Jharkhand High Court
Mithilesh Kumar Mahato vs The State Of Jharkhand on 3 April, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Cr. Appeal (S.J.) No. 38 of 2012
(Against the judgment of conviction dated 08.12.2011 and order of sentence dated
14.12.2011 passed by learned District Judge-XII, Ranchi in S.T. No. 56 of 2009)
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Mithilesh Kumar Mahato ... .... Appellant
Versus
The State of Jharkhand ... .... Respondent
PRESENT
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Appellant : Ms. Joyti Kumari, Advocate
For the State : Mr. Sardhu Mahto, APP
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By Court :
Heard the parties
1. The judgment of conviction under Section 376 of Indian Penal Code and order
of sentence of rigorous imprisonment for seven years and a fine of Rs.50,000/-
is under challenge in the instant appeal.
2. As per the FIR lodged by the prosecutrix on 05.06.2008, her husband had died
about a year ago and she had two children and was living with them in the house
of her father. It is alleged that two months before, the appellant had forcibly
established physical relationship with her which she could not disclose this due
to the public infamy and had also attempted to commit suicide but she was saved
by her family members. Later on, the appellant continued to sexually exploit her
on false promise of marriage. On 23.05.2008 when her mother proposed her
marriage with the accused, it was out-rightly refused. Subsequent thereto, she
raised issue in the village and a Panchayat was also convened. On the basis of the
written report, Pithoria PS Case No. 44 of 2008 was registered under Section 376
of the Indian Penal Code against the sole appellant.
3. Police on investigation found the case true and submitted charge sheet and after
cognizance, charge was framed and the appellant was put on trial.
4. Altogether five witnesses were examined on behalf of the prosecution and the
relevant documents were adduced into evidence, marked as Exhibits 1 to 4. After
prosecution evidence, the statement of the accused was recorded under Section
313 of Cr.P.C. The defence is of innocence.
5. Judgment of conviction and order of sentence has been assailed on the ground
that the victim was a major lady and as per evidence, there was consensual
physical relationship between two adults and only when the appellant refused the
offer of marriage, instant case has been filed. The incidence is alleged to have
taken place two months before registration of the FIR, but no plausible
explanation has been given with regard to delay. It is alleged that the accused has
committed rape, but there is no material to corroborate the testimony of the
prosecutrix that at any point of time she protested to sexual assault made by the
appellant. The medico-legal-examination report does not refer to any injury
suffered by the victim. It is said that a Panchayati was held to resolve the dispute
but no villagers have come forward to support the case of the prosecution.
6. It is further argued that as per the testimony of the prosecutrix, because of
physical relationship, she became pregnant and gave birth to a child on
04.05.2009 whereas the accused was taken into custody in this case on
30.06.2008 which is 327 days whereas the maximum term for gestation period of
pregnancy is 280 days. PW2-sister of the prosecutrix has deposed that the
appellant had been caught on 23.05.2008 in the house by the mother of the
victim which resulted in institution of the case.
7. It is argued that the prosecution case is falsified by the deposition of the
prosecutrix herself. In para 5 she states that the place of occurrence was at a
distance which took one hour (to and fro) in travelling to the place, whereas in
her examination-in-chief, she has stated that she had gone outside her house in
the morning at 5 O'clock to attend the nature's call when the incidence took
place. Reliance is placed in the case of Rabindra Mahto @ Rabinder Mahto Vs.
The State of Jharkhand & Anr. (Cr. Revision No. 355 of 2022).
8. Learned counsel for the State has defended the impugned judgment of
conviction and order of sentence and submitted that in case of rape solitary
account of the prosecutrix is sufficient to prove the charge. In the present case,
the statement of the prosecutrix has been duly corroborated by her mother and
sister who have consistently stated that on a false promise of marriage, the
appellant has been committing repeatedly rape with the prosecutrix. A consent
which has been given under force or fraud is no consent in view of Section 90 of
Indian Penal Code. Reliance is placed on (2005) 1 SCC 88.
9. Law is settled that if there was an incidence of rape at the first instance,
followed by proposal of marriage, the act will squarely come within the meaning
of rape. If, however the evidence is to the effect that it was a case of consensual
physical relationship between two adults from the very inception, which is
followed by subsequent physical relationship on a promise for marriage, the
breach of such promise shall not amount to commission of rape.
10. After considering the submissions advanced on behalf of both sides, and on
perusal of the evidence on record, this Court is of the view that the judgment of
conviction and sentence is not sustainable. It is not in dispute that the prosecutrix
is a major lady having two children, and the FIR has been lodged after two
months when the alleged incidence took place. It has come in evidence that the
relationship continued unabated and the victim also became pregnant. There is no
evidence to show that at any stage prosecutrix, resisted, opposed or complained
against the appellant. It has been deposed that Panchayat was convened, but none
have come forward to support this.
11. With regard to the first incidence it has been stated that it took place in the
morning near the house of the prosecutrix when she had gone to attend natural
call. The place of occurrence as stated in the cross-examination was at least half-
an-hour away from her house. What prompted the prosecutrix to travel so long in
the early hour to attend to natural call is baffling. The testimony of her sister
alludes to the fact that the appellant was frequenting the house of the prosecutrix,
and when marriage was proposed, it was refused by him. From this it can be
inferred that, it was not a case of rape followed by promise of marriage, rather
the promise for marriage was made at a much later stage when the prosecutrix
had become pregnant. It is true that a conviction under section 376 of the IPC,
can be recorded on the sole testimony prosecutrix, provided a testimony is cogent
reliable and trustworthy. In the present case the account of the prosecutrix that
does not inspire confidence, and if not be safe to convict the appellant on the
solitary account.
Judgment of conviction and order of sentence is, accordingly, set aside and the
appeal is allowed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated, the 03rd April, 2024
NAFR/ AKT/Satayendra
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