Durga Prasad Roy vs State Of Jharkhand

Gautam Kumar Choudhary, J

Heard the parties

The judgment of conviction and order of sentence under Sections 376 and 342 of Indian Penal Code is under challenge in the instant appeal.

As per the fardbeyan of Karuna Devi recorded on 15.10.2010, at 8:30 pm in the night her daughter, (victim girl), aged about 14 years had gone outside near hand pump for washing her feet but did not return, therefore she went out with a torch after a while to look for her. While searching, she went to the house of Sahdeo Rai and found that the appellant was committing rape with her daughter and on this, she assaulted the boy with stick and he fled away from there. On hulla, her husband-Mahendra Rai and brother-in-law Abhimanyu Rai and Yogendra Rai came there.

On the fardbeyan, Pathargama P.S. Case No. 158 of 2010 was registered under Section 376 of Indian Penal Code against the appellant. Police on investigation found the case true and submitted charge sheet under Sections 341, 342, 366A and 376 of the Indian Penal Code. After cognizance, charge was framed and the appellant was put on trial.

Altogether nine witnesses were examined on behalf of the prosecution and the medial examination report of the victim and fardbeyan were adduced into evidence, marked as exhibits. After prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C. The defence is of innocence.

Out of total nine prosecution witnesses, three witnesses have not supported the prosecution case and were declared hostile. The prosecution rests on the testimonies of the informant and her daughter whose account is contradictory to each other. Judgment of conviction and order of sentence has been assailed on the ground that the Medical Board has assessed the age of the victim to be 16 years, and the material witnesses including the father of the girl have not been examined. It is argued that the deposition of the victim and the informant are mutually contradictory. The place of occurrence is said to be the house of Sahdeo Rai but none from the said household has been examined.

On the point of sentence, it is submitted that the appellant was aged about 21 year at the time of incidence and there is no criminal antecedent against him and he has already served sentence for about three years and eight months.

Learned counsel for the State has defended the impugned judgment of conviction and order of sentence, and submitted that in case of sexual assault, the solitary account of the victim is sufficient to prove the charge as she is treated as an injured. The victim has been examined as PW 9 in which she has fully supported the case. PWs 7 and 8 had come to the place of occurrence on hulla after the accused had fled away from the place of occurrence. Therefore, they could not witness the incidence and have not named the accused. The victim was examined after two days of the incidence and, therefore, no evidence of sexual intercourse was found on the person of the victim. There was no enmity between both sides and, therefore, no motive of false implication has come up.

Having considered the submissions advanced on behalf of both sides, it is evident from the testimony of the informant (PW4), that the victim had left her home at night for washing her feet and did not return. On search she was found to be in a compromising position with the accused in the Varandah of Sahdeo Rai. There is no evidence that the victim had raised any alarm on being accosted by the appellant, when she was taken by the accused to nearby house where they were caught by the informant.

The victim in her deposition has deposed that when she had gone for washing near hand pump, the appellant lifted her and took her to the place of occurrence. She was flung on the ground and rape was committed with her. In para 2 she has deposed that she sustained nail injury on the back side of her shoulder. The doctor who examined the victim girl has deposed that no injury on any part of the body was found. It has come in evidence that it was Durga Puja festival and the incidence took place in the heart of village. Evidence suggests it to be case of sexual escapade of the two adolescent youth who were caught while they were quietly engaged in the promiscuous act. From the evidence on record, no inference, other than that of consensual physical relationship between the appellant and the victim girl, can be drawn.

The mother of the victim has stated the age of the victim girl to be 14 years and the Medical Board (Ext.1) has assessed the age of the victim to be 16 years. Meaning thereby, the victim was minor at the time of said incidence. Under Section 375(6) of Indian Penal Code as before the amendment of Act, 2013, the age of majority was 16 years and the consent in such case was immaterial. From this evidence, it can be reasonably deducted that the physical relationship on the said night was consensual in nature but, considering the age of the victim, offence under Section 376 of Indian Penal Code is made out.

On the point of sentence, it is submitted that the victim was adolescent boy without any criminal antecedent and he had undergone imprisonment of about three years and eight months. Under the circumstance, considering the consensual nature of relationship, this Court is of the view that there exists sufficient reason for awarding sentence less than minimum prescribed sentence under the code.

Under the circumstance, the sentence of imprisonment for the period as already undergone for the offence under Section 376 IPC will meet the ends of justice.

Appeal is dismissed with modification of finding and sentence.