Natru Pan @ Natru Paan vs The State Of Jharkhand
2022 Latest Caselaw 2485 Jhar

                     Cr. Appeal (D.B.) No. 581 of 2013
     [Against the judgment and order of conviction and sentence dated
     19.06.2012 (sentence passed on 22.06.2012) passed by Sri Bhola Prasad,
     learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial
     No. 144 of 2010]
                                  ...........

     Natru Pan @ Natru Paan                       ... ... Appellant
                                Versus
     The State of Jharkhand                      ... ... Respondent
                                  ...........
      For the Appellant                : Mr. Lukesh Kumar, Advocate
      For the State                    : Mr. Manoj Kumar Mishra, A.P.P.
                                 PRESENT
               HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                      HON'BLE MR. JUSTICE AMBUJ NATH
                                  ...........

10/07.07.2022 Heard Mr. Lukesh Kumar, learned counsel for the appellant and Mr. Manoj Kumar Mishra, learned A.P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 19.06.2012 (sentence passed on 22.06.2012) by Sri Bhola Prasad, learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 144 of 2010 whereby and whereunder the appellant has been convicted for the offence punishable under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years.

3. A written report had been submitted by Sarita Kumari to the In- charge of Pandrasali O.P. stating therein that on 11.06.2010 Mini Devi wife of Natru Pan @ Natru Paan (appellant) had come to her parents' house at Village - Diliamircha and had taken her away to the matrimonial house of Mini Devi. Mini Devi is the niece of the informant in relation. It has been alleged that the informant slept with Mini Devi in the first night and in the second night while she was sleeping with Mini Devi, Natru Pan @ Natru Paan at about 02:00 a.m. took her to an adjoining room and committed rape upon her. On the next day, she took a bath in the river, put on the cloths of Mini Devi and went back to her village. She had not disclosed the incident to her parents out of fear but the same had been disclosed to her friends. Such news ultimately filtered out to her parents who had approached the Munda of the village who had assured them that he will question Natru Pan @ Natru Paan about the incident. This resulted in the delay in lodging the First Information Report.

Based on the aforesaid allegations Muffasil (Pandrasali O.P.) P.S. Case No. 68 of 2010 was instituted for the offence under Section 376 of the Indian Penal Code against Natru Pan @ Natru Paan. On conclusion of investigation, charge-sheet was submitted against Natru Pan @ Natru Paan and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 144 of 2010. Charge was

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framed against the accused for the offence under Section 376 of the I.P.C. which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

4. In course of trial the prosecution has examined as many as seven witnesses in support of its case.

5. P.W.1 (Sarita Kumari) is the informant as well as the victim of the case who has identified Natru Pan @ Natru Paan who is her son-in-law in relation in the dock. She has deposed that the incident is of a year back when Mini had come to her parents' house and she had gone to the house of Mini and stayed in the night. The accused was sleeping on a cot while she and Mini were sleeping on the ground. She has stated that the accused had taken her in the night itself to another room and had committed rape upon her. After she was ravished, she had awakened Mini and disclosed about the incident to her at which Mini admitted that her husband had committed a mistake. She has stated that she had to stay in the house of Mini for two days and thereafter she left for her house where she disclosed about the incident to her father and friends and subsequent thereto the F.I.R. was lodged.

In cross-examination, she has deposed that the house in which she slept is an earthen tiled house consisting of three rooms and she had slept in the middle room. On the night of the incident, Mini was sleeping in another room and she and the accused were sleeping in the same room. The incident of rape occurred in another room and not in the room in which she was initially sleeping. She has stated that the accused had called her up and she had gone to the other room in a state of slumber. When she called out the name of Mini, Mini had got up.

6. P.W.2 (Dr. Sukhmati Banra) was posted at Sadar Hospital, Chaibasa on 17.06.2010 and on that day a medical board was constituted comprising of this witness, Dr. Anita Samant and Dr. V. K. Pandit. The medical board had examined Sarita Kumari Das and had found the following:-

"Identification Mark: (i) one black till below right side of the right ear, (ii) A black til below left side of the right ear.

General Examination : Complexion-dark, height - 154 c.m., body built - thin, weight - 34 kg., teeth - upper jaw - 14 lower jaw - 14.

Monstrual History : Menarche one year back, L.M.P. - on 8th June, 2010 as per her statement.

Breast - developed, hairs - axillary and pubic heirs present fine and sparse, Mental State - Normal, physically and mentally normal.

There was no marks of violence on body and private part.

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Per Vaginal examination : hymen ruptured, introitus admits one figure, no bleeding, swab report done by pathologist Dr. Kumar - No Spermatozoa dead or alive found.

X-ray plate done at diagnostic centre, Sadar Hospital, Chaibasa shows:-

(i) Epiphysis of lateral epicondyle of humorous is not completely united with their respective shaft - 13 to 14 years.

(ii) Epiphysis of lower end of radius and ulna is not united with their respective shaft - 14 years to 15 years.

(iii) Epiphysis of iliac crest is not united with their respective shaft (less than 18 years)."

As per the opinion of the medial board sexual intercourse had taken place. The age of the informant was assessed to be between 13-14 years. She has proved the medical report which has been marked as Exhibit - 1.

7. P.W.3 (Dr. Anita Samant) was posted at Sadar Hospital, Chaibasa and was also a member of the medical board. She has proved her signature in the medical report which has been marked as Exhibit - 2.

8. P.W.4 (Chandu Devi) is the mother of the informant Sarita Kumari. She has deposed that Mini had taken away her daughter on Friday and on Sunday she was left half way to her house. Her daughter came crying and disclosed that Natru Pan @ Natru Paan had committed rape upon her. The matter was reported to the Munda of the village who advised them to lodge a case at the police station.

In cross-examination, she has stated that when the wife of the accused had taken away her daughter she was not at home.

9. P.W.5 (Dhaneshwar Das) has deposed that he was at Chaibasa and his wife had gone to the market and when he returned in the evening, he could not find his daughter. From the mother-in-law of Natru Pan @ Natru Paan, he could come to know that his daughter had gone with Mini to her house. After 3-4 days Natru Pan @ Natru Paan came to his house along with his daughter and after leaving her had left. His daughter had disclosed to her friends about Natru Pan @ Natru Paan committing rape upon her. When this witness came to know about the incident he had disclosed the matter to the Munda who advised him to go to the police station and thereafter the fardbeyan was recorded in which his daughter, he himself and his wife had put their thumb impressions.

10. P.W.6 (Mini Devi) is the wife of the accused who had stated that she knows Sarita Kumari of village Diliamircha and she had taken her to her own house. She has stated that after the informant stayed for a week, she was taken back to her house by this witness and her husband.

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In cross-examination she has stated that she had taken the informant to her house on the occasion of a festival. The informant is the maternal mother-in-law (mausi saas) of her husband.

11. P.W.7 (Raghuveer Singh) is the Investigating Officer of the case who has deposed that on 16.06.2010 Sarita Kumari had come to the police station along with her parents and had submitted a written report which led to registration of a case and he had himself taken over investigation of the case. He has proved the written report which has been marked as Exhibit - 3. The endorsement of the Officer In-charge of Muffasil P.S. in the First Information Report has been proved and marked as Exhibit - 3/1. The formal F.I.R. has also been proved and marked as Exhibit - 4.

This witness had recorded the restatement of the informant as well as the statements of Dhaneshwar Das, Chando Devi and Mini Devi. He had sent the victim for medical examination and a requisition to that effect has been sent by him which has been proved and marked as Exhibit - 5.

He had inspected the place of occurrence which is the earthen tiled house of the accused consisting of three rooms and a verandah in front. None of the rooms had any doors. The middle room of the house is the place of occurrence.

On conclusion of investigation, he had submitted charge sheet. In cross-examination, he has deposed that Mini Devi who is the wife of the accused had supported the allegations levelled against the appellant.

The accused has been examined under Section 313 Cr.P.C. in which he has denied the allegations and has further stated that he has falsely been implicated on account of a squabble with his in-laws.

12. Mr. Lukesh Kumar, learned counsel for the appellant has submitted that the evidence of the victim who has been examined as P.W. - 1 is brimming with contradiction. The written report submitted by P.W. - 1 speaks of the manner of occurrence which though has become incongruous when compared to her evidence during trial. It has been submitted that her return to her house also seems to be inconsistent if the evidence of P.W. - 1, P.W. - 4, P.W. - 5 and P.W. - 6 are considered. In the background of the frailties appearing in the evidence of the witnesses, the appellant deserves the benefit of doubt.

13. Mr. Manoj Kumar Mishra, learned A.P.P. had strongly relied upon the evidence of P.W. - 1 while submitting that her evidence clearly reveals of an act of rape committed upon her by the appellant. It has further been submitted that all the witnesses have consistently stated about Mini Devi taking away P.W. - 1 to her matrimonial house where she stayed for a few days and such circumstances obliterates the assertion of the defence that

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no such incident as alleged had taken place.

14. We have considered the rival submissions and have also gone through the lower court records.

15. The case of the prosecution primarily hinges upon the evidence of P.W. - 1. In her written report, she has alleged that while she was sleeping with Mini in a room, the appellant had taken her away to another room where she was subjected to rape. She has further stated about leaving on the next day after having a bath in the river. The place of occurrence as described by P.W. - 7 (Investigating Officer) reveals that there were no doors in three rooms of the house of the appellant. As such it would appear that there was an open access to all the rooms without any impediment.

If we consider the evidence of P.W. - 1 it would seem that she has narrated an altogether different story. Although in her examination-in- chief she has stated that all three of them had slept in the same room, the appellant sleeping in a cot while the informant and Mini Devi had slept on the ground but she has wavered further in her cross-examination as she has deposed that Mini Devi slept alone in a room while she and the appellant slept in another room. We must bear in mind that the incident had taken place in a village and in view of the customs prevalent in the society, it would be inconceivable that the informant who is the maternal mother-in-law (mausi saas) of the appellant would sleep in the same room as that of the appellant. The other noticeable feature is even assuming what the informant has spelt out in her cross-examination to be true there was no occasion in such circumstances for the appellant to have taken her to another room for the purposes of commission of rape.

16. The evidence of P.W. - 5 and P.W. - 6 also contradict the period of stay of P.W. - 1 in the house of the appellant. In her written report, she has stated about leaving the place of the appellant on the next day of the incident but P.W. - 6 has stated that after a week she was taken back to her house by P.W. - 6 and her husband (appellant). P.W. - 5 who is the father of the informant has deposed about his daughter coming back home after 3-4 days accompanied by the appellant. On return, she never disclosed about the incident immediately and as per P.W. - 5 he had later on come to know about the incident of rape. The evidence of P.W. - 5 and P.W. - 6 reveals that the informant never came back alone to her house as asserted by her in her written report.

17. The report of the medical board indicates that sexual intercourse had taken place but that by itself would not bring home the guilt of the appellant in view of the obvious doubts over the evidence of P.W. - 1 who

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has wavered with impunity regarding the manner of occurrence.

18. The learned trial court has erred in not considering the evidence of P.W. - 1 in it proper perspective and the dilution of such evidence in the backdrop of the evidence of P.W. - 5 and P.W. - 6.

19. The aforesaid reasoning inevitably leads us to come to a conclusion that the prosecution has miserably failed to prove its case beyond all reasonable doubts and accordingly, while setting aside the judgment and order of conviction and sentence dated 19.06.2012 (sentence passed on 22.06.2012) passed by Sri Bhola Prasad, learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 144 of 2010, this appeal is allowed.

20. Pending I.A., if any, stands disposed off.

21. Since the appellant is in custody he is directed to be released forthwith if not wanted in any other case.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 07th day of July, 2022.

Umesh/NAFR