Jharkhand High Court
Ravi Mahato vs The State Of Jharkhand on 1 July, 2025
2025:JHHC:17257
Criminal Appeal (S.J.) No. 555 of 2008
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[Against the judgment of conviction dated 23.04.2008 and the
order of sentence dated 25.04.2008 passed by learned Sessions
Judge, West Singhbhum at Chaibasa in Sessions Trial Case No.
250 of 2007]
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Ravi Mahato, son of Sri Munnilal Mahato, resident of Mohalla -
Madhu Bazar, P.O. and P.S. Sadar, Chaibasa, Dist. Singhbhum
West ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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For the Appellant : Mr. Naveen Kumar Jaiswal, Advocate
For the Respondent : Mr. V. S. Sahay, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE ARUN KUMAR RAI
JUDGMENT
C.A.V. on 11.03.2025 Pronounced on 01.07.2025
1. Heard Mr. Naveen Kumar Jaiswal, learned counsel
appearing on behalf of the appellant and Mr. V. S. Sahay, learned
A.P.P. for the State.
2. This appeal is directed against the judgment of conviction
dated 23.04.2008 and the order of sentence dated 25.04.2008
passed by learned Sessions Judge, West Singhbhum at Chaibasa
in Sessions Trial No. 250 of 2007 whereby and whereunder, the
appellant has been convicted and sentenced to undergo R.I. for
five years for the offence under Sections 376/511 of IPC along
with a fine of Rs. 5,000/- and rigorous imprisonment for one year
under Section 448 of IPC and R.I. for one year under Section 323
of IPC and all the sentences were directed to run concurrently.
3. In the present case, F.I.R. has been registered on the
written report dated 19.07.2007 by father of victim who allegedly
stated therein that on last Thursday i.e. on 12.07.2007 at about
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10:30 P.M., Ravi Mahato (appellant herein) entered into his house
and extinguished Diya and pressed mouth of his daughter with
bad intent, while she was sleeping as he himself and other family
members went to water tap to clean their hands and legs. When
victim shouted, then accused fled away but Kedar Singh and, his
wife while returning towards home from water tap, have seen the
accused in electric light.
It is further alleged that when complaint was made to the
family member of Ravi Mahato, he visited informant's vegetable
shop on number of occasions and extended threat to liquidate
him. Today, i.e. on 19.07.2007, the accused entered into his
house and given fist blow to his son and chased him by taking
knife in his hand but father of the accused came in between, as
such, he could not give a knife blow to informant.
4. After due investigation, charge-sheet has been submitted
and learned Magistrate took cognizance of the offence and the
case was committed to the Court of Sessions, where charges
were read over to accused and explained to him in Hindi to
which he pleaded not guilty and claimed to be tried.
5. To conceal the identity of victim, her name, name of her
parents and brother are not being disclosed in this judgment.
6. To prove its case, prosecution has examined as many as
seven witnesses. They are P.W. - 1, father of the victim, P.W. - 2
Gopal Pandey (neighbourer), P.W. - 3 is the mother of the victim,
P.W. - 4 is the brother of the victim, P.W. - 5 is the victim (name
concealed), P.W. - 6 Kedar Singh is the neighbour of the victim,
P.W. - 7 Kasmuddin Ansari is the Investigating Officer. Apart
from ocular evidence, prosecution has also brought on record
the written report as Exhibit - 1 and formal F.I.R. as Exhibit - 2.
In statement under Section 313 Cr.P.C., accused denied
the allegation leveled against him. Defence has also brought on
record the evidence of three witnesses. They are D.W. - 1 Jitu
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Kumar, D.W. - 2 Chandradeo Prasad and D.W. - 3 Arbind
Mahato.
7. After analyzing the evidence available on record, learned
Trial Court found the accused guilty for the offence punishable
under Sections 376/511/448/323 of IPC, against which accused
has preferred the present appeal.
8. Learned counsel for the appellant submitted that it is a
false case lodged against the appellant, as the appellant used to
ask the son of the informant not to indulge in gambling. It has
also been pointed out to this Court that there is no plausible
explanation of seven days delay in lodging the present F.I.R. as
the incident is allegedly said to be of 12.07.2007.
Learned counsel further pointed out that there is
improvement from the mouth of all the witnesses, who are in
blood relation to victim, to make the case graver but even then
taking the allegation on its face value, no case of attempt to rape
is made out at all, in the present case.
9. Learned A.P.P. appearing on behalf of the State has
submitted that learned Trial Court has passed well reasoned
order after appreciating the evidence and there is no reason
before this Court to interfere in the impugned judgment of
conviction dated 23.04.2008 and the order of sentence dated
25.04.2008.
10. Heard the arguments advanced by learned counsel for the
parties and perused the material available on record.
11. Before proceeding further, this Court would like to briefly
state the ocular evidence brought on record on behalf of the
prosecution.
12. P.W. - 1 is the father of the victim and also the informant
who has stated that the incident is of 12.07.2007 at about 10:30
P.M. and at that time, the victim, who was 12 years old, was
alone at home and in the meanwhile, accused who used to reside
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backside of his house, entered into his house and pressed her
mouth and extinguished Diya and extended threat to her
daughter that, if she shouted then she would be liquidated.
Informant further stated that with bad intent, the accused
entered his house but could not succeed. P.W. - 6 Kedar Singh
who is his neighbour did Hulla and the accused was seen by his
wife and Kedar Singh (P.W. - 6) in the light of bulb of electric
pole while he was fleeing away.
On query, the victim told to the informant that, the accused
pressed her mouth and wanted to do wrong with her but she
freed herself and fled away. Informant made complaint to the
guardian of the accused but the accused extended threat that
the informant would be liquidated.
It is further stated that on 19.07.2007, the accused by
taking knife in his hand did Marpit with his son and in the
meanwhile, father of the accused came there, and saved
themselves. He further stated that the accused is a thief.
Informant has identified own handwriting and signature on the
written report and the same has been marked as Exhibit - 1.
In cross-examination, informant has stated that he used to
reside in Gairmajarua land by giving plastic shed and Kedar
Singh used to reside nearby and also other Thela wala used to
reside in the vicinity. He has categorically denied the suggestion
of defence that his son used to involve in gambling for which
accused Ravi Mahato and Mohalla persons made objection and
on 19.07.2007 there was quarrel between his son and Ravi
Mahato and no incident took place on 12.07.2007.
13. P.W. - 2 Gopal Pandey showed his ignorance about the
incident and he has been declared hostile.
14. P.W. - 3 is the mother of the victim who has stated that the
incident is of 12.07.2007 at about 10:30 P.M. and that time she
went to latrin and her husband went to shop to bring rice. She
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further stated that the victim who was 12 years old, was sleeping
and she heard loud voice of her daughter then she ran to her
house and saw the accused fleeing away by coming out of her
house and her daughter was crying and on being queried, the
victim stated that the accused climbed onto the cot and pressed
her mouth. She further stated the accused first slapped the
victim, then pressed her mouth, and threatened to kill her if she
shouted. The accused was trying to force himself on the girl with
bad intent.
On the next day, the incident was shared with brother and
Bhabhi of accused then accused started frequently visiting her
shop and giving threats. She further deposed that on 19.07.2007
at 03:00 P.M. while they were taking meal, then accused entered
her house by taking knife in his hand and given beatings to her
son and when she started fleeing away then she was also chased
then his younger son went to police station and thereafter police
came and taken away accused. She also stated that on shouting,
father of accused came and he saved them.
In cross-examination, she stated that on 12.07.2007 none
of the family members visited to the police station as the issue
was connected with girl. However, incident was told to police on
19.07.2007, when the accused started making trouble to them.
She further stated that, she herself and Kedar Singh (her
neighbour) had seen the accused while he was fleeing away. She
has also denied the suggestion of defence that her younger son
involved in gambling and Ravi Mahato used to object the same
for which her family member were having objection with the
accused and there was Marpit between his son and the accused,
Ravi Mahato. She has categorically denied the suggestion of
defence that no incident took place on 12.07.2007.
15. P.W. - 4 is the brother of the victim who has reiterated the
fact as stated by his mother and has stated that after hearing his
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sister's voice, he and his mother came to the house and his
mother saw accused Ravi Mahato who was fleeing away. He also
stated that, on query his sister told him that the accused
pressed her mouth, extinguished Diya and told that if she
shouted then she would be liquidated and on next day, when
complaint was made to the family member of accused, then
accused started extending threat to them and on 19.07.2007
accused came to his house by taking knife and told that
everyone would be cut.
In cross-examination, he has stated that he himself, his
younger brother, his mother and father used to go market and
his sister stays alone in the house and in day time, she used to
go to school.
16. P.W. - 5 (name concealed) is the victim who stated that
incident is of 12.07.2007 at 10:30 P.M., and after preparing
meal, she took dinner and slept and no one was present in her
house, then the accused entered the house and extinguished
Diya and pressed her mouth and after climbing over Khatiya
(bed), he pressed her chest and mouth also and told that if she
shouted, she would be killed. She stated that the accused
wanted to ravish her and when she did Hulla then Kedar Singh
came and when he asked, she disclosed the incident to him. The
accused fled upon seeing those persons approaching and he was
seen by her mother and the brother. She has also narrated the
incident of 19.07.2007 by saying that the accused came with
knife in the house and told that he would liquidate all the family
members and was also saying that they were defaming the
accused in the Mohalla and he also caught hold of her mother's
hair and also chased her and the brother.
In cross-examination, she has stated that she did not tell
anyone that accused climbed over the cot (Khatiya) and this was
also not stated to Kedar Singh (P.W. - 6) that accused pressed
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her chest as the mother has told her not to disclose anyone. She
further stated that when she woke up, it was dark in the room
and when accused started fleeing away from the room then she
identified him and when he pressed her mouth and chest, she
could not identify him. The moment, he fled, she came out of her
house and by that time her mother did not reach at home and
when she shouted then her mother came there by running but
her brother was not there. She also stated that she told the
police about pressing of chest by the accused. She has denied
the suggestion of defense that at the behest of her mother, she
had stated that accused climbed over cot and pressed her chest
and no incident took place on 12.07.2007.
17. P.W. - 6 Kedar Singh has stated that victim used to reside
in his house and incident is of 12.07.2007 at about 11:00 P.M.
and he heard shouting of victim, then he visited to her house but
he did not see anyone and found Diya was extinguished and
victim has told nothing to him and has also stated that she had
neither seen nor identified anyone. This witness declared hostile.
18. P.W. - 7 Md. Kasmuddin Ansari is the Investigating Officer
of the present case. He has inspected the place of occurrence
and has stated that it is a house made up of gunny bag and taat,
it is a Jhoprinuma (hut shed) house made up of bora, taat and
lakri and there was curtain of taat on the main gate which act as
a door. In western side, there is a house of accused and towards
South, there is Jhopri of Kedar Singh and towards North, there is
house of Suresh Yadav. He has identified own writing and
signature on the formal F.I.R. and the same has been marked as
Exhibit - 2.
In cross-examination, I.O. has stated that there is one room
i.e. of Jhoprinuma. There was no electric light at the place of
occurrence. However, there was light of electricity outside the
house.
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I.O. has stated that victim and her parents have not stated
in their respective statement that accused climbed over the
Khatiya and pressed her chest. During course of investigation,
he has found that at the time of incident parents and brother of
victim were not present and they came later.
19. D.W. - 1 Jitu Kumar is residing near the house of
informant and has stated that on 12.07.2007 he did not hear
any hulla from the house of the informant. He, however, stated
that the son of the informant was involved in gambling, and Ravi
Mahato forbade him, for which he used to quarrel with Ravi
Mahato.
20. D.W. - 2 Chandradeo Prasad has also stated that no
incident took place in the night on last year and he also used to
reside in the vicinity of the house of informant. He further stated
that the accused neither did mar-pit with informant nor teased
his daughter.
21. D.W. - 3 Arbind Mahato has stated that he knows the
informant and his house is 4-5 houses away from his house. He
further stated that he does not have any information that Ravi
Mahato did cherkhani with the victim.
22. As far as, delay of seven days in lodging of FIR is concerned,
the mother of the victim (P.W. - 3) has stated that as the matter
is related with her daughter (girl), therefore, they hid the incident
and no one from her family visited to police station on
12.07.2007. But, as the accused started creating nuisance then
she disclosed about the incident on 19.07.2007. Evidence
reveals that the accused entered his house by taking knife and
did marpit with his elder son, this prompted the informant to
lodge the case against the accused.
23. In view of aforesaid fact, this Court finds that it is natural
and normal conduct on the part of the informant side, therefore,
it cannot be said that there is delay in lodging FIR.
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24. From the evidence of victim, it transpires that on
12.07.2007 at about 10:30 P.M. accused entered into her house
while she was sleeping after taking her meal and Diya was lit in
the room. Accused extinguished Diya and, thereafter pressed her
mouth. The victim has also stated that the accused climbed over
the cot and also pressed her chest, but this part of her version is
an improvement, as is evident from the deposition of I.O. (P.W. -
7) who has stated that no such fact was ever stated in her
(victim) statement recorded before him. Similar improvements
have been made by parents of the victim.
25. From perusal of evidence, it is clear that when the victim
shouted, then the accused fled away and P.W. - 6, Kedar Singh,
who used to reside in the vicinity of the victim was the first
person who reached at the house of the victim but, he became
hostile while deposing before the court, but his examination-in-
chief reveals that he has stated that incident is of 12.07.2007 at
about 11:00 P.M. in the night and after hearing Hulla, he entered
into the house of the victim which corroborates the fact as stated
by the victim that incident took place on 12.07.2007 at about
10:30 P.M. in the night and Kedar Singh (P.W. - 6), visited her
place. But, P.W. - 6, Kedar Singh, has stated that the victim
stated nothing to him. However, victim has stated in her
deposition that P.W. - 6, Kedar Singh, had also seen the accused
while he was fleeing away. Mother of the victim (P.W. - 3) has
also stated that after hearing her daughter's voice, she ran
toward her house as she was in latrin, then she saw the accused
coming out of her house. It has also come from the mouth of
other witnesses that near the house of informant number of
Thela walas used to reside in such type of Jhopri.
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26. Coming to the facts in hand and evidences discussed in the
preceding paragraphs, it is required to refer herein the
distinction between attempt to rape and criminal assault
enumerated by the Hon'ble Apex Court in the case
of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand),
reported in (2006) 8 SCC 560 .Relevant Paragraph of the
judgment is hereunder -
14. Position of law in England is the same. To constitute the offence of
rape, there must be a penetration [R. v. Hill, (1781) 1 East PC 439] . Even
the slightest penetration will be sufficient. Where a penetration was
proved, but not of such a depth as to injure the hymen, still it was held to
be sufficient to constitute the crime of rape. This principle has been laid
down in R. v. M'Rue [(1838) 8 C&P 641: 173 ER 653]
and R. v. Allen [(1839) 9 C&P 31: 173 ER 727] . In R. v. Hughes [(1841) 2
Mood 190 : 169 ER 75] and R. v. Lines [(1844) 1 C&K 393 : 174 ER 861] ,
the Court has taken the view that "proof of the rupture of the hymen is
unnecessary". In R. v. Marsden [(1891) 2 QB 149] , the Court has laid
down that "it is now unnecessary to prove actual emission of seed;
sexual intercourse is deemed complete upon proof of penetration only".
16. The distinction between rape and criminal assault has been aptly
described in the English case R. v. James Lloyd [(1836) 7 C&P 317 : 173
ER 141] . In this case, while summing up the charge to the jury,
Patterson, J. observed: (ER p. 142)
"In order to find the prisoner guilty of an assault with intent to commit
a rape, you must be satisfied that the prisoner, when he laid hold of the
prosecutrix, not only desired to gratify his passions upon her person, but
that he intended to do so at all events, and notwithstanding any
resistance on her part."
17. A similar case was decided by Mirza and Broomfield, JJ. of the
Bombay High Court in Ahmed Asalt Mirkhan [ Cri A No. 161 of 1930,
decided on 12-8-1930 in Law of Crimes by Ratanlal Dhirajlal, p. 922.] . In
that case the complainant, a milkmaid, aged 12 or 13 years, who was
hawking milk, entered the accused's house to deliver milk. The accused
got up from the bed on which he was lying and chained the door from
inside. He then removed his clothes and the girl's petticoat, picked her up,
laid her on the bed, and sat on her chest. He put his hand over her mouth
to prevent her from crying and placed his private part against hers. There
was no penetration. The girl struggled and cried and so the accused
desisted and she got up, unchained the door and went out. It was held
that the accused was not guilty of attempt to commit rape but of indecent
assault. The point of distinction between an offence to commit rape and to
commit indecent assault is that there should be some action on the part of
the accused which would show that he is just going to have sexual
connection with her.
27. It would also be apposite to notice the following
observations of the Hon'ble Apex Court in State of Rajasthan v.
Sri Chand, reported in (2015) 11 SCC 229,which reads as
follows -
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8. We find that the FIR was recorded under Section 376 read with
Section 511 IPC i.e. attempt to rape and not rape per se. There is no
eyewitness on record apart from the prosecutrix herself as PW 3
Biharilal only saw the accused fleeing away and Saroj, the alleged
eyewitness, was never produced before the court nor was her
statement recorded under Section 161 CrPC. Also, no medical
examination of the prosecutrix has been conducted. The prosecutrix
has in her statement stated that the accused Sri Chand took her inside
his house, closed it, undressed her and undressed himself. Thereafter,
she states, he got on to her and did bad work. On being repeatedly
asked what bad work was done, she kept quiet and bowed her head,
in embarrassment understandably. One must not lose sight of the fact
that the prosecutrix was a minor child at the time of the incident. The
father (PW 6) of the prosecutrix has categorically stated that bad work
meant rape. However, we find difficulty in veracity of his statement
since he was not an eyewitness and was not even told about the
incident by the prosecutrix. He was told details of the incident by
Biharilal (PW 3) who is not an eyewitness to the incident. However,
Biharilal was the first person to have learnt of the offence from the
prosecutrix and he has completely corroborated her version. By this
consistent evidence what is proved beyond reasonable doubt is the
offence under Section 354 IPC. However, the question of attempt to
rape is not proved beyond reasonable doubt.
28. It is required to refer Section 354 of IPC at this juncture,
which reads here under-
"354. Assault or criminal force to woman with intent to
outrage her modesty.--Whoever assaults or uses criminal force
to any woman, intending to outrage or knowing it to be likely that
he will there by outrage her modesty, shall be punished with
imprisonment of either description for a term which shall not be
less than one year but which may extend to five years and shall
also be liable to fine."
29. A plain reading of Section 354 of IPC makes it clear that the
essential ingredients of the offence include: (i) the victim being a
woman, (ii) an act of assault or application of criminal force, and
(iii) the presence of intent to outrage or knowledge that such an
act is likely to outrage her modesty. Importantly, under
Section 354 of IPC, either of the elements actual application of
force and mere apprehension can constitute an offence if they
are accompanied by the intent to outrage modesty.
Hon'ble Apex Court in the judgment rendered Rupan Deol
Bajaj v. Kanwar Pal Singh Gill reported in (1995) 6 SCC 194
has held that the ultimate test for ascertaining whether modesty
of a woman has been outraged is the action of the offender such,
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as could be perceived as one which is capable of shocking the
sense of decency of a woman. Each case, however, has to be
assessed in light of its specific facts.
30. It is a matter of common prudence that Thela wala used to
go out from their respective home in the day time to sell the
items on thela and in the evidence of brother of the victim (P.W. -
4) it has also come that victim's parents and both brothers used
to go market in the day time and victim used to stay alone in the
home except going to school. It has also come in the evidence
that mother had gone to latrin which is 100 ft. away from her
house. Accused is also residing in the vicinity and must be
knowing aforesaid facts especially that in the night time all the
Thela Walas and family would be present in their respective
houses and in this background, it is difficult for this Court to
draw inference that accused was having mens rea to commit
rape in the present case. Even otherwise, apart from mens rea,
act of the accused is said (as Court is not considering improved
version of witnesses) to be that he was pressing the mouth of the
victim and extinguished Diya, which cannot be said to be an
attempt towards the commission of ultimate crime i.e. rape.
31. A bare perusal of the allegations reveals that the essential
ingredients of an offence under Section 354 of IPC are squarely
met out. As noted in preceding discussions, this provision
criminalises the use of criminal force or assault against a woman
with the intent to outrage her modesty or with the knowledge
that such an act is likely to do so. Section 354 of IPC, must be
interpreted in light of the dignity and bodily autonomy of a
woman, including a minor girl. The act of pressing the mouth of
a girl child, especially in the absence of any plausible
justification, falls well within the ambit of criminal force. Any
intentional use of force without consent, which causes or is
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likely to cause fear, injury, or annoyance, constitutes "criminal
force."
In the case in hand, the victim, a minor girl, has
specifically stated in her statement that the petitioner's conduct
had made her feel uncomfortable and uneasy. When she was
alone further intrudes upon her personal space, creating a
situation where she experienced fear or apprehension. Such
conduct, in itself, satisfies the threshold of "assault".
32. Considering the above legal propositions and above
discussed evidences, this Court is of considered view that at
best, it can be said that it is outraging the modesty of the victim
which comes under Section 354 of I.P.C. and appellant is found
guilty under Sections 354 of IPC and not under Sections
376/511 of IPC.
Above stated aspect has not been considered by learned
trial court, as such, impugned judgment of conviction dated
23.04.2008 and order of sentence dated 25.04.2008 whereby
and whereunder, the appellant has been convicted for the
offence inter alia punishable under Sections 376/511 I.P.C. is
liable to be set aside.
33. As far as, conviction by the learned trial court under
Sections 448/323 of IPC is concerned, there is evidence on
record, that the accused entered the house of the informant on
12.07.2007 at about 10:30 P.M. and on shouting of the victim,
the accused fled away and again on 19.07.2007, the accused
entered the house of the informant and did Marpit with the
brother of the victim, therefore, ingredient of Section 448 and
323 of IPC is available.
34. Resultantly, this Court finds appellant guilty under Sections
354/448/323 of IPC.
The punishment enshrined under Section 354 of IPC is
permissible upto five years as far as Sections 448/323 of IPC is
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concerned, it is permissible upto one year. However, with respect
to the sentence which has been imposed upon the appellant, it
appears that appellant is facing the rigors of the prosecution
case for about eighteen years since the year 2007 and the
appellant has also remained in custody out of the sentence
imposed by the learned trial court. Having considered the
aforesaid facts, this Court is of view that ends of justice would be
met, if the awarded sentence under Sections 448/323 of IPC by
learned trial court is modified to the period already undergone.
Further, under Section 354 of IPC also appellant is awarded
sentence as period already undergone.
35. Consequently, the judgment of conviction dated 23.04.2008
and the order of sentence dated 25.04.2008 passed by learned
Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial
No. 250 of 2007 is, hereby, modified to the above extent.
36. The instant criminal appeal is, hereby, partly allowed.
37. Since, the appellant is on bail, he is discharged from the
liability of his bail bonds.
38. Let trial court record be sent back to the court concerned
forthwith.
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 01st day of July, 2025
Umesh/-A.F.R.
