Jharkhand High Court
Manik Mahato vs The State Of Jharkhand on 28 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1752 of 2004
(Against the judgment of conviction and order of sentence dated
05.10.2004, passed by the learned Sessions Judge, Seraikella-
Kharsawan, in Sessions Trial No. 54 of 2003.)
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Manik Mahato ..... Appellant
Versus
The State of Jharkhand ...... Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. R.C.P.Sah, Adv
For the State : Mr. Jitendra Pandey, APP
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08/Dated: 28th August, 2023
Heard learned counsel for the parties.
2. This appeal is directed against the judgment of conviction
and order of sentence dated 05.10.2004, passed by the learned
Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No. 54
of 2003; whereby the appellant was convicted under section 363
and 376 IPC and sentenced to undergo R.I. for 3 years under
section 363 IPC and RI for 7 years u/S 376 IPC and both the
sentences were directed to run concurrently.
3. The prosecution case in brief is that on 20.6.2002,
Chandmoni Mahto (victim) had been taken by the appellant to
Tata by giving allurement of marriage. From there, he took her
to his friend's house and there he kept her and raped her for 13
days. Thereafter, he took her to village Karkidih to another
friend's house and again raped her and from there he fled away
leaving her in that house.
4. Learned counsel for the appellant submits that the
judgment passed by the learned trial court is contrary to the
facts and circumstances. He further submits that the learned
trial court ought to have given benefit of doubt to the appellant
and should have acquitted him. He further submits that the
statement of the prosecutrix cannot be relied upon as she has
changed her statement and the fact what she has stated cannot
be believed. He further submits that P.W.8 in para 4 has
deposed a story which is different from F.I.R. and section 161
statement. As a matter of fact, the entire prosecution case has
been filed falsely by the victim girl at the instances of her father
and uncle and in reality, the victim girl was in love affair with
the appellant, as such the impugned order requires to be set
aside.
5. Mr. Jitendra Pandey, learned A.P.P. opposed the prayer
for acquittal and submits that the learned trial court has not
committed any error in convicting the appellant.
6. Having heard learned counsel for the parties and after
going through the documents available on the LCR, it appears
that apart from a bald submission that the appellant took the
victim on gunpoint, prosecution has failed to bring any evidence
on record to prove the fact that the victim was taken by the
appellant forcefully on gun point as the victim never tried to
escape even though she had opportunity and further even the
gun was not recovered.
7. From the submission of victim herself it can be construed
that her statement is far from truth as she had stated at para-1
of her statement that she made complaint to PW 8 about the
occurrence, but PW 8 did not support the said version of the
prosecutrix and she flatly refused that she has seen or stated
anything about the incidence. Thus, the very 1st statement of the
victim is falsified by the examination of P.W.8.
Further, in the FIR, the victim has stated that the
accused had taken her by giving allurement of marriage and
while on the way Chanchala Mundaeen (PW 8) had seen them
and further while her stay at house of Motu Pramanik (PW 4),
Railu Munda (PW 9) had also seen them but none of these two
PWs have supported the evidence of victim girl and they have
been declared hostile. This shows that this appellant had not
induced and kidnapped the victim girl forcibly; rather the victim
girl went with him on her own.
Further in her deposition at Para 2, the prosecutrix has
stated that accused at the point of pistol took her forcibly to
Bakarkuli Railway station and from there she was taken to Tata
by train and from there he took her to his friend's house, where
he raped her for 13 days. Thereafter, she was brought to Mango
by bus and then to Karkiddih at another friend's house, Motu
Pramanik and he again raped her in his house and from there
he fled away leaving her alone. As stated herein above, P.W.4, 6,
7 & 9 have been declared hostile and even P.W.8 categorically
rejected the claim of the prosecutrix.
Further, in her depositions at Para 4 the prosecutrix has
stated that it took 1 hour of walking to reach station, two and a
half hours to reach Tata and in between they had to walk for 15
min and they were surrounded by many people in train as well
as on road; however, she did not even for once try to rescue
herself or raise alarm as such, her evidence can be seen as
hollow one.
Further, in para 4 of her deposition itself she has stated
that she stayed with appellant in two different places at his
friend's house for about 15 days and both of his friends lived
with their family in a single room where the appellant also
stayed in one side of room with victim and committed rape on
her. This fact cannot be relied upon and is impossible to believe.
8. At this stage, it is also relevant to note that the
explanation given by her in which she has not said the truth
about marriage as well as for not resisting the accused at the
time of the sexual intercourse is that the appellant had given her
threats. She has, however, not stated what was the nature of the
threats which he had given to her at the time of the sexual
intercourse, and the explanation, in my opinion, is a hollow one
and seems to be an afterthought when the motive of marriage
had not been fulfilled. As indicated hereinabove, the allegation of
Gun also seems to be concocted as no gun has been recovered
from the appellant.
9. In the aforesaid background it becomes relevant to
observe the report of the Doctor to the effect that the victim was
major and she was about 17-18 year and she was used to sexual
intercourse.
10. Having regard to the aforesaid discussions, I would
consider it unsafe to act on the testimony of the prosecutrix
without corroboration. From the facts and depositions discussed
herein above, it can be easily inferred that the prosecutrix
agreed voluntarily to allow appellant for sexual intercourse and
that too for 10-15 days. Her silence about non-reporting in this
regard has to be taken to be either because of fear of reprisal or
because of the need felt to protect her image.
Before parting, it would be relevant to refer the FIR
wherein the victim has stated that when the accused fled away
from the house of PW 4 leaving her in the house, she searched
him here and there but could not find and thereafter she alone
came to Police Station. This statement in the FIR can well be
presumed that the story of rape is an afterthought, when the
motive of marriage had not been fulfilled.
A careful reading of the evidence of the victim as well as
of the other PWs, it is well established that the offence under
Section 366 IPC as well as Section 376 IPC is also not made out
as the victim girl is major and if at all the relationship was their
the same was with consent. In those circumstances, the
conviction of appellant for the substantive offence of kidnapping
and rape by the trial Court, deserves to be set aside and the
appellant warrants acquittal.
11. Consequently, the judgment of conviction and order of
sentence, both dated 05.10.2004, passed by the learned
Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No. 54
of 2003 is, hereby, set aside. As a result, the instant application
stands allowed.
12. The appellant shall be discharged from the liability of his
bail bond.
13. Let a copy of this order be communicated to the trial
court and to the appellant through officer in charge of the
concerned police station.
14. The lower court record be sent to the court concerned
forthwith.
(Deepak Roshan, J.)
Amardeep/
