) Ghanshyam Mandal … … v. The State of Jharkhand
Case Details
Cr. Appeal (S.J.) No. 664 of 2012 (Against the judgment of conviction dated 07.06.2012 and order of sentence dated 12.06.2012 passed by learned District & Addl. Sessions Judge-I-cum-Special Judge, Dumka in Special Case No. 21 of 2008) Ghanshyam Mandal … …. Appellant Versus The State of Jharkhand … …. Respondent ----- P R E S E N T CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Appellant For the State
Legal Reasoning
17. After having considered the submissions advanced on behalf of both sides and the materials on record, there is much force in the argument of the appellant with regard to infirmity in the Judgment of conviction under Section 376 of IPC. It has come in evidence that the appellant and the prosecutrix were well acquainted with each other and had intimate relationship and the victim was also eager to purchase the plot, which was offered by the appellant. The victim is a major lady aged 45 years and she had gone with the appellant by her own sweet will. She has herself deposed in the cross-examination that she was in love with the accused. Her statement that she has been taken on the motorcycle under the influence of liquor in unconscious state, is hard to believe as no unconscious persons can be taken on a motorcycle without assistance of third party. From this it can be inferred that the prosecutrix had accompanied the appellant in her full sense and had gone along with him on the motorcycle. 18. In a rape case the law is settled that conviction can be returned on the solitary account of the prosecutrix and without any corroboration in material particular. However, the present case is clouded in so many improbable and suspicious 4 circumstances that it will not be safe to place full reliance on the uncorroborated testimony of the prosecutrix with regard to allegation of rape. The medico-legal examination report, completely rules out any force used against her. It is to be noted that the said examination was conducted only a day after incidence. On these materials, this Court is of the view that the appellant is entitled to benefit of doubt with regard to allegation regarding commission of rape committed by him. The judgment of conviction and order of sentence under Section 376 of the Indian Penal Code is accordingly set aside. 19. As far as the conviction under Section 307 of Indian Penal Code is concerned, there is corroborative evidence to the effect that the victim had gone along with the accused on the fateful evening and on the very next day, she was found with injuries all over her body total nine in number. The prosecutrix has clearly stated that it was the appellant who was the author of crime. Therefore, there is no room for any doubt on this account. 20. The matter for consideration is whether the appellant had requisite intention to commit offence under Section 307 of Indian Penal Code. Intention is sufficient element which is demonstrated by nature the injury inflicted, weapon used and the other attending facts of the case. In the present case, as rightly argued, out of nine injuries, eight were simple in nature and the grievous injury was inflicted in the finger of the victim. These injuries cannot be said to have been inflicted with intention to cause death. As per the prosecutrix appellant was armed with Axe, and had he intended to cause the death, nothing could have prevented him from committing the said offence as the victim was all alone with the Appellant at night in desolate place. In the absence of requisite intention to cause death, charge under section 307 IPC fails. The judgment of conviction and order of sentence under Section 307 of Indian Penal Code is set aside. However, on the evidence on record, this Court is of the view, as discussed above, Appellant is held guilty for the offence under Section 325 of Indian Penal Code. On the point of sentence, the appellant has already undergone the sentence of more than four years which will meet the ends of justice. Appeal is dismissed with modification of finding and sentence. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, the 22nd February, 2024 NAFR/ AKT/Satayendra Uploaded
Arguments
: Mr. S.P. Roy, Advocate : Mr. Santosh Kr. Shukla, APP ----- By Court : Heard the parties 1. The judgment of conviction and order of sentence passed under Sections 376 and 307 of Indian Penal Code is under challenge in the instant appeal. 2. The fardbeyan of the prosecutrix aged 45 years recorded on 13.05.2008 at 13:45 hours at Sadar hospital, Dumka is the basis of the case. 3. As per the fardbeyan, appellant Ghanshyam Mandal, who was a quack in the village, treated the patient in the rural area. In connection with his profession, he used to visit different villages and came into contact with the informant. The husband of the prosecutrix was working in Punjab and the appellant had offered to sell a land measuring 2 Kathas for a sum of Rs.50 thousand at nearby market area. On 12.05.2008 in the evening, he came to her house and told her that the documentation for sale has to be done and on that pretext, she was induced to go along with him on his motorcycle. It is alleged that at night around 9 O’clock she was taken to Fatehpur and thereafter she was offered liquor and she was also injected making her unconscious. 4. Thereafter she was taken on motorcycle, near village Dangdakatha where rape was committed with her in a desolate place and she was indiscriminately assaulted by the assailant with axe and thereafter he fled away. On the next morning, when she regained her sense, she was taken by Village Chowkidar to the police station. Considering her critical condition, she was immediately taken to hospital wherein her statement was recorded. 5. On the basis of fardbeyan Ramgarh P.S. Case No. 74 of 2008 was registered under Sections 366, 376, 420, 307 and 324 of Indian Penal Code and Section 3 (i) (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the appellant. 6. After investigation, charge sheet was submitted and cognizance was taken and the accused was put on trial. 2 7. Altogether ten witnesses were examined on behalf of the prosecution and the relevant documents including the injury report and FIR have been adduced into evidence, marked as exhibits. Statement of the accused was recorded under Section 8. 9. 313 of Cr.P.C. and the defence is of denial. Judgment of conviction and order of sentence has been assailed on the ground that part of the prosecution story has been falsified and has not been accepted by the trial court, as the accused was acquitted of the charges under Sections 366, 420 of Indian Penal Code and Section 3 (i) (x) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is submitted by learned counsel for the appellants that from the FIR as well as the deposition of the informant, who has been examined as PW2, it will be apparent that the informant who was a major lady, aged 45 years, was well acquainted with the accused. The acquaintance had developed to that extent that it is said that he had offered her to get in a piece of land measuring 2 Khatha in market area. A highly improbable case has been set up that after having been administered liquor and given injection by which she was made unconscious, she was taken to a desolate place on a motorcycle. 10. It is argued that once a person becomes unconscious, physically it is not possible that she can be taken on a motorcycle without assistance of a third party. Specific reference is made to the deposition of the prosecutrix at para 29 of the cross- examination that she had developed intimate relationship and love affairs with the appellant. The prosecution story of taking the prosecutrix for getting the land registered in the evening is not feasible as the Registry Office is not open at night. 11. There is no other direct or circumstantial evidence in support of the charge of rape. Against this background, the prosecutrix cannot be relied as the medical evidence also does not corroborate the allegation of rape. The doctor, who examined the prosecutrix on 13.05.2008, has been examined as PW7 and she has deposed that there was no sign of intercourse found. No spermatozoa were found and mark of violence over external genital was nil. This is in complete contradiction to her deposition in para 54 wherein she has stated that she had suffered injury in her private part on account of commission of rape. 12. With respect to conviction under Section 307 of Indian Penal Code, it is submitted that the oral account of prosecutrix is not supported by the injury report which has been marked as Ext.1 and proved by the doctor who has been examined as PW1. In the oral evidence, it is alleged that she has been indiscriminately assaulted by axe after administering liquor and making her unconscious by injecting some spurious substance, but eight injuries which were found on her person, were found to be 3 simple and only one injury that she sustained in her finger has been stated to be grievous in nature. Even if her testimony is believed, the accused cannot be imputed with intention to cause death, which is the main ingredient to prove the charge under Section 307 of Indian Penal Code. The victim was unconscious and the incidence took place in a lonely place. Giving that factual situation, had the accused any intention to cause death, he would have done so, as there was nothing to prevent the commission of murder. 13. The conduct of the appellant shall be evident from the fact that immediately after the incidence, when FIR was lodged, the appellant voluntary surrendered before the Court below. 14. Learned counsel for the State has defended the impugned judgment of conviction and order of sentence and submitted that out of ten prosecution witnesses, PWs. 9 and 10 are the Investigating Officers and PWs 1 and 7 are the doctors who have proved the injury report and medico-legal examination report of the victim. 15. Out of six material witnesses, testimony of the victim PW2 has been fully supported by that of PW 4 Bara Shankar Tudu and PW 8 Darban Tudu. PW 8 has stated that the victim was taken by the accused and this is an incriminating circumstance appearing against the accused which corroborates the case of the prosecution that on the said day, the victim was taken by the accused. 16. It is further submitted that the prosecutrix is an injured witness whose testimony deserves higher degree of prudence as she will not implicate a innocent person leaving aside a person who has assaulted her.