Dukhharan Mandal Alias Dukhu Vs. State of Jharkhand - Court Judgment

Vishnudeo Narayan, J.

1. The appellant named above has preferred this appeal against the impugned Judgment and order dated 15-12-1989 passed in Sessions Trial No. 25/11 of 1989 by Shri Jawahar Lal Choudhary, 5th Additional Sessions Judge, Dumka (Santhal Parganas) whereby and whereunder the appellant was found guilty for the offence punishable under Section 376 of the Indian Penal Code and he was convicted and sentenced to undergo R.I. for five years.

2. The prosecution case has arisen on the basis of the fardbeyan (Ext. 3) of P.W. 1, Bela Rani Nandan, the infomant and the alleged victim of this case recorded by S.I. Rabindra Kumar, O/C Raneshwar P.S., District-Dumka on 12-10-88 at 20.00 hours at Gulamdih More regarding the occurrence which is said to have taken place between 15.00 hours to 15.30 hours in her house situate in Village-Gulamdih, P.S. Raneshwar, District-Dumka. The formal F.I.R. (Ext.5) was drawn on 13-10-1988 at 2.30 hours which was received in the Court empowered to take cognizance on 13-10-1988.

3. The prosecution case, in brief, is that P.W.2, the informant was alone in her house at the time of the occurrence as her husband P.W.1, Ajay Kumar Nandan had gone to Raneshwar Khadi Bhandar at about 2 o'clock in the day to deliver cotton thread and her brother, P.W.3, Bipin Bihari Chandra was at his shop in the village. It is alleged that about 3.00 or 3.30 p.m. on that day appellant Dukhharam Mandal alias Dukhu of village-Jhormath came to the house of the informant on cycle and at that time he was wearing a white fullpant and white shirt and he stopped there and parked his cycle and asked from the informant about her husband and on being told that he had gone to Raneshwar to deliver cotton thread, the appellant asked for a glass of water from the informant to drink and in the meantime P.W.3 came there and at the instance of the informant, P.W.3 provided the appellant a glass of water and after taking water the appellant sat there. It is alleged that P.W.3 left the house of the informant for his shop after taking water and washing his face and in the meantime P.W.7, Ramdhar Kisku came there to purchase 'Bidi' and the appellant also asked for a 'Bidi' and the informant gave him a 'Bidi' from her shop in the said house and the appellant started smoking it sitting there. The prosecution case further is that thereafter the appellant went to her brinjal field in front of her house and the appellant went in the said brinjal field and dragged her inside her house and pressed her for sexual intercourse and on her protest she was forcibly felled on the ground and her mouth was stuffed with her clothes and she was also assaulted after catching hold of her neck on the resistance put by her and she was also intimidated to be done to death and thereafter the appellant forcibly ravished her. It is also alleged that after ravishment the appellant again intimidated that she along with her husband shall be done to death if she discloses the incident. It is also alleged that the informant called her brother, P.W.3, Bipin Bihari Chandra through P.W.8, Roben Kisku, a 12 years old boy who was getting her cattle grazed in the vicinity of her house and P.W.3 came there on information and he had locked the cycle of the appellant and told that the matter shall be decided after arrival of the husband of the informant and asked the said boy to inform the husband of the informant but he did not go there and in the meantime P.W. 12, Maya Chandra came there and she was also told about the occurrence and she went immediately to inform the husband of the informant and in the meantime the appellant snatched the key of the cycle from P.W.3 and fled away with the said cycle towards his village. It is also alleged that thereafter P.W.5, Madhusudan Chandra, the elder brother of the informant on getting information regarding the occurrence went to the Mukhiya of the village and on his advice he along with the informant and others were going towards to the police station for lodging the case but they met S.I. Rabindra Kumar, O/C Raneshwar P.S. at Gulamdih More where the fardbeyan of the informant was recorded on which P.W.3, Bipin Bihari Chandra, P.W.4, Ajay Chatterjee, P.W.5, Madhusudan Chandra and P.W.1, Ajay Kumar Nandan figure as witness.

4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case due to the quarrel for the demand of money between the appellant and the informant.

5. The prosecution has in all examined eighteen witnesses to substantiate its case. P.W.2, Bela Rani Nandan is the informant of this case and the alleged victim of ravishment. P.W. 1, Ajay Kumar Nandan and P.W.3, Bipin Bihari Chandra is the husband and the younger brother respectively of the informant. P.W.5, Madhusudan Chandra, P.W. 12, Maya Chandra and P.W. 13, Manika Chandra are the brother and sisters respectively of the informant but P.W. 13 has been tendered in this case. P.W.4, Ajay Chatterjee is the resident of village Dorda and on information he claims to have come to the house of the informant in the evening. P.W.6, Rabindra Nath Ghosh is the son of the Mukhiya who claims to have advised P.W.5, Madhusudan Chandra and P.W.4, Ajay Chatterjee to go to the police station on being told regarding the occurrence. P.W.8, Roben Kisku is the said 12 years old child, who was told by the informant to call her brother P.W.3. P.W.7, Ramadhar Kisku and P.W. 10, Jairam Dhakrao have been tendered. P.W.9, Nimlal Rai is a formal witness, who was deputed at the house of the informant by the I.O. P.W. 14, Shambhu Nath Mandal, P.W.15, Ravilal Mandal, who is the father of the appellant and P.W. 16, Sunil Pal, are the witnesses of the search and seizure of the white fullpant from the house of the appellant and they figure as witness on the seizure list (Ext.4/1) P.W.11, Surendra Kumar Prasad has examined the appellant on 13-8-1988 at 9 a.m. and his report in respect thereof is Ext. 2 in this case. P.W. 17, Dr. Puspalata Tudu has examined P.W. 2, the informant on 13-10-1988 at 12.00 noon and her report in respect thereof is Ext. 2/1. P.W.18, Rabindra Kumar is the investigating officer of this case and he has prepared the production-cum-seizure list of the alleged petticoat said to have contained stains of sperm delivered to him by P.W.2, the informant at the place of occurrence in course of investigation which has been witnessed by P.W.1, Ajay Kumar Nandan and P.W.3, Bipin Bihari Chandra. No oral and documentary evidence has been adduced on behalf of the defence.

5A. In view of oral and documentary evidence on the record the learned Court below came to the finding of the guilt of the appellant and convicted and sentenced him as stated above.

6. Assailing the impugned Judgment as perverse and against the weight of the evidence on the record it has been submitted by the learned counsel for the appellant that there is no iota of legal evidence at all on the record to substantiate the prosecution case which is highly improbable in the facts and circumstances of the case and the learned Court below did not at all meticulously consider the evidence on the record and has committed a manifest error in coming to the finding of the guilt of the appellant. It has further been submitted that the evidence of P.W.17, Dr. Puspalata Tudu does not at all support the factum of ravishment of the informant as alleged as she has not found any external injury on the person of the informant as well as any internal injury on the private part of P.W.2, the informant and she has not found any sperm, dead or alive, in her vaginal swab and the hymen had old rupture. It has further been submitted that the appellant was also examined by P.W. 11 Dr. Surendra Prasad Kumar who has not found any injury on the person of the appellant as well as any injury or sign on the genital of the appellant that he has indulged in sex. It has also been submitted that the I.O. has found nothing at the place of the occurrence to corroborate the prosecution case of the alleged ravishment and even the report of the chemical analyst in respect of the petticoat seized by the I.O. as per production-cum-seizure list (Ext.4) as well as white fullpant of the appellant seized as per Ext. 4/1, though sent for chemical examination has not been received and brought on the record to establish the fact that the said petticoat and the said fullpant had contained stains of semen. It has also been submitted that there is no ocular witness of any evidence to support the prosecution case regarding the ravishment of the informant as alleged and all the witnesses are hearsay witnesses in respect thereof and claim to have learnt regarding the occurrence from P.W.2, the informant. Lastly, it has been submitted that the entire prosecution case is highly improbable in view of the fact as per the evidence of P.W.2 that after the alleged ravishment of the informant the appellant came out of the house of the informant with her to her outer verandah where he remained for a considerable period with the informant and this aspect of the matter casts a cloud of suspicion to the very credibility of the warp and wool of the prosecution case and thus, the impugned judgment is unsustainable.

7. The learned A.P.P. has submitted that P.W.2, the informant in her evidence on oath has supported regarding her ravishment by the appellant inside her house and other witnesses of the prosecution though hearsay witnesses of the alleged ravishment have come to the place of the occurrence and they were told about the same and their evidence on oath supports the prosecution case regarding the occurrence as told by P.W.2, the informant. It has also been submitted that there is no reason for the informant to falsely implicate the appellant in this case and viewed thus, there is no infirmity or any illegality in the impugned judgment.

8. According to the prosecution case, the informant was alone in her house when the appellant had come there on his cycle and he stopped at the house of the informant and enquired about her husband and thereafter he had asked for a glass of water which was provided to him by P.W.3 at the instance of the informant and thereafter the appellant had also purchased a 'Bidi' from the informant and smoked it sitting there. The brother of the informant left the house of the infomant for his shop and thereafter the informant was in the brinjal field in front of her house. According to the prosecution case, the appellant dragged the informant from the said brinjal field and brought her inside her house and forcibly felled her on the ground and ravished her. P.W.2, the informant has deposed in para-2 of her testimony that the appellant dragged her from brinjal field inside her house and there had been scuffle in which black spot came to exist on his fullpant and shirt. She has further deposed that the appellant stuffed her mouth by her 'Sari' and felled her on the ground and ravished her. Her evidence is further to the effect that thereafter the appellant left her and she came to the outer verandah of her house and a boy was sent to inform P.W.3 and he came and he was told regarding the occurrence. She has further deposed that P.W.2 locked the cycle of the appellant, who forcibly snatched the key from P.W.3 and fled away with his cycle intimidating him. In para-8 of her cross-examination she has deposed that she has raised alarms when she was being dragged from the brinjal field inside her house and she was also raising alarms when she was inside her house and thereafter her mouth was stuffed by the appellant putting her 'Sari' in her mouth. She has further deposed that the appellant had lifted her petticoat and had also broken the buttons of her blouse and also assaulted her. In para-9 of her cross-examination, she has deposed that after ravishing her, the appellant put on his fullpant and came outside the house with her. She has also deposed that she came out of the house after wearing her 'Sari' and her blouse with the help of safety pin and she sat at the outer verandah where the appellant also stayed for a considerable time. She has also deposed in her cross-examination that she has not handed over her blouse to the I.O. nor she has shown to him. It is pertinent to mention here that it appears highly improbable that after ravishing the informant, the appellant will come out of her house with her and will stay at the outer verandah with her for a considerable period when as per the prosecution case he has forcibly ravished the informant by dragging her inside her house and has also assaulted her. This aspect of the matter is an unimpeachable circumstance to cast a cloud of suspicion to the very credibility of the prosecution case. Admittedly, there are several houses near the house of the informant and as per the prosecution case she has raised alarms while she was being raped but it is surprising enough that no person of vicinity of the place of the occurrence had come there. P.W.18, the I.O. in his objective finding regarding the place of occurrence has not found any dragging mark in the brinjal field to the house of P.W.2, the informant. The I.O. is also conspicuously silent regarding the finding of any mark of violence at the place where the informant is alleged to have been ravished by the appellant. Therefore, the objective finding of the I.O. does not at all corroborate the factum of ravishment of the informant as alleged inside her house as well as dragging her from the brinjal field. P.W.17, Dr. Puspalata Tudu has examined P.W.2, the informant at 12.00 noon on the following day of the occurrence. She has deposed not to have found any mark of injuries on the body of the informant. She has further deposed that on internal examination also she did not find any mark of injury on her private part. No foreign hair was also found on her private part and her hymen shows old rupture and no sperm dead or alive was also found in her vaginal swab as per microscopic examination and in view of her objective finding she has deposed that no definite opinion can be given in this case whether P.W.2 the informant has been ravished or not. P.W.1 had examined the appellant and he is conspicuously silent regarding the existence of any injury on his person though smegma was not found on his penis but he was found capable of indulging in sexual intercourse. No matting of pubic hairs has also been found in this case. It is also pertinent to mention here that, as per the prosecution case, the informant has been ravished forcibly and in such a situation there is every possibility of resistance put by the woman and in that course mark of struggle such as, bruises, scratches and tooth bite on the appellant specially on his face, hands, thigh and genitals must exist and the absence of these circumstances definitely negate the existence of ravishment. It is equally pertinent to mention here that absence of smegma is very weak type of evidence and it does not lead conclusively to the finding that the appellant had sexual intercourse with the informant, for the reasons that its absence has several causes. No report of the Expert of Forensic Science Laboratory has been brought on the record where the alleged stained petticoat of the informant and the fullpant of the appellant had been sent for their examination and in such a situation it cannot be said that the petticoat of P.W.2, the informant had the stains of semen thereon. Therefore, the circumstances emanating from the evidence of the medical witnesses read with the absence of any mark of violence on the persons of the informant clearly casts a cloud of suspicion to the very credibility of the prosecution case regarding the ravishment of the informant by the appellant in the manner as alleged. Therefore, the testimony of P.W.2, the informant in the facts and circumstances of the case is unworthy of credit and is fit to be brushed aside. The other witnesses who have taken oath in this case, are hearsay witnesses and the informant is said to have reported to them about the occurrence. Therefore, the evidence of those witnesses has no relevancy in this case, when the evidence of the informant is itself not trustworthy. And last but not the least, stay of the appellant in the outer verandah of the house of the informant for a considerable period with her even after alleged ravishment is a circumstance which totally belies the case of the prosecution regarding the ravishment of the informant. Therefore, in the facts and circumstances of the case read with the medical evidence, the allegation of ravishment does not at all stand substantiated. The learned Court below had committed error in not properly scrutinizing the evidence on the record and has gravely erred in coming to the finding of the guilt of the appellant. The defence version that the appellant has been falsely implicated in this case due to quarrel regarding money appears to be natural and probable in the facts and circumstances of the case. Viewed thus, the impugned judgment is unsustainable.

9. There is merit in this appeal and it succeeds. The appeal is hereby allowed and the impugned judgment of the learned Court below is hereby set aside. The appellant is found not guilty and he is, accordingly, acquitted and discharged from the liability of his bail bond.