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2023 DIGILAW 1048 (JHR)

Mamlat Sk. v. State of Jharkhand

2023-08-19

DEEPAK ROSHAN

body2023
JUDGMENT : Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 05.07.2004 passed by the Additional Sessions Judge-IIIrd, Rajmahal, in Sessions Case No. 251 of 1993 and Sessions Trial No. 236 of 2002; whereby the appellant was convicted under section 376 IPC and sentenced to undergo R.I. for 7 years and further imposed fine of Rs.1000/- and in default, further sentenced to undergo S.I. for 6 months. 3. The prosecution case in short is that on 28.7.1992, informant had come out for discharging soil then all of a sudden accused along with one another person caught her and wrapped her mouth with gamcha and tried to bring her towards forest but upon raising alarm, her husband and mother-in-law reached there on which accused fled away from the place of occurrence taking advantage of darkness. After 4 days of occurrence, she informed to police that accused had committed rape on her which she did not disclosed on the first occasion, when she informed police on the very next date of occurrence. 4. Mr. Jai Prakash Jha, learned senior counsel for the appellant made following submissions; (i) The first information about the incident is given by the victim on next day of incident i.e., on 29.7.1992 wherein victim has made allegation that the accused has attempted to commit rape on her however fortunately he did not succeed in committing rape. (ii) The version of the prosecutrix that in the first information to police, she could not disclose about commission of rape to save her prestige in the eye of Society and further apprehended that if she disclose the truth, her husband would desert her and would drive her out from the house appears to be concocted; as the husband of the victim in his deposition had stated that on raising alarm, he and his mother, went towards place of occurrence wherein they saw accused was fleeing away and the sari of the victim was open and there was semen stained on the petticoat of victim. From this it can be inferred that the husband and his mother was very much aware of the fact of rape because they had seen themselves. From this it can be inferred that the husband and his mother was very much aware of the fact of rape because they had seen themselves. After seeing the incident, the family of victim after discussion must have given the information to the police about the true fact of incident and in the second information, she has said that due to fear of being driven out by the husband she had not informed the police about Rape. (iii) From the deposition of PW4-father-in-law, it clearly transpires that victim has informed the attempt of rape on the night of incident itself. From this it can be inferred that second information is further development and was an afterthought. (iv) Even from the deposition of Doctor-PW-5, it appears that there was no mark of violence found on body and there was no sign of rape. (iv) Further PW-9 Deputy Director Forensic science has stated that sample of seized petticoat was sent to the laboratory for chemical examination of the semen which was found on it; however, in his cross examination he admitted that semen stained on saya was not compared with the semen of accused. Relying upon the aforesaid submissions, he prays for acquittal of the appellant. 5. Mr. Pankaj Kumar, learned P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. Further. The prosecution has considerably proved the charge of Rape; as such no lenience is required. 6. Having heard learned counsel for the parties and after going through documents available on L.C.R, it appears that the first information about the incident was given by the victim on the next day of incident i.e., on 29.7.1992, wherein victim has made allegation that the accused has attempted to commit rape on her; however, fortunately he did not succeed in committing rape. Interestingly, after about 4 days of incident she has made another written information to the police on 02.08.1992 that in the FIR, she has not stated true fact because of the fear that his husband will desert/leave her for this incident and upon insistence from all the family member that if the rape was committed by the accused then you must inform the true fact of rape to the police; she has given correct information to police in which she has said about the incident that the accused with one another person caught the victim and took her towards bushes and committed rape. This clearly shows that improvisation has been made by the victim. 7. It further, from the statement under Section 161 Cr. P.C. of mother-in-law and her husband, is evident that rape was not committed on victim and they made statement regarding appellant’s attempt to commit rape. Further, from perusal of the FIR, she could not disclose first time about commission of rape to save her prestige in the eye of Society and further apprehended that if she disclose the truth, her husband would desert her and would drive her out from the house; however the fact remains that the husband of the victim in his deposition had stated that on alarm, he and his mother went toward place of occurrence wherein they saw accused was fleeing away and the sari of the wife was open and there was semen stained on the petticoat of victim. From this it can be inferred that the husband and his mother was very much aware of the fact of incidence because they had seen themselves. Thus, the statement of the prosecutrix that due to fear of being driven out by the husband she stated incorrect fact in the FIR; though the husband and his mother has seen the incident, is improvisation on the face of it. 8. Further from the deposition of PW4 father-in-law, it clearly transpires that victim has informed the commission of incidence on the night of incident itself. From this it can be inferred that second information given by the prosecutrix is further development and an afterthought. 9. Even from the deposition of Doctor-PW-5 it appears that there was no mark of violence found on body and there was no sign of rape. As aforesaid, even in the statement under section 161 Cr. From this it can be inferred that second information given by the prosecutrix is further development and an afterthought. 9. Even from the deposition of Doctor-PW-5 it appears that there was no mark of violence found on body and there was no sign of rape. As aforesaid, even in the statement under section 161 Cr. P.C. husband of victim and as well his mother has given statement regarding attempt to commit rape only however in the deposition of husband they have said about commission of rape. By this it can be inferred they made improvisation in the story in their deposition. 10. Further PW-9, Deputy Director Forensic science has stated that sample of seized saya was sent to the laboratory for chemical examination of the semen found on Saya. However, in his cross examination he admitted that semen stained on saya was not compared with the semen of accused. 11. It is also pertinent to refer the defense version which was contended by his counsel that a criminal case being G.R. Case No. 280 of 1991 which was lodged by the brother of the accused in which cousin brother of the victim’s husband was convicted. Thus, false implication of the appellant cannot be ruled out. Having regards to the aforesaid discussion, it clearly transpires that the conviction of the accused is made on surmises and conjuncture as well as presumption. The learned trial court has failed to consider all these aspects and convicted the appellant merely on expectations. In such circumstances, the conviction of appellant for the substantive offense of rape by the trial Court deserves to be set aside and he must be acquitted for the same. 12. Consequently, the judgment of conviction and order of sentence dated 05.07.2004 passed by the Additional Sessions Judge-IIIrd, Rajmahal, in Sessions Case No. 251 of 1993 and Sessions Trial No. 236 of 2002 is set aside. As a result, the instant appeal stands allowed. 13. The appellant shall be discharged from the liability of his bail bond. 14. Let the copy of this order and the lower court record be sent to the court concerned forthwith.