Meghu Rai @ Megha Rai vs The State Of Jharkhand

Heard learned counsel for the appellant as well as learned A.P.P.

Instant criminal appeal is directed against the judgment of conviction dated 27.09.2008 and sentence dated 30.09.2008 passed by the learned 1^st Additional Sessions Judge, Dumka in S.T. No. 296 of 2007 arising out of Jarmundi P.S. Case No. 139 of 2007 corresponding to G.R. No. 899 of 2007, whereby and whereunder, the appellant has been convicted for the offence under Section 376 of the I.P.C. and sentenced to undergo R.I. for 7 years alongwith the fine of Rs. 5,000/-with default stipulation.

Factual matrix giving rise to this appeal is that on 07.07.2007 at about 11:00 A.M., the victim had gone to village Sukhjora for offering puja in Nagbaskey mela alongwith her cousin and cousin's husband. While she was returning from mela to her home, her cousin and cousin's husband left behind. When she reached near village Bhalsumia at about 7:00 P.M., the accused came by a cycle, caught the victim and dragged on his cycle. The victim jumped from the cycle due to which she sustained injury on her leg. Again the accused caught her, gagged her mouth and dragged her on cycle near Murligaraha pahariin a ditch and committed rape on her. Her cousin and brother-in-law could not help her. They came at the village and stated about the occurrence. On which, the villager started searching her out by motorcycle. On seeing the light of motorcycle, the accused left the victim and tried to run away but villagers caught hold of him and brought to village. Due to night, they could not come at police station and in the morning, victim alongwith her father and other villagers came at the police station and informed about the occurrence and handed over the accused to police.

On the basis of written report of the victim, an F.I.R. being Jarmundi P.S. Case No. 139 of 2007 was registered against the accused for the offence under Section 376 of the I.P.C.

After completion of investigation, the charge-sheet was submitted against the present appellant and after taking cognizance, the case was committed to the court of Sessions, where S.T No. 296 of 2007 was registered.

The appellant denied the charge levelled against him and claimed to be tried.

In the course of trial, altogether 8 witnesses were examined by the prosecution apart from following documentary evidence:

The defence has also examined one witness, namely, Ram Rai as DW-1.

The learned Trial Court after scrutinizing the evidence oral as well as documentary led by the respective parties, arrived at definite conclusion about the guilt of the appellant for the offence under Section 376 of the I.P.C. Accordingly, the learned Trial Court convicted and sentenced him as stated above, which has been assailed in this appeal.

Assailing the impugned judgment, the learned counsel for the appellant submits that there is unexplained delay in lodging the F.I.R. As stated in the written report, the occurrence took place in the evening on 07.07.2007 and the villager caught the accused and brought him in the village at night. The F.I.R. was lodged on the next day while distance of the police station is only about 10 km. It is further submitted that there are many contradictions in the testimonies of the prosecution witnesses. In the written report, it has been stated that the accused brought the victim by cycle but the informant (PW-6) in her evidence has stated that the accused brought the victim on his shoulder. The distance between place of occurrence and place of taking away is about 3-4 km. It has further been submitted that the medical report does not corroborate the statement of the informant. It is also submitted that no independent witness has been examined by the prosecution, as such, the evidence of the prosecution witnesses are not reliable. It is also submitted that appellant has falsely been implicated in this case with a view to take revenge from the father of the appellant and his uncle as there was a case between father of the victim and uncle of the appellant with regard to return of a water pump machine, which is evident from the deposition of DW-1 and the same has not been considered by the learned Trial Court. Therefore, conviction and sentence of the appellant is liable to be set aside and this appeal may be allowed.

Learned A.P.P. has opposed the aforesaid contentions raised by learned counsel for the appellant and defending the impugned judgment has submitted that the learned Trial Court has very wisely and aptly scrutinized the evidence adduced by the prosecution and defense. The plea of delay in lodging F.I.R. has sufficiently been explained by the prosecution. It is further submitted that at the time of occurrence, the age of the victim was in between 15-16 years. It is further stated that when cousin and brother-in-law of the victim were at some distance behind her, the accused came by a cycle, caught her and dragged her on his cycle. The victim jumped from the cycle due to which she sustained injury on her leg. Again the accused caught her, gagging her mouth dragged her on his cycle and brought her near the Murligarha Pahari in a ditch and committed rape on her, which also finds corroboration from medical examination report of the victim. Therefore, there is no illegality or infirmity in the impugned judgment of conviction and sentence of the appellant calling for any interference in this appeal, which is devoid of merits and fit to be dismissed.

I have gone through the record of the case along with the impugned judgment and order in the light of the contentions raised on behalf of both side.

The only point for consideration of this appeal is, as to whether the impugned judgment of conviction and sentence suffers from any serious error or law calling for any interference or not?

Before adjudicating the above point, it is pertinent to apprise with the testimony of the witnesses examined during trial.

The most important witness in this case is the prosecutrix (victim), who has been examined as PW-6. According to her evidence, on date of occurrence at about 11:00 A.M., the victim had gone to village Sukhjora for offering puja in Nagbaskey mela alongwith her cousin and cousin's husband. While she was returning from mela to her home at about 4:00 P.M. and they reached near village Bhalsumia at 7:00 P.M., the accused came by a cycle, caught the victim and dragged on his cycle. The victim jumped from the cycle due to which she sustained injury on her leg. Again the accused caught her, gagging her mouth dragged her on cycle and brought her near Murligaraha pahari in a ditch and committed rape on her. Her cousin and brother-in-law could not help her because at the time of taking her away by the accused, they were at some distance behind her. She has further stated that she went to police station alongwith her father, cousin and other villagers. From police station, she was sent to doctor for her examination.

In her cross-examination, she has deposed that there was no dispute between her father and father of the accused in connection with water pump machine. Sarpanch had decided the matter. She has further deposed that the accused kept her about two hours there and gagged her mouth from her dupatta.

PW-1 Jhupardhar Kunwar has stated that he was at home. Mela was at Sukhjora. Victim, her cousine Ampee Devi and Bhik Patwa had gone to mela. They were returning from mela at 4:00 P.M. When they reached near Balsumia village, chain of cycle dropped and victim went ahead. The accused dragged her on cycle towards Murli Garha. Ampee Devi came at village and told about the occurrence and thereafter, father of the victim called him and other and requested them to search out his daughter. He alongwith PW-2, 3 and Kailash rushed for searching her out by two motorcycle. When they reached near Kuruwa Pahar, they noticed that in the ditch of Muligarha, the accused and victim were there. The accused was committing rape on her. When they came there, the accused started fleeing away. They chased and caught him, and, brought to village and kept him in the village over night.

In his cross-examination, he has stated that three other persons were also with him at the time of searching the victim. He further reiterates that he has stated before the I.O. that he saw the accused while committing rape on the victim.

PW-2 Arun Kunwar has stated that cloth of the victim was open. Except this, he has stated nothing in his examination in chief.

In his cross-examination, he has deposed that he has not stated the above fact before the investigating officer.

PW-3 Suresh Kunwar has stated that he was also searching the victim and saw that the accused was committing rape on the victim.

In her cross-examination, he deposed that he has stated the above fact to the investigating officer.

PW-4 Ampee Devi is the cousin of prosecutrix, who was behind the victim, has supported the statement of victim in her examination-in-chief.

In her cross-examination, she has stated that three persons were returning from mela. She has further stated that when the accused caught the victim and dragged her on cycle, they did not raise alarm as they thought that they would apprehend the accused, but unfortunately the chain of the cycle dropped and the accused managed to flee away from other route. She has further deposed that she and her husband reached the village and narrated the occurrence to the father of the victim.

PW-5 Prasanna Manjhi is the father of the victim and has stated that Ampee Devi (PW-4) came to his house and asked about the victim and told him about the occurrence.

In his cross-examination, he has deposed that he has not seen the occurrence and came to know about the occurrence from his daughter and others.

PW-7 Kapil Dev Prasad Yadav is the investigating officer of this case. During investigation, he took re-statement of the victim. Inspected the place of occurrence, which is situated ½ km. far away from western side of village Domadih. There is a ditch at a distance of 500 years from western side of road. There is 20 ft. height of mountain in both northern and southern side. He recorded the statement of father of the victim and other witnesses, namely, Arun Kuwanr, Suresh Kunwar, Bhupadhar Kunwar, Kailash Kunwar, Ampee Devi and others. He sent the victim to Sadar Hospital, Dumka for her medical examination.

In his cross-examination, this witness admits that re-statement of the victim was taken in the police station. Thereafter, he inspected the place of occurrence. He did not recover anything from the place of occurrence. Cycle was also not seized. He denies the suggestion of defence that investigation of this case has not been done properly.

PW-8 Dr. Aruna Chatterjee is the medical officer at Sadar Hospital, Dumka. On 09.07.2007, the victim was examined by a medical board, of which she was also a member, found the following:-

Height : 4'5'', weight 76 lb, teeth- 14-14

There is abrasion 4.5 cm x 3 cm. on the doorgam of right knee front.

Nature of Injure- Simple in nature caused by hard and blunt substance.

No mark of injury from her private parts. Hymen intact. No toregin hairs present on the private parts. Veginal shwab was taken up and sent for pathological examination. Pathological report shows spermatozoa was not found dead or alive.

According to findings of the doctor, the opinion is that there is no sign of rape. The age of victim is above 18 years.

On the other hand, the case of defence is denial from the occurrence and one witness has also been examined on behalf of the defence.

DW-1 Ram Rai- He has stated that a panchayat was held before the Sarpanch Ranglal over water pump machine, which was taken by father of the victim. Panchayat was held at the house of sarpanch. He has further deposed that machine was returned to him.

In his cross-examination, he admits that the accused was his nephew. He denies the suggestion of prosecution that the accused is his nephew, therefore, he has come to give his evidence. He also admits that he know the victim.

I have given anxious consideration to the overall aspects of the case and the material evidence available on record.

It appears that main ground of objection raised by the appellant is the delay in lodging the F.I.R. and may exaggeration improvement and omission in the testimony of witnesses examined during trial.

In this connection, the learned Trial Court has stated that such improvement and omission cannot be held to be the contradiction and as such, these minor omission and improvement in the testimony of the witnesses is not contradictory.

It has also been stated by the learned Trial Court that in this case, as per the evidence of the prosecution witnesses, they searched out the victim and the accused and brought them in the village in the night about 11:00 P.M. and the distance of the police station from the said village is about 10 k.m. No persons could dare to come at police station in the night at a distance of 10 k.m. So there is no delay in lodging the F.I.R.

It further appears that the sole eye-witness of this case is the victim (PW-6), who has categorically corroborated her earliest version contained in the fardbeyan and the factum of rape committed on her by the present appellant.

It is well settled principle of law that in a case of rape of a girl, the evidence of the victim is sufficient and there is no need for corroboration of the evidence of victim girl. Though, the victim may be said to be interested in the outcome of charge levelled by her, on a careful and cautious scrutiny of her entire statement, she seems to be worthy of credence and her evidence of infliction of sexual assault on her by the accused inspire confident. There is no hesitation in accepting the testimony and acting upon the same without looking for any corroboration. However, at the same time, it is necessary to look into the fact, whether the prosecutrix has passed the sterling witness.

The victim in her written information has stated that when she was returning from Mela and when she reached near Vanwara village, the accused forcibly got her seated on the bicycle but she jumped and sustained injury on her leg, thereafter, again the accused gagged her mouth with dupatta and forcibly got her seated on the cycle and took her below the Murligarha Pahari, west to the Banwari village, where she was raped by the accused.

In her deposition, she has stated in para-6 that while she was returning from Mela and reached at Degadi mouja, the appellant came there on foot, tied her mouth and took her away by lifting her on his shoulder. He took her in a ditch at Kanwa pahar, where she was undressed and he has done wrong thing. What was the wrong thing, has not been explained. Further in para-30 of her cross examination, she has stated that the place from where she was taken away and the place where she was brought, i.e., Kanwa Pahar, the distance is about 3 k.m. and in between no one has seen, while it was the month of July, other villagers has gone to see Mela and she was brought either on the shoulder of the accused or on the bicycle. The I.O. has stated that the place of occurrence is ½ k.m. west from village Degadi. Degadi is also the village of the victim. Just after one day of the occurrence, the victim was examined by a team of medical board having three members and found the hymen was intact. No injury was on the private part, no sign of rape. Thus, looking into the combined statement of victim in the F.I.R., examination-in-chief, cross-examination, the deposition of I.O. and the medical report, it appears that prosecutrix has not passed the test of sterling witness upon which the conviction can be affirmed the sole testimony of the prosecutrix.

In the case of Santosh Prasad @ Santosh Kumar versus State of Bihar report in [(2020) 3 SCC 443], it was alleged that rape was committed upon a married lady. There was marital contradiction in deposition of the prosecutrix. Neither the independent witness nor the medical witness was supporting the prosecution case. There was variation in the prosecution of prosecutrix's version about the given complaint. The prosecutrix failed to pass the becoming of Sterling witness. There was land dispute. The accused was given the benefit of doubt.

In the instant case, there is material contradiction in the prosecutrix's version. Previous dispute regarding water pump machine cannot be ruled out as although the victim has stated in para -15 of her deposition that there is no previous dispute regarding the water pump machine with the accused family and her family. But again, she has stated that dispute was resolved by the Sarpanch.

In view of above discussion and reasons, I find that the conviction of appellant cannot be sustained in such a material contradiction of the prosecution witness. It is not safe to convict the appellant on the sole testimony of prosecutrix, particularly, when she failed to pass the test of sterling witness.

Accordingly the appeal is allowed.

Pending I.A.(s), if any, stands disposed of.

The appellant is on bail. He is discharged from the liability of bail bond and sureties are also discharged.

Let a copy of this judgment alongwith the trial Court records be sent back immediately to the concerned Trial Court for information and needful.