Jharkhand High Court
(Sector-Xii) P.S. Case No. 123/04) vs The State Of Jharkhand on 3 March, 2025
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ). 945 of 2006
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 945 of 2006
(Against the Judgment of Conviction dated 17.05.2006 and Order of Sentence dated
18.05.2006 passed by the learned Additional Session Judge, Fast Track court-IInd,
Bokaro in S.T. No. 265 of 2004, in G.R. Case No. 496 of 2004 arising out of B.S. City
(Sector-XII) P.S. Case No. 123/04)
Gopal Singh @ Gopal Kumar Singh, son of Sri Mahadeo Singh, resident of
village Pipratanr, PS Pindrajora, District Bokaro ... Appellant
Versus
The State of Jharkhand ... Respondent
---
CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
---
For the Appellant : Mr. Rajesh Kumar, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
JUDGMENT
Dated:03.03.2025
This Criminal Appeal is directed against the Judgment of Conviction
dated 17.05.2006 and Order of Sentence dated 18.05.2006 passed by the
learned Additional Session Judge, Fast Track court-IInd, Bokaro in S.T.
No. 265 of 2004, in G.R. Case No. 496 of 2004 arising out of B.S. City
(Sector-XII) P.S. Case No. 123/04 whereby and whereunder the appellant
has been convicted under sections 376/316 of the Indian Penal Code and
sentenced to undergo Rigorous Imprisonment for 7 years under both the
sections 376 and 316 of the Indian Penal Code with fine of Rs.10,000/- and
in default of payment of fine he shall further undergo RI for 6 months. Both
the sentence directed to run concurrently.
2. The prosecution story as unfolded in the fardbeyan of the victim/PW3
on 05.06.2004 is as under: PW3 stated in her statement that Gopal Singh
(appellant) was her neighbour and when her father got fracture in his leg
and during the treatment of her father the victim/PW3 and the appellant
became friend and thereafter the appellant started making physical relation
with her. Whenever her father tried to settle her marriage, Gopal Singh on
one pretext or other got it cancelled and claimed to marry her. Since seven
months Gopal Singh maintained physical relation with her and when she
became pregnant for seven months, Gopal Singh denied to marry her.
On this information B.S. City (Sector-XII) P.S. case no. 123/04
was registered u/s. 376 of IPC and N. K. Mishra PW-8 was given charge for
investigation who has recorded re-statement of the prosecutrix and sent her
for medical examination to Chas Referal Hospital with a requisition Ext.5.
2 Cr. Appeal (SJ). 945 of 2006
He has inspected the place of occurrence, received the medical report and
filed the charge-sheet against the accused u/s. 376/316 of the IPC vide
chargesheet No. 144 of 2004. Accordingly, cognizance was taken and after
commitment the record was sent to the Court of learned Sessions Judge,
Bokaro and from there the same has been transferred to the file of the
learned Additional Sessions Judge for trial. Learned Additional Sessions
Judge F.T.C.-II Bokaro has framed charge under section 376 and 316 of IPC
on 16 October 2004, for the contents of charges, the accused has pleaded
not guilty and claimed to be tried.
3. The learned trial court after conducting the full-fledged trial, passed
the impugned judgment of conviction and order of sentence which is under
challenged in this appeal.
4. Heard Mr. Rajesh Kumar, the learned defence Counsel appearing on
behalf of the appellant and Mrs. Vandana Bharti, learned APP appearing on
behalf of the State.
Arguments advanced on behalf of the appellant:
5. The learned counsel for the appellant has submitted that the
judgment of conviction and order of sentence of the learned trial court is
contrary to law and against the facts and circumstances of the case. He
submitted that the learned trial court has passed his judgement not on
Judicial appreciation of evidence on record but on his own unwarranted
surmises, conjectures and suspicions. He further submitted that the learned
Court below has failed to apply his judicial mind and the defence of the
appellant has not properly been considered.
6. The learned counsel then submitted that the learned court below has
not considered properly that there is an inordinate delay in lodging the
first information report, i.e. after seven months. He has further submitted
that the learned trial court has failed to consider the material evidence
available on record, where the victim had admitted in her fardbeyan as
well as in her statement recorded under section 164 Cr.P.C., before the
learned court during trial that she was in love with the appellant and
victim is a consenting party. He has further submitted that she has
continuously changed her version regarding since beginning of her
relationship with appellant.
7. The learned counsel also submitted that the then clause-6 of section 375 of
the Indian Penal Code says that below the age of 16 years, consent or no
consent is irrelevant but the above 16 years of a girl, when the consent of
3 Cr. Appeal (SJ). 945 of 2006
girl is there, it cannot came within the purview of rape. He then submitted
that the learned trial court should have hold that the prosecution has
miserably failed to prove the charges against the appellant beyond all
reasonable doubt and the order impugned is liable to set-aside, as the
offences under section 376 and 316 I.P.C. are not made out against the
appellant and the finding of trial court is manifestly wrong.
8. The learned counsel also submitted that the learned trial court has
completely erred in holding this view that her age (Informant P.W.3) is not
written in the fardbeyan, neither any date of occurrence is noted and
further how police got the information and reached to the house of
informant has not been brought on record. Learned counsel for the
appellant has further submitted that fardbeyan Ext.-1 shows that it was
recorded at about 1 P.M. at the residence of the prosecutrix. PW-8 (I.O.)
has also stated that he has not disclosed the time of recording the
fardbeyan but the doctor (PW-5) says that on the same day at about 1 P.M.
she had examined victim (PW-3) in Chas Referal Hospital and the
fardbeyan Ext.1/1 shows that it was recorded at about 13:00 hours i.e. 1
P.M. These discrepancies and contradictions regarding recording statement
of the prosecutrix does not inspire confidence in her deposition nor in the
deposition of I.O. (PW-8) of the case, and hence the judgment is not
sustainable in the eye of law and therefore the impugned judgment of
conviction and order of sentence is fit to be set aside.
Arguments advanced on behalf of the State:
9. On the other hand, the learned APP appearing on behalf of the State
opposed the contention raised on behalf of the appellant and contended that
it is a case of establishing physical relationship under the false promise of
marriage and the prosecutrix/victim has been constant in her statement right
from the FIR then her statement was recorded under section 164 of the
Code of Criminal Procedure and therefore the learned trial court has rightly
after appreciating the version of the victim found the appellant guilty for
the offences punishable under section 376 and 316 of the Indian Penal
Code. It has also been pointed out that there is clear-cut evidence in the
deposition of the victim that the victim was administered injection and
thereafter the death of quick unborn child took place within the meaning of
section 316 of the IPC and therefore there is no legal evidence to interfere
in the impugned judgment of conviction and order of sentence and this
appeal is fit to be dismissed being devoid of merit.
4 Cr. Appeal (SJ). 945 of 2006
Appraisal & Findings
10. Having heard the learned counsel for the parties, perused the records
including the Trial court record and other materials available on the record.
11. In order to prove its case, the prosecution has been able to examine
altogether 10 witnesses which are as under:
I. PW-1 is Anish Kumar Singh;
II. PW-2 is Sunil Kumar;
III. PW-3 is prosecutrix/victim;
IV. PW-4 is Shyamlal Singh;
V. PW-5 is Dr. Deepali Dey;
VI. PW -6 is Santosh Kumar Singh;
VII. PW -7 is Dr. Meena Sinha;
VIII. PW-8 is Nagendra Kumar Mishra (I.O.);
IX. PW-9 is Dr. Sailesh Kumar Sinha;
X. PW-10 is Dr. Mala Sahay.
12. The documents exhibited on behalf of prosecution are
I. Ext.1 signature of victim on fard beyan,
II. Ext.1/1 fardbeyan,
III. Ext.1/2 forwarding on the fardbeyan
IV. Ext. 2 is signature of victim on statement recorded u/s.
164 Cr.P.C,
V. Ext.3 is injury report,
VI. Ext.4 is medical report,
VII. Ext.5 requisition to the medical officer,
VIII. Ext.6 pathological report,
IX. Ext.7 ultra sound plate,
X. Ext.7/1 ultra sound report.
In defence neither any witness was examined nor any
document was filed.
13. PW1- Anish Kumar Singh examined on behalf of the prosecution
has supported the case of the prosecution to the extent that the appellant had
been visiting to the house of the victim but she could not state about their
relationship. It substantiates the fact that the appellant and victim were fully
known to each other.
14. PW2- Sunil Kumar has been declared hostile.
15. PW3- is the victim and she stated in para-3 that the leg of her father
was fractured and the appellant who had been visiting in her house was
5 Cr. Appeal (SJ). 945 of 2006
taking care of the entire affairs of her house including ration and further he
was also taking care of the treatment of her father. She further stated that
she was under the impression that the appellant was her well wisher and
both had started physical relationship as the appellant used to tell her that
he would marry with her. She stated that the first time the physical
relationship with the appellant was established in the year 2004.
Further the victim PW-3 had stated that when she became
pregnant of seven months, then the appellant forcibly took her to hospital
and injected a tablet and the abortion took place, by which the birth of the
child could not take place and died in the womb.
In the cross examination in para 10, she stated that she was in
love with the appellant and she had supported this fact in her statement,
which was recorded under section 164 of the Cr.P.C., where she had stated
that the appellant had administered one tablet and thereafter she was totally
under the control of the appellant and she had lost her sense to behave of
her own, rather she was totally hypnotized by the appellant.
She categorically stated in para-14 that during the seven
months of her relationship, a number of times the physical relationship was
established with the appellant. In Para-15, she has stated that her father did
not know about her relationship with the appellant-Gopal Singh nor she had
stated about her relationship with appellant either to her brother- PW-6
Santosh Kumar Singh or to her father PW4.
From the statements of the victim vide Para-15 and para-16, it
further appeared that the victim PW-3 never disclosed either to her father or
to her brother that she had been in the physical relationship with the
appellant and she wanted to marry with him.
She further stated in Para-17 that neither any friend of the
appellant nor the father of the appellant had ever come to know about their
physical relationship, nor she had ever told either to the father of the
appellant that she was having physical relationship with the appellant and
therefore the marriage could be solemnized with him.
Further in the cross-examination the defence taken on behalf of
the appellant is that she was a major woman and she was having physical
relationship with the appellant voluntarily and willingly and the allegation
that the appellant had forcibly taken her to hospital and get her aborted was
totally false because she was also having relationship with one Sukhdev
Singh, who was the owner of the poultry farm.
6 Cr. Appeal (SJ). 945 of 2006
Further, the appellant has also taken the defence that she was a
major woman having 20 years of age and having taken into consideration
the testimonies of victim PW3 in totality including the examination in chief
and the cross examination, it appears that admittedly the appellant had been
in the good relationship with the victim and the appellant was running the
entire domestic affairs and also the treatment of the father of the victim
when the leg of the father of the victim was fractured and the appellant was
bearing all the expenses of the treatment in the hospital of the father of the
victim. It is also clear that she never disclosed about her relationship either
to her father or to father of the appellant or to her brother. It is also clear
from her deposition that the father of the victim was also having good
relationship with the appellant.
It has also come in her evidence that she was in love with the
appellant. From the version of the statement of the victim thus it is well-
founded that there was no promise of marriage under which the first time
the physical relationship was established, rather it was love with the
appellant and the victim and then the physical relationship established for
the several times.
16. PW4 Shyamlal Singh is the father of the victim. This witness has
admitted the fact that the appellant had taken him to the hospital when his
leg was fractured. This witness PW-4 being the father of the victim had
categorically stated in Para 8 that he did not know earlier about the
relationship of the appellant and her daughter.
He had also stated that her daughter had never stated about her
relationship with the appellant. It has also been admitted by this witness
that the appellant was belonging to his community and he was the nephew
of his Samdhi. From Para-10 of this witness, it is crystal clear that the
relationship between the appellant and the victim was not under the promise
of marriage because of the fact that there had never been any negotiation or
talk about the marriage of the victim with the appellant in a very categorical
manner as stated by this witness PW4 (father of victim):
"Para-10 Gopal se shadi ki bat pahle
kabhi nhi hui thi. Main kabhi shadi karne
ke liye dabab nhi diya."
From the version of this witness, it is well-founded that this is
not a case where the appellant had been establishing the physical
relationship with the victim under the false promise of marriage.
7 Cr. Appeal (SJ). 945 of 2006
17. In this case, four doctors have been examined namely PW-5,
Dr. Deepali Dey, PW-7-Dr. Meena Sinha, PW-9-Dr. Shailesh Kumar
Sinha and PW-10 Dr. Mrs. Mala Sahay. From the perusal of the
depositions of these four doctors, it is found that they have been examined
on behalf of the prosecution on the two points, namely, (i) the age of the
victim-PW-3, and (ii) the forceful abortion of the victim, causing 'death of
a quick unborn child'.
So far as the age of the victim is concerned, PW-5, Dr. Deepali
Dey categorically stated in her opinion that the age of the victim was
between 16 ½ and 17 ½ years and on the point of forceful abortion, leading
to quick unborn child, it is found from the depositions of the three another
doctors namely PW-7-Dr. Meena Sinha, PW-9-Dr. Shailesh Kumar Sinha
and PW-10 Dr. Mrs. Mala Sahay that the victim had consumed some
medicine outside the hospital and thereafter she was taken to the hospital
where the abortion took place leading to the quick unborn child.
Thus, from the above version it is found that the victim was
above 16 years of age and secondly some medicine was taken by the
victim, by which the abortion leading to the quick unborn child took place.
18. Another witness examined on behalf of the prosecution, PW-6
Santosh Kumar Singh who was the brother of the victim and from the
deposition of this witness, it is found that the relationship of the victim and
the appellant was not within the knowledge of this witness and this witness
never came to know from his sister PW-3 that the appellant was having
relationship with her under the pretext of marriage.
Para-9 of the deposition of this witness PW-6 categorically
stated that the victim never told her that she wanted to marry with the
appellant. This witness has further stated that his father PW-4 also never
stated to him that the victim wanted to marry with the appellant. This
witness also stated that he had never seen that the appellant was having any
illicit or wrong relationship with her sister (victim-PW3). He has further
stated in para-8 of his deposition that म कभी कोई आपि जनक बात करते नह
सुना, बहन कभी नह बतलाई क गोपाल आता है तो खराब बात बोलता है I
From the version of this witness, it is crystal clear that this
witness is the full brother of the victim and he had never come to know
about the fact that the appellant was having physical relationship with her
sister (victim) under the false pretext of marriage forcibly or under
pressure. From para-5, it is also clear that this witness being the brother of
8 Cr. Appeal (SJ). 945 of 2006
the victim had never come to know that there had been any physical
relationship between the appellant and her sister. From para-9, it is also
clear that the victim being the sister of this witness never told him about her
sexual physical relationship with the appellant under the pretext of
marriage, nor she ever told to her brother, about her marriage to be
solemnized with the appellant, who was having physical relationship with
her under the promise of marriage. Neither the father of this witness had
ever told to this witness about the fact that the victim wanted to marry with
the appellant.
19. P.W-8 Nagendra Kumar Mishra is the I.O. of this case who after
conducting the investigation had submitted the charge-sheet for the offence
punishable under Section 376 and 316 of the IPC. This witness has proved
the fardbeyan, which has been marked as exhibit-1/1 and the endorsement
which has been marked as exhibit 1/2. This witness categorically stated that
no DNA test was conducted in order to ascertain as to whether the quick
unborn child which took place after abortion was the child of the appellant
or not.
20. In this view of the matter, the prosecution appears to have failed in
substantiating the charges levelled against the appellant under Section 316
of the IPC, because the defence of the appellant is that the child, which is
said to have died before taking birth (death of a quick unborn child) was not
from the appellant rather from one Sukhdeo Singh, who was the owner of
the poultry farm and a reasonable doubt is created in the charges levelled
against the appellant.
21. Recapitulating the appraisal of the evidences adduced on behalf of
the prosecution in the foregoing paragraph, this court comes to a finding
that it is admitted case of the prosecution that both the appellant and the
victim were in physical relationship prior to seven months from the date of
instituting the FIR. This FIR was instituted when the abortion took place
after seven months. This court also comes to a finding that the victim-PW-3
was a woman aged about 17 years, which is evident from the statement of
the victim recorded under Section 164 of the CrPC, that is exhibit-2, where
the Court had estimated the age of the victim as 17 years and the victim
herself stated her age as 17 years, in her deposition also. Further from the
depositions of PW-5, Dr. Deepali Dey has stated that the age of the victim
was between 16 ½ - 17 ½ years although no radiological report has been
marked as exhibit nor any medical board has been constituted to determine
9 Cr. Appeal (SJ). 945 of 2006
the age of the victim but despite that if the observation of PW5- Dr. Deepali
Dey is taken into account then her age is found between 16 ½ and
17 ½ years.
22. In the FIR, it is stated that the appellant had been in the physical
relationship with the victim since last 7 months and thus even at the first
day of establishing physical relationship the age of the victim was above
16 years and thus, she was not a minor in order to constitute the offence of
rape as it was consensual physical relationship, if any, as enshrined under
the then Section 375 clause (6) of the IPC (on the date of occurrence) which
reads as under:
"375. Rape.--A man is said to commit "rape" who, except in the case
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:-
..............................................................
Sixthly.- With or without her consent, when she is under
sixteen years of age."
23. Here it is admitted case that she had been establishing physical
relationship willingly and voluntarily and she was above 16 years of age. It
has also been founded that it was not a case of establishing physical
relationship under promise of marriage because she never told this fact
either to her father (PW4) or to her brother PW6 about her sexual physical
relationship with appellant under promise of marriage.
24. The learned defence counsel has also relied upon the rulings of the
Hon'ble Supreme Court in the case of "Jaya Mala v. Home Secretary,
Government of Jammu & Kashmir & Ors." reported in (1982) 2 SCC 538
whereunder the circumstances of this case it has been held with respect to
consider the age of the victim as under:
"9. Detenu was arrested and detained on October 18, 1981. The
report by the expert is dated May 3, 1982, that is nearly seven
months after the date of detention; Growing in age day by day is an
involuntary process and the anatomical changes in the structure of
the body continuously occur. Even on normal calculation, if seven
months are deducted from the approximate age opined by the
expert in October, 1981 detenu was around 17 years of age,
consequently the statement made in the petition turns out to be
wholly true. However, it is notorious and one can take judicial
notice that the margin of error in age ascertained by radiological
examination is two years on either side. Undoubtedly, therefore, the
10 Cr. Appeal (SJ). 945 of 2006
detenu was a young school going boy. It equally appears that there
was some upheaval in the educational institutions. This, young
school going boy may be enthusiastic about the students' rights and
on two different dates he marginally crossed the bounds of law. It
passes comprehension to believe that he can be visited with drastic
measure of preventive detention. One cannot treat young people,
may be immature, may be even slightly misdirected, may be a little
more enthusiastic, with a sledge hammer. In our opinion, in the
facts and circumstances of this case the detention order was wholly
unwarranted and deserved to be quashed".
In view of the aforesaid fact, it is found that the victim PW3
was woman aged above 16 years in order to attract clause sixthly of the
then Section 375 of IPC (on the date of occurrence).
25. It is further well-founded that it was not a case of promise of
marriage in view of established fact that PW3 never disclosed such charges
of her physical relationship under the promise of marriage with appellant
either to her brother or to her father or to the father of the appellant. The
father of the victim PW4, the brother of the victim PW6 and father of
appellant came to know the incident when she had become pregnant and
abortion took place.
26. The concealment of the fact by PW-3 that she was having physical
relationship under the promise of marriage from her father and brother
speaks a volume against the truthfulness and veracity of charges levelled
against the appellant. In this view of the matter, the defence taken on behalf
of the appellant cannot be ruled out.
27. The learned trial court did not consider all these aforesaid facts while
appreciating the deposition of the witnesses examined on behalf of the
prosecution particularly PW3 (Victim) PW-4-father of the victim and PW-6
brother of the victim.
28. Further it is also found from the statement of the victim recorded
under section 164 of the CrPC that after administering one tablet by the
appellant she was totally under the control of the appellant as has been
11 Cr. Appeal (SJ). 945 of 2006
hypnotized by appellant but this fact has not been disclosed in the
fardbeyan and a quite different story has been narrated by her in her
statement recorded under section 164 of the CrPC and therefore the
statement of the victim does not inspire confidence to hold the guilt of the
appellant for the offence punishable under Sections 376 and 316 of the IPC
and the learned trial court has committed gross error in the appreciation of
the evidences adduced on behalf of the prosecution in totality and passed
the impugned judgment of conviction dated 17.05.2006 and order of
sentence dated 18.05.2006 in S.T. No. 265 of 2004 without proper
application of judicial mind.
29. In the result, the Judgment of Conviction dated 17.05.2006 and Order
of Sentence dated 18.05.2006 passed by the learned Additional Session
Judge, Fast Track court-IInd, Bokaro in S.T. No. 265 of 2004, in G.R. Case
No. 496 of 2004 arising out of B.S. City (Sector-XII) P.S. Case No. 123/04
against the appellant is hereby quashed and set aside.
30. Since the appellant is in jail, he is directed to be released forthwith if
not warranted in any other case.
31. This appeal is allowed and the appellant is acquitted from the charges
levelled against him.
32. Let the Trial Court Record be sent back forthwith to the concerned
court with a copy of this judgement to do the needful at the earliest.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 03.03.2025/NAFR
RKM/-
