Choma @ Soma Melgandi vs State Of Jharkhand

Heard Mr. R.C.P.Sah, learned counsel for the appellant and Ms. Laxmi Murmu, learned A.P. P., appearing for the State.

This appeal is directed against the judgment of conviction dated 14.02.2006 and order of sentence dated 15.02.2006 passed by Sri G.K.Varma,

Sessions Judge, Seraikella-Kharsawan at Seraikella in Sessions Trial No. 110/2004 whereby and whereunder the appellant has been sentenced to

undergo R.I. for eight years for the offence u/s 376 of the IPC and to pay a fine of Rs.3000/- and in default thereof, S.I. for three months.

A complaint petition has been filed by the prosecutrix on 28.10.2003 alleging that while she was returning to her home from Kolebira Hat on

23.10.2003 at about 7 P.M. on the way she has been caught hold by the appellant and he has forcibly committed rape upon her. She has been

threatened not to disclose the incident to anybody. At the time of rape, the age of the prosecutrix was 16 years as disclosed in the complaint petition.

Out of fear, she went to the house of Shankar Sundi-P.W.5 (a co-villager) and narrated the incident. She stayed in his house for a night and in the

morning, her parents and uncle has been called to whom she has narrated the incident. The father of the prosecutrix has convened panchayati but the

appellant has not appeared. This has resulted in delay and finally when the prosecutrix has approached the police station, she has been advised to file a

complaint. Accordingly, a complaint petition being C/1 Case No.114 of 2003 has been instituted, which has been subsequently referred for institution

of F.I.R. and on that basis Seraikella P.S. Case No.61/2004 was registered under Section 376 of the IPC. After completion of investigation, police has

submitted charge-sheet against the appellant under Section 376 of the IPC. Thereafter, cognizance has been taken. Case has been committed to the

court of sessions and ultimately, charge has been framed under Section 376 of the IPC to which appellant pleaded not guilty and claimed to be tried.

To substantiate the prosecution story altogether seven witnesses have been examined.

P.W-1, Rameshwar Ho is the uncle of the prosecutrix .

P.W.-2 Suru Ho is the father of the prosecutrix

P.W.-4 Sukurmuni Gope is the mother of the prosecutrix . These witnesses had testified that the prosecutrix has disclosed the incident to them in the

morning of 24.10.2003. They have gone there on call of P.W.-5 (Shankar Sundi) regarding the incident. Thereafter, father (P.W.-2) has tried to call

panchayati but due to non appearance of the appellant no fruitful result could be achieved and finally the present case has been lodged.

P.W.-3 Sumitra Ho is the prosecutrix herself. She has testified the incident as narrated in the complaint petition. Nothing has been extracted from her

to disbelieve the story.

P.W.-5 is Shankar Sundi to whom house she went after the incident and stayed in the night. He had testified that at about 9 P.M. on the fateful day,

the prosecutrix has come to his house and stayed overnight and narrated the story and out of fear she was not willing to go to her home. He has called

her parents and uncle of the victim girl in the morning before whom she has also narrated the story.

P.W.-6 is the doctor, who has examined the prosecutrix and filed report at the Sub divisional Hospital, Seraikella. On the basis of pathological and

radiological test, he has opined the age of the prosecutrix as 15-16 years. As per medical examination, her hymen was torn old and she was subjected

to sexual intercourse and no external injury has been found on her person.

Ext.-4 is the medical report. Ext.-3 and Ext.3/1 are the two X-ray plates and Ext.-5 is the formal F.I.R.

P.W.-7 is the I.O. of the case and has testified that she has been assigned the job of investigation of the Seraikella P.S. Case No.61/2004. She has

testified that she has examined the place of occurrence and the prosecutrix and taken the statement of the prosecutrix. She further stated that she got

medical report of the prosecutrix from the hospital and arrested the accused also. On completion of investigation, accused has been charged.

Ext.-5 is the formal F.I.R., which has been proved by the I.O.

Exts.-1, 4 and 5 are the complaint petition, medical report and formal F.I.R., which has been proved.

The defense was total denial and no oral or documentary evidence has been led in support of the appellant. The issue fall for consideration to this

Court is “whether the prosecution has been able to prove the charge of Section 376 of the IPC against the appellant beyond all reasonable

doubt?â€​

Learned counsel for the appellant has advanced the argument and submitted that there is a delay of 5 days in lodging the F.I.R. and further the place

of occurrence is a rocky place and no external injury has been found on the body of the proseuctrix. Suggestion has been given to the witness that

parents of the prosecutrix were desirous for marriage of the prosecutrix with the present appellant and were pressurizing the appellant for marriage.

Therefore, the present case has been instituted.

Per contra, learned A.P.P. has supported the judgment of conviction. It has been argued that it is a settled principle of law that the testimony of

prosecutrix is enough to sustain the conviction. In the present case, there is no contradiction or lacuna in the testimony of prosecutrix. Further the

version of the prosecutrix gets corroborated from the witness-Shankar Sundi (P.W.-5) to whom the incident has been narrated immediately after the

incident. Medical evidence also corroborates the version of the prosecutrix.

Heard learned counsel for the parties.

The prosecution story is that while the prosecutrix was returning to her home from Kolebira Hat on 23.10.2003, she has been lavished by the appellant

near the Nala. She has been threatened not to disclose the incident to anybody. At the time of incident, the age of the prosecutrix has been disclosed

as 15 years by the prosecutrix herself and her parents. The age gets corroboration from the radiological report and medical report available on record.

Thus, the age of the prosecutrix at the time of incident was below 16 years, meaning thereby, she was minor. The prosecutrix story as testified by her

as P.W.-3 transpires confidence. There is no contradiction in the testimony of age which has been evidenced. The incident has been narrated to

P.W.-5 who has also been examined and supported the incident. The incident gets corroboration from the medical evidence testified by P.W.-7.

P.Ws.-1, 2 and 4, who are uncle and parents of the prosecutrix to whom the incident has been narrated in the morning, have also testified that the

incident was narrated to them in the morning on 24.10.2003.

Considering the entire evidence and material available on record, this Court finds that there is enough evidence produced by the prosecution to

substantiate the charge of Section 376 of the IPC against the appellant for which appellant has been charged. This Court finds that no lacuna or doubt

in the prosecution case and as such the judgment of conviction dated 14.02.2006 and order of sentence dated 15.02.2006 passed by Sri G.K.Varma,

Sessions Judge, Seraikella-Kharsawan at Seraikella in Sessions Trial No. 110/2004 is, hereby, confirmed. Consequently, the appeal stands dismissed.

The appellant is on bail. His bail bonds are cancelled. He is directed to surrender before the court concerned to serve the remaining sentence.

Let a copy of this judgment be transmitted to the court concerned through ‘FAX’.

Let the lower court records be sent to the court concerned forthwith.