Court of Sessions after supplying the police paper of the accused person and learned Sessions Judge has transferred the case in the court of 3rd Additional Distt. & Sessions Judge, Dumka. The charge was framed on 01.12.2003 under section 376 of I.P.C. against the accused person and after the conclusion of the trial the learned court below passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 4. Heard Mr. Rajeeva Sharma, the learned senior counsel appearing on behalf of appellant and Mrs. Niki Sinha, learned Spl.P.P. for the State. Arguments on behalf of the Appellant 5. Assailing the impugned judgment of conviction and order of sentence, the learned senior counsel appearing on behalf of the appellant submitted that impugned judgment of conviction and order of sentence is not sustainable in the eyes of law as the learned trial court has failed to consider the vital inconsistencies in the deposition of the witnesses including that the injury which was alleged to have been inflicted upon the victim as stated by the mother of the victim P.W. 4 is not substantiated by the medical evidence. Further, it has been pointed out that the informant victim had suppressed in her beyan that the appellant was related to the victim as her Bhaisur and further, it has also come into evidence that statement about the incident was recorded in the house of the victim on the date of the occurrence, but, surprisingly no FIR was instituted later on and the same was lodged on the next date i.e. on 23.08.2003 when the Panchayati failed. It has also been pointed out by the learned counsel appearing on behalf of the appellant that in the serious offence of rape there were no occasion for holding Panchayati and when the decision of the Panchayati was not complied by the appellant the case was instituted by the victim against the appellant. It is an admitted case of the prosecution and, therefore, the veracity and truthfulness of the charge becomes doubtful. 6. Further, it has also been contended on behalf of the appellant that the medical evidence does not corroborate at all in view of the fact that neither any injury over the body nor over the private part was found. Further, it has also been pointed out that the alleged offence of rape has been committed in the broad day light and no any witness has come forward to depose about any kind of noise or hulla or scream at the place of occurrence, therefore, a serious doubt is found in the commission of the offence and the involvement of the appellant. It has also been pointed out that the father of the victim had admitted that there were two rivalry groups in the village : one party was headed by the appellant, Bhaisur of the informant and other group is headed by P.W. 2- Subshasten Hansda, who is the husband of the victim. It has also been pointed out that the father of the victim had admitted that there were two rivalry groups in the village : one party was headed by the appellant, Bhaisur of the informant and other group is headed by P.W. 2- Subshasten Hansda, who is the husband of the victim. It has further been submitted that in the village there were 150 houses, but, not a single person had heard the hulla of the informant from the place of occurrence which is the house of the informant situated on the road and the alleged occurrence had taken place in the broad day light at 3 p.m. and all the witnesses are highly interested witnesses and the learned counsel for the appellant has also pointed out that as per the statement of P.W. 4 – Monila Murmu, who is the mother of the victim, the blood stained cloth are also seen by her, but, the police did not seized the same for any medical examination to corroborate the offence of rape upon the victim and , therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside. Arguments on behalf of the State 7. On the other hand, the learned Spl.P.P. appearing on behalf of the State stated that the P.W. 6 the victim categorically stated about the allegation of rape upon her and, there is no discrepancy in her deposition and, therefore, the learned trial court has rightly appreciated the evidence of witnesses P.W.1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 who have consistently and uniformly deposed that the appellant has committed rape with the victim P.W. 6 and, therefore, the question of inconsistencies become irrelevant and the version of the prosecutrix P.W. 6 victim cannot be discarded, therefore, there is no legal point in the appeal to interfere and it is fit to be dismissed being devoid of merit. Appraisal & Findings 8. Having heard the parties, perused the record of this case including the lower court record. 9. Appraisal & Findings 8. Having heard the parties, perused the record of this case including the lower court record. 9. In order to substantiate the charge levelled against the appellant, the prosecution has been able to examine altogether eight witness P.W. 1- Amanual Soren, P.W. 2 Subhasten Hansda, P.W. -3 Chhota Bhim Hansda, P.W.4 Monila Murmu, P.W. 5- Dubai Soren, P.W.- 6 Sunita Soren, P.W. 7 Shyam Lal Tudu, (who has investigated the case and submitted the charge sheet) P.W. 8 Dr. Aruna Chatterjee. 10. Apart from the oral evidence some documentary evidences have also been adduced including the fardbeyan Ext. 2, Formal FIR Ext. 3 and the medical examination report Ext. 4. Ext. 1 and 1/1 are the signatures of the victim and P.W. 2, Shubhasten Hansda, who is the husband of the victim. 11. P.W. 1 Amanual Soren, who is the father of the informant-victim had come to know about the incident from a child although he did not remember the name of the child, but, later on it has been disclosed by the other witnesses that the name of the child was Manewar Soren, but, he has not been examined by the prosecution for the reason best known to them. In the Examination-in-chief this witness in para 1 stated that the date of occurrence was 22.08.2003, but, surprisingly the police did not institute the case on 22.08.2003 when this witness was examined by the police on the date of occurrence itself (22.08.2003) and recorded the statement of this witness, but, the FIR was instituted on 23.08.2003 on the basis of the beyan of the victim and, therefore, the veracity of the incident becomes doubtful as to why FIR was not instituted by the police when the police recorded the statements on 22.08.2003 itself as evident from para 4 of the cross examination of this witness. This witness P.W. 1 also accepted the fact that after the incident a Panchayati was convened with respect to the incident when the appellant did not obey the decision of the Panchayati and then only the case was instituted by the victim. It is also unbelievable when the appellant is alleged to have committed the serious offence like rape with a married woman and that too by her Bhaisur (brother-in- law) then there was no occasion to hold a Panchayati. It is also unbelievable when the appellant is alleged to have committed the serious offence like rape with a married woman and that too by her Bhaisur (brother-in- law) then there was no occasion to hold a Panchayati. Meaning thereby the defense taken on behalf of the appellant that due to enmity the appellant was implicated in this false case is seemingly true inasmuch as victim herself stated clearly in her FIR that when the appellant did not obey the decision of Panchayti, then only the case was instituted, but, the victim did not disclose the decision of Panchayti in the FIR which speaks a volume against the veracity of the case. Further, this witness has also admitted the factum of enmity between the parties in para 3 of the cross examination that there are two parties in the village one party belonging to the appellant and other party belonging to the husband of the victim Subhasten Hansda and the appellant was the Pradhan of the village. This witness also accepted that the appellant was the Bhaisur (elder brother-in-law of the victim). Thus, this witness being the father of the victim has created a serious doubt upon the charge levelled against the appellant. 12. Another witness examined on behalf the prosecution is P.W. 2 Subhasten Hansda who admitted in his cross examination and examination-in-chief itself that after the incident a Panchayati was convened, but, the appellant did not turn up and then on the next day the case was instituted. This version of the prosecution that after the incident a Panchayati was convened and when the matter could not be settled in Panchayati the case was registered on the next day of incident that’s why possibility of the false implication of the appellant cannot be ruled out as there was no occasion to hold a “panchayti” when an offence of rape is alleged to have been committed by the Bhaisur (elder brother –in-law) and, therefore, the defence of the appellant that there was arch rivalry between the husband of the victim and the appellant is imminent. 13. 13. P.W. 3- Chhota Bheem Hansda was the father-in-law of the victim and he had admitted that he accompanied the appellant to the house of the victim and this witness also stated that the appellant and he had stayed at night in the house of the victim and on the next day at the relevant point of time in the afternoon he had gone towards the river and informant and accused were alone at home when he came back, the informant-victim told him about the alleged occurrence. This witness also narrated the story in examination-in-chief and also admitted the fact that a Pancayati was convened, but, the appellant did not turn up to the Panchayati and then the case was instituted. 14. P.W.4 - Monila Murmu, the mother of the victim, in her examination-in-chief stated that she had come to know about the incident from the Manewar Soren. In para 4 of the cross examination she explicitly stated that the victim was injured and little blood was also profuse and the blood was stained on her cloth also. But, the blood stained cloth was not seized by the I.O. The victim was further medically examined in Dumka. But, her version that the victim was injured and there was bleeding was substantiated by the medial examination and the medical report at all. Rather, the victim P.W.6 herself stated in her deposition that no injury was caused to her and, therefore, there is inconsistency in the version of P.W. 6 and P.W. 4 with respect to the injury alleged to has been caused to the victim by the appellant during the course of committing rape. 15. P.W. 5 Dubai Soren, came to know about the incident from the victim that rape was committed upon her. As per her deposition she is a hearsay witness. 16. P.W. 6, the victim also admitted the fact that after the incident a Panchayati was convened and she stated that the appellant did not abide with the decision of Panchayati and thereafter she went to police station and recorded her statement about the incident. As per her deposition she is a hearsay witness. 16. P.W. 6, the victim also admitted the fact that after the incident a Panchayati was convened and she stated that the appellant did not abide with the decision of Panchayati and thereafter she went to police station and recorded her statement about the incident. Her version did not fall in line with the version of her father P.W. 1 who stated in his statement recorded by the court during the course of the trial that the police had come on the same day on 22.08.2003 at the place of occurrence, but, it is found that the statement of the victim was recorded on the next day in the police station i.e. on 23.08.2003 when she went to the police station and lodged the FIR on failure of Panchayti. Therefore, the truth and veracity of the case gets convincingly doubtful because in such a serious offence there is no question of any Panchayati 17. P.W. 7, Shyam Lal Tudu, is the I.O. of this case and has proved the formal FIR which has been marked as Ext. 3 and he has submitted the charge sheet after completion of the investigation. 18. P.W. 8 Dr. Aruna Chaterjee is the doctor who had examined the victim and has given following observations: Height 5’, wt. 98 lbs teeth 14/14 Auxiliary hair scanty and black. Breast developed. Pubic hair thick and black. On external examination no mark of injury found over her body externally. On internal examination no mark of injury found over her private part. Hyman shows old ruptured. No toning hair found present over private part. Vaginal swab was taken and sent to pathology for microscopic examination of spermatozoa. Pathological report shows spermatozoa not found. Pathological report given by Dr. R.P. Verma, I/c. Pathologist, Sadar Hospital, Dumka. X rays of both knee joints, both wrist joint and both heap bones were advised and X-ray plate shown to Dr. S.N. Jha Ortohopaedic Surgeon, Sadar Hospital Dumka, who gave his opinion on 24.08.2003 as follows- X ray of both knee joints plates shows upper epiphysis of both tibia and fibula united, X ray of both wrists joints –plates show lower epiphysis of both radius and ulna united, X-ray of both hip bones crest of both thium bones united. According to above finding no definite opinion could be given whether the victim was raped or not. According to above finding no definite opinion could be given whether the victim was raped or not. As far as age is concerned according to secondary character no. of teeth and x-ray report age of the victim is above 19 (nineteen years) From the version of the doctor who medically examined the victim has found that neither any external or internal injury on person of the victim was found. This witness has also opined that there was no sign with respect to the offence of rape as to whether the victim was raped or not. In this view of the matter the defence taken on behalf of the appellant that it is a case of doubtful evidence and no definite conclusion of rape is substantiated from the testimonies of the witnesses also as discussed in the foregoing paragraphs and also not substantiated by doctor P.W. 8. 19. Recapitulating the testimonies of the witnesses examined on behalf of the prosecution it is well founded that it is the admitted case of the prosecution that the appellant along with P.W. 3 Chhota Bhim Hansda, father-in-law of the victim had gone to the residence of the victim on 21.08.2003 and they stayed in the house of the victim along with her parent and her husband at night. It has further been admitted case of the prosecution that there were two groups in the village one was headed by the appellant Munshi Hansda and another was headed by the husband of the victim namely Subhasten Hansda P.W.2. Further, it is also well established by the evidence that after the commission of the offence of alleged rape, a Panchayati was convened and when the Panchayati failed and the appellant did not abide with the decision of the Panchayat and then only the case was instituted against the appellant and that too for the serious nature of offence of rape. Further, it is also found that the case was not instituted on the date of occurrence i.e. 22.08.2003 although admittedly police had visited the place of occurrence on the alleged date of occurrence and interrogated the witnesses as evident from para 4 of the cross-examination of P.W.1 who is the father of the victim and the case was instituted after thought and Panchayati on the next date i.e. 23.08.2003 when the Panchayati, for resolving the dispute between the parties, failed when the victim came herself to police station and, therefore, the defence taken on behalf of the appellant that there was a dispute between the parties and, therefore, the possibility to resolve the dispute by the Pancahayti (which was admittedly convened after the commission of the alleged offence), cannot be ruled out inasmuch enmity between the husband of the victim and the appellant are admitted as evident from para 3 of the crossexamination of P.W. 1. Further, it is also an admitted case of the prosecution that the appellant was the Bhaisur (elder brother in law) of the victim and when the Panchayati failed and the decision of the Panchayati was not obeyed by the appellant, then the case of rape was lodged. Further, it is also found that the sole appellant being the Bhaisur (elder brother-in-law) of the victim had spent the night in the house of the victim along with P.W. 3 who was the father-in-law of the victim as both the appellant and the P.W.3 has gone collectively to the house of the victim and stayed there at night and it is alleged that on the next day the alleged offence was committed in broad day light in the said house of victim. 20. 20. Further, it is also found from categorical versions of the mother P.W. 4 when she in unequivocal words stated about the injuries which was caused to the victim in commission of rape as she stated that there was bleeding and blood stained cloths were also seized, but, neither any cloth seized was medically examined nor any injury was found by the doctor P.W. 8 upon the victim in the commission of the offence of rape vide Ext.-4 rather it was the victim P.W. 6 herself deposed that there was no injury upon her in para 4 of the cross-examination and thus the version of P.W. 4 totally gets falsified and negated by the testimonies of P.W. 6. 21. Having taken into consideration, the aforesaid materials emanating from the evidences available on record, the appellant deserves to get the benefit of doubt. Accordingly, the impugned judgment of conviction dated 30.06.2004 and order of sentence dated 05.07.2004 passed by the court of 3rd Additional Distt. & Sessions Judge, Dumka in Sessions Trial Nos. 347 of 2003 & 699 of 2003, against the appellant is set aside and this appeal is allowed. 22. Since the appellant is on bail, he is discharged from the liabilities of bail bonds. 23. Let the LCR be sent back to the learned court below along with the copy of this judgment.