Jharkhand High Court
Somra Oraon vs The State Of Jharkhand on 8 February, 2023
Cr. Appeal (D.B.) No.709 of 2015
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.709 of 2015
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[Against the judgment of conviction dated 29.08.2015 and order of sentence dated 31.08.2015
passed by Sri Anil Kumar Singh No.II, learned Additional Sessions Judge-I, Lohardaga, in
connection with S.T. Case No. 174/2012, arising out of Lohardaga(M) P.S. Case No. 11/2012,
Corresponding to G.R. No. 172/2012.]
Somra Oraon ..... Appellant
Versus
The State of Jharkhand ..... Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
: HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellant : Mr. Ranjan Kumar, Advocate
For the State : Mrs. Priya Shrestha, Spl.P.P.
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C.A.V. on 21.12.2022. Pronounced on 08.02.2023.
1. Heard Mr. Ranjan Kumar, learned counsel for the appellant and
Mrs. Priya Shrestha, learned Spl.P.P for the State.
2. This appeal is directed against the judgment of conviction and
order of sentence dated 29.08.2015 (Sentence passed on
31.08.2015) passed by Sri Anil Kumar Singh No.II, learned
Additional Sessions Judge-I, Lohardaga, in connection with S.T.
Case No. 174/2012, arising out of Lohardaga (M) P.S. Case No.
11/2012, Corresponding to G.R. No. 172/2012, holding the
appellant Somra Oraon guilty of offence under Section 376 of the
Indian Penal Code and thereby sentencing him to undergo rigorous
imprisonment for 10 years along with a fine of Rs. 10,000/- and in
default of payment of fine, he was further directed to undergo R.I.
for six months. The period already undergone by the appellant was
ordered to be set off.
3. The case of the prosecution was instituted on the basis of
complaint petition filed by prosecutrix / victim, which was referred
to Mahila police station for institution of F.I.R. under Section
154(3) Cr.P.C. alleging therein that the appellant Somra Oraon used
to stalk her, thereafter, he abducted her, took her to village
Babandiha and raped her. The matter was reported to police, but no
action was taken.
4. After investigation, Police found the occurrence to be true and
submitted charge-sheet against the appellant under Sections
420/376 of the Indian Penal Code. After cognizance, learned Chief
Judicial Magistrate, Lohardaga, committed the case to the court of
sessions on 10.12.2012, as it was exclusively triable by sessions
court.
5. Charge was framed against the appellant on 05.03.2013 under
Sections 376 and 420 of the Indian Penal Code. The contents of
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.
Dhaneshwar Lakra P.W.-1 is the father of the victim. He has
supported the prosecution case.
Vinod Lakra P.W.-2 is the brother of the victim. He has also
supported the occurrence but has stated that the appellant was in
live-in relationship with the victim.
Etwari Oraon P.W.-3 is the mother of the victim. She has
admitted that the appellant was in live-in relationship with her
daughter.
Pramod Lakra P.W.-4 is the elder brother of the victim, he has
stated that the appellant had established physical relationship with
his sister on pretext of marriage.
P.W.-5 is the victim. she has proved her signature on the
complaint petition, which has been marked as exhibit-1, she has
proved the signature on her statement under Section 164 Cr.P.C.,
which has been marked as exhibit-2. she has stated that the
appellant Somra Oraon had established physical relationship with
her on pretext of marriage.
Dr. Smriti P.W.-6 had examined the victim. She has proved
the medical report, which has been marked as exhibit-3.
Brajeshwar Chaturvedi P.W.-7 is the Investigating Officer in
this case. He has proved the pagination on the complaint petition,
which has been marked as exhibit-4. He has also proved the formal
F.I.R., which has been marked as exhibit-5.
Chandra Bhanu Kumar P.W.-8 is the Judicial Magistrate 1 st
Class, Lohardaga, who had recorded the statement of the victim
under Section 164 Cr.P.C. He has proved the statement of the victim
under Section 164 Cr.P.C., which has been marked as exhibit-6.
7. Statement of the appellant was recorded under Section 313 of
the Cr.P.C. Defence is general denial of occurrence and false
implication.
8. On the basis of the evidence, both oral and documentary, the
learned court below held the appellant guilty and sentenced him
accordingly.
9. Mr. Ranjan Kumar, learned counsel appearing on behalf of the
appellant submitted that the victim being a major lady entered into
consensual sexual physical relationship with the appellant. It was
further submitted that even assuming the prosecution case to be
true, it will transpire that the appellant had promised to marry the
victim, application was also filed before the registrar to register
their marriage, but the marriage could not be solemnized.
He has also submitted that the victim used to reside with the
appellant according to her own freewill and had prolong live-in
relationship with the appellant. On these ground, it was prayed that
no case under Section 376 of the Indian Penal Code was made out
and as such, this appeal be allowed.
10. Mrs. Priya Shrestha, learned Spl.P.P. has submitted that the all
the prosecution witnesses have supported the fact that the appellant
on the pretext of marriage has sexually exploited the victim and
subsequently refused to marry her. Accordingly, it was submitted
that the consent for physical relationship was obtained by fraud and
as such, the prosecution has been able to prove its case against the
appellant for offence under Section 376 of the Indian Penal Code.
On these ground it was prayed that this appeal be dismissed.
11. 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.
12. The case of prosecution as per the complaint petition, which
was filed by the prosecutrix is that on 28.01.2011 at about 4:00 pm,
the appellant, who was a police officer intercepted her and illegally
confined her at Babandiha, where she has raped.
In her statement under Section 164 Cr.P.C., which is exhibit-2,
she has stated that on 28.01.2011 at about 4:00 pm, the appellant
wrongfully restrained her and took her to the house of Laxman
Oraon, kept her there overnight. On the next day he returned and
dropped her to her father's house. She has not stated that the
appellant had raped her in night. She has further stated that in the
month of March 2011, on two occasions the appellant came to her
house and told her that he will marry her and then again took her to
house of Laxman Oraon where he raped her and on the next day he
dropped her to her father's house.
The prosecution evidence will be scrutinized on the basis of
the averment made in the complaint petition and also on the basis of
the statement of the victim under Section 164 Cr.P.C.
13. Dhaneshwar Lakra P.W.-1 is the father of the victim, he has
stated that the appellant used to stalk his daughter. On one occasion
while she was returning home he took her to Babandiha, kept her
there overnight and raped her. This fact has not been corroborated
by the victim in her statement under Section 164 Cr.P.C, as far as
the allegation of rape is concerned. This witness has further stated
that the appellant started frequently visiting his house. He used to
stay there overnight. He also took her daughter once to his village-
Khapia, where they stayed for two days. He has further stated that
when the appellant refused to marry her, this case was instituted.
In his cross-examination has stated that his daughter is aged
about 26 years.
14. Vinod Lakra P.W.-2 and Pramod Lakra P.W.-4 are the brothers
of the victim, Etwari Oraon P.W.3 is the mother of the victim. They
have stated that the appellant had established physical relationship
with the victim on the pretext of the marriage. Vinod Lakra P.W.-2
has stated that the appellant had illegally confined his sister at
Babandiha where he raped her. This fact has not been corroborated
by the victim in her statement under Section 164 Cr.P.C., as far as
allegation of rape is concerned. He has further stated that later on,
the appellant, promised to marry the victim and started living with
her. He also took the victim to his village at Khapia.
Pramod Lakra P.W.4 has stated that four years ago the appellant
enticed his sister to go to Babandiha on the pretext of the marriage,
he kept her there for three days. This is contrary to the allegation
made in the complaint petition and statement of the victim under
Section 164 Cr.P.C. wherein it has been stated that she was kept
there overnight. Pramod Lakra P.W.-4 has further stated that on the
pretext of the marriage, the appellant established physical
relationship with his sister and ultimately when he refused to marry
her this case was instituted.
15. Etwari Oraon P.W.3, is the mother of the victim has stated that
both the victim and the appellant used to reside as husband and
wife. Her daughter and the appellant had gone to get their marriage
registered, but when the appellant refused to marry her daughter,
this case was instituted.
In her cross-examination she has stated that they were not
aware that the appellant was married from before. She has stated
that the appellant only courted her daughter.
16. The victim P.W.-5, has stated that the appellant on the pretext
of the marriage used to date her. During the period of their
courtship appellant was unmarried. she has stated that she has gone
to Babandiha and stayed in the house of her brother Laxman Oraon.
On the assurance of the marriage appellant established physical
relationship with her for two days. This statement of the victim is
contrary to the allegation made in the complaint petition that she
was raped. It is also contrary to her statement made under Section
164 Cr.P.C. where she has not stated anything about establishing
physical relationship. She has stated that when the appellant refused
to marry her she has filed this case.
In her cross examination she has stated that she use to reside
with the appellant as husband and wife.
17. Dr. Smriti P.W.-6 had medically examined the victim, she did
not find any sign of recent sexual intercourse, she has proved the
medical report, which is exhibit-3. From its perusal it is evident that
the ocular account of Dr. Smriti P.W.-6 is corroborated by her
finding him the medical report, which is exhibit-3.
Brajeshwar Chaturvedi P.W.-7 is the I.O. of the case.
Chandra Bhanu Kumar P.W.-8 has recorded the statement of the
victim under Section 164 Cr.P.C., which is exhibit-6, the contents of
which has already been discussed.
18. From perusal of the aforesaid oral evidence adduced by the
prosecution witnesses including the victim, it transpires that the
victim is aged about 26 years. Victim has herself stated that she
became acquainted with the appellant and started dating him. The
appellant had promised to marry her. At that time the appellant
was unmarried. It further transpires that the victim and the appellant
established physical relationship on the assurance of marriage given
by the appellant. The victim courted the appellant for two years.
When their marriage was not solemnized, this case was filed.
From the aforesaid facts, it is evident that the victim P.W.-5
had a prolong live-in relationship with the appellant. She is a major
lady. Promise of marriage cannot be held as inducement for
engaging in sex over protracted and indefinite period of time
Prosecution has not brought any evidence to show that the appellant
at the very inception of his relationship with the victim had
obtained consent for physical relationship by fraud. In fact it has
come in evidence that both the appellant and the victim had gone to
the marriage registrar for court marriage.
19. Considering the aforesaid facts and circumstances of this case,
we are of the opinion that the prosecution has failed to prove its
case against the appellant for committing rape of the victim on the
false pretext of marriage by obtaining her consent for physical
relationship by fraud.
The learned court below has erred in holding the appellant
guilty for the offence under Section 376 of the Indian Penal Code.
Accordingly the judgment of conviction and order of sentence
passed by learned court below is set aside.
20. This appeal is Allowed.
21. The appellant is on bail. He and his bailors are discharged from
the liability towards bail bond.
22. Pending I.A., if any, also stands disposed of.
(Rongon Mukhopadhyay, J.)
(Ambuj Nath, J.)
Jharkhand High Court, Ranchi
Dated: 08.02.2023
Jay/-NAFR
