Jharkhand High Court
Bhim Sahu vs The State Of Jharkhand on 6 December, 2021
1
Cr. Appeal (SJ) No. 585 of 2004
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 585 of 2004
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(Against the judgment of conviction dated 18.03.2004 and order of
sentence dated 20.03.2004 passed by the learned Sessions Judge,
Gumla in Sessions Trial No. 66 of 2003.)
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Bhim Sahu ... Appellant
Versus
1. The State of Jharkhand
2. Prabha Kumari ... Respondents
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
For the Respondent : Mrs. Lily Sahay, A.P.P.
For the Informant : Mr. Baleshwar Yadav, Advocate
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PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 11 : Dated: 06th December, 2021
Navneet Kumar, J. This appeal is directed against the judgment of conviction dated
18.03.2004 and order of sentence dated 20.03.2004 passed by the learned
Sessions Judge, Gumla in Sessions Trial No. 66 of 2003 whereby and where
under the appellant Bhim Sahu has been convicted for the offence
punishable under section 376 of IPC and sentenced to undergo
Rigorous Imprisonment for 5 years and to pay a fine of Rs. 1000/-
(Rupees one thousand only) and further in case of default of payment
of fine, he has further been ordered to undergo R.I. for 3 months.
Prosecution Story
2. The allegations against the accused appellant arose in the wake
of the Fardbeyan of the victim (P.W. 3) whose statement was recorded
by the Officer I/C of Basia Police Station on 15.07.2002 in the district
of Gumla (Jharkhand), which is hereunder:
The informant P.W. 3 stated that at 7 p.m on dated 17.04.2002
she had gone in the back side of her Uncle Amin Sahu's house to
Cr. Appeal (SJ) No. 585 of 2004
bring the fodder for the cattle, then the accused came near her and
caught her hand. She gave jerk then accused took out a knife then the
informant got afraid. It is further stated that accused assaulted the
informant with kick and fist and laid her on the ground and after
removing the petti-coat and sari the accused penetrated his penis into
the vagina of the informant and in spite of resistance made by the
informant, the accused committed rape and discharged the semen in
her vagina. Thereafter, the accused got down from the body of the
informant. It is further stated that the victim informant was weeping
due to rape then accused assured her that he will marry her. It is
further stated that the informant came back to her house and told
about the occurrence to her parents. Then next day (16.7.2002) in the
morning of the aforesaid occurrence, the father of informant told
about the occurrence to the neighbours and co-villagers and called a
panchayati, and the Panchayati continued from 8 to 12. 00 noon and the
appellant was called, but, it was told that he had gone in a wedding
function at Ranchi, then again on 19.07.2002 panchayati was convened,
but, on that day also accused did not turn up under the guise that he
has gone to Ranchi. It is further stated that in the morning of
20.04.2002 there was another panchayati in which accused came and
on query by the members of the panchayati the accused confessed his
guilt about the commission of rape upon the informant and took time
for a week to marry with the victim.
She further stated that even after lapse of one month's time
when the accused appellant did not marry her, she asked from him to
marry, but, he flatly refused to marry with her and threatened her to
face dire consequences if criminal case is instituted by her. Therefore,
she made an application through an advocate and submitted before
the Superintendent of Police, Gumla and came back to her house.
3. The Officer-In-Charge of Basia Police station in the District of
Gumla (Jharkhand) after recording fardbeyan of the victim P.W. 3, a
formal FIR as Basia P.S. No. 44 of 2002 dated 15.07.2002 for the
Cr. Appeal (SJ) No. 585 of 2004
offence punishable u/s 376 IPC was registered and investigation of
the case was commenced.
4. The I.O. after completing investigation submitted charge-sheet
against the accused Bhim Sahu. Accordingly, cognizance was taken
and later on the case was committed to the court of Sessions and
charges U/s 376/417 IPC were framed against the accused Bhim
Sahu.
5. The learned trial court after framing the charges against the
appellant conducted the trial and after conclusion of the trial the
learned trial court passed the impugned judgment of conviction and
order of sentence which is under challenge.
6. Heard Mr. A.K. Kashyap, Sr. Advocate learned counsel for the
appellant, Mrs. Lily Sahay, learned A.P.P. for the State and Mr.
Baleshwar Yadav, learned counsel for the informant.
Argument on behalf of the appellants:
7. Learned counsel for the appellant submitted that:-
The impugned judgment of conviction and order of sentence is
bad in law as well as on facts and, as such the same is liable to
be set aside.
The learned trial court has not applied its judicial mind while
passing the impugned judgment and order of conviction and
sentence.
The inordinate delay in lodging the FIR speaks about the falsity
of the case and concoction of the allegation.
The medical evidence does not support the case of the
prosecution and indicates rather several things against the
prosecutrix.
The doctor has found the victim aged between 21 to 22 years.
It has also come into the evidence that both the accused-
appellant and the informant have married and they have been
blessed with one daughter and they were residing as husband
and wife.
Cr. Appeal (SJ) No. 585 of 2004
This is not a case of the prosecution that the victim was minor
below 16 years of age at the time of alleged occurrence, rather it
is an admitted that the informant was aged about 21 to 22 years
and her consent was valid. As such, if this circumstance is taken
into consideration for the sake of argument then also no case is
made out under section 376 of the Indian Penal Code.
The father, mother and other witnesses have also not supported
the case that the appellant had committed rape upon the victim.
From the deposition of the victim, it appears that no case is
made out against the appellant under section 376 of the IPC.
The investigation has been done in a most perfunctory manner.
It appears from the material available on record that the
appellant had not accepted the proposal of marriage then this
false case was lodged just to black-mail the appellant and
thereafter, the victim had taken land measuring 50 decimal in
her name and after marrying this appellant, she is living a
peaceful married life with a child.
The learned trial court has not considered the arguments
advanced by the defence.
It appears from the judgment itself that the learned trial court
has not even discussed the defence version. The learned trial
court has not considered the defence version in true perspective
and has also not taken into consideration the changed
circumstance.
The appellant is the only earning member in his family and he
has got responsibility of the whole family and if the appellant is
convicted then his whole family will come on the verge of
starvation.
The appellant has not been properly examined under section
313 of the Code of Criminal Procedure.
In any view of the matter and after considering the facts and
circumstances of the case and the materials available on record,
Cr. Appeal (SJ) No. 585 of 2004
the conviction of the appellant under section 376 of the IPC is
bad in law, and the same is liable to set aside.
Argument on behalf of the State:
8. On the other hand, learned A.P.P. appearing on behalf of the
State assisted by learned counsel for the informant has vehemently
opposed the contentions raised on behalf of the appellant and
submitted that there is no legal point to interfere into the impugned
judgment of the conviction and order of sentence. There is consistent
and uniform deposition of the witnesses examined on behalf of the
prosecution and the learned trial court has rightly appreciated the
evidence and found the accused appellant guilty for the offence
punishable under section 376 IPC and this appeal has no merit and fit
to be dismissed.
FINDINGS
9. Having heard learned counsel for the parties and perused the
record of the case including the lower court record.
10. The allegations as set out in the Fardbeyan of the informant
P.W.3 that she was raped by the accused appellant by putting her in
fear at the point of knife and thereafter three times Panchayati was
convened in the village where it was resolved that the accused
appellant will marry with her, but, when he refused to marry, this
case was instituted. The alleged offence of rape is said to have been
committed on 17.04.2002 and the fardbeyan was recorded on 15.7.2002.
From the contents of FIR it is manifest that the time consumed in
instituting the FIR after the lapse of three months because negotiation
of marriage with the accused was going on in the Panchayti of the
village and for this three times Panchayti was held for the
solemnization of marriage of the informant with the accused and
when it failed, then the Fardbeyan of informant was recorded and
formal FIR was instituted after the lapse of three moths from the
alleged offence of rape.
Cr. Appeal (SJ) No. 585 of 2004
11. It is admitted case of the prosecution that the date of
occurrence is of 17.04.2002 and the fardbeyan has been recorded after
the lapse of about 03 months on 15.07.2002 and the cause of delay in
instituting the criminal case against the accused-appellant is
evidently the solemnization of marriage by the accused appellant
with the informant and when he refused, the case was instituted by
the informant as admitted in the FIR itself. The case of the
prosecution in order to constitute the offence punishable under
section 376 IPC gets totally falsified from the categorical and
explicitly statement of the victim P.W.3. where she deposed that she
had gone to fetch straw (Pual) and the accused appellant at first asked
her to marry and then he committed rape upon her. This version is
totally negated her allegation as alleged in the FIR that she was
forcibly laid down on the point of knife and rape was committed.
Further, in the cross examination she admitted in unequivocal terms
that the accused has married with her and he was living with her for
five months after the occurrence and the father of accused appellant
also gifted her 50 decimals of land which has been registered in her
name. Therefore, it is established that she had instituted this case
because the accused did not marry her. She had also stated that three
times Panchyati were convened to negotiate the marriage of accused-
appellant with informant and in the Panchayti it was decided that the
accused appellant would marry her and 50 decimals of lands would
be registered in her name. Further in her testimonies recorded by trial
court during the course of trial it is stated by her that the accused had
married with her and he was living with her and she also admitted
that 50 decimals of land had also been registered in her name. Thus,
the testimonies of P.W.3 are in conformity with the defence of the
accused-appellant candidly recorded U/s 313 Cr.P.C. where he had
stated that he had been in love affair with P.W.3-victim and her father
had registered 50 decimal of land in her favour and he had also
married with her and the dispute has been resolved but this false case
was instituted because P.W.3 was asking for one acres of land. All
Cr. Appeal (SJ) No. 585 of 2004
these defence versions of accused-appellant have further been
supported and corroborated in very lucid manner by the father of the
victim who has also been examined on behalf of the prosecution as
P.W.2 Kani Sahu. In his examination in chief P.W.2 did not state
about the rape he had simply stated that the accused appellant had
caught her (P.W.3 Victim). He had admitted that the panchayati was
convened. P.W.2 had also stated that the accused Bhim Sahu has got
married with victim in a temple and she used to live with her. Thus,
this witness being the father of the victim totally demolished the case
of the prosecution. Further P.W.1 Fullo Devi, who is the mother of the
victim, has stated in her examination in chief that the accused
appellant Bhim Sahu used to visit her house secretly and, therefore,
the defence taken by the accused appellant in his statement recorded
in the statement u/s. 313 Cr.P.C. that he was in love affair with the
victim P.W.3 is corroborated. In his examination in chief P.W.1
mother of victim has also stated that the accused appellant Bhim
Sahu has been living with her as wife for six months.
12. P.W.4 Amin Sahu did not say anything in support of the
prosecution case. P.W. 5 Padu Saw has stated that a panchayati was
called for the marriage of the accused appellant with P.W. 3 as the
informant had been living with accused-appellant and the accused
appellant had promised to marry with her. Thus the defence of the
accused-appellant has been further corroborated that both accused
and informant were in love with each other. P.W.6 -Kalindra Sao has
not supported the case of the prosecution. He stated that the
panchayati was convened in which the accused had asked for time to
marry with the accused and there was no documentation of the
proceeding of the panchayati. P.W. 7 Basant Singh had also stated that
a panchayati was convened for the marriage of the accused-appellant
and the victim P.W.3. and the said marriage between the accused-
appellant and informant is said to have been solemnized admittedly
by P.W.3 herself in her testimonies. P.W.8 Joga Singh stated that a
Cr. Appeal (SJ) No. 585 of 2004
panchayati was convened for the purpose of marriage between the
accused and the informant P.W. 3 and the accused-appellant had
agreed to marry with P.W.3 which was solemnized as admitted by
P.W.3 herself and by her parents P.W.1 and P.W2. Further P.W. 9
Kalindra Singh stated that panchayati was convened. He stated that
the mother of victim was his sister and P.W. 3 was his niece and
P.W.3 was blessed with a child one month back, it means that after
marriage both informant P.W.3 and the appellant were leading
conjugal life.
13. P.W.10 Dr. Smt. Shakuntala Pandey, who has examined the
victim on 15.07.2002 while the alleged date of occurrence is of
17.04.2002. Almost after 03 months the informant was examined by
this witness and he proved the medical examination report which is
marked as Ext.1. The age of the victim is found to be between 21-22
year and thus she was major and it has been opined that she was
habitual sexual act and the medical examination which has been
conducted after the 3 months of the alleged occurrence is redundant
due to lapse of time and in view of the testimonies of prosecution
witnesses as discussed above particularly the informant P.W.3, and
her parents P.W.1 and P.W2.
14. P.W.11 - Shyamanand Mandal is the Officer- In-Charge of the
Basia Police Station where the case was instituted in the district of
Gumla and he had proved the fardbeyan which was marked as Ext. 2
and the endorsement on the fardbeyan has also marked as Ext. 2/1
and the formal FIR has also been proved by this witness which has
been marked as Ext. 3. This witness further got the case diary marked
as Ext.4 and his signature on the Charge Sheet has been marked as
Ext.5. This witness has assigned the investigation of the case to some
other police official who is P.W. 12. who has also been examined in
this case. He did not come out with any significant fact to disbelieve
the version of P.W. 3 who had categorically stated that she had
married with the accused appellant and she was major at the time of
alleged occurrence and a child was also born to her later on.
Cr. Appeal (SJ) No. 585 of 2004
15. In view of aforesaid discussions of all the witnesses examined
on behalf of the appellant, it is founded that it is admitted case of the
prosecution that after commission of the alleged offence of rape, the
FIR was not instituted for three months in anticipation of the
marriage to be solemnized by the appellant with the victim informant
P.W.3. It is further admitted from the categorical versions in the
deposition of the victim that subsequently she got married with the
appellant. It is also stated by P.W.3 in very explicit word that she had
been living with the appellant-Bhim Sahu in his house after the
alleged incident for five months. The father of the appellant had
registered 50 decimals of land in her name and also a female child
was born to her in 2003 as deposed by P.W.9 (maternal uncle) and
therefore, in no way it is a case for the offence punishable under
section 376 of IPC is proved. Therefore, the entire findings of the
learned court below for the conviction and sentence of the appellant
are not based on the correct appreciation of evidences adduced on
behalf of the prosecution during the course of the trial and therefore,
the appraisal of the evidences is bad in law as well as on facts and
hence, the impugned judgment of conviction and order of sentence is
fit to be set aside.
16. Accordingly, the impugned judgment of conviction and order
of sentence passed by the learned Sessions Judge, Gumla for the
offence punishable under section 376 IPC is set aside and the appeal
is allowed. The appellant Bhim Sahu is acquitted from all the charges
levelled against him in this case.
17. Since the appellant of this appeal is on bail, he is discharged
from the liabilities of his bail bond in this case.
18. Let the Lower Court records be sent back to the Court
concerned forthwith, along with a copy of this Judgment.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 06.12.2021/NAFR
MM/-
