Suresh Mahto 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 30.03.2009 and order of sentence dated 01.04.2009 passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi in S.T. No. 775 of 2005 arising out of Pithoria P.S. Case No. 52 of 2004 corresponding to G.R. No. 3535 of 2004, whereby and whereunder, the appellant has been convicted for the offences under Section 376, 379 & 323 of the I.P.C. and sentenced to undergo R.I. for 10 years alongwith the fine of Rs. 2,000/- for the offence under Section 376 I.P.C.; R.I. for one year for the offence under Section 323 I.P.C. and R.I. for three years for the offence under Section 379 of the I.P.C. with default stipulation.

Factual matrix giving rise to this appeal is that informant’s daughter used to go to Ranchi for working as a daily wages labour and returned in the evening to her home. On 13.11.2004 in the evening, when her daughter did not return from Ranchi, then the informant proceeded to bring her back alongwith her younger daughter Sanju Kumari, aged about 8 years and reached near Ratan Tand Chowk at Ranchi-Patratu highway and was waiting for a bus coming from Ranchi. In the meantime, two boys, namely, Suresh Mahto and Jagarnath Mahto, who were acquainted to her met her and asked as to where she would go, then she disclosed that she was waiting for a bus for receiving her daughter, thereafter, both the boys went away. It if further alleged that bus coming from Ranchi arrived but her daughter did not come. Then, she proceeded alongwith her younger daughter towards her home and reached near Karam Tungri middle school, then three boys came out from the bushes and assaulting her, snatched three-cell torch, her ear ring and Rs. 1500 from her and two boys forcibly dragged her towards the eastern ground of the school and committed rape on her one by one gagging her mouth by putting cloth, due to which she could not raise alarm. She identified both the miscreants, who were Suresh Mahto and Jagarnath Mahto. The third boy caught hold of the younger daughter of the informant, gagged her mouth, due to which she also could not raise alarm. It is further alleged that after commission of rape by the three accused persons they went towards the eastern side. She returned to her home and narrated the above incident to her husband, who advised her to convene a Panchayat in the morning. It is further alleged that the accused person fled away from their house. Hence, the Panchayati could not be convened, then she lodged written report on 15.11.2004.

On the basis of written report of the informant, an F.I.R. being Pithoria P.S. Case No. 52 of 2004 was registered against two named accused persons and one unknown person for the offences under Sections 376/379/323/34 of the I.P.C.

After completion of investigation, the charge-sheet was submitted against the present appellant including another accused namely Jagarnath Mahto showing him as absconder under Section 376, 379 & 323/34 I.P.C. and after taking cognizance, the case was committed to the court of Sessions, where S.T. No. 775 of 2005 was registered.

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

In the course of trial, altogether 6 witnesses were examined by the prosecution apart from following documentary evidence:

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 offences under Sections 376, 379 & 323 of the I.P.C. Accordingly, the learned Trial Court convicted and sentenced the appellant as stated above, which has been assailed in this appeal.

Assailing the impugned judgment, the learned counsel for the appellant has submitted that the appellant is quite innocent and has not committed any offence as alleged and there is no cogent and convincing direct or circumstantial evidence to show the involvement of the appellant in the alleged occurrence in any manner and there is no iota of evidence to connect him with this offence. It is further submitted that all the witnesses examined by the prosecution have contradicted to each other in the material particulars and no reliance can be given to the evidence available on the case record. It is further submitted that the prosecution has miserably failed to prove the charges levelled against the appellant. It is also submitted by the learned counsel for the appellant that there is delay in lodging the F.I.R. as stated in the written report, the occurrence took place on 13.11.2004 but the F.I.R. was registered on 15.11.2004. The medical report has also not been corroborated by the evidence of victim. It has also been submitted that younger daughter of the informant, who accompanied with her at the time of occurrence was not examined during trial. 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 stated that the medical examination report of the victim/prosecutrix coupled with other corroborative evidence available on record clearly proves that the sole accused alongwith his other associates has committed rape upon the prosecutrix. 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-4. She has stated in her examination-in-chief that on the date of occurrence, she had gone to Ratan Tanr Bus stand to bring her daughter, since her daughter was working as a daily wages labour at Ranchi, who was expected to come in the evening by bus. She has further stated that at the bus stand, she alongwith her younger daughter waiting for bus and at that place, the above named accused alongwith co-accused Jagarnath Mahto was also sitting there and they asked as to where she is going. Then, she replied that she had come at bus stand to bring her daughter, thereafter, both the accused persons went from there. When her daughter did not come by the evening bus, then she alongwith her younger daughter was returning to her home and in the meantime, near Karam Tungri the accused alongwith co-accused persons came out from the bush and dragged her near the school and third accused caught hold her daughter and appellant and co-accused Jagarnath Mahto after assaulting her and snatched her golden ear-ring and three-cell torch and committed rape upon her. Thereafter, she returned her home and narrated the occurrence to her husband. On next morning, one Panchayati was convened in the village but the accused persons did not attend the panchayati and fled away. Thereafter, she came in the police station and submitted her written report.

In her cross-examination, the occurrence has been corroborated by this witness. There is nothing to disbelieve the ocular, credible and trustworthy version of her statement. She also denies the suggestion of defence with regard to false implication of the accused. This witness proves that the accused was perpetrator of crime.

PW-1 Basu Oraon has stated in his examination in chief that on 13.11.2004 at about 7:30 P.M. evening the prosecutrix had gone to bring her daughter from Ratan Tanr, since her daughter was working as labourer and daily she used to go and return in home. He has further stated that at that time her younger daughter was also accompanying the prosecutrix but her daughter did not return home at Ratan Tanr by bus and at that place above named accused along with his associates namely Jagannath Mahto met the prosecutrix and thereafter both miscreants hid themselves behind the bush and while the prosecutrix alongwith her younger daughter was returning home and reached near a school at Karam Toli, the above named accused alongwith his another associate accused persons after assaulting her, also snatched her golden jewelry and gagging her mouth with cloth committed rape upon the prosecutrix. He has further stated that the prosecutrix told him that both the accused persons looted her golden chain and three-cell torch from her possession and thereafter the prosecutrix disclosed the occurrence to them. He has further stated that the that he told her that the matter will be discussed in the Panchayati but in Panchayati the accused persons did not come and absconded from there and when on 14.11.2004 the accused persons did not come in Panchayati then the prosecutrix on the next date lodged the present case.

PW-2 Dr. Jyotsna Sinha examined the victim and found following on her person:-

On P/V examination- no trauma, no foreign hair, swab taken and sent for pathological examination report.

Report of pathologist- dead spermatozoa found in the microscopic field of the slide.

Identification mark- mole above upper lip on the left side. The patient was brought by Nilambar Ram A.S.I., Pithoria P.S.

As per opinion of the doctor examining the victim the above finding indicates that the patient was raped. During her evidence the doctor has proved her medical examination report as Exhibit-1.

PW-3 Mangra Oraon has stated in his examination in chief that on the date of occurrence at about 7:00 P.M. evening the prosecutrix who is his sister-in-law, came in his house and told him that she had gone to bring her daughter from Ratan Tand, since her daughter was expected to come from Ranchi by bus but her daughter did not arrive. He has further stated that at Ratan Tand, two boys namely Suresh Mahto (the present appellant) and another associate namely Jagannath Mahto met the prosecutrix and asked her, where will she go. Then the prosecutrix replied then that she has come there to bring and accompany her daughter and thereafter both the said boys went from there. When the prosecutrix alongwith her younger daughter was returning home, then on the way near Karam Tungri school the above named accused alongwith his associates and one unknown accused after caught holding the prosecutrix assaulted her, committed loot of golden ear-ring and three cell torch and also committed rape upon the prosecutrix, and thereafter, prosecutrix returned home, disclosed the occurrence to him as well as to her husband. Then, he said that since it is night, so take sleep and on the next morning one Panchayati will be convened and thereafter on the next day Panchayati was convened but the above named accused did not come in the said Panchayati and fled away.

In his cross examination this witness has stated that he has not seen the occurrence through his eye.

PW-5 Jeetwahan Uraon, is the husband of the prosecutrix, who has stated in his examination that on the date of occurrence at about 7 P.M., he along with his uncle namely Lindu Urao was in his house and at that time his wife had gone to Ratan Tand bus stand to bring her daughter. At that time, his wife was accompanied by his younger daughter. He has further stated that by bus at 7:00 P.M. his daughter did not come and at that time the above named accused alongwith another accused persons were sitting there, asked his wife as to where she is going. Then his wife replied that she has come here to bring her daughter and thereafter when his daughter did not come, his wife alongwith his daughter younger daughter was returning to home. Then, on the way near Karam Tungri school the above named accused alongwith others came from bush and after assaulting his wife committed rape one by one upon his wife and thereafter his wife returned home and disclosed the occurrence to him. On the next day, one Panchayati was convened but the accused persons did not attend the same and fled away. Thereafter he along with his wife went to the police station and lodged the present case.

PW-6 Nilambar Ram is the investigating officer of this case. During his evidence, he has proved the place of occurrence and further stated that the place of occurrence is lonely place. In the course of investigation, he has recorded the statement of witnesses. He has issued requisition for medical examination of victim proved as Exhibit-2. Endorsement on written report as Exhibit-3 and formal F.I.R. as Exhibit-4. In the course of investigation, he received the medical report of the victim and after finding the case to be true he submitted charge sheet against the accused.

In his cross examination, he has stated that the younger daughter accompanying with the victim was of tender age, so he did not record her statement.

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

It appears that the sole eye-witness of this case is the victim (PW-4), who has categorically corroborated her earliest version contained in the fardbeyan and the factum of rape committed on her by the appellant. The younger daughter of the victim was aged about 8 years, due to which, the investigating officer has not recorded her statement and she was also not examined during trial being a child witness. However, the medical report of the prosecutrix also corroborates the case of prosecution. It further appears that PW-1 to PW-3 and PW-5 have supported the version of the prosecutrix. Though, they are not the eye witness of the occurrence, however, their testimony is acceptable in terms of Sections 6 and 8 of the Indian Evidence Act.

It is well settled principle of law that in a case of rape, the evidence of the victim is sufficient and there is no need for corroboration of the evidence of victim lady.

It is also trite that if the testimony of prosecutrix appears to be wholly reliable and unblemished, the conviction can be made on uncorroborated testimony of the prosecutrix alone.

In the case of “Krishan Kumar Malik vs. State of Haryana, as reported in (2011) 7 SCC 130, the Hon’ble Apex Court held that to hold an accused guilty for commission of an offence of rape, the solitary evidence of prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

In the instance case, after evaluating the deposition of victim alongwith the deposition of other witnesses, I am of the opinion that victim is absolutely trustworthy and unblemished.

In view of the above discussion and reasons, I do not find any legal substance in the point of arguments raised on behalf of the appellant and no merits in this appeal to take a different view and interfere with the impugned judgment passed by the learned Trial Court. As such, conviction and sentence of the appellant passed by the learned Trial Court is hereby upheld and confirmed.

Accordingly, this appeal is dismissed.

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

The appellant is on bail. His bail bond is herby cancelled.

The appellant is directed to surrender before the concerned Trial Court within two months from the date of this judgment and receive the remaining sentence awarded by the learned Trial Court and undergo the remaining period of imprisonment, failing which, the learned Trial Court shall take all coercive steps in securing the attendance of the appellant and sending him under proper conviction warrant to jail custody for undergoing the remaining period of sentence awarded to him.

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