Mokho Nayak vs The State Of Jharkhand
2023 Latest Caselaw 4087 Jhar

   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Appeal (SJ) No.425 of 2011
(Arising out of the judgment of conviction and the order of sentence dated
14.06.2011 and 15.06.2011 respectively in S.T. No.289 of 2007)
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1. Mokho Nayak, son of Sahju Nayak

2. Babu Chand Nayak, son of Morpo Nayak

3. Jhalit Nayak, son of Ghurna Nayak

4. Chandan Nayak, son of Jhalit Nayak (Died during pendency of this Criminal Appeal and abated) All resident of Village-Jarjatta, P.O. & P.S.-Raidih, District Gumla ...... ...... Appellants Versus

The State of Jharkhand ..... .... Respondent

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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Appellants    : Mrs. Vani Kumari, Advocate
For the Respondent    : Mr. Shailesh Kumar Sinha, APP
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C.A.V. on: 19/09/2023                        Pronounced on: 31/ 10/2023

1. This Criminal Appeal has been preferred against the judgment of

conviction dated 14.06.2011 and the order of sentence dated 15.06.2011

passed by the learned Sessions Judge, Gumla in Sessions Trial No. 289 of

2007, whereby the learned trial Court has convicted all the appellants under

Sections 341, 342, 448 and 504 of the Indian Penal Code and the appellant

No.4, namely, Chandan Nayak has further been convicted under Section 376

of the Indian Penal Code and sentenced them to undergo RI for one month

with a fine of Rs.500/- under Section 341 of the Indian Penal Code; RI for

six months and a fine of Rs.500/- under Section 342 of the Indian Penal

Code; RI for six months and a fine of Rs.1000/- under Section 448 of the

Indian Penal Code; RI for one year and a fine of Rs.1000/- under Section

504 of the Indian Penal Code. In default of payment of fine, they were

directed to undergo SI for one month for each Section. The appellant No.4,

namely, Chandan Kumar has been further directed to undergo RI for eight

years with a fine of Rs.5000/- under Section 376 of the Indian Penal Code,

in default of payment of fine, he has been directed to further undergo SI for

six months. All the sentences were directed to run concurrently.

2. The brief facts of the prosecution case leading to this Criminal Appeal

are that the informant-victim gave the written information with the police

station concerned with these allegations that on 09.06.2007, her father,

mother, brother and sisters all after having taken dinner gone to sleep in the

house. At 12:00 O'clock of night, Chandan Nayak, Babu Chand Nayak,

Mokho Nayak and Jhalit Nayak all came to her house and knocked the door

of the house asking to open the same. The mother of the informant-victim

opened the door. Babu Chand Nayak and Chandan Nayak both intruded in

her house. Both forcibly dragged her out of the house. Her father also came

out. On being resisted by the mother and father both Babu Chand Nayak and

Chandan Nayak assaulted to the parents of the informant-victim. Chandan

Nayak forcibly took her to his house, thereafter, all criminally intimidated

her. Ultimately, Babu Chand Nayak and Mokho Nayak both went to their

house. Chandan Nayak kept her to his own house. On 10.06.2007 in the

night, he raped her in one east facing room of his house. Chandan Nayak

detained her for six days in his house and he raped her many times. On 7th

Day, she left the house of Chandan Nayak and went to her house to see her

ailing mother. Thereafter, she along with her ailing mother went to the house

of her maternal uncle at Chainpur, Nawatoli, where she looked after her

ailing mother and could not inform the police and ultimately on 19.07.2007,

the FIR was lodged, which was registered as Case Crime No.55 of 2007

under Sections 376, 341, 342, 448, 504 and 323 read with Section 34 of the

Indian Penal Code and against all the accused persons.

3. The Investigating Officer after having concluded the investigation,

filed charge-sheet against all the four accused persons under Sections 376,

341, 342, 448, 504 and 323 read with Section 34 of the Indian Penal Code.

The Magistrate concerned took cognizance on the charge-sheet and

committed the case for trial to the Court of Sessions Judge.

4. The Court of learned Sessions Judge framed the charge against all the

accused persons for the offence under Sections 504, 448, 341 and 342 of the

Indian Penal Code and against the accused Chandan Nayak the charge was

framed separately in addition for the offence under Section 376 of the Indian

Penal Code also. All the accused persons denied the charge and claimed to

face the trial.

5. On behalf of the prosecution to prove the charge against the accused

in oral evidence examined altogether ten witnesses i.e. P.W.-1, Sugiya

Devi; P.W.-2, Basant Ram @ Nayak; P.W.-3, Muni Devi; P.W.-4, Ram

Lagan Ram; P.W.-5, Pati Devi, P.W.-6, Anita Kumari; P.W.-7, Ram Dev

Nayak; P.W.-7B, Dr. Pratibha Narayan; P.W.-8, Santu Nayak and; P.W.-

9, Anand Tirkey and in documentary evidence the prosecution has filed

Exhibit-1 Signature of the victim on written information; Exhibit-2,

Written information; Exhibit-3, Medical Examination Report and;

Exhibit-4, Formal FIR.

6. The statement of the accused persons was recorded under Section 313

of Code of Criminal Procedure, in which, they denied the incriminating

circumstances in evidence against them and stated themselves to be

innocent.

7. On behalf of the accused in defence in oral evidence produced D.W.-

1, Amsit Lakra and; D.W.-2, Manoj Bega and in documentary evidence

on behalf of the accused filed Exhibit-A1, affidavit of victim; Exhibit-

A1/1, Signature of victim on the affidavit; Exhibit-A Dakhila Bahi and;

Exhibit-B, Panchyat paper.

8. The learned trial Court after hearing the rival submissions of the

learned counsel for the accused and learned counsel for the State, passed the

impugned judgment of conviction dated 14.06.2011 and the order of

sentence dated 15.06.2011 holding all the accused persons guilty for the

offence 341, 342, 448 and 504 of the Indian Penal Code and the appellant

No.4, namely, Chandan Nayak has also been convicted under Section 376 of

the Indian Penal Code and sentenced as stated hereinabove.

9. Aggrieved from the impugned judgment of conviction dated

14.06.2011 and the order of sentence dated 15.06.2011, this Criminal Appeal

has been preferred on behalf of the appellants on the ground that the

impugned judgment of conviction and the order of sentence passed by the

learned Court below is based on wrong appreciation of the evidence. The

learned Court below did not take into consideration the major contradiction

in the statement of the prosecution witnesses. There is inordinate delay in

lodging the FIR and despite no explanation on behalf of the prosecution

while residing the victim at the house of appellant Chandan Nayak for six

days no one of the family member or village persons went to know the

whereabouts of the victim. Indeed, the victim was consenting party and the

learned Court below did not take into consideration this major fact. Though

the age of the victim is shown 14 years in the FIR; yet the victim was major.

She was having affair with Chandan nayak. The marriage was also

solemnized on affidavit and this FIR was lodged at the instance of maternal

uncle of the victim. The learned Court below did not take into consideration

the defence evidence, which could have been appreciated on the touchstone

of preponderance of the probabilities to rebut the prosecution version; and

prayed to allow this Criminal Appeal & set aside the impugned judgment of

conviction and the order of sentence and acquit the appellants/ convicts from

the charges levelled against them.

10. The appellant No.4, namely, Chandan Nayak had died in the year

2016 during pendency of this Criminal Appeal, therefore, this appeal

was abated against the appellant No.4, namely, Chandan Nayak vide

order dated 19.09.2023.

11. Heard the rival submissions of the learned counsel for the appellants

and learned APP for the State and perused the materials available on record.

12. In order to decide the legality and propriety of the impugned judgment

of conviction and the order of sentence passed by the learned trial Court, this

Court diverts to the evidence oral as well as documentary adduced on behalf

of the parties on record, which are reproduced hereinbelow:

12.1 P.W.-1, Sugiya Devi, in her examination-in-chief, says that the

occurrence was of seven months ago. It was Saturday. The time was 12:00

O'clock of night. Chandan Nayak came and dragged the victim to his house.

The victim resided there for six days and when she came back to her house,

she told that Chandan Nayak had forcibly established physical relation with

her. In cross-examination, this witness says that Daroga Ji did not interrogate

her. The house of the victim and the house of the accused Chandan Nayak is

in the same village and the distance between both the houses is 500 yards.

During her stay at the house of Chandan Nayak, the victim also did

household works. The victim is her sister-in-law.

12.2 P.W.-2, Basant Ram @ Nayak, who is the cousin of the informant-

victim, in his examination-in-chief, says that the occurrence was of six

months ago. It was Saturday. Time was 12:00 O'clock of night. Babu Chand

Nayak, Mokho Nayak, Chandan Nayak and Jhalit Nayak came and took the

victim to their house. The victim is his cousin sister. She resided at the house

of Chandan Nayak for one week. When she came back to the house, told that

she was raped by Chandan Nayak. In cross-examination, this witness says

that there is a common yard between the house of victim and his house.

During this period of one week, no complaint was made to any authority.

Even no complaint was made in writing to the panchayat. The victim came

from the house of Chandan Nayak at her own will.

12.3 P.W.-3, Muni Devi, who is the aunt of the informant-victim, in her

examination-in-chief, says that the occurrence is of nine months ago. It was

night of 12:00 O'clock of Saturday. Mokho Nayak, Jhalit Nayak, Babu

Chand Nayak and Chandan Nayak all took the victim to the house and after

seven days, victim came back and told that she was raped by Chandan

Nayak. In cross-examination, this witness says that she is not aware whether

any panchayat was held. She is also not aware whether any marriage was

solemnized between Chandan Nayak and the victim by way of any notarized

affidavit. After the occurrence, the victim went to the house of her maternal

uncle Nawatoli, Chainpur and she resided there for one month.

12.4 P.W.-4, Ram Lagan Ram, who is the uncle of the informant-victim,

in his examination-in-chief, says that the occurrence was of 10 months ago.

It was night of 12:00 O'clock of Saturday. Chandan Nayak, Jhalit Nayak,

Babu Chand Nayak and Chandan Nayak all came to the house of victim and

took her with them. Victim resided at the house of Chandan Nayak and when

she came back, she was told that she was raped by Chandan Nayak. On the

day of occurrence, the age of victim was 14 years. In cross-examination, this

witness says that police had interrogated him. The victim was studying at the

time of occurrence in G.E.L. Primary School.

12.5 P.W.-5, Pati Devi, who is the mother of the informant-victim, in her

examination-in-chief, says that the occurrence was of 10 months ago. It was

12:00 O'clock of night of Saturday. Chandan Nayak, Mokho Nayak, Jhalit

Nayak and Babu Chand Nayak all asked to open the door and she opened the

door and all the accused persons dragged her daughter from her house. She

and her husband resisted, but they criminally intimidated. Her daughter also

resided at the house of Chandan Nayak for seven days and when she came

back to the house, she told that she was raped by Chandan Nayak. In cross-

examination, this witness says that at the time of occurrence all the family

members were present at the house. During this period of week when the

victim resided at the house of Chandan Nayak, neither any panchayat was

called out nor the police were informed. After the victim came back to the

house, she came to know in regard to the occurrence. On the next day, she

went to her parental house along with victim. It is wrong to say that her

brother Raghunath Nayak did not like the relation between Chandan and the

victim and this FIR was lodged at the behest of Raghunath Nayak.

12.6 P.W.-6, the victim herself, in her examination-in-chief, says that the

occurrence was of 10 months ago. It was Saturday and time was 12:00

O'clock of night. The accused Chandan Nayak, Mokho Nayak, Babu Chand

Nayak and Jhalit Nayak knocked the door of her house and the same was

opened by her mother. All the accused persons intruded in the house and

they took her with them. Chandan Nayak took her at his house. She resided

there for seven days. Chandan Nayak raped her. The written information was

written by whom, she is not aware; but the same bears her signature, which

is marked as Exhibit-1. In cross-examination, the victim says that she and

the accused persons belong to the same village. Amid the way, she raised the

alarm but no one paid any heed. She resided at the house of Chandan Nayak

for seven days. Her parents did not come there due to fear. Chandan Nayak

raped her. She was raped for six days. No person of their village came there.

She went to her house at her own will in the very cloths, which she had worn

on the very date of occurrence. The cloths were not handed over by her to

the police. The accused persons were armed with tangi and had criminally

intimidated. When she left from the house of Chandan Nayak, all the family

members of the house were present there. It is wrong to say that she was

having love affair with Chandan Nayak and wanted to marry with him and

the same was opposed by her maternal uncle.

12.7 P.W.-7, Ram Dev Nayak, who is the maternal uncle of the informant-

victim, in his examination-in-chief, says that on the date of occurrence he

came to know that on 9th July in night, Chandan had dragged the victim from

the house of her parents and victim lived at the house of Chandan for seven

days, where she was raped by Chandan Nayak. In cross-examination, this

witness says that he came to know in regard to the occurrence from the

victim and her family members.

12.8 P.W.-7B, Dr. Pratibha Narayan, in her examination-in-chief, says

that on 19th July 2007, she was posted as Civil Assistant Surgeon at Sadar

Hospital, Gumla. She examined the victim girl at 04:00 pm and in internal

examination, she found the hymen to be raptured with tag present. The

girl was having menses. The vaginal swab on the microscopic

examination showed no spermatozoa and RBC present thereof. The girl

was about 16-17 years old. The medical examination report of the victim

is in her writing and signature, which is marked as Exhibit-3. In cross-

examination, this witness says that the very rapture that she was in the

hymen cannot be caused on account of hard labour.

12.9 P.W.-8, Santu Nayak, who is the father of the informant-victim, in his

examination-in-chief, says that all the accused persons Chandan Nayak,

Mokho Nayak, Jhalit Nayak and Babu Chand Nayak came to the house of

the victim and took the victim with them. The victim resided for seven days

at the house of Chandan Nayak, where she was raped. At that time, she was

14 years old. In cross-examination, this witness says that neither he went to

the house of Chandan Nayak to bring back his daughter nor told to any

person of the village in this regard. His daughter resided there for seven

days. It is wrong to say that the marriage of the victim was solemnized with

Chandan Nayak by way of affidavit and in that marriage, the persons of the

village and he was present.

12.10 P.W.-9, Anand Tirky, who is the Investigating Officer of this case, in

his examination-in-chief, says that investigation of Case Crime No.55 of

2007 registered under Sections 376, 341, 342 and 448 of the Indian Penal

Code against all the accused persons was handed over to him. First of all, he

recorded the statement of informant-victim. Thereafter, also recorded the

statement of Santu Nayak, Pati Devi, Ram Dev Nayak, Basant Ray, Sugiya

Devi, Ram Lagan Ram, Muni Devi and Jag Mohan Ram as well and he got

the medical examination of the victim. The formal FIR is in the signature of

Dinesh Yadav, which is marked as Exhibit-4. He inspected the place of

occurrence. After having received the medical examination report concluded

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the investigation and filed charge-sheet. In cross-examination, this witness

says that the occurrence was of 09.06.2007 and the written information was

given on 19.07.2007. In the meantime, no reason for information was

received with the police station concerned. He did not record the statement

of the persons of that locality nearby the house of the victim.

13. As per the prosecution case, the occurrence is of 19.06.2007 at 12:00

O'clock of night. All the four named accused had come to the house of

informant-victim, knocked the door of her house the door was opened by her

mother and the accused persons intruded in the house and dragged the victim

with them and handed over to Chandan Nayak, who took the victim to his

own house. She remained stayed at the house of Chandan Nayak for seven

days and during this period, Chandan Nayak raped her every day. After one

week, she herself came to her house, thereafter, she went to the house of her

maternal uncle, where she lived for one month and after having come from

the maternal uncle's house, she lodged this FIR.

14. As per the FIR allegations, the age of victim is shown as 14 years. So

far as the occurrence of 19.06.2007 at 12:00 O'clock of night is concerned,

P.W.-5, Pati Devi in her statement stated that on the fateful night Jhalit

Nayak, Chandan Nayak, Mokho Nayak and Babu Chand Nayak all came her

house and knocked the door at 12:00 O'clock of night, she opened the door

and all the accused persons intruded in the house and dragged her

daughter i.e. the victim. She resisted them but the accused persons

criminally intimidated them and also stated that her daughter remained at

the house of Chandan Nayak for seven days. When she came back to her

house, she said that Chandan had raped her. In cross-examination, this

witness says that in regard to the occurrence of 19.06.2007, neither she

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made any complaint to any police station concerned nor any person of

the village nor the panchayat was called for. She did not go to the house

of Chandan to know the welfare of her daughter. After one week having

resided at the house of Chandan Nayak, her daughter came back to her

house and, thereafter, she went to her maternal uncle's house where her

daughter remained for one month and after coming from the maternal

uncle's house, the FIR was lodged.

15. P.W.-8, Santu Nayak, who is the father of victim, stated that on the

fateful night of 19.06.2007 at 12:00 O'clock of night, the accused

Chandan Nayak, Babu Cband Nayak, Jhalit Nayak and Mokho Nayak

came to their house and knocked the door, after the door was opened by

his wife, all the accused persons intruded in the house and took with

them his daughter without their consent. On being opposed by them, all

the accused persons criminally intimidated them and his daughter

remained at the house of Chandan Nayak for one week and after having

come back to her house, she told that she had been raped by Chandan

Nayak. In his cross-examination, this witness also stated that in regard to

that occurrence he did not give any information to the police officer or

any panchayat member. When his daughter came back after seven days,

she went to the house of her maternal uncle's house and after having

come from there, this FIR was lodged.

16. P.W.-6, the victim herself has stated that on 19.06.2007 at 12:00

O'clock of night, Chandan Nayak, Jhalit Nayak, Mokho Nayak and

Babu Chand Nayak all came to her house, the door was opened by her

mother and they forcibly took her to the house of Chandan Nayak,

where she was resided for seven days. During that seven days, Chandan

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Nayak raped her many times. During seven days, no one of her family

member came to rescue her. She came from the house of Chandan

Nayak at her own will.

17. From the testimony of all these three witnesses including the victim,

it is found that on 19.06.2007 at 12:00 O'clock of night, the victim was

dragged by all four named accused persons from the house of the victim and,

thereafter, she was handed over to Chandan Nayak, where she remained for

one week. There is no in evidence that during these seven days the

victim was confined by the accused Chandan Nayak in any room rather

she did household work as well and she also stated that during these seven

days the accused Chandan Nayak had established physical relations with her.

18. In corroboration of testimony of these eyewitnesses on behalf of the

prosecution also examined P.W.1, Sugiya Devi; P.W.-2, Basant Ram @

Basant Nayak; P.W.-3, Muni Devi; P.W.-4, Ram Lagan Ram and; P.W.-

7, Ramdev Nayak all these witnesses stated that they came to know from

father and mother of the victim and the victim herself that that the victim

was forcibly dragged from her house on fateful night of 19.06.2009 and the

victim was taken to the house of Chandan Nayak and the victim resided at

the house of Chandan Nayak for seven days. After seven days, she came

back to her house where she told to her family members and all these

witnesses that she was raped by Chandan Nayak.

19. Although in the FIR, age of the victim is shown 14 years, yet no

documentary evidence has been adduced in regard to the age of victim. The

victim was medically examined by P.W.-7, Dr. Pratibha Narayan, who

gave his opinion that the victim was about 16-17 years old. This opinion

of doctor is based on ossification test. Therefore, two years plus/ minus

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benefit to the age would go to the accused taking into consideration the

average age of the victim which is about 16 years.

19.1 The Hon'ble Supreme Court in the case of Ram Suresh Singh Vs.

Prabhat Singh @ Chhotu Singh & Anr. reported in (2009) 6 SCC 681 and

Jyoti Prakash Rai Vs. State of Bihar reported in (2008) 15 SCC 223 held

that the bone ossification test is not conclusive in nature for the age

determination as it does not reveal exact age of the person; but leaves margin

is of two years on either side of age range which after a lot of deliberation

the Hon'ble Apex Court held that all things being equal, benefit of doubt in

age estimation by bone ossification test is to go to accused.

20. Herein the conduct of the victim and her parents also become

relevant at the time of commission of offence and after commission of

offence.

20.1 Neither the father nor the mother nor any family member nor any

relative of the victim nor even victim herself did inform to the police officer

or any member of the panchayat in regard to the commission of alleged

offence against all the accused persons.

20.2 The victim resided for seven days at the house of Chandan Nayak

willingly, where she also did household works. Admittedly she was not

confined any room and lived there at her liberty. She came to her house on

her own will from the house of Chandan Nayak.

20.3 During seven days no family member of the victim went to the house

of Chandan Nayak and no one made any complaint to the police authority or

any member of panchayat.

20.4 After seven days, when the victim came her house she did not lodge

the FIR rather she went with her mother to her maternal uncle's house,

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where she resided for one month. This thorough conduct of the victim, her

father and her mother appear to be consenting party.

20.5 After one month having come from the house of maternal uncle, she

lodged the FIR with the police station concerned on 19.07.2007 i.e. just

more than one month ten days. There is no cogent explanation of this delay.

20.6 In view of the conduct of the victim and her family members, the

whole prosecution story appears concocted & afterthought and the same

makes the prosecution case doubtful.

21. The prosecution story is also rebutted from the defence evidence. On

behalf of the accused persons in defence evidence adduced affidavit of

victim verified by the Notary Public in which it is deposed that she had

accepted Chandan Nayak as her husband. She had been having physical

relation with him for last six months. This affidavit is dated 04.06.2007, on

this affidavit, the victim had admitted her signature though denied its

content.

22. There is minutes of the meeting of the panchayat, which is signed by

one Chairman of Gramsabha, on which, there are signature of ten members

of Gramsabha. In this, it is stated that no one appeared in this panchayat

from the side of the victim. This panchayat was held at the request of the

accused persons. It is stated that on the queries made by the Chairman of

gramsabha and other members of gramsabha, victim had told that she had

gone to the house of Chandan Nayak at her own will and no force was

applied upon her by anyone. This panchayatnama is also proved by D.W.-2,

Manoj Benga who stated that this panchayatnama was in his handwriting

and signed by him and the victim stated that she wanted to reside with

Chandan Nayak.

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23. On behalf of the defence also filed the Dakhilabahi, U.P. Pathshala,

Jarjata, which is marked as Exhibit-A. From the perusal of this document, it

is found that the date of birth of victim is shown as 04.05.1987, this

document has also been proved on behalf of the defence by producing

witness as D.W.-1, Amit Lakra, who is the Head Master of GEL Primary

School, Jarjata, Gumla. This witness has proved the entries made in the

register and also exhibited as Exhibit-A and stated that the date of birth of

victim is shown as 04.05.1987. Taking into consideration this School

Register Entry in regard to the age of victim 04.05.1987, on the date of

occurrence, the age of victim is determined to be 20 years.

24. From the cumulative analysis of the evidence adduced on behalf of

the prosecution and also the evidence adduced on behalf of the defence, I am

of considered view that the prosecution evidence is found rebutted by

defence evidence. The prosecution has failed to prove the charge against the

accused persons beyond all shadow of doubt. As such, the impugned

judgment of conviction and the order of sentence passed by the learned

Court below needs interference and this Criminal Appeal deserves to be

allowed.

25. Accordingly, this Criminal Appeal is hereby allowed. The impugned

judgment of conviction dated 14.06.2011 and the order of sentence dated

15.06.2011 passed by the learned Sessions Judge, Gumla in Sessions Trial

No. 289 of 2007 are set aside.

26. This Criminal Appeal has been abated against the appellant No.4,

namely, Chandan Nayak due to his death in the year 2016 during pendency

of this appeal.

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27. The appellant No.1, namely, Mokho Nayak; the appellant No.2,

Babu Chand Nayak and; the appellant No.3, namely, Jhalit Nayak all these

three are being acquitted from the charges levelled against them. Their bail

bonds are hereby cancelled and the sureties are discharged from their

liabilities.

28. Let the Lower Court Records be sent back to the learned Court below

along with a copy of this judgment.

(Subhash Chand, J.)

Madhav/-