Jharkhand High Court
Fuleshwar Mahto vs The State Of Jharkhand on 8 January, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No.420 of 2006
Against the judgment of conviction dated 25.02.2006 and order of
sentence dated 27.02.2006 passed by Mohammed Kasim, Addl. Sessions
Judge, (F.T.C.)-II, Seraikella in Sessions Trial No.105 of 2005.
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Fuleshwar Mahto ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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For the Appellant : Mr. R.C.P. Sah, Adv.
For the Respondent : Mr. Tapas Roy, A.P.P.
PRESENT
HON'BLE MR. JUSTICE RAJESH KUMAR
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Heard Mr. R.C.P. Sah, learned counsel appearing for the appellant
and Mr. Tapas Roy, learned A.P.P. appearing for the State.
2. This appeal is filed against the judgment of conviction dated
25.02.2006 and order of sentence dated 27.02.2006 passed by Mohammed
Kasim, Addl. Sessions Judge (F.T.C.)-II, Seraikella in Sessions Trial
No.105 of 2005, whereby and whereunder the appellant has been
convicted for the offence under Section 376 of the Indian Penal Code and
sentenced to undergo rigorous imprisonment for seven (07) years and a
fine of Rs.2000/-. In default of payment of fine, further to undergo simple
imprisonment for three months.
3. The criminal law has been put into motion by lodging FIR by the
victim-Kumari Seema Behra by submitting written complaint in her own
handwriting and the same was registered as Kharsawan P.S. Case No.14
of 2005 dated 15.04.2005. It has been alleged that when the victim was a
student of class-8, the appellant used to follow her. Subsequently the
accused had established physical relation with her against her will and on
the pretext of marriage continued for about two years. Learned counsel
for the appellant has submitted that before lodging FIR, menstrual cycle
of the victim has stopped and as such, she complained to her mother.
Thereafter, mother of the victim took her for medical examination by a
private doctor who confirmed that the victim is carrying pregnancy of
about three months. Thereafter, panchayati was held but the appellant
refused to marry with the victim rather he has offered some money for
the termination of pregnancy and hence the present case has been lodged.
Thereafter, the Investigating Officer referred the victim to Government
Hospital, Seraikella on 16.04.2005 for medical examination by formulating
four questions.
(1) पीिड़ता क उ या है?
(2) या पीिड़ता के साथ बला कार िकया गया है?
(3) या पीिड़ता को गभ है?
(4) अगर पीिड़ता को गभ है तो िकतने माह का गभ है?
4. The victim has been examined under Section 164 of the Cr.P.C. on
30.04.2005 and this has been marked as Ext.2/2. The same has been
proved by P.W.8-the Judicial Magistrate, Seraikella. In her statement she
has repeated the allegation with some more details. The medical report of
the doctor has been received on 21.04.2005 which has been marked as
Ext.1 and it has been proved by P.W.4-the Doctor. In the medical report it
has been opined by the doctor that the age of the victim is 17 years,
further he also opined that she is not pregnant and the stoppage of
menstrual cycle may be due to other reasons. He has negated the
termination of pregnancy.
5. After conclusion of investigation, the appellant had been charge-
sheeted under Section 376 of the Indian Penal Code to which cognizance
has been taken and the case has been committed to the court of sessions.
The charge has been framed to which the appellant pleaded not guilty
and claimed to be tried.
6. To substantiate the prosecution story, altogether eight (08) witnesses
have been examined. The defence has also examined one witness namely
Bikash Mahato.
P.W.1-Ratan Behra, P.W.2-Anant Behra and P.W.3-Manoj Rajak have
been declared hostile.
P.W.4-the Doctor namely Manorma Sidhesh has proved the medical
report and in medical report the pregnancy has been negated.
P.W.5 is the victim girl who has confirmed the allegation levelled
against the appellant regarding having sexual relation on the pretext of
marriage. She has stated in her statement in para-8 that the pregnancy has
automatically got terminated before medical check-up. This fact has not
been stated either in the FIR or in the statement made before the
magistrate recorded under Section 164 of the Cr.P.C.
P.W.6. is the mother of the victim girl. She has also supported the
allegation and regarding the pregnancy. She has stated that two to four
days before medical examination the pregnancy of the victim lady has got
automatically terminated.
P.W.7. is the Investigating Officer who has testified that the victim
girl has stated regarding the physical intercourse by the appellant but no
statement has been given regarding the termination of her pregnancy.
P.W.8. is the Judicial Magistrate who supported the statement made
under Section 164 Cr.P.C.
D.W.1-Vikash Mahto has simply stated that the relationship
between the appellant and the victim was not known to him.
7. Heard. The counsel for the parties and perused the materials
available on record, it appears that the FIR has been lodged on 15.04.2005.
The victim girl has been examined on 16.04.2005 and she has made her
statement under Section 164 Cr.P.C. on 30.04.2005. This sequence falsifies
the allegation of the pregnancy. Further as per the statement of the victim
girl (P.W.5) and her mother (P.W.6) that the victim has been examined by
a private medical practitioner but no evidence has been produced
regarding the sign of victim's pregnancy. Further the age of the victim
has been assessed by the doctor (P.W.4) to be 17 years.
8. It appears that the entire story of prosecution is not convincing on
such viable points i.e. stoppage of menstrual cycle and thereafter medical
examination has been done by a private doctor who has confirmed the
pregnancy. Subsequently, P.Ws.5 and 6 have proved their statement in
the court of sessions that the pregnancy was automatically got
terminated, but this fact has neither been disclosed in the FIR nor in their
statements made under Section 164 Cr.P.C. nor before P.W.4-the doctor
who has examined the prosecutrix. Further the Investigating Officer
specifically referred the prosecutrix by formulating four questions as
discussed above regarding pregnancy but the same has been negated by
the medial report and the contradictory statement of the prosecutrix and
her mother creates doubt in the judicial mind of the Court.
9. In view of above discussion, this Court finds that there is substantial
doubt in the prosecution story and it is a well settled law that doubt gives
benefit to the accused.
10. Considering the entire materials available on record and as per
discussion made above, this Court find that prosecution has failed to
substantiate Section 376 of the Indian Penal Code lodged against the
appellant, resultantly, the accused is acquitted from the charge under
Section 376 I.P.C. Consequently, the judgment of conviction dated
25.02.2006 and order of sentence dated 27.02.2006 passed by Mohammed
Kasim, Addl. Sessions Judge, (F.T.C.)-II, Seraikella in Sessions Trial
No.105 of 2005 is, hereby set aside.
Since the appellant is already on bail, he is discharged from the
liability of his bail bond.
Accordingly, the present appeal stands allowed.
(Rajesh Kumar, J)
Jharkhand High Court at Ranchi
The 08th of January, 2021
Amar/NAFR/
