Niwas Mandal vs The State of Jharkhand

Pradeep Kumar, J.—Heard learned Counsel for the appellant and counsel for the State.

This appeal is directed against the judgment and order of conviction dated 2.8,2002 and 3.8.2002 respectively passed by the Additional Sessions Judge-I Rajmahal District-Sahibganj in S.C, No. 135/1993 by which judgment he found the appellant guilty u/s 376 IPC and sentenced him to undergo R.I. for seven years and a fine of Rs.2000/- and in case of default further undergo R.I. for six months.

It has been submitted by the counsel for the appellant that it has come in the evidence that the victim-informant Rita Kumari is married wife of the appellant-accused Niwas Mandal and significantly he left her and conducted a second marriage. She has filed a false case against the appellant and the prosecution has not proved beyond reasonable doubts. It is also admitted that the investigating Officer was not examined in the case and as such the conviction of the appellant is bad and fit to be set-aside.

On the other hand, learned Counsel for the State has submitted that the prosecutrix- P.W. 1 has fully supported her case in the court and the Doctor found that the intercourse might have taken place and also spermatozoa was found and as such the appellant has rightly been convicted.

After hearing both the parties and going through the records I find that the prosecution, on the basis of fradbyan given by the victim Rita Kumari-P.W.1 on 10.5.2002 at 11 A.M., in which she stated that she is aged about 15 years and on the last night when she had gone to the western side of the village for easing, Niwas Mandal-accused caught hold of her from behind and threatened her on the point of dagger and committed rape upon her and it was seen by Sudhir Mandal and he made hulla then villagers Mukesh Mandal, Haribol Mandal and Sikin Mandal and Ors. came there and chased the appellant, but failed to chase him and the appellant ran away from the place of occurrence.

On the basis of the fradbeyan given by the victim, the police registered a case u/s 376 of the IPC and after investigation submitted charge-sheet against the accused-appellant. Since the case is exclusively trialbled by court of Session and the case was committed to the courl of Session where the trial was held and the learned Additional Session Judge found him guilty and convicted him as aforesaid.

It appears that in course of trial, prosecution has examined six witnesses. P.W.1-Rita Kumari, P.W.2 Rasia Devi, P.W.3 Sikin Mandal, P.W.4 Bhuwesh Mandal, P.W.5 Dilip Kumar Mandal and P.W.6 Doctor Subhadra Singh, Medical Officer.

The P.W.1-victim lady has supported her case in the court stating that on the date of occurrence at about 8 P.M. in night when she had gone western side of the village for easing, then accused-appellant caught hold of her from behind, threatened her on the point of dagger and committed rape upon her. On her ''hulla'' villagers came there and ,they chased the accused, but he ran away. On the next day, she went P.W.2-Rasia Devi, mother of the victim lady stated that on the date of occurrence, the accused caught hold her daughter and committed raped upon her and Sudhir Mandal has reported the matter to her. In her cross-examination, she also admitted that Niwas Mandal-accused had conducted the registered marriage with her daughter.

P.W.3-Sikin Mandal stated that on hulla of Sudhir mandal on the date of occurrence at about eight P.M. in the night, he ran to the place of occurrence and saw that the accused ran away. They tried to chase him but they failed to arrest him.

P.W.4 has also stated that on hulla of Sudhir Mandal, he went to the place of occurrence and he also tried to chase him.

P. W.6-Doctor Subhadra Singh, who examined the victim lady on the next day i.e. on 11.5.1992 and found no injury on her body including any injury on her breast, She had found no external or internal injuries on the victim but she found that hymen of the victim was ruptured, It is possible that sexual-intercourse might have been taken place.

The prosecution has also examined the defense witnesses and they have filed the document to show the non-complicity of the appellant and also the informant Rita Devi had filed the complaint case u/s 498A of the IPC against the accused. The have also file the marriage certificate of Sahibganj.

9 After going through the entire prosecution case, it appears that the accused has married with the informant-victim lady Rita Kumari and he might have caught hold of her and attempted to made outrage of her modesty but no rape was committed as per the F.I.R. Itself and as per the evidence of other witnesses. The doctor found no sign of injury on her body nor any sign of rape and no any presence of semen over her private part. In that view of the matter, the conviction of the appellant u/s 376 of the IPC is not maintainable.

In a similar case of Premiya @ Prem Prakash Vs. State of Rajasthan, , found the appellant guilty u/s 354 of the IPC where the medical report did not support the prosecution case, more so, in this case, since the rape has not been proved. In that view of the matter, the conviction u/s 376 of the IPC is alter to that of Section 354 of the IPC and the sentence of the appellant is alter u/s 376 of the IPC.

The period of sentence has already been covered during trial. With the aforesaid conviction of sentence of trial. The appeal is allowed in part.