Jharkhand High Court
Md. Lalu Mian vs The State Of Jharkhand on 12 February, 2025
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No.1699 of 2006
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Md. Lalu Mian, son of Ludin Mia, resident of village-Shivatalla,
P.S.-Shikaripara, District-Dumka
.... .... .... Appellant
Versus
The State of Jharkhand .... .... .... Respondent
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For the Appellant : Mr. D.C. Mishra, Advocate
For the State : Mr. Sanat Kumar Jha, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGEMENT
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Dated-07/12/2024 Pronounced On: 12 /02/2025
Per-Pradeep Kumar Srivastava
1. The present appeal has been file for setting aside the judgment
of conviction dated 06.12.2006 and order of sentence dated
08.06.2006 passed by learned Additional Sessions Judge-III,
FTC, Dumka in Sessions Case No.392 of 2003 whereby and
whereunder, the appellant has been held guilty for the offences
under section 376 of Indian Penal Code and sentenced to
undergo R.I. of 7 years along with fine of Rs.3.000/- with
default stipulation.
Cr. Appeal (S.J.) No.1699 of 2006
FACTUAL MATRIX
2. Factual matrix giving rise to this appeal is that the husband of
the informant namely Hamid Miya lodged a written report
with allegation that at about 8 O' clock at night of 27.03.2001,
the present appellant entered into the house of the informant
and committed rape with his wife in his absence. When the
informant returned to his house, then his wife told about the
above incidence. It is further alleged that due to life
threatening given by the appellant, his wife did not inform the
above incidence to any of the villagers.
3. On the basis of above information, an FIR being Shikaripara
P.S. Case No.26 of 2001was registered for the offence under
section 376 of IPC. The police conducted thorough
investigation of the case and submitted final form with
conclusion that the above incidence has not been proved and
the false FIR has been lodged and also recommended for
prosecution of the informant under sections 182 and 211 of the
Indian Penal Code. .
4. The informant filed a protest-cum-complaint petition against
the final form, which was registered as complaint Case No.415
of 2001. After conducting enquiry, learned JM 1st Class, Dumka
found prima-facie case for offence under section 354 of IPC
Cr. Appeal (S.J.) No.1699 of 2006
against the appellant and proceeded with trial of the case.
After closure of the prosecution witness, the case was fixed for
appearance of the accused person for recording his statement
under section 313 of Cr.P.C on 18.11.2003. Learned Judicial
Magistrate, Dumka on the basis of evidence available on
record found offence under section 376 of IPC, hence, the case
was committed to the court of Sessions for Trial and disposal.
After conclusion of the trial before the Sessions Court, the
impugned judgment and order was passed, which has been
assailed in this appeal.
5. Learned counsel for the appellant submits that only the
informant and his wife (victim lady) are main witnesses of the
case and other witness namely Amdadul Mian(P.W.1) has not
supported the prosecution story. Dr. Aruna Chattarjee(P.W.4)
has medically examined the victim lady and found no sign of
rape as alleged by the victim lady and P.W.5 Md. Mosafir
Ansari is Advocate Clerk and a formal witness. The FIR was
lodged after eleven days of the alleged occurrence with simple
explanation offered by the informant that he was out of station
and his wife was alone in the house and also due to fear of life
threatening, she did not disclose the alleged incidence to any
of the villagers, which does not satisfy the reasons for delay in
Cr. Appeal (S.J.) No.1699 of 2006
lodging the FIR. The villagers may lie but after thorough
investigation of the case, the Investigating Officer found the
case false and also recommended a proceeding under sections
182 and 211 of IPC against the informant and due to that fear,
the complaint case was filed. It is utter surprising that learned
Magistrate found sufficient materials for proceeding only for
the offence under section 354 of IPC on the basis of sworn
affirmation of the complainant and the victim lady. After
charge, the prosecution story was twisted by the witnesses
with allegation of commission of rape without any
corroboration from any source and the case was committed to
the court of Sessions. It is further submitted that learned trial
court has also committed serious illegality while accepting the
testimony of the victim and her husband as a gospel truth
without proper appreciation of the fact that due to enmity, this
false case was lodged and the version of the witnesses
including the victim lady always remained inconsistent,
colourable and changing stage wise, therefore, how such
witnesses can be categorized as wholly reliable for the purpose
of conviction. It is further submitted that the law is trite that
the testimony of the victim, if appears to be unblemished,
wholly reliable having no animus for false implication, her
Cr. Appeal (S.J.) No.1699 of 2006
testimony cannot be discarded and can form sole basis of
conviction. In the instant case, the victim and her husband in
collusion have lodged this false case and changing their
versions from time to time to make serious offence against the
appellant only with a view to harass and humiliate him due to
previous enmity. The informant, with a view to save himself
from the prosecution under sections 182 and 211 of IPC,
instituted protest-cum-complaint petition culminating into
conviction of the appellant. The victim lady is mother of three
children; she was not a newly wedded woman to have any
shame or fear to promptly state, the commission of such a
ghastly offence with her, to the villagers in absence of her
husband. Learned trial court has also ignored from
consideration the testimony of defence witnesses, who have
categorically stated about false implication of the appellant
due to previous enmity between the parties. Therefore, the
impugned judgment and order of conviction and sentence of
the appellant is liable to be set aside, allowing this appeal.
6. On the other hand, learned Additional Public Prosecutor
appearing for the State defending the conviction and sentence
of the appellant on merits and submitted that there is no
illegality and infirmity in the impugned judgment and order
Cr. Appeal (S.J.) No.1699 of 2006
calling for any interference. This appeal is devoid of merits and
fit to be dismissed.
7. I have gone through the record of the case along with
impugned judgment and order in the light of contentions
raised on behalf of both parties.
8. First of all, I have to apprise the evidence of victim lady, who
was examined herself as P.W.3. In her evidence, she has stated
that about four years ago i.e. on Wednesday at about 8:00 PM,
she was sleeping alone in the night, meanwhile, the present
appellant breaking open the door, entered into her house and
committed rape with her. She raised alarm and also protested,
then she was given threatening to be killed and the appellant
fled away. In the next day of morning, she informed about the
alleged incidence to Amin Soren, Charka Mian and Amdadul
Mian(P.W.1) and when her husband returned i.e. on Thursday,
she narrated the incidence to her husband. Thereafter, she
along with her husband went to police station and lodged the
case.
In her cross-examination, she admits that on the date
of occurrence, three children, eldest son about 14 years and her
youngest child of seven years were present in the house.
Further, this witness was asked about her previous statement
Cr. Appeal (S.J.) No.1699 of 2006
at the time of enquiry and before the charge, wherein she has
stated that just after the occurrence, she raised alarm and also
disclosed the alleged incidence to Amin Soren, Charka Mian
and Amdadul Mian(P.W.1), who are neighbours but she did
not reply to the above questions. Her demeanor has been
noted by the learned trial court. Three questions have been
asked by the learned trial court drawing her attention towards
pervious statement which she deliberately did not reply and
kept mum.
P.W.2 Hamid Mian is the husband of the victim lady
and admittedly he is hearsay from his wife.
P.W.1 Amdadul Mian has clearly expressed no
knowledge about the said incidence. Although, the victim lady
has stated that at first after hearing hulla, Amadadul Mian
along with two other persons reached to whom she narrated
about the incidence.
P.W.4 Aruna Chatterjee has not found any sign of
commission of rape with the victim lady and no internal or
external injury or any injury on private part and foreign hair
found.
P.W.5 Md. Musafir Ansari has proved protest-cum-
complaint petition of the victim as Ext.2.
Cr. Appeal (S.J.) No.1699 of 2006
9. On the other hand, D.W.1 Rahman Ansari is own brother of
the informant. According to his evidence, he resides in the
same house, which has been partitioned with his brother.
Since, 10-12 years, the informant and the accused Lalu Mian
are under litigating terms due to that reason he has falsely
been implicated in this case and no such occurrence has ever
took place between his brother and the victim lady.
In his cross-examination, this witness remained
affirmed and nothing has been elucidated in his cross-
examination to disbelieve him.
D.W.2 Qutub Ansari has also deposed about the
inimical term since long between the informant and the
appellant due to that reason, he has falsely been implicated in
this case.
10.It is also here pertinent to observe that the victim lady has
given contradictory statement from stage to stage of
proceeding during enquiry, before the charge evidence and at
the trial also. Learned trial court has also asked specific
question from the victim lady to which, she did not reply and
remained mum in spite of repeated questions by the court and
her demeanor has also been recorded by the concerned trial
court.
Cr. Appeal (S.J.) No.1699 of 2006
11. From perusal of the impugned judgment, I find that learned
trial court has swayed upon the sole testimony of the victim
lady under assumption that the conviction can be based upon
uncorroborated testimony of the victim. No doubt, there is no
rule of law to insist upon the corroboration against the
testimony of the victim of rape, who is deemed to be injured
witness. But at the same time, it is duty of the court to observe
that the victim lady has given colourable statements and not
wholly reliable and there are also some materials showing the
possibility of false implication. The court must as a matter of
prudence must seek corroboration from some independent
source before acting upon the testimony of the victim lady. In
the instant case, there are various suspicious circumstances,
which have been ignored by the learned trial court. From very
inception, when the case was initiated after delay of 10 days
without any explanation and after thorough investigation of
the case, the final form was submitted by the police. Not only
this case was found to be false, but recommendations were
also made for prosecution of the informant himself for the
offence under sections 182 and 211 of IPC. In spite of the
enquiry conducted by learned Magistrate upon protest-cum-
complaint lodged by the informant, the court was of the view
Cr. Appeal (S.J.) No.1699 of 2006
that there is prima facie material for proceeding for the offence
under section 354 of IPC only. Even at the stage of charge,
offence of section 376 of IPC was not found to be committed
and there was no charge in this connection. The accused went
upon facing the trial of charge under section 354 of IPC and at
the stage of section 313 Cr.P.C., the case was committed to the
court of Sessions. Learned Additional Sessions Judge, who
conducted the trial has clearly indicated that the demeanor of
complainant-cum-victim, she was not disclosing truth
deliberately in respect to her previous statements recorded
during enquiry and at the trial by the Magistrate for the
offence under section 354 of IPC.
12. In view of the above discussion and reasons, I am of the firm
view that the victim lady is not wholly reliable witness, and
except her husband, who happens to be a hearsay witness,
none of the neighbourers disclosed about the incidence. The
conduct of the victim lady during her examination cast doubt
on her versions. Therefore, I find substance in the contentions
raised on behalf of the appellant and merits in this appeal.
Accordingly, this appeal is allowed. The appellant is acquitted
from the charges leveled against him.
Cr. Appeal (S.J.) No.1699 of 2006
13. The appellant is on bail, hence, he is discharged from liability
of bail bond. The sureties are also discharged.
14. Pending I.A(s), if any, is also disposed of accordingly.
15. Let a copy of this judgment along with Trial Court Records be
sent back to the concerned trial court for information and
needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Dated: 12 /02/2025
Pappu/- N.A.F.R.
Cr. Appeal (S.J.) No.1699 of 2006
