Rakhal Mardi The State of Jharkhand. … v. …
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No.724 of 2012 (Against the Judgment of conviction and order of sentence both dated 02.04.2012, passed by learned Assistant Sessions Judge-I, Seraikella, in Sessions Trial No.134 of 2010. Rakhal Mardi The State of Jharkhand. …. Versus ….. Appellant Respondent
Legal Reasoning
P R E S E N T HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. For the Appellant For the State : : Mr. L. C. N. Shahdeo, Advocate Mr. Yash Raj Gupta, Advocate Ms. Vandana Bharti, APP ….. By Court:- Heard learned counsel for the appellant and learned counsel for the State. 1. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence both dated 02.04.2012, passed by learned Assistant Sessions Judge-I, Seraikella, in Sessions Trial No.134 of 2010, whereby the sole appellant has been convicted for the offence under Sections 376/ 511 of the Indian Penal Code and sentenced him to undergo RI for four years. 2. As per the case of the prosecution, the appellant/accused had entered into the house of the victim in the night at around 10 O’clock and attempted to commit rape with her. The prosecutrix pushed him away and in the process, he bit her on her cheek by the accused/ appellant. On hulla, he fled away from the place of occurrence. 3. On the basis of the written report of the informant, Seraikella P.S. Case No.65 of 2010 was registered under Sections 376/ 5111 IPC against the appellant/ accused [Rakhal Mardi]. After investigation, the Police found the case to be true and submitted charge-sheet. Thereafter charge was framed and he was put on trial. 4. Altogether 11 witnesses have been examined in this case and the injury report has also been marked as Exhibit-3 amongst the other documents. 5. The impugned judgment of conviction and order of sentence has been assailed on the ground that out of nine material witnesses, only the prosecutrix has been examined as P.W.8 and she is the main eye-witness and all other witnesses are hearsay. The mother in law of the prosecutrix has been examined as P.W.5, but she has also stated that she was not the direct eye-witness. 6. It is submitted that there is much contradiction in the statement of the prosecutrix (P.W.8) by which she has proved the written report as Exhibit-1. In her cross- 2 examination, she states that it had been written by one Ishwar Mardi, but his signature does not appear on the said written report. 7. It is argued that there is inconsistency between the statement of the informant as stated in para-3 wherein she has stated that when the door was knocked, she asked who was there and on having heard from the accused, she opened the door, but this part does not appear in the FIR. Although the witness has identified the accused despite the fact that he neither belong to her marital home or her natal home. 8. It is further submitted that even if the allegations as made are assumed to be true, no offence under Section 376/511 shall be made out. In this regard reliance is placed on Tarkeshwar Sahu vs. State of Bihar (now Jharkhand) passed in Criminal Appeal No.1036 of 2005 at paras 18 & 26. 9. Learned APP for the State has defended the impugned judgment of conviction and order of sentence. It is submitted that the prosecutrix in her deposition has stated that the accused entered into the house and in an attempt to commit rape put her down on the floor and also had beaten her and injury has been caused. The victim was examined by the Doctor (PW-11) who has proved the injury report which has been proved and marked as Ext-3. Medical evidence has corroborated the oral evidence 10. There are established consecrated principles, on the touch stone of which the evidence is appreciated. Some of them can be summed up as under: There are four ways in which a Trial Court can hold a witness unreliable. I. The witnesses statements is inherently improbable or contrary to the course of nature II. The witnesses deposition contains mutually contradictory or inconsistent passages III. The witness is a bitter enemy of the opposite party and therefore , possesses ample motive for wishing him harm IV. The witnesses demeanor at the time of examination is found abnormal or unsatisfactory. In assessing the value of the evidence of an eye-witness, the two principles considerations are- (i) whether, in the circumstances of the case, it is possible to believe, his presence at the scene of occurrence. (ii) whether there is anything inherently improbable or unreliable in his evidence. It is also an established principle of appreciation of evidence that a testimony without a fringe or embroidery of untruth is rare. The court can reject it only when it is tainted to the core, that is, where falsehood and truth are inextricably intertwined. If it is not so, the court must separate the grain from the chaff. 11. In the present case, the incidence took place as per the prosecution case at 22 hours on 02.08.2010, and the FIR was lodged on the very next day without any delay. Prosecutrix who had sustained bite injury on her cheek was also examined on the very next day that is on 03.08.2010 as per the injury report. 3 12. There is nothing on record to suggest any past enmity between the parties, which could have been the motive for falsely implicating the accused. 13. Law is settled that in sexual assault cases, the Court is not required for corroboration and the testimony of the prosecutrix is to be treated at par with an injured witness. A plain reading of the testimony of witnesses presents a coherent and cogent account of the incidence. Defence has absolutely failed to elicit any contradiction, in the testimony of witnesses. The fringe inconsistency harped by the counsel on behalf of the Appellant, is of no consequence and bearing as it does not go to the root of the matter. 14. The prosecutrix has in no uncertain terms deposed that it was the accused who had entered into her house in the night and dragged her outside, throw her on the ground and attempted rape on her. She pushed him aside and raised alarm, on which he bit her on the cheek and fled away. Other witnesses who came on hulla are not direct eye witness to the incidence, but their statement is relevant under section 6 of the Evidence Act, as they had have testified that they had come on hulla. Prosecution has thus, proved these facts beyond the shadow of all reasonable and probable doubt. 14. Matter for consideration is whether on these facts the charge under Section 376/511 is proved. I find much force in the argument advanced on behalf of the Appellant that these materials are not sufficient to constitute the offence of attempt to commit rape. The long line of judicial precedents, suggests that the act of the Appellant was preparatory in nature and cannot be termed as attempt to commit rape. This is for the reason that no sooner, prosecutrix protested and raised objection, appellant fled away. Act of the Appellant did not cross the threshold of preparation. There is a fine line of distinction between attempt to commit rape, and using criminal force to outrage the modesty of a woman. The judgement of conviction and sentence under Section 376/511 of the IPC is set aside and he is convicted for the offence under Section 354 of the IPC. 15. The incidence took place in the year 2010, therefore applicable sentence under section 354 IPC will be as per the law prevailing before the 2013 amendment. No past conviction has been proved against the Appellant and the maximum sentence under this section is 2 years. Considering the age, antecedent and overall facts and circumstances of the case, the Appellant is directed to be released on admonition under Section 3 of the Probation of Offenders Act. The instant Criminal Appeal stands dismissed. Let L.C.R. along with a copy of this Judgment be sent to the court concerned at once. Jharkhand High Court, Ranchi Dated 22nd February, 2024. (Gautam Kumar Choudhary, J.)