Jharkhand High Court
Bikash Mahto vs The State Of Jharkhand on 1 December, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No.545 of 2011
[Against the judgment of conviction and order of sentence dated 05.09.2011
passed by the learned Sessions Judge, Bokaro in Session Trial No.179 of
2011.]
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1. Bikash Mahto
2. Balram Mahto .... .... Appellants
Versus
The State of Jharkhand .... .... Respondent
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PRESENT
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellants : Mr. H. K. Mahato, Adv.
For the State : Mr. Sanjay Kr. Srivastava, A.P.P.
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By Court:
1. Heard the learned counsel for the appellants and the State.
2. The present appeal has been filed against the judgment of conviction
and order of sentence dated 05.09.2011 passed by the learned Sessions
Judge, Bokaro in Session Trial No.179 of 2011.
3. As per the prosecution story as disclosed in the FIR dated 08.03.2011
being Chandankyari (Barmasia O.P.) P.S. Case No.46 of 2011 wherein it has
been alleged that while the victim/informant was alone in her house, both
appellants entered into the house and forcibly took her away to a distance of
half kilometre and they had attempted to commit rape upon her. P.W.-1
namely Bhagat Mahato incidentally arrived at the spot and on seeing him
both the appellants ran away. Thus, the incident had been witnessed by
Bhagat Mahato and the victim.
4. The police after completing investigation filed the charge-sheet under
Sections 376, and 511/34 of the Indian Penal Code. The court below after
taking cognizance, charge has been framed under above sections to which
the appellants pleaded not guilty and claimed to be tried.
5. To substantiate the allegation, altogether eight witnesses have been
examined.
P.W.-1(Bhagat Mahto) who had seen the incident and on whose
soughting the appellants had run away, has been declared hostile.
P.W.-2 (Lal Dev Mahto) and P.W.-3 (Nirmal Mahto) are hearsay
witnesses.
P.W.-4 (Shanti Ram Modi) who had stated that P.W.-7 had disclosed
about the incident.
P.W.-5 (Shankari Devi) is the mother of the informant and had
deposed that the incident had been disclosed by the informant.
P.W.-6 has been declared hostile.
P.W.-7 is the victim herself.
P.W.-8 is the Investigating Officer and in his cross-examination he
has deposed that he had not seen any sign at the both places of occurrence.
The doctor has not been examined as the girl in question has not been
examined by the doctor. Thus, there is only oral evidence available on
record.
6. It has been submitted by the learned counsel for the appellants that
both the parties are next door neighbour and false implication cannot be
ruled out. The statement of the victim-girl has not been corroborated and
there is material contradiction in her statement. Solely relying upon the
testimony of the prosecutrix is bad in law. It has further submitted that as per
the prosecutrix, one person namely Bhagat Mahato has seen the occurrence
and on whose shouting the appellants had fled away, has been declared
hostile. Thus, there is no corroboration of the statement of the prosecutrix
and as such the conviction under Section 376/511 of the IPC is bad in law.
7. On the other hand, learned counsel for the State has supported the
judgment of conviction and the order of sentence and it has been submitted
that the victim has deposed and stood to the cross-examination.
8. Having heard the learned counsel for the parties and from perusal of
the record, it appears that as per the prosecution story there are two
witnesses to the incident. Although, the prosecutrix has supported the
allegation but the other witness had been declared hostile. So far as the
corroboration of the allegation is concerned, there is no medical examination
and as such there is no material available on record. The Investigating
Officer has also not found any sign at the place of occurrence. Thus, there is
no corroboration P.W.-4 and P.W.-5 are the aunt and mother although they
have supported the allegation but there is discrepancies in their statement
and conviction is only on oral testimony of the P.W.-7 who is the informant,
is not justified. It needs certain corroboration.
9. It is settled law that testimony of the prosecutrix is enough for
conviction if it inspire confidence. In the present case, as per the prosecution
story there was a witness but has been declared hostile. Thus, it is not a case
where there was no eye witness to the incident. Further, the Investigating
Officer has also not found any sign at the alleged places of occurrence.
10. Considering the above facts, this Court finds that there is no enough
material to put the prosecution story beyond reasonable doubt. This Court
finds merit in the present criminal appeal, the judgment of conviction and
order of sentence dated 05.09.2011 passed by the learned Sessions Judge,
Bokaro in Session Trial No.179 of 2011 is, hereby, set aside. Since the
appellants are already on bail, they are discharged from the liability of the
bail bonds.
11. Accordingly, the present criminal appeal is allowed and disposed of.
(Rajesh Kumar, J.)
The Jharkhand High Court at Ranchi
Dated 01st of December, 2022
Amar/NAFR/
