Jharkhand High Court

Srihari Mahato @ Hari Mahato vs The State Jharkhand on 1 July, 2025

                                                     2025:JHHC:17259




              Criminal Appeal (SJ) No. 1725 of 2003
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[Against the judgment of conviction and order of sentence dated 19.11.2003 passed by learned 1st Additional Sessions Judge, Chaibasa in Sessions Trial Case No. 229 of 1994.

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Srihari Mahato @ Hari Mahato, Son of Sri. Maheshwar Mahato, Resident of Thesapir, P.S. Chakradharpur, District- West Singhbhum ... ... Appellant Versus The State Jharkhand ... ... Respondent

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CORAM: HON'BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellant : Mr. Rohan Mazumdar Advocate For the Respondent : Mr. Anup Pawan Topno, A.P.P.

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C.A.V. on 07.03.2025 Pronounced on _01.07.2025

1. Heard Mr. Rohan Mazumdar, learned counsel appearing on

behalf of the appellant and Mr. Anup Pawan Topno, learned

A.P.P. for the State.

2. This appeal is directed against the judgment of conviction

and order of sentence dated 19.11.2003 passed by learned 1st

Additional Sessions Judge, Chaibasa in Sessions Trial No. 229 of

1994, arising out of Chakradharpur P. S. Case No. 142 of 1993,

corresponding to G. R. Case No. 328 of 1993, for the offence

under Section 376 of the Indian Penal Code to undergo RI for

seven years.

3. In the present case F.I.R. being Chakradharpur P.S. Case

No. 142 of 1993 corresponding to G.R. Case No. 328 of 1993

dated 09.08.1993 got registered on the basis of statement of

victim/prosecutrix (vide Exhibit- 3). Victim/prosecutrix made

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statement on 09.08.1993 at 2:15 P.M. that she is unmarried lady

of 35 years of age and allegedly on 27.07.1993 she was alone at

her home, then at about 1:00 P.M. accused/appellant came to her

house and caught hold of her and forcefully committed rape on

her person. She further stated that no one was present in the

home and in the evening when family members came, then she

told the incident to everyone then his uncle Basudeo Mahato,

brother Shashibhusan Mahato and Karu Mahato and other family

members called villagers on the next day including the

accused/appellant and his father. It was decided that

accused/appellant had to keep victim/prosecutrix as his wife and

as per decision of panchayat she remained at the house of

accused/appellant as a wife since 28.07.1993 to 08.08.1993, but

today i.e. 09.08.1993 accused/appellant kicked her out from the

house, thereafter she reached at her home and told to her family

members and thereafter giving intimation about the incident.

4. After due investigation, I.O. has submitted the charge-sheet

against the accused/appellant under Section 376 of Indian Penal

Code and cognizance was taken for the said offence by learned

S.D.J.M. Chakradharpur vide order dated 01.10.1993 and after

commitment case was transferred to court of Sessions.

5. Learned counsel for the accused/appellant submitted that

the case of the prosecution which has come from the mouth of

victim/prosecutrix appears to be improbable and false implication

of accused/appellant cannot be ruled out in the present case as

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there is lot of material contradiction in the testimony of

victim/prosecutrix itself and the evidence which has come from

the mouth of family members of victim/prosecutrix as well as

villagers, which make the case of prosecution doubtful. It has

been pointed out on behalf of accused/appellant that it is

consistent plea of accused that accused/appellant has been

falsely implicated in the present case as he belongs to well-off

family and brother and uncle of the victim wanted to get married

victim/prosecutrix with accused/appellant as she was infirm and

of advance age. Learned counsel drew attention of this Court

towards the cross-examination of victim and testimony of family

members of the victim/prosecutrix and villager also, and pointed

out number of contradictions with a view to convince this Court

that version of victim ought not to be believed by the Court in the

present case.

6. Per contra, learned A.P.P. for the State submitted that it is

trite law that sole testimony of victim/prosecutrix is sufficient to

indicate the culpability of accused/appellant for alleged

commission of crime if the testimony inspire confidence to the

Court and in the present case there is no reason to doubt the

version of victim/prosecutrix who is physically infirm and the

contradiction as pointed out by learned counsel for the appellant

is not material in nature which could shake the foundation of

case of prosecution. Therefore, there is no reason before this

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appellate court to take a different view from that of trial court in

the present case.

7. Heard learned counsel for the parties and perused the

material available on record.

8. For concealing the indentify of victim/prosecutirx, name of

victim/ prosecutirx and her family members has not been

mentioned.

9. To prove its case, prosecution got examined as many as

eleven witnesses, P.W.-1 is the victim, P.W.-2 is the uncle of

victim, P.W.-3 is cousin brother of victim, P.W.- 4 is villager, P.W.-

5 and P.W.-6 are own brothers of the victim, P.W.-7, P.W.-8 and

P.W.-9 are also villagers, P.W.-10 Doctor P. Kujur examined the

victim on 09.08.1993, P.W.- 11 is the formal witness who got

proved the F.I.R. and fardbayan in the present case.

10. There are three sets of witnesses who got examined by the

prosecution, first set is the victim and her family members

including her uncle and her two brothers, whereas second set of

witnesses are villagers and third set of witnesses are official

witnesses who are P.W.-10 Doctor P. Kujur and P.W.-11 Subratha

Chatterjee.

11. Before analyzing the evidence of victim/prosecutrix, I would

like to briefly state the evidence of witnesses of all the three sets.

12. P.W.-4 Shashi Manjhi, P.W.-7 Balbhadra Chatterjee and

P.W.-8 Agasti Parmanik are the villagers of the victim and have

stated in their respective deposition that they came to know about

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the incident and panchayati was convened and

victim/prosecutrix was taken by accused/appellant as his wife.

P.W.-9 Gangadhar Nag, who is also villager, has stated that he

knows nothing about the incident.

13. P.W.-2 is the uncle of the victim/prosecutrix, he has

deposed that on 27.07.1993 he went to field for work and when

he returned in the evening, then victim started weeping and told

him that accused/appellant committed rape and fled away. On

next day i.e. 28.07.1993 panchayati was convened and village

panchayat has given custody of victim/prosecutrix to

accused/appellant as wife and decision was taken happily in the

panchayat and this panchayat proceeding was also attended by

accused/appellant and his father. In panchayat, Mukhiya and

Sarpanch were also called and thekedar and chowkidar were also

present.

14. P.W.-2 further stated that statement of victim/prosecutrix

had been recorded in the panchayat and he is having the same

and at the time of registration of the case, he had shown that

paper to police official and after seeking the same, police official

returned to him. He has also stated in cross-examination that a

day after panchayat, he visited to police station and thereafter on

next day 40-50 persons visited to police station where their

statement as well as statement of victim got recorded. He has also

stated that there was no quarrel with other side and they were at

visiting terms.

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15. P.W.-3 is cousin brother of the victim/prosecutrix who has

stated that accused/appellant committed rape with victim and

pachayati was convened and accused/appellant took victim to his

home and she remained there for ten days and thereafter she was

kicked out.

In cross-examination he has stated that at the time of

handing over of the victim/prosecutrix neither mukhiya nor

sarpanch was present. He has also stated that he went to police

station along with P.W.-2 and P.W.-5 after ten days of the

incident when victim was kicked out from the house by the

accused/appellant.

16. P.W.-5 is own brother of victim and nephew of P.W.-2, he

has deposed that on the day of incident victim/ prosecutirx was

alone at her home and family members went to field and when

they returned from filed, then victim/ prosecutirx told that

accused/appellant committed rape on her person. This witness

intimated P.W.-2 and information was given in the village in the

morning and panchayati was convened and in panchayat,

custody of victim/prosecutrix was given to accused/appellant and

he took her to his home but she was kicked out after ten days.

Thereafter, they went to police station where statement got

recorded. He has also identified his uncle's (P.W.-2) signature and

his signature on the statement of victim/prosecutrix and the

same has been marked as Exhibit- 1, 1/1 respectively.

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In cross-examination he has stated that first of all

victim/prosecutrix has told him about the incident and at that

time no one was with him. He has also stated that it was social

panchayati and mukhiya and sarpanch were not present.

17. P.W.-6 is also real brother of victim, he has also deposed

that when he returned from the field after work then

victim/prosecutrix told him that accused/appellant committed

rape with her, and at that time his brother (P.W.-5) was also

present. He has also stated that in panchayat, accused/appellant

accepted his guilt and took the victim/prosecutrix with him and

she remained there for ten days and thereafter she was kicked

out, then they went to police station and he has also identified his

signature as a witness on the statement of victim/prosecutrix and

the same has been marked as Exhibit 1/2.

18. P.W.-1 is the victim/prosecutrix who has stated that

incident is of eight years back and she was alone in her house at

that time then accused/appellant entered into her house and he

committed rape on her person and in the evening when her Kaka

(uncle and brothers) returned then she told the incident to them.

She has also stated that a day after incident, panchayati was

convened and she was given to the custody of accused/appellant

and she remained there for ten days in the house of

accused/appellant as his wife and thereafter, she was kicked out

and she lodged the present case by coming to Chakradharpur.

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In cross-examination victim has stated that at the time of

incident, all brothers and sisters resided together and there are

two rooms in her house and there is a door in between two rooms,

therefore one can go from one room to other room. There were

three cots in one room and four cots in other room. She has also

stated that she was having three sisters and three brothers and at

the time of incident, none of the sisters were got married and

there was house in the vicinity of her house. She further stated

that she did not go to field for work on account of her health and

she used to go to pond, but on account of some inconvenience in

her leg she used to take much time in reaching pond but she

used to do domestic work in case of need. She has denied that

she always kept on sleeping on cot but has also stated that on

account of her physical condition her marriage could not be

solemnized. There are two houses in between the house of

victim/prosecutrix and accused/appellant and house of the

accused/appellant was visible from her house. Victim/prosecutrix

has also conceded that father of accused/appellant was having

large chunks of land and he is a well-off person. Prior to incident

accused/appellant did not visit to her house and it was the first

occasion when he entered into her house on the day of incident. It

was 1:00 A.M. and she was sitting on the cot after taking bath

and meal. Victim/prosecutrix has further stated that rape was

committed on the earthen ground and he laid down lethara

(bistar) on the ground and there was no pillow and lethara was

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hanged on argani (hanger) and he did not have any word with her

but she could well understand that why accused/appellant was

laying down lethara and she made hulla. She has voluntarily

stated that accused/appellant extended threat to liquidate her

and she also made an effort to come out of the house. At the time

of incident she was wearing saya and saree and was not wearing

blouse and bangles. Door was open when she was sitting on the

cot and she was pulled from cot and she was made to sleep on

lethara and her saya and saree were untied and

victim/prosecutrix was having no cloth on her person and it was

complete sexual intercourse with ejaculation and it continues for

half an hour. She has also stated that she moved her hands and

legs while being raped but she had not given tooth bite but had

attempted to scratch but accused/appellant extended threat. At

the time of rape, accused/appellant was also undressed and there

was injury on her private parts and blood also oozed out and

there was also injury on her hand and on her thigh. When

accused/appellant left the place then she wore her clothes and

made hulla, then nearby persons assembled including Haripado,

Shyampado and 20-25 persons.

Victim's cross-examination deferred on other date on

account of paucity of time and on the next day she had also

stated that injury was caused on her chest and she again said

that on her hulla no villager came and she did not meet any

villager till the evening of incident. She has also stated that when

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she wore the cloth it was having blood stain which was shown to

her family members and that cloth was given to police in police

station. She also stated that, on the next day of incident she

narrated the incident to his brother and nephew as well as her

sisters. She also stated that sarpanch and mukhiya were also

present in the panchayat. There was writing work done in the

panchayat and she made statement but her wish was not asked

in the panchayat and she herself not shown her desire to live with

accused/appellant in panchayat. She further stated that

accused/appellant was not ready to keep her and there was no

decision in the panchayat. She has also stated that there was no

good relation in her family and family of accused/appellant prior

to incident and they were having no visiting terms on the

occasion of marriage and festivals.

19. P.W.-10 is the Doctor who has examined the

victim/prosecutrix on 09.08.1993 at 04:45 P.M. and found the

following (i) tenderness and swelling on the vulva and tenderness

on both the thighs. (ii) hymen torn ruptured (iii) No foreign body

and no seman was found in the vagina. Doctor has opined injury

no. (i) and (ii) show that rape was attempted. She has proved her

report as Exhibit-2.

In cross-examination, Doctor has stated that tenderness

could be caused on account of many reasons and no medicine

was recommended to victim/prosecutrix. She has also stated that

tenderness does not persist for more than 3 to 4 days. As the

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hymen was old ruptured, Doctor has stated the girl was used to

sexual intercourse. She has also stated that dead sperm are

available in the vagina even 15 days after intercourse.

20. Before analyzing the evidence available on record it is

required to be noted that in the case of rape, sole testimony of

victim is sufficient to convict and no corroboration is required if

the Court finds that testimony of victim is truthful. Hon'ble Apex

Court in the case of Vijay v. State of M.P., reported in (2010) 8

SCC 191 at paragraph 13 held as under:

13. In State of H.P. v. Raghubir Singh [(1993) 2 SCC 622 : 1993 SCC (Cri) 674] this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [(2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] .

21. In the case in hand, the allegation which has come from the

mouth of victim/prosecutrix is that, on 27.07.1993

victim/prosecutrix was alone at her home which consisted of two

rooms and both rooms were connected and door of the rooms

were opened and she was sitting on the cot after taking bath and

having meal, then taking advantage of absence of other family

members of victim/prosecutrix, the accused entered into her

house and after laying down the lethara (bistar), pulled

victim/prosecutrix from the cot and made her to sleep on ground

and untied her saya and saree and also undressed himself,

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thereafter committed rape for half an hour and there was

ejaculation also. Victim/prosecutrix has stated that she moved

her hands and legs while being raped but she did not give tooth

bite or scratched to accused/appellant and he extended threat. It

is required to be noted that, victim/prosecutrix has stated that

she understood the intention of accused/appellant while he was

laying down lethara on the ground. She has further stated that

after commission of rape accused/appellant went away from her

home then she wore the cloth and in the evening when her family

members came from the field then she narrated the incident to

them. At one point of time during cross-examination she has

stated that she made hulla when accused left the place then

Haripado, Shyampado and 20-25 persons assembled there but on

the next day of cross-examination there is complete volte-face in

her statement and had stated that she could not made hulla. She

claimed that injury was caused on her private part, thigh and

chest also. It is further case of prosecution that, thereafter family

members of the victim/prosecutrix convened social panchayat in

which victim/prosecutrix made statement and panchayat decided

to hand over the victim/prosecutrix to accused/appellant and

asked to keep her as a wife and accused/appellant kept

victim/prosecutrix for ten days as wife and thereafter she was

kicked out by the accused/appellant. Thereafter

victim/prosecutrix along with her two brothers (P.W.-5 and P.W.-

6) and uncle (P.W.-2) along with other villagers visited to police

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station and statement of victim/prosecutrix got recorded (vide

Exhibit-3).

22. It further transpires that victim/prosecutrix was medically

examined on the same day when the F.I.R. got registered i.e.

09.08.1993 in the evening but rape is alleged to be committed on

27.03.1993 and tenderness and swelling was found on vulva and

also tenderness on her both thighs was found. Doctor has opined

it is a case of attempt of rape. I don't want to go into much detail

about the contradiction available on record regarding convening

of social panchayat and whether it was attended by mukhiya,

sarpanch, etc., or not. Witnesses have stated that some writing

work was done in the panchayat which was stated by P.W.-2 that

those papers were in his custody but reason best known to

prosecution, same has not been brought on record by the I.O. At

the cost of repetition, it is required to be noted that victim (P.W.-

1) in her examination-in-chief (Para-2) has stated that next day of

the incident Panchyati was convened and she was given in

custody of appellant and she remained in the house of appellant

as her wife for ten days and thereafter she was kicked out. But in

cross-examination (at Para-30) victim (P.W.-1) has stated that

appellant was not interested to keep her and there was "No

Decision" in panchayat. It is further important to note that

victim/prosecutrix has not uttered a word regarding

establishment of physical relation with accused/appellant during

ten days when it is alleged that victim/prosecutrix was residing in

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the house of accused/appellant as a wife, as per decision of the

panchayat. As per prosecution case alleged rape was committed

on 27.07.1993 and victim/prosecutrix was examined on

09.08.1993, so it is almost after 13 days, so the injury if any

occurred on 27.07.1993 it could not be found after elapse of 13

days, but tenderness and swelling found by the Doctor on the day

of her examination. Doctor has categorically stated that

tenderness does persist for 3 to 4 days. Actually there is no

material brought on record by the prosecution which could

explain about the cause of swelling found on vulva and

tenderness on both thighs of victim as it was found by the Doctor

on the day of her examination even victim/prosecutrix has only

uttered regarding incident of commission of rape by

accused/appellant on 27.07.1993. Victim/prosecutrix has

categorically stated in her testimony that family of

accused/appellant and family of victim/prosecutrix were having

no visiting terms and accused/appellant family are well-off. The

victim/prosecutrix has stated in her cross-examination that there

were two houses in between the house of victim/prosecutrix and

accused/appellant and house of the accused/appellant is visible

from her house. She has further stated that rape was committed

on the ground and it is earthen ground and he laid down lethara

(bistar) on the ground and there was no pillow and lethara was

hanged on argani (hanger) and he did not have any word with her

but she could well understand that why accused/appellant was

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laying down lethara and she made hulla. She has voluntarily

stated that accused/appellant extended threat to liquidate her

and she also made an effort to come out of the house. Victim has

stated in para- 18 of her cross-examination that when she was

sitting on cot in her home and doors were open, appellant pulled

her from cot and made her to sleep on gethara (bistar) on the

ground and appellant did complete sexual intercourse for half an

hour and there was ejaculation also. She has also stated that

when the accused left the place then she wore her clothes and

made hulla then nearby persons assembled including Haripado,

Shyampado and 20-25 persons. The house of victim/prosecutrix

is surrounded by the house of other villagers and even the house

of accused/appellant is visible from the house of victim.

23. Of course, victim belongs to rustic background and even

considering that, this Court finds that the version of the victim

(P.W.-1) does not appear to be coherent while narrating the entire

incident in her testimony. In the backdrop of above stated

discussions, it is crystal clear that if the evidence of the

prosecutrix is read and considered in totality alongwith other

evidence available on record, her deposition does not inspire

confidence to this Court. In this regard, Hon'ble Apex Court in the

case of Tameezuddin @ Tammu vs State Of (Nct) Of Delhi

reported in (2009) 15 SCC 566 held as under:

9.It is true that in a case of rape the evidence of the prosecutrix must be given predominant consideration, but to hold that this evidence has to be accepted even if the story is improbable and

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belies logic, would be doing violence to the very principles which govern the appreciation of evidence in a criminal matter.

24. Considering the aforesaid discussions, it is difficult for this

Court to believe the version of victim/prosecutrix in toto

therefore, this Court is of considered view that accused/appellant

is entitle for benefit of doubt. Aforesaid aspect has not been

considered by the learned trial court, as such, impugned

judgment of conviction and order of sentence dated 19.11.2003 is

liable to be set aside.

25. As a result, the judgment of conviction and order of

sentence dated 19.11.2003 passed by learned 1st Additional

Sessions Judge, Chaibasa in Sessions Trial Case No. 229 of 1994,

arising out of Chakradharpur P. S. Case No. 142 of 1993,

corresponding to G. R. Case No. 328 of 1993, is hereby set aside.