Against The Judgment Of ... vs The State Of Jharkhand
2022 Latest Caselaw 5201 Jhar

                                            Cr. Appeal (D.B.) No. 811 of 2014
                                1

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Appeal (D.B.) No. 811 of 2014
[Against the Judgment of conviction and order of sentence dated
17.06.2014 (sentence passed on 18.06.2014) passed by Sri Revati
Raman Tripathi, learned sessions judge Dumka in connection with
S.T. Case No. 13/2013 arising out of Dumka (M) P.S. Case No.
82/2011, corresponding to G.R. No. 633/2011]
     Mahtab Ansari                                                ...     Appellant
                               -Versus-

     The State of Jharkhand                                       ...     Respondent
                             ----------

PRES ENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH

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For the Appellant         : M/s. Anshu Dubey, Amicus Curiae
For the State             : M/s. Nehala Sharmin, A.P.P.
                                ---------
C.A.V. On 14.09.2022                         Pronounced On: 22.12.2022

1. Heard Ms. Anshu Dubey, learned amicus curiae appearing for the appellant and Ms. Nehala Sharmin, learned A.P.P, appearing on behalf of the state.

2. This appeal is directed against the judgment of conviction and order of sentence dated 17.06.2014 (sentence passed on 18.06.2014) passed by Sri Revati Raman Tripathi, learned sessions judge Dumka in connection with S.T. Case. No. 13/2013 arising out of Dumka (M) P.S. Case No. 82/2011, corresponding to G.R. No. 633/2011, holding the appellant Mahtab Ansari guilty of offence under section 376 of the Indian Penal Code and thereby sentencing him to undergo R.I. for life along with a fine of Rs. 25,000/- in default of payment of fine he was further directed to undergo R.I. for 6 months. The fine amount, if realized was ordered to be paid to the victim as compensation.

3. The prosecution case was instituted on the basis of written report of the victim-informant that on 18.05.2011 at about 07:30 PM, she had gone to meet call of nature when the appellant Mahtab Ansari overpowered her gagged her mouth fell her on the ground and raped her. After the occurrence when she raised hulla, her father-in-law came there. He chased Cr. Appeal (D.B.) No. 811 of 2014

the appellant but he managed to escape from there.

4. After investigation police found the occurrence to be true and submitted charge sheet against the appellant under section 376 of the Indian Penal Code. After taking cognizance of the case the learned Chief Judicial Magistrate, Dumka committed this case to the court of sessions on 22.01.2013 as it was exclusively triable by the Sessions court.

5. Charge was framed against the appellant on 26.02.2013 under section 376 of the Indian Penal Code. The contents of the charge were read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

6. In order to prove its case, the prosecution has adduced both oral and documentary evidence.

7. Lal Mohammad Mian (P.W.1) father-in-law of the victim has not fully supported the prosecution case. Edan Mian (P.W.2) has not supported the prosecution case and as such he has been declared hostile. Moinuddin Ansari (P.W.3) has also not supported the prosecution case and he has also been declared hostile. Md. Kobad Mian (P.W.4) is also a hostile witness. The victim has been examined as (P.W.5). She has supported her case as made out in the written report. She has stated that the appellant Mahtab Ansari had raped her. Dr. Ruby Anupma Choren (P.W.6) is the doctor who had examined the victim. She has proved the medical report which is Exhibit 1. Dinesh Prasad (P.W.7) is the investigating officer of this case he has proved the written report which is Exhibit 2. He has also proved the place of occurrence. Parmeshwar Leyangi (P.W.8) is a formal witness who has submitted the charge-sheet showing the appellant as absconder.

8. Statement of the appellant was recorded under Section 313 Cr.P.C. Defence is general denial of the occurrence and false implication.

9. On the basis of the aforesaid oral and documentary evidence available on the record the learned court below held the appellant Mahtab Ansari guilty for the offence under section 376 of the Indian Penal Code and sentenced him accordingly.

10. Ms. Anshu Dubey, learned amicus curiae submitted that the learned Cr. Appeal (D.B.) No. 811 of 2014

court below has held the appellant Mahtab Ansari guilty on the basis of uncorroborated testimony of the victim. She has also submitted that the doctor who had examined the victim did not find any sign of rape. It was finally submitted that enmity between the father of the victim and the appellant was admitted and father-in-law of the victim has not supported the prosecution case. On these grounds, it was prayed that the appellant be acquitted of the charge.

11. Ms. Nehala Sharmin, learned A.P.P. has submitted that the victim has stated that it was the appellant who had raped her. She has been cross- examined at length, there is nothing in her testimony to doubt her veracity. It was further submitted that the victim is a married lady. The occurrence took place on 18.05.2011 and the victim was medically examined on 21.05.2011 and as such the absence of any specific finding of rape in the medical report is meaningless. On these grounds, it was prayed that this appeal be dismissed.

12. Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellant beyond the shadow of all reasonable doubts.

13. The victim (P.W.5) in her testimony before the court has supported the allegation as made out in the written report. She has stated that about 3 years ago at about 07:00 P.M., she had gone to meet call of nature when the appellant fell her on the ground, gagged her mouth and raped her. After the occurrence she managed to remove the clothes and raised alarm on which her father-in-law reached there, on seeing him the appellant fled away. She has stated that a panchayati was held in the village. Her father was also called and thereafter this case was instituted.

In her cross-examination, she has stated that she had gone to meet the call of nature at a distance of about 25 - 30 steps from her matrimonial home. She has admitted that there was land dispute between the appellant and her father. However, she has denied that she has falsely implicated the appellant.

Lal Mohammad Mian (P.W.1) is father-in-law of the victim. He has Cr. Appeal (D.B.) No. 811 of 2014

stated that he heard that the appellant had raped his daughter-in-law. In his cross-examination he has stated that he is not the eyewitness of the occurrence. He has further stated that he came to know about the occurrence on the next day from villagers. He has not stated that he reached the place of occurrence on "hulla" of the prosecutrix and had attempted to catch the appellant.

Dr. Ruby Anupma Choren (P.W.6), has stated that she examined the victim on 21.05.2011 at 04:15 P.M. She did not find any sign of victim being raped as alleged. Her testimony in the court is corroborated by her findings in the medical report Ext-1.

14. From the aforesaid evidence available on the record it is apparent that though victim has supported the allegation that the appellant had raped her, but she has admitted that there was enmity between her father and the appellant. Lal Mohammad Mian (P.W.1) who is father-in-law of the victim has not corroborated the prosecution case that on the" hulla "of the victim he rushed to the place of occurrence and had attempted to catch the appellant. In fact, he has stated that he came to know about the occurrence on the next day from villagers. The occurrence took place on 18.05.2011 and the matter was reported on 21.05.2011 i.e. after 3 days from the occurrence.

15. It is settled principle of law, that in a case of sexual assault, conviction can be sustained on the solitary evidence of the victim, but in a case where enmity is admitted, the testimony of the victim must be examined with due caution and care. In the present case there is delay in lodging of the F.I.R. Lal Mohammad Mian (P.W.1), who is part witness of the occurrence and father-in-law of the victim has given a completely different narrative. The medical report also does not support the factum of rape.

16. In view of the aforesaid findings, we come to the conclusion that the prosecution has not been able to prove its case against the appellant beyond all reasonable doubt.

17. Accordingly this appeal is allowed. The judgment of conviction and Cr. Appeal (D.B.) No. 811 of 2014

order of sentence passed by learned court below is set aside. The appellant is in custody. He shall be released forthwith, if not wanted in any other case.

18. Before parting, we will like to record our deep sense of appreciation for M/s. Anshu Dubey, learned Amicus Curiae, who has ably assisted us during the hearing of this case.

19. Pending I.A., if any, also stands disposed of.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

Jharkhand High Court, Ranchi.

Dated:- 22.12.2022 Saurabh/NAFR