Dhyan Sahu vs State of Jharkhand

Heard, learned counsel appearing for the appellant, Mr. A. K. Chaturvedy assisted by Mr. Amit Kumar Choubey, Advocate and learned Addl.

Public Prosecutor appearing for the State, Mr. Anand Kumar Pandey.

The instant Criminal appeal is directed against the judgment of conviction dated 29.11.2003 and order of sentence dated 01.12.2003, passed by

the learned Sessions Judge, Gumla, in Sessions Trial No.113 of 2002 (arising out of Sisai P.S. Case No.28 of 1999 corresponding to G.R. No.198 of

1999), whereby the sole appellant, Dhyan Sahu has been convicted for the offence punishable under Sections 450 and 376 of the Indian Penal Code

and sentenced him to undergo rigorous imprisonment for 2 years for the offence punishable under Section 450 of the Indian Penal Code and to pay

a fine of Rs.200/- and in default of payment of fine, to further undergo rigorous imprisonment for 15 days and further to undergo rigorous

imprisonment for 7 years, for the offence punishable under Section 376 of the Indian Penal Code and to pay a fine of Rs.500/- and in default of

payment of fine, to further undergo rigorous imprisonment for one month.

The prosecution case is based upon, on the basis of the, written report of the victim- P.W.5 (whose name has not been disclosed) has alleged that

on 03.04.1999, at about 4.00 p.m., while she was bringing the dried cow dung cake inside the room, the appellant entered into the room, closed the

door from inside, tied her mouth and after removing of the cloth, committed rape upon her. She has further stated in the First Information Report that

after commission of rape, she has disclosed the same to her father, mother, brother and bhabhi. The informant has alleged that the occurrence took

place at 4.00 p.m. on 03.04.1999, when she was raped, but because of Panchayati, which was convened on 04.04.1999, due to that, the information

was given to the Police, on 05.04.1999 that is on Monday.

 On the basis of the aforesaid 'fardbeyan' of the informant, the Police has instituted First Information Report being Sisai P.S. Case No. 28 of 1999

(dated 05.04.1999), corresponding to G.R. No.198 of 1999 under Sections 448 and 376 of the Indian Penal Code, against the sole accused/appellant.

After investigation, the Police has submitted charge-sheet against the sole accused/appellant vide Charge-sheet No.37 of 1999 dated 27.07.1999

under Sections 448 and 376 of the Indian Penal Code..

The learned Chief Judicial Magistrate has taken cognizance of the offence, vide order dated 12.08.1999, and the case has been committed to the

Court of Sessions vide order dated 10.06.2002. The charge has been framed against the accused/appellant on 11.09.2002, under Sections 450 and 376

of the Indian Penal Code by the learned trial court, to which the accused/appellant has pleaded his innocence, and thus, he was put under trial.

The prosecution, in order to prove its case, has examined altogether eight witnesses.

P.W.1 is Harishankar Sao (uncle of the informant), a signatory witness of the First Information Report, but he has been declared hostile by the

prosecution.

P.W.2 is Nagendra Sao (own brother of the victim) and he has also been declared hostile by the prosecution.

Harihar Sahu (father of the victim) has been examined as P.W.3

.Surji Devi (mother of the victim) has been examined as P.W.4.

Victim of this case has been examined as P.W.5, who proved her signature on the written report as Exhibit-1.

Dr. Kamini Barnwal (Medical Officer) has been examined as P.W.6. Suresh Sahu has been examined as P.W.7.

He is a hearsay witness. Amar Kumar Sinha (Advocate's Clerk) has been examined as P.W.8. He, being a formal witness, has proved the signature

of the officer-in-charge, on the formal First Information Report, as Exhibit-1/1, case diary of Sisai P.S. Case No.28 of 1999 from Para-1 to 57 written

by Assistant Sub Inspector, Jagdish Prasad Singh, as Exhibit-3.

After closure of the prosecution evidence, the appellant/accused was examined under Section 313 Cr.P.C. on 14.08.2003, to which he has denied

about the occurrence.

Learned counsel appearing for the appellant, Mr. A. K. Chaturvedy, assisted by his junior counsel, Mr. Amit Kumar Choubey, Advocate, has

submitted, that the impugned judgment of conviction and order of sentence is bad in law. Learned counsel for the appellant has further submitted that

from the perusal of the evidence of the prosecution-witnesses, there are major contradictions. Learned counsel has further submitted, that even the

statement of the informant in her written report as well as her examination as P.W.5, there are vital contradictions.

Learned counsel for the appellant has further submitted, that in the First Information Report, the genesis of the occurrence is said to be land dispute,

but during examination in the Court, the witnesses have specifically denied about any land dispute. Learned counsel for the appellant has further

submitted, that Dr. Kamini Baranwal (P.W.6) has categorically stated, that there is no positive sign of rape.

Learned counsel for the appellant has further submitted that evidence of P.W.7 (Suresh Sahu) at para-3, during his cross-examination, has

categorically stated that there was no 'Panchayati' regarding the occurrence.

Learned counsel for the appellant has further submitted, that P.W.2 (Nagendra Sao) is own brother of the victim and P.W.1 (Harishankar Sao) is the

uncle of the victim, but both have been declared hostile by the prosecution and have not supported the case of the prosecution. He has further

submitted, that from the perusal of evidence of P.W.3 (Harihar Sahu), P.W.4 (Surji Devi) and P.W.5 (Victim), there are major contradictions, as such,

the impugned judgment of conviction and order of sentence is bad in law.

Learned counsel appearing for the appellant has drawn attention of this Court towards the evidence of P.W.3 (Harihar Sahu ), from which it

appears to this Court that P.W.3 (father of the victim) and P.W.4 (mother of the victim) were in the market, when they have been informed by their

grand-daughter, that accused/appellant, Dhyan Sahu has entered inside the room of the victim and committed rape, but it is strange to the Court that

the father remained in the market and the mother came to the house. P.W.4 (mother of the victim) has stated, that when she came to the house, by

that time the accused person has fled away from the house, but when the evidence of the victim (P.W.5), is taken into consideration, the victim has

stated that accused/appellant, Dhyan Sahu has entered into the house, gagged her mouth by inserting the cloth and tied her hand on the back and after

removing the cloth, committed rape upon her, for half an hour. She has further stated, that soon after entry of accused into her house, her mother

came after ten minutes and her brother as well as aunt were there and while they were knocking the door, the accused fled away.

Victim during her cross-examination in Para-5, has given wrong day of occurrence when she said that occurrence, when she has stated that

occurrene took place on Monday at 2.00 p.m.

Learned counsel has drawn attention of this Court towards improvement made by P.W.3 (Harihar Sahu- father of the victim), who was signatory

to the First Information Report, who has never stated, that accused/ appellant, Dhyan Sahu has put a knife on him, but during his examination, he has

improved the prosecution case, that accused, Dhyan Sahu has put a knife on him.

Thus, learned counsel appearing for the appellant relying on the aforesaid submissions, has submitted that under such background, conviction of the

appellant cannot sustain in the eyes of law.

Learned counsel has further submitted, that neither sister-in-law nor the aunt nor the niece of the victim, who has informed the father and mother of

the victim, has been examined in this case.

Learned counsel has further submitted, that the investigating officer of the case has also not been examined in this case, as such, under the aforesaid

background, learned counsel for the appellant has submitted that because of the land dispute and there was no sign of rape, found by the Doctor, the

appellant has been wrongly convicted by the learned trial court, as such, impugned judgment of conviction and order of sentence is bad in law.

Mr. Anand Kumar Pandey, learned Addl. Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and

order of sentence, has vehemently argued that the conviction of the appellant under Sections 450 and 376 of the Indian Penal Code, has been rightly

passed by the learned trial court, as the victim was of the 16 years of age at that relevant time and she has categorically stated, that she has been

raped by the appellant inside the room, when she was arranging dried cow dung cake and at that time, she was alone, as such, the learned trial

court has rightly convicted the appellant.

Having heard Mr. A. K. Chaturvedy, learned counsel appearing for the appellant assisted by his junior counsel, Mr. Amit Kumar Choubey,

Advocate and Mr. Anand Pandey, learned Addl. Public Prosecutor appearing for the State and on perusal of the records such as, First Information

report, charge, evidence of the witnesses, exhibits, this Court is of the opinion that it is a case where an allegation has been made by the victim against

her nephew for commission of rape, but from the evidence of the victim, as stated in the First Information Report and in her deposition, adduced as

P.W.5, there are vital contradictions. In the First Information Report, she has said that, her mouth was tied with 'gamcha', but in her deposition as

P.W.5, she has said that her mouth was gagged with cloth and hands were tied on the back. After removal of the cloth, she was raped, for half an

hour and in the First Information Report, P.W.5 has said, that occurrence took place because of the land dispute, but in the deposition of P.W.5 and

the other prosecution witnesses, who have not said that occurrence took place because of the land dispute. Further, P.W.5 in her 'fardbeyan' has said

that occurrence took place on 03.04.1999 at 4.00 p.m., which was Saturday, but during her cross-examination as P.W.5, she has said that rape was

committed on Monday at 2.00 p.m. meaning thereby, rape was committed on 05.04.1999. The victim has said that after commission of the rape, she

has informed her father, mother and brother, but in her examination, she has said that after ten minutes of entering inside of the accused, her mother

came and she knocked the door. While she was knocking the door, several persons were also present but the accused fled away. All these vital

contradictions coupled with the fact that P.W.6 (Dr. Kamini Baranwal) has categorically stated, that there is no positive sign of rape, coupled with the

fact that P.W.7 (Suresh Sahu) has categorically stated, that there was no panchayati.

Under such background coupled with the fact that P.W.3 (father of the victim) and P.W.4 (mother of the victim) have tried to develop their case

during depositions , but there are vital contradictions. From the First Information Report and evidence of P.W.1 (Harishankar Sao) and

P.W.2(Nagendra Sao), brother of the victim, both have been declared hostile, this Court is of the opinion that the appellant is entitled for benefit of

doubt. This Court acquits the appellant from charge and judgment of conviction and sentence under Sections 450 and 376 of the Indian Penal Code by

giving benefit of doubt.

Accordingly, the judgment of conviction dated 29.11.2003 and order of sentence dated 01.12.2003, in Sessions Trial No.113 of 2002 (arising out of

Sisai P.S. Case No.28 of 1999 corresponding to G.R. No.198 of 1999), passed by the learned Sessions Judge, Gumla, is hereby set aside.

Accordingly, the instant appeal stands allowed.

The appellant, who is already on bail, is discharged from the liability of thebail bonds.

Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.