Bokaro (Jharkhand) v. The State of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.1094 of 2016 (Against the Judgment of conviction dated 29.08.2016 and order of sentence dated 31.08.2016 respectively passed by learned Addl. Sessions Judge 1st / Special Judge, S.C./S.T., Bokaro, in SC/ST Case No.08 of 2013 (T.R. No.08 of 2013). Jiwan Gosain, S/o Tikeshwar Gosain, Resident of Village- Mouza Bagiyari, …. Appellant P.O. & P.S. Kasmar, District- Bokaro (Jharkhand). Versus The State of Jharkhand. ….. Respondent HON’BLE MR. JUSTICE ANANDA SEN P R E S E N T HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ….. For the Appellant For the State : : Mrs. Vandana Singh, Advocate Mrs. Priya Shrestha, SPP …..
Legal Reasoning
concerned, we find that there is nothing on record to suggest that the appellant had subjected the victim to sexual assault just because she was a member of the 3 SC/ST community. The mere fact that the victim happened to be a girl of scheduled caste, the same does not attract the provisions of the said Act. This has been held by Hon’ble the Supreme Court in the case of Ramdas and Ors. vs. State of Maharashtra, reported in 2007(2) SCC 170. 17. Considering what has been held above, we find that there is no illegality in the impugned judgment so far as convicting the appellant under Section 376 IPC, but so far as his conviction under the provisions of SC and ST [Prevention of Atrocities] Act is concerned, the same cannot be sustained and is accordingly set aside. Accordingly, the instant Criminal Appeal is partly allowed convicting the appellant under Section 376 IPC and acquitting him Section 3(1) (x) SC/ ST (Prevention of Atrocities) Act. The appellant has already been served sentence awarded under Section 376 IPC and released, as such, no further order is required to be passed. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. (Ananda Sen, J.) (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated 03.09.2024. sandeep/ 4
Arguments
By Court:- Heard learned counsel for the appellant and learned counsel for the State. 1. The instant Criminal appeal is directed against Judgment of conviction dated 29.08.2016 and order of sentence dated 31.08.2016 respectively passed by learned Addl. Sessions Judge 1st / Special Judge, S.C./S.T., Bokaro, in SC/ST Case No.08 of 2013 (T.R. No.08 of 2013), whereby the sole appellant has been convicted under Section 376 IPC and Section 3(1)(xii) of SC/ ST (Prevention of Atrocities) Act and sentenced to undergo RI for ten years and to pay a fine of Rs.5,000/- and in default, to further undergo SI for one year. The appellant has further been sentenced to undergo RI for three years and to pay a fine of Rs.2,000/- under Section 3(1) (x) SC/ ST (Prevention of Atrocities) Act and in default, to further undergo SI for three months. 2. The FIR was lodged at the instance of the victim (P.W.7) herself. She has stated that she is a student of Class-VII and belongs to a poor family. Her parents were poor having eight children. The mother of the victim was unable to take care of all her children, therefore, she requested one Abhiram Sao to keep her daughter. Abhiram Sao got her enrolled in Class-III of Primary School, Bhelwatand (Bagigari) and she was pursuing her school education, while serving them as domestic help. Abhiram Sao and his old aged wife were living in that house and accused, Jivan Gosain was the frequent visitor of their house. 3. It is alleged that before nine months of lodging of FIR, one day at about 11 pm in the night, when the victim /informant went out of the residence for urinating, the accused /appellant reached there and forcibly raped her. The informant started weeping and then the accused said her not to say anyone about the 1 occurrence and assured her to marry. After that he continued to come there with knife and under threat continued raping her till January, 2012. When the informant told the accused that she was pregnant, he provided her some tablets, but it was effectless. In the meantime, the accused was put behind bar in the murder case of her brother’s wife. Thereafter the prosecutrix called her mother and told about the ill acts of the accused. It is further alleged that on 26.04.2012, the informant and her mother along with some others went to Tenughat Jail to meet the appellant/accused and his father. In the jail, father of the accused said that the whole villagers knew that my son had made the victim pregnant and therefore, the marriage will be performed when we came out of jail. The accused/appellant also repeated the same sentence. When the father of the accused was released from jail, the informant met him, but he refused to even identify her. On the basis of the written report of the informant, the Police instituted First Information Report being SC/ ST Sector –IV (Bokaro) P.S. Case No.30 of 2012 under Section 376 IPC and under Section 3(x) of SC/ ST (Prevention of Atrocities) Act against the sole accused/ appellant. After investigation, the Police submitted charge-sheet under Section 376 IPC and under Section 3(1)(x) of SC/ ST (Prevention of Atrocities) Act against the sole accused and cognizance was taken as well as charge was framed. The appellant pleaded not guilty and thereafter he was put on trial. In order to prove the case, the prosecution has examined altogether 10 witnesses and several documents have been adduced and marked as Exhibits. Learned counsel for the appellant has submitted that there is no evidence to suggest that this appellant had committed rape upon the victim and alternatively she argues that even if some relationship was developed, the same was consensual in nature as it is apparent from the FIR and the evidence of the victim that she kept quiet for a considerable period of time. She further submits that though a child was alleged to have been born, but there was no scientific evidence nor there was any DNA test to suggest that the child was born out of the said physical relationship which was entered into with the victim and the appellant. Learned counsel for the appellant has persuasively argued that act was consensual in nature. Learned counsel for the appellant has further submitted that there is nothing on record to suggest that the victim was subjected to the sexual assault for the reason that she was member of the Scheduled Caste. Thus, there is no application of provisions of SC and ST (Prevention of Atrocities) Act. 2 4. 5. 6. 7. 8. 9. 10. Learned APP for the State has defended the impugned judgment of conviction and sentence. She argues that the victim was minor and thus, it cannot be said that she had given consent for consensual relationship. The first occurrence was forcible and the subsequent occurrence happened on the false pretext of marriage. Since there was assurance of false pretext of marriage, this cannot be said to be a free consent. In absence of free consent and that too when the girl was minor, the offence under Section 376 IPC is established and made out. 11. Heard the learned counsel for the parties and perused the entire materials on record. The main witness is the victim herself and she has been examined as P.W.7. She stated that at first time she was forcibly raped and thereafter there was continuous physical relationship on the pretext of marriage. The Doctor, who has been examined as P.W.8, found the age of the victim on the date of examination was to be 16 to 17 years. The Doctor also found that the victim had features of pregnancy followed by child birth. Thus, the conjoint reading of evidence of these two witnesses clearly suggests that the victim was minor when the sexual intercourse had taken place and further she had given birth to a child. 12. Further, the victim, in her evidence, has stated that on the first occasion, she was raped and thereafter on the pretext of marriage, this appellant had established sexual relationship. 13. Learned counsel has tried to convince us that this act may be consensual, but we are not in agreement with the submission of the learned counsel for the appellant. As per the provisions of Indian Penal Code, i.e. Section 90 IPC, consent given under fear or any misconception of fact is not a consent. 14. In this case, the first occurrence of sexual intercourse was forceful and thus, rape was committed. The subsequent sexual relationship was under misconception that the appellant will marry the victim, but the appellant’s intention was otherwise and he did not to marry her. Thus, even if there was any consent, the same was under misconception. 15. Further, we find from Section 375 IPC that sexual intercourse with the girl less than 16 years even with or without her consent is immaterial. In this case, the first occurrence occurred when she was less than 16 years of age. The other witnesses have supported the case of prosecution and it has been established by the prosecution that the victim was residing with P.W.6 [Abhiram Sao] who also supported the case of prosecution. 16. So far as the application of SC and ST [Prevention of Atrocities] Act is