Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 885 (JHR)

Sani Bhagat v. State of Jharkhand

2023-07-17

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence, both dated 26.06.2004, passed by 1st Additional Sessions Judge, Gumla in Sessions Trial No. 329 of 1995; whereby the appellant was convicted for the offences punishable under Sections 366(A) and 376 of I.P.C. and sentenced to undergo R.I. for 7 years under Section 366(A) of I.P.C. and R.I. for 7 years under Section 376 of I.P.C. and fine of Rs. 2000/- in both sections and in default of payment of fine, further to undergo R.I. for both counts for one year each which will run consecutively. It was further ordered that both the sentence shall run concurrently. 3. The prosecution case in brief is that on 8th April, 1992 when the complainant Damyanti Kumari was alone and as soon as she came near Aria River, the appellant intercepted her on the way and asked her to accompany him to Assam. When the complainant refused to go with him, the appellant threatened her to kill. Thereafter, the appellant brought her forcibly to Ghaghra and from there they came to village Silafari Gumla and stayed the night there, thereafter he took her to Assam. It is further alleged that the appellant raped the victim on the false pretext of marriage. The appellant thereafter on the pretext of marriage started committing rape regularly upon her. 4. Learned counsel for the appellant submits that no case is made out under Section 366(A) of I.P.C. inasmuch as the prosecution has failed to prove the age of the victim by documentary proof or bone test. As such, since the prosecution has failed to prove that the victim was minor at the time when she went with the accused, there is no concrete evidence regarding her age, as such section 366A IPC is not attracted in the instant case. He further submits that so far as conviction under Section 376 of I.P.C. is concerned, it is the case of the prosecution that the girl was induced by the appellant for sexual relationship on the pretext of marriage and for that the victim left with the appellant for Assam for couple of years and thereafter when he refused, then the case was filed. Learned counsel further relied upon the judgment passed in the case of Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 and submits that the Hon’ble Apex Court has held in Para-21 that there is a distinction between, the mere breach of promise, and not fulfilling a false promise and submits that looking to the facts and circumstances, no case of Section 376 of I.P.C. is made out. He lastly submits that non-examination of Investigating Officer has prejudiced the case of the appellant. Neither any medical report has been produced before the learned trial court; nor any Medical Officer has been examined in this case. Relying upon the aforesaid contention, learned counsel for the appellant prays for acquittal of accused-appellant. 5. Mr. Prabhu Dayal Agrawal, learned A.P.P. for the State has opposed the prayer for acquittal and submits that no error has been committed by learned trial court. 6. Having heard learned counsel for the parties and after going through the documents available on L.C.R, it appears that, as per the prosecution case, on 8th April, 1992 when the complainant-victim was alone and as soon as she came near Aria River, the appellant intercepted her on the way and asked her to accompany him to Assam. When the complainant refused to go with him, the appellant threatened to kill her and finally the appellant forcibly took the victim to Ghagra and further they came to village Silafari Gumla and stayed there at night. It further appears that the appellant took her to Assam by bus and from there to tea garden and kept her in the house of one Prem Oraon. It is the case of the prosecution that on the false pretext of marriage the appellant forcibly raped her which continued regularly and when the victim came back to her village, she filed the case. By going through the allegation prima facie, it appears that though on the first occasion the appellant committed rape, but the victim did not lodge the F.I.R immediately and stayed with the appellant for about 2 years at Assam. Further, when the appellant refused to marry the victim, she lodged the criminal case against the appellant. This goes to show that the entire prosecution story is concocted for the reason that the boy/appellant refused to marry the complainant. In other words, the complainant appears to be non-trustworthy. Further, when the appellant refused to marry the victim, she lodged the criminal case against the appellant. This goes to show that the entire prosecution story is concocted for the reason that the boy/appellant refused to marry the complainant. In other words, the complainant appears to be non-trustworthy. In the case of Deepak Gulati (Supra), a distinction has been made between the mere breach of promise, and not fulfilling a false promise. The Hon’ble Apex Court has held that for conviction of rape the intention of the accused must be mala-fide and he should have clandestine motive. 7. In the instant case, looking to overall facts and circumstances, it is reiterated that the physical relationship between the parties developed with consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere, though she got plenty of opportunity for the same. In the instant case, there is no evidence to show that from the initial stage itself the appellant had no intention whatsoever for marrying the victim and as a matter of fact from the deposition of the victim itself, it clearly transpires that parties made physical relations on several occasions. However, the victim did not inform even to her parents. All these things falsify the allegation of Rape. Further, looking to the age of the victim and the nature of allegation and the facts of the instant case, this Court holds that the appellant is neither guilty for the offence under Section 366(A) nor he is guilty under Section 366 I.P.C. In the case of Jinish Lal Shah vs. State of Bihar, (2003) 1 SCC 605 , the Hon’ble Apex Court at Para-5 has held that accepting the statement of the prosecution witness, that the victim was less than 18 years of age is not sufficient to establish that the victim girl was less than 18 years of age. The relevant paragraph is quoted herein-below: “5. PW-10, the doctor in his evidence has stated that PW-1's x-ray photograph showed partial epiphyseal fusion of iliac crest. In her opinion, PW-1 appeared to be 17 years old which opinion of the doctor from the very language used by her shows it to be approximate. The physique of PW-1 as explained by PW-10 also indicates the probability of PW-1 being above the age of 18 years. In her opinion, PW-1 appeared to be 17 years old which opinion of the doctor from the very language used by her shows it to be approximate. The physique of PW-1 as explained by PW-10 also indicates the probability of PW-1 being above the age of 18 years. In this background if we examine the evidence of PWs. 6 and 10, it is clear that evidence of PW-1 is wholly unreliable when she states that she was only about 14 years old. Even though PW-10, the doctor, stated that PW-1 appeared to be 17 years old it cannot be held that this evidence is conclusive enough to come to the conclusion that PW-1 was really below 18 years on the date of incident, in view of positive statements made by PW-6, the father. We have already referred to the evidence of the father, according to whose evidence PW-1 was 19 years of age when she left the house of the father. In such situation, we think it not safe to come to the conclusion that PW-1 was less than 18 years of age on the date when she left the house of her father. While discussing this part of the prosecution case, the trial court in its judgment has not considered the evidence of PW-6, the father at all. It merely relied upon the evidence of PW-10 accepting the same on its face value, without discussing the other material that was available on record. Even the High Court in this regard in its judgment merely stated “the doctor who examined the prosecutrix found her age to be 17 years.....” the High Court has not independently given any finding either accepting this evidence or not. It has also not discussed the evidence of PW-6 in regard to the age of PW-1. In this background for the reasons already stated hereinabove, we think that the prosecution has failed to establish that PW-1 was less than 18 years of age as on the date of incident. If that be so, charge under Section 366-A of which the appellant was found guilty by both the courts below shall fail. The learned counsel for the State, however, contended that if the charge under Section 366-A should fail, then the appellant is liable to be convicted under Section 366 for kidnapping, abducting or inducing a woman to compel her to marry. The learned counsel for the State, however, contended that if the charge under Section 366-A should fail, then the appellant is liable to be convicted under Section 366 for kidnapping, abducting or inducing a woman to compel her to marry. He has referred to the evidence of PW-1 in this regard and contends that even though there is no specific charge under Section 366, still on the material available on record a conviction under Section 366 could be based and no prejudice would be caused to the appellant. But then, we will have to notice that even to establish the charge under Section 366 IPC, there should be acceptable evidence to show that either PW-1 was compelled to marry the appellant against her will and/or was forced to or induced to intercourse against her will. This would therefore, require the prosecution to prove that there was some such undue force on PW-1 either to marry the appellant or to have intercourse with him. Therefore, it becomes necessary for us to examine the prosecution case whether there was a threat or whether there was consent as contended by the defence. While we consider this question of existence of consent or absence of it we may also consider the charge under Section 376 IPC of which the appellant is found guilty by the courts below because one of the ingredients necessary for establishing such a charge in regard to a girl over the age of 16 is the presence or otherwise of consent. Therefore, both for the purpose of Section 366 and for the purpose of Section 376 IPC, there should be material to establish that either the alleged marriage or the intercourse has taken place without the consent of PW-1 if she is above the age of 18 years or 16 years, as the case may be.” 8. In view of the aforesaid discussions, looking to the entire facts and circumstances of this case and the nature of allegation this Court holds that the appellant is neither guilty for the offence under Section 376 or 366(A) I.P.C. It goes without saying that non-examination of the Investigating Officer in the instant case has highly prejudiced the appellant, inasmuch as, had the Investigating Officer been examined some more evidence could have come with regard to initial allegation against this appellant. Needless to say, in the instant case neither any medical report has been produced before learned trial court nor any Medical Officer has been examined. 9. Having regard to the aforesaid discussions made hereinabove, the perversity in the judgment is apparent; consequently, the judgment passed by the learned trial court requires interference. Hence, the instant appeal stands allowed. Accordingly, the judgment of conviction and order of sentence, both dated 26.06.2004 passed by 1st Additional Sessions Judge, Gumla in Sessions Trial No. 329 of 1995 is hereby, quashed and set aside. 10. The appellant shall be discharged from the liability of his bail bonds. 11. Let a copy of this order be communicated to the trial Court and the LCR be sent to the court concerned forthwith.