Nakul Kumhar vs The State of Jharkhand

Ajit Kumar Sinha, J.—The present appeal has been preferred u/s 374(2) of the Code of Criminal Procedure challenging the judgment and order dated 11.09.2001 passed by the learned 1st Additional Sessions Judge, Saraikella in Sessions Trial No. 198/99, Kharswan P.S. Case No. 11/99 dated 01.04.1999 corresponding to G.R. Case No. 142/99 vide which the appellant has been convicted u/s 366 read with Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years. At the very outset the Counsel for the appellant submitted that the appellant has already undergone the period of sentence, however, he preferred to argue the appeal for the purpose of acquittal. In the aforesaid background the present appeal is being heard on the merit of the case.

The case of the prosecution in brief is set out as under:

On the occasion of Chait festival the informant, who is the husband, and others after taking their meals were preparing to go to bed when he found his wife missing. He made enquiries from the villagers and other relatives and came to the conclusion that Nakul, the appellant herein, has enticed away his wife in order to marry her. It is also stated that he searched for his wife for nearly 11 months and could finally trace her at Adityapur living with Nakul Kumhar, the appellant herein and was having sexual intercourse with her. The prosecution has examined six witnesses in all out of which P.W.-1 Chaitan Kumhar, P.W.-2 Sita Ram Kumhar and P.W.-3 Ratan Kumhar were declared hostile and there was no other independent witness examined to support the prosecution case. P.W.-4 is Dr.Radhika Kumari Sinha of Saraikela Hospital, who examined the victim, wife of the informant on 06.04.1999 and has reported that the prosecutrix was above 25 years of age and that there was no sign of rape nor spermatozoa was found on her. P.W.-5 Jai Ram Kumhar, the informant, in his First Information Report (Ext-2) has nowhere stated that on the alleged night of occurrence the brother-in-law .of the informant had come to his house and he went to see him off nor did he state that the appellant Nakul Kurnhar was also present in the house on the alleged night.

From the perusal of deposition of P.W.6 (victim) and her statement u/s 161 Cr.P.C. it transpires that she left the house of the informant and went with the appellant and during the period of 11 months she traveled at several places. The F.I.R., in the instant case, has been lodged nearly after one year of the alleged kidnapping. On the aforesaid basis Saraikela, Kharsawan P.S. Case No. 11/99 was registered u/s 366, 497, 498 & 376 I.P.C. against the appellant. The I.O. was not examined in the instant case by the prosecution. P.W.-5 in his evidence has stated that on the occasion of Chait festival in 1998 his entire family had gathered in his house including his brother-in-law and the appellant Nakul, who happens to be the husband of the niece of the informant, to celebrate the occasion. He further submitted that after taking meal the informant went to see off his brother-in-law and when he returned at about 2 a.m. he found that his wife Pati Kumharin and the appellant Nakul were missing from the house and even upon search could not find them. He has also submitted that he searched his wife for about 11 months and it is only thereafter that the informant lodged the written information which is Ext.2 at Kharsawan Police Station. In his cross-examination he has reiterated the alleged occurrence and stated that after 11 months of the occurrence the accused was arrested by the police and he disclosed that he had abducted the wife of the informant and kept her at Adityapur and on his disclosure the wife of the informant was recovered. In his cross-examination this witness has admitted that he informed the police about the occurrence but no such information has been proved by the prosecution. P.W.-6, the victim, in her evidence also corroborated the evidence of the informant and stated that on the occasion of alleged Chait Parva the entire family gathered at her house and on that occasion the accused Nakul also had come to her house. She further stated that the appellant accused Nakul came to her and took her away with her entire ornaments to Rourkela. Thereafter the accused brought her to Adityapur. She has also stated that during that period the accused has committed rape on her several times and she has identified the accused in the dock. In cross-examination she has fully corroborated the prosecution case and reiterated that the accused forcibly took her away with her clothes and money at about 2.00 p.m. and took her to Kharsawan and thereafter went with her to Rourkela and she could not say anything due to fear. She has further stated that the accused took her to the house of his brother at Hamirpur and kept her for seven days and thereafter he kept her for two months in a rented house. She has further stated that after two months the accused brought her from Rourkela to Adityapur and kept her secretly at Khanbari. She has further slated that at Khanbari the appellant was residing with her when the the police recovered her and arrested the appellant.

The defence in their evidence submitted that the evidence of the victim PW-6 is concocted and unbelievable. They have further stated that she has willingly left the house of the informant and gone with the accused. The question of being abducted forcibly against her will and being raped for 11 months without raising any alarm or disclosing such incident cannot be believed.

The learned Counsel for the appellant submits that the prosecution has not even examined the I.O. and thus the prosecution witnesses cannot be believed. The second contention raised by the Counsel is that the question of rape and the ingredients of Section 376 I.P.C. is lacking in the instant case for the sole reason that the victim herself states that she was taken from place to place at regular interval during 11 months and she neither raised any objection nor made any complaint nor disclosed anything during the period of 11 months and everything was consensual. The third contention raised by the appellant is that the F.I.R. was lodged nearly after one year from the date of occurrence and in the cross-examination the prosecution as well as the informant could not substantiate even the contention that any complaint was made earlier. It has further been submitted that not a single person was examined to prove the charge of kidnapping u/s 366 I.P.C. even though the entire family was present. Even, as per the report of the Doctor neither any rape was committed nor any spermatozoa were found. It has also been pointed out that there are material contradictions in the evidence and the statement made by the informant. In the statement made by the informant he nowhere stated that his brother-in-law had come on the occasion of Chait festival nor it has been said that Nakul, the present appellant, was present whereas in his evidence for the first time he has stated that he went to see off his brother-in-law and the appellant was present on the date of incident. He has also admitted that the relation between the informant and his wife was not cordial and there were allegation of torture and thus she had left the house at her own will and was a consenting party for such a long period and thus the question of rape and abduction having been committed against her will, does not stand to reason and despite that the learned Sessions Court after considering the entire evidence on record and cross-examination held the appellant guilty of charges u/s 366 & 376 I.P.C. and has sentenced him to seven year rigorous imprisonment with fine.

u/s 366 of the Indian Penal Code force has to be used and the person has to be taken against her will for the purpose of seduction or illicit intercourse on the promise of marriage. None of the witnesses or the informant or even the prosecutrix has anywhere stated that force was used to take her by the appellant nor has any one alleged that the appellant promised to marry her. As per the informant and the prosecutrix evidence the entire family was present on the occasion of Chait festival but neither the informant nor the prosecutrix, nor any of the relatives even alleged that any abduction or force was used. Instead the prosecutrix has in her evidence stated that she went with her clothes and ornaments. Thus everything was consensual and the appellant could not have been convicted u/s 366 I.P.C. Likewise u/s 376 I.P.C. the basic requirement is to prove the fact that the rape was committed against her will and that has to be proved by way of evidence including that of the prosecutrix who is the victim herself. It does not stand to reason when the prosecutrix herself states in her evidence that she was taken even to the house of the brother of the appellant and she lived there for some time. It cannot be believed that the prosecutrix had no occasion or chance either to disclose or go out and make a complaint for good 11 months. None of the witnesses have stated that she was put under lock and key and or confined to a room or was not allowed to go out. No such evidence has been raised by the victim. The statements of the informant is full of contradiction and does not inspire confidence. Even otherwise, it cannot be said that the appellant was allowed to commit rape for 11 months and both the informant and prosecutrix waited for one year to lodge the complaint.

The learned A.P.P. has fairly submitted that even though Section 366 I.P.C. will not apply but certainly Section 376 I.P.C. will apply and he has been rightly held guilty u/s 376 I.P.C. Even for Section 376 I.P.C. force has to be used to commit rape against the will of the victim.

The Hon''ble Supreme Court in a similar case as reported in Jinish Lal Sah Vs. State of Bihar, held that no case of rape u/s 376 I.P.C. can be made out when the evidence shows that the prosecutrix had planned her departure from her house in advance and willingly went away with the accused appellant. In the aforesaid case the facts were that the prosecutrix from 30th April to 10th May i.e. for 10 days traveled with the accused appellant by train, tempo and stayed with the appellant without there being any evidence of her having protested or having made any effort to seek assistance from others or even trying to run away and in the aforesaid background the Hon''ble Supreme Court set aside the judgment and conviction of the Court below u/s 376 I.P.C. In the instant case the prosecutrix planned out her departure by taking her clothes and ornaments and she traveled many a places from time to time for 11 months without any protest or any effort to seek assistance from others, not did she try to run away and in absence of any such evidence the entirecase of the prosecution fails.

There are material contradiction in the written iformation given by PW-5 and his evidence. There is not a single eye witnessto support the case of prosecution even though as per the case of prosecution and informant the entire family was present at the place of occurrence on the Chait festival. In the first information report it has been stated that the prosecutrix was found traceless at about 9.00 P.M. whereas in the examination-in-chief PW-5 and PW-6 prosecutrix in their evidence submit that she was abducted at about 2.00 A.M. Even PW-1, PW-2 and PW-3 have not supported the case of the prosecution. In any event neither the informant nor the prosecutrix even alleged of any force used or that she was abducted against her will.

In the aforesaid background in absence of any convincing evidence and in view of material contradiction and the fact that the complaint/F.I.R. was lodged after one year of the occurrence, the order of conviction and sentence passed by the learned 1st Additional Sessions Judge, Saraikella in Sessions Trial No. 198 of 1999, arising out of Kharsawan P.S. Case No. 11 of 1999, is held to be illegal and unsustainable and is accordingly set aside. The appeal is thus allowed and appellant is acquitted of all the charges. However, there shall be no order as to costs. The appellant, who is in jail, is directed to be released forthwith, if not required in any other case.