Rajesh Mandal vs The State Of Jharkhand
2024 Latest Caselaw 325 Jhar

Jharkhand High Court

Rajesh Mandal vs The State Of Jharkhand on 12 January, 2024

Author: Deepak Roshan

Bench: Deepak Roshan

                                        1

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  (Criminal Appellate Jurisdiction)
                  Cr. Appeal (SJ) No. 1950 of 2004
(Against the judgment of conviction dated 23.09.2004 and the order of
sentence dated 27.09.20204, passed by the learned Additional District &
Sessions Judge VIII, Dhanbad, in Sessions Trial Case No. 209 of 2002)

Rajesh Mandal                                            .....   Appellant
                                Versus
The State of Jharkhand                                    ..... Respondent
                               ---------

CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Appellant              : Ms. Akriti Shree, Advocate
For the Resp.-State            : Mr. Tarun Kumar, APP
                               --------
06/ 12.01.2024     Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and the order of sentence dated 23.09.2004 & 27.09.2004, respectively, passed by the learned Additional District & Sessions Judge VIII, Dhanbad, in Sessions Trial Case No. 209 of 2002, whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for 7 years and fine of Rs.2,000/- under Section 376 of the Indian Penal Code and in default thereof, further RI for three months.

3. The prosecution case in brief is based upon the fardbeyan of the informant (victim) who alleged that on 24.01.2002, she, as usual, after taking breakfast left her village Khesmi and about 8 A.M. when she reached at her farm Dungri; at that time the appellant has also reached and started teasing her and when she asked him not to molest then the appellant took out his knife and after giving threat committed rape upon her.

4. Learned Counsel for the appellant assails the impugned judgment on following grounds:

(i) The learned trial court ought to have taken into consideration the fact that the factum of prosecution story is bundle of lies and there are serious contradictions and infirmities in the prosecution evidence.

(ii) On every matter the witnesses contradict each other on some point or the other. As per the prosecution story as narrated by the informant in her fardbeyan that the victim uses to go to Khetdungri usually but in evidence, P.W. 7 has categorically negated this particular fact and has stated that

she had gone to Khetdungri for the first time on that fateful day.

(iii) Prosecution case is not proved beyond reasonable doubt.

As per the FIR and the evidence of the witnesses namely P.W 1,2,3 & 7; they all have gone to the P.S. to institute the case but in the FIR, there is no signature or LTI of the P.W.1. Moreover the said witness P.W.1 in her evidence had stated that paper work was done in the P.S. on which all the 4 have given their respective signatures and the said P.W.1 has given thumb impression, but the document (FIR) does not bear the thumb impression of the said P.W.1.

(iv) There are several instances, which has come in the evidence that the victim as well as her family were having grudge against the accused family.

(v) Appellant/Accused is having testicle cancer and his treatment was going on at that point of time.

(vi) Victim girl was medically examined on 24.01.2002, and on examination no spermatozoa has been seen nor any external or internal injury has been found on the body of the victim girl and thus the medical report falsifies the entire prosecution story.

(vii) As per the evidence of the victim girl, she received injuries on the back as well as in her elbow but the entire medical report of P.W. 8 does not contain that the victim girl received any injury; rather the report says that no injury found.

(viii) According to the evidence of the victim girl, the cloth (Frock) which the victim was wearing was torn and as per victim she cleaned her private parts with those cloths as well but surprisingly those cloths have not been seized by the police.

Relying upon the aforesaid contentions, learned counsel prayes for acquittal.

5. Learned APP opposed the prayer for acquittal and contended that no error has been committed by the learned trial court.

6. Having heard learned counsel for the parties and after going through documents available on L.C.R, it appears that the first information about the incident is given by the victim on the day of incident itself i.e., on 24.01.2002 and on the same day she was medically examined. Victim has made allegation that the accused has committed rape upon her by giving threat. On her deposition, in para 20 she has stated that she was forcefully thrown on the ground by the accused and in para 23 she has stated that she had got injury which she had shown to her mother, doctor and I.O. but on the contrary doctor has stated that there was no external injury on the body of victim.

Further in para 24 she has stated that she fell on her back and accused forcefully had intercourse with her and he ejaculated inside her but P.W.8-Doctor, who has examined the victim in her evidence clearly states that " No sign of injury found on the external body surface or in the private parts. No foreign hair seen or stain of semen found." Also from the report of high vagina swab and report of pathologist shows no spermatozoa seen.

Thus, it is seen that the evidence of the prosecutrix is belied by the medical evidence and a careful reading of the evidence of the victim has led this Court to conclude that the gaps in the evidence of the prosecutrix and the medical officer make it highly improbable that sexual intercourse took place.

In the case of Sadashiv Ramrao Hadbe v. State of Maharashtra (supra) reported in (2006) 10 SCC 92 more particularly observations in paras 9 of the said judgment, which are verbatim reproduced as follows:--

"9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring of confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen."

Further PW 1 and 2 has stated that family of accused and victim are not on good terms and there was dispute between the families.

7. In view of such circumstances it would be erroneous to rely upon such discrepant testimonies and convict the accused. It can thus be

observed with certitude that the solitary evidence of the prosecutrix, in absence of any corroboration by the medical evidence, is not of such quality which can be relied upon. In the aforesaid circumstances, it would not be safe to convict the appellant herein on mere suspicion. The inconsistencies and contradictions noticed above are fatal to the case of the prosecution and create several doubts.

8. Thus, in the light of the above discussion, I am of the view that the present appeal needs consideration as the prosecution has failed to prove the case of rape against the accused and evidence adduced is not sufficient to prove the case beyond all reasonable doubt.

9. The appeal is, accordingly allowed and judgment of conviction dated 23.09.2004 and the order of sentence dated 27.09.2004, passed by the learned Additional District & Sessions Judge VIII, Dhanbad, in Sessions Trial Case No. 209 of 2002 is hereby quashed and set aside.

10. The appellant shall be discharged from the liability of his bail bond.

11. Let a copy of this judgment and the lower court record be sent to the court concerned forthwith.

(Deepak Roshan, J.)

Pramanik/