Srihari Mahato @ Hari Mahato vs State Of Jharkhand

Arun Kumar Rai, J

Heard Mr. Rohan Mazumdar, learned counsel appearing on behalf of the appellant and Mr. Anup Pawan Topno, learned A.P.P. for the State.

This appeal is directed against the judgment of conviction and order of sentence dated 19.11.2003 passed by learned 1st Additional Sessions Judge, Chaibasa in Sessions Trial No. 229 of 1994, arising out of Chakradharpur P. S. Case No. 142 of 1993, corresponding to G. R. Case No. 328 of 1993, for the offence under Section 376 of the Indian Penal Code to undergo RI for seven years.

In the present case F.I.R. being Chakradharpur P.S. Case No. 142 of 1993 corresponding to G.R. Case No. 328 of 1993 dated 09.08.1993 got registered on the basis of statement of victim/prosecutrix (vide Exhibit- 3). Victim/prosecutrix made statement on 09.08.1993 at 2:15 P.M. that she is unmarried lady of 35 years of age and allegedly on 27.07.1993 she was alone at her home, then at about 1:00 P.M. accused/appellant came to her house and caught hold of her and forcefully committed rape on her person. She further stated that no one was present in the home and in the evening when family members came, then she told the incident to everyone then his uncle Basudeo Mahato, brother Shashibhusan Mahato and Karu Mahato and other family members called villagers on the next day including the accused/appellant and his father. It was decided that accused/appellant had to keep victim/prosecutrix as his wife and as per decision of panchayat she remained at the house of accused/appellant as a wife since 28.07.1993 to 08.08.1993, but today i.e. 09.08.1993 accused/appellant kicked her out from the house, thereafter she reached at her home and told to her family members and thereafter giving intimation about the incident.

After due investigation, I.O. has submitted the charge-sheet against the accused/appellant under Section 376 of Indian Penal Code and cognizance was taken for the said offence by learned S.D.J.M. Chakradharpur vide order dated 01.10.1993 and after commitment case was transferred to court of Sessions.

Learned counsel for the accused/appellant submitted that the case of the prosecution which has come from the mouth of victim/prosecutrix appears to be improbable and false implication of accused/appellant cannot be ruled out in the present case as there is lot of material contradiction in the testimony of victim/prosecutrix itself and the evidence which has come from the mouth of family members of victim/prosecutrix as well as villagers, which make the case of prosecution doubtful. It has been pointed out on behalf of accused/appellant that it is consistent plea of accused that accused/appellant has been falsely implicated in the present case as he belongs to well-off family and brother and uncle of the victim wanted to get married victim/prosecutrix with accused/appellant as she was infirm and of advance age. Learned counsel drew attention of this Court towards the cross-examination of victim and testimony of family members of the victim/prosecutrix and villager also, and pointed out number of contradictions with a view to convince this Court that version of victim ought not to be believed by the Court in the present case.

Per contra, learned A.P.P. for the State submitted that it is trite law that sole testimony of victim/prosecutrix is sufficient to indicate the culpability of accused/appellant for alleged commission of crime if the testimony inspire confidence to the Court and in the present case there is no reason to doubt the version of victim/prosecutrix who is physically infirm and the contradiction as pointed out by learned counsel for the appellant is not material in nature which could shake the foundation of case of prosecution. Therefore, there is no reason before this appellate court to take a different view from that of trial court in the present case.

Heard learned counsel for the parties and perused the material available on record.

For concealing the indentify of victim/prosecutirx, name of victim/ prosecutirx and her family members has not been mentioned.

To prove its case, prosecution got examined as many as eleven witnesses, P.W.-1 is the victim, P.W.-2 is the uncle of victim, P.W.-3 is cousin brother of victim, P.W.- 4 is villager, P.W.-5 and P.W.-6 are own brothers of the victim, P.W.-7, P.W.-8 and P.W.-9 are also villagers, P.W.-10 Doctor P. Kujur examined the victim on 09.08.1993, P.W.- 11 is the formal witness who got proved the F.I.R. and fardbayan in the present case.

There are three sets of witnesses who got examined by the prosecution, first set is the victim and her family members including her uncle and her two brothers, whereas second set of witnesses are villagers and third set of witnesses are official witnesses who are P.W.-10 Doctor P. Kujur and P.W.-11 Subratha Chatterjee.

Before analyzing the evidence of victim/prosecutrix, I would like to briefly state the evidence of witnesses of all the three sets.

P.W.-4 Shashi Manjhi, P.W.-7 Balbhadra Chatterjee and P.W.-8 Agasti Parmanik are the villagers of the victim and have stated in their respective deposition that they came to know about the incident and panchayati was convened and victim/prosecutrix was taken by accused/appellant as his wife. P.W.-9 Gangadhar Nag, who is also villager, has stated that he knows nothing about the incident.

P.W.-2 is the uncle of the victim/prosecutrix, he has deposed that on 27.07.1993 he went to field for work and when he returned in the evening, then victim started weeping and told him that accused/appellant committed rape and fled away. On next day i.e. 28.07.1993 panchayati was convened and village panchayat has given custody of victim/prosecutrix to accused/appellant as wife and decision was taken happily in the panchayat and this panchayat proceeding was also attended by accused/appellant and his father. In panchayat, Mukhiya and Sarpanch were also called and thekedar and chowkidar were also present.

P.W.-2 further stated that statement of victim/prosecutrix had been recorded in the panchayat and he is having the same and at the time of registration of the case, he had shown that paper to police official and after seeking the same, police official returned to him. He has also stated in cross-examination that a day after panchayat, he visited to police station and thereafter on next day 40-50 persons visited to police station where their statement as well as statement of victim got recorded. He has also stated that there was no quarrel with other side and they were at visiting terms.

P.W.-3 is cousin brother of the victim/prosecutrix who has stated that accused/appellant committed rape with victim and pachayati was convened and accused/appellant took victim to his home and she remained there for ten days and thereafter she was kicked out.

In cross-examination he has stated that at the time of handing over of the victim/prosecutrix neither mukhiya nor sarpanch was present. He has also stated that he went to police station along with P.W.-2 and P.W.-5 after ten days of the incident when victim was kicked out from the house by the accused/appellant.

P.W.-5 is own brother of victim and nephew of P.W.-2, he has deposed that on the day of incident victim/ prosecutirx was alone at her home and family members went to field and when they returned from filed, then victim/ prosecutirx told that accused/appellant committed rape on her person. This witness intimated P.W.-2 and information was given in the village in the morning and panchayati was convened and in panchayat, custody of victim/prosecutrix was given to accused/appellant and he took her to his home but she was kicked out after ten days. Thereafter, they went to police station where statement got recorded. He has also identified his uncle’s (P.W.-2) signature and his signature on the statement of victim/prosecutrix and the same has been marked as Exhibit- 1, 1/1 respectively.

In cross-examination he has stated that first of all victim/prosecutrix has told him about the incident and at that time no one was with him. He has also stated that it was social panchayati and mukhiya and sarpanch were not present.

P.W.-6 is also real brother of victim, he has also deposed that when he returned from the field after work then victim/prosecutrix told him that accused/appellant committed rape with her, and at that time his brother (P.W.-5) was also present. He has also stated that in panchayat, accused/appellant accepted his guilt and took the victim/prosecutrix with him and she remained there for ten days and thereafter she was kicked out, then they went to police station and he has also identified his signature as a witness on the statement of victim/prosecutrix and the same has been marked as Exhibit 1/2.

P.W.-1 is the victim/prosecutrix who has stated that incident is of eight years back and she was alone in her house at that time then accused/appellant entered into her house and he committed rape on her person and in the evening when her Kaka (uncle and brothers) returned then she told the incident to them. She has also stated that a day after incident, panchayati was convened and she was given to the custody of accused/appellant and she remained there for ten days in the house of accused/appellant as his wife and thereafter, she was kicked out and she lodged the present case by coming to Chakradharpur.

In cross-examination victim has stated that at the time of incident, all brothers and sisters resided together and there are two rooms in her house and there is a door in between two rooms, therefore one can go from one room to other room. There were three cots in one room and four cots in other room. She has also stated that she was having three sisters and three brothers and at the time of incident, none of the sisters were got married and there was house in the vicinity of her house. She further stated that she did not go to field for work on account of her health and she used to go to pond, but on account of some inconvenience in her leg she used to take much time in reaching pond but she used to do domestic work in case of need. She has denied that she always kept on sleeping on cot but has also stated that on account of her physical condition her marriage could not be solemnized. There are two houses in between the house of victim/prosecutrix and accused/appellant and house of the accused/appellant was visible from her house. Victim/prosecutrix has also conceded that father of accused/appellant was having large chunks of land and he is a well-off person. Prior to incident accused/appellant did not visit to her house and it was the first occasion when he entered into her house on the day of incident. It was 1:00 A.M. and she was sitting on the cot after taking bath and meal. Victim/prosecutrix has further stated that rape was committed on the earthen ground and he laid down lethara (bistar) on the ground and there was no pillow and lethara was hanged on argani (hanger) and he did not have any word with her but she could well understand that why accused/appellant was laying down lethara and she made hulla. She has voluntarily stated that accused/appellant extended threat to liquidate her and she also made an effort to come out of the house. At the time of incident she was wearing saya and saree and was not wearing blouse and bangles. Door was open when she was sitting on the cot and she was pulled from cot and she was made to sleep on lethara and her saya and saree were untied and victim/prosecutrix was having no cloth on her person and it was complete sexual intercourse with ejaculation and it continues for half an hour. She has also stated that she moved her hands and legs while being raped but she had not given tooth bite but had attempted to scratch but accused/appellant extended threat. At the time of rape, accused/appellant was also undressed and there was injury on her private parts and blood also oozed out and there was also injury on her hand and on her thigh. When accused/appellant left the place then she wore her clothes and made hulla, then nearby persons assembled including Haripado, Shyampado and 20-25 persons.

Victim’s cross-examination deferred on other date on account of paucity of time and on the next day she had also stated that injury was caused on her chest and she again said that on her hulla no villager came and she did not meet any villager till the evening of incident. She has also stated that when she wore the cloth it was having blood stain which was shown to her family members and that cloth was given to police in police station. She also stated that, on the next day of incident she narrated the incident to his brother and nephew as well as her sisters. She also stated that sarpanch and mukhiya were also present in the panchayat. There was writing work done in the panchayat and she made statement but her wish was not asked in the panchayat and she herself not shown her desire to live with accused/appellant in panchayat. She further stated that accused/appellant was not ready to keep her and there was no decision in the panchayat. She has also stated that there was no good relation in her family and family of accused/appellant prior to incident and they were having no visiting terms on the occasion of marriage and festivals.

P.W.-10 is the Doctor who has examined the victim/prosecutrix on 09.08.1993 at 04:45 P.M. and found the following (i) tenderness and swelling on the vulva and tenderness on both the thighs. (ii) hymen torn ruptured (iii) No foreign body and no seman was found in the vagina. Doctor has opined injury no. (i) and (ii) show that rape was attempted. She has proved her report as Exhibit-2.

In cross-examination, Doctor has stated that tenderness could be caused on account of many reasons and no medicine was recommended to victim/prosecutrix. She has also stated that tenderness does not persist for more than 3 to 4 days. As the hymen was old ruptured, Doctor has stated the girl was used to sexual intercourse. She has also stated that dead sperm are available in the vagina even 15 days after intercourse.

Before analyzing the evidence available on record it is required to be noted that in the case of rape, sole testimony of victim is sufficient to convict and no corroboration is required if the Court finds that testimony of victim is truthful. Hon’ble Apex Court in the case of Vijay v. State of M.P., reported in (2010) 8 SCC 191 at paragraph 13 held as under:

In State of H.P. v. Raghubir Singh [(1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [(2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] .

In the case in hand, the allegation which has come from the mouth of victim/prosecutrix is that, on 27.07.1993 victim/prosecutrix was alone at her home which consisted of two rooms and both rooms were connected and door of the rooms were opened and she was sitting on the cot after taking bath and having meal, then taking advantage of absence of other family members of victim/prosecutrix, the accused entered into her house and after laying down the lethara (bistar), pulled victim/prosecutrix from the cot and made her to sleep on ground and untied her saya and saree and also undressed himself, thereafter committed rape for half an hour and there was ejaculation also. Victim/prosecutrix has stated that she moved her hands and legs while being raped but she did not give tooth bite or scratched to accused/appellant and he extended threat. It is required to be noted that, victim/prosecutrix has stated that she understood the intention of accused/appellant while he was laying down lethara on the ground. She has further stated that after commission of rape accused/appellant went away from her home then she wore the cloth and in the evening when her family members came from the field then she narrated the incident to them. At one point of time during cross-examination she has stated that she made hulla when accused left the place then Haripado, Shyampado and 20-25 persons assembled there but on the next day of cross-examination there is complete volte-face in her statement and had stated that she could not made hulla. She claimed that injury was caused on her private part, thigh and chest also. It is further case of prosecution that, thereafter family members of the victim/prosecutrix convened social panchayat in which victim/prosecutrix made statement and panchayat decided to hand over the victim/prosecutrix to accused/appellant and asked to keep her as a wife and accused/appellant kept victim/prosecutrix for ten days as wife and thereafter she was kicked out by the accused/appellant. Thereafter victim/prosecutrix along with her two brothers (P.W.-5 and P.W.-6) and uncle (P.W.-2) along with other villagers visited to police station and statement of victim/prosecutrix got recorded (vide Exhibit-3).

It further transpires that victim/prosecutrix was medically examined on the same day when the F.I.R. got registered i.e. 09.08.1993 in the evening but rape is alleged to be committed on 27.03.1993 and tenderness and swelling was found on vulva and also tenderness on her both thighs was found. Doctor has opined it is a case of attempt of rape. I don’t want to go into much detail about the contradiction available on record regarding convening of social panchayat and whether it was attended by mukhiya, sarpanch, etc., or not. Witnesses have stated that some writing work was done in the panchayat which was stated by P.W.-2 that those papers were in his custody but reason best known to prosecution, same has not been brought on record by the I.O. At the cost of repetition, it is required to be noted that victim (P.W.-1) in her examination-in-chief (Para-2) has stated that next day of the incident Panchyati was convened and she was given in custody of appellant and she remained in the house of appellant as her wife for ten days and thereafter she was kicked out. But in cross-examination (at Para-30) victim (P.W.-1) has stated that appellant was not interested to keep her and there was “No Decision” in panchayat. It is further important to note that victim/prosecutrix has not uttered a word regarding establishment of physical relation with accused/appellant during ten days when it is alleged that victim/prosecutrix was residing in the house of accused/appellant as a wife, as per decision of the panchayat. As per prosecution case alleged rape was committed on 27.07.1993 and victim/prosecutrix was examined on 09.08.1993, so it is almost after 13 days, so the injury if any occurred on 27.07.1993 it could not be found after elapse of 13 days, but tenderness and swelling found by the Doctor on the day of her examination. Doctor has categorically stated that tenderness does persist for 3 to 4 days. Actually there is no material brought on record by the prosecution which could explain about the cause of swelling found on vulva and tenderness on both thighs of victim as it was found by the Doctor on the day of her examination even victim/prosecutrix has only uttered regarding incident of commission of rape by accused/appellant on 27.07.1993. Victim/prosecutrix has categorically stated in her testimony that family of accused/appellant and family of victim/prosecutrix were having no visiting terms and accused/appellant family are well-off. The victim/prosecutrix has stated in her cross-examination that there were two houses in between the house of victim/prosecutrix and accused/appellant and house of the accused/appellant is visible from her house. She has further stated that rape was committed on the ground and it is earthen ground and he laid down lethara (bistar) on the ground and there was no pillow and lethara was hanged on argani (hanger) and he did not have any word with her but she could well understand that why accused/appellant was laying down lethara and she made hulla. She has voluntarily stated that accused/appellant extended threat to liquidate her and she also made an effort to come out of the house. Victim has stated in para- 18 of her cross-examination that when she was sitting on cot in her home and doors were open, appellant pulled her from cot and made her to sleep on gethara (bistar) on the ground and appellant did complete sexual intercourse for half an hour and there was ejaculation also. She has also stated that when the accused left the place then she wore her clothes and made hulla then nearby persons assembled including Haripado, Shyampado and 20-25 persons. The house of victim/prosecutrix is surrounded by the house of other villagers and even the house of accused/appellant is visible from the house of victim.

Of course, victim belongs to rustic background and even considering that, this Court finds that the version of the victim (P.W.-1) does not appear to be coherent while narrating the entire incident in her testimony. In the backdrop of above stated discussions, it is crystal clear that if the evidence of the prosecutrix is read and considered in totality alongwith other evidence available on record, her deposition does not inspire confidence to this Court. In this regard, Hon’ble Apex Court in the case of Tameezuddin @ Tammu vs State Of (Nct) Of Delhi reported in (2009) 15 SCC 566 held as under:

9.It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.

Considering the aforesaid discussions, it is difficult for this Court to believe the version of victim/prosecutrix in toto therefore, this Court is of considered view that accused/appellant is entitle for benefit of doubt. Aforesaid aspect has not been considered by the learned trial court, as such, impugned judgment of conviction and order of sentence dated 19.11.2003 is liable to be set aside.

As a result, the judgment of conviction and order of sentence dated 19.11.2003 passed by learned 1st Additional Sessions Judge, Chaibasa in Sessions Trial Case No. 229 of 1994, arising out of Chakradharpur P. S. Case No. 142 of 1993, corresponding to G. R. Case No. 328 of 1993, is hereby set aside.

Resultantly, this appeal is allowed.

Since, the appellant is on bail, he is discharged from the liability of bail bonds.

Let the trial court record be sent back to the court concerned forthwith.