Jharkhand High Court
Pachu Gope vs The State Of Jharkhand on 20 December, 2021
1
Cr. Appeal (SJ) No. 1384 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 1384 of 2003
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(Against the judgment of conviction dated 26.08.2003 and order of
sentence dated 26.08.2003 passed by the learned Additional
Sessions Judge, Fast Track Court No. III, Hazaribagh in Sessions
Trial No. 79 of 2000 arising out of Katkamsandi P.S. Case no.137/99
dated 10.11.99 in the District of Hazaribagh: Jharkhand)
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Pachu Gope ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Tirthankar Bose, Advocate
For the Respondent : Mr. Santosh Kr. Shukla, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 09 : Dated: 20th December, 2021
Navneet Kumar, J. This appeal is directed against the judgment of conviction dated
26.08.2003 and order of sentence dated 26.08.2003 passed by the learned
Additional Sessions Judge, Fast Track Court-III, Hazaribagh in Sessions
Trial No. 79 of 2000 whereby and whereunder the appellant Pachu Gope
has been convicted under sections 376/511 of IPC and sentenced to
undergo Rigorous Imprisonment for three years.
Prosecution Story
2. Briefly stating the prosecution case arising in the wake of
written report dated 10.11.1999 of the informant (hereinafter referred
to as 'victim') is that on 07.10.1999, the informant had gone to
Ghoghari Forest for collecting fire woods and her husband had gone
to Hazaribagh for working as labour. It started raining at about 4
P.M., then she hide herself beneath Mahuwa Tree near her Ghoghari
field to save herself from rain. In the meantime, accused Pachhu
Gope who happens to be her Dewar (brother-in-law) came and caught
her hand and breast with bad intention and forcibly fell her on the
ground. She protested to this action due to which he did not succeed
Cr. Appeal (SJ) No. 1384 of 2003
in committing rape on her. She shouted (Hulla), then accused-
appellant Pachhu Gope fled away due to fear leaving behind her
lying on the earth. She narrated the offence to her husband when he
returned home in the evening and also to co-villagers Ramu Gope,
Lado Gope and others. Her husband went to the house of Pachhu
Gope to enquire about his misdeeds, then, the appellant and his
brother (co-accused Basudeo Gope who has been acquitted during
trial in the court below) abused him and assaulted him by danda
(Thick stick) and slaps. She further stated that she did not go to the
police for lodging information due to shame and prestige, but, now
she came to police because both, the appellant and his brother
Basudeo Gope who has been acquitted by the learned court below,
were threatening her and her husband.
3. On the basis of the aforesaid written report dated 10.11.1999 of
the victim, a formal FIR was drawn vide Katkamsandi P.S. Case no.
137 of 1999 dated 10.11.1999 for the offence punishable u/s 376/511
& 323 of IPC and the investigation of the case commenced.
4. After completion of the investigation the charge sheet was
submitted vide charge sheet no. 174 of 1999 dated 30.11.1999 for the
offence punishable u/s 376/511 & 323 IPC against the two accused
persons including the appellant Pachu Gope and one Basudeo Gope
(since acquitted).
5. The Chief Judicial Magistrate on the receipt of charge sheet
took cognizance for offences u/s 376/511/323 IPC vide his order
dated 03.01.2000 and the case was committed to the court of sessions.
6. After commitment the learned trial court framed the charges
for the offence punishable u/s 376/511 and 323 IPC against two
accused persons including this accused appellant and one Basudeo
Gope and trial of the case commenced and after concluding the trial
the co-accused Basudeo Gope was acquitted and this accused
appellant was convicted for the offence punishable u/s 376/511 IPC
and sentenced to undergo R.I. for 3 years therein which is under
challenge.
Cr. Appeal (SJ) No. 1384 of 2003
7. Heard Mr. Tirthankar Bose, learned counsel for the appellant
and Mr. Santosh Kr. Shukla, learned A.P.P. for the State.
Arguments on behalf of the appellant:
8. Assailing the impugned judgment of conviction and order of
sentence it is submitted on behalf of the appellant that the trial court
has failed to take into consideration that there is no corroborative
evidence in the present case to convict the appellant and there has
been serious contradictions amongst the prosecution witnesses
particularly P.W. 1 & P.W. 2 which caste the serious doubts in the
entire prosecution story.
9. Learned defence counsel has further submitted that the court
below has failed to take into consideration that there is inordinate
delay in lodging the FIR which has not been properly explained and
no independent witness has been examined and further it has been
pointed out that there are two parts of the occurrence one is attempt
to commit rape and another followed by the assault by the accused
persons upon the victim and her husband, but the second part i.e.
assault by the accused persons have not been proved and, therefore,
truthfulness of the connected offence i.e. attempt to commit rape also
gets falsified. Further, the veracity of the solitary evidence of the
victim is also not believable and trustworthy and, therefore, the
impugned judgment of conviction and order of sentence is bad in law
and fit to be set aside.
Arguments on behalf of the State:
10. On the other hand, learned A.P.P. appearing on behalf of the
State strongly opposed the contentions raised on behalf of the
appellant and submitted that the learned trial court has appreciated
the evidences in a very meticulous manner and rightly held the
appellant guilty for the offence punishable u/s 376/511 of IPC and
there is no contradiction or illegality in the impugned judgment of
Cr. Appeal (SJ) No. 1384 of 2003
conviction and order of sentence and, therefore, this appeal deserves
to be dismissed being devoid of any merit.
FINDINGS
11. Having heard the learned counsels Mr. Tirthankar Bose,
learned counsel for the appellant and Mr. Satosh Kr. Shukla, learned
A.P.P. and perused the record of the case including the lower court
record.
12. It is admitted case of the prosecution that the accused appellant
Pachhu Gope is the cousin brother-in-law (devar) and the FIR has
been instituted after the lapse of more than one month as the
occurrence had taken place on 07.10.1999 and this FIR was instituted
on 10.11.1999.
13. It appears that the explanation given for the delay by the victim
in her written report itself is that due to shame and honor, the victim
could not come forward to institute the case. Further, she stated that
the appellant along with his brother Basudeo Gope (who has been
acquitted during trial in the court below) had given threatening to
her and her husband which compelled her to institute the FIR. In
support of the case, the prosecution has been able to examine only 3
witnesses out of which P.W. 1 Victim, P.W. 2 is her husband and the
third witness examined on behalf of the prosecution P.W.3 has been
tendered.
14. From the testimony of P.W. 1, who is said to be the victim of the
incident stated in her examination-in-chief that she did not remember
the exact date of the occurrence indicating weakness in the charges
levelled against the appellant at the outset. It is further in para 19 of
her cross examination she stated that on the date of the incident only
her husband had gone alone to the house of the accused appellant
whereas her husband-P.W. 2 in para 9 & 10 stated that she had also
gone to the house of the accused appellant to inquire about the
incident and making complaint, thus, the major contradiction is
Cr. Appeal (SJ) No. 1384 of 2003
found in the post incident assault which is said to have taken place
between the husband of the victim and the accused persons.
15. It is evident from the FIR itself, that the husband of the
informant on the same night went to the house of the accused
persons in order to make query and it is alleged that the husband of
the victim was abused and assaulted by the accused appellants by
danda and fists, but, no independent witnesses have been examined to
support the case of the prosecution on the point of the assault on the
date of occurrence which took place between the accused appellant
and husband along with his informant-wife and thus the different
versions on the point of the assault have been found. From the
deposition of P.W. 1 (victim) it appears that her husband P.W. 2 went
there alone and, therefore, it is very difficult to accept the
contradictory versions in absence of the evidence of any independent
reliable witness and this incident of assault is consequence of the
earlier incident of attempt to commit rape with P.W.1. The learned
trial court has elaborately appreciating the evidence and deposition
of P.Ws. 1 & 2 has rightly come to the conclusion to the falsity of the
case with respect to the alleged assault of the date of occurrence and,
therefore, the veracity and the truthfulness of the offence of attempt
to commit rape by which the occurrence of assault had taken place
also gets falsified.
16. It is also found that no cogent explanation has been given for
the delay of period of 1 months 3 days in lodging the case when the
incident had taken place on 7.10.1999 and FIR was instituted on
10.11.1999. Although the P.W.2 the husband in para 14 has
categorically stated that on the very next morning of the incident i.e.
08.10.1999 a Panchayati was called for and a number of persons
including Jobar Gope, Ramu Gope and Lado Gope were present there
including Mukhiya and Chowkidar of the village, but even after the
Panchayati of the next date of occurrence (i.e. on 8.10.1999), the FIR
could not be instituted and after more than one month the FIR was
instituted although the legal personnel chowkidar of the village was
Cr. Appeal (SJ) No. 1384 of 2003
present in the said Panchayati. The testimonies of P.W.2 in para 14 of
his cross-examination on the point of Panchayati is also vague with
respect to the outcome of Panchayti. Further, the prosecution has
miserably failed to examine any one of the members who had
admittedly attended the said Panchayat including Mukhiya and
Chowkidar and co-villagers Jobar Gope, Ramu Gope and Lado Gope
etc. As a matter of fact the reasons for delay including dignity, honor
and fear in lodging the FIR were also existing even after the lapse of
more than one month rather dignity, honour and fear was more at
stake on the date of occurrence when mar-pit also took place as per
the charges levelled against the accused persons and on the very next
date of the occurrence the Panchayti was also held where the Mukhiya
and Chowkidar and the co-villagers of the village also attended the
said Panchayati and hence the reasons given in FIR for delay of more
than one moth are neither cogent nor acceptable and, therefore, the
defence taken on behalf of the accused persons that both the parties
were closely related to each other as the accused appellant is
admittedly Dewar (brother-in-law) of the victim and there was a
landed property dispute between them and, therefore, false
implication of the accused persons cannot be ruled out and it is also
evident from the discrepancies emanating from the testimonies of
P.W.1 & P.W.2 also.
17. Further, from the perusal of the statement recorded u/s 313
Cr.P.C. it is clearly established that the defence taken on behalf of the
accused appellant was that 5 to 6 acres of land in the name of the
father of the accused were standing and his father had three brothers
and each brother had got 1.67 acres of land, but the husband of the
informant (P.W.2) wanted some more land and insisted upon the
accused-appellant to part with more land and for this reason this
false case has been instituted and, therefore, the defence taken on
behalf of the accused persons in the light of the aforesaid
inconsistencies and contradictions in the testimony of P.W. 1 and
P.W. 2 become more pertinent, more convincing, and more
Cr. Appeal (SJ) No. 1384 of 2003
believable. Further, so far as the second consequential incident i.e.
assault upon the P.W. 2 by the accused appellant after the attempt to
commit rape has been falsified by the learned court below and,
therefore, the incident to commit attempt to rape also does not get
corroborated because of the appraisal of the witnesses in the
foregoing paragraphs where a number of inconsistencies and
unacceptable facts have been found.
18. In the backdrop, it is well found that the learned trial court has
committed error in the appreciation of the evidences in totality. The
second part of the incident i.e. mar-pit, which is inextricably related to
the first part i.e. the offence of attempt to commit rape , has not been
proved on the basis of the evidences available on record by the
learned trial court. As a result, the first part of the incident i.e.
attempt to commit rape is not substantiated inasmuch as falsification
of the second part i.e. Mar-Pit and also remained unproved in view of
the major incoherency and inconsistency found in the testimonies of
witnesses P.W. 1 and P.W. 2 coupled with the inordinate delay in
lodging the FIR without any cogent explanation as appraised
elaborately in foregoing paragraphs
19. Accordingly, the impugned judgment of conviction and order
of sentence does not hold good and fit to be set-aside, hence this
appeal is allowed and the impugned judgment of conviction and
order of sentence dated 26.8.2003 passed in S.T. No. 79/2000 by Addl.
Sessions Judge, Fast Track Court No. III, Hazaribagh is set-aside.
20. Since the appellant of this appeal is on bail and thus, he is
discharged from the liabilities of his bail bond in this case.
21. 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 20.12.2021/NAFR
MM/-
