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2025 DIGILAW 1719 (JHR)

Deepak Roshan v. The State of Jharkhand

2025-08-19

DEEPAK ROSHAN

body2025
JUDGMENT : Deepak Roshan, J. 1. This appeal has been preferred by the appellant for setting aside the judgment and order dated 28.09.2004 and 29.09.2004, respectively, passed by Additional Sessions Judge, Fast Track Court No. 1, Pakur in Sessions Case No. 62 of 2003 corresponding to T.R. Case No. 93/2003; whereby the appellant has been convicted under Section 376 IPC and sentenced to undergo RI for 8 (eight) years. 2. The prosecution version in a nutshell is that on 01.02.2003, the informant PW6 had lodged an FIR at Maheshpur Police Station and according to the FIR, on the night of 30.01.2003 while the prosecutrix PW6 was sleeping at her home with her one year old child, at about 11 PM, the appellant, who is her neighbour, entered her house, shut her mouth by one hand and catching hold of her hands by another and forcibly raped her and detained her for half an hour in her room. On suspicion of arrival of someone, the appellant fled from the scene. Upon alarm raised by the prosecutrix, the neighbours arrived and identified the accused at absconding stage in the light of torch. The learned Sessions Court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which are under challenge in this appeal. 3. It has been submitted by Ld. Counsel for the Appellant that as per the Doctor-PW5 who performed the medical examination of the prosecutrix had found that there was no mark of violence either over the external genitals or over her body. The Doctor was not definite whether the prosecutrix had been raped as she had not received the report of pathological examination of vaginal swab from RMCH for confirmation of spermatozoa. Besides this, he submitted that the prosecutrix did not hand over to the I.O. (PW7) her clothes which had got stained after the alleged rape although she stated that she had washed it only after 2-3 days. 4. Learned Counsel further submitted that it is out and out a false case instituted to harass and victimize the appellant due to enmity and prolonged land dispute litigation for more than 10 years between the appellant’s uncle Sitaram Mandal, brother of appellant’s father Birbal Mandal and Nimai Mandal (PW2), the husband of the prosecutrix. 5. 4. Learned Counsel further submitted that it is out and out a false case instituted to harass and victimize the appellant due to enmity and prolonged land dispute litigation for more than 10 years between the appellant’s uncle Sitaram Mandal, brother of appellant’s father Birbal Mandal and Nimai Mandal (PW2), the husband of the prosecutrix. 5. Learned counsel for the appellant contended that, as per the prosecutrix, she did not alarm or resist during the incident, as she alleged that the appellant had shut her mouth with one hand and had held her hands with the other. Notably, the appellant remained in her room for about half an hour, and she raised alarm only after he fled upon suspecting someone’s arrival. Even the child of the prosecutrix did not wake up during entire course of occurrence. On such admitted facts, it was argued that at best the incident can be termed as consensual act. The frequent visits of the appellant to her house further support this as he was engaged in sale of medicines. Counsel reiterated that no forceful commission of rape is possible for half an hour in an electric bulb-lighted room where the prosecutrix was with her one-year-old child and her mother- in-law (PW4) was sleeping in the verandah outside the place of occurrence. 6. Per contra, Mr. Tarun Kumar, learned APP, opposed the prayer for acquittal and submits that the learned Sessions Court has not committed any error in convicting the appellant. As such, he prays to dismiss the appeal. 7. Having heard learned counsel for the rival parties and after going through the documents available on records and the LCR, a discrepancy arises as to the date and time of lodging the FIR. While the records reflect an FIR registered on 01.02.2003; whereas the incident is of 30.01.2003. The PW2 (husband) admitted in para 2 of his deposition that he lodged the FIR and got the prosecutrix’s statement recorded the next day itself, i.e. on 31.01.2003. On the other hand, the PW6 (prosecutrix) stated in para 3 of her deposition that on the advice of the SP, Pakur, she went to Maheshpur P.S. on 31.01.2003, but no formal FIR was registered then. However, the materials on record indicate an FIR by PW1 and PW6 recorded in the morning of 01.02.2003. On the other hand, the PW6 (prosecutrix) stated in para 3 of her deposition that on the advice of the SP, Pakur, she went to Maheshpur P.S. on 31.01.2003, but no formal FIR was registered then. However, the materials on record indicate an FIR by PW1 and PW6 recorded in the morning of 01.02.2003. Further, on perusal of the depositions, it transpires that though PW1 and the prosecutrix PW6 had disclosed facts amounting to commission of a cognizable offence on 31.01.2003, no FIR was registered on that date despite police having knowledge of it. If the statement of PW2, as noted in para 13 of the impugned judgment, is accepted that the FIR was in fact lodged on 31.01.2003, then the alleged FIR recorded only on 01.02.2003 is nothing but a statement under Section 161 CrPC and consequently hit by Section 162 CrPC. As held in T.T. Antony v. State of Kerala, (2001) 6 SCC 181 , there can be no second FIR for the same occurrence. Any subsequent report in respect of the same incident is hit by Section 162 CrPC and any such subsequent report is to be treated merely as a statement under Section 162 CrPC, inadmissible as substantive evidence. 8. On perusal of the deposition and the other materials on record, it appears that there are certain irregularities and inconsistencies with regard to the allegations. The PW1 has firstly admitted in examination-in-chief that he had himself seen the appellant coming outside from the house of the prosecutrix, however, he has later said that he had identified him in the light of torch and that too at absconding stage. Further, PW1 in cross- examination, has admitted in para 6 of deposition that he had seen that the appellant had worn ‘ganjee’ and ‘taulia’ whereas the PW3 has clearly stated in para 7 that he had seen the appellant in ‘ganjee’ and ‘pant’. 9. Moreover, PW2 has admitted in para 5 that there was enmity and prolonged land dispute litigation between the relatives of the opposite parties; however, PW3 in para 10 and the prosecutrix PW6 in para 20 have denied that there was any litigation with the appellant. Interestingly, it appears as per ‘Exhibit A’ that in actual there has been a dispute and litigation related to land dispute wherein PW1 and PW2 were also convicted and sentenced. Interestingly, it appears as per ‘Exhibit A’ that in actual there has been a dispute and litigation related to land dispute wherein PW1 and PW2 were also convicted and sentenced. In this backdrop, it is profitable to refer the judgment of the Hon’ble Supreme Court, in the case of Santosh Prasad v. State of Bihar, (2020) 3 SCC 443 , wherein it has been held that where the testimony of the prosecutrix suffers from material inconsistencies and is not sufficiently corroborated by other evidence, the accused is entitled to benefit of doubt. Applying the said principle, this Court finds the prosecution evidence in the present case to be unreliable and unsafe for sustaining conviction. 10. So far as the medical report is concerned; the Doctor, i.e. PW5, who performed the medical examination of the prosecutrix had found that there was no mark of violence either over the external genitals or over her body. Neither any foreign hair was found from the body of the prosecutrix nor there was any external injury. On perusal of the entire evidence, the Doctor was not definite whether the prosecutrix had been raped as she had not received the report of pathological examination of vaginal swab from RMCH. At this stage, it is also pertinent to mention here that as per the prosecutrix, the appellant remained in her room for about half an hour, and she raised alarm only after he fled upon suspecting someone’s arrival. Even the child of the prosecutrix did not wake up during entire course of occurrence. This version of the prosecutrix is not believable and the Ld. Trial Court has not given any finding w.r.t. the place and manner of occurrence. It is trite law that conviction cannot be based on the sole testimony of the prosecutrix, which is inconsistent and unsupported by the medical evidence and evidence of other witnesses. On this issue, reliance is placed over the Hon’ble Supreme Court’s judgments rendered in Yerumalla Latchaiah v. State of A.P., (2006) 9 SCC 713 and Sadashiv Ramrao Hadbe v. State of Maharashtra, (2006) 10 SCC 92 . In Sadashiv Ramrao Hadbe (supra), the version given by the prosecutrix was unsupported by medical evidence and the surrounding circumstances. No injury was found on the body and the private parts of the prosecutrix. Even the Doctor who examined her was unable to give any opinion about the alleged sexual intercourse. In Sadashiv Ramrao Hadbe (supra), the version given by the prosecutrix was unsupported by medical evidence and the surrounding circumstances. No injury was found on the body and the private parts of the prosecutrix. Even the Doctor who examined her was unable to give any opinion about the alleged sexual intercourse. The Supreme Court had held that the appellant was entitled to the benefit of doubt and conviction was set aside. 11. Upon an overall consideration of the depositions of PW1, PW3, PW4, and PW6 (the prosecutrix), this Court finds material inconsistencies which render the prosecution version doubtful. Though PW1 and PW3 claimed to have seen the appellant coming out of the prosecutrix’s room upon alarm raised by her, it is noteworthy that neither of the eye witnesses made any attempt to chase or apprehend him, despite the admitted fact that he was living in the house adjacent to the place of incident- occurrence, still no attempt was made to search him out for next two days. Further, while the prosecutrix asserted that she raised alarm loudly and she narrated the incident to the gathered people, however, PW4 (mother-in-law), who was sleeping in close proximity to her room, has categorically denied, in para 6, about knowledge of incident and stated that she had neither seen the appellant nor could know about the alleged occurrence until the prosecutrix later narrated the incident to her husband PW2 upon his arrival from work after half an hour. Such circumstances, when viewed cumulatively, make the alleged occurrence appear unnatural and raise serious doubts on the veracity of the prosecution case. 12. Having regard to the aforesaid discussions, it is crystal clear that there is a variation between the version of the prosecutrix and that of the prosecution witnesses. Further, there is a delay in lodging the FIR coupled with the admitted fact of Land dispute between the parties. Even, the medical report does not support the case of the prosecution. Admittedly, the forcible manner in which the occurrence is stated to have occurred for half an hour in the backdrop of such circumstances is not believable. Further, there is a delay in lodging the FIR coupled with the admitted fact of Land dispute between the parties. Even, the medical report does not support the case of the prosecution. Admittedly, the forcible manner in which the occurrence is stated to have occurred for half an hour in the backdrop of such circumstances is not believable. Therefore, on the facts and circumstances of the case, I find that the version of the prosecutrix PW6 cannot be taken as a gospel truth at face value and in the absence of any other strongly supporting evidence, there is no scope to sustain the conviction and sentence imposed upon the appellant and he deserves the benefit of doubt. 13. Consequently, the judgment of conviction and order of sentence, both dated 28.09.2004 and 29.09.2004 respectively, passed by Additional Sessions Judge, Fast Track Court No. 1, Pakur in Sessions Case No. 62 of 2003 corresponding to T.R. Case No. 93/2003, are hereby, set aside. As a result, the instant appeal stands allowed. 14. The appellant shall be discharged from the liability of his bail bond. 15. Let a copy of this order be communicated to the Sessions Court and to the appellant through Officer-in-Charge of the concerned Police Station. 16. The Trial Court Record be sent to the Court concerned forthwith.