Mantu Mahto vs State of Jharkhand

Since, both the aforesaid Criminal Appeals are arising out of common impugned judgment of conviction and order of sentence, as such, both are

being disposed of, by a common judgment.

Heard, Mr. Mahesh Tewari assisted by Mr. Subrata Kishore Singh, learned counsel for the appellants and Mr. Nehru Mahto, learned Addl. Public

Prosecutor appearing for the State.

The aforesaid both Criminal appeals are directed against the judgment of conviction dated 28.03.2003 and order of sentence datedÂ

31.03.2003, passed by learned 12th Addl. Sessions Judge, Dhanbad, in S.T. No.563 of 2002, whereby the appellant, Ram Kumar @ Rane @ Bir

Bahadur [in Crl. Appeal (SJ) No.1335 of 2003] has been convicted for the offence committed under Section 376 of the Indian Penal Code and

appellant, Mantu Mahto [in Crl. Appeal (SJ)Â No.559 of 2003] has been convicted for the offence committed under Sections 376/511 of the Indian

Penal Code. The learned trial court has awarded appellant, Ram Kumar @ Rane @ Bir Bahadur to undergo Rigorous imprisonment for five years for

commission of the offence under Section 376 I.P.C. and appellant, Mantu Mahto to undergo rigorous imprisonment for two and half years for

commission of offence under Sections 376/511 I.P.C.

The prosecution case is based upon 'fardbeyan' of the informant (whose name is not being disclosed here), recorded by the Sub Inspector of Police,

Bhola Prasad Singh of Tetulmari Police Station, on 02.10.2002 at 10.00 hours, wherein the informant has stated, that she is earning her livelihood by

selling the vegetables in the market, at Tetulmari Pandeydih. She has alleged, that before 2-3 days (Sunday), on 29.09.2002 after selling vegetables,

she was going along her empty baskets and as soon as, she reached near Tetulmari Kanta, she saw a Nepali boy coming behind her, namely, Ram

Kumar @ Rane @ Bir Bahadur, as such, the informant became suspicious. On that very day, she has performed 'Jitiya' festival by keeping herself on

fasting, as such, she sat near the hand-pump, washed her mouth and hand. In the meantime, accused person has concealed her basket along with one,

Mantu Mahto. The informant after cleaning her mouth, went near the place, where she has kept her basket, both the accused persons laughed at her.

The informant got suspicion and thereafter the accused persons returned the basket of the informant. It is alleged, that by that time there was

darkness and as soon as, the informant reached near Tetulmari Railway Station, she saw both, Rane and Mantu standing on the way. On seeing them,

the informant became afraid and thereafter both the accused persons snatched her basket, threw it and dragged her near Nagrikala Basti and disrobed

the informant and also disrobed themselves. The informant tried to raise brawl and made prayer to leave her, but Mantu Mahto abused her and Ram

Kumar @ Rane @ Bir Bahadur committed rape upon the informant. The informant has further alleged, that Mantu Mahto after disrobing her clothes

was ready for commission of rape, but in the meantime, 2-3 persons having torch in their hands, came towards Station and after seeing them, both the

accused persons fled away. The informant after wearing clothes, was going towards the house. In the meantime, her husband met her, to whom the

informant disclosed about the occurrence. Thereafter, the informant along with husband returned to their house, but because of the prestige, they

could not disclose the incident to any body, rather both were in search of both the boys, but they could not be searched out and thereafter with the

consultation of the respectable persons of the society, they filed the case.

 On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report, bearing Katras (Tetulmari) P.S. Case No.

227 of 2002, dated 02.10.2002, corresponding to G.R. No.2549 of 2002, under Sections 376 /34of the Indian Penal Code.

After investigation, the Police submitted charge-sheet vide No.266 of 2002 dated 31.10.2002, under Sections 376/34 I.P.C. against both the accused

persons. The cognizance of the offence has been taken and the case has been committed to the Court of Sessions vide common order dated

16.11.2002. The charge has been framed against both the accused/appellants Ram Kumar @ Rane @ Bir Bahadur and Mantu Mahto under Sections

376/34 of the Indian Penal Code vide order dated 17.01.2003, to which the appellants pleaded their innocence and claimed to be tried, thus they were

put under trial.

The prosecution in support of its case, has examined altogether fivewitnesses and also adduced three documents as Exhibits.

Informant-cum-victim has been examined as P.W.1, Rajesh Kumar Rawani, son of the informant has been examined as P.W.2, Kewal Rawani,

husband of the victim has been examined as P.W.3, Rameshwar Prasad Yadav, Investigating officer of the case has been examined as P.W.4 and

Dr. Sabita Sukla Das (Medical officer), who has examined the informant-cumvictim, has been examined as P.W.5.

Signature of the husband of the informant (P.W.3- Kewal Rawani), on the fardbeyan has been proved and marked as Exhibit-1, Fardbyean has been

proved and marked as Exhibit-2 and Medical report has been proved and marked as Exhibit-3.

After closure of the prosecution evidence, the accused/appellants have been examined under Section 313 Cr.P.c. on 20.02.2003, to which they

have denied about the occurrence and the evidence brought against them.

After hearing, learned counsel appearing for the parties and on perusal of the records, as well as on the basis of the materials available on records, the

learned trial court has convicted both the appellants vide impugned judgment of conviction and order of sentence, which has been assailed by the

appellants before this Hon'ble Court.

Being aggrieved by and dissatisfied with the impugned judgment of conviction and order of sentence, both the appellants have preferred separate

Criminal appeals, which are being heard together, as both arise by the common impugned judgment of conviction and order of sentence and both are

being disposed of by the common judgment.

It is relevant to state here, that in Crl. Appeal No.1335 of 2003, this Hon'ble Court has been pleased to call for a report vide order dated 12.12.2017

and in pursuance thereof, report has been submitted, which is available at Flag- 'A' vide Letter No.50 dated 25.01.2018, whereby it has been informed

that convict, Ram Bahadur @ Bir Bahadur has been released from Sessions Trial Case No.563 of 2002, after serving out entire period of

sentence awarded to him on 18.10.2006.

Heard, Mr. Mahesh Tewari, assisted by Mr. Subrata Kishore Singh, learned counsel appearing for the appellants and Mr. Nehru Mahto, learned

Addl. Public Prosecutor appearing for the State.

Mr. Mahesh Tewari, learned counsel appearing for the appellants, while assailing the impugned judgment of conviction and order of sentence, has

submitted, that the same has not been passed on the basis of the materials available on record, and the same cannot sustain in the eyes of law.

Learned counsel for the appellants has submitted, that after three days of alleged occurrence, the First Information Report has been lodged, although

P.W.1 (Informant-cum-victim) was knowing the names of the accused persons and also mentioned the names of the accused persons in her

'fardbeyan', as such delay has not been explained properly.

Learned counsel for the appellants has further submitted that, if the delay has been caused because of the prestige then there was no reason, that she

lodged the First Information Report after a delay, on the advice of the reputed persons of the society.

Learned counsel for the appellants has further submitted, that the case of the appellant, Ram Kumar @ Rane @ Bir Bahadur is different from the

case of Mantu Mahto. Appellant, Ram Kumar @ Rane @ Bir Bahadur, who has been alleged to have committed rape, whereas Mantu Mahto has

only been alleged, that he has disrobed the lady and disrobed himself and was ready for commission of rape.

Learned counsel for the appellants has further submitted, that evidence of P.W.1 (victim of the case) is having no credential to rely by the learned trial

court and by this Hon'ble Court for convicting the appellants. He has further submitted that Rajesh Kumar Rawani -P.W.2, (son of the informant),

whose statement under Section 161 Cr.P.C. has also not been recorded. He has further submitted, that P.W.3 (Kewal Rawani) husband of the victim,

has proved his signature on the fardbeyan and the same has been marked as Exhibit-1 and in his cross-examination, in Paras 32 and 33, has

categorically stated, that he has neither talked with his wife nor he has asked about those two accused persons nor he has found any blood stained or

anything, on the clothes of the victim.

Learned counsel for the appellants has further submitted, that the Investigating officer (P.W.4- Rameshwar Prasad Yadav) has done a perfunctory

investigation in this case and has not complied with, the provisions enshrined under Section 53(A) Cr.P.C., to establish that rape has been committed

by accused/appellant, Ram Kumar @ Rane @ Bir Bahadur, as such, benefit of doubt may be given in favour of the appellants, as the Doctor (P.W.5),

who has examined the victim, has not found any foreign hair in the private part nor any external injury nor any stained either of blood or semen, on the

body of the informant-cum-victim (P.W.1). Doctor (P.W.5) has also opined, that evidence of forcible intercourse has not been found upon the victim.

Learned counsel appearing for the appellants, in support of his submission, has also relied upon in the case of Tarkeshwar Sahu Vs. State of Bihar

(Now Jharkhand), reported in (2006) 8 Supreme Court Cases 560, wherein Hon'ble the Supreme Court has held that in absence of any attempt to

penetrate, conviction under Sections 376 /511 I.P.C. was wholly illegal and unsustainable.

Learned counsel appearing for the appellants has submitted, that in view of the ratio, laid down by Hon'ble the Supreme Court, the appellant, Mantu

Mahto is also entitled to be acquitted of the charge and conviction under Sections 376 /511 I.P.C.

Mr. Nehru Mahto, learned Addl. Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of

sentence, has submitted that the impugned judgment of conviction and order of sentence is well-founded on the basis of materials available on record.

Learned counsel for the State, Mr. Nehru Mahto, learned Addl. Public Prosecutor has submitted, that the informant-cum-victim (P.W.1) has fully

supported the case, as made out in the 'fardbeyan' and also in deposition. Learned counsel for the State has further submitted that Doctor (P.W.5) has

not found any external injury or recent sign of sexual intercourse on the body of the lady because of the fact that victim has been examined by the

Doctor after delay of about four days and also victim is a married lady having children.

Learned counsel for the State, Mr. Nehru Mahto, learned Addl. Public Prosecutor has submitted, that the evidence of witnesses i.e. P.W.1

(informantcum-victim), P.W.2 (Rajesh Kumar Rawani) and P.W.3 (Kewal Rawani) are consistent, as such, there is no reason, that this Hon'ble Court

may consider, that there is any exaggeration in the evidence of these witnesses.

Learned counsel for the State, Mr. Nehru Mahto, learned Addl. Public Prosecutor has further submitted, that P.W.2 (Rajesh Kumar Rawani), son of

the informant has categorically stated, that his statement has not been recorded under Section 161 Cr.P.C. and P.W. 3 (Kewal Rawani), husband of

the victim has categorically stated, that he did not ask from his wife about those accused persons, who have committed offence with her. This itself

shows that this is a case, where without any development and concoction, the prosecution has established its case against both the accused/appellants,

namely, Ram Kumar @ Rane @ Bir Bahadur and Mantu Mahto, as such, the learned trial court has rightly convicted the appellants under Sections

376 and 376/511 I.P.C. respectively.

Heard, Mr. Mahesh Tewari assisted by his junior counsel, Mr. Subrata Kishore Singh, learned counsel for the appellants and Mr. Nehru Mahto,

learned Addl. Public Prosecutor appearing for the State and on perusal of the entire records including the First Information Report, framing of charge,

evidence of all the five prosecution witnesses, three exhibits and statement under Section 313 Cr.P.C. of the appellants, it appears that the evidence of

P.W.1 (informant-cum-victim) is consistent to her statement made in the 'fardbeyan'. It is true, that there is delay in lodging the First Information

Report, but she has explained, as to why delay has been caused, as such, delay is not fatal to the prosecution case and the defence has not cross-

examined her on the point of delay to disbelieve the prosecution case. The victim has been cross-examined on behalf of the defence, but nothing has

been elucidated to disbelieve her statement, as made out in the learned trial Court. She (P.W.1, informant-cum-victim) has categorically stated, that

Ram Kumar @ Rane @ Bir Bahadur has committed rape upon her. She (P.W.1) has categorically stated, that both the appellants, Ram Kumar @

Rane @ Bir Bahadur and Mantu Mahto have disrobed her and also removed their clothes, but the informantcum-victim has never stated, that Mantu

Mahto has taken any attempt to commit rape upon her against her will. From the evidence of P.W.5 (Dr. Sabita Shukla Das) and medical report

(Exhibit-3), this Court is of the opinion, that Doctor has neither found any external injury nor evidence of forcible sexual intercourse, as the victim has

been examined after delay of approximately four days, in the meantime, she must have attended the call of nature and the informant is an aged lady

having two children, as such, no such mark has been found after delay of about four days.

This Court is of the opinion, that for falsely implicating the appellants, there is neither any reason nor any suggestion has been given, on behalf of the

defence to establish, that these two appellants have been convicted because of ulterior motive at the hands of the victim. The evidence of P.W.2 (son

of the informant) and P.W.3 (husband of the informant-cum-victim) is without any development. Had there been any motive for falsely implicating the

persons or the appellants, they could have given a different version, but from the perusal of the same, their credential is not under cloud and the

evidence of the victim is consistent to her 'fardbeyan'.

Since the appellant, Ram Kumar @ Rane @ Bir Bahadur [ Crl. Appeal (SJ) No.1335 of 2003] has already served out the sentence and has been

released, as communicated by the learned trial court vide Letter No.50 dated 25.01.2018, the appeal preferred by the appellant, Ram Kumar @ Rane

@ Bir Bahadur, is hereby dismissed without any modification in the sentence.

So far appellant, Mantu Mahto [in Crl. Appeal (SJ) No.559 of 2003] is concerned, his conviction under Sections 376 /511 I.P.C. cannot sustain in the

eyes of law, as there is neither evidence nor any attempt, in view of the judgment, as reported in the case Tarkeshwar Sahu Vs. State of Bihar

(Now Jharkhand), reported in (2006) 8 Supreme Court Cases 560, wherein the Hon'ble Supreme Court has held that in absence of any attempt to

penetrate, the conviction under Sections 376 /511 I.P.C. wholly illegal and unsustainable.

From perusal of the records, nowhere the victim has stated, that appellant, Mantu Mahto has attempted to commit rape upon her, rather worst

evidence, that has been placed against the appellants, Mantu Mahto along with appellant, Ram Kumar @ Rane @ Bir Bahadur of disrobing the victim

and also removing her cloth and also against appellant, Mantu Mandal was sitting for committing rape, but since there is lack of attempt, the conviction

under Sections 376/ 511 I.P.C., cannot sustain in the eyes of law, as the conviction of the appellant, Mantu Mahto is modified to conviction under

Section 354 I.P.C. and the sentence, which has been imposed by the learned trial court is hereby also modified to rigorous imprisonment, which shall

not be less than one year. 14. Since the appellant, Mantu Mahto remained in jail custody since 03.10.2002 to 29.04.2003, as such, his bail bond is

cancelled. Accordingly, he is directed to surrender and to serve out rest of the sentence.

If the appellant, Mantu Mahto does not surrender before the learned court below, the learned Trial Court is directed to take all coercive steps against

him to serve out rest of the sentence.

With the aforesaid observations, both the Criminal Appeals (S.J.) bearing Nos.1335 of 2003 and 559 of 2003, are hereby dismissed. The Crl.

Appeal (SJ) No.559 of 2003 whereby Mantu Mahto has been convicted under Sections 376 /511Â I.P.C. is modified under Section 354 I.P.C. and

awarded rigorous imprisonment for one year. The period already undergone by the appellant- Mantu Mahto shall be set off under Section 428 Cr.P.C.

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