Judgment:
Pradeep Kumar, J.
1. The appeal is directed against the judgment dated 9th April, 2007 and order of sentence dated 11th April, 2007 passed by Shri Gautam Mahapatra, Special Judge, SC/ST (Prevention of Atrocity) Act, Hazaribagh in Sessions Trial No. 226/2006, by which judgment he found the appellant, Harinath Tiwary guilty under Sections 376 and 420 of the Indian Penal Code as well as under Section 3(1) (xi) (xii) of the S.C./S.T. (Prevention of Atrocity) Act and convicted the appellant on all sections. He also sentenced him to undergo R.I. for 10 years and to pay a fine of Rs. 10,000/- and in default of fine to serve out sentence of R.I. for one year under Section 376 of the Indian Penal Code. He also sentenced him to undergo R.I. for three years under Section 448 & 324 of the Indian Penal Code and sentenced him to undergo R.I. for 3 years under Sections 3(1) (xi) (xii) of the S.C./S.T. (Prevention of Atrocity) Act and also to pay a fine of Rs. 1,000/- and in default of fine to serve out sentence of R.I. for 2 months. However, all the sentenced were directed to run concurrently. No separate sentence was passed under Section 420 of the Indian Penal Code for cheating the victim girl.
2. The prosecution case was started on the basis of a complaint registered a case under Sections 376/420 of the Indian Penal Code read with Sections 3(1) (xi) (xii) of the S.C./S.T. (Prevention of Atrocity) Act. After investigation charge-sheet was submitted.
3. In her complaint petition, the complainant, Prem Lata Hembrum stated that the accused is running a Private Institution under the name and style of Lok Uthhan Kendra at Village Katkamsandi, P.S. Katkamsandi, District Hazaribagh for the purpose of helping the persons, who are mentally and physically abnormal in the local areas and nearby villages and he is also running a Private School under the said Institution after constructing one Ashram within the said village. Four years before filing of the complaint the complainant was approached by the accused and asked her to come and work in the said Lok Uthhan Kendra at village Katkamsandi on monthly salary of Rs. 2,000/-, the accused introduced himself to be the Secretary of the said Institution. The complainant being a simple tribal girl coming from Weaker Section of the Society having no other source of income joined the said Institute. On the assurance of the accused, who was Secretary of the said Institute and the complainant was deputed to do different jobs including teaching at the School and sometime to do field work to help the needy persons. She was allotted one room in the said Institute at the Ashram of Lok Uthhan Kendra. It is alleged that the accused never paid any salary to the complainant and in the month of January, 2003 at night suddenly the accused entered into her room at the Ashram and ravished the complainant and on her protest he threatened her to do away with her life. He asked her not to disclose the occurrence to anybody and stated that she will get full salary at a lump sum as well as her job will become permanent. She further alleged that on assurance he raped the complainant at several times, due to which she became pregnant and her pregnancy was aborted by Dr. Sandhya twice at the instance of the accused. It is further alleged that when she started making protest thens the accused asked her to come with all documents at Katkamsandi Ashram where the Chairman and other will be present and she will be paid full salary, but when she reached there then she found that the accused-Secretary of the Institution is present and he took all her documents and ousted her from the service without making any payment. Then, she narrated the entire story to the police, who asked her to file a complaint case.
4. After investigation the police submitted charge-sheet under Sections 376 and 420 of the Indian Penal Code read with Section 3(1) (xi) (xii) of the S.C./S.T. (Prevention of Atrocity) Act .
5. In course of trial the prosecution has examined seven witnesses. P.W.1, Premlata Hemborom, is the complainant, P.W.2 is Arvind Kumar Sinha, P.W.3 is Manoj Kumar Agrawal, P.W.4 Surya Bhushan Ojha is Judicial Magistrate, P.W.5 is Dr. Priti Rani, P.W.6, Upendra Kumar is Investigating Officer of the case and P.W.7 is Mobarak Hussain.
6. The learned trial court after considering the evidences on record found the appellant guilty as aforesaid and convicted him.
7. It is submitted by the learned Counsel for the appellant that the prosecution case is based mainly on the evidences of P.W.1 and P.W.4, who recorded her statement under Section 164 Cr. P.C. and from both the evidences, it will appear that she has given contradictory statement and as such her statement is not reliable. In her complaint petition, she stated that for the first time rape was committed in January, 2003, but in her statement under Section 164 Cr. P. C. she stated that she was aborted on 5.2.2002, so her statement is not reliable and hence the finding of conviction of sentence is bad in law and fit to be set aside. Learned Counsel further submitted that there is no evidence that the complainant-victim girl is a tribal lady to attract Section 3(1) (xi) (xii) of the S.C./S.T. (Prevention of Atrocity) Act
8. On the other hand, learned Counsel for the State has opposed the prayer and submitted that the statement of the victim girl in her complaint as also in her statement under Section 164 Cr. P. C. and the evidence in Court, are all corroborative and there is no contradiction and hence the appellant has rightly been convicted
9. After hearing both the parties and going through the evidences, I find that the prosecution has examined 7 witnesses. P.W.1, Premlata Hembrum, is the complainant-victim girl, P.W.2 is Arvind Kumar Sinha, who was declared hostile, P.W.3 is Manoj Kumar Agrawal, who was also declared hostile, P.W.4 Surya Bhushan Ojha is Judicial Magistrate, 1st Class, who recorded the statement of the victim girl under Section 164 Cr.P.C., P.W.5 is Dr. Priti Rani, she proved the medical report of the victim girl as Ext. - 3, P.W.6, Upendra Kumar is the Investigating Officer of the case and P.W.7, who was also declared hostile.
10. Thus, leaving the hostile witnesses the rest on the evidence of P.W.1, P.W.4, P.W.5.P.W.6 all have supported the prosecution case.
11. The complainant-victim girl ( P.W.1) stated in Court that she is a Santhal and by religion she is a Christian, but occurrence took place in 2001 to 2005. In 2001 the accused had taken her from Hazaribagh to Katkamsandi where she started working in Lok Uthhan Kendra, was run by accused, Harinath Tiwary. He said that she will get Rs. 2,000/- per month, but nothing was paid but only food and cloth was being given to her. She further stated that she was living in one of the rooms of Ashram of Lok Uthhan Kendra at Katkamsandi, the accused, Harinath Tiwary also used to live there and in the said Ashram every night he used to have forceful sex with her. He used to give her anti pregnancy tablet (Mala D), but she became pregnant then she was aborted at the instance of the accused Harinath Tiwary by Dr. Sandhya at her Nursing Home. Then, she reported the matter to her mother at Hazaribagh, who asked her to leave the service, but subsequently the accused came to her mother's house and after assaulting her again took her to Katkamsandi, and told her mother that if she will object he will file police case against her, subsequently, Panchyati was held and she had reported the matter to the police, but at the instance of the accused the matter was again closed then she again come to her mother's house at Mission School, Hazaribagh, but again the accused came with many people including a lady and after giving threats to her mother he again took her to Katkamsandi. Lastly she filed this case when he refused to make any payment to her and also ousted from her service. She proved her signature on F.I.R. as Ext.-1, she stated the occurrence to the Lawyer, who made the complaint and read over the same then she put her signature. She further stated that she had also given her statement under Section 164 Cr. P.C. to the Magistrate. She also her proved signature as Ext. 2 under Section 164 Cr. P.C. statement. She identified the accused in Court.
In para 10, in her cross-examination, she stated that on 2.12.2004 she had filed a complaint to the police by getting the same written by somebody else, but she had signed the same. She also stated that on 2.11.2004 she had singed on the compromise, which was marked as Ext-A. She further stated that Ext.- A was written in Ashram at the instance of the accused under his threat she had made this complaint to the police, but no action was taken by the police.
In para 15 ,in her cross examination, she stated that for the first time the accused Harinath Tiwary in the year 2001 asked her to work in his Institution.
In para 16, in her cross-examination, she stated that she is educated till Class-VIII and she left her education in 1996 after the death of her father.
In para 19, in her cross-examination, she stated that for the first time, she was raped one month after she joined the said Institution. She had joined the Institution in June or July, 2001. She further stated that out of fear she had not made any complain to anybody.In para 24, in her cross-examination, she stated that she had not objected to the abortion made by Dr. Sandhya at her clinic.
In para 31, in her cross-examination, she stated that she does not know to read and write English language, the complaint petition which was filed in Court is in English language.
P.W.4 Surya Bhushan Ojha is Judicial Magistrate, 1st Class, has proved the statement under Section 164 Cr. P. C. as Ext.- 2/1. The statement was read over to the victim girl. He identified the signature of Court's Clerk as Ext. 2/2.
In her statement under Section 164 Cr. P. C. as Ext. - 2/1 she stated that four years back she was staying with her mother at Mission School, Hazaribagh and she was earning by doing work of maid servant in different houses. At that time, the accused, Harinath Tiwary, who was Secretary of Lok Uthhan Kendra at Katkamsandi came to her and said that he requires a girl to work at Lok Uthhan Kendra at Katkamsandi then, she went to his Institution at Katkamsandi Ashram then, the accused, Harinath Tiwary committed rape upon her. Then, she informed about the occurrence to her mother, who advised her to leave the job, but she again went to work at Lok Uthhan Kendra at Katkamsandi where the accused assaulted her and said as to why she goes to Hazaribagh. The accused used to live alone at Lok Uthhan Kendra at Katkamsandi and used to commit rape upon her by force and she became pregnant. Then, in 5.2.2002 she was aborted in the clinic of Dr. Sandhya at Hazaribagh. Whenever she used to come to Hazaribagh to live with her mother he used to come with people and by giving threats used to take her to Lok Uthhan Kendra at Katkamsandi. Although, he made promise to pay Rs. 2,000/-, but he never gave any money and in 2005 she was ousted from his Institution. When she came to Hazaribagh he again come to Hazaribagh and after assaulting and rebuking her made attempt to take her at Lok Uthhan Kendra at Katkamsandi, but she refused then she filed this case.
12. The statement of P.W.1 is further corroborated by the evidence of P.W.5, Dr. Dr. Priti Rani, who found the victim girl was aged about 19- 20 years on the date of examination i.e. on 17.9.2005 and also found sign of previous pregnancy and found her used to sex. She proved the medical report as Ext.-3, P.W. 6, Upendra Kumar is the Investigating Officer of the case also corroborated the prosecution version and stated that on 14.9.2005 he was posted as Dy.S.P., Hazaribagh and he investigated the case. After registering the same as Katkamsandi P. S. Case No. 145/2005, who proved the formal F.I.R. as Ext. 4. He went to the Katkamsandi Institute named as Lok Uthhan Kendra. He recorded the statement of the witnesses and after getting supervision of superior officer and the medical report of the victim girl he submitted charge-sheet in the case. The case was supervised by the S.P., Hazaribagh. He further stated that the hostile witness ( P. W.2), Arvind Kumar Sinha stated that in between 2001 to 2005 the complainant used to work in the Institution named as Lok Uthhan Kendra and she also used to live in the said Institution along with accused, Harinath Tiwary. He had also stated that the complainant had made allegation of sexual exploitation by the accused.
In para 10 he further stated that the hostile witness ( P. W.3), Manoj Kumar Agrawal had also stated before him that the complainant used to work in the Institution named as Lok Uthhan Kendra and he had been working since 2001 to 2005. He also admitted that the complainant had alleged that the accused exploited her sexually and made no payment also. He also stated that the complainant became pregnant and she was aborted by the accused.
13. Thus, after going through the prosecution witnesses, I find that the victim girl, who stated, in her evidence, that she is a triable santhal girl following the Christian religion became orphan. After death of her father she left her education at Class-VIIIth and started working as made servant at Hazaribagh and started living with her mother at Mission School at Hazaribagh. When in 2001 the accused came to her and asked to her work in his Institution at Katkamsandi named as Lok Uthhan Kendra and promise her to pay Rs. 2,000/-. Since she had no proper job she joined the said Institute little knowing that the accused, Harinath Tiwary, who was the Secretary of the said Institution named as Lok Uthhan Kendra.is doing the work of Lok Sexual exploitation. It is a shame that in a service institution the victim was repeatedly raped without giving any salary and since she was helpless triable girl having no father to look after and protect her on the promise of the accused that her job will become permanent, she continued to serve the Lok Uthhan Kendra inspite of repeated torture, abuse and assault.
14. In my opinion, the version of the victim girl given under Section 164 Cr.P.C. and that given in the Court while being examined as P.W. 1, has fully been corroborated by the evidence of Doctor and Investigating Officer ( P.Ws. 4 & 5) and he has rightly been convicted by the trial court. The appellant's counsel has stated that there is some contradiction with regard to the date of first rape given by the complainant in her complaint petition and that given in Court, but i.e. not vital in view of the statement of the victim girl given in her cross-examination at para 31 wherein she stated that she does not know English language and the complaint was typed in English and nobody read her verbatim in Hindi language. The main corroboration is to be seen with regard to her statement given under Section 164 Cr. P. C. and that given in Court and in both the statements there is no contradiction. Hence, in my opinion , the prosecution has proved the charges beyond all reasonable doubts. It is unfortunate, that a poor Advasi lady has been duped by an intelligent man, who runs institution in the name of Lok Uthhan Kendra of disabled persons, but the commit such offence.
15. The Hon'ble Supreme Court in the case of Bodhisattwa Gautam..Petitoiner v. Subhra Chakraborty (Ms) reported in : AIR1996SC922 , it has been stated rape is thus not only a crime against the person of a woman( victim), it is crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crises. It is only by her sheer will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt.. Rape is, therefore, the most hated crime. It has also been stated that accused, who was a Professor has exploited his students sexually on the false promise of marriage and another, who was Secretary of an Institution has exploited a tribal lady on the promise of giving her a permanent job.
16. The finding of conviction and sentence are well founded and upheld. Accordingly, I find no merit in this appeal and the same is dismissed.
17. The appellant is in custody he will undergo the sentences passed against him.