Rathu Ram Mahato - Appellant @HASH State of Jharkhand

Mr. Ratnaker Bhengra, J. - This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 10th April, 2003, passed by the 1st Additional Sessions Judge, Seraikella in connection with Sessions Trial no. 342 of 1998 corresponding to G.R. Case no. 506 of 1998, Ichagarh P.S. Case no. 32 of 1998, whereby the appellants have been held guilty for the offences punishable under section 354 of the Indian Penal Code and sentenced to undergo S.I. for one year each and to pay fine of Rs. 5000/- each and in default further directed to undergo S.I. for fifteen days. Both the sentences were directed to run concurrently.

The prosecution case arises out of C/1 case no. 47 of 1998 pursuant to which u/s 156 (3) Cr.P.C., the subsequent F.I.R. was registered. The allegation is that PW-6, informant on the date of occurrence, on 14.5.1998 in course of search of her younger son had gone to a nearby well and while returning from there near the house of accused persons, they caught hold of her and dragged her into the room in their house. Lay her on the ground and closed the door. The accused Rathu then threatened her with a farsa blow if she did not allow them to have sexual relationship with her, she will be done to death. It is further stated that then she screamed and made alarm. On hearing alarm raised by her PW-2 Prashant Mahto and PW-4 Ranjeet Mahto came to rescue her and she was saved from being ravished. On the basis of order under section 156(3) Cr.P.C. Ichagarh P.S. Case no. 32 of 1998 dated 13.8.1998 U/S. 354/376/511/34 I.P.C. was registered. After due investigation, charge sheet was submitted and, accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Trial no. 342 of 1998.

The appellants stood charged for the offences punishable under sections 376/511 I.P.C. to which they pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether six witnesses. After conclusion of the trial, learned trial judge held the appellants guilty for the offence punishable u/s 354 IPC and inflicted sentences as indicated above.

PW-6 is the informant who has stated in her deposition that the incident is of about 10 a.m. and she had gone to fetch her son and was returning and when she reached near the well in front of the house of appellant namely Bandhu Ram who made an indecent proposal. However, she did not respond. Thereafter, he caught hold of her arm and dragged her and tried to take her inside the house. In the mean time, his brother accused Rathu Mahto also came and both dragged her forcibly inside the room and shut the door. She had deposed that Bandhu lay her on the ground and Rathu on the point of Farsa threatened her if she would not allow her to have sexual intercourse with them. When she raised alarm PW-2 Prashant Mahto and PW-4 Ranjit Mahto came to her rescue by breaking open the door and they saved her by entering the room. She has also deposed that she had narrated the entire occurrence to her husband who arrived later on.

PW-2 Prashant Mahto has stated that the occurrence took place on 14.5.1998 at about 10 a.m. He was in the house just adjacent to the house of informant and on hearing the alarm made by the informant he along with PW-4 Ranjit Mahto broke open the door and went inside the room where he saw that Bandhu Mahato had tried to undress the lady. He has also deposed that Rathu Mahato was armed with farsa and was standing there but, when both of them had entered they fled away.

PW-4 Ranjit Mahto also said that it was Thursday around 10 a.m.when he was returning from market he heard the alarm raised by the informant and rushed towards the house. Fortunately PW-2 Prashant Mahto was also there and both of them ran together and opened the door. He has deposed that Bandhu was holding the informant but not doing anything and that Rathu Mahato was also standing there. He has also deposed that they took Bandhu and Rathu aside. He said that he can recognised both of them. In his cross-examination he has said that the door was not latched.

P.W.-5 in his deposition has basically more or less narrated what his wife informed him about the incident. However, he has mentioned regarding plot no. 254 that he has no dispute regarding that plot. But he is not sure if his house is actually located at plot no. 254.

Learned counsel for the appellants at the outset denied the allegations and said that they are totally false in nature. He has said that there is an unusual delay or a long delay in getting the case registered from the alleged date of occurrence which is allegedly 14.5.1998 and on the date when the complaint was lodged which is 17.6.1998. It is almost a gap of one month and that has been done so because actually there is nothing true in the allegations and that is why it has been made in such a belated manner. He has further stated that the complaint apparently itself was not recorded by the police because there was no truth in it. It is not expected that if there is a genuine complaint the police would not register the same. He further said complaint was not true, if the incident was true then injuries would have been indicated, even the husband of the informant did not bother to take her for any treatment so that she can be medically treated and not even the police in the police station recommended her for any treatment. He has further said that all the allegations are false because there is a land dispute going on between the parties and that is why the appellants have been implicated. He also said that since there is no report from any doctor so in the absence of report from the doctor it is a big lacunae in the case. Finally, he has also said that no investigating officer was examined so he could have gone into the place of occurrence and narrated the details regarding the place of occurrence such as whether the door was actually opened or it was broken into, whether it was bolted from inside and in what manner it was bolted and also regarding actual description as to how the incident actually took place would have become clear. Also there are discrepancies in the deposition of PW- 2,4 and 6. So in the absence of investigating officer prejudice is caused to the appellants.

The learned A.P.P. has submitted that there is an inordinate delay in lodging the FIR but explainable. He has said that there was application of criminal force and that PW-2 and 4 found that a helpless lady was in custody of appellants and they had tried to commit rape on her but subsequently offence was resisted. He has submitted that though the appellants have been convicted for the offence u/s 354 IPC the original section 511 IPC is also relevant for convicting for the offence u/s 376 IPC. Learned counsel for the appellants submitted that the appellants have been convicted u/s 354 and so that is the section that should be addressed by this court. Learned counsel for the State said that there was intention, force was used and without consent it was used in order to commit rape upon her and in that process she also sustained injury. He has said that holding of farsa in threatening manner can amount to criminal force because it can create fear and also states that ingredients of Section 354 is totally present in this case. Hence, offence is made out. Regarding witnesses he has said that the witnesses are not interested or adversely interested witnesses rather they are witnesses who were returning from some place or other and that is why they can be considered as chance witnesses and tried to help the victim. He has further submitted that nowhere in the deposition it has came out as to why she would implicate the accused persons or the appellants in this case and her deposition is also corroborated by PW-2 and 4 also. Learned counsel for the appellants in his rebuttal has submitted that the occurrence took place in the broad day light hence not true. . PW-2,4 and 6 consistently said that the appellants dragged the victim lady into their room which weaken immensely the case of the prosecution.

I have gone through the arguments of the learned counsel for both sides and the record available. It is seen that the victim lady is the informant herself and crime against woman or crime of such nature that the victim informant should be taken earnest. Moreover, in this case there happens to be two other witnesses PW-2 and 4 who very genuinely appeared to be there and hearing the alarm of cry of a women emanating from a room nearby ran to the place and witnessed the incident or rather witnessed the circumstances indicating that some offence is taking place. There is a claim that the allegations are cooked up and false and also that it is the result of a land dispute I am not inclined to believe this suggestion because why would the husband or why would she herself or why would anyone make such allegation to put herself in court or to become a subject of trial and subject to embarrassing questions whether in the court or in society. It would not also be very easy to get two truthful witnesses to subscribe to such cooked up allegations. Moreover, the land dispute is also not substantiated as per the records and the PW-2 and 4 have also said in their deposition that they did not have any land dispute with the accused/appellants. Regarding the contradictions made in the statement of PW-6,2 and 4, in the depositions, those contradictions or inconsistencies may be there because of giving evidence in an incident that took place in 1998. It is not expected that all the details would be narrated in a precise manner. It is seen that the main countours of the allegations are consistent to each other. Moreover, regarding it was 10 O''clock and it was not a lonely place. It is seen that sometimes such offences do occur, may be not regularly but it would be difficult to go against the version of PW-2 ,4 and 6 who have consistently said that the incident happened around about 10 O''clock. Regarding the delay aspect it was seen in the deposition of PW-5 which the counsel for the appellants himself read out that he has explained delay and said that after the incident on 14.5.1998 they had in fact gone to the police station next day and apparently the police had also noted down the complaint . However, it has been deposed that nothing was done and then subsequently the complaint was lodged on 17.6.1998 so even delay has been properly explained.

Counsel for the appellants has submitted that Rathu Mahato is now more than seventy years and Bandhu Mahato is also more than sixty seven years. He has further submitted that it was their first offence and now eighteen years have lapsed so sentence may be modified.

Therefore, on the basis of the aforesaid arguments, records of the case and reasonings, this court upholds the conviction of the appellants u/s 354 IPC. However, bearing in mind that it is a case of the year 1998, and almost twenty years have passed and the appellants are also old now, who were first offenders having undergone the uncertainties and hardships of trial, the sentence are modified to the period undergone. Appellants are on bail, they are discharged from liabilities of their bails bonds, subject to the condition that the fine of Rs. 5000/- each be paid to the victim lady and in default of payment of fine they are further directed to undergo S.I. for fifteen days. The convicting or successor court is accordingly directed to take appropriate steps within thirty days from receipt of this order.

With the above modification in sentence, the appeal stands disposed of.