Criminal Appeal No. 1240 of 2003 Against the judgment conviction and the order of sentence dated 13.08.2003 and 16.08.2003 respectively passed by learned Additional Sessions Judge, F.T.C.-II, Bokaro, in Sessions Trial No. 121 of 2002 (T.R. No. 01 of 2003) Raj Kumar Das .... Appellant Versus State of Jharkhand … Respondent --- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY --- For the Appellant : Mr. B. M. Tripathy, Sr. Advocate For the State : APP --- CAV On 19.05.2017 Delivered on 19.12 12.2017 Rongon Mukhopadhyay, J.
1. Heard Mr. B. M. Tripathy, learned senior counsel for the appellant and learned A.P.P. for the State.
2. This appeal is directed against the judgment of conviction and the order of sentence dated 13.08.2003 and 16.08.2003 respectively passed by learned Additional Sessions Judge, F.T.C.-II, Bokaro, in Sessions Trial No. 121 of 2002 (T.R. No. 01 of 2003), whereby and whereunder, the appellant has been convicted for the offence u/s 376 and 496 I.P.C. and sentenced to undergo R.I. for 08 years and 03 years respectively.
3. The prosecution story in brief is that the informant on the date of occurrence was in her house and in a separate room her sister-in-law was cooking food. It is alleged that the informant was alone in her room when the appellant had entered and by overpowering her had committed rape upon her. The appellant assured the informant that he will marry her and put vermilion on her forehead. It is alleged that the informant raised alarm, but the appellant managed to flee away. Later on, the informant went to the house of the appellant but the mother of the appellant removed the vermilion and the matter was reported to the Panchayat, but the proposal of the Panchayat was refused by the mother of the appellant. Based on the aforesaid allegation Marafari P.S. Case No. 38 of 2001 was instituted. Investigation resulted in submission of charge-sheet and after cognizance was taken, the case was committed to the Court of Sessions, where charge was framed u/s 376 and 496 I.P.C. and trial proceeded.
4. In course of trial 09 witnesses were examined by the prosecution. P.W. 1 Sita Devi has stated that she had heard from the people of the Mohalla that the appellant had committed rape with the informant and put vermilion on 2. her forehead. She has further stated that she had seen the informant weeping. P.W. 2 Pyari Devi has stated similar to what has been stated by P.W.
1. P.W. 3 Khutaza Khatoon has been tendered by the prosecution. P.W. 4 Yamuna Kumari is the informant and the victim who has stated that at about 10 a.m. on the date of occurrence she was in her house when the appellant had come and overpowered her and committed rape upon her. She has further stated that after commission of rape he had put vermilion on her forehead and threatened her that if she raised alarm he will kill her brother. However, this witness had raised an alarm at which her sister-in-law had come but the appellant escaped. She stated that thereafter she went to the house of the appellant where the parents of the appellant assured her that they will solemnize her marriage with the appellant. She has further stated that during Panchayat although the appellant was ready to solemnize marriage, but his father sought one week time to decide and on the next day she went to the Police Station and lodged the case. P.W. 5 Dr. Rozi Shankar stated that she had examined the victim and her age was assessed to be around 20 years. On examination no live or dead spermatozoa was found. This witness opined that there was tear of hymen, but no sign of sexual intercourse. P.W. 6 Ravi Shankar Upadhyay was the Judicial Magistrate who had recorded the statement of victim u/s 164 Cr.P.C. P.W. 7 Seema Devi @ Sheela Devi is the sister-in-law of the informant who has stated that on alarm when she rushed to the place of occurrence, she had seen the appellant fleeing away after pouring vermilion on the forehead of the victim. When she failed to catch hold of the appellant, she had called her husband. She has further deposed that the informant had disclosed that the appellant had committed rape on the assurance of marriage. In cross examination she has stated that members of the society had told the appellant to marry the victim but he refused. P.W. 8 Vishu Das is the brother of the informant who was working in Sector-XII at the time of occurrence. He was told about the incident by his wife and a meeting of Panchayat was also held, but since the matter was not settled, the F.I.R. was instituted. P.W. 9 Sindhu Paswan is the Investigating Officer who had visited the house of the informant and taken her restatement as well as described the place of occurrence. The delay in instituting the F.I.R. occurred due to attempts made to settle the issue. This witness had taken the statement of other witnesses and on finding the allegations to be true had submitted charge-sheet against the appellant.
3. 5. The appellant was examined u/s 313 Cr.P.C. in which he has denied to have taken part in the commission of the offence.
6. It has been stated by learned senior counsel for the appellant that the medical evidence belies the commission of rape. It has also been stated that the appellant had not been medically examined to substantiate the allegation of rape. Learned senior counsel further submits that P.W. 4, P.W. 7 and P.W. 8 are all related to each other and their evidence should have been discarded as being untrustworthy. It has further been stated that the family members of the informant has a habit of filing false cases to create pressure. Learned senior counsel submits that earlier also S.T. Case No. 310 of 2000 was instituted against one Madhav Das by the sister-in-law of the victim which ended in a compromise after Madhav Das was forced to transfer 12 decimals of land in favour of the sister-in-law of the victim. Learned senior counsel also submits that there has been delay in instituting the F.I.R. which has not been properly explained by the prosecution.
7. Learned A.P.P. has opposed the prayer made by the appellant.
8. The evidence of P.W. 4 and the evidence of P.W. 7 reveals that on the date of occurrence while the informant was in her room, the appellant had entered and had subjected her to rape and on an alarm being raised by the informant her sister-in-law, who was in adjacent room cooking food, had come, but in spite of their best efforts, the appellant managed to flee away. The incident according to P.W. 4 occurred instantly and she has no where stated that she had raised any cry of alarm when the accused was committing rape upon her. This version of P.W. 4 appears to have been corroborated by the evidence of her sister-in-law P.W.
7. Even if it is assumed that rape was committed and an alarm was raised by the informant, the same could have certainly been heard by P.W. 7 as according to the Investigating Officer (P.W.
9) both the rooms were adjacent each other. What prevented the informant from raising alarm when the rape was being committed could have been answered by the informant. Her version of solemnization of marriage points to the facts that either she was a consenting party to the sexual intercourse or the appellant has falsely been implicated to pressurize him to solemnize marriage with the victim. Be it noted here that the informant had repeatedly in her evidence stated about her willingness to solemnize marriage with the appellant. At this stage it would be apt to refer to the medical evidence. P.W. 5 has stated that no sign of rape was detected. She had also stated that the hymen was torn and no sign of sexual intercourse was found. The evidence of 4. the informant and the Doctor would thus suggest that the commission of rape as alleged had never taken place.
9. Apart from P.W. 4 and P.W. 7, there are no eye witnesses to the occurrence and whatever the other witnesses have stated, are based on hearsay evidence. The evidence of P.W. 4 and P.W. 7 creates a suspicion about the incident having actually taken place. The learned trial court had not properly appreciated the contradictions in the evidence of P.W. 4 and P.W. 7, as enumerated above and since the prosecution has failed to prove its case beyond all reasonable doubt, the judgment of conviction and sentence passed against the appellant cannot be sustained.
10. Accordingly in view of what has been stated above, this appeal is allowed and the impugned judgment of conviction and the order of sentence dated 13.08.2003 and 16.08.2003 respectively passed by learned Additional Sessions Judge, F.T.C.-II, Bokaro in Sessions Trial No. 121 of 2002 (T.R. No. 01 of 2003) is set aside. The appellant is discharged from the liability of his bail bond. (RONGON MUKHOPADHYAY, J.) Jharkhand High Court, Ranchi Dated the 19th December, 2017 MK/N.A.F.R.