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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.B.) No. 37 of 2010
(Against the judgment of conviction dated 20 th September, 2008 and order of sentence
dated 23rd September, 2008 passed by the 1st Additional Sessions Judge, West
Singhbhum, Chaibasa in connection with Sessions Trial No. 137 of 2007 arising out of
Manjhari P.S. Case no. 08 of 2007, G.R. no. 126 of 2007.
Arjun Sawaiya S/o Late Jaklu Sawaiya, R/o villagePurnia, P.O. and P.S. Manjhari,
Dist. Singhbhum West (Chaibasa) …… Appellant
-Versus-
The State of Jharkhand …… Respondent
——
CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA
——
For the Appellant : Mr. Suraj Kumar, Advocate
For the Respondent : Mrs. Vandana Bharti,A.P.P.
C.A.V. On: 21.07.2017 Delivered on: 05.01.2018
RATNAKER BHENGRA,J
This Criminal Appeal has been preferred against the judgment
of conviction and order of sentence dated 20.09.2008 and 23.09.2008
respectively passed by 1st Additional Sessions Judge, West Singhbhum,
Chaibasa in Sessions Trial No. 137 of 2007 whereby and whereunder
appellant was convicted u/s 376 IPC and sentenced to undergo R.I. for
seven years and to pay a fine of Rs. 10,000/ and in default of it to
undergo simple imprisonment of six months. The amount of fine realized
was to be paid to the victim as compensation.
2. The case of the prosecution case as per fardbeyan (Ext.3) of
the prosecutrix, P.W.6 (name concealed) is that on 07.3.2007 at about
5:30 p.m. while she was uprooting linseed (Tissi) crop in her field then her
covillager Arjun Sawaiya came to her and seeing her alone caught hold of
her and forcibly dragged her to the field of Kiti Purty, just two fields South
to her field and laid her down there and after removing her clothes,
forcibly raped her and threatened her that if she disclosed the said incident
to any one in the house and village, she would be killed. Thereafter, he
fled away from there. She came weeping to her house and narrated about
the occurrence to her parents. Thereafter, her father informed the village
Munda and other villagers about the occurrence and then the village
Munda informed the Tant Nagar O.P. Police Station through a man.
Thereafter, police officer of Tant Nagar O.P. came to the village and
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recorded her fardbeyan.
3. On the basis of her fardbeyan (Ext.3) containing the aforesaid
allegations, a case was registered as Manjhari P.S. Case no. 08 of 2007.
After completion of investigation, a charge sheet was submitted against the
accused person and after taking cognizance, the case was committed to
the court of Sessions for its trial. Charges was framed against the accused
under Section 376 (2) (f) of the Indian Penal Code (I.P.C.)
4. In examination u/s 313 Cr.P.C. , the accused person denied the
allegations. The version of the accused was that no occurrence as alleged
ever took place. He said that there was a dispute with the father of the
prosecutrix and therefore he has been falsely implicated in the case.
5. The prosecution examined altogether fourteen witnesses and
on the conclusion of the trial the learned trial court convicted and
sentenced the appellant as aforesaid. Hence, this appeal.
6. P.W.6 is the prosecutrix of the case. She deposed that in the
month of March, 2007, Wednesday at about 5:30 p.m. she was uprooting
linseed (Tissi) in her field. At that time, Arjun Sawaiya came and took her
to the field of Kiti Purty by dragging her and laid her down and removing
her clothes forcibly raped her. He fled away and threatened to kill her. She,
thereafter informed her parents, and subsequently, her father informed the
village Munda about the occurrence and the village Munda in turn
informed the police. Police came and recorded her statement. She was sent
for medical examination on 9th March, 2007, and was medically examined
by the lady Doctor. In her crossexamination she stated that she visited her
field at 2:30 p.m. At that time her parents were not in the house. Her field
is situated at a distance of about 1 k.m. from her house and 15 to 20
minutes is consumed in visiting the field from her house. She had gone
alone to the field from her house. The said linseed field was besides the
fields of others. No one was uprooting linseed crop in the fields situated on
either side of her field. The persons who were working in their respective
fields situated on either side of her field, left the fields prior to the
occurrence, i.e. at about 4 p.m. In crossexamination, she further said that
it was not dark at the time of occurrence. Accused was known to her prior
to the occurrence. The house of accused is situated at a distance of about
500 yards from her house. In para 10, she stated that Arjun Sawaiya has
two wives and many children but she did not see them. His one child was
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studying in High School. In para 11 she said that prior to the occurrence,
accused Arjun was eating khesari in the down field. That field is situated at
a distance of about 3040 yards from her linseed field. 10 to 15 minutes
prior to the occurrence, she saw him eating khesari in a field but she did
not know to whom said field belonged to. At para 12 she deposed that she
was going to her house by carrying the bundle of linseed crop. Arjun
caught hold of her from the front side. She shouted but there was no one
there. She did not sustain injury on her person. At para 13 she said that
Arjun dragged her about 15 feet by holding her leg. She did not injure the
accused for her defence. Accused raped her for ten minutes. She did not
become unconscious. She felt pain. She walked back to her house
immediately from the place of occurrence. Police seized her clothes in
which there was no stain of semen or blood. She reached her house
wearing clothes at 6:05 p.m. One girl named Suru who is of her age had
also gone for nature’s call, and she accompanied the prosecutrix to her
house. When she reached her house, at that time, her mother was in the
house. She called her father by informing him. Police interrogated her
twice. Police came on the same day in the night.
7. P.W.7 is Lalmati Devi mother of the victim, and PW8 father of
the victim, Yugeshwar Gope have deposed that the victim being their
daughter aged about 13 years old was forcibly raped by the accused on
7.3.2007
(Wednesday) at 5:30 p.m. when she had gone to her field for
uprooting linseed crop and after occurrence, she came to her house and
narrated about the occurrence to her mother and thereafter, her mother
gave the information to her father about the occurrence.
8. PW1 Purn Chand Sawaiya the village Munda deposed that on
7.3.2007 the father of victim, informed him that Arjun Sawaiya raped his
daughter. On hearing the said news, he went to the house of victim and
inquired from her who told him that about 5:30 p.m. Arjun Sawaiya
dragged her to the field, just two fields south to her field and removed her
clothes and raped her. The said statement was narrated by victim while
weeping and she further said that she was threatened that she would be
killed if she disclosed the said facts to any one. Villagers assembled there,
thereafter, he informed the Tant Nagar O.P. police by sending one Ramesh
Kumar Gope. After receiving information, police came and recorded the
Fardbeyan of victim and he also put his signature on the Fardbeyan of the
victim which is marked as Ext.1. Police also seized her clothes of Katha
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colour (Maroon) and prepared seizure list on which he put his signature
which is marked as Ext.2.
9. P.W.13 is Dr. Niru Jha who deposed that by the order of Civil
Surgeon, a medical board was constituted in which along with her, Dr.
Usha Rani Agarwal was there both of them examined the victim girl and
gave their opinion that the age of victim girl was 14 to 15 years at the time
of occurrence and sexual intercourse took place. No foreign hair was found
on the private part of the body. This medical report was written by Dr.
Usha Rani Agarwal and she put her signature upon it. The medical report
was marked as Ext. 7.
10. P.W. 14 is Dr. Usha Rani Agarwal. She deposed that by the order of
civil Surgeon a medical broad was constituted comprising her and Dr. Niru
Jha. They examined the victim and on examination of victim girl she found
that no spermatozoa was present either dead or alive. She opined that
Sexual intercourse took place, victim is aged about 14 to 15 years and no
foreign hair found on private part of the body.
11. P.W.9 Nirmal Kumar Jha was the Incharge of Tant Nagar O.P. He
deposed that on 7.3.2007, village Munda, Purn Chand Sawaiya sent a
person to the out post police and then he visited Purnia village and
recorded the fardbeyan of the victim at 8 p.m. In para 5 he deposed that
on 7.3.2007 at about 7 p.m. one person came from village ,he does not
remember his name and he left the police station at about 7.15 p.m.
12. P.W.11 Ramesh Kumar Gope is covillager. He deposed that the
incident is of 7.3.2007 at about 5:30 p.m. and at that time he was in his
house. Then victim’s father called him and he had also called Munda Jee.
Victim’s father told him that Arjun Sawaiya had raped his daughter in the
Tisi field. The Munda was also present when the narration about rape was
made. When he asked the victim then she informed that it is true that
Arjun Sawaiya had raped her. They informed the police and then Police
Officer came.
The police had seized one underwear and made a seizure list. He
had signed on the seizure list and he proved his signature on the seizure
list which is exhibit 2/a.
13. PW12 is Muneshwar Prasad, the Investigating Officer of the case.
He has deposed that on 7.3.2007 he was posted at Tant Nagar O.P.
According to the direction of the then officer in charge Sri. Nirmal Kumar
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Jha, he took over the investigation of Manjhari P.S. Case No. 0008 of 2007.
He had taken the statement of the prosecutrix and other witnesses. On the
next day he sent the victim for medical examination to the Sadar Hospital,
Chaibasa. While sending the victim for medical examination, the
requisition slip was made in his handwriting and bears his signature. The
requisition is exhibited as Ext.5. As told by the prosecutrix he inspected
the place of occurrence. He further deposed that in the place of occurrence
in a radius of 4 x 4 feet the grass was in a disturbed and pressed state from
which it appears that the place had been stamped and pressed upon by the
feet and body of some man. On sitting at this place nothing can be seen
from outside. He further deposed that the accused had brought her to this
place and forcibly raped her. In paragraph no.4 he said that the place of
occurrence is quite and desolate place and about 1 k.m. North East the
Banasanju village is located. In paragraph no. 5 he deposed that he had
taken the statements of Lalmati Devi, Yogeshwar Gope, Purnachandra
Sawaiya, Jagdish Gope, Bare Jal Sewaiya, Ramesh Gope, Surya Kumar
Gope, Bhjudan Gope, Sidheshwar Sewaiya. In paragraph no. 7 he said that
he recognized the signature of Purchandra Sewaiya and Ramesh Chandra
Gope on the seizure list which is marked as Ext.6. In the cross
examination, he said that in the night of 7.3.2007 he was given the
responsibility of the investigation. On that day he had stayed for about one
and half hour at the house of the prosecutrix. He had taken the statements
of witnesses at 8 p.m. on 7.3.2007 in the village of the prosecutrix. He had
taken the statements of all the witnesses in one day.
14. Learned counsel for the appellant has argued that conviction is
basically on the basis of the victim being a minor but that is not the case,
because she was an adult and that has been determined by ossification
report wherein it has been said that she was about 14 to 15 years. He
submitted that if a margin of two years is made she would have been 17
years or so and plus and hence, the victim would be an adult and the sex
was between two consenting adult and therefore, the allegation of rape
cannot be made out. He has also argued that it has been alleged that the
rape was committed in broad open space and broad day light. In such
situation in broad open day light, in villages, people are normally working
in the fields and many persons would have been in the area or in the
agricultural fields and so the allegations are simply not believable. The
house of the appellant and the house of the prosecutrix are adjacent to
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each other and they are very much known to each other and familiar to
each other and on this ground also the allegation would be totally false.
Learned counsel for the appellant has also argued about the distance
and time. He has tried to argue that the agricultural field is about 1 k.m.
from the residence of victim girl and for her to return back after 5:30 p.m.
which is the time mostly indicated, to the house and then to inform her
parents or her father, and the same to be further informed to the Munda
and then the Munda again came to her house and inquired and
subsequently the Munda sent a person to the police station which was
again at a certain distance and the police again left for the place at 7:15
p.m. and reached at the place of occurrence and took the statements of
the prosecutrix and other witnesses within a very short span of time is
unbelievable. The compressed time and distance that are involved, while
coming and going raises the doubt whether the occurrence took place or
it is a concoction. He has also pointed out that that PW3 deposed that the
police took statements at 4 p.m. in the evening. Counsel argued that this is
not possible because incident is reportedly of 5:30 p.m., and therefore this
is a major inconsistency on this point. Learned counsel has referred to the
evidence of PW13 and 14 who are Dr. Niru Jha and Dr. Usha Rani Agarwal
and read out the deposition and said that there is no mark of violence on
the victim and no spermatozoa was present and therefore, rape is not
made out by the medical evidence. The Xray was done in a private Xray
clinic and neither the report of the same was produced and nor the name
of the said Xray clinic was mentioned and therefore, the age of the
prosecutrix cannot be said to be that of a minor.
Learned counsel for the appellant has also relied upon the judgments
reported in AIR 1998 SCC 2694 Kuldeep K.Mahto Vs. State of Bihar
and 1999 Cr. L.J. 4482 Sudhamay Nath @ Bachhu Vs. State of West
Bengal. He has also relied upon the judgment of Mukarrab Vs. State of
U.P, (2017)2 SCC 210. On the basis of these cases he has tried to show,
particularly in the first case i.e. Kuldeep K.Mahto (supra) that when
medical evidence has not proved rape then conviction could not be
sustained. In the second case Sudhamay Nath @ Bachhu (supra) he has
argued that in that case also prosecutrix was above the age of sixteen and
knew the nature of the sexual intercourse and therefore, the allegation of
rape should not be sustained. Finally from the case of Mukarrab (supra)
he has submitted that as per ossification report her age would have been
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that of an adult therefore, the issue of minor does not arise and sex was
between two consenting adults. Therefore, the allegation of rape has no leg
to stand.
15. On the other hand, learned A.P.P. has said that the consent is
immaterial if the girl is minor and it has been stated by the doctor as well
as by the witnesses that she was minor hence, there is no issue of consent
and as such the rape is thoroughly made out. Even otherwise she has said
that the prosecutrix categorically said that she was raped and that too in a
place that was quite and secluded and people from the surrounding areas
were not able to see the occurrence particularly when anybody was lying
down within. So in this situation the defence of consent is not available to
him. She submitted that the appellant has not raised the issue of consent in
his statement u/s 313 Cr.P.C. She said that prosecutrix or victim
consistently informed P.W. 1,3,4, 7 and 8 that rape was committed upon
her by the appellant. Regarding the absence of injury, counsel for the
State has said that there is no mark of injury because the victim was
scared due to threat made by the appellant and so appellant was able to
carry out his evil intent without violent opposition from the victim and
therefore, no injury marks were available. Moreover, the place of
occurrence was a filed and not on bare ground and rocky surface and
therefore, no marks were on the body. Learned counsel for the State also
said that it has come in the evidence of the I.O. that the place where the
rape had taken place, had been trampled upon by the feet and body of a
human. Finally she referred to the judgments cited by the appellant and
said that consent is not an issue here because the rape was committed in a
secluded place with threat so it was sexual intercourse which amounts to
rape. She further submitted that the judgment cited for ossification test has
to be seen with all other evidences taken together and therefore, offence of
rape is totally made out and therefore judgment of conviction and sentence
passed by learned court below requires no interference.
FINDINGS:
16. Having heard both counsels and having gone through the records of
the case and evidences available, in the facts and circumstances of the case
following is concluded:
1) The victim or prosecutrix is reportedly of tender years, from 14
to 15 years and she categorically asserted that she was raped in the
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agricultural field. She consistently alleged the same when she informed to
P.W.1, P.W.3, P.W.4, P.W.7, P.W.8, P.W.11 and P.W.12 and it is well
established that an allegation by a prosecutrix who alleged rape, is reliable
or is to be believed if there is consistency in her deposition. In the case of
Sudhamay Nath @ Bachhu (Supra) prosecution failed to prove that the
girl was below 16 years of age at that relevant time.
2) Moreover, the doctor PW13 and PW14 have both deposed she
was raped. The I.O., PW12 investigated the place of occurrence and said
that the location on the field seems to have been trampled upon or
suppressed by a person, and if rape was committed then the bodies of the
person in question would have done the same.
3) Regarding the age aspect, both the doctors including the father
and mother of the prosecutrix have claimed that at the time of incident she
was 13 years or around 1415 years of age. Appellant counsel has cited the
judgment Mukarrab (supra) and said ossification test would indicate she
was above 16 years of age as per old law and since both were known to
each other, it was a case of consensual sex. This line of argument would
mean as it is argued by the counsel is that if two years is added, she would
be 16 years and adding one more year, she would be 17 years and, hence,
as per old law she was a major and, therefore, no case of rape is made out.
In the aforesaid judgment at para 28 an article has been quoted which
reads as under:
“28….There are various criteria for age determination of an
individual , of which eruption of teeth and ossification activities of bones are
important. Nevertheless age can usually be assessed more accurately in
younger age group by dentition ad ossification alongwith epiphyseal fusion.”
A careful examination of teeth and ossification of wrist joint provide
valuable data for age estimation in children.”
In para 29 of the judgment it has been observed that:
“29….Therefore, the age determination based on ossification test
though may be useful is not conclusive. An Xray ossification test can by no
means be so infallible and accurate a test as to indicate the correct number of
years and days of a person’s life.”
4) Viewing the aforesaid it seems ossification test also may not be
conclusive, moreover prosecution witnesses P.W. 7, PW8,PW13 and PW14
have said she was 13 years or 14 15 years of age , and even if she was 16
years and above, this is a case of forcible sex and not of consent.
5) Even, otherwise, victim has consistently said it was a case of
forcible rape. No witness has said anything about the two being in
intimate relationship. The evidence that the place of occurrence was
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suppressed in a small diameter in the field also leads to the conclusion
that rape was committed. It was also a very secluded place and not visible
to others when one lay or sat down. So based on all the aforesaid reasons, I
am unable to a acquit the appellant of his crime.
17. Accordingly, the judgment of conviction and order of sentence dated
20.9.2008 and 23.9.2008 passed by the learned court below in Sessions
Trial Case No. 137 of 2007 is therefore upheld and requires no
interference. The bail bond of the appellant is hereby cancelled and the
learned concerned or successor court is directed to issue process to serve
out the remaining sentence.
18. This criminal appeal is accordingly dismissed.
(RATNAKER BHENGRA,J)
Jharkhand High Court,Ranchi
dated: 05.01.2018(Nibha)/NAFR
