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2023 DIGILAW 332 (JHR)

Nakul Mahto v. State of Jharkhand

2023-03-16

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 10.06.2003 passed by the learned Additional Sessions Judge, (Fast Track Court No.-II), Giridih in Sessions Trial No. 65 of 2002; whereby the sole appellant was convicted for the offence under section 376 IPC and sentenced to undergo R.I. for 7 years with a fine of Rs. 2000/- and in default to pay the fine, to undergo further R.I. for 1 year under section 376 IPC. 3. The prosecution case in short is that on 10.10.2001 at nearly 8 a.m. informant went to serve meal to ploughman in the field. Thereafter, she went to cut grass in arhar field. In the meantime, one unknown person came, caught hold of her and forcibly pushed her to the ground and stuffed saree in her mouth and committed rape upon her and fled away. Thereafter, informant came out and narrated the incident to Makul Mian (P.W.-10) who identified the fleeing person as Nakul Mahto. 4. Mr. Nilesh Kumar, assisted by Mr. Ayush Kumar Verma, learned counsel for the appellant made following submissions to assail the impugned judgment. (i) The appellant has been falsely implicated in this case. (ii) As per the medical report no struggle has been found, inasmuch as, no any mark of struggle found on any part of her body. (iii) Though the allegation made by the victim that she was thrashed on open field and her hands was tied forcefully and cloth stuffed in her mouth appears to be concocted, inasmuch as, no any mark of injury was caused by the act of the accused. (iv) As per the statement made by the victim that Makul Mian (P.W.10) has told him that the accused name is Nakul Mahto, however, P.W. 10 who has been alleged to be witness has been turned hostile as he did not support the case of the prosecution. He lastly submits that in spite of the fact that the victim was not knowing the appellant nor she could identify the appellant and only on the basis of P.W.10 she mentioned his name as Nakul Mahto, no any T.I.Parade was conducted in order to confirm the identity of the accused- appellant. 5. Learned Addl. He lastly submits that in spite of the fact that the victim was not knowing the appellant nor she could identify the appellant and only on the basis of P.W.10 she mentioned his name as Nakul Mahto, no any T.I.Parade was conducted in order to confirm the identity of the accused- appellant. 5. Learned Addl. P.P. opposes the prayer of the petitioner for acquittal and submits that no error has been committed by the learned trial court, as such no interference is required. However, as per the available record there is no criminal antecedent of the appellant. 6. Having heard learned counsel for the parties and after going through the several documents in the LCR and the impugned judgment it appears that on 10.10.2001 at about 8 a.m., informant went to serve meal to ploughman in the agricultural field. Thereafter, she went to cut grass in arhar field. In the meantime, one unknown person came and caught hold of her and forcibly pushed her to the ground and stuffed saree in her mouth and committed rape upon her and fled away. It further appears from the prosecution story that the informant victim came out and narrated the entire incident to one Makul Mian (P.W.10) who told her that the person who has just fled away was Nakul Mahto. At this stage it is pertinent to mention here that the victim was not knowing the name of the appellant and on the basis of information given by P.W.-10 Makul Mian, she stated the name of the appellant. However, the said P.W.10 has been declared hostile, inasmuch as, he did not support the case of prosecution and stated that he has not given name to the police that the person fleeing away in lungi and ganji was the accused Nakul Mahto. Since the victim was not knowing the name of the appellant, as such T. I. Parade was required to be conducted by the prosecution, however in the instant case no T. I. Parade has been conducted. In this regard reference be made to the judgment passed in the case of Ram Babu Versus State of Uttar Pradesh, reported in (2010) 5 SCC 63 ; wherein at paragraph 14 has been held as under:- “14. As per Section 9 of the Evidence Act, facts which establish the identity of an accused are relevant. In this regard reference be made to the judgment passed in the case of Ram Babu Versus State of Uttar Pradesh, reported in (2010) 5 SCC 63 ; wherein at paragraph 14 has been held as under:- “14. As per Section 9 of the Evidence Act, facts which establish the identity of an accused are relevant. Identification parade belongs to investigation stage and if adequate precautions are ensured, the evidence with regard to the test identification parade may be used by the court for the purpose of corroboration. The purpose of test identification parade is to test and strengthen trustworthiness of the substantive evidence of a witness in court. It is for this reason that test identification parade is held under the supervision of a Magistrate to eliminate any suspicion or unfairness and to reduce the chances of testimonial error as the Magistrate is expected to take all possible precautions.” 7. Now coming to the statement of the doctors it emerges from the record that a medical board was constituted comprising of P.W.1-Dr. Vibha Singh, P.W.-2 Dr. Kumud Roy and P.W.3-Dr. Dolly Singh. All the three doctors have categorically stated that no injury has been found on private part and no positive sign of rape was found. In this regard Hon’ble Apex Court in the case of Yerumalla Latchaiah Versus State of A.P reported in (2006) 9 SCC 713 ; wherein the medical evidence was inconsistent with evidence of prosecutrix, according to the evidence of doctor who examined prosecutrix immediately after occurrence; there was no sign of rape. Thus, evidence of prosecutrix disproved by medical evidence and accused was acquitted. The relevant para 3 is quoted herein below:- “3. In the present case, age of the victim was only eight years at the time of alleged occurrence. Immediately after the occurrence, she was examined by Dr. K.Sucheritha (P.W.7) who has stated in her evidence that no injury was found on any part of the body of the victim, much less on private part. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. Hymen was found intact and the doctor has specifically stated that there was no sign of rape at all. In the medical report, it has been stated that vaginal smears collected and examined under the microscope but no sperm detected. The evidence of the prosecutrix is belied by the medical evidence. In our view, in the facts and circumstances of the present case, the High Court was not justified in upholding the conviction.” P.W.-1 Dr. Vibha Singh in para 1 has stated that it is difficult to say whether rape has been committed or not and in para 3 she has categorically deposed that no positive sign of rape is found. P.W.-2 Dr. Kumud Roy has also stated that no positive sign of rape was found. The same version has been stated by P.W.-3 Dr. Dolly Singh who in para 3 has categorically stated that it is difficult to say whether rape has been committed or not as no positive sign of rape is found. Looking to the deposition of the doctors of the medical board it can be inferred that rape has not been committed on the victim. 8. It further transpires from record that there are contradictions on the statement of the victim with regard to place of occurrence also, inasmuch as, the I.O. (P.W.4) in para 8 has categorically stated that the victim has stated that the place of occurrence was Arhar field where she went to cut grass but at the alleged place of occurrence, no Arhar Plant was found. Grass was cut and only one damaged Arhar plant was found. He further stated in para 15 of his deposition that the victim did not disclose him that the accused stuffed cloth in her mouth and had tied her hands. This all goes to show that on the one hand the statement made by the victim before the police and the deposition made by her in the Court are substantially different. In a criminal trial the place of occurrence and the manner of occurrence plays a vital role in convicting any accused. In the instant case, by going through the deposition of the I.O, it appears that neither the place of occurrence nor the manner of occurrence has been substantiated/proved by the prosecution; rather it was a contradictory to the statement made by the victim. 9. In the instant case, by going through the deposition of the I.O, it appears that neither the place of occurrence nor the manner of occurrence has been substantiated/proved by the prosecution; rather it was a contradictory to the statement made by the victim. 9. At the cost of repetition, when the victim was not knowing the name of the appellant it was incumbent upon the prosecution to conduct a TIP but for the reason based known to the prosecution no TI Parade has been conducted. The purpose of T.I. Parade is to test and strengthen the truthfulness of a witness in court which has not been conducted in the instant case. 10. Having regard to the facts and circumstances of the case and discussions made hereinabove, the appellant deserves the benefit of doubt. Consequently, the judgment of conviction and sentence dated 10.06.2003 passed by learned trial court is, hereby, quashed and set aside. Accordingly, instant appeal stands allowed. 11. The appellant shall be discharged from the liability of his bail bonds. 12. Let a copy of this order be communicated to the courts below. 13. Let the lower court record be sent to the court concerned forthwith.