Sanjay Kumar Mahto vs The State Of Jharkhand
2024 Latest Caselaw 1518 Jhar

Jharkhand High Court

Sanjay Kumar Mahto vs The State Of Jharkhand on 15 February, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                                            1


               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Cr. Appeal (SJ) No.247 of 2012

(Against the Judgment of conviction and sentence dated 01.02.2012, passed by learned
Addl. Judicial Commissioner-I, Khunti in Sessions Trial No.160 of 2005.

       Sanjay Kumar Mahto            ....                  Appellant
                               Versus
       The State of Jharkhand.       .....                 Respondent
                                 PRESENT
           HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
                                      .....

       For the Appellant       :     Mr. Anoop Kr. Mehta, Advocate
                                     Mr. Manish Kumar, Advocate
       For the State           :     Mr. Manoj Kumar Mishra, APP
                                      .....

By Court:- Heard learned counsel for the appellant and learned counsel for the State.

2. The instant Criminal appeal is directed against the Judgment of conviction and sentence dated 01.02.2012, passed by learned Addl. Judicial Commissioner-I, Khunti in Sessions Trial No.160 of 2005, whereby the sole appellant has been convicted for the offence under Section 354 of the Indian Penal Code and sentenced him to undergo RI for 2 years and fine of Rs.2000/- and in default, to undergo RI for 3 months.

3. The prosecution case, in brief, as disclosed in the written report lodged by father of the victim girl on 21.03.2004 is that he and his wife were not at home at 12 O' clock when the appellant entered into house and forcefully committed rape with his daughter, aged about 19 years by extending threat to her life. On hulla, villagers gathered there and by the time, the informant and his wife also came there. Informant wanted to register the case immediately after the incidence, but the villagers showed that his daughter will be married to the accused. When the family members of the accused failed to take any decision regarding it, the case was lodged.

4. On the written report, the Police instituted First Information Report being Tamar P.S. Case No. 31 of 2004 corresponding to G.R. No.164 of 2004 under Section 376 of the Indian Penal Code against the appellant/accused. Police on investigation found the case to be true and submitted charge-sheet and the appellant/accused was put on trial after cognizance being taken under Sections 376, 452 IPC.

5. Altogether ten witnesses have been examined on behalf of the prosecution and documents including the Medico Legal Examination Report has been proved.

6. After the prosecution evidence, the statement of the accused/appellant was recorded under Section 313 Cr.P.C. and one witness has been examined on behalf of the defence.

7. The judgment of conviction and sentence has been assailed on the ground that out of ten witnesses, Juru Mahto (P.W.4) was tendered by the prosecution. Lal Mohan Mahato (P.W.6) and Srishtidhar Mahto (P.W.7) being the co-villagers have turned hostile and have not supported the case of the prosecution.

8. The incidence allegedly took place on 21.03.2004, whereas the case has been lodged after lodged after inordinate delay of ten days on 01.04.2004, but without any explanation for the said delay.

9. It is submitted that there is no eye-witness except the victim and her oral account is not supported by medical evidence (Ext.2). The Doctor found that hymen was intact and there was no external or internal injury on the body or private part of the victim. The Doctor opined that the rape was not suggested.

10. It is further submitted that the instant case has been lodged only with a view to pressurise the appellant to marry the victim girl, as the same will be apparent from bare reading of the testimony of the victim (P.W.3), wherein it has been stated that the villagers had heard that she will be married to the appellant to which she had given her consent. In para-5 also, she has deposed that her father wanted to marry the appellant with her. Further in Para-6, she has deposed that her mother had asked the appellant to marry the victim to which he was agreed, but later on he resiled from his promise.

11. It is argued that none of the villagers has supported the case of the prosecution and the prosecution case rests solely on the testimony of the victim and her parents. Her father (PW.1) and mother (P.W.2) are admittedly not the eyewitnesses and their testimony is mainly regarding the breach of promise to marry the victim.

12. Learned APP for the State has defended the impugned judgment of conviction and sentence. It is submitted that the testimony of the victim is sufficient to fasten the criminal liability upon the appellant. She has stated that when she was alone, the appellant entered into the house and sexually assaulted her.

13. Having heard the learned counsel for the parties and on perusal of the entire records, the matter for consideration is whether the judgment of conviction and order of sentence is sustainable on the uncorroborated testimony of the victim girl?

14. Law is settled that it is not the number of witnesses to prove a case, but the quality and trustworthiness of the witness(es) are the main criteria while appreciating the evidence. It is also a settled principle of law that in case(s) of sexual assault, the judgment of conviction can be returned on the sole testimony of the victim. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and in such a case, court can also take

note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the celebrated decision of Hon'ble the Supreme Court in Vadivelu Thevar v. State of Madras, 1957 SCR 981.

15. In the instant case, there are materials which cast serious doubt on the prosecution's story. Firstly there is delay of ten days in instituting the FIR, but no explanation has been offered for the said delay. The incidence is said to have taken place during day time. There is material contradiction in the place of occurrence. In the FIR, the place of occurrence is stated to be the house of the victim, whereas in the testimony of the informant as well as his wife, the incidence is alleged to have taken place in the house of one Dr. K. C. Mehta. As per the evidence of the prosecution witnesses, the house of the accused was adjacent to the house of Dr. K. C. Mehta and was situated in the village. But none of the villagers has come forward to support the case of the prosecution regarding the incidence.

On a combined reading of the testimony of P.W.1, 2 and 3, the main grievance appears to be that the victim girl as well as her parents wanted the appellant to marry the victim which was refused. That is an unexplained delay of 10 days registering of a FIR, there is inconsistency regarding the place of occurrence. Under the aforesaid facts and circumstance, in view of the contradictions and inherent improbabilities in the prosecution case, it shall not be desirable to place reliance on the uncorroborated testimony of the victim.

Under the circumstance, this Court is of the view that the appellant is entitled to benefit of doubt.

Accordingly, the judgment of conviction and sentence passed by the learned Trial Court is set aside.

The appellant is discharged from the liability of his bail bonds. The instant appeal stands allowed.

Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated 15th February, 2024.

sandeep/