Jharkhand High Court
Makbul Ansari vs The State Of Jharkhand on 8 February, 2023
Cr. Appeal (D.B.) No.897 of 2018
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.897 of 2018
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[Against the Judgment of conviction and order of sentence dated
18.06.2018 (sentence passed on 20.06.2018) passed by Sri Lolark Dubey,
learned Additional Sessions Judge-I, Gumla in connection with Sessions
Trial No.45 of 2012, arising out of Mahila (Sisai) Gumla P.S. Case No.10
of 2011, corresponding to G.R. Case No.563 of 2011]
Makbul Ansari ... Appellant
-Versus-
The State of Jharkhand ... Respondent
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellant : Mr. Md. Zaid Ahmed, Advocate
For the State : Ms. Priya Shrestha, Spl.P.P
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C.A.V. On : 12.10.2022 Pronounced On: 08/02/2023
1. Heard Mr. Md. Zaid Ahmed, learned counsel appearing for the
appellant and Mrs. Priya Shrestha, learned Spl.P.P
2. This appeal is directed against the Judgment of conviction and
order of sentence dated 18.06.2018 (sentence passed on 20.06.2018)
passed by Sri Lolark Dubey, learned Additional Sessions Judge-I, Gumla
in connection with Sessions Trial Case No.45 of 2012, arising out of
Mahila (Sisai) Gumla P.S. Case No.10 of 2011, corresponding to G.R.
No.563 of 2011, holding the appellant, Makbul Ansari guilty of offence
under Section 376 (2f) of the Indian Penal Code and thereby, sentencing
him to undergo imprisonment for life along-with a fine of Rs.50,000/-
and in default of payment of fine, he is further directed to undergo simple
imprisonment for two years.
3. The prosecution case was instituted on the basis of a written report
of the informant, Madhur Bani Nag, alleging therein that on 27.05.2011,
she had gone to Raidih leaving behind her two daughters in the care of
Cr. Appeal (D.B.) No.897 of 2018
Makbul Ansari, who is her next door neighbor. On 28.05.2011, when she
returned home, her younger daughter who is victim No.1 aged about 6
years and elder daughter who is victim No.2 aged about 10 years told her
that the appellant took them to his house on the pretext that they will be
afraid if they will sleep alone and subsequently raped them. Panchayati
was held but the appellant did not appear and subsequently on
29.06.2011, this case was instituted.
4. After investigation, police found the occurrence to be true and
submitted charge-sheet against the appellant on 25.09.2011, under
Section 376 (2f) of the Indian Penal Code. Learned Additional Chief
Judicial Magistrate, Gumla, after taking cognizance of the case,
committed the case to the Court of Sessions on 15.02.2012, as it was
exclusively triable by the Sessions Court.
5. Charge was framed against the appellant on 05.12.2012 for the
offence under Section 376 (2f) of the Indian Penal Code. The contents of
the charge was 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.
(P.W.1) and (P.W.3) are two victims. They have supported the
prosecution case as made out in the written report. (P.W.1) has proved
her signature on her statement under Section 164 Cr.P.C, which is Ext.-1.
Madhur Bani Nag, P.W.2 is the informant and mother of the
victims. She has also supported the prosecution case as made out in the
written report. She has proved the written report which is Ext.-2.
Dashrath Oraon (P.W.4), Gayatri Devi (P.W.5) and Jaggu Saw
Cr. Appeal (D.B.) No.897 of 2018
(P.W.10) have not supported the prosecution case and as such, they have
been declared hostile.
Dr. Namita Lakra (P.W.6) had examined the victims. She has
proved their medical reports, which were marked as Exhibits-3 & 4
respectively.
Kunwar Kindo (P.W.7) is the hearsay witness.
Baneshwar Tiwari (P.W.8) is the Investigating Officer of the case.
He has proved the signature of the Officer In-charge of Mahila Police
Station on the formal FIR which has been marked as Exhibit-5. He has
proved the place of occurrence which is the house of the appellant.
Vishal Srivastava (P.W.9) is the learned Chief Judicial Magistrate,
Gumla who has recorded the statements of the victims under Section 164
Cr.P.C. He has proved their statements, which is Ext.-6.
7. The statement of the appellant was recorded under Section 313 of
the Code of Criminal Procedure. The defence is general denial of the
occurrence and false implication.
8. On the basis of the evidence both oral and documentary available
on record, learned court below held the appellant guilty and sentenced
him accordingly.
9. Mr. Md. Zaid Ahmed, learned counsel for the appellant has
submitted that there is inordinate delay of more than one month in
lodging of the FIR. It was also submitted that the doctor, who had
examined the victims, did not find any sign of rape as alleged by the
prosecution. On these grounds, it was prayed that this appeal be allowed
and the appellant be acquitted from charge.
10. Mrs. Priya Shrestha, learned Special.P.P appearing for the State has
Cr. Appeal (D.B.) No.897 of 2018
submitted that the victims have categorically stated that the appellant had
raped them. Both the victims have stood the test of cross-examinations.
She has also stated that the victims were medically examined after one
month from the date of occurrence and as such, the absence of any sign of
injury in the medical report is immaterial. Finally, it was submitted that in
a case of sexual offence, the victims and her family members have to
mentally prepare themselves to institute a case due to social stigma and as
such, the delay in lodging of the FIR is immaterial. On these grounds, 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 all reasonable doubt.
12. P.W.2, Madhur Bani Nag is the informant of the case. She has
stated that on 27.05.2011, she had gone to Raidih and left her daughters
in the care of the appellant Makbul Ansari. On the next day, when she
returned home at about 10 A.M, her daughters informed that the appellant
had raped them. Thereafter, she had gone to Police Station on the same
day but the Officer In-charge was not there, so she returned home. She
tried to get the issue resolved in the Panchayat but the appellant dilly-
dallied and did not appear before the Panchayat. Thereafter, she has filed
this case. She has been cross-examined at length. In her cross
examination, she has stated that she had locked her house before going
to Raidih. When she returned home, both her daughters were sitting
outside the house. She has further stated that there were injuries in the
private parts of her daughters. Blood was also oozing from there. She has
further stated that her husband works in Goa and she had informed her
husband on telephone. She has also stated that she has found semen-
Cr. Appeal (D.B.) No.897 of 2018
stains on the undergarments of her daughters. She has stated that her elder
daughter does not ride bicycle but she had participated in physical
activities in school.
13. (P.W.1) the elder daughter of the informant and one of the victim
has stated that the occurrence took place two years ago. Her mother had
gone to Raidih to attend a marriage. She and her sister were left in the
care of Makbul Ansari who is their next door neighbor. Makbul Ansari
took her and her sister to his house on the pretext that they will be afraid
while sleeping alone. In the evening, Makbul Ansari raped her and
thereafter, he raped her younger sister. On the next day, when her mother
came, they informed her. She has identified the appellant in the dock. She
has been cross-examined at length. In her cross-examination, she has
stated that Makbul Ansari was her next door neighbor. She has further
stated that when her mother returned on the next day, she told her mother
about the occurrence. To the court question, she has stated that nobody
had coached her to depose before the Court. She has not been cross
examined on the factum of rape by the appellant.
14. The younger daughter of the informant has been examined as
P.W.3. She has stated that the occurrence took place in the year 2011. She
and her elder sister had slept in the house of the appellant. In the night,
the appellant raped her. He also raped her elder sister. She has identified
the appellant in the dock. In her cross-examination, she has stated that at
the time when Makbul was physically assaulting her elder sister, she was
sleeping. She has further stated that Makbul had locked his room from
inside. Her mother had locked their room from outside, so they were
wearing the same clothes which they were wearing at the time of
Cr. Appeal (D.B.) No.897 of 2018
occurrence. She and her elder sister had gone to the police station. She
has not been cross examined on the factum of rape by the appellant.
15. Dr. Namita Lakra, P.W.6 had examined the victims. She had
examined the victims after about a month from the date of occurrence.
She has found scratch marks on the back of the elder daughter of the
informant, who was aged about 10 years at the time of occurrence. Her
hymen was found to be ruptured. She has proved the medical report of
the elder daughter of the informant, which is Ext.-3. She has further
stated that in the same capacity, she examined the younger daughter of
the informant, aged about 6 years. She has found old scratch marks on her
back.
16. From perusal of the medical reports of the two victims which
are Exhibits-3 & 4 respectively, it appears that the findings in the medical
report is corroborated by the ocular account of Dr. Namita Lakra as
deposed before the Court.
17. Baneshwar Tiwari (P.W.8) who is the I.O of the case has
proved the place of occurrence. The place of occurrence is three room
house of Dashrath Oraon. The appellant, Makbul Ansari resided in one of
the rooms, while victims resided in the middle room. According to this
witness, occurrence took place in the room of Makbul Ansari.
18. From the aforesaid oral evidence, it is apparent that both the
victims, i.e., P.W.1 and P.W.3 have supported the prosecution case that on
the date of occurrence, their mother had gone to Raidih. She had left both
the victims in the care of the appellant Makbul Ansari. In the night, the
appellant took them to his house on the pretext that they will be afraid
while sleeping alone. In the night, he raped them. There is nothing in
Cr. Appeal (D.B.) No.897 of 2018
their cross-examination to doubt their veracity.
19. Dr. Namita Lakra (P.W.6) who had examined the victims had
stated that she had found old scratch marks on the victims. She has also
stated that she found the hymen of the elder daughter of the informant
ruptured.
20. Madhur Bani Nag (P.W.2), the informant has stated that
when she returned home, she found the private parts of her daughters
swollen. She also found semen-stains on their undergarments. She has
stated that blood was oozing from their private parts. To a specific
question that her elder daughter rides a bicycle, she has answered in
negative. The hymen of the elder daughter was found to be ruptured. Her
averment that she had found scratch marks on the back of her daughters
just after the occurrence is corroborated by the medical report. She has
stood the test of cross-examination and has corroborated the ocular
account of the victims.
21. It is true that there is delay of about a month in institution of
the case. Madhur Bani Nag, P.W.2 has stated that on the date of
occurrence, she had gone to police station but the Officer In-charge was
not there. So, she returned home. Thereafter, she tried to raise the matter
in a Panchayat, but the appellant did not appear before the Panchayat and
thereafter, this case was filed.
22. One can very well imagine the mental condition of a mother
whose two daughters were raped on the same night by a person in whose
care and protection, she had left them. The delay in the institution of the
case has been properly explained.
23. In view of the aforesaid discussions, we come to the finding
Cr. Appeal (D.B.) No.897 of 2018
that prosecution has been able to prove that on 27.05.2011, the informant
Madhur Bani Nag had left her two minor daughters in care and custody of
the appellant as she has to go to Riadih. Prosecution has also been able to
prove that in the night, the appellant raped both the minor daughters of
the informant.
24. Learned court below has dealt in detail the entire evidence on
record. Accordingly, the judgment of conviction and order of sentence
passed by the learned court below does not require any interference.
25. This appeal is accordingly, dismissed.
Pending Interlocutory application, if any, also stands disposed of.
(Rongon Mukhopadhyay, J.)
(Ambuj Nath, J.)
Jharkhand High Court, Ranchi
Dated : 08/02/2023
N.A.F.R./BS
