Jharkhand High Court
Marshal Barla vs The State Of Jharkhand on 28 January, 2025
Criminal Appeal (S.J.) No. 1683 of 2006
[Against the Judgment of conviction dated 26.09.2006 and Order of
sentence dated 27.09.2006, passed by learned 1st Additional
Sessions Judge, Gumla, in Sessions Trial No. 103 of 2004 ]
Marshal Barla, Son of Late Johan Barla, Resident of Village
- Murga, Police Station - Kamdara, District - Gumla.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
.....
For the Appellant : Mr. Durga Charan Mishra, Amicus
For the Respondent : Mr. Jitendra Pandey, A.P.P.
.....
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 19.11.2024 Pronounced on 28.01.2025
1. Heard learned counsel for the parties.
2. Present criminal appeal is directed against the judgment
of conviction dated 26.09.2006 and order of sentence
dated 27.09.2006 passed by learned 1st Additional
Sessions Judge, Gumla in Sessions Trial No. 103 of
2004, whereby and whereunder, the appellant has been
held guilty for the offence under Section 376 of the
I.P.C. and sentenced to undergo R.I. of eight years along
with fine of Rs. 1,000/- with default stipulation.
FACTUAL MATRIX
3. The factual matrix giving rise to this appeal is that on
31.12.2003 at about 2:00 P.M., the prosecutrix was at
her home, meanwhile, her neighbor Marshal Barla,
aged about 45 years came to her house, caught hold of
her hand and forcibly dragged towards his own home. It
is alleged that upon protest by prosecutrix, she was
threatened to be killed, so that she became frightened
and followed to the house of accused, where she was
confined in a room and when children of Marshal Barla
slept then at about 10:00 hours in night, he untied the
petticoat and lifted the saree of the prosecutrix and
committed rape with her. It is further alleged that since
then, the accused has been committing rape with her
for about one year in absence of her husband putting
her under threat. The accused is a powerful person in
the village and no villager dare to raise protest against
him. On the basis of written report of prosecutrix,
Kamdara P.S. Case No. 01 of 2004 was registered for the
offence under Section 376 of the I.P.C.
4. After completion of investigation, charge sheet was
submitted against the abovenamed sole appellant. The
case was committed to the court of Sessions and after
conclusion of trial, impugned judgment of conviction
and order of sentence has been passed.
5. Learned counsel for the appellant has submitted that
except prosecutrix and her husband, no other witnesses
have supported the prosecution story. It is
quite strange that the victim, who was being ravished
for one year, at the instance of the accused, will not
even disclose to her husband or any of the villagers or
at any police station or before Village Panchayat. The
victim lady has stated in her cross-examination that she
was dragged towards the house of the appellant, but not
a single scratch was found on her body and no sign of
rape has been opined in her medical examination
report. The Investigating Officer and Medical Officer
have not been examined in this case, which has caused
serious prejudice in the effective defence of the
appellant. Both, victim as well as her husband have
materially improved their version during trial of the
case. P.W.-2 is the husband of the prosecutrix, who has
disclosed that on 01.01.2004 in the morning, he along
with police went to the house of present appellant,
whereas wife has been recovered from the house of the
appellant. The prosecutrix has also stated the same
thing, but in the very first part of the case diary, it is
mentioned that both husband and wife came to the
police station together and lodged the report against the
appellant and there is no recovery, memo of the victim
from house of the appellant. It is further submitted that
the husband of the victim (P.W.-2) has also given a
different story, as stated before police, that he had come
to his house at lunch break about 2:00 P.M., he was
going to discharge his duty again, then accused forcibly
took away his wife to his home, he forbade him, but he
threatened. Thereafter, he went to police station and
lodged FIR, is totally against the documentary evidence
available on record, which discloses that both P.W.-1 &
P.W.-2 hatched conspiracy against the appellant and
falsely implicated him in this case. Hence, their
testimony is absolutely not reliable and on that basis,
conviction and sentence of the appellant is not legally
sustainable and is fit to be set aside. Therefore, this
appeal may be allowed.
6. On the other hand, learned APP appearing for the State
has controverted the aforesaid contentions raised on
behalf of the appellant and submitted that there is
direct and specific allegation about commission of rape
with the victim against her will and consent and due to
fear of death extended by the appellant, the prosecutrix
could not disclose the commission of rape with her for a
period of one year. There is no reason to disbelieve the
testimony of the prosecutrix. Hence, there is no merit in
this appeal, which is 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 side.
8. It appears that in course of trial, four witnesses have
been examined this case.
P.W.-1 : Prosecutrix, who has corroborated the
contents of the written report and specifically stated
that she was forcibly brought to the house of the
accused dragging her, where she stayed overnight and
rape was committed by the accused at about 10:00 P.M.
She has further alleged that in the morning that her
husband came with police, then she was brought out
from the house of the accused.
In her cross-examination, she has stated that the
accused lifted her and brought her to his home. Again,
she reiterated that she was dragged by hand towards
the house of the accused. She also admits that son and
daughter of the accused are 6 & 12 years old, who were
also present in the home, but could not resist due to
fear. She also admits that her four month's child was
also accompanied with her, when she was brought to
the house of the accused. She further states that at
about 8:00 AM in the next day, police arrived at the
house of accused then she was recovered by police.
9. P.W.-2 Tanish Barla (husband of the victim lady) has
given testimony like eye-witness. According to his
evidence on 29.12.2003 at about 12 hours, he returned
to his home for lunch. Thereafter, accused dragging his
wife brought to his home. He protested but the accused
did not pay any heed then this witness went to police
station Kamdara and informed about incident.
According to him, on 01.01.2004 at about 05:00 AM
police arrived at the house of accused and his wife was
recovered, then his wife, in presence of police, told that
the accused has committed rape with her.
10. P.W.-3 Tignesh Barla and P.W.-4 Tilsita Barla have
not supported the prosecution case.
11. From perusal of evidence of P.W.-1 & 2, there appears
material contradiction regarding the manner of
occurrence. According to prosecutrix, her husband was
not present at the time of the occurrence, but the
husband has given evidence like eye witness. The FIR
was also lodged at the police station, where both
husband and wife were present and both have signed
over the written report, but the victim and her husband
in their testimony before the Court have stated that
police went to the house of accused in the morning and
the prosecutrix was recovered from his house. The
Medical Officer has not been examined in this case. The
Investigating Officer, who might have explained the
material contradictions appearing in the evidence of
witnesses, has also not been examined.
12. In the given situation, it cannot be said that that
prosecutrix is wholly reliable witness particularly when
she was being ravished since a period of one year, she
did not disclose the same to anyone in the village or
before any public authority. It also appears that the
victim and appellant were in compromising situation
since long and the husband of the victim was not aware
of it, but on the date of occurrence, when he was not
present in the house and did not return in the night,
due to some urgent work and returned in the next day
morning, then he came to know that his wife is at the
house of the accused along with newly born baby. When
the prosecutrix was caught raid handed by her
husband, then in order to save her skin, manipulated a
false case of commission of rape against the appellant.
13. In view of aforesaid discussions and reasons, I find that
the learned trial court has miserably failed to properly
appreciate the evidence of witness and arrived at wrong
conclusion about the guilt of the appellant.
14. Considering the materials available on record, the
impugned judgment of conviction dated 26.09.2006 and
order of sentence dated 27.09.2006 passed by learned
1st Additional Sessions Judge, Gumla in Sessions Trial
No. 103 of 2004 is hereby set aside. Accordingly, this
appeal is allowed.
15. Pending I.A., if any, stand disposed of.
16. Appellant is on bail. He is discharged from the liability
of bail bonds and sureties are also discharged.
17. Let a copy of this judgment along with trial court
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated, the 28 t h January, 2025.
Sunil / N.A.F.R.
