The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 1011 of 2012 [Against the judgment of conviction and order of sentence dated 28.09.2012 passed by learned Additional Sessions Judge-IV, Dhanbad in Sessions Trial No.36 of 2009] Manoj Kumar Mahto --Versus-- The State of Jharkhand .... .... …. Appellant …. …. …. Respondent For the Appellant : Ms. Jasvindar Kaur Mazumdar, Advocate For the State
Legal Reasoning
It is settled law that in an offence involving sexual assault, minor delay in institution of FIR is not fatal to the prosecution case. Further, if the testimony of the prosecutrix is cogent, reliable and trustworthy, the judgment of conviction and sentence can be found on her solitary account. However, on reading the prosecution evidence as a whole, there are yawning gap in the prosecution case, which casts cloud on the veracity of the prosecution witness. To begin with, there is delay of five days in lodging the FIR, but it is attributed to the Panchayti which is said to be held in the village. However, any further detail regarding Panchayti has been withheld. It is not mentioned who took part in the Panchayti and none of the witness to the Panchayti has been examined on behalf of the prosecution. The prosecutrix herself stated that she 3 was not present at the time of Panchayti. In the absence of any evidence of Panchayati, delay in institution of the Case remains unexplained. 11. Regarding the manner of incidence, victim (PW-3) has deposed that the accused caught hold of her, while she was on way from the Railway Station to the house of her maternal uncle, and then flung her on the ground and attempted to ravish her. This was done on the point of a needle. However, other witnesses have not stated that she had been thrown on the ground in an attempt to ravish her. 12. P.W. 4, P.W. 5, P.W.6 and P.W.7 are not eye witnesses to the incidence. PW1 and PW 2 who claim to be direct eye witnesses, have given altogether different version of the incidence. They have not stated that the victim had been thrown on ground in an attempt to commit rape. PW-1 states that the accused punctured his own finger with needle, and was attempting to apply blood as Teeka to the victim. PW-2 has also testified on the same line, and has added that in the ensuing scuffle victim fell down on the ground. Testimony of the victim that she was thrown on the ground in attempt to commit rape, has thus not been corroborated by the witnesses. In view of the unexplained delay in the F.I.R, contradiction in the deposition of witnesses regarding the manner, it will not be safe to fully rely on the uncorroborated testimony of the victim girl. Outraging the modesty of a women is the essence of offence under Section 354. There being conflicting versions with regard to manner of incidence, this Court is of the view that the appellant-accused is entitled to benefit of doubt. The judgment of conviction and sentence passed by the learned Court below, is set aside. Appeal is allowed. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 29th February, 2024 NAFR/Anit
Arguments
Mr. Nawin Kumar, Advocate : Mr. Sanjay Kumar Srivastava, A.P.P. ----- PRESENT HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY By Court 1. Judgment of conviction under Section 354 of the Indian Penal Code is under challenge in the instant criminal appeal. 2. As per the written report lodged by prosecutrix, on 29.04.2008, after got down from Hatia-Burdhwan train at Chhota Ambona Railway Station and was going to Village Narodih. She was intercepted by the appellant, who attempted to commit rape with her. She was flung on the ground in the process her Salwar, was torned. She was rescued by some passengers of the same train, who were coming by that way. The name of persons, who rescued her were, Srishtidhar Mahto and Bheem Mahto. On Hulla, her maternal uncle Indra Narayan Mahto, Chandra Mohan Mahto and some women of the village had also seen the incidence. A Panchayti was convened in this regard which resulted in delay in institution of the case. 3. On 03.05.2008, Govindpur P.S. Case No.129 of 2008 was registered against Manoj Kumar Mahto under Section 376/511 of the IPC. 4. Police, on investigation, found the case true and submitted charge sheet against named accused. The charge was framed and he was put on trial under Section 376/511 of the IPC. 5. Altogether eight witnesses were examined on behalf of prosecution and after the prosecution evidence, the statement of the accused was recorded. The defence is of innocence. 6. It is argued that there is inordinate delay of four days in lodging the FIR, without any cogent explanation for the same. In the FIR as well as in her deposition, the prosecutrix has stated that the delay was on account of Panchayti. However, no further detail regarding Panchayti has been given by 2 the witness, and none of the witness, who attended the said Panchayti in the village, has been examined on behalf of prosecution. In this view of the matter, delay in lodging the FIR, has not been duly explained. 7. It is further argued that the place of occurrence is stated to be near the house of her maternal uncle. On the date of incidence, the victim came by train and got down at Chhota Ambona Railway Station and from there, she proceeded for the house of her maternal uncle. The incidence took place in front of the house of her maternal uncle which is a public place as per the testimony of the Investigating Officer in para 2. It has been stated in the FIR that her Salwar was torn, but it was neither produced nor seized by the Investigating Officer. 8. P.W. 1 has not stated that criminal force was used to outrage the modesty of the victim girl and he has only stated that he had injected one Suee to her. In para 5, he has deposed that 8-10 persons were there. Prosecutrix has not stated that she had been injected with any needle, but has stated that she was threatened of being injected with needle. However, P.Ws. 1 and 2 have stated that needle was not used against the victim, but by the appellant against himself. Object of inflicting self-harm was to use his blood, for applying as Teeka to the victim girl. However, P.W. 2 has stated that he had not applied it. 9. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that delay has been explained. It is further submitted that in sexual attack case causes stigma to the girl and his family members, therefore, the matter could not be immediately reported to the police. Independent witness P.W. 1, P.W. 4 and P.W. 5 have fully supported the prosecution case and corroborated the account of P.W. 3. 10.