Jharkhand High Court
Chandan Hembram vs The State Of Jharkhand on 24 April, 2025
[2025:JHHC:12271]
Cr. Appeal (S.J.) No.1089 of 2007
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[Against the judgment and order of conviction dated 18.07.2007 and
sentence dated 19.07.2007 passed by learned 5th Additional Sessions
Judge, FTC, Dumka in S.C. No.277 of 2004]
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Chandan Hembram, son of Late Jadu Hembram, resident of
village--Murbhanga, P.S.-Dumka(M), Dist.-Dumka
.... .... .... Appellant
Versus
The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. Sanjay Kumar Sinha, Advocate
For the State : Mr. Sanjay Kr. Srivastava, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGEMENT
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CAV On 05/02/2025 Pronounced On: 24/ 04 /2025
1. The present appeal is directed against the judgment and order
of conviction dated 18.07.2007 and sentence dated 19.07.2007
passed by learned 5th Additional Sessions Judge, FTC, Dumka
in S.C. No.277 of 2004 whereby and whereunder, the sole
appellant has been held guilty for the offence under section
376 of Indian Penal Code and sentenced to undergo R.I. of 7
years with fine of Rs.2,000/- with default stipulation.
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FACTUAL MATRIX
2. Factual matrix giving rise to this appeal is based on the
complaint petition being C.P. No.132 of 2004 filed on
02.04.2004 in the court of CJM, Dumka by the prosecutrix
(complainant) stating inter alia that in the last month of Aghan
on Tuesday at about 5:00 PM, while the prosecutrix (P.W.7)
was going towards the house of Chandan
Hembrom(appellant) in village-Murbhanga, meanwhile,
Chandan Hembrom caught hold of her and dragged inside his
dilapidated house and committed rape upon her by pressing
her mouth. When the prosecutrix started weeping, the accused
assured her to solemnize marriage with her. Thereafter, on
false pretext of marriage, the accused Chandan Hembrom
frequently committed rape with her taking her to Bangal in
Gando Durga Puja Fair, Kushpahari Ras Fair, Balijore Fair,
Palopisa Kadma Lakhi Puja Fair. It is further alleged that due
to sexual intercourse, the prosecutrix (P.W.7) got conceived.
Thereafter, she informed the accused about the pregnancy then
the accused Chandan Hembrom along with Dular Hembrom
and Shushilal Tudu tried to abort her pregnancy and also gave
Rs.500/- to her for abortion. It is further alleged that when the
prosecutrix did not concede to the accused regarding abortion,
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then they started threatening to kill her and assaulted her. It is
further alleged that when the prosecutrix was pregnant for 3-4
months, she informed her parents, thereafter, her parents and
villagers made contact with all the accused persons and asked
them to get the accused Chandan Hemobrom married with the
prosecutrix but the other accused persons locked the accused
Chandan Hembrom in the house and sent him somewhere, so
that he could not attend the Panchayati. It is further alleged
that the accused persons have misbehaved with the
prosecutrix and her parents. The prosecutrix again went to the
house of accused Chandan Hembrom with a proposal of
marriage but other accused, Dular Hembrom and Shushilal
Tudu assaulted the prosecutrix and dashed her away from the
house. The sister of the accused, Dular Hembrom and his
brother-in-law Sushilal Tudu were trying to solemnize
marriage of the accused Chandan Hembrom with another girl.
3. On the basis of above information, the prosecutrix filed a
complaint petition for the offences under sections 376, 420, 323,
201, 500 and 34 of IPC, which has been sent to Dumka (M) P.S.
under section 156(3) Cr.P.C for instituting the FIR.
Accordingly, Dumka (M) P.S. Case No.41 of 2004 under the
aforesaid sections was instituted and charge to investigation of
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the case was given to S.I. Sunil Kumar Singh. After completion
of investigation, charge-sheet was submitted against the
accused persons for the offence under sections 376, 417, 323,
504 and 34 of IPC. The case was committed to the court of
Sessions where S.C. No.277 of 2004 was registered. The
appellant has denied the charge levelled against him and
claimed to be tried. After conclusion of trial, the impugned
judgment of conviction and sentence has been passed, which
has been assailed in this appeal.
4. In the course of trial, altogether 10 witnesses have been
examined by the prosecution namely:-
P.W.1 Dr. Pushpalata Tudu
P.W.2 Ram Das Soren
P.W.3- Kistu Hembrom
P.W.4- Gondhu Soren (Murmu)
P.W.5- Ajad Mian
P.W.6 Naushad Mian
P.W.7-Prosecutrix (X)
P.W.8-Hirali Marandi
P.W.9- Santi Soren
P.W.10-Chandeshwar Prasad.
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Apart from oral testimony of the witnesses, following
documentary evidences have been adduced:
Ext.1 is the medical report of prosecutrix
Ext.2 is the signature of the prosecutrix on complaint
petition.
Ext.3 is endorsement on the fardbayan
5. In defence, no witness has been examined in this case. Neither
any documents has been adduced. The case of defence is
denial from occurrence and false implication.
6. Learned counsel for the appellant assailing the impugned
judgment and order of conviction and sentence of the
appellant has argued that the appellant has been falsely
implicated in this case on the basis of false allegation. From
evidence on record, it is proved that the victim was consenting
party and the sexual relation has been developed with the
consent of both the parties. It is further submitted that the
Investigating Officer of this case has not been examined in this
case and the same has caused serious prejudice to the case of
defence. It is further submitted that the victim was major girl
and was able to extend her consent. Learned counsel for the
appellant has further submitted that two other co-accused
have been acquitted by the learned trial court on the basis of
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same set of evidence. Therefore, the impugned judgment and
order of conviction and sentence of the appellant is liable to be
set aside, allowing this appeal.
7. On the other hand, learned Additional Public Prosecutor
appearing for the State defending the impugned judgment of
conviction and sentence of the appellant has submitted that
there is no illegality or infirmity in the impugned judgment.
The appellant has first committed rape on the victim girl,
thereafter, in assurance of marriage, continued to have sexual
intercourse with the victim girl resulting in her pregnancy. The
appellant has also abstained from Panchayati and fled away
from his house, which showing the intention of appellant was
not to solemnize marriage from the very inception. The
appellant has deliberately spoiled the life of the victim girl.
There is no substance in the points of argument raised on
behalf of the appellant and no merits in this appeal, which is fit
to be dismissed.
8. I have gone through the record of the case along with the
impugned judgment and order in the light of contentions
raised on behalf both side.
9. It appears that altogether 10 witnesses were examined in this
case including the prosecutrix and out of them P.W.3, P.W.6,
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P.W.8 and P.W.9 have not supported the prosecution story at
all and they have been either declared hostile or tendered for
cross-examination.
P.W.-2, Ram Das Soren is the father of the victim.
According to his evidence, the occurrence is of one year back,
when his daughter and the accused Chandan Hembrom went
to Kolkata for doing some work. This witness further deposed
that his daughter P.W.7 is pregnant by the appellant Chandan
Hembrom. From his evidence, it appears that he came to know
about the fact of pregnancy by P.W.7.
P.W.4-Gondhu Soren(Murmu) is a hearsay witness,
who came to know about the pregnancy of the prosecutrix by
Ramdas Soren. He deposed that due to illicit sexual
intercourse committed by Chandan Hembrom(appellant), her
daughter became pregnant.
P.W.5-Ajad Mian is also a hearsay witness and he
came to know from Ram Das Soren(P.W.2) that Chandan
Hembrom has committed rape with the victim due to which
she became pregnant. Ram Das Soren informed 2-4 persons of
the village and took them to the accused. This witness also
went to meet the accused/appellant, who told that he will not
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help the girl and the appellant offered Rs.500/- then they
returned home.
P.W.7 is the victim-cum-prosecutrix of this case.
According to her evidence, at about 5:00 PM, on one Tuesday
(month of Aghan), while she was passing through the house of
the accused/appellant, he caught hold of her and took her
inside his dilapidated house and committed rape upon her and
when the prosecutrix started weeping, the appellant assured
her to marry with her. Later on, on false pretext of marriage,
the appellant committed rape upon her several times at
different places including in some village fairs and also in
Bengal. Due to frequent physical relationships, the prosecutrix
became pregnant for 3 to 4 months then she informed about
the pregnancy to the accused/appellant but he along with
other co-accused persons tried to abort the pregnancy by
giving Rs.500/-. This witness further deposed that she
informed the occurrence to her parents. Thereafter, her parents
along with some villagers called the accused for panchayati
but the accused did not turn up. The other accused persons
locked the accused/appellant in a room and later on they
helped him in escaping from panchyati. The prosecutrix went
to house of the accused/appellant but his sister Dular
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Hembrom and his brother-in-law, Shushilal Tudu assaulted
and threatened her to kill.
P.W.10-S.I. Chandeshwar Prasad has been examined
as a formal witness. This witness has deposed that on
14.04.2004, he was posted at Dumka Muffasil Police Station
and the then Officer-in-Charge was M.F. Beg and S.I. Sunil
Kumar Singh. He further deposed that on the said date, a
petition of complaint case No.132 of 2004 was received at the
police station from the court of CJM, Dumka on the basis of
which Dumka(M) P.S. Case No.41 of 2004 was registered and
charge of investigation was given to S.I. Sunil Kumar Singh.
The endorsement for registration of case is proved as Ext.3.
In his cross-examination, this witness admits that he
has not conducted the investigation of the case.
P.W.1-Dr. Pushpalata Tudu is the medical officer and
she has deposed that on 14.04.2004, she was posted as Medical
Officer (C.A.S.) in Sadar Hospital, Dumka, she examined the
victim at about 10:55 AM and found following:-
Height 5'2". Weight-124 lb. Teeth upper 14, lower 14.
Breast developed. Auxiliary and public hair present. No
external injury over her body. Per abdomen examination
uterus 20-21 week size. No internal injury over her private
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part. Hymen shows rupture. No foreign hair present. Vaginal
swab was taken and sent to pathology for microscopic
examination for spermatozoa. Report shows spermatozoa was
not found dead or alive.
The report was given by Dr. R.P. Verma, In-Charge,
Pathologist Sadar Hospital, Dumka. X-ray of both wrist joints,
both knee joints iliac crest were advised and X-ray plates were
shown to Dr. S.N. Jha orthopedic surgeon Sadar Hospital,
Dumka, who have the opinion-X-ray of knee joints shows
upper epiphysis of both tibia and fibula united. X-ray of wrist
joint shows lower epiphysis of both radius and ulna united. X-
ray of hip bones shows union of crest of both ilium bones in an
advance stage. Ultrasonography of uterus was done on
16.04.2004.
According to above findings no definite opinion could
be given that the victim was raped or not recently. As per age
is concerned according to secondary sex characters, number of
teeth and x-ray report, the age of the victim is about 18 years.
According to ultrasonography report, the victim is pregnant
and carrying 20.3 weeks pregnancy.
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This witness has further stated that in order to
ascertain the father of the child, DNA test is required. This
witness has proved the report as Ext.-1.
10. From the aforesaid discussion of prosecution evidence, it is
crystal clear that the victim has deposed in categorical terms
that she was forcibly ravished by the present appellant for the
first time at his dilapidated house and thereafter they went
several places where the appellant committed rape upon her
on the pretext of false promise of marriage, which he never
intended to fulfill. It is revealed from the evidence of the
victim as well as her father that after coming to know about
the pregnancy of the victim, a Panchayati was also held but the
appellant instead of attending the Panchayati managed to flee
away from his house. Again the victim approached to
appellant and requested for marriage but she was threatened
and assaulted by appellant, his sister and brother-in-law.
Therefore, there is no reason at all for false implication of the
appellant. The appellant has also not elicited in the cross-
examination of witnesses any material showing any motive for
false implication. It is also not pleaded by the appellant that
there was love-affairs with the victim girl prior to the
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occurrence. Therefore, the plea of consensual sex taken by the
appellant does not inspire confidence.
11. In the instant case, the attending facts and circumstances as
revealed in the evidence of the witnesses particularly
prosecutrix unerringly tend to show that the victim was at first
raped by the appellant while she was passing through the
house of the appellant. Thereafter, on promise of marriage, the
sexual indulgence was continued for considerable period of 3-4
months, in the meantime, the victim girl became pregnant and
carrying pregnancy of 20-21 weeks. Thereafter, she again
requested the appellant to solemnize marriage but he
continuously avoided in one pretext or another. The factual
aspects of the case clearly show that the victim's indulgence in
sexual intercourse was outcome of false promise of marriage
by the appellant. The appellant had no intention from the very
inception to solemnize marriage with the victim but to satisfy
his own sexual lust. It is not a simple case of mere breach of
promise.
12. The Hon'ble Apex Court in the case of State of U.P. Vs.
Naushad (AIR) 2013 SC has emphasized the need for courts to
carefully assess whether the accused had a genuine intention
to marry or acted with malafide motive in cases involving false
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promises of marriage and subsequent sexual intercourse. The
court reiterated that a mere breach of promise to marry does
not automatically constitute rape, but rather, a false promise
made from the outset with the intention of obtaining consent
for sexual relation without the intention of fulfilling the
promise, can constitute rape.
Thus, the Apex Court emphasized the distinction
between a false promise (made with the intention of deceiving)
and an unfulfilled promise (where the promise was initially
genuine but could not be kept due to unforeseen
circumstances). In the instant case, there is no plea of defence
that there was any genuine unforeseen circumstances which
prevented the appellant from solemnizing marriage with the
victim girl rather he has simply pleaded that the victim girl
was major and sexual intercourse was consensual which
cannot be sustained.
13. In view of the above discussions and reasons, I find that
learned trial court has very wisely considered all the aspects
and material evidence available on record and arrived at right
conclusion, which suffers from no illegality/infirmity to
interfere with the impugned judgment. I do not find any
merits in this appeal, which stands dismissed.
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14. The appellant is on bail, his bail bond is hereby cancelled and
the appellant is directed to surrender before the court
concerned to undergo remaining period of sentence awarded
by the learned trial court.
15. Pending I.A(s), if any, is also disposed of accordingly.
16. Let a copy of this judgment along with Trial Court Records be
sent back to the trial court for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Dated: 24 /04/2025
Pappu/- N.A.F.R.
Cr. Appeal (S.J.) No.1089 of 2007
