Lakheshwar Sao @ Lakhan Sao vs The State of Jharkhand

Pradeep Kumar, J.—This appeal is directed against the judgment of conviction and order of sentence dated 25.1.2002 passed by Shri D.D. Guru, 3rd Additional Sessions Judge, Hazaribag in Sessions Trial No. 56 of 1991 by which judgment learned Sessions Judge found the appellant guilty for the offence u/s 366 and 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 7 years and the sentences were directed to run concurrently.

It appears that the prosecution case was started on the basis of the fardbeyan given by the informant, Dahani Devi aged about 18 years on 13.4.1990 at 11.45 p.m. at Jyoti Rest House, bus stand, Hazaribag. She has stated to the Officer In-charge, Sadar Police Station that she was married to Chaman Sao of village Keredari and she was living at her husband''s house with her in-laws. On 11.4.1990 in the evening her naihar''s co-villager Lakheshwar Sao @ Lakhan Sao had came to her village and stayed in the house of a relative. In the morning of 12.4.1990 she had gone to the Ghaghra jungle for picking mahua. Then, Lakhan Sao came and told that her mother is seriously ill and her father is weeping and called her immediately. Then after getting assurance from Lakhan Sao that he has taken permission from her in-laws, she left with him. They came to Patra road and boarded a metadoor standing there. When the metadoor stopped at Ranchi, then she enquired from him as to why he has brought her to Ranchi instead of taking her to her father''s house. Then the accused told her that he has got some urgent work at Ranchi and from here he will take her to her mother''s house. At Ranchi they stayed in the night in a hotel. In the morning of 13.4.1990 the accused asked her to go to her mother''s house and by bus they reached Hazaribag in the night. At Hazaribag after inquiry Lakhan Sao told the victim that presently there is no bus available for Keredari and they will stay at the bus stand and he will take her to Keredari early morning. Thereafter, they stayed at Jyoti Rest House at the side of Bus Stand in one room. The accused slept at the bed and she was sleeping at the floor. But, suddenly at night he came down from the bed and after removing her clothes committed rape upon her by force. She made hulla whereupon he closed her mouth by force and hearing the hulla hotel employees informed the police and then when police came, she gave her statement.

On the basis of the said fardbeyan, police registered a case u/s 366 and 376 of the I.P.C. and after investigation submitted charge sheet. Since, the case was exclusively triable the court of sessions, learned Magistrate, after taking cognizance, committed the case to the court of Sessions and lastly on transfer the case was tried by the 3rd Additional Sessions Judge, Hazaribag who found the appellant guilty u/s 366 and 376 of the I.P.C. and convicted and sentenced him as aforesaid.

It is submitted by the learned Counsel for the appellant that there is delay in lodging the F.I.R. since the victim girl was kidnapped on 11.4.1990 and the F.I.R. has been lodged on 13.4.1990. He has further submitted that she was taken to Ranchi where she stayed with the appellant and had made no objection and again came to Hazaribag and stayed in the rest house and hence, she is consenting party. As such the conviction and sentence is bad in law and fit to be set aside. He has further submitted that the appellant has been falsely implicated in this case.

On the other hand, learned Counsel for the state has opposed the prayer and submitted that there is no delay in lodging the F.I.R. since, as soon as the appellant committed criminal act upon her by committing rape, police came and the matter was reported. Moreover, there is no question of consent since the accused took her in confidence of taking her to her mothers house and on that pretext moved with her from Hazaribag to Ranchi and Ranchi to Hazaribag back. Since he did not misbehave, hence, there was no suspicion against him that he will commit rape and as such the appellant was rightly convicted and sentenced as aforesaid.

After hearing the parties and after going, through the evidences on record, I find that the prosecution has examined altogether 5 witnesses to prove the charges.

P.W. 1 Ram Krishna Sahay is a formal witness who has proved the signature of the Officer In charge and his writing marked as Ext. 1.

P.W. 2. Dr. R.S. Vandana has examined the victim girl and proved the medical report marked as ext 2.

P.W. 3 Narad Mohan Singh is also a formal witness who has proved the fardbeyan in the writing of the Officer In charge, Ashok Kumar as Ext. 3.

P.W. 4 Gulab Sharma is the Investigating Officer of the case.

P.W. 5 Basanti Devi @ Dahani Devi is the victim girl and informant of the case.

From the evidences adduced by the prosecution, it appears that the informant-prosecutrix who was examined as P.W.5 has fully supported the prosecution case and has stated in court also that on the date of occurrence i.e. 11.4.1990 when she was staying with her in-laws, the accused Lakhan Sao, who is a village brother from her parent''s side, came to her ''sasural'' and stated that her mother is seriously ill and her father has called her immediately and also stated that he has taken permission from her mother-in-law and father-in law whereupon she accompanied him. The accused brought her to the Patra road where they boarded in a metadoor. When the metadoor stopped at Ranchi then she made objection, thereupon the accused stated that he has got some urgent work at Ranchi and after concluding the work he will take her back to her ''naihar''. Next day they left Ranchi for her naihar and reached Hazaribag by bus. It became late at night and no bus was available for keredari. Then they stayed in a Hotal near the bus stand where the accused brought food for the victim and thereafter he went to sleep on the bed and she was sleeping on the ground. But, suddenly in the night he came down and after removing his clothes he pull up the sari and saya of the victim and committed rape upon her. When she stalled making hulla, he closed her mouth with cloth by force, but hearing hulla somebody called the police where she gave her statement. She has stated that this fardbeyan was given by her and after signing of the fardbeyan, she has put her Left thumb impression. The officer in charge also seized her saya which had stain of sperm of the accused. She identified the accused in the court.

In cross examination she has stated that at Ranchi the accused did not misbehave with her. He had kept her in the night in the house of some relative whom she does not know. At her naihar also the accused never misbehaved or ever seen her with bad eyes. Subsequently, in fact she came to know at Hazaribag that without taking permission of father-in-law and mother-in-law he has brought her to Ranchi by making false statement that he has taken permission from her in-laws. She has stated in para 7 that she never thought that the accused will commit some crime upon her. When, suddenly, at night he came down and when she made hulla, then he put some cloth in her mouth. She denied that she has falsely implicated the accused. Thus, after going through the statement of the prosecutrix in the court, I find that he has stood the test of cross examination and nothing adverse has been brought by the defence.

P.W.4, the investigating officer of the case has also supported the prosection case and stated that on 14.4.1990 he was posted at Sadar P.S., Hazaribag and the Officer in charge brought the victim girl to the police station after recording her fardbeyan (marked as ext.3). On the basis of the said fardbeyan, formal F.I.R. was recorded and investigation was given to him. The officer in charge has also brought the seized saya. He recorded the victim''s statement. He proved the seizure list as ext.4 in the writing of Ashok Kumar. Thereafter, he sent the victim girl for medical examination to the Sadar Hospital, Hazaribag. He also inspected the room of the Jyoti rest house from where the victim girl was brought when she was raped by the accused. He also recorded the statement of the Hotel witnesses and after completion of the investigation submitted charge sheet. He has stated that the ''saya'' of the victim girl was kept in a sealed cover but, the same was not sent for chemical examination.

The next important witness is P.W.2 -Dr. R.S. Vandana who has examined the victim on 17.4.1990 and found that the victim was married from before. She found no sign of rape. The hymen of the victim was torn from before. The doctor did not find spermatozoa in her internal part and submitted that no definite opinion of rape can be given.

Thus, from the evidences of P W.2, 4 and 5 it is apparent that the victim girl was taken into confidence by the appellant since, he was related to her as village brother and the victim had no doubt from before that the appellant will dupe her or commit any crime upon her. When the accused stated that the mother of the victim is seriously ill and her father has sent him to bring her immediately, then she had no doubt that the accused will do anything wrong, when the accused assured her of taking permission from her in-laws, whereupon she left with him and boarded the metadoor and when the metadoor stopped at Ranchi, then also there was no occasion for doubt against the appellant, since at Ranchi also he did not misbehaved with the victim girl and told her that he has got some urgent work at Ranchi and will take her to her naihar in the next morning and in the next morning he took her by bus to Keredari but, the bus reached late at Hazaribag bus stand and since, there was no communicating bus for Keredari, he put up in the rest house itself where accused slept separately on the bed and the victim slept on the ground not knowing that the accused had some bad intention. But, suddenly the appellant after undressing himself went down from the bed and committed rape upon the victim who raised hulla upon which the hotel inmates called the police and gave the fardbeyan immediately. There is no contradiction in the evidence in cross examination.

It is submitted by the learned Counsel for the appellant that there is delay in lodging the F.I.R. but from the statement of the victim girl as discussed above, it is clear that on 11.4.1990 the victim girl was with her family members and she had no indication that the appellant will not take her to her naihar and instead took her to Ranchi. She could not lodged the F.I.R. since, the victim girl was fully assured that after conclusion of the work the appellant would take her to her naihar and further, the appellant did not misbehave with her and as such there was no question for suspicion to lodge any case and on 13.4.1990 immediately, when in the night the appellant attempted to commit rape, she raised hulla and when the police came, she immediately reported the matter to the police. So there is no delay in lodging the F.I.R.

Learned Counsel has further submitted that there was consent to commit rape. As discussed above, there is no question of any consent. She had moved with the accused thinking that he is like brother and never thought that on the fateful night on 13.4.1990 in the rest house, the accused will convert into a demon.

In the facts and circumstances of the case, I find no material in the argument of the learned Counsel for the appellant. The case has been proved by the statement of the victim girl beyond all reasonable doubt and there is nothing to doubt the victim girl. The conviction and sentence passed by the court below is well discussed and well proved.

Accordingly, the appeal is dismissed. The judgment of conviction and order of sentence passed by the court below is hereby confirmed.