Mangal Nayak vs The State Of Jharkhand
2023 Latest Caselaw 2069 Jhar

                                      1                        Cr. Appeal (S.J.) No. 261 of 2011



           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr. Appeal (S.J.) No. 261 of 2011
                             ------

(Against the judgement of conviction dated 27.01.2011 and order of sentence dated 02.02.2011, passed by the Court of learned Additional Judicial Commissioner (F.T.C.)-VIII, Ranchi in S.T. No. 518 of 2009 arising out of Kanke P.S. Case No. 29 of 2009 corresponding to G.R. Case No.1408 of 2009, Ranchi, Jharkhand)

Mangal Nayak ... ... Appellant Versus The State of Jharkhand ... ... Respondent

-----

CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

--------

For the Appellant     : Mr. Sanjay Kumar Saraswat, Amicus Curiae
For the State         : Mrs. Nehala Sharmin, S.P.P.
                      --------
                  th
JUDGMENT Dated: 18 May, 2023

This appeal is directed against the judgement of conviction dated 27.01.2011 and order of sentence dated 02.02.2011, passed by the Court of learned Additional Judicial Commissioner (F.T.C.)-VIII, Ranchi in S.T. No. 518 of 2009, arising out of Kanke P.S. Case No. 29 of 2009 corresponding to G.R. Case No.1408 of 2009 whereby and where under the appellant has been held guilty for the offence punishable under Section 366 / 376 of the Indian Penal Code and have been directed to undergo rigorous imprisonment for 5 years under Section 366 of the Indian Penal Code and rigorous imprisonment for 7 years under Section 376 of the Indian Penal code with a further direction that both the sentences shall run concurrently and further sentenced to pay a fine of Rs.5000/- and in default of payment of fine to further undergo rigorous imprisonment for 6 months and on realisation of the fine, Rs.3000/- to be given as compensation to the victim girl.

2. The prosecution case arose in the wake of the written information (Exhibit-

1) dated 06.04.2009 of Manju Sahu (P.W.-3) addressed to the then officer in-charge of Kanke Police Station wherein the informant stated that his daughter P.W.-4 was a minor girl aged about 12 years and on 04.04.2009 at about 3:00 P.M. she had gone to see the fare and did not return in the evening. It has further been stated by the informant that Doli Kumari P.W.-1 had also gone with her (P.W. 4) and she informed that Rubi Kumari had asked the victim girl P.W.-4 to go to the next chowk but even after repeated search she could not be traced. Mangal Nayak is the co-villager and used to have talks with the victim girl P.W-4 who had enticed her away as he used to talk on the phone of P.W.-2, Tara Nayak. Chandan Nayak and 2 Cr. Appeal (S.J.) No. 261 of 2011

Rubi Kumari had helped him in enticing away the victim girl P.W.-4 and also had given the keys of their rented house near Doranda, Buttan Pond. Doli Kumari, P.W-1 had informed him about the occurrence. Rijay Lohra and Rohit Nayak were also the friends of Mangal Nayak.

3. On the basis of the above information F.I.R. against Mangal Nayak, Chandan Nayak and Rubi Kumari was instituted under Section 366-A of the Indian Penal Code as Kanke P.S. Case No. 29 of 2009, dated 06.04.2009 and charge to investigate the case was given to Prasidh Narayan Singh, P.W.5, who had recorded the statement of the victim girl, P.W.-4 and also got her statement recorded under Section 164 of Cr.P.C. and got her examined by the Doctor and after completion of the Investigation, charge-sheet was submitted against Mangal Nayak under Section 366-A/376 of the Indian Penal Code vide charge-sheet No.43/2009 dated 08.06.2009 however, investigation against other accused persons was still pending. Accordingly, cognizance was taken and after commitment the learned Chief Judicial Magistrate, Ranchi committed the case to the court of Sessions. Learned Additional Judicial Commissioner, F.T.C., Ranchi has framed charge under section 366-A and 376 of IPC on 29.08.2009. The accused person pleaded not guilty for the charges levelled against him and claimed to be tried.

4. The learned Trial Court after conducting the full-fledged trial passed the impugned judgement of conviction and order of sentence which is under challenge in this appeal.

5. Heard learned Amicus Curiae Mr. Sanjay Kumar Saraswat appearing on behalf of the appellant and learned counsel Mrs. Nehala Sharmin, S.P.P. appearing on behalf of the State.

Arguments advanced on behalf of appellant-

6. Learned Amicus Curiae appearing on behalf of the appellant at the outset has submitted that the learned Court below did not appreciate the evidences of the witnesses examined on behalf of the prosecution in the right perspective and from the deposition of the witnesses including the deposition of the victim it appears that the charges of kidnapping and committing rape with the victim i.e. P.W.-4 is doubtful and as such the benefit of doubt goes to the appellant.

7. Further it has also been pointed out that the doctor in this case has been examined as P.W.-7, Dr. Jaya Padma Sindhu Tiga, who also did not assess the age of the victim in a definite manner and he stated that the age of the victim was between 16 to 17 years with variation of two years on either side and thus a doubt is created that the victim might be major also and further it has come in the 3 Cr. Appeal (S.J.) No. 261 of 2011

deposition of the victim herself that she had gone along with the accused on foot and as such the conviction under Section 366 of the Indian Penal Code is not proved beyond reasonable doubt and similarly from the version of the victim it is also found that she had willingly and voluntarily gone with the appellant and remained with him for two days and as such the charges of committing rape by the appellant with the victim also becomes doubtful and therefore, the learned Court below did not appreciate the depositions of the witnesses examined on behalf of the prosecution in totality and in a holistic manner and passed the impugned judgement of conviction and order of sentence without any cogent and persuasive evidence and under the circumstances the benefit of doubt goes to the appellant. Arguments advanced on behalf of the State-

8. On the other hand the learned A.P.P. appearing on behalf of the State at the outset submitted that notice has been duly served upon the appellant with respect to his whereabouts and it is found that he is alive and the notice has been properly served upon him and a counter affidavit to that effect has also been filed on behalf of the State.

9. It is submitted on behalf of the State that all the witnesses have supported the case of the prosecution including the statement of the prosecutrix P.W.-4 recorded under Section 164 of the Cr.P.C. which has also been proved by the learned Judicial Magistrate who is P.W.-6, Manoj Kumar Tripathi. Further the witnesses who have been examined on behalf of the prosecution including P.W.-1, Doli Kumari, P.W.-2, Tara Nayak, P.W.-3, Manju Sahu (Informant) and P.W.-4, the victim have fully supported the case of the prosecution and the learned Court below has rightly relied upon their versions on the basis of their depositions and therefore, there is no legal point to interfere in the impugned judgement of conviction.

10. The learned A.P.P. has also pointed out from the depositions of the I.O. i.e. P.W.-5, Prasidh Narayan Singh and the doctor P.W.-7, Jaya Padma Sindhu Tiga, that in order to substantiate the case of the prosecution which has been proved successfully on the basis of the evidences adduced on its behalf, there is no legal point to interfere in the impugned judgement of conviction and the order of sentence and this appeal is fit to be dismissed being devoid of merit.

APPRAISAL & FINDINGS

11. Having heard the parties, perused the records of this case including the Lower Court Records.

12. In order to substantiate its case it is found that the prosecution has been able 4 Cr. Appeal (S.J.) No. 261 of 2011

to examine altogether seven (7) witnesses which are as under:

1. P.W.-1: Doli Kumari;

2. P.W.-2: Tara Nayak;

3. P.W.-3: Manju Sahu (Informant);

4. P.W.-4: the victim;

5. P.W.-5: Paradish Narayan Singh;

6. P.W.-6: Manoj Kumar Tripathi; and

7. P.W.-7: Jaya Padma Sindhu Tigga

13. Apart from the oral evidences some documentary evidences have also been adduced on behalf of the prosecution which are as under:

1. Exhibit-1: Written Information,

2. Exhibit-2: Signature of the victim girl (PW-4) on the statement recorded u/S. 164 Cr.P.C.,

3. Exhibit-3: Requisition of medical examination of the victim,

4. Exhibit-4: Signature of Lakhan Sahu on the release order,

5. Exhibit-5: formal F.l.R.,

6. Exhibit-6: Registration of the written information,

7. Exhibit-7: Statement of the victim girl i.e. P.W.-4 recorded under Section 164 of the Cr.P.C., and

8. Exhibit-8: Medical Report of the victim.

14. It is also found on the other hand on behalf of the defence that no evidence has been adduced. However, it is found from the trend of cross-examination conducted on behalf of the appellant in his defence that the appellant has taken the defence that the informant people wanted to grab the land of the accused and therefore, the accused was falsely implicated in this case.

15. The gist of the charges in short as found from the trial of this case is that the victim had gone to a Mela (fair) and from there she was abducted / kidnapped and rape was committed with her by this appellant.

16. In the background of the defence vis-à-vis the charges levelled against the appellant, this Court proceeds to examine the witnesses examined on behalf of the prosecution.

17. P.W.-1, Doli Kumari is said to have accompanied the victim P.W.-4 in the Mela from where she was alleged to have been kidnapped and thereafter rape was committed. She stated that she had not seen the occurrence from her own eyes and what she had stated in her deposition was on the basis of the statement of other persons. This witness has neither disclosed the source of information about the occurrence nor she has taken the name of any person from whom she came to know about the occurrence and therefore, this witness did not support the case of 5 Cr. Appeal (S.J.) No. 261 of 2011

the prosecution at all although she has supported the version in her examination-in- chief.

18. P.W.-2, Tara Nayak, is said to be the neighbour of the victim and he categorically stated in his cross-examination vide para-2 that he had no knowledge about the occurrence and therefore, the version of this witness is wholly unreliable.

19. P.W.-3, Manju Sahu (the informant), another witness examined on behalf of the prosecution is the father and informant of the victim P.W.-4 who stated that he did not know as to what had been written in the fardbeyan although he proved his signature in the fardbeyan which has been marked as Exhibit-1. In para-3 in the cross-examination this witness categorically stated that he has known the accused since childhood and he also stated that he did not see the occurrence from his own eyes and he came to know about the alleged incident of abduction / kidnapping and rape from Doli Kumari who is P.W.-1 and thus the version of this witness P.W.-3 also becomes doubtful inasmuch as this witness (P.W.-3) came to know about the occurrence from P.W.-1, who also stated that she had come to know about the occurrence from another person but neither the name of any person was taken nor she disclosed anything about the appellant in her deposition as evident from the testimonies of P.W.-1. Further in the cross-examination he denied the suggestion which has been given to this witness on behalf of the appellant as a defence that in order to grab the land of the accused this false case has been instituted.

20. Further, it is found from para-4 of the cross-examination that on the date of occurrence this witness being the father did not go to the police station and he was looking for his victim daughter. Here it is relevant to appreciate that the occurrence is said to have taken place on 04.04.2009 and this case has been instituted on 06.04.2009 i.e. after two days and this witness being the father did not go to the police station even to inform about the occurrence which appears to be highly improbable.

21. P.W.-4 is the victim and from her version vide paras-3 and 4 of the cross- examination it is well founded and inferred that she had gone voluntarily and willingly with the appellant and she while going with the appellant had crossed her house also but neither she informed to her parents nor any member of her family of her house nor she had informed any co-villager, although she has categorically stated that there were many co-villagers present in the Mela from where she was said to have been taken away by the appellant. This version of the victim definitely establishes that she had gone willingly and voluntarily with the appellant on foot and the defence taken on behalf of the appellant cannot be ruled out and the benefit 6 Cr. Appeal (S.J.) No. 261 of 2011

of doubt goes to the appellant from the version of this witness also. This witness (P.W.-4) being the victim also stated that she had not been taken by the police / investigating agency to the place of occurrence for the investigation and she stated in her examination- in-chief that she remained with the appellant for two days but she did not utter a single word about her protest or making noise or raising alarm during the course of being kidnapped and commission of the offence of rape. This also creates doubt in her version.

22. P.W.-5, Prasidh Narayan Singh is the I.O. of this case and he has formally proved the signature of Lakhan Sahu on the release order and the formal F.I.R. which has been marked as Exhibit-4 and Exhibit-5 respectively. This witness has also proved the endorsement of the officer-in-charge which has been marked as Exhibit-6.

23. P.W.-6, Manoj Kumar Tripathi is the learned Judicial Magistrate who has proved the statement of the victim (P.W.-4) recorded under Section 164 of the Cr.P.C. which has been marked as Exhibit-7.

24. P.W.-7, Dr. Jaya Padma Sindhu Tigga is the doctor who had examined the victim on 13.04.2009 i.e. after eight days of the occurrence and did not find any sign of sexual intercourse and from the X-Ray plate this doctor had estimated the age of the victim between 16 to 17 years which might vary two years on the either side and therefore, no definite finding has come about the age of the victim as to whether she was a minor or a major. On examination of the victim, the doctor (P.W. - 7) has found the following:

"Height of the victim girl- 56.5"; weight- 39 kgs; Tooth- 11 upper-14 lower, auxiliary and pubic hairs present. Both breasts well developed. No sigh of struggle on the external part of her body. Hymen shows old tear. Introits admit two fingers easily. No foreign hair in private part. Vaginal smear shows no spermatozoa-dead or alive."

From the version of the victim (P.W.-4) as evident from paras-3 & 4 of the cross- examination, it is found that she had voluntarily and willingly gone with the appellant on her own foot along with him and therefore, the possibility of the defence taken on behalf of the accused-appellant becomes imminent and the benefit of doubt goes to the appellant.

25. The other witnesses who have been examined on behalf of the prosecution including P.W.-1, P.W.-2 and P.W.-3 did not take the name of the person as to from whom they came to know about the incident and P.W.-4 had categorically stated in her deposition that she had got recorded her statement under Section 164 of the 7 Cr. Appeal (S.J.) No. 261 of 2011

Cr.P.C. at the instance of her parents.

26. In view of the aforesaid appraisal of the testimonies of the witnesses, it is well founded that the prosecution has failed to prove the guilt of the accused- appellant for the offence punishable under Section 366/376 of the Indian Penal Code, 1860 beyond reasonable doubt and therefore the benefit of doubt goes to the appellant.

27. Accordingly, the impugned judgement of conviction dated 27.01.2011 and order of sentence dated 02.02.2011, passed by the Court of learned Additional Judicial Commissioner (F.T.C.)-VIII, Ranchi in S.T. No. 518 of 2009, arising out of Kanke P.S. Case No. 29 of 2009 corresponding to G.R. Case No. 1408 of 2009, is hereby set aside.

28. The appellant is acquitted from the charges levelled against him and he is discharged from the liabilities of bail bond in this case.

29. Accordingly, this appeal is allowed.

30. Let the Lower Court Records be sent back to the Court concerned along with the copy of this judgment.

31. Let a copy of this judgement be also sent to the Member Secretary, JHALSA in order to comply the order of this Court passed on 10.11.2022, under which Mr. Sanjay Kumar Saraswat was appointed as Amicus Curiae in this case to appear and argue on behalf of the appellant.

D.S./J.Minj                                                  (Navneet Kumar, J.)