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2023 DIGILAW 723 (JHR)

Kali Pado Mahato v. State of Jharkhand

2023-05-19

DEEPAK ROSHAN

body2023
JUDGMENT : Heard learned counsel for the parties. 2. This criminal appeal is directed against the judgment of conviction and order of sentence dated 13.10.2003 & 17.10.2003, respectively passed by the learned Additional District & Sessions Judge, Fast Track Court No. IX, East Singhbhum at Jamshedpur in Sessions Trial No. 295 of 2002; whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 20,000/- for the offence under Section 315 I.P.C and in default of payment of fine, the appellant was further directed to undergo Simple Imprisonment for one year. He was further convicted and sentenced to undergo Rigorous Imprisonment for three years and to pay a fine of Rs. 5,000/- for the offence u/s 328 I.P.C. and in default of payment of fine, he was to undergo S.I. for three months. All these aforesaid sentences were ordered to run concurrently. It was further directed that out of fine, if realized, an amount of Rs. 20,000/- shall be payable to victim Sharda Mahto as compensation but no such payment shall be made to her before the period of presenting the appeal has elapsed, or, if an appeal be presented before the decision of the appeal. 3. The prosecution case in brief is that the appellant committed rape on prosecutrix Sharda Mahato and resultantly she became pregnant and when she was three/four months pregnant, then on one day she was given some medicine to terminate her pregnancy to prevent the child being born alive. It is alleged that the prosecutrix sexually exploited when she was aged 14 years. It is further alleged that the convict appellant assured her that he would marry her but later on refused. It is also alleged that the prosecutrix had to abort at the instance of convict-appellant. The father of the prosecutrix therefore lodged F.I.R. on 17.06.2002 and charge was framed under Section 376/328/315 I.P.C. 4. Mr. Manoj Tandon, learned counsel for the appellant made following submissions: (i) There is huge delay of three to four months in lodging the F.I.R., which creates a suspicion that the F.I.R. is an after-thought in order to falsely implicate this appellant. (ii) Since the appellant has been acquitted from the charge under Section 376 I.P.C., he cannot be held guilty under Section 328 and 315 I.P.C. as the main charge itself got falsified by the trial court. (ii) Since the appellant has been acquitted from the charge under Section 376 I.P.C., he cannot be held guilty under Section 328 and 315 I.P.C. as the main charge itself got falsified by the trial court. (iii) There is no evidence on record in order to prove that the appellant has poured poison and was instrumental in abortion of the child. Relying upon the aforesaid contention he submits that prosecution has miserably failed to prove the charge under Section 315 and 328 I.P.C. 5. Learned A.P.P. opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the records available in the L.C.R. it appears that there were altogether 9 witnesses examined by the prosecution to prove the charge. P.W.-1, who was the grandfather of the prosecutrix, has deposed that 7-8 months back this convict took the prosecutrix away and kept her for 7-8 days. P.W. 2 is the prosecutrix herself. She deposed inter alia that in village Pakda, the accused and two other persons, namely, Hakim Mahato and Bedni Mahato forcibly made her take some medicine and after taking medicine she became unconscious. She further deposed that her brother–in-law Jaleshwar Mahato used to come to her house frequently and that this convict was already married when she started working in his house. She further deposed that she did not inform any one when accused had sexual intercourse with her for the first time. She further deposed that this convict took her by bicycle and the distance between the two villages can be covered in two three hours. P.W.3 is the maternal grandmother of the prosecutrix. She deposed that seven eight months ago the accused brought Sharda to her house and she further deposed that she was not aware as to which hospital Sharda was taken to. P.W.4-Noren Mahato, who is the father of the prosecutrix and informant of this case, had deposed that the accused took his daughter in his absence and he came to know from some person on the following day that Kali Pado took his daughter but he deposed further that he was not recollecting as to who was that person. P.W.4-Noren Mahato, who is the father of the prosecutrix and informant of this case, had deposed that the accused took his daughter in his absence and he came to know from some person on the following day that Kali Pado took his daughter but he deposed further that he was not recollecting as to who was that person. P.W.5, who is the mother of the prosecutrix, had deposed inter alia that prosecutrix was working as a domestic help in the house of the convict Kali Pado since two or three years when she revealed about her pregnancy. P.W.6- Bishwanath Mahato, who is uncle of the prosecutrix, had deposed that Sharda was working as domestic help in the house of the accused. P.W.-7-Sunil Mahato, who is the brother of the prosecutrix, had deposed that his mother was working in Aganbari and father used to sell vegetables. P.W.8 is Dr. V.K. Choudhary, who conducted medical examination of the prosecutrix, deposed inter alia that the prosecutrix was not subjected to rape recently. In the cross-examination he further deposed that the appearance of the prosecutrix was revealing that she was matured and major and have attained the age of 18 years. P.W.9-A.S.I. R.K. Paswan, is the Investigating Officer of the case. He stated that the charge sheet was submitted under Section 376/315/328 of the I.P.C. He further deposed that prosecutrix never told that this convict forcibly raped her. He further deposed that P.W.4 Noren Mahato did not inform him that this convict took Sharda i.e., the prosecutrix to Pagda, administered medicine and caused abortion. 7. From the impugned judgment it further transpires that the learned trial court itself recorded in paragraph no. 18 that the first sexual intercourse is alleged to have taken place sometime in the month of March, 2002 and the F.I.R. was lodged in June 2002. This itself establishes that the F.I.R. was delayed. In fact, there was delay of 3-4 months. The learned court below further held in paragraph no. 20 of the impugned judgment that this convict could not be held guilty for the offence of rape for having sexual intercourse with the prosecutrix. By giving the aforesaid finding, the learned trial court acquitted the convict-appellant for the offence under Section 376 I.P.C. This categorical finding the trial court goes to show that the statement of the victim is not trustworthy. 8. By giving the aforesaid finding, the learned trial court acquitted the convict-appellant for the offence under Section 376 I.P.C. This categorical finding the trial court goes to show that the statement of the victim is not trustworthy. 8. So far as conviction of the petitioner under Section 328 I.P.C. is concerned; this section is for causing hurt by means of poison, etc. with intent to commit offence. The prosecution has not at all proved in the present case that poison was administered to the prosecutrix to commit any offence. It further transpires from the deposition of I.O. that he tried his level best to find out the place where abortion took place as neither the victim nor her father has stated anything as to where the abortion took place. The prosecution has also not proved as to what medicine was administered to the victim. All these lacunas goes to show that Section 328 I.P.C. is not at all attracted in the present case and hence the finding of the learned trial court is perverse. 9. Similarly, Section 315 I.P.C., under which the appellant has been convicted, is also not attracted in the present case for the simple reason that there is no material to prove the guilt of the appellant that this appellant did anything to prevent the child from being born alive or to cause it to die after birth. Reference in this context may be made to the deposition of the I.O. (P.W.-9), who deposed that P.W. 4 Noren Mahato did not inform him that this appellant took Sharda, the prosecutrix, to Pagda to administer medicine and cause abortion. Even the victim did not categorically depose that it was the appellant who was instrumental in abortion. This demolishes the entire prosecution story to convict the appellant under Section 315 I.P.C. In crux, it transpires that the victim herself was not trustworthy so as to rely on her vague version. 10. Having regard to the discussions made herein above, it clearly transpires that in the present case the prosecution has miserably failed to prove the charge under Sections 328 and 315 I.P.C. and hence the judgment impugned needs interference. 10. Having regard to the discussions made herein above, it clearly transpires that in the present case the prosecution has miserably failed to prove the charge under Sections 328 and 315 I.P.C. and hence the judgment impugned needs interference. Consequently, the judgment of conviction and order of sentence dated 13.10.2003 & 17.10.2003, respectively, passed by the learned Additional District & Sessions Judge, Fast Track Court No. IX, East Singhbhum at Jamshedpur in Sessions Trial No. 295 of 2002, are hereby, quashed and set aside. 11. As a result, the instant criminal appeal stands allowed. The appellant shall be discharged from the liability of his bail bond. 12. Let a copy of this order be communicated to the trial court and also to the appellant through the officer-in-charge of concerned police station. 13. Let the lower court record be sent to the court concerned forthwith.