Sarjug Yadav alias Sarjug Gope vs State of Jharkhand

Heard, Mr. Rajen Sahay assisted by Mrs. Nanda Kumari, learned counsels for the appellant and Mrs. Lily Sahay, learned Additional Public

Prosecutor appearing for the State.

The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 26.04.2003, passed by the learned

Additional Judicial Commissioner (F.T.), Civil Court, Ranchi, in S.T. No.83 of 2001 / T.R. No.321 of 2002, whereby the sole accused/appellant has

been convicted for the offence committed and punishable under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven

years and fine of Rs.10,000/- payable to the victim girl.

The prosecution case, is based upon, fardbeyan, of the informant, Lilu Kumari (P.W.1), recorded by the Officer-in-Charge, Mandar Police Station

in the District of Ranchi, on 27.09.2000 at around 19.45 hours, wherein the informant, aged about 15 years, has stated that she was taking rest in her

house along with her younger sister, aged about 2 years. Her mother has gone to attend the call of nature and her father, who is a Rickshaw puller,

had gone to Ranchi for plying Rickshaw. The informant has stated that due to illness, she was lying in the house. In the meantime, Sarjug Gope

(appellant) came inside the house of the informant and caught hold of her hand and took her to his house, where after disrobing the clothes of the

informant thrashing her and committed rape upon her. In the meantime, the mother of the informant came to the house of the accused, as her younger

sister was crying. The informant has alleged that during intercourse, the semen of the appellant was discharged, which she felt and thereafter the

informant wore the same undergarment. The informant has alleged that Sarjug Yadav (appellant) has committed rape against her will.

On the basis of the aforesaid 'fardbeyan' of the informant, the Police registered First Information Report bearing Mandar P.S. Case No. 84 of 2000

dated 27.09.2000 corresponding to G.R. No.2148 of 2000 under Section 376 of the Indian Penal Code against the sole accused/ appellant.

After investigation, the Police has submitted charge-sheet vide Charge-sheet No.90 of 2000 dated 30.11.2000, under Section 376 I.P.C. against the

sole accused/appellant.

The cognizance of the offence has been taken against accused/appellant vide order dated 19.12.2000 and the case has been committed to the Court

of Sessions vide order dated 14.02.2001.

The charge has been framed by the learned trial court on 07.09.2001 against the accused-appellant under Section 376 I.P.C., to which the

accused/appellant has pleaded his innocence and thus, he was put under trial.

The prosecution has examined altogether six prosecution witnesses and also exhibited a number of documentary evidence in order to prove its case.

Lilu @ Nilu Kumari, informant-cum-victim of the case, has been examined as P.W.1, Muturmani Devi has been examined as P.W.2, Krishan Gope,

father of the victim, has been examined as P.W.3, Savitri Devi, mother of the victim has been examined as P.W.4, Indrajit Singh, investigating officer

of the case, has been examined as P.W.5 and Dr. Bijay Kumar Sharma, Medical Officer, has been examined as P.W.6. 'Fardbeyan' has been proved

and marked as Exhibit-1, signature of the Investigating officer on the fardbeyan has been proved and marked as Exhibit-1/1 and the injury report

issued by the Doctor has been proved and marked as Exhibit-2.

After closure of the prosecution evidence, the statement of the accused/appellant has been recorded under Section 313 Cr.P.C., on 16.08.2002, to

which the appellant has denied about the occurrence and has stated that he has falsely been implicated in this case. The defence has also examined

two defence witnesses, but has not adduced any documentary evidence.

Jasmatiya Devi, wife of the appellant has been examined as D.W.1 and Rita Devi has been examined as D.W.2 10. The learned trial court, after

hearing learned counsel for the parties and on the basis of the material brought on record, has passed the impugned judgment of conviction and order

of sentence. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellant has preferred

the present Criminal Appeal before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence.

Heard, Mr. Rajen Sahay assisted by Mrs. Nanda Kumari, learned counsels for the appellant. Learned counsel for the appellant has submitted, that

the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has

further submitted that it is a case under Section 376 I.P.C., but from the evidence brought on record, it is apparent that the appellant has falsely been

implicated in this case, as the appellant is close relative of the victim with whom there was animosity.

Learned counsel for the appellant has further submitted that the place of occurrence, as described by informant (P.W.1- Lilu @ Nilu Kumari) is

different than the place of occurrence, as described by her mother (P.W.4- Savitri Devi), as such, the place of occurrence has not been proved.

Learned counsel for the appellant has further submitted that the dress which was worn by the victim is also contradicted by her mother (P.W.4-

Savitri Devi). The victim has categorically stated that she was wearing frock whereas her mother has stated that her daughter was wearing jumpher,

as such, discrepancies with respect to the dress of the victim, creates doubt about the prosecution case.

Learned counsel for the appellant has further submitted that as per the prosecution case, the victim has categorically stated that soon after commission

of rape, she was taken to Mandar Police Station in the same cloth and Doctor has examined her on the very next day on the basis of Police

requisition, but the injury report which has been proved and marked as Exhibit-2, clearly suggests that no positive evidence of rape has been found at

the time of examination. The Doctor has assessed the age of the victim, on the basis of the radiological report, between 17 to 19 years. The Doctor

has neither found any sign of injury on her private part or on her body nor any foreign hair was present. The Doctor has found no stain on private part

or on cloth, no matting of pubic hair was found, as such, learned counsel for the appellant has submitted that the prosecution case has been negated by

the medical evidence.

Learned counsel for the appellant has further submitted that the defence witnesses have been examined in the Case. D.W.2 (Rita Devi) has

categorically stated that the house of the appellant and the house of the informant is having common courtyard, whereas P.W.1 (Lilu @ Nilu Kumari)

has given a description which does not tally with the description given by mother of P.W.1, namely, Savitri Devi (P.W.4). As such, relying on the

aforesaid submissions, learned counsel for the appellant has submitted that the appellant cannot be convicted under Section 376 I.P.C. merely by

statement of the victim, who has falsely stated her age to be 15 years although the Doctor has found her age to be 17 to 19 years.

Learned counsel for the appellant has further submitted that testimony of P.W.1 (Lilu @ Nilu Kumari) cannot be believed, as the informant has

categorically stated during her cross-examination that prior to the occurrence, as alleged in the First Information Report, the appellant has ravished the

victim twice, which is not in consistence with the case of prosecution, as such, benefit of doubt may be granted in favour of the appellant. Learned

counsel for the appellant has further submitted that because of such vital contradictions in the deposition of the prosecution evidence coupled with the

fact that medical evidence has not supported the prosecution case, the appellant is entitled for benefit of doubt.

Heard, Mrs. Lily Sahay, learned Additional Public Prosecutor appearing for the State. Learned Additional Public Prosecutor appearing for the

State while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial

court on the basis of the material available on record and the learned trial court has rightly convicted the appellant under Section 376 I.P.C., as the

victim has categorically stated that she was raped by the appellant.

Learned counsel appearing for the State has further submitted that it is true that the victim has deposed during her cross-examination in the Court that

prior to the occurrence, she was twice raped by the appellant. Learned counsel appearing for the State has further submitted that the consistent case

of the prosecution is that the victim was taken from the house of the informant to the house of appellant, where she was sexually exploited by the

appellant.

Learned counsel appearing for the State has thus, submitted that the impugned judgment of conviction and order of sentence has been passed by the

learned trial court on the basis of the material available on record. Learned counsel appearing for the State has further submitted that the frock and

jumpher is the same cloth which are used in common parlance, as such, there is no discrepancy in the dress of the victim. Learned counsel appearing

for the appellant has opposed the submission advanced by the learned counsel for the State and submitted that jumpher salwar and frock are different

clothes and both are not same cloth, as submitted by the learned counsel appearing for the State.

Heard, Mr. Rajen Sahay assisted by Mrs. Nanda Kumari, learned counsels for the appellant and Mrs. Lily Sahay, learned Additional Public

Prosecutor appearing for the State and also perused the entire records of the case i.e. First Information Report, framing of charge, evidence of six

prosecution witnesses, prosecution exhibits, statement of the appellants recorded under Section 313 Cr.P.C. as well as two defence witnesses and the

impugned judgment of conviction and order of sentence.

From perusal of the evidence of the prosecution, particularly with regard to the place of occurrence, if it is compared with the evidence of D.W.2

(Rita Devi), it is apparent that place of occurrence, as stated by P.W.1 (Lilu @ Nilu Kumari) is different than what has been stated by P.W.4 (Savitri

Devi), mother of the victim and D.W.2 (Rita Devi). From perusal of the injury report which has been proved and marked as Exhibit-2, it appears that

the Doctor has not found any positive sign of rape. Doctor on the basis of the Radiological examination, assessed the age of the victim to be 17 to 19

years. Doctor has not found any external injury or evidence of matting of hair, as such, Doctor has categorically mentioned that no rape was

committed upon the victim.

This Court has taken judicial notice with respect to the dress of the victim and the statement of the victim. The victim has categorically stated, while

examining in the Court that prior to the occurrence, she was twice raped by the appellant, but no information was given to the Police, as per the case

of the prosecution. When the sexual intercourse was going on, mother of the victim has witnessed and thereafter the victim was brought to the Police

Station and thus, First Information Report was lodged. The discrepancies in the dress was there in the prosecution case. P.W.1 (Lilu @ Nilu Kumari)

has said that she was wearing frock whereas her mother has categorically stated that she was wearing jumpher.

From the evidence of P.W.1 (Lilu @ Nilu Kumari) and P.W.4 (Savitri Devi), there is difference between the frock and jumpher, as such,

discrepancies and contradictions have cropped up in prosecution case. As such, considering discussions, made herein-above, place of occurrence has

not been proved. The medical evidence belies the prosecution case coupled with the fact that dress described by the victim (P.W.1) and her mother

(P.W.4) are not one and the same, as such, this Court extends benefit of doubt in favour of the appellant.

Accordingly, Judgment of conviction and order of sentence, both dated 26.04.2003, passed by the learned Additional Judicial Commissioner (F.T.),

Civil Court, Ranchi, in S.T. No.83 of 2001 / T.R. No.321 of 2002 is hereby set aside by giving benefit of doubt in favour of the appellant.

The appellant, who is on bail, is discharged from the liability of his bail bonds.

Accordingly, the present Criminal Appeal stands allowed.

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