Guddu Sanicharwa Maharaj @ Guddu Sharma Vs. State of Jharkhand - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the statements on record clearly show that the alleged incident took place more than a month before the fardbeyan was lodged. 8. having considered the above-mentioned facts and circumstances of the case, i find that the prosecution has failed miserably to bring home the charges against the appellant beyond reasonable doubts.orderd.p. singh, j.1. sole appellant guddu sanicharwa maharaj @ guddu sharma stands convicted on being tried for the offence punishable under sections 376 and 448 of the indian penal code and sentenced to serve rigorous imprisonment for ten years and a fine of rs. 5,000/-, and in default thereof to further undergo rigorous imprisonment for two years for the offence under section 376 of the indian penal code and one year for the offence under section 448 of the indian penal code, by the additional judicial commissioner-cum-special judge no. ii, cbi (ahd), ranchi in sessions trial no. 349 of 1996. however, both the sentences were ordered to run concurrently.2. brief facts leading to this appeal are that informant rinki kumari was inside her house when the appellant at 6.00 p.m. arrived and asked her regarding whereabouts of her mother. as soon as, she informed him that her mother had gone to fetch milk, the appellant forcible took her inside the room and committed rape upon her. the informant was further threatened by the appellant not to disclose this fact to any one otherwise her whole family would be finished. however, when her mother (pw 4) arrived at 7.00 p.m., she narrated the entire incident. the informant further stated that due to alleged threatening, they did not report the matter to police immediately.3. later on, the informant and her family members gathered courage and her statements were recorded by police on 20.3.1996 at 14.45 hours at sukhdeo nagar police station. the police registered sukhdeo nagar police station case no. 115 of 1996 under sections 376 and 448 of the indian penal code and investigated the case. the informant was sent for medical examination on 20.3.1996 itself by pw 7. the police finally submitted charge-sheet against the appellant who was charged by the trial court on 1st of august, 1997 under sections 376 and 448 of the indian penal code, to which he pleaded not guilty and claimed false prosecution. however, the learned trial court after examining the witnesses, both prosecution and defence, found and held the appellant guilty for the offence under sections 376 and 448 of the indian penal code and sentenced him as aforesaid.4. this appeal has been preferred on the grounds that the learned trial court has committed a mistake by accepting the prosecution version, which was brought before the police after more than a month. it is also submitted that the medical report does not support the allegation and in absence of supporting circumstances and evidence, the conviction of the appellant was fit to be set aside. mr. sinha, learned counsel appearing on behalf of the appellant stressed that even her parents have also not supported the prosecutrix. therefore, the impugned judgment is fit to be set aside.5. i have gone through the evidence available on the record along with the submissions made oh behalf of the appellant. the prosecution has examined altogether seven witnesses in this case out of which pw 1 has been declared hostile. pw 2/3 is the informant. pw 4 daimanti devi and pw 5 mahendra prasad verma, are parents of the informant. pw 6 is the investigating officer and pw 7 is dr. kamini burnwal, who examined the informant and found no sign of rape.6. pw 3, the informant, supported her statement before the police. she further asserted that at the time when rape was being committed, her mother, pw 4, arrived at the gate and she saw the appellant hiding himself inside the house. however, she has admitted during cross-examination that the appellant's house is situated just two houses after her house. she further admitted that she did not raise alarm after rape. according to her own admission, she did not want to go to police station because of mohalla people and lodged this case after one and half month of the incident. pw 4 is hearsay witness of the occurrence, who admitted in cross-examination vide paragraph-5 that when pw 3 informed her about the incident, she did not tell it to mohalla people nor reported the matter to police. she also admits in paragraph-8 that she saw the appellant rushing out of the house, but she did not raise any alarms. pw 5, the father of the informant, admitted in his examination-in-chief that the case was filed after a month of the incident. he further admits vide paragraph-5 that after the incident, mohalla people held a panchayati, but he cannot say what has happened. pw 6 is the investigating officer of this case, admitted in cross- examination that he was informed that this incident was occurred after ten days of shiv ratri festival and the fardbeyan was recorded after ten days of the incident. the statements on record clearly show that the alleged incident took place more than a month before the fardbeyan was lodged. the reasons provided by pw 3, pw 4 and pw 5 do not convince this court as to what prevented them to bring the information to the notice of police immediately after the occurrence or even for one month also in spite of the fact that they were moving freely.7. the learned trial court has considered these aspects in the impugned judgment. the defence witnesses have come to say that no such incident took place, however, even without the defence witnesses it has come on record that the alleged rape was committed more than a month before the first information report was lodged. incidentally, the doctor having found the victim with old rupture of hymen, no positive evidence of rape, the conduct of the prosecutrix and her parents also creates reasonable doubt in the prosecution version. if a girl is raped, mohalla people will normally come to their rescue. the father of the informant had admitted vide paragraph-5 that in spite of mohalla people holding a panchayati, he could not say what action was suggested. in such cases, where the first information report was admittedly lodged after much delay without explaining it, the reliance placed by the learned trial court on single version of the prosecutrix is not sustainable.8. having considered the above-mentioned facts and circumstances of the case, i find that the prosecution has failed miserably to bring home the charges against the appellant beyond reasonable doubts. accordingly, i find that the present appeal has got merit and deserves to be allowed.in the result, the present appeal is allowed and the judgment of the trial court convicting the appellant is hereby set aside. the appellant is acquitted from the charges levelled against him and he is discharged from the liability of his bail bond.

Judgment:
ORDER

D.P. Singh, J.

1. Sole appellant Guddu Sanicharwa Maharaj @ Guddu Sharma stands convicted on being tried for the offence punishable under Sections 376 and 448 of the Indian Penal Code and sentenced to serve rigorous imprisonment for ten years and a fine of Rs. 5,000/-, and in default thereof to further undergo rigorous imprisonment for two years for the offence under Section 376 of the Indian Penal Code and one year for the offence under Section 448 of the Indian Penal Code, by the Additional Judicial Commissioner-cum-Special Judge No. II, CBI (AHD), Ranchi in Sessions Trial No. 349 of 1996. However, both the sentences were ordered to run concurrently.

2. Brief facts leading to this appeal are that informant Rinki Kumari was inside her house when the appellant at 6.00 p.m. arrived and asked her regarding whereabouts of her mother. As soon as, she informed him that her mother had gone to fetch milk, the appellant forcible took her inside the room and committed rape upon her. The informant was further threatened by the appellant not to disclose this fact to any one otherwise her whole family would be finished. However, when her mother (PW 4) arrived at 7.00 p.m., she narrated the entire incident. The informant further stated that due to alleged threatening, they did not report the matter to police immediately.

3. Later on, the informant and her family members gathered courage and her statements were recorded by police on 20.3.1996 at 14.45 hours at Sukhdeo Nagar Police Station. The police registered Sukhdeo Nagar Police Station Case No. 115 of 1996 under Sections 376 and 448 of the Indian Penal Code and investigated the case. The informant was sent for medical examination on 20.3.1996 itself by PW 7. The police finally submitted charge-sheet against the appellant who was charged by the trial Court on 1st of August, 1997 under Sections 376 and 448 of the Indian Penal Code, to which he pleaded not guilty and claimed false prosecution. However, the learned trial Court after examining the witnesses, both prosecution and defence, found and held the appellant guilty for the offence under Sections 376 and 448 of the Indian Penal Code and sentenced him as aforesaid.

4. This appeal has been preferred on the grounds that the learned trial Court has committed a mistake by accepting the prosecution version, which was brought before the police after more than a month. It is also submitted that the medical report does not support the allegation and in absence of supporting circumstances and evidence, the conviction of the appellant was fit to be set aside. Mr. Sinha, learned Counsel appearing on behalf of the appellant stressed that even her parents have also not supported the prosecutrix. Therefore, the impugned judgment is fit to be set aside.

5. I have gone through the evidence available on the record along with the submissions made oh behalf of the appellant. The prosecution has examined altogether seven witnesses in this case out of which PW 1 has been declared hostile. PW 2/3 is the informant. PW 4 Daimanti Devi and PW 5 Mahendra Prasad Verma, are parents of the informant. PW 6 is the Investigating Officer and PW 7 is Dr. Kamini Burnwal, who examined the informant and found no sign of rape.

6. PW 3, the informant, supported her statement before the police. She further asserted that at the time when rape was being committed, her mother, PW 4, arrived at the gate and she saw the appellant hiding himself inside the house. However, she has admitted during cross-examination that the appellant's house is situated just two houses after her house. She further admitted that she did not raise alarm after rape. According to her own admission, she did not want to go to police station because of Mohalla people and lodged this case after one and half month of the incident. PW 4 is hearsay witness of the occurrence, who admitted in cross-examination vide paragraph-5 that when PW 3 informed her about the incident, she did not tell it to Mohalla people nor reported the matter to police. She also admits in paragraph-8 that she saw the appellant rushing out of the house, but she did not raise any alarms. PW 5, the father of the informant, admitted in his examination-in-chief that the case was filed after a month of the incident. He further admits vide paragraph-5 that after the incident, Mohalla people held a Panchayati, but he cannot say what has happened. PW 6 is the Investigating Officer of this case, admitted in cross- examination that he was informed that this incident was occurred after ten days of Shiv Ratri festival and the fardbeyan was recorded after ten days of the incident. The statements on record clearly show that the alleged incident took place more than a month before the fardbeyan was lodged. The reasons provided by PW 3, PW 4 and PW 5 do not convince this Court as to what prevented them to bring the information to the notice of police immediately after the occurrence or even for one month also in spite of the fact that they were moving freely.

7. The learned trial Court has considered these aspects in the impugned judgment. The defence witnesses have come to say that no such incident took place, however, even without the defence witnesses it has come on record that the alleged rape was committed more than a month before the first information report was lodged. Incidentally, the doctor having found the victim with old rupture of hymen, no positive evidence of rape, the conduct of the prosecutrix and her parents also creates reasonable doubt in the prosecution version. If a girl is raped, Mohalla people will normally come to their rescue. The father of the informant had admitted vide paragraph-5 that in spite of Mohalla people holding a Panchayati, he could not say what action was suggested. In such cases, where the first information report was admittedly lodged after much delay without explaining it, the reliance placed by the learned trial Court on single version of the prosecutrix is not sustainable.

8. Having considered the above-mentioned facts and circumstances of the case, I find that the prosecution has failed miserably to bring home the charges against the appellant beyond reasonable doubts. Accordingly, I find that the present appeal has got merit and deserves to be allowed.

In the result, the present appeal is allowed and the judgment of the trial Court convicting the appellant Is hereby set aside. The appellant is acquitted from the charges levelled against him and he is discharged from the liability of his bail bond.