Ishwar Mahto vs State Of Jharkhand

Heard learned counsel for the appellant and learned counsel for the State.

This appeal is directed against the judgment of conviction dated 7th June, 2003 and order of sentence dated 16th June, 2003 passed by Shri Sanjay

Kumar Chandhariyavi, Additional Sessions Judge, F.T.C.II, Hazaribag in Sessions Trial No.346 of 1994 holding the appellant guilty under Section 376

(1) of the Indian Penal Code and awarded seven years rigorous imprisonment with fine of Rs.500/- and in case of default in payment of fine awarded

further two months imprisonment.Â

The prosecution case, in short, is that on 29.04.1994 when informant Meena Devi was grazing her goat at nearby place of Hurunga Tar (Pahar) at

about 4.00 p.m., accused Ishwar Mahto and Tukan Dhobi came and tried to caught hold informant Meena Devi. Informant Meena Devi tried to run

away from that place in order to save herself, however, near Hurunga Pahar accused Ishwar Mahto caught Meena Devi in presence of Tukan Dhobi.

Accused Ishwar Mahto put down Meena Devi on the ground and committed rape upon her. Accused Tukan Dhobi remain present there with knife,

and was also threatening to keep silence. After committing rape both accused persons ran away from that place. Informant Meena Devi reported this

matter to her mother-in-law Somari Devi. Somari Devi went to the house of Ishwar Mahto and complained about the occurrence to father of Ishwar

Mahto. Lachhu Mahto, Ishwar Mahto and Deoki Mahto assaulted Meena Devi, her mother-in-law and her husband by lathi and slapped due to which

her mother-in-law sustained injury on her head.Â

Initially the case was lodged against four accused namely Ishwar Mahto, Tukan Dhobi, Deoki Mahto and Lachhu Mahto under Sections 376/34

read with Section 109 of the Indian Penal Code. After investigation charge-sheet was submitted against all the accused persons under Section 376/34

and Section 323/34 of the Indian Penal Code. After commitment of case to the court of Sessions, charge was framed against all the accused persons

under Section 376 of the Indian Penal Code but later on charge was amended and accused Ishwar Mahto, Deoki Mahto and Lachhu Mahto were

charged under Section 323/34 of the Indian Penal Code whereas accused Tukan Dhobi @ Tukan Baitha was charged under Section 376/109 of the

Indian Penal Code and accused Ishwar Mahto was charged under Section 376 of the Indian Penal Code. The amended charge were explained to all

the accused persons which they denied and claimed to be tried. The trial proceeded.

In order to prove the case, the prosecution examined six witnesses on its behalf.

P.W.1 Rameshwar Baitha is husband of victim who stated that the occurrence relates to two years two months prior to recording of his evidence.

He was at his residence. His wife Meena Devi after returning from grazing goats informed that Ishwar Mahto has committed rape upon her and at

that time Tukan Dhobi was holding knife in his hand and threatened her that if she will raise alarm, she would be killed. He further stated that after

hearing this he along with his mother went to the house of Lachhu Mahto and complained about his son Ishwar Mahto. Thereafter, Deoki Mahto,

Ishwar Mahto and Lachhu Mahto all the three assaulted him, his wife as well as his mother causing head injury to his mother. He further deposed that

Deoki also assaulted his mother by lathi. They went to Giddi Police Station where fardbeyan of his wife was recorded. After lodgment of the case,

police inspected the place of occurrence. He recognized all the three accused Tukan Dhobi, Ishwar Mahto and Lachhu Mahto present in court and

claimed to identify absentee accused Deoki Mahto. During cross-examination, he stated that his wife returned at around 5 p.m. in the evening and

then she disclosed about the incident. They went to police station where the statements were recorded on which he had put his thumb impression.

Next day, the police inspected the place of occurrence. Police also saw the injury of his mother as well as her blood stained Saree. Treatment of his

mother was done in the Giddi hospital. Police has also recorded the statement of neighbors. He also stated that he had not gone to the residence of

accused person rather his mother had went there but the assault was made by the accused persons at his residence after his mother returned. He

denied the suggestion about the lodgment of the false case.

P.W.2 Meena Devi is victim of this case. She narrated that at around 4 p.m. in the evening on Friday she was engaged in grazing the goat and

reached Durunga Tand (Hillock). She was chased by Ishwar Mahto and Tukan Dhobi. While she was returning after grazing goat, Ishwar Mahto and

Tukan Mahto forcibly hold her and committed rape upon her near the mango tree. Firstly, Ishwar Mahto committed rape upon her. Tukan Mahto was

holding knife in his hand and was threatening not to raise alarm. Voluntarily she stated that Tukan Mahto had not committed rape upon her. She

further stated that she was forcibly laid on the ground and Ishwar Mahto forcibly committed rape upon her. She narrated the incident to her mother-in-

law and to her husband then her mother-in-law went to the house of Lachhu Mahto to complain about these happening. Then Ishwar Mahto, Deoki

Mahto and Lachhu Mahto came to his residence holding lathi and assaulted her mother-in-law and husband, as a result of which her mother-in-law

got head injury. At around 10 p.m., they went to the police station where Daroga Jee wrote her statement and after finding it true, she put her thumb

impression. Thereafter, she was sent to Sadar Hospital, Hazaribag for the medical examination. During medical examination, her X-ray was done and

Daroga has taken her statement. She recognized Ishwar Mahto and Tukan Baitha present in court and claim to identify the absentee accused Lachhu

Mahto and Deoki Mahto who were represented through their advocate so the defence has waived the identity of both the accused. During cross-

examination, she admitted that after rape she felt pain and there was redness in her private part. She had also got some scratches on her back. While

they had thrown her on the ground, her face was pressed. Her Sari and Blouse were torn. She further stated that she remained in the hospital for

three days. She also stated that police inspected the place of occurrence after eight days but no other villager was present. She denied the suggestion

that on the instigation of Deenu Dhobi this false case has been lodged. He also denied the suggestion that a Panchayti was held at the house of Sultan

Mian and this case was lodged thereafter.Â

P.W.3 Somri Devi is mother-in-law of the victim. She deposed that her daughter-in-law Meena Devi who had gone for grazing goat returned to

house and stated that Ishwar Mahto has committed rape upon her and Tukan Baitha was accompanying him and threatening her. The incident

occurred at about 5 p.m. in the evening. Thereafter, she went to the house of Lachhu Mahto (father of Ishwar Mahto) and complained about his

conduct. When she returned to her residence Ishwar Mahto, Deoki Mahto and Lachhu Mahto also came and assaulted her as well as his son

Rameshwar and due to the assault she got head injury. After incident of assault they went to police station where the statement of her daughter-in-

law was recorded and she was sent to Sadar Hospital, Hazaribagh for treatment. She recognized Ishwar Mathto and Tukan Mahto standing in court.

During cross-examination, she stated that when she had gone to the residence of Lachhu Mahto and complained him about the conduct of accused

then he did not believe her statement and after she returned to her residence, she was assaulted for which her and her son’s medical treatment

was done. She denied the suggestion that she is deposing false in court.Â

P.W.4 Kailash Prasad Yadav is a part I.O. who has only submitted the charge-sheet upon accused persons. During crossexamination, he submitted

that he has neither inspected the place of occurrence nor had recorded the statement of victim nor seized any material exhibits in this case. He had

only recorded the statement of Prasadi Prajapati and Vipat Singh but they were not eye witness of this case. He denied the suggestion that he has

done faulty investigation.

P.W.5 Vipat Singh and P.W.6 Prasadi Prajapati both became hostile and not supported the prosecution case. Â

Counsel for the appellant submitted that in this case the prosecution took almost seven years to examine the witnesses after framing of the charge

even then the doctor and I.O. of this case were not examined. He further submitted that only the victim of this case who has been examined as P.W.2

has supported the factum of commission of rape upon her by the sole appellant. He further submitted that the trial court after scrutiny of the evidence

only believed part of the evidence and convicted this appellant only under Section 376 of the Indian Penal Code and disbelieved another part of her

statement and therefore acquitted rest of the accused persons as well as this appellant under Section 323/34 of the Indian Penal Code. He relied on a

decision of this Court in the case of Geta Gorai @ Geeta Gorai Versus The State of Bihar reported in 2008(4) JLJR 345 wherein it has been held that

non-examination of doctors caused prejudice to the accused in the situation when two different events, contradictory to each other appear on the

record as to the cause of injuries sustained. Further non-examination of I.O. also prejudiced the accused as the appellant was denied of the

opportunity to put certain questions in relation to the objective finding on the point of place of occurrence and the manner of occurrence. He also

placed reliance upon the case of Lalliram & Another Versus State of Madhya Pradesh reported in (2008) 10 SCC 69 in which it has been held that

where testimony of prosecutrix found to be self-contradictory and also inconsistent with testimony of other PWs as well as with medical evidence,

then accused cannot be convicted on the basis of her version. He submitted that P.W.2 while deposing has stated that firstly Ishwar Mahto committed

rape upon her. Thereafter, she voluntarily stated that Tukan Dhobi has not committed rape upon her, this version is creating doubt. For these reasons,

the appellant may be given the benefit of doubt. Lastly, he submitted that this appellant has altogether remained in custody for about one year.Â

Learned A.P.P. appearing on behalf of the State submitted that there is consistency in the evidence of victim as well as her husband and mother-

in-law who were immediately informed about the commission of rape when the victim returned to the residence at around 5 p.m. in the evening.

P.W.3-Somri Devi has also deposed that immediately thereafter she went to the house of father of appellant to lodge complain about conduct of his

son and when she returned, she was assaulted by this appellant along with other accused persons although they were acquitted by the court below. He

also submitted that P.W.4 Kailash Prasad Yadav had recorded the statement of two prosecution witnesses who was also examined and has submitted

charge-sheet in this case. Lastly, he submitted that it is well settled principle that even on the solitary statement of victim, conviction can be done.Â

Considering the above submission of the parties and on scrutiny of the evidences adduced on behalf of the prosecution, it appears that only the

victim has supported her allegation about commission of rape by the appellant. She has stated that she was medically examined at Sadar Hospital,

Hazaribag but prosecution could not brought on record any such medical report. She has also stated that during the occurrence her clothes were torn

but no such material exhibits or seizure list showing seizure of torn clothes of victim were brought on record by the prosecution. P.W.2 Meena Devi

has also replied during cross-examination that the police has inspected the place of occurrence after eight days. It also appears that the court below

has disbelieved part of her evidence which resulted in the acquittal of other accused persons including this appellant under Section 323/34 of the Indian

Penal Code. Another part of her evidence is supported by P.W.1 Rameshwar Baitha her husband and P.W.3 Somari Devi, mother-in-law but both

witnesses have narrated that P.W.2 Meena Devi had informed her. As per version of theses witnesses, the case was lodged only after this appellant

along with other accused persons had come to their residence and assaulted them, but that part of prosecution has not been believed by the trial court.

The victim during her examination-in-chief has stated that firstly Ishwar Mahto had committed rape upon her and Tokan Mahto was holding knife

which gives an impression that more than one person have committed rape on her. This statement is also creating doubt. She voluntarily submitted that

Tokan Mahto has not committed rape upon her, therefore, the evidence of P.W.2 creates some doubt on this point that how many persons have

committed rape upon her. In these circumstances and basing on the decisions relied upon by the counsel for the appellant, benefit of doubt is given to

the appellant in this case.Â

In the result judgment of conviction dated 7th June, 2003 and order of sentence dated 16th June, 2003 passed by Shri Sanjay Kumar

Chandhariyavi, Additional Sessions Judge, F.T.C.II, Hazaribag in Sessions Trial No.346 of 1994 is set aside giving the benefit of doubt to the sole

appellant.Â

In the result, this appeal is allowed.Â

Since the appellant is on bail, therefore he is discharged from the liabilities of his bail bond.Â

Let the Lower Court Records be sent back to the court concerned.Â