The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 427 of 2008 --------- Dubba Mandal @ Duba Mandal , Son of late Jatnu Mandal , Resident of Village Sukruba Shni P.S. Barharwa , Distt. Sahibganj ( Jharkhand) ... Appellant -Versus- The State of Jharkhand … Respondent --------- CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD For the Appellant For the State For the Informant : Mr. Jai Prakash Pandey, Advocate : Mr.Naveen Kumar Ganjhu, A.P.P. : Mrs. Savita Kumari, Adv. --------- --------- JUDGMENT Order No. 06/Dated 19.02.2024 This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 19.03.2008 and sentence dated 27.03.2008 passed by Sri J.K.N. Tiwary, then Additional District & Sessions Judge- I, Rajmahal in Session Case No. 102 of 1996 arising out Barharwa P.S. Case No. 76 of 1994 dated 13.07.1994( G.R. Case No. 283 of 1994) by which learned Court below has convicted the appellant for the offences under section 376 and 493 of I.P.C and sentenced him to undergo R.I. for the period of seven (07) years under section 376 of the I.P.C. No separate sentence has been passed for the offence under section 493 of the I.P.C. 2. On 18.07.1994 a formal F.I.R. was lodged in the Barharwa P.S. on the written report of one Reeta Kumari daughter of late Sahdeo Mandal of village- Sukruashni P.S. Barharwa District- Sahibganj stating therein that at about 10:30 a.m. on 11.05.1990 the accused person entered into the house of the informant and caught her and stated that he intended to marry her and so he forcibly got felled her 2 on the ground and committed sexual intercourse with her to fulfill his satisfaction. At that time she was alone in the house. She also alleged that the accused-appellant thereafter started repeating such offence whenever she was found alone in her house. By this way she become pregnant and on information of this fact to the accused, the accused fraudulently induced her for abortion and thus abortion was made. Thereafter he again started committing sexual intercourse with her an assurance of marrying with her. Then the informant told her mother the entire occurrence. Her mother informed this matter before same co-villagers who asked the appellant to marry but the appellant refused to marry with her. The informant went to the police station with her mother where she was asked to
Legal Reasoning
go Court then she filed a Complaint Case No. 219 of 1993, in the Court but in absence of any action by the Court she has again filed the written report. 3. Heard learned counsel for the appellant and learned counsel for the State and the learned counsel for the Informant.
Legal Reasoning
4. Learned counsel for the appellant has submitted that the judgment of conviction and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in eye of law and the same may be set aside. It is submitted that the court below failed to consider that the F.I.R. has been lodged in the year 1994, although occurrence took place on 11/05/1990. It is submitted that the (P.W.1) i.e. the Brother is not an eye witness and he learnt the occurrence from his mother. It is submitted that (P.W.2) is a hearsay witness but he tried to support the prosecution case. It is submitted that the Court below failed to appreciate that 3 (P.W.6) i.e. the Doctor has been examined in this case, had not found any sign of rape. It is submitted that the learned Court below failed to consider that the Investigating Officer had not been examined in this case. It is submitted that the court below failed to consider that from the evidence of (P.W.3) and (P.W. 4) that prosecutrix is living peacefully with her husband having four Children. It is submitted that the appellant and the Vitim girl were consenting party and thus the occurrence can be said to have taken place with the consent of both the sides and hence conviction under sections 376 and 493 of the I.P.C is illegal, arbitrary and not sustainable in eye of law and hence and judgment and sentence passed by the learned Court below may be set- aside and the Criminal Appeal may be allowed. 5. On the other hand, learned A.P.P. and the learned counsel for the Informant have submitted that the impugned judgment and sentence passed by the learned Court below is fit and proper and no interference is required. It is submitted that the victim girl has been examined as P.W. 3 and she has fully supported the prosecution case. It is submitted that the P.W. 4 Reeta Kumari (Devi) is the mother of the victim girl and she has also supported and corroborated the prosecution case. It is submitted that P.W. 1, P.W. 2, P.W. 4 namely Dhrub Mandal , Sagar Mandal and Sagar Bewa respectively have also supported the prosecution case . It is submitted that P.W. 6 is a Doctor. It is submitted that non-examination of the Investigating Officer is not fatal to the prosecution case and single testimony of her, the prosecution evidence is sufficient to prove her case and she is victim girl and she was minor at the time of occurrence and hence Criminal Appeal may be dismissed. 4 6. Perused the Lower Court Records of this case and considered the submission of both the sides. 7. It transpires that the occurrence took place in the year on 11.05.1990 but the F.I.R. was lodged on 18.07.1994 by the victim girl i.e after delay of four (04) years and two (02) months. 8. It transpires that police, after investigation, had submitted the charge-sheet, against the appellant under section 376 and 493 of the I.P.C. on 06.10.1994 before the learned Judicial Magistrate, Sahibganj and learned Chief Judicial Magistrate, Sahibganj had taken cognizance on 14.10.1994 under section 376 and 493 of the I.P.C. against the appellant. 9. After supplying the police papers to the appellant, the charges were framed against the appellant on 07.08.2002 under section 376 and 493 of the I.P.C. and to be which he pleaded not guilty and claimed to be tried. 10. The prosecution in support of its case got examined seven (07) witnesses as follows:- (i) P.W. 1 is Dhrub Mandal, (ii) P.W. 2 is Sagar Mandal, (iii) P.W. 3 is Victim Girl ( Name not disclosed) , (iv) P.W. 4 is Sagar Bewa, (v) (vi) 11. P.W. 5 is Ramphal Mandal and P.W. 6 is Dr. Sukhda Sinha The prosecution has supported in its case has got marked the following Exhibit which are as follows:- (i) Exhibit -1 is Medicinal Report 12. Thereafter the appellant was examined under section 313 of the I.P.C. on 10.07.2006 to which he denied the circumstances put forth before him. 5 13. Neither the any defence witness was examined nor was any document marked as Exhibit on behalf of the appellant. 14. Thereafter the learned Court below has convicted the appellant for offences as mentioned above and has sentenced him to undergo R.I. for seven (07) years, hence appreciation of evidence of prosecution witness is necessary. 15. P.W. 1 is Dhrub Mandal who had stated during his evidence that occurrence took place around twelve years ago on that day he had gone to sell vegetable in the market and when he returned his house then he learnt from his mother that the appellant had established physical relationship with the victim girl on the pretext of marriage due to which she had became pregnant. Then, the panchayati had taken place and the panchayat had directed the appellant to perform marriage with the victim girl but marriage was not performed ,then the case was filed before the Police Station and the victim girl is his sister. During cross-examination he stated that victim girl had married later on in the jurisdiction of P.S. Barhi and he learnt the occurrence from his mother about the matter between the appellant and the victim girl. 16. Thus, from the scrutinizing the evidence of P.W1 it is the evident that P.W. 1 that he is the own brother of the victim girl and he had shown the ignorance last four (04) years and thus P.W. 1 is hearsay witness and his evidence is not reliable as the appellant appears to be visiting in his house regularly and he had not stated anything against him. 17. P.W. 2 is Sagar Mandal who stated during his evidence that he learnt from the mother of the victim girl 6 that the appellant had committed wrong work with the victim girl on the pretext of marriage. Thereafter a Panchayati was convened and in the meantime the victim girl become pregnant and the appellant had assured to marry with her but he did not marry. During cross-examination he stated that the victim girl had married with one Sanjay Mahato and she lives in her matrimonial home and she had got two (02) children and he also stated that he learnt about the occurrence from the mother of the victim girl and had not seen the occurrence Thus, it is evident that the P.W. 2 is hearsay witness and hence his evidence is not reliable. 18. P.W. 5 is Ramphal Mandal who has been declared hostile and had stated that he does not know about the occurrence and his statement was not recorded by the police. Thus, the evidence of P.W. 5 is not reliable. 19. P.W. 6 is Dr. Sukhda Sinha who had examined the victim girl and had found following on her person as follows:- (i) Clothes, according to her, she had changed her clothes, auxiliary hairs - present, Marks of violence on her body-Nil Pubic hair present, no foreign hairs found no seman or blood stains were found. Genitals -no marks of injures were found over external genital or thigh. Hymen old ruptured no sign of inflammation on and around hymen, no foreign hair was found. L.M.P. three days back investigation vaginal swab sent to pathology for microscopic examination for presence of spermatozoa 7 pathology report by 367 regd. No. dated 19.07.1994 – no spermatozoa either alive or dead found in microscopic examination. For age determination referred to dental O.P.D. for dental age . Dental report above 14 years, X-ray A.P. view Pelvis,-Epiphysis of iliac crest appeared but no fused. Epiphysis of ischial tuberosity appeared but not fused. So the age of girl is 16-17 years. Opinion-old raptured hymen was found but no sign of recent sexual intercourse found. (ii) History of abortion of about three (03) months pregnancy four months back but at present no features of abortion was found , victim was menstruation since last three (03) days . No injury found on external genitals or thigh . Age of the victim girl is in between 16 to 17 years and one black mole on chin and above upper lip. This injury report is in his pen and signature which is marked Exhibit 1 During cross- examination, he stated that the X-ray report is not before him. He had written in his report about abortion but that is on the statement of the victim girl. He had not find any sign of abortion spermatozoa is alive upto 48 hours to 72 hours. During cross-examination he stated that X-ray report had not proved by her and she wrote by the abortion of the victim girl on the basis of statement of the victim girl but admitted at present no feature of abortion was found. 20. Thus the evidence of the P.W. 6 shows that no injury was found on the external and genital part of the victim girl and she had assessed the age of victim girl as 8 sixteen to seventeen years. He had proved the medical report marked as Exhibit -1. 21. However P.W. 3 is the victim girl herself, at the time of the deposition recorded on 16.09.2002 she has disclosed the age of 30 years i.e. she was aged about 22 years on the date of lodging F.I.R. and around 18 years on the date of first occurrence . 22. P.W. 3 is the victim girl ( name not being disclosed ) had stated during her evidence that on the date of occurrence which took place around twelve (12) years ago , while she was alone at 10 a.m. then the appellant Dubba Mandal @ Duba Mandal entered into his house and promised to marry her and induced her to make physical relationship and he used to establish physical relationship with her on the pretext of marriage and due to which she became pregnant .When she asked him to marry then he advised her to terminate the pregnancy then he will marry her and got her abortion in the hospital and his mother had taken her for abortion. But even after abortion, the appellant had not married with her. Thereafter a Panchayati was convened but no marriage was performed then she came to police station and it was Bijay Mandal who had prepared the written application which was read to her and she put her thumb impression. Then she was sent for medical treatment and Doctor had examined her. During cross-examination, she stated that she was married with one Sanjay Mandal around six (06) years ago. She has also denied for filing one Complaint Case No. 2019 of 1993 against the appellant Dubba Mandal @ Duba Mandal and she could say her date of marriage with one Sanjay Mandal. She also stated that she alongwith her 9 mother had gone to the police station and the police had recorded her statement and statement of her mother. There are four (04) rooms in her house and Dubba Mandal @ Duba Mandal the appellant had established physical relationship with her in the middle room. She also stated that whenever she was alone then the appellant used to come to her house, whenever the appellant caught hold to her, she has raised alarm and on her alarm Dhrub Mandal P.W. 1, Sagar Mandal P.W. 2 , Ramphal Mandal P.W. 5 used to arrive there but Dubba Mandal @ Duba Mandal had fled away and they had not tried to caught hold of him . She had denied the suggestion that the appellant Dubba Mandal @ Duba Mandal had not done any wrong work with her. She also stated that the several persons namely Suresh Mandal , Bimal Hani Madal, Ram Mandal etc. came for Panchayati but the appellant Dubba Mandal @ Duba Mandal never came for Panchayati. 23. Thus, from the scrutinizing the evidence of P.W.3 it is the evident that P.W. 3 has stated about establishing the physical relationship by the Dubba Mandal @ Duba Mandal the appellant with her on the pretext of marriage and she became pregnant but she also used to raise the alarm and P.W. 1, P.W. 2 and P.W. 5 used to come to her house but they never tried to caught the appellant. Thus, the evidence of P.W. 3 does not appear to be convincing and reliable . 24. Apart from this, it would appear she was aged about 22 years on the date of lodging the F.I.R. , thus she was a major girl ,it differs and contradicts the evidence of P.W. 6 i.e. the Doctor and if the evidence of P.W. 6 in correct on the point of age and the victim girl himself 10 stated before the Court that she is aged about 30 years on the date of deposition on 16.09.2002, where the F.I.R. was lodged on 18.07.1994 i.e. she was aged about 22 years and first alleged occurrence took place on 11.05.1990 i.e. around 18 years of the date of first occurrence, if alleged occurrence took place . 25. P.W. 4 is mother of the victim girl and she had tried to support the prosecution case and stated during her evidence that the appellant Dubba Mandal @ Duba Mandal had established physical relationship with her daughter on the pretext of marriage due to which she became pregnant and her pregnancy was terminated but no marriage was done even after termination of pregnancy and Panchayat had taken place which failed and hence the police case was instituted. However during cross examination she stated that she learnt about the occurrence from her daughter and as she is giving her evidence of the instruction of his daughter and her statement was not recorded by the police. 26. Thus it is evident that the P.W. 4 i.e. mother is who is hearsay witness and she has also not stated that she had taken to the hospital for termination of her pregnancy . Thus, P.W. 4 is hearsay witness and her evidence cannot be relied upon. 27. It transpires that the I.O. of this case had not been examined. 28. It also transpires that there is no evidence the victim girl was pregnant and her pregnancy was terminated except the fact mentioned in the medical report marked as the Exhibit -1 prepared by P.W. 6 and even she has stated that she had not found any sign of pregnancy . 11 Thus the medical report does not support the prosecution case on the point of rape and termination of pregnancy. 29. It transpires that the prosecution had not filed any document in support filing of PCR case No. 29 of 1993 said to be filed by the Victim Girl against the appellant. 30. Even the victim girl during while examine as P.W. 3 during her evidence has not stated the above fact. Thus institution of PCR Case No. 122 of 1993 is also not proved against the appellant. 31. The evidence of P.W. 3 during her cross-examination at para 6 that she used to raise alarm is not convincing while she was caught by the appellant then P.W. 1, P.W. 2 and P.W. 3 namely Drub Mandal, Sagar Mandal and Ramphal Mandal respectively used to arrive at her house but the appellant Dubba mandal @ Duba Mandal used to fled away. Thus the evidence of P.W. 3 is unbelievable as because that three to four persons are not in the position to caught the appellant at the time of commission of rape or even after commission of rape. 32. In absence of any prove of documentary evidence of age of the victim girl on behalf of the prosecution this Court is of the view that the age assessed by the Doctor cannot be taken as 16-17 years because as per the oral evidence during the deposition of the victim girl was aged about above 18 years on the date of first occurrence taking place in the year 1990 and evidence of the victim girl was recorded on 16.09.2002 in which she had disclosed her age as 30 years. 12 33. It has been held in the case of Pramod Suryabhan Pawar Vs. State of Maharasthra and Another reported in (2019) 9 SCC 608 at Para 17 and 18 as follows: - of Karnataka [Uday v. State “Para-17. In Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] the complainant was a college-going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The Court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors : (SCC p. 58, para 25) “25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married.” (emphasis supplied) “Para 18:-To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a 13 “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act. 34. It is further evident that the victim girl remained silent for more than four years and institution of the F.I.R. after four years raises suspicion. 35. The act of the victim girl with the appellant appears to be case of consent for establishing physical relationship. 36. In view of law laid down by Hon’ble Supreme Court and in view of the delay of more than four (04) years in lodging the FIR, the judgment of conviction dated 19.03.2008 and sentence dated 27.03.2008 passed by Sri J.K.N. Tiwary, then Additional District & Sessions Judge-I, Rajmahal in Session Case No. 102 of 1996 arising out Barharwa P.S. Case No. 76 of 1994 ( G.R. Case No. 283 of 1994 ) are set-aside and the appellant namely Dubba Mandal @ Duba Mandal is acquitted for the offences under section 376 and 493 of the of the I.P.C. and the appellant is discharged from the liability of his bail bonds. 37. Accordingly, this Criminal Appeal (S.J.) No. 427 of 2008 is allowed. 38. Let the entire Original Lower Court Records be sent to the learned court below by the Office. Bibha/ (Sanjay Prasad, J.) 14 15