Jharkhand High Court
Sunil Mahato vs State Of Jharkhand on 13 December, 2022
Criminal Appeal (S.J.) No. 576 of 2011
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Against the judgment of conviction and the order of sentence dated 26.09.2011
passed by learned Assistant Sessions Judge-II, Seraikella in Sessions Trial No.11
of 2005.
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Sunil Mahato ... ... Appellant
Versus
State of Jharkhand ... ... Respondent
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For the Appellant : Mr. N.K. Jaiswal, Adv.
For the Respondent : Mr. S.K. Dubey, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE RAJESH KUMAR
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By Court: Heard the parties.
2. This appeal is directed against the judgment of conviction and
the order of sentence dated 26.09.2011 passed by learned Assistant
Sessions Judge-II, Seraikella in Sessions Trial No.11 of 2005 whereby
and whereunder the appellant has been convicted for the offence under
Sections 376, 315 and 493 of the Indian Penal Code and has been
sentenced to undergo rigorous imprisonment for seven years for each of
the offence along with fine.
3. It appears that Kuchai P.S. Case No.15 of 2004 dated
16.04.2004 has been registered for the offence under Sections 376/313 of
the Indian Penal Code.
4. The prosecution story, in brief, is that the informant has been
sexually exploited by the accused on the false pretext of marriage. In fact
they got married but not as per the social custom. Subsequently, the
accused/appellant has refused to marry as per the social custom and on
that basis, the allegation of rape has been made.
5. The police, after investigation has submitted the charge-sheet
and after cognizance was taken, the case was committed to the Court of
Sessions. Charge has been framed under Sections 376/493/315 of the
Indian Penal Code to which the appellant pleaded not guilty and claimed
to be tried.
6. To substantiate the prosecution story, altogether 12 witnesses
have been examined.
P.W.1-Parmeshwar Mahato is brother-in-law of the informant
and brother of the appellant. P.W.2- Pato Mahatain is the
mother of the informant. P.W.3-Subhadra Mahato is elder sister
of the informant. P.W.4-Haripado Mahato has been declared
hostile. P.W.5-Chandmani Mahato is the victim and the
informant herself. P.W.6-Jagarnath Mahato is the brother of the
informant. P.W.7-Kunda Mahato is the relative of the
informant. P.W.8-Jitu Mahato is the brother of the informant.
P.W.9-Karam Singh Sardar has been declared hostile. P.W.10-
Dolka Sardar has been declared hostile. P.W.11- Subodh Lakra
is the Investigating Officer and P.W.12-Dr. Veena Singh is the
Medical Officer, who has examined the victim.
7. It has been argued by the learned counsel for the appellant that
there was marriage between the parties, may be not in accordance with
social custom and rites and once female has also stated that there was
marriage and accordingly, they were in relationship, then ingredients of
Section 376 IPC is not made out. It has been further submitted that so far
as Section 315 IPC is concerned, there was no evidence, suggesting the
abortion. It has been argued that the marriage were earlier solemnized but
not as per the social custom and subsequently as per the social custom,
marriage has again been solemnized. It has been submitted since factum
of marriage has been accepted by both the parties, the conviction of the
appellant under Section 493 IPC is also not made out.
8. Learned A.P.P. has supported the judgment of the conviction.
9. Having heard learned counsel for the appellant and learned
A.P.P. and on perusal of the record, it appears that the parties got married
and the form of marriage of course is not as per the social custom, but the
factum of the marriage has been accepted by both the parties. Once the
factum of the marriage has been accepted by the victim girl, offence
under Sections 376 and 493 of the Indian Penal Code is not made out. So
far as conviction under Section 315 IPC is concerned, save and except
oral evidence, there is no corroboration available on the record. Both the
parties are married and they have been blessed with child and
subsequently, they have got married as per the social custom also.
10. In view of the above discussion and considering the material
available on the record, this appeal is allowed and the judgment of
conviction and the order of sentence dated 26.09.2011 passed by learned
Assistant Sessions Judge-II, Seraikella in Sessions Trial No.11 of 2005
is, hereby, set aside.
11. Since the appellant- Sunil Mahato is already on bail, he is
discharged from the liability of the bail bond.
(Rajesh Kumar, J)
Jharkhand High Court at Ranchi
The 13th day of December, 2022
Ravi/NAFR/
