The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Cr. Appeal (SJ) No. 1412 of 2003 (Against the judgment of conviction dated 14.08.2003 and the order of sentence dated 20.08.2003, passed by the learned 3rd Additional District & Sessions Judge Godda, in Sessions Case No. 181 of 2001/ 30 of 2001) Angrej Yadav The State of Jharkhand Versus --------- ….. Appellant ….. Respondent CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the State
Legal Reasoning
--------- : Mr. Purnendu Kr. Jha, Advocate : Ms. Lily Sahay, APP 12/ 16.03.2023 -------- Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction dated 14.08.2003 and order of sentence dated 20.08.2003, passed by learned 3rd Additional Sessions Judge, Godda, in Sessions Case No. 181 of 2001/ 30 of 2001, whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for five years under Section 376/511 of the Indian Penal Code. 3. The Prosecution story in a nutshell is that on 13.04.2001 at about 10.30 P.M. when informant was sleeping on the roof of her house, the accused climbed over by means of stairs and caught hold of her with bad intention, subsequently she woke up and tried to resist him. Somehow she raised alarm by shouting chor-chor thereafter accused fled away. The next morning she went to police station along with her father-in-law and other relatives and has alleged in her fardbeyan that appellant had come in order to commit illicit intercourse with her. 4. Mr. Purnendu Kumar Jha, learned counsel for the appellant submits that the learned trial court has convicted the appellant merely on surmises and conjecture and completely ignored the evidence of the Doctor who conducted the examination of the victim lady. He further submits that even the Investigating Officer has not supported the charge of Section 376 of the IPC, inasmuch as, he himself deposed before the trial court that the victim lady herself has stated before the I.O. that no rape has been committed. As such, at best the appellant could have convicted for a lesser offence and not for 376 of the IPC. He further referred to the several paragraphs of the deposition of the victim lady as well as of the Doctor 2 which clearly indicates that there was no external injury and so far as the internal injury are concerned; the victim lady and her husband did not allow the same to the conducting Doctor (P.W.9), as such, no report could be ascertained. However, later on by order of S.P., Godda, medical examination of the victim was conducted by the Medical Board wherein after examination they found that there was no external injury on any part of her body and on internal examination there was no injury on private parts and stated that no definite opinion could be reached. However, learned counsel for the appellant could not rebut the fact of his presence at the place of occurrence. He lastly submits that since the appellant remained in custody so at least the charge of 376 may be converted into the lesser punishment and the sentence may be modified for the period already undergone. 5. Learned APP supported the judgment of the trial court and submits that there is no perversity, however, he further submits that even the conviction is under Section 376 read with 511 of the IPC i.e., attempt to rape. He further submits that the appellant could not able to dispute the fact that what he was doing at that time at place of occurrence when it was almost midnight at 11 P.M. As such, no interference is required. However, he fairly concedes on the point that as per the deposition of the Doctors who are P.W. 9 & 10, there is no injury found on the body of the victim. 6. Having heard learned counsel for the parties and after going through the LCR it appears that altogether 11 witnesses were examined: P.W. 1- father of the victim, P.W. 2 is cousin brother, P.Ws. 3 & 4 are co- villagers and P.W. 5 is cousin devar of the victim. P.W. 6 is father-in-law of the victim, P.W. 7 is the husband of the victim, whereas P.W. 8 is the victim herself and P.Ws. 9 & 10 are the Doctors and P.W. 11 is the Investigating Officer of the case. Thus, except P.Ws. 3 & 4, who are co-villagers and P.W. 9 & 10 who are Doctors and P.W. 11 (I.O.) all P.Ws. are family members. 7. At the outset, it is observed that the victim herself has refused her examination before the Doctor (P.W. 9) which the doctor has clearly deposed in her deposition and as per the deposition of the doctor, there was no external injury and since no internal examination was conducted by her, no report could have been given. However, later on by order of S.P., Godda medical examination of the victim was conducted by the Medical Board 3 wherein after examination they found that there was no external injury on any part of her body and on internal examination there was no injury on private parts and stated that no definite opinion could be reached. However, learned counsel for the appellant could not rebut the fact of his presence at the place of occurrence at 11 PM. However, by going through the deposition it becomes very difficult to hold that the appellant has actually committed rape. Looking to the entire facts it also appears that victim lady is rustic villager and she could not understand the meaning/definition of rape vis-a-vis outrages of modesty to a woman vis-a-vis to attempt of rape. It further transpires from record that though in the First Information Report the informant did not say anything about the rape, however during course of examination/deposition she stated that the appellant came there and tried to outrage her modesty for committing of rape. Admittedly, there is no report of external injury though the victim was examined by the doctor and for the reasons stated herein above, no injury report with regard to internal injury is there. It further transpires that even the appellant could not deny the fact that he was not present at the time of occurrence. 8. Learned counsel for the appellant submits that though the appellant has tried to deny his presence by showing that there is fight between both the families as both are from the same village, however, he could not dispute the fact that the victim lady has been cross examined extensively and at no point of time it was found that the appellant was not there and she was consistent in her statement that the petitioner came at about 11 PM at night. 9. Looking to the overall facts and circumstances of the case, this Court feels that the learned trial court has committed error by convicting the appellant under Section 376; rather this Court is of the view that by going through the deposition as well as documents available on record definitely appellant has committed the offence of 354 i.e., outrage the modesty of a woman and for which he should be charged. Thus, the judgment of conviction is modified to the extent that the appellant is convicted for the offence under Section 354 /511 of the IPC. Now, coming to the sentence, it appears that the appellant remained in custody for 2‰ years, as such the sentence is converted from 4 Section 376 to 354 of the IPC and as such the appellant is directed to serve the sentence 2‰ years for the charge under Section 354 of the IPC. From record it appears that appellant has already served sentence of two years and six months, as such the appellant shall be released for the period undergone. 10. With the aforesaid observation, the instant appeal stands
Decision
disposed of. 11. bond. 12. The appellant shall be discharged from the liability of his bail Let the copy of this order and the lower court record be sent to the court concerned forthwith. (Deepak Roshan, J.) Pramanik/