Jharkhand High Court
Boro Hansda vs The State Of Jharkhand on 22 January, 2021
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 199 of 2010
(Against the judgment of conviction dated 17.02.2010 and the order of
sentence dated 18.02.2010 passed by the learned Sessions Judge, Pakur in
Sessions Case No. 148/ 2008 of 126/ 2009)
------
Boro Hansda, son of Debidhan Hansda, resident of Village- Chandana, P.O.
Chandana, P.S. Pakur (a), District- Pakur ...... ..... Appellant
Versus-
The State of Jharkhand ...... ..... Respondent
Heard through Video Conferencing
------
CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
------
For the Appellant : Mr. Ajay Kumar Pathak, Advocate
For the State : Mr. Manoj Kumar Mishra, APP
------
Heard Mr. Ajay Kumar Pathak, the learned counsel appearing
on behalf of Mr. Niraj Narayan Mishra, the learned counsel for the
appellant as well as Mr. Manoj Kumar Mishra, the learned APP appearing
on behalf of the State.
2. This criminal appeal is directed against the judgment of
conviction dated 17.02.2010 and the order of sentence dated 18.02.2010
passed by the learned Sessions Judge, Pakur in Sessions Case No. 148/
2008 of 126/ 2009, whereby and whereunder, the appellant was held guilty
for the offence under sections 376 of the Indian Penal Code (in short IPC)
and sentenced him to undergo RI for a period of seven years under
Section 376 IPC.
3. The prosecution case, in brief, as per the written report of the
prosecutrix or the alleged victim or PW-3 (name concealed) given on
28.03.2008 to the officer-in-charge of Pakuria police station, District-Pakur
is that the prosecutrix is aged about 19 years old. Prosecutrix further stated
that last year in the month of July, 2007 she was alone in her house and her
mother had gone to visit relative and in that particular night
at about 10:00 p.m. when she was sleeping, then the accused Boro Hansda
entered and forcibly committed rape upon her. When she raised alarm then
[2]
the accused shut her mouth and threatened her with dire consequences. She
started weeping, then the accused assured to marry her but told not to
disclose it to anyone. Victim further stated that due to fear and due to her
prestige, she remained silent. By taking the advantage of this situation the
accused Boro Hansda kept relationship with her and due to this relationship
she became pregnant. Thereafter, when she was pregnant for about three
months then she told to the accused but, first of all he was happy and then
he refused. Then, she told about the occurrence to her brothers and mother.
Victim has further stated that a social meeting was held in the village but,
the accused Boro Hansda and his father refused to come. Thereafter, she
went to the house of the accused persons several times but both the accused
and his father told her to get away.
4. On the basis of the written report of the prosecutrix, Pakur
(Mahila) P.S. Case No. 37/08 dated 28.03.08 was lodged under sections
493, 376 and 323/34 of IPC against the accused Boro Hansda and his father
Debidhan Hansda. After completion of investigation charge-sheet was
submitted against both the accused persons under section 493, 376 and
323/34 of IPC and cognizance of the offences were taken and the case was
committed to the court of Sessions. Charges were framed under section
323/34 of IPC against both the accused persons and accused Boro Hansda
was separately charged under sections 376 and 493 of IPC. Trial was held
and at the conclusion of the trial the accused or the appellant herein was
convicted and sentenced as aforesaid. Hence, this appeal.
5. Prosecution has examined all together five witnesses in support
of its case out of whom PW-3 is the prosecutrix or the victim; PW-1 is
Gulaj Marandi and PW-2 is Bishwanath Murmu, both are hostile witnesses;
PW-4 is Suniram Murmu and PW-5 is Dr. Mary Thelma Dan, who had
examined the victim girl. Defense had examined D.W.-1 Prameshwar
Murmu as a defense witness.
6. PW-3 is the prosecutrix or the victim of the case. She has stated
in her examination-in-chief that the occurrence took place about 1½ years
back in the night at about 01:00 O'clock. On that date, she was alone in her
house and her mother had gone to visit her relative and she was sleeping.
Accused Boro Hansda entered into her house and forcibly committed rape
[3]
upon her. She tried to raise alarm but the accused closed her mouth and told
not to raise alarm, he will marry her. Thereafter, the accused used to visit
her and made physical relationship with her, due to which, she became
pregnant. Victim further stated that after three months of her pregnancy, she
informed to the accused, on which, he refused to marry her and then she
informed her mother and brother. Then, victim told about the occurrence to
the village pradhan, who called the panchayat in the village but the accused
Boro Hansda and his father did not attend the panchayati. Thereafter, also
she went to the house of accused Boro Hansda, who ousted her and also
assaulted her by slipper. Victim further stated that then she gave the written
report to the police station. Victim has identified her signature on the
written report which was marked as Ext.-1. In her cross-examination
prosecutrix has stated that she was alone in the night of the occurrence and
her mother and brother were not at home. Boro Hansda had threatened her
with dire consequences so, she did not tell about the occurrence to her
mother. She has also stated that on the first occasion Boro Hansda forcibly
committed rape without her consent and, thereafter, sexual relationship took
place voluntarily.
7. PW-1 is Gulaj Marandi and PW-2 is Bishwanath Murmu are
the hostile witnesses. Both these witnesses have stated that they have no
knowledge about the occurrence. During cross-examination by the defence,
PW-2, Bishwanath Murmu has stated that the victim and the accused Boro
Hansda were living together under the custom of Idi Bapla.
8. PW-4 is Suniram Murmu. PW-4 has stated in his evidence that
the occurrence of rape took place about 1 ½ years ago in the night at about
1:00 O' clock. PW-4 further stated that at the time of occurrence nobody
was at home. His mother had gone to relatives place and he was also not at
home. PW-4 further stated that when her sister wanted to raise alarm at the
time of rape but the accused threatened her with dire consequences and
promised to marry her. Thereafter, for three months there was physical
relationship between the accused and his sister and due to the sexual
relationship his sister became pregnant. PW-4 also stated that his sister had
gone to the house of the accused but the accused and his father threatened
and ousted her from the house. Then, the prosecutrix informed about the
[4]
occurrence to her mother. PW-4 has further stated that panchayati was held
in the village but accused and his father did not attend the panchayati.
9. PW-5 is Dr. Mary Thelma Dan, who had examined the victim.
Doctor on external examination of abdomen had found ht. of fundus of
about 38 to 40 weeks. U.S.G for pregnancy profile and foetal well being
was done. In ultrasound sonography impression of a single life foetus, Cephalic,
age-38 weeks and weight of 3168 grams plus-minus 475 was found. Doctor
opined that victim was 18 years and no definite opinion could be given
whether the victim was raped or not. Doctor further opined that the Victim
was pregnant and is carrying pregnancy of 38 weeks. Doctor has proved the
medical examination report of the victim which was marked as Ext-2.
ARGUMENTS ON BEHALF OF APPELLANTS:-
10. Mr. Ajay Kumar Pathak, learned counsel for the appellant has
referred to the evidences of the prosecution witnesses briefly and pointed
out from the evidence and indicated that in the evidence of the prosecutrix it
is apparent from para-8 that subsequent to the first instance later on
relationship had developed and whatever the physical relationship that
followed was consensual in nature. Learned counsel also points out that
even when FIR was lodged in between period from the occurrence to the
lodging of the FIR, the accused and the prosecutrix were meeting each other
and continuing their relationship which also entailed physical relationship.
11. Learned counsel for the appellant has then referred to the
evidence of PW-1, who is one Gulaj Marandi and pointed out that he is not
the elected Pradhan of the village, however, by his own admission the
village people were treating him as such. He has expressed ignorance about
the incident or occurrence and was declared hostile. Learned counsel has
then referred to the evidence of PW-2 who is one Bishwanath Murmu and
pointed out that he has been declared hostile under similar circumstances,
however, as per the evidence of PW-2 both the parties were residing
together as per the custom and counsel submits that this is prevalent in the
customs of the tribes concerned in this instance.
12. Learned counsel for the appellant then referred to the evidence
[5]
of PW-4, Suniram Murmu and points out from his evidence that he had not
given any statement to the police and submits that it is only for the first time
that he has given evidence in the court and therefore, his evidence should
not be taken at its face value without other corroborative evidence. Learned
counsel also argues that PW-4 is only a hearsay witness and merely stated
what his sister had told him.
13. Learned counsel has then referred to the evidence of PW-5,
who is Dr. Mari Thelma Dan and referred to the paragraphs concerning
external examination and pointed out that there is no injury on her body or
any such injury has been indicated by the doctor which would only suggest
that no forcible sexual intercourse was imposed on the prosecutrix. Learned
counsel further refers to the opinion of the doctor and points out from the
deposition of the doctor that the doctor has stated that no definite opinion of
rape can be made out. Learned counsel further submits that taking the
external examination part as well as the opinion of the doctor it is clear that
no forcible incident of rape had taken place.
14. Learned counsel then refers to the judgment passed by the
Hon'ble Supreme Court in the case of "Deepak Gulati Vs. State of
Haryana" reported in 2013 (7) SCC 675 and submitted that in the present
case also appellant shall be acquitted of the charge. The learned counsel for
the appellant in conclusion argues that the FIR was lodged after a long
period, the occurrence is of July, 2007 and FIR was lodged in the month of
March, 2008 and points out that this is after many months and, therefore,
the entire accusation is totally suspected.
15. Learned counsel for the appellant further submitted that as per
the evidence of the prosecutrix herself or PW-3 it is clear that over a time,
relationship had developed between both the parties and that is why the
relationship continued which included physical relationship and that is why
the FIR was also lodged after delay of so many months. He further argues
that whatever sexual relationship occurred between the parties, it was
clearly of a consensual nature and that too between two consenting adults,
therefore, no offence can be made out. Learned counsel further argues that
as per the medical evidences of the doctor there is no opinion positively
[6]
regarding committing of rape and on this basis conviction under section 376
IPC of the appellant should be set aside. Learned counsel also argues that as
per the customs of both the parties they were living together and this is
quite a common or normal occurrence or custom, to which both the parties
are concerned.
16. Learned counsel also argues that there is no mention of child in
womb in the written report or the FIR, and she has made the reference to
child only in her deposition. Counsel argues that this is only to make the
accusations and allegations serious when however, there was no such truth
in the matter. Regarding even the sex on first occasion, counsel says that as
per the custom, it may have been allowed between the participants or the
couple but even if the first instance is taken, then the question still arises
why the FIR was lodged after so many months and because of the delay, the
allegation of forcible sex at the first instance may collapse. Finally, the
learned counsel has referred once again to the case of Deepak Gulati
(supra) and pointed out that there is a difference between breach of promise
and not fulfilling a promise. Counsel submits that in the case in hand there
was no question of any compromise at all as the so called victim was a
participant in her acknowledged consensual relationship.
ARGUMENTS ON BEHALF OF STATE:-
17. Mr. Manoj Kumar Mishra, the learned APP appears for the
State and submits that from the events of the written report or the FIR it is
clear that when the prosecutrix was alone in her house, then taking
advantage appellant had forcibly ravished and threatened to remain silence
and the appellant had assured the victim to marry her. It was only
consequent to this that the subsequent relationship was consented to by the
prosecutrix on the false pretext of marriage, therefore, counsel says that
even in the first instance the prosecutrix clearly stated that it was a case of
forcible rape followed by sex that appears consensual when in actual fact it
was done under a false promise of marriage.
18. Learned counsel for the state referred to the evidence of PW-5
or Dr. Mari Thelma Dan and argues that it is apparent from her evidence
that the victim was pregnant by much as much as 38 weeks. Counsel says
[7]
that no argument has been made to counter this pregnancy or even the
charge that this pregnancy was not due to the appellant. Counsel also argues
that PW-2, Bishwanath Murmu may have been declared hostile, but, he has
made submission regarding the panchayati taking place and submitted that
this panchayati was only regarding the issue of forcible rape and the
continuing exploitative rape over a period, therefore, reference to this
panchayati only goes towards sustaining the allegation made by the
prosecutrix. It is to be noted that it has also come in the evidence that the
appellant did not even attend or co-operate in panchayati whereby the
matter might have only ended and, therefore, the police action and trial was
done at his own cost. Counsel has also referred to the evidence of DW-1
and pointed out that though he has denied rape, but, he has submitted also
about panchayati which only confirms that panchayati was held about the
rape.
19. Learned APP further submits that there is no way that the
appellant can escape from his guilt because the first instance itself was one
of forcible rape then he threatened the prosecutrix of dire consequences and
then he also promised to marry her which led to the subsequent exploitative
sexual relationship which can only amount to continuing rape or rapes
which were made on the pretext of marriage.
20. Learned APP also refers to the judgments passed by the
Hon'ble Supreme Court in the case of "State of Himachal Pradesh Vs.
Asha Ram" reported in (2006) 2 JLJR SC 50 and in the case of "Dinesh @
Buddha Vrs. State of Rajasthan" reported in (2006) 2 JLJR SC 251.
Accordingly, counsel concludes his argument that on the aforesaid
evidences and arguments which have been laid down the conviction and the
accompanying sentence against the appellant passed by the learned lower
court below needs to be fully upheld and sustained.
FINDINGS
21. After having heard the learned counsel for the parties, having
gone through the records of the case and evidences, this is the case in which
the appellant namely, Boro Hansda has been convicted and sentenced for
the offence under section 376 IPC, for which, he has been imposed sentence
of RI for seven years. Learned counsel for the appellant in his argument has
[8]
tried to place the cogent grounds the main one which appears is delay in
lodging the FIR which he again then says was only done so because there
was consensual sex between two adults. He has also tried to make out the
case based on customs and that the sexual relationship between the two
should not be interpreted as one of being an exploitative one, but, rather one
in which both were willing participants and defended by their customs.
Learned counsel has also tried to make out the case by saying that there is
late reference of pregnancy that allegedly took place and that this is such an
omission which should not have been so and in the first instance itself the
FIR should have been lodged and that has not been done so.
22. One of the main principles that has developed in the case law
regarding cases to do with rape or allegation of rape is that the evidence of
the prosecutrix carries much weight and is to be disregarded only if it can
be shown or demonstrated that she is not a trustworthy or reliable witness.
In this case it is seen that she has made allegations of forcible rape on the
particular night of July, 2007 when the appellant found her alone and,
thereafter, she was weeping and under such circumstances appellant
threatened her and also made a promise of marriage. Due to fear and
prestige, she did not complain initially and continued the relationship in
pretext of marriage. It is only subsequently when she had developed
pregnancy and appellant refused to marry her then the prosecutrix resorted
to file the case against the appellant in the police station.
23. Regarding the evidence of the doctor it can be said that the
initial rape was not reported immediately and hence immediate sexual
examination had not been done but sexual relationship of intercourse
happened frequently after that and, therefore, opinion of doctor indicating
no definite opinion about the rape is but natural. The opinion of the doctor,
however, does not demolish the evidence of the prosecutrix.
24. It has also come in the evidence of the DW-1, who is the
defense witnesses, brought to the court during trial by the appellant himself
that panchayati was held and hence panchayati was only regarding the
incidents that had occurred and which was rape and exploitative sexual
relationship against the prosecutrix and it would have addressed the issue of
the possible marriage between both the parties. It is only when the appellant
[9]
had refused to carry out his actions as promised to the logical conclusions
of marriage, that the prosecutrix who could now be regarded the victim had
to resort to the police and had to lodge an FIR for the charges of rape
against the appellant.
25. After having seen the aforesaid facts of the case in hand, now it
would be fruitful to see section 90 of IPC. Section 90 of IPC says that a
consent is no consent if the consent is given by a person under fear of injury
or a misconception of fact and if the person doing the act knows or has
reason to believe that consent was given in consequences of such fear or
misconception. When the fact of the case is seen in the light of section 90 of
IPC, I find that from the very initial stage when forcible intercourse was
done, appellant had no intention of keeping his promise to marry the victim.
As per the testimony of prosecutrix, appellant had assured her to marry but
he didn't and ultimately prosecutrix became pregnant and doctor or PW-5
has also on the basis of ultrasound report has stated that victim was carrying
a pregnancy of 38 weeks. Hence, in the case in hand, the consent obtained
by the appellant herein was not a valid consent because, prosecutrix was
under a misconception induced by the appellant that appellant would marry
her.
26. In this regard it would be pertinent to cite the case of Anurag
Soni versus State of Chhattisgarh reported in (2019)13 SCC 1 wherein
appellant had established sexual relationship with a girl on the pretext of
marrying her. In this case at para 12 of judgment, Hon'ble Apex court held
as follow which is quoted herein below:
"The sum and substance of the aforesaid
decisions would be that if it is established and
proved that from the inception the accused who
gave the promise to the prosecutrix to marry,
did not have any intention to marry and the
prosecutrix gave the consent for sexual
intercourse on such an assurance by the
accused that he would marry her, such a
consent can be said to be a consent obtained
on a misconception of fact as per Section 90
IPC and, in such a case, such a consent would
not excuse the offender and such an offender
can be said to have committed the rape as
defined under Section 375 IPC and can be
convicted for the offence under Section 376
IPC."
[10]
27. There may be minor discrepancies or inconsistencies in the
initial written report and evidence of the prosecutrix but, the two broad
aspects that initially what had occurred was a forcible sexual encounter
when she was alone and the exploitative sexual relationship that continues
thus so only because of threat, prestige and the promise of marriage. These
aspects appear to be consistent and it has not been suggested that the
prosecutrix is a person of such a nature whose evidence cannot be relied
upon.
28. The judgment of Deepak Gulati (Supra) relied on by the
learned counsel for the appellant is not applicable in the facts and
circumstances of the case in hand because in Deepak Gulati (Supra) case,
Hon'ble Apex Court had not found that there was "false promise of
marriage" but in the case in hand the prosecutrix had given her consent on
the misconception that the appellant herein will marry her and ultimately
prosecutrix got pregnant.
29. Therefore, the judgment of conviction of the appellant under
section 376 of IPC dated 17.02.2010 and the order of sentence dated
18.02.2010 passed by the learned Sessions Judge, Pakur in Sessions case
No. 148/ 2008 of 126/ 2009 is fully sustained and upheld. Bail bond of the
appellant Boro Hansda is cancelled.
30. Accordingly, the criminal appeal is dismissed.
31. The learned lower court below is directed to take steps to
procure the arrest of the appellant, namely, Boro Hansda.
32. Let Lower Court Records be sent to the learned lower court
below forthwith.
33. Let a copy of this order be sent through FAX to the learned
lower court below.
(Ratnaker Bhengra,J.)
Jharkhand High Court, Ranchi,
Dated 22nd January, 2021,
Madhav- NAFR
