Jharkhand High Court
Lagu Mian vs The State Of Jharkhand on 3 December, 2021
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 487 of 2010
(Against the judgment of conviction dated 03.05.2010 and the order of sentence
dated 06.05.2010, passed by the learned 1st Additional Sessions Judge, Deoghar
in Sessions Case No. 24 of 2009)
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Lagu Mian, son of Late Musi Mian, resident of Village + P.O.- Jhumarbad,
P.S. Jasidih, District- Deoghar ..... ..... Appellant
-Versus-
The State of Jharkhand ...... ..... Respondent
Heard through Video Conferencing
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PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Arvind Kumar Choudhary, Advocate
For the State : Mr. P.K. Appu, APP
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C.A.V. on 15.01.2021 Pronounced on 03/12/2021
Heard Mr. Arvind Kumar Choudhary, the learned counsel for
the appellant as well as Mr. P.K. Appu, the learned APP for the State.
2. The present criminal appeal is preferred against the judgment
of conviction dated 03.05.2010 and the order of sentence dated 06.05.2010,
passed by the learned 1st Additional Sessions Judge, Deoghar in Sessions
Case No. 24 of 2009, whereby and whereunder, the appellant was convicted
for the offence under Section 376 of the Indian Penal Code and sentenced to
undergo RI for seven years and a fine of Rs. 2000/- and in default of
payment of fine one year SI was awarded.
3. The case of the prosecution as per the complaint petition P.C.R.
Case No. 504/2004 of the PW-3 complainant or victim (name concealed) is
that her marriage was solemnized with Md. Jiyaul and Lagu Mian
(appellant herein) is her father-in-law. Her marriage was solemnized on
18.06.2003 according to Muslim rites and customs and den mehar was
fixed Rs.11,551/-. In the marriage her father had given Hero-Jet bicycle,
wrist watch, sewing machines, silver ornaments and cash Rs.20,000/-. After
her marriage, complainant went to her matrimonial home with ornaments
[2]
and cash and started living with her husband. Complainant further alleged
that since last six months accused persons started demanding Rajdoot
motorcycle and one palang as dowry and they subjected her to cruelty
mentally and physically and also abused and assaulted her for the fulfilment
of their demands. The complainant was tolerating every things because her
father was a poor man and was not in a position to fulfil the demands of the
accused persons but, later on she informed about the demand of the accused
persons to her father. On 15.06.2004, complainant's father requested the
accused persons to keep his daughter peacefully and not to torture her and
he was not in a position to fulfill the demand of dowry. Accused persons
had threatened the complainant in presence of her father and other
witnesses for dire consequences, when their demand of dowry was not
fulfilled. On 15.06.2004, her father-in-law threatened if the demand of
Rajdoot motor cycle and palang was not fulfilled then he would teach a
lesson to the complainant. Complainant further alleged that on 06.08.2004,
her husband had gone to Asansol and the complainant was sleeping in her
room alone in the night, then her father-in-law Lagu Mian (appellant herein)
entered into her room at about 08:00 pm and thrashed her on the ground,
lifted her saree and peticoat and committed rape with her and threatened if
she would tell about the incident of rape to anyone then she will be killed.
On 07.08.2004 in the morning, the complainant informed her father, then
complainant's father along with other reached at her matrimonial home on
08.08.2004 and panchayati was held on 08.08.2004. But all the accused
persons assaulted her with fists and slaps and deserted her and refused to
attend the panchayati. Then on request of the complainant's father another
date of panchayati was fixed on 12.09.2004 but the accused persons again
refused to attend the panchayati. On 13.09.2004 the complainant's father
went to Jasidih police station where police directed them to file case in the
court. Due to the heavy rain, the complainant could not file complaint case
on 15.09.2004 and 16.09.2004.
4. On 18.09.2004 in the court of learned C.J.M., Deoghar, the
complainant case was filed. After due enquiry accused persons were
summoned to face trial under Section 498A and 376 of the Indian Penal
Code. Learned lower court committed the case to the court of Sessions and
[3]
charges were framed against the appellant under sections 498 A and 376 of
IPC and trial was held. At the conclusion of the trial appellant was acquitted
of the charge under section 498-A of IPC, but, convicted under section 376
of IPC and sentenced as aforesaid. Hence, this appeal.
5. In order to prove its case, the prosecution has examined
altogether six witnesses out of whom PW-3 is the complainant of the case;
PW-1 is Nijam Mian; PW-2 Lal Md. and PW-4 Julekha Bibi and both are
the father and mother of the complainant respectively; PW-5 is Md. Ali and
PW-6 is Md. Asgar Ali.
6. PW-3 is complainant or informant and victim of this case. PW-
3 has stated in her evidence that her marriage was solemnized with Jiayaul
and after the marriage she was residing in her matrimonial home. Her
father-in-law had bad eyes on her. PW-3 further stated that about six years
ago in the night, she was sleeping in her room and the door of her room was
not bolted from inside. Then, her father-in-law Lagu Mian entered into her
room and committed sexual inter course with her forcibly. She raised alarm
then her mother-in-law came in the room, but she also supported the act of
the accused Lagu Mian. Complainant further stated that at the time of
occurrence her husband was at Kolkata, who arrived after two days, then
she informed about the occurrence to her husband who also supported the
act of her father-in-law. Thereafter, she informed about the occurrence to
her father then a panchayati was held but the accused persons did not obey
the verdict of the panches. Then, she went at the police station, but, her case
was not registered and then she filed complaint case in the court.
Complainant further stated that on her dictation the case was prepared by
the lawyer and after going through the complaint petition she had put her
L.T.I over it. In her cross-examination PW-3 stated that she stayed in her
matrimonial home about six months and during that period her husband did
not go for work. The occurrence occurred after five months of her marriage.
After marriage, she had gone to her parental home 2-3 times but, she had
not informed in her parental home that her father-in-law was having bad
eyes on her. She further stated that she used to sleep in her room after
bolting the door from inside but on the date of occurrence she did not bolt
the room from inside. A lantern was burning in her room. Complainant has
[4]
further stated that when the accused entered into her room then she had not
left her room, but she remained in the room and after the occurrence she
had raised alarm. Complainant further stated that she had informed about
the occurrence to her cousin father-in-law Jitu Mian and her mother-in-law.
She has further stated that on the next day she went to her parental house
and after one month she had filed the case. Complainant further stated that
after 10 days of occurrence, she had gone to police station.
7. PW-2 is Lal Md. and PW-4 is Julekha Bi, who are father and
mother of the complainant respectively. PW-2 has stated in his evidence that
his daughter was married with Jiaul, who had gone to Asansol to earn
livelihood. About five years ago Lagu Mian, who is father-in-law of his
daughter had committed rape with her. PW-2 further stated that when he
reached the matrimonial home of her daughter, on the same day Lagu Mian,
ousted her daughter. In his cross-examination PW-2 stated that on the basis
of information received from his daughter he has deposed in the court. PW-
2 further stated that he had gone at Jasidih police station for lodging the
case but, the police did not register the case. He cannot say on which date
complainant had filed this case. He further stated that he had not informed
the village panchayat of village-Jhumarbad about the incident. PW-4
Julekha Bibi is the mother of the complainant and she has stated in her
evidence that her daughter informed her about the occurrence of rape with
her which was committed by her father-in-law. PW-4 has further stated that
panchayati was called but the accused persons had not participated in the
panchayat.
8. PW-1 is Nijam Mian and PW-5 is Md. Ali and both are uncle
of the complainant. Both PW-1 and PW-5 have stated in their evidence that
complainant had told them that accused Lagu Mian had committed rape on
her in her matrimonial home. PW-5 stated that one Latif Mian, who is a
biscuit seller, had visited the matrimonial house of the complainant in the
month of August 2004 then complainant informed that her in-laws were
misbehaving with her and also requested to Latif to inform in her parental
home. PW-5 further stated that after receiving information from Latif, they
visited the house of the accused person on 8th , then, complainant informed
that her father-in-law Lagu Mian had committed sexual intercourse with her
[5]
forcibly and on that date a panchayati was also held in village. Lagu Mian
was fined Rs. 30,000/- and a paper was prepared in presence of the panches
and villagers and panches and villagers had signed over it. PW-5 further
stated that the accused had not fulfilled the condition of compromise,
thereafter this case was lodged. PW-5 in his cross-examination stated that
on 07.08.2004 in the evening Latif Mian informed about the occurrence of
rape.
ARGUMENTS ON BEHALF OF APPELLANT:-
9. Mr. Arvind Kumar Choudhary, the learned counsel for the
appellant has argued that there are major contradictions in the evidence of
the prosecution witnesses with regard to the date of occurrence, place of
occurrence, manner of occurrence and the same are contradictory to the
statement made in the complaint petition. Learned counsel for the appellant
further submitted that PW-1 Nijam Mian, who is the uncle of the
complainant, has deposed in para-2 of his cross-examination that he failed to
state the day or month of marriage and also failed to state the date or month
of occurrence as to information of rape received by him from the
complainant.
10. Learned counsel for the appellant further argued that PW-2 Lal
Mohammad, father of the complainant has deposed in his evidence that her
daughter had sent the message by one Latif but the said Latif is not a witness
in the present case. In his cross-examination at para-2, PW-2 has accepted
that the distance of appellant's house from his house is one kilometer,
distance of Jasidih police station from his house is 3 kilometers and Devipur
outpost is 1 kilometer from his house but in spite of that police was not
informed and hence, raises doubt in the prosecution case.
11. PW-3 is the alleged victim and complainant and in her
deposition complainant has deposed that appellant had evil-eye upon her but
this fact has not been stated in her complaint petition. It has come in the
evidence of complainant that she raised alarm upon which her mother-in-law
came to her room and supported the act of the appellant, which is simply not
believable. Further, complainant has deposed that her husband was in
Kolkata although in the complainant petition it was stated that her husband
[6]
was in Asansol and this is contradiction. Complainant has also deposed that
her husband came after two days of the alleged occurrence and he also
supported the appellant which is not believable. Appellant and others did not
accept the panchayati and, thereafter, she went to the police station where
Rs.5000/- was demanded for lodging the case, but, this fact is contradictory
to the statement made in paragraph Nos.14 and 15 of the complainant. In
para-10 of her cross-examination complainant has accepted that she stayed
only for six months in her matrimonial home after her marriage and during
her stay in her matrimonial home, her husband was always with her. In para-
11 of her cross examination complainant has deposed that alleged incident
of rape occurred after five months of the marriage but as per the complaint
petition the date of marriage was 18.06.2003 and the date of occurrence was
06.08.2004 i.e. after 14 months of the marriage. In paragraph Nos. 14 she
has deposed that she had a separate room in her matrimonial home whereas
her father in law, mother-in-law and other children have separate room in the
same house and in para-15 she has deposed that she used to lock her room
from inside but on the date of occurrence she had not locked the room. In
para-18 of her deposition informant has deposed that she had not raised
alarm or tried to flee away from the room when the appellant entered inside
her room and in para-19, she has deposed that she raised alarm after the
occurrence and hence, from these two paras it can be said that informant is
not a reliable witness. In para-23 she has further deposed that she had lodged
the present complaint after one month but, such inordinate delay has not
been explained. In para-27 she has deposed that she went to the police
station after ten days of occurrence but this fact is also contradictory to the
statement made in the complaint petition and her statement made in the
court. In para-28 complainant has further deposed that she possessed the
paper of the panchayat but failed to produce any such documents during
trial. In para-29 she has also deposed that she had given written complaint to
the Superintendent of Police but failed to produce any documents during the
trial.
12. Learned Counsel then refers to the evidence of PW-4 Julekha
Bibi, who is the mother of the complainant. In para-3 of her deposition she
has deposed that her daughter came to her house and informed about the
[7]
occurrence but as per the complainant her father and other witnesses
including one Latif had informed them. Referring to the evidence of PW-5
Md. Ali, uncle of the complainant, the learned counsel has submitted that in
para-8, he had deposed that panchayat had imposed penalty of Rs. 30,000/-
upon Lagu Mian, for which, paper was prepared but neither such documents
had been brought on record during the trial nor this fact has been stated by
any other witness. Finally, referring to the evidence of PW-6 Md. Asgar Ali,
who is the brother-in-law (jija) of the complainant learned counsel
submitted that he has deposed that there was good relations between the
complainant and her in-laws. PW-6 has further deposed that no paper
regarding the panchayati has been brought on record.
13. In conclusion, learned counsel for the appellant has stated that
in view of the aforesaid inconsistencies and contradictions in the statement
of the prosecution witnesses examined during the course of trial and more
specifically delay in lodging the complaint, no support from any
independent witnesses and no medical evidence or exhibit in support of the
prosecution case, the appellant who is aged about 70 years is entitled for
acquittal in the present case. Moreover, appellant has already spent custody
of about 2 years and 22 days, hence, he has faced vigors and hardships of
trial and therefore appellant has already been sufficiently punished.
ARGUMENTS ON BEHALF OF STATE:-
14. Mr. P.K. Appu, the learned APP appearing on behalf of the
State has, on the other hand, argued that the case rests on the testimony of
the complainant or the victim PW-3. No self-respect woman would make
false allegation of rape and bring same upon herself. Complainant has
supported the allegation of rape upon her in her deposition also. The
occurrence did happen and even though it was by her father-in-law but, she
brought forward the allegations so made. The learned APP has also
submitted that PW-2 the father and PW-4 the mother of the victim have also
supported the victim's evidence. PW-1 Nijam Mian and PW-5 Md. Ali and
both are uncle of the victim have also supported the prosecution case.
Hence, the impugned judgment of conviction and order of sentence passed
by the learned trial court is based on evidence and shall be sustained and
upheld by this court also.
[8]
FINDINGS
15. Having heard both counsels, gone through the evidences and
records, first of all, I would like to scrutinize the evidence of the victim or
the complainant PW-3. Regarding the date of occurrence of the alleged rape
from the date of marriage, the date of rape itself seems much varied. In her
complaint petition, victim had stated that her marriage was solemnized on
18.06.2003. In para-11 of her evidence, complainant has deposed that rape
was committed after five months of her marriage, but in her complaint
petition at para-11 the date of rape is stated as 06.08.2004. Strictly speaking
the rape to be within five months of her marriage would have occurred by
the year end of 2003 itself. So, reckoning from the date of her marriage i.e.
on 18.06.2003 to her alleged rape on 06.08.2004, it is 14 months of her
marriage and hence, raises doubt in the evidence of the complainant. Also
that as per her deposition she stayed in her matrimonial home for only six
months after the marriage meaning thereby that till the end of 2003 but,
complainant has stated in her complaint that rape was committed upon her
on 06.08.2004, and hence, raises further doubt in the deposition of the
complainant.
16. Complainant has further in her evidence deposed that it was
only after the appellant and others did not accept panchayati then she
approached the police. Further, in para-28 of her cross-examination
complainant had stated that she had document of panchayat with her, but, no
such document relating to holding of panchayat was brought forward by the
prosecution during the trial. Complainant has then in her evidence deposed
that she approached the police but the police had demanded Rs. 5000/- but
no such reference to this demand of Rs. 5000/- by police is indicated in her
complaint petition, because logically only when the police refused to take
action, then the resort to filing a complaint case would occur. Another
contradiction is that in her evidence complainant has deposed that at the
time of rape, her husband was away in Kolkata, while in the complaint
petition it is stated that he was away in Asansol.
17. PW-2 or the father of the victim has deposed that Jasidih Thana
is only at a distance of 3 kilometers from his house and Devipur outpost is
two kilometers away. In his evidence it has also come that appellant lives
[9]
only one kilometer away from the house of the victim's father. So, the place
of occurrence is at a distance of 3 kilometers from the police station and
complainant's parental home is also within a radius of 3 kilometers from the
police station. But, in para-22 and 23 of the complainant's deposition, it has
come that after the alleged incident of rape, complainant went to her paternal
home and lodge this case after one and half month of the occurrence. So,
when police station is within a radius of 3 kilometers from complainant's
parental home then as per her own deposition that she approached the police
station after such a delay of one and a half month raises doubt. Further, the
alleged date of occurrence is of 06.08.2004, but the complaint petition is
dated after 40 days, on 18.09.2004. In between, she was also ousted from
her matrimonial home on 08.08.2004. The delay in lodging the complaint of
more than 40 days after the incident of heinous sexual assault and such
inordinate delay in lodging the complaint case raises serious doubts in the
prosecution case.
18. Further at para-18 and 19 of her deposition, complainant
deposed that when the appellant entered into her room she did not run away
and she raised halla after the rape was committed on her and this raises
doubt in her evidence. No person of ordinary prudence would not raise halla
when rape would be committed upon her and that too in complainant's
matrimonial home where other family member's were also present. Further,
she has not explained why she did not raise alarm.
19. PW2 or the father of the complainant at para-4 deposed that no
complaint was made to panchayat, which is at variance with the complaint
petition as well as deposition of the complainant wherein complainant had
stated that complaint was made to panchayat and this leads to doubts about
allegations.
20. Further, even though this is a case of rape, no doctor has been
examined or medical report exhibited. This is an instance where the victim is
already named, nevertheless in a case of rape an injury report or medical
report and examination of doctor would be routine procedure. Further, the
Investigating Officer has also not been examined. Hence, on the basis of the
aforesaid circumstances prosecution has failed to prove the charge against
[10]
the appellant under section 376 of IPC beyond reasonable doubt.
21. Accordingly, the impugned judgment of conviction dated
03.05.2010 and the order of sentence dated 06.05.2010, passed by the
learned 1st Additional Sessions Judge, Deoghar in Sessions Case No. 24 of
2009 cannot sustain and are hereby set-aside. Appellant Lagu Mian is
acquitted of the charges under Section 376 of the Indian Penal Code and he
is discharged of his liabilities of bail bonds.
22. Hence, criminal appeal is allowed.
(Ratnaker Bhengra,J.)
Jharkhand High Court, Ranchi,
Dated: 03/12/ 2021,
Madhav- NAFR
