Suku Hansda vs State of Jharkhand

Heard, learned counsel appearing for the appellant, Mr. Kaushik Sarkhel and learned Addl. Public Prosecutor appearing for the State, Mrs. Nikki

Sinha. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 29.08.2003, passed in Sessions

Trial No.243 of 1991 (arising out of Tundi P.S. Case No.48 of 1990, dated 04.06.1990 corresponding to G.R. No.1730 of 1990) passed by the learned

Addl. Sessions Judge, Fast Track Court No.IV, Dhanbad, whereby the sole appellant, Suku Hansda has been convicted for the offence punishable

under Section 376 I.P.C. and also under Section 313 I.P.C. and awarded rigorous imprisonment for seven years for the offence committed under

Section 376 I.P.C. and also rigorous imprisonment for seven years for the offence committed under Section 313 I.P.C. and both the sentences are

directed to run concurrently.

Against the judgment of conviction and order of sentence, dated 29.08.2003, the appellant has preferred this Criminal Appeal before this Hon'ble

Court. The Criminal Appeal has been Admitted, Lower Court Record has been called for, and his sentence was suspended by granting bail vide order

dated 01.04.2004 passed by this Court.

The prosecution case is based on the basis of the written report submitted by the victim- P.W.4 (whose name is not being disclosed) alleging

therein, that she had love and affection with the appellant, Suku Hansda, who persuaded her for marriage and on such false pretext, appellant had

physical relationship with the victim. The victim has further stated, that when she became pregnant, she disclosed the matter to her brother, Hemlal

Soren (P.W.2). Upon which, a Panchayati was called upon and in the said Panchayati, it was decided that the victim should be handed-over to the

accused/appellant, Suku Hansda. The victim has further stated, that at that relevant time, she had pregnancy of four months. The victim has further

stated, that Suku Hansda (appellant) has asked her to terminate the pregnancy and thereafter, appellant will solemnize marriage with her, for which,

she was not ready. Thereafter victim was forcefully taken to Dhanbad, before a Doctor, whose name was not known to the victim and termination of

pregnancy was forcibly done. The victim-cum-informant has further stated, that subsequent thereto, the accused/appellant consummated, but till the

date of FIR, the accused did not marry her. The informant has further stated that on yesterday (Sunday), she came to the house of her brother

(Hemlal Soren- P.W.2) and said to her brother that the accused/appellant, Suku Hansda and his father are not willing to keep her. Thus, they went

before the villagers, who asked them to lodge the First Information Report. Â

On the basis of the written report of the informant, the Police instituted Tundi P.S. Case No.48 of 1990 dated 04.06.1990 [corresponding to G.R.

No.1730 of 1990) under Sections 376/ 313 I.P.C.

After investigation, the Police submitted charge-sheet vide Charge-sheet No.41 of 1990 dated 23.07.1990. Thereafter the cognizance of the offence

has been taken vide order dated 25.07.1990 and the case has been committed to the Court of Sessions vide order dated 07.06.1991. The charge has

been framed under Sections 376 I.P.C. and 313 I.P.C., on 06.11.1995.

The prosecution, in order to prove its case, has examined altogether six witnesses. P.W.1, Bir Lal Murmu, who is village Pradhan. P.W.2, Hemlal

Soren is brother of the victim. P.W.3, Lakhindra Nath Murmu is a co-villager. P.W.4 is victim herself (name of the victim has not been disclosed

here). P.W.5 is Dr. Lakshmi Pandey and P.W.6 is Ashok Kumar Choubey.

The prosecution has only proved three documents, which have been marked as Exhibits. Signature of witness, Birlal Murmu on written report has

been proved and marked as Exhibit-1. Medical report of the victim has been proved and marked as Exhibit-2 and the Formal First Information Report

has been proved and marked as Exhibit-3.

That after closure of evidence of the prosecution witnesses, the statement of the appellant/accused was recorded under Section 313 Cr.P.C. on

25.04.2003, wherein, the appellant has denied the allegation levelled against him. Thus, the appellant was put under trial.

The defence has not examined any witness in support of their case.

Mr. Kaushik Sarkhel, learned counsel appearing for the appellant has submitted, that conviction of the appellant under Section 376 I.P.C. is not

sustainable in the eyes of law. He has further submitted, that from perusal of the First Information Report itself, it is nowhere alleged that

the victim has been raped by the appellant, rather as per the prosecution case itself, victim being a major lady, she has love and affection with the

appellant, as such, both were having consensual physical relationship and it does not amount to have committed offence under Section 375 I.P.C.

Thus, the conviction of the appellant under Section 376 I.P.C. is not sustainable in the eyes of law. Learned counsel has also drawn the attention of

this Court towards the evidence of victim, who has been examined as P.W.4.

Learned counsel appearing for the appellant, in support of his submission, has submitted that in this case Investigating officer has not been

examined, neither the Doctor, who has terminated the pregnancy has been examined by the learned trial court nor the victim could say the name of

the Doctor, who has terminated her pregnancy and under such circumstances, the conviction of the appellant under Section 313 I.P.C. cannot sustain

in the eyes of law.

Learned counsel appearing for the appellant has further submitted, that in absence of any medical evidence of termination of pregnancy, the

conviction of the appellant by the learned trial court under Section 313 I.P.C. is also not sustainable in the eyes of law. Mr. Kaushik Sarkhel, learned

counsel for the appellant has further submitted, that in the entire prosecution case, the prosecution has failed to establish the fact, that the victim was

pregnant. There is no medical evidence to prove that the victim was pregnant and pursuant to the pregnancy, her pregnancy was terminated

forcefully, without consent of the victim.

Mrs. Nikki Sinha, learned Addl. Public Prosecutor appearing for the State has submitted, that it is a case where a young lady has been duped by

this appellant, forcing her to enter into physical relationship, on false pretext of marriage, when the lady became pregnant, the appellant refused to

marry her. Not only this, the pregnancy was also terminated without consent of the lady at Dhanbad, but since the lady is rustic villager, she could not

say the name of the Doctor, where her pregnancy was terminated, as such, the learned trial court has rightly convicted the appellant under Sections

376/ 313 I.P.C.

Learned counsel for the State has fairly submitted that from perusal of the records, it appears that the victim has not alleged the name of the

Doctor, who has terminated the pregnancy of the victim and there is no medical report on the record of the case.

Heard, Mr. Kaushik Sarkhel, learned counsel appearing for the appellant and Mrs. Nikki Sinha, learned Addl. Public Prosecutor appearing for the

State and having gone through the records, First Information Report, charge, deposition of witnesses, exhibits and statement of appellant under Section

313 Cr.P.C., it appears that the prosecution has brought a case, where the victim was having love and affairs with the appellant. There was physical

relationship between the appellant and the victim. Nowhere, the victim has alleged that she has been forcibly raped, rather she has used the word

consummate. The prosecution has not brought anything on record to prove that she was pregnant by this appellant and the pregnancy was terminated

forcefully, without consent of the lady. There is no medical evidence to prove that the lady was ever being pregnant until and unless, it is proved that

the lady is pregnant, question of pregnancy does not arise and there is also no medical evidence of termination of pregnancy. In that view of the

matter, the conviction of the appellant under Sections 376/ 313 I.P.C. is also not sustainable in the eyes of law.

Accordingly, the judgment of conviction and order of sentence, both dated 29.08.2003, passed in Sessions Trial No.243 of 1991 (arising out of

Tundi P.S. Case No.48 of 1990, dated 04.06.1990 corresponding to G.R. No.1730 of 1990) passed by the learned Addl. Sessions Judge, Fast Track

Court No.IV, Dhanbad, is hereby set aside.

In the result, this Criminal Appeal stands allowed.

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

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