Jharkhand High Court
Uttam Pandit vs The State Of Jharkhand on 28 January, 2025
Criminal Appeal (S.J.) No. 993 of 2006
[Against the Judgment of conviction dated 30.05.2005 and Order of
sentence dated 31.05.2005, passed by learned Additional Sessions
Judge-I, Rajmahal, in Sessions Case No. 40 of 2004 / Sessions
Trial No. 02 of 2004 ]
Uttam Pandit, Son of Dinanath Pandit, Resident of Village
- Tilbitha, P.O. - Bishunpur, P.S. - Ranga, District -
Sahibganj.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
.....
For the Appellant : Mr. A.K. Sahani, Advocate.
For the Respondent : Mrs. Nehala Sharmin, Spl.P.P.
.....
P R E S E N T
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
JUDGMENT
C.A.V. on 18.11.2024 Pronounced on 28.01.2025
1. Heard learned counsel for the parties.
2. Present criminal appeal is preferred against the
judgment of conviction dated 30.05.2005 and order of
sentence dated 31.05.2005 passed by learned
Additional Sessions Judge-I, Rajmahal in Sessions
Case No. 40 of 2004 / Sessions Trial No. 02 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 seven years along
with fine of Rs. 2,000/- with default stipulation.
FACTUAL MATRIX
3. The factual matrix giving rise to this appeal is that in
the night of 17.05.2003 the prosecutrix was sleeping
in her house along with her two children and her
husband had gone to fetch medicine from Village -
Ghanjori. It is further stated that at about 11:00 PM,
she went out of the house for easing herself,
meanwhile, accused Uttam Pandit entered into her
room and she identified him in the torch light. She
tried to raise alarm, but the accused caught hold of
her hand, gaged her mouth and pushed on the cot.
The informant resisted then accused threatened her
to kill and forcibly committed rape with her. It is
further alleged that brother-in-law of the informant
woke up hearing some sound of scuffle and raised
alarm then some villagers assembled, but the accused
managed to escape taking advantage of darkness of
night. She also narrated the story to her father-in-law
and villagers. The matter could not be resolved in
pacific manner by the villagers then after arrival of
her husband, the prosecutrix lodged the F.I.R. on
22.05.2023.
4. After completion of investigation, charge sheet was
submitted against the above-named sole accused,
who faced the trial and has been held guilty and
sentenced as stated above.
5. Learned counsel for the appellant assailing the
impugned judgment and order has vehemently argued
that in the instant case, the victim lady is the sole
eye-witness of the occurrence as per F.I.R, but in her
evidence on oath, during trial, she has stated that
after hearing hulla, her brother-in-law Bibhuti Pandit
also woke up and bolted the door from the outside
and raised alarm. The door was opened after villagers
assembled at the place of occurrence. It is very
strange to believe that inspite of bolted door from
outside, accused managed to flee away from the place
of occurrence in presence of several villagers. The
prosecution has also relied upon convening of
Panchayati, which consumed 4-5 days, but not a
single witness has been examined to prove the
Panchayati. In medical report of the victim, no sign of
recent sexual inter-course was found. The appellant
has been falsely implicated in this case under deep
rooted conspiracy between prosecutrix and her
brother-in-law. The appellant is absolutely innocent.
The evidence of victim is also not reliable in view of
fact that her brother-in-law Bibhuti Pandit had been
declared hostile in this case and expressed no
knowledge about the occurrence. The learned trial
court has miserably failed to properly appreciate the
entire evidence available on record and arrived at
wrong conclusion, which is fit to be set aside, by
allowing this appeal.
6. In alternative, it is pleaded that throughout the trial,
the appellant was in judicial custody and was
released on bail vide order dated 12.01.2007 and
about 3½ years, sentence has already been
undergone by the appellant. Under circumstances of
the case, appellant has been sufficiently punished.
Hence, his sentence may be reduced to the
imprisonment already undergone.
7. Per contra, learned APP appearing for the State has
controverted the aforesaid contentions raised on
behalf of the appellant and submitted that there is no
contradiction or improvement in the testimony of
prosecutrix and to disbelieve her testimony simply
because her brother-in-law has turned hostile is not
sufficient to discard the un-blemish testimony of the
prosecutrix. She is wholly reliable witness and there is
no reason to falsely implicate the appellant. The
defence has brought no material on record indicating
the fact that he has been falsely implicated. No motive
for false implication has been assigned by the defence.
The learned trial court very wisely and aptly appraised
and appreciated the evidence available on record.
There is no reason to interfere with the impugned
judgment and order and no merits in this appeal,
which is fit to be dismissed.
8. 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.
9. It appears that in course of trial, altogether 11
witnesses have been examined by the prosecution, out
of them, P.W.-1 - Haru Pandit, P.W.-2 - Gopal Pandit,
P.W.-3 - Man Maran Pandit, P.W.-4 - Subodh Pandit,
P.W.-6 - Bibhuti Pandit, P.W.-7 Krishna Mohan
Pandit and P.W. - 8 - Krishna Kumar Pandit have
been declared hostile by the prosecution and
expressed their no knowledge about the alleged
occurrence.
10. P.W.-6 : Bibhuti Pandit has also got his statement
recorded by the Investigating Officer under Section
161 of the Cr.P.C.
11. The prosecution case rest upon the evidence of P.W.-5
Rabi Pandit, father-in-law of the victim. P.W.-9 victim
himself. P.W.-10 Dr. Sunita Prasad and P.W.-11 ASI
Sheo Narayan Kamath, I.O., whose testimony
deserves to be discussed at length for proper
appreciation of the case.
12. P.W.-5 : Rabi Pandit (Sasur of the victim) has
stated that on 17.05.2003 at about 11:30 hours in the
night his daughter-in-law, who resides at the road
side, was sleeping in her house along with her two
children and her husband had gone to bring medicine
in the night, then Uttam Pandit entered into her
room, when she had gone to discharge nature's call.
He also deposed that when her daughter-in-law
(prosecutrix) raised hulla, then, he also rushed
towards the place of occurrence, meanwhile his son
Bibhuti Pandit (P.W.-6) bolted the door from outside.
Several villagers also assembled and suggested that
matter will be resolved through Panchayati.
Meanwhile, Uttam Pandit fled away. He came to know
from prosecutrix that the accused Uttam Pandit has
committed rape with her. He has further deposed that
in the morning a Panchayati was held, but Uttam
Pandit had not confessed and started abusing, then
this case was lodged.
In his cross-examination, he admits that
prosecutrix lives separately from him and her house is
at 100-125 meter from his house. He was alone in his
house. He has further admitted that when he reached
the place of occurrence, Uttam Pandit was concealing
himself under the cot in the room of his daughter-in-
law and at that time, Gopal Pandit, Shankar Pandit,
Kashi Pandit, Shambhu Pandit and Phuchu Pandit
were also present. Seeing them Uttam Pandit came
out from the cot and fled away. He also admits that in
the Panchayati fine of Rs. 1,000/- was imposed upon
the accused, which was given by him to the member
of Panch. He cannot tell that the said amount was
paid to the victim or not? This witness denied the
suggestion of the defence that there is land dispute
between him and father of Uttam Pandit. Hence, he
has given false evidence against the accused.
13. P.W.-9 is the prosecutrix-cum-victim of this case :
She has corroborated the contents of her fardbeyan
and stated that in the night while she had gone to
discharge nature's call, leaving her children in the
room, who were sleeping, meanwhile, Uttam Pandit
entered into her room stealthily and when she
returned and entered into the room then saw the
accused was standing in the corner of the room, when
she protested then accused forcibly laid down on the
cot and committed rape with her by gaging her mouth
and also threatening to kill her, if she raises alarm.
She also states that her brother-in-law after hearing
hulla came to the place of occurrence and bolted the
door. In the meantime, several villagers assembled
then the bolt was opened and Uttam Pandit fled away.
A Panchayati was held in this case, but Uttam Pandit
did not obey the Panchayati, hence, she lodged the
case. She has also stated that about half an hour
there was struggle with the accused and she was
resisting the act of commission of rape inside the
room.
In her cross-examination, she admits that her
marriage was solemnized 5-6 years ago. She has two
live children, aged about 06 and 04 years
respectively. She also admits that Uttam Pandit is her
neighbour, but there was no talking term between
them or visiting the home of each other. She also
admits that in the Panchayati, she was not present,
but her husband and father-in-law were present. She
has also denied the suggestion of defence that in the
Panchayati, fine was imposed upon the accused
which was not paid to her, hence, in connivance of
her husband, she has lodged this case.
14. P.W.-10 : Dr. Sunita Prasad has medically examined
the prosecutrix and found following:-
(i) Clothings already changed before coming to the
Hospital.
Height 4' 9". Weight 35 K.G., body built
average, breast developed, pubic hair and
auxiliary hair grown. She is mother of two
children. First a female child, four years old and
second a male child two years old.
(ii) No injury was found anywhere on her body
including her private part. No foreign hair was
found in and around her private part. Old
rapture of hymen was found which was
represented by tags of tissues. Vagina canal
admits two fingers easily. Vaginal swab was
taken and preserved. It was sent to pathology
Department, Sadar Hospital, Sahibganj for
microscopic examination of spermatozoa.
(iii) Determination of age :- She was referred to
Dhanbad Medical College Hospital for
determination of her age. She has proved the
injury report Exhibit-1.
15. P.W.-11 : Sheo Narayan Kamath is the Investigating
Officer in this case. He deposed that the written report
(Exhibit-2) about the occurrence was filed by the
prosecutrix, over which, he endorsed for registration
of the case. Accordingly formal FIR (Exhibit-3) was
lodged. He recorded re-statement of the victim and
visited the place of occurrence and also sent victim for
medical examination. He has further deposed that
place of occurrence of this case is Kacha house of the
prosecutrix situated near the road in Village - Tilbhita
and there was a door on main entrance. A cot was
lying in the room and the victim told that her children
were sleeping on cot and the accused stealthily
entered into her room and forcibly committed rape
with her. He has recorded statement of other
witnesses also and found sufficient evidence against
the accused for submitting charge sheet.
In his cross-examination, he admits that the
victim has not produced before him her wearing
clothes. He has not recorded the statement of victim
and nor sent her for medical examination. The
attention of this witness towards the statement of
hostile witnesses of this case has not been drawn by
the prosecution. He has denied the suggestion of
defence that his evidence is defective and without any
concrete evidence. He has submitted the charge sheet
against the accused.
16. On the other hand, two witnesses have been
examined by defence and documentary evidence
Exhibit-A & A/1, B & C have been filed to the effect
that prior to lodging this FIR, the victim has lodged
complaint case bearing P.C.R. Case No. 123/2003,
which was dismissed due to non-prosecution.
17. Form the aforesaid evidence, it is crystal clear that the
prosecutrix has remained intact in her cross-
examination and there is direct and specific allegation
against the petitioner that he committed rape with the
victim in the night while her husband was not present
in the home. Nothing has been elicited in the cross-
examination of the prosecutrix to disbelieve or discard
her testimony. Her testimony has also been
corroborated by her father-in-law. The defence
evidence produced in this case related to filing of
earlier complaint case by the victim could not be
considered because during examination of the victim,
her attention was not drawn towards those
documents and she has got no opportunity to explain
the same. Therefore, there appears no illegality or
infirmity in holding the appellant guilty for
commission of rape with victim. The prosecution case
cannot be disbelieved merely because some witnesses
of facts have become hostile and not corroborated the
prosecution story. The substantive evidence of victim
inspired confidence of the court. Therefore, the
impugned judgment is hereby upheld and confirmed.
18. So far sentence of the appellant is concerned, it
appears that on the date of occurrence, the appellant
was unmarried boy and since after the conviction in
this case, he is alleged to be not involved in any
criminal activity and was never convicted for any
offence, therefore, considering the facts and
circumstances of the case, nature of offence
committed by the appellant, age, character and
antecedent, this Court deem fit to reduce the sentence
of the appellant. Therefore, instead of undergoing
substantive sentence of imprisonment as awarded by
learned trial court, the sentence of appellant is
reduced to the imprisonment already undergone by
him.
19. With the aforesaid modification in sentence, this
appeal is dismissed on merits.
20. Appellant is on bail, as such he is discharged from the
liability of bail bond. Sureties are also discharged.
21. Pending I.A., if any, stand disposed of.
22. 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.
