Jharkhand High Court
Manoj Sinha vs The State Of Bihar ( Now Jharkhand) on 10 June, 2024
Author: R. Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
Cr. Appeal (DB) No. 590 of 1996P
With
Cr. Appeal (DB) No. 593 of 1996P
------
(Against the judgment and order of conviction and sentence dated 5.10.1996
(sentence passed on 10.10.1996) passed by Sri Chandra Mohan Prasad,
learned Special Judge, Dumka in Special Case No. 10/96.
-----
Manoj Sinha ......Appellant
(In Cr. Appeal (DB) No.590 of 1996P)
Shashi Prabhash Singh @ Shashi Singh ......Appellant
(In Cr. Appeal (DB) No.593 of 1996P)
Versus
The State of Bihar ( Now Jharkhand) ... Respondent
------
CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
: HON'BLE MR. JUSTICE DEEPAK ROSHAN
------
(in Cr. Appeal (DB) No. 590 of 1996P:
For the Appellant : Mr. Rajiv Sinha, Advocate
For the Respondent : Mrs. Kumari Rashmi, A.P.P.
(in Cr. Appeal (DB) No. 593 of 1996P):
For the Appellant : Mrs. Jaswinder Mazumdar, Advocate
For the Respondent : Mrs. Kumari Rashmi, A.P.P.
------
R. Mukhopadhyay, J. Heard Mr. Rajiv Sinha, learned counsel appearing
for the appellant in Cr. Appeal (DB) No. 590 of 1996P, Mrs. Jaswinder
Mazumdar, learned counsel appearing for the appellant in Cr. Appeal (DB)
No. 593 of 1996P) and opposed by Mrs. Kumari Rashmi, learned A.P.P. in
both the appeals.
2. Both these appeals arise out of a common judgment and hence both
are being disposed of by this common order.
3. These appeals are directed against the judgment and order of
conviction and sentence dated 5.10.1996 (sentence passed on 10.10.96)
passed by Shri Chandra Mohan Prasad, learned Special Judge, Dumka in
Special Case No. 10/96, whereby and whereunder, the appellants have
been convicted for the offences punishable under Sections 376 (2g) IPC and
Section 3 (2)(v) of the S.C. ( ST) SC & ST ( Prevention of Atrocities) Act,
1989 and have been sentenced to undergo rigorous imprisonment for twelve
years along with a fine of Rs.1,000/- and in default in payment of fine to
undergo rigorous imprisonment for six months. The appellants have further
1 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
been sentenced to undergo rigorous imprisonment for life along with a
monetary fine of Rs.1,000/- and in default in payment of fine to undergo
rigorous imprisonment for a further period of six months. All the sentences
were directed to run concurrently.
4. The prosecution case arises out of the Fardbeyan of Poku Hansda
recorded on 13.9.94 wherein it has been stated that on 29.8.1994 at about
3 A.M. she was sleeping by closing the door when someone started
repeated knocks on the door calling her to open the door. When the door
was not opened, attempts were made to break open the door. In the
meantime, her eldest daughter Manju Marandi started peering through the
window and found three persons standing outside who were identified by
her daughter as Gajet Tiwari, Ranjit and Moti Lal Hansda. Ranjit had caught
hold of the hand of her daughter and though they started shouting, nobody
came to their rescue. Prior to this, at 12 in the night, a sound of alarm had
come from the house of Komal Marandi. It has been alleged that when in
spite of repeated efforts made by the miscreants, the door was not opened,
they ultimately left. After they left, Komal Marandi had disclosed that at 12
A.M. these persons had entered her room and Gajet Tiwari and Ranjit had
committed rape upon her and Moti Lal had made an attempt to commit rape.
On the next day, she and Komal Marandi had gone to court to lodge a case.
She has alleged that on 30.8.1994 at 7 P.M. Manoj Sinha, Ranjit, Shashi had
come to her house and on seeing them, she and her daughter fled away. On
31.8.1994, she in view of the repeated attempts made by the miscreants
sent her daughter to her sister's place. At about 12 noon, Ranjit, Manoj,
Shashi and another person entered her room and started searching for her
daughter. When she said that her daughter is not here she was confided in
her room and Manoj, Ranjit and the other persons committed rape upon her.
She has alleged that Shashi also wanted to commit rape but she fell sick.
The miscreants had threatened her not to disclose about the incident to
anyone.
5. Based on the aforesaid allegations, Dumka Town P.S. Case No.
118/94 was instituted for the offences punishable under sections 448, 341,
354, 376/34 IPC against Gajet Tiwari, Ranjit and Manoj Sinha. On
completion of investigation, chargesheet was submitted against Gajet
Tiwari, Ranjit, Manoj Sinha and Shashi Prabhash Singh and after
2 Cr. Appeal (DB) No. 590/96P
With
Cr. Appeal (DB) No. 593/96P
cognizance was taken, the case was committed to the Court of Sessions,
where it was registered as Special Case No. 10/96. Charge was framed
under sections 448/376 (2g) IPC and Section 3(2)(v) of SC ST ( Prevention
of Atrocities) Act, which was read over and explained to the accused, to
which they pleaded not guilty and claimed to be tried.
6. The prosecution has examined as many as eight witnesses in support
of its case.
P.W-1-Bablu Soren has feigned ignorance about any incident
happening with Poku Hansda and Komal Marandi. The police had recorded
his statement. He had later on come to know that Komal Marandi was
subjected to rape.
P.W-2-Komal Marandi has stated that the incident had taken place a
year back and it was night and she was sleeping in her house. Her brother
Suraj Marandi was also in the same room. It was around 12 in the night
when Ranjit, Moti Lal Hansda and Gajet Tiwari had come to her room and
asked her to open the door. When they threatened that they will kill her
brother she opened the door as her brother was sleeping in the verandah.
She has stated that Ranjit entered in her room and closed the door and
committed rape upon her. When Ranjit went out, Gajet came inside and he
also had committed rape upon her. Moti Lal Hansda did not indulge in such
act. She had raised an alarm but nobody came to her rescue. She has stated
that at 4 A.M. she went to the house of Bablu and disclosed the incident to
him. She had gone to the house of Poku in the morning and Poku had
confided in her that Moti Lal, Ranjit and Gajet had come to her house though
she did not disclose any other thing. She and Poku had not gone to the
police station but had gone to the Court where a document was prepared.
She was sick due to which she had to undergo treatment. Poku was also
sick and these were the reasons for delay in institution of the case. In cross-
examination, she has deposed that she and Poku had gone to the court
where a petition was prepared which was the same document given to the
police. They had come to the court on the next day of the incident and on
the same day they had given the application to the police. She has deposed
that she has married twice and her first husband has already died. She has
married Arun Tiwary with whom she had stayed for 10-15 years. The houses
of Poku Hansda and Martial are nearby to her house at a distance of 10-15
3 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
yards. She did not know Ranjit, Gajet and Moti Lal from before. Before
knocking at her door, the accused persons had raised a commotion. She
had raised an alarm on seeing them but nobody came to her rescue. She
has deposed that when she had asked the accused to disclose their identity
they had stated their names as Ranjit and Gajet. Ranjit had thrashed her to
the ground but no injury was suffered by her. After Ranjit had left her place
she and her brother fled away and returned at 7 A.M.
P.W-3-Poku Hansda is the informant who has stated that she was
sleeping in her room and her children were also sleeping with her. Ranjit
Singh, Gajet and Moti Lal came to her house and started banging on the
door. When she asked them to reveal their identity one of them disclosed
his name as Ranjit Singh. She did not open the door and from the window
she could identify Ranjit Singh, Gajet and Moti Lal Murmu. Her daughter had
in the meantime awakened. All the three accused were demanding that
either she comes outside or she sends her daughter-Manju Marandi. Ranjit
caught hold of the hand of Manju Marandi and dragged her. When her
daughter started crying, the accused persons left her and fled away. She
has stated that on the next day, the staff of her husband had submitted an
application to the D.C. On the same day at 6 P.M. Ranjit, Shashi and Manoj
came to her house but due to fear she had fled away along with her
daughter. When she found out that the accused persons are not in her house
she returned back. She has stated that on Wednesday at 11 A.M. Ranjit had
told her that Yesterday evening she had fled away but they will come once
again to do an immoral act. On hearing this, her daughter Manju Marandi
fled away. She had forbade Manoj to come to her house again as she is a
respectable person of the area. However, Manoj returned immediately and
committed rape upon her. Ranjit also committed rape upon her. She had
abused them and thereafter all had gone away. After the commission of rape
upon her, she had a severe stomach pain and she remained sick for 5-6
days after which she took a medicine worth Rs.10 and she recovered. The
police had come after 10-11 days and she had disclosed the incident to
them. The police had sent her and Komal Marandi to Sadar Hospital, Dumka
for medical examination. On the next day, her statement as well as the
statement of Komal Marandi was recorded in the court.
In cross-examination, she has stated that she had come to know
4 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
about the accused persons from the date of the incident itself. She had seen
Manoj and Shashi in the police station and she had also come to know about
their names. In her house, the other inmates are her daughter Manju, her
sons Paresh Marandi and Sanat. She had given her statement to the police
in Hindi.
P.W.-4-Poresh Marandi has stated that he was sleeping in his house
and his mother and sister Manju Marandi were also sleeping. There was a
commotion and Ranjit had caught hold of the hand of his sister. He cannot
say as to who else were present. He out of fear did not come out from the
house. He later on came to know that apart from Ranjit, there were two other
persons. On Tuesday, Ranjit, Manoj and Shashi had come but nothing
untoward happened but on Wednesday they had once again come at 2-3
P.M. He had gone to the market. When he came back he saw Manoj and
Ranjit leaving his house. There was another person whom he could not
identify. When he entered the house he found his mother lying and when he
asked about the reason she disclosed that she is suffering from stomach
pain. Later on he came to know that Ranjit and Manoj had committed rape
upon her.
In cross-examination he has denied that his mother and sister are
involved in flesh trade. His father had died 4-5 years back and his mother
receives a pension of Rs.700/--750/- per month. He did not know the
accused persons from before and he came to know about their names when
they were addressing each other.
P.W-5-Suresh Marandi is the brother of Komal Marandi who has
stated that on 29.8.94 at 12 in the night he was sleeping in the veranda and
his sister was sleeping in her room when three persons came and asked
him to call his sister otherwise he will be done to death. He called out his
sister but she did not open the door. When the accused persons had issued
a threat she opened the door and one of the accused entered and closed
the door. He had committed rape upon his sister and he came to know that
his name is Ranjit. The other accused Gajet had also entered into the room
and committed rape upon her. The third person Moti Lal Hansda did not do
anything. He did not raise any alarm because the accused persons had
threatened him with dire consequences. He does not know the accused and
their names were disclosed to him by his sister. He had not seen their faces
5 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
as the night was dark.
In cross-examination, he has deposed that after the incident he had
left the house of his sister due to the threat issued to him by the accused
persons.
P.W-6-Dr. Mary Thelna Dan was posted at Sadar Hospital, Dumka
and on 14.9.1994 she had examined Poku Hansda and had found the
following:-
Height -5'
Weight -85lbs.
Teeth -16 upper
--16 lower
Attrition last molars ++.
Breasts --Well developed
Axillary and pubic hair present.
No mark of injury was found over the body externally. On internal
examination no mark of injury was found present and no foreign hair was
found present on her private parts. It means showed no rupture. Vaginal
swab was taken and sent to pathology for microscopic examination.
Pathological report showed that no spermatozoa was found.
It was opined that no definite opinion could be given whether the
victim was raped or not. She has proved the report which has been marked
as Ext-1.
On the same day, she had examined Komal Marandi and had found
the following:-
Height -4'4"
Weight -88 pounds.
Teeth -14 upper
--16 lower
Attrition of lower last molar ++.
Breasts --Well developed
Pubic hair present was black.
No mark of injury found over the body externally. On the internal
examination no mark of injury was found on her private part. No foreign hair
was found present there. Hymen showed old rupture. Vaginal swab was
taken and sent to Pathology for microscopic examination for presence of
spermatozoa. Pathological report showed spermatozoa were not present.
No definite opinion could be given as to whether the victim was raped
or not. She has proved the report prepared by her, which has been marked
as Ext-1/1.
P.W-7-Md. Tahir Khan has proved the Fardbeyan, which has been
marked as Ext-2. He has also proved the formal FIR, which has been
6 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
marked as Ext-3. After taking over investigation, he had inspected the place
of occurrence which is at the end of village-Kurwa Rasikpur in a house built
of mud and tiles. There is a big room where nothing out of the ordinary could
be detected. The said house belongs to Komal Marandi. The second place
of occurrence is at a distance of 100 yards from the first place of occurrence
which is a mud house belonging to Poku Marandi. The house has three
rooms, which are enclosed by a veranda with a small courtyard. The room
on the eastern side is the place where rape was committed. He had got the
medical examination of Komal Marandi and Poku Hansda done.
The statements under section 164 Cr.P.C. were also got recorded. He
had recorded the statement of the witnesses and after completion of
investigation, had submitted chargesheet.
In cross-examination, he has deposed that he had not recorded the
statement of the neighbours as they were not available but this fact was not
noted down in the case diary. The Dy. S.P. who was the supervising authority
had in his supervision note noted that the character of the victims appears
to be not good and several unscrupulous persons visit their place. It is
incorrect to say that the accused persons were already apprehended from
before.
P.W-8-Manju Marandi is the daughter of the informant who has stated
that she was sleeping in her room at night along with her mother when she
heard somebody pushing at the door. She heard a commotion outside and
they were insisting to open the door. Ranjit, Gajet and Moti Lal were standing
outside. She and her mother had raised an alarm when Gajet had caught
hold of her hand from the window. On the second day, Manoj, Ranjit and
Shashi had come to her house in the evening but she out of fear had fled
away. On the next day, Manoj, Shashi and Ranjit had again come at 12 noon
and committed rape upon her mother as told by her. She was in the house
on the date of the incident.
In cross-examination, she has deposed that the accused persons do
not visit her house. Her mother is an aged lady. She has deposed that Komal
Marandi had disclosed to her the identity of the accused as she was not
knowing them. Her statement was not recorded by the police. On the date
of the incident, she was in the house along with her mother and two brothers.
There are several houses adjacent to her house. She was earlier married
7 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
but her husband had left her. She had gone to Patna with Karnal where she
stayed for two months. She had never eloped with Karnal.
7. The statements of the accused were recorded under section 313
Cr.P.C. in which they have denied about their involvement in the commission
of rape.
8. It has been submitted by Mr. Rajiv Sinha, learned counsel appearing
for the appellant-Manoj Sinha in Cr. Appeal (DB) No.590/96P that the
evidences of the witnesses does not inspire confidence as the same are
incoherent and projects a story which is unbelievable in itself. Mr. Sinha has
submitted that there has been an inordinate delay in lodging the FIR, which
has not been explained by the prosecution. The identification of the
appellant is also doubtful as there was no acquaintance previously with him
as stated by the victim and only in the police station he was made to be
identified as one of the persons who was involved in the commission of rape.
9. Mrs. J Mazumdar, learned counsel appearing for the appellant-Shashi
Prabhash Singh in Cr. Appeal (DB) No. 593/96P has submitted that there is
no allegation against this appellant of commission of rape and he has been
implicated on account of his presence at the place of occurrence.
10. Mrs. Kumari Rashmi, learned A.P.P., has submitted that P.W-3 has
been consistent in her evidence about the appellant-Manoj Sinha committing
rape upon her and such evidence has been corroborated by P.W-4 and P.W-
8. The delay in lodging the case has also been sufficiently explained as on
account of illness being suffered by the victims they could not lodge the
complaint in the police station immediately after the occurrence had taken
place.
11. We have heard the learned counsel for the respective sides and have
also perused the Lower Court Records.
12. The case of the prosecution hinges upon the evidence of P.W-2 and
P.W-3 who claim that they were subjected to gang rape by the accused
persons. P.W-2-Komal Marandi has stated that it was a Monday when Ranjit,
Gajet and Moti Lal had come to her house and on the threat of doing away
with the life of her brother she was forced to open the door consequent to
which Ranjit and Gajet had committed her rape. Gajet is one of the
appellants in Cr. Appeal (DB) No. 590/96P but during the pendency of the
appeal, the appellant-Gajet Tiwari has died and therefore this appeal so far
8 Cr. Appeal (DB) No. 590/96P
With
Cr. Appeal (DB) No. 593/96P
as Gajet Tiwari is concerned stood abated. The evidence of P.W-2 does not
relate to the remaining appellants but her evidence will be dealt with in the
later part of the judgement. The appellants have been convicted primarily on
account of the evidence of P.W-3 who is the informant as well. The accused
persons who form the crux of the evidence of P.W-3 had on the same night
made an attempt to forcibly enter into the house of P.W-3 and had asked her
either to come out herself or send her daughter Manju Marandi. When such
attempt failed, they left and P.W-3 had filed an application before the D.C.
but there is nothing on record to suggest by way of documentary evidence
about P.W-3 approaching the authorities intimating them about such
incident. Another attempt was made by the accused persons Ranjit being
the common factor with the addition of the appellants Manoj Sinha and
Shashi Prabhash Singh to commit an immoral act with P.W-3 but as she and
her daughter had fled away nothing untoward could happen but on the next
day these accused persons once again resurfaced at 11 A.M. and Manoj
and Ranjit committed rape upon her. It would thus seem that attempts to
enter into a sexual relationship with P.W-3 was made by the accused on
29.8.1994 and on 31.8.94 they ultimately subjected P.W-3 to a gang rape.
The fardbeyan of P.W-3 was recorded on 13.9.1994 after a delay of about
15 days. According to P.W-3, after she was subjected to rape she suffered a
stomach pain and she remained ill for 5-6 days. The evidence of P.W-3 and
her children being P.W-4 and P.W-8 does not even give a hint about any
attempts made by P.W-3 to inform the incident of rape in the police station.
P.W-4 is the son of P.W-3 who had gone to the market on 31.8.94 and when
he came back he had seen Manoj and Ranjit going out from his house and
later on he came to know that they have committed rape upon his mother.
The daughter of P.W-3 who has been examined as P.W-8 has stated that
she had fled her house and her mother later on had taken the name of Manoj
and Ranjit as the persons who had committed such heinous act. The
statement of P.W-8 was not recorded by the police which fact has been
admitted by the Investigating Officer (P.W-7). As per P.W-4, his statement
was also not recorded by the police. The evidence of P.W-3, P.W-4 and P.W-
8 therefore does not seek to dispel the submission of the learned counsel
for the appellants with respect to the inordinate and unexplainable delay in
lodging the F.I.R. In order to further explore any plausible explanation, we
9 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
may revert back to the evidence of P.W-2 who has stated that on 30.8.94
she and P.W-3 had gone to the court and a document was prepared which
was submitted to the police station. The other reason for delay as
enumerated in her evidence is that she was sick and so was P.W-3. Neither
P.W-7 has stated about any such document presented to the police nor has
such document been brought into existence. The evidence of P.W-2 also
appears to make a feeble attempt to explain the delay in tune with the
evidence of P.W-3. The prosecution has therefore failed to suitably explain
the delay in lodging the F.I.R. We could have set aside the judgement and
order of conviction and sentence on such ground itself but we feel necessary
to deal with some other aspects of the case which would discard the
evidence of P.W-3 in its totality.
13. In this context, we may refer to the case of Ramdas and others Vs.
State of Maharashtra, reported in 2007(2)SCC 170 wherein it has been
held as follows:-
"23. It is no doubt true that the conviction in a case of rape can
be based solely on the testimony of the prosecutrix, but that can
be done in a case where the court is convinced about the
truthfulness of the prosecutrix and there exist no
circumstances which cast a shadow of doubt over her veracity.
If the evidence of the prosecutrix is of such quality that may be
sufficient to sustain an order of conviction solely on the basis
of her testimony. In the instant case we do not find her evidence
to be of such quality".
14. Though the accused persons had continuously endeavored in their
mission of doing an immoral act with P.W-3 but as we have taken note of
earlier she did not inform about the same to anybody. As we could gather
from the evidence of P.W-8 the house was not in an isolated place but was
surrounded by several houses. Interestingly, none of the neighbours had
arrived on 29.8.94 when an alarm was raised by P.W-3 nor they had arrived
on the subsequent dates. Infact, none of the independent witnesses have
been examined by the prosecution and P.W-7 (I.O.) has also not specified
as to whether he had recorded the statements of the neighbors of P.W-3 or
not. Forcible intrusion and commission of such a grave offence in a locality
having several houses nearby would never go unnoticed and keeping the
incident under wraps by P.W-3 and lodging an FIR as a delayed response in
concert with P.W-2 evinces a concocted narrative which cannot form the
basis for conviction.
10 Cr. Appeal (DB) No. 590/96P
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Cr. Appeal (DB) No. 593/96P
15. The other aspect of the case is of establishing the identity of the
appellants as the perpetrators of rape. P.W-3 in her cross-examination has
stated that she had seen Manoj and Shashi in the police station and she had
also come to know about their names in the police station itself. It would
mean therefore that Manoj and Shashi were not known to her from before
but in her Fardbeyan she has conveniently named them as the accused.
P.W-4 has stated that he did not know the name of the accused but came to
know about them when they were addressing each other by name. P.W-8 is
another inmate of the house who has also feigned ignorance about knowing
the accused and it was Komal Marandi ( P.W-2) who had disclosed about
their names to her. P.W-7 has denied that the police had apprehended the
accused persons from before. What can be concluded from the evidence of
the witnesses is that the identity of the appellants were not known to P.W-2
yet in her fardbeyan she had named the appellants. Her children also had
never come across the appellants to establish their identity. On this score
also, the prosecution has miserably failed to prove its case.
16. The learned trial court has overtly relied upon the evidence of P.W-2
and P.W-3 without delving into the essential features of their evidence which
would demolish the truthfulness and credibility of their evidence and we as
a consequence to the above set aside the judgment and order of conviction
and sentence dated 5.10.96(sentence passed on 10.10.96) by Shri Chandra
Mohan Prasad, learned Special Judge, Dumka, Special Case No. 10/96.
17. These appeals are allowed.
18. Since the appellants are on bail, they are discharged from the
liabilities of their bail bonds.
(R. Mukhopadhyay, J.)
(Deepak Roshan, J.)
Jharkhand High Court, Ranchi,
Dated the 10/06/2024
Rakesh/NAFR
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