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Additional Sessions Judge vs The State Of Jharkhand on 14 December, 2018

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

Criminal Appeal (S.J.) No. 395 of 2003

(Against the judgment of conviction and order of sentence dated
23.01.2003, passed in S.T. No. 639 of 1993 by the learned
Additional Sessions Judge, Fast Track Court-I, Chatra)

Nanhak Sao, son of Late Heman Sao, resident of village-Pitiz, Police
Station-Itkhori, District-Chatra. … Appellant

-Versus-

The State of Jharkhand …Respondent

CORAM :- HON’BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant :Mr. Sanjeev Thakur, Advocate;
Mr. Subhash Chandra Prakash, Advocate.
For the State :Mr. Pankaj Kumar, A.P.P.


CAV on: 12/09/2018 Pronounced on:14/12/2018
Ratnaker Bhengra, J:
1. Heard the parties.

2. Instant appeal is directed against the judgment of conviction
and order of sentence dated 23.01.2003, passed in S.T. No. 639 of
1993 by the learned Additional Sessions Judge, Fast Track Court-I,
Chatra, whereby and whereunder, the appellant has been held guilty
for offence under Section 376 of the Indian Penal Code and thereby
sentenced to undergo rigorous imprisonment for seven years under
Section 376 of the Indian Penal Code.

3. The prosecution case as per the fardbeyan of the informant/
victim PW-7 is that on 01.06.1993 at about 9:00 p.m. accused
Nanhak Sao came to her house and took the victim to his house on
the pretext that her husband had sent money for her. The victim
believing the accused went to the house of accused. The victim was
told by the accused that his wife was in the house. The victim relying
on this entered into his house. In the meantime, the accused closed
the door and dragged her on the earth. The victim was subjected to
rape at the hands of accused in spite of her resistance. The accused
committed rape for about half an hour. Victim sent information to her
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husband, who was working at Dhanbad. She could not sustain the
agony of deathless shame and an attempt was made by the victim to
commit suicide.

4. On the basis of the fardbeyan, the formal FIR was registered
under Section 376 of the Indian Penal Code. After investigation
charge sheet was submitted and cognizance was taken and the case
was committed to the Court of Sessions. Charges were framed under
Sections 376, 306/ 511 of the Indian Penal Code. Trial was held and
at the conclusion of the trial the accused or the appellant herein was
convicted and sentenced as aforesaid. Hence, this appeal.

5. Prosecution has examined altogether eleven witnesses to
support the charges. They are PW-1, Masidas Horo, who proved
formal FIR (Ext.1); PW-2, Shatrughan Prasad (Tendered); PW-3,
Bhola Prasad (Tendered); PW-4, Indra Deo Yadav, who is husband of
victim Malti Devi (Hostile); PW-5, Tekni Devi, so-called mother of
victim (Hostile); PW-6, Shakaldeo Pd. Dangi (Hostile); PW-7, Victim
and Informant; PW-8, Tekani Devi (Mother of Victim); PW-9, Badri
Bhuiyan (Tendered); PW-10, Dr. Chandra Shekhar Agarwal,
(Formal), who proved Injury Report (Ext.1); and PW-11,
Bhuvneshwar Paswan.

6. PW-7, who is the victim and informant, deposed that on the
alleged date of occurrence Nanhak Sao came to her house and
called her to his house on the pretext that her husband had sent
money for her. She believed on the message and went to the house
of accused. The accused Nanhak Sao closed the door of the house
and dragged her on the earth and accused opened her petticoat and
saree. She restrained herself and accused caught her leg and also
pressed her mouth. She further deposed that accused committed
rape with her. She further said that the accused had inserted his
penis into her private part and committed rape about half an hour.
After fully gratifying himself accused left her and opened the door.
She came to her house. She sent the information to her husband,
who was working at Dhanbad. Her husband came and she narrated
the entire story. She went to police station where her statement was
recorded and read over to her and she put her thumb impression and
her husband also put his thumb impression on the fardbeyan. She
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identified the accused present in the Court and stated that this
accused committed rape on her. She was sent to Doctor for
examination. She could not sustain the agony of rape and attempted
to commit suicide by taking poison.

7. PW-8, Tekani Devi, who is the mother of the victim. She
deposed that on the alleged date of occurrence, she was at her
daughter’s house. Nanhak Sao came and took her daughter. After
half an hour her daughter came. When her daughter came she
started crying and told her that Nanhak Sao committed rape on her.
She asked her daughter to call her husband from Dhanbad. Her
daughter sent information to Dhanbad. Later on she received
information that her daughter was serious. She again came to see
her ailing daughter. This witness also identified the accused Nanhak
Sao present in the dock.

8. PW-10, Dr. Chandra Shekhar Agarwal, proved the injury report
of victim, which is marked as Ext.1. This witness had deposed that:

Victim was examined on 11.06.1993 as unconscious
patient. She was treated on the line of insecticide poisoning.
She stayed at the hospital for five days. During the period she
regain her consciousness and was much better, but finally she
was referred to Sadar Hospital, Hazaribagh on request for
further treatment after informing the Itkhori Police Station. At
present Sri R.R. Kedia is not posted at Itkhori Hospital.

In cross this witness has deposed that, now Dr. R.R.
Kedia is suspended. I have not seen to Dr. R.R. Kedia. He had
not examined the victim nor she was referred by him for further
treatment. There is no seal of hospital on the said injury report.
Sex of injured and age has also been mentioned in the injury
report. It is wrong to say that he had wrongly proved the injury
report.

9. PW-11, Bhuvneshwar Paswan, who is constable, has proved
the fardbeyan Ext.3 and the endorsement on the fardbeyan Ext.4.

10. PW-4, Indra Deo Yadav, is non-else but the former husband of
the victim Malti Devi. He had deposed that at the alleged time of
occurrence he was at Dhanbad and his wife, the victim had died
before 3 to 4 years back. But he had admitted that the statement of
his wife victim was recorded in the hospital. Later on he was declared
hostile. PW-5 and PW-6 have also been declared hostile.

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11. PW-1, Masidas Horo is a formal witness and he proved the FIR
(Ext.1). PW-2, Shatrughan Prasad; PW-3, Bhola Prasad and PW-9,
Badri Bhuiyan were tendered.

Arguments of learned counsel for the appellant:

12. Learned counsel for the appellant at the outset argued that first
and foremost that this is the case of no witness except allegedly the
sole witness who is also said to be the victim, or PW-7. Apart from
that, her husband PW-4 Indra Deo Yadav did not corroborate her
case and has been declared hostile and so did her mother PW-5,
who was also declared hostile. Moreover, counsel says that PW-8 is
said to be another mother of the victim and therefore, the entire case
is clouded because PW-5, who had deposed earlier and said that the
victim passed away and she had deposed on 08.02.2002. PW-8, who
is Tekani Devi, who is also said to be the mother of the victim had
deposed on 11.09.2002 but she had not said that the victim had
passed away. However, in the light of the statement or deposition of
PW-5 who had earlier deposed and submitted that the victim had died
or passed away then the entire identity of the victim herself who is
PW-7 is clouded and doubted and therefore, the case against the
sole appellant should collapse on this basis alone. Counsel has also
said that it could have been necessary to establish clearly the identity
of PW-5, PW-7 and PW-8 and that seemingly has not been done
hence putting the entire trial into question.

13. Learned counsel for the appellant had said that the main case
rests on the evidence of PW-7 or the victim herself, who claims to
have been allegedly raped and he had tried to highlight some of the
weaknesses in the deposition. He has argued that she did not raise
alarm though she lived in a heavily populated area. That she had not
informed her own elder sister. He pointed out that in one instance in
para-7 of her deposition she has deposed that her gotni used to stay
in the village and that regarding the incident she had not informed her
bhaisur, gotni or children. However, then again in para-8 she says
that she had informed all her gotnis and bhaisur regarding the
incident. She had also informed her neighbours and all of them had
told her to call her husband. As per para-11 12 it can be made out
that it was a well populated area and yet she had not raised alarm.

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Referring to para-15, counsel points out that no clothes or saree was
seized and therefore, in absence of such seizure, there is no
corroboration of rape. Referring to para-26 27 of her deposition,
counsel has argued that since Nanhak Sao was helping Bhola Yadav,
who was bhaisur of the victim, in a case again the victim’s family,
therefore, the allegations of rape was made against Nanhak Sao. He
also argued while referring to para-33 that there is some doubt
regarding the chastity of the woman concerned and therefore, the
allegation of rape is also fully possible as a false and concocted case.

14. Referring to the evidence of PW-8, Tekani Devi, counsel
pointed out that she had deposed on 11.09.2002 and she is also said
to be the mother of the victim and in fact, in 1st paragraph in the 1st
line she had deposed that the victim is her daughter. However, in the
light of the deposition of PW-5, who is also reportedly her mother,
then whether evidence of PW-8, can be taken into consideration by
the Court is to be decided by this Hon’ble Court currently. Counsel
says that there is no attempt made to establish the identity of PW-8
as the mother of the alleged victim, and only after doing this her
deposition could be taken and conceded.

15. Referring to the evidence of PW-10, Dr. Chandra Shekhar
Agarwal, counsel pointed out that this witness in para-3 had deposed
that he had not examined the victim and she was not referred by him
for further treatment. Counsel therefore says that this Doctor had at
least not examined the victim, therefore, his evidence is of not much
use. Counsel also pointed out from para-4 that it is indicated that
there was no seal of the hospital on the said injury report and
therefore, the report is also doubtful.

16. Learned counsel for the appellant has further argued that first
and foremost it is to be seen that the FIR itself was delayed and this
was only done so that a case could be made out or manufactured
against the accused. Counsel says that he had already referred to a
dispute between the victim’s family with that of her bhaisur, and this
bhaisur was being assisted by Nanhak Sao in the matter and
therefore, this case has been manufactured against this accused or
this appellant.

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17. Learned counsel also argued that this is a case in which the
only eye witness evidence is the sole victim. Moreover, counsel also
stated that from her evidence it is clear that she is a highly unreliable
witness because it is not possible that she was living in a highly
populated area where allegedly incident of rape took place but
nobody came to know about the crime of rape and she had not also
raised any alarm even otherwise. It is revealed that she had not even
informed her own elder sister, which is very much doubtful because
after heinous crime of rape at least the immediate family members
are informed regarding the same. It is also deposed in one instance
that she had not informed her bhaisur or her gotnis and in the next
instance she says that she had informed them. So this is a very
confusing evidence to say the least and it is totally unreliable and
untrustworthy for assisting in convicting the appellant.

18. Learned counsel for the appellant also argued that there is no
medical evidence regarding the rape. In absence of such medical
evidence or corroborating rape, the conviction for rape cannot be
sustained against the appellant. Counsel also argued that the Doctor,
who had been examined as PW-10 or Dr. Chandra Shekhar Agarwal
is not the actual Doctor, who had examined her, and therefore
because of non-examination of the actual Doctor, who had examined
her, the evidence of PW-10 is also not worthy of consideration. This
Doctor or PW-10 in para-3 4 indicated that he had not examined
the victim and there was no seal on the injury report. Counsel also
says that even poisoning had not been proved.

19. Learned counsel for the appellant then referred to the evidence
of PW-4 and PW-5 and argued that though they have been declared
hostile, however, their evidences cannot be totally discarded because
of the reference to the victim already having died. This issue is further
compounded by the fact that the Investigating Officer was also not
examined and he would have been the best person to identify the
victim or even the victim’s mother or to prove the evidence of PW-4
and PW-5 as to whether the victim was alive or dead and therefore,
for non-examination of the Investigating Officer, the appellant is
surely prejudiced and the identity of the victim or the mother has not
really been established. Counsel had also argued that the depositions
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of the witnesses were taken almost 10 years later and whatever
identification is done, is done by some other police person and
definitely not by the then Investigating Officer of the case.

20. Learned counsel had also said that the evidence of PW-4, Indra
Deo Yadav, is important because he was the husband and he had
also not supported her case. This is shocking because a husband is
expected to support the case and this can only be when the victim is
of a doubtful character and this has earlier been also pointed out.

21. Finally, learned counsel says that PW-7, victim herself is not
trustworthy and reliable witness because first and foremost identity
has not been totally established, secondly, she is contradicting
herself in particular instance in her evidence itself and also there is
enmity with her bhaisur and in extension also with the accused and
therefore, for all these grounds, PW-7 or victim cannot be a reliable
witness and therefore, the rule that rape victim does not need to be
corroborated by any one else, if she is herself trustworthy and
reliable, does not apply in her case.

Arguments of learned counsel for the State:

22. Learned counsel for the State has however argued that this
case is based on the testimony of the victim, PW-7; however, her
testimony is sufficiently supported by PW-8, Tekani Devi, who is her
mother. So far as the evidence of the Doctor, PW-10 is concerned, he
is not the Doctor, who had actually examined the victim rather it was
another Doctor, namely, Dr. Ram Ratan Kedia, who had examined
the victim; however, he has referred to the medical or injury report,
which has been marked as Ext.1. Being a colleague, Dr. Chandra
Shekhar Agarwal would be familiar and conversant with the writing of
Dr. Kedia. The injury report would be useful to the extent that it would
indicate that she had gone for examination and in the deposition of
PW-10 it has been indicated that she was examined on 11.06.1993
and she was treated for poisoning.

23. Learned counsel for the State had then referred to para-28 of
the deposition of the victim and pointed out that she has
unequivocally stated that she had taken poison because of the rape
committed upon her. Therefore, there is corroboration by the
evidence or the deposition of Doctor as to the treatment having been
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done by Dr. Kedia and that she had been treated for poisoning. The
victim herself stated the reasons for her taking poison and that was
only because she had been raped, and this is not altogether
unfamiliar scenario in the country. A woman who is sexually
assaulted, feeling humiliated and sometimes can be compelled to
take this sad step out of extreme agony and pressure.

24. Learned counsel for the State had also argued that PW-7, the
victim’s identity was not at all questioned during trial when she was
giving evidence. For the defence to now raise questions regarding
identity when they have not done so at the stage of trial itself only be
a case of trying to imagine new arguments to be used in their defence
which cannot be allowed at this stage. Even if this Court allows some
consideration, the evidence of PW-7, the victim has also to be looked
with the evidence of PW-8, Tekani Devi, who is the mother of the
victim. Her identity has not been demolished at the stage of trial but in
1st paragraph of her deposition, she has said that before her
deposition or examination she had never deposed in Court or on
08.02.2002, which was the date in which PW-5, so-called other
mother had deposed. She had in clear cut terms said that the victim
is her daughter and that she knows about the case which the victim
had filed, which would mean that she knew about the FIR registered
against the accused or the appellant in the rape case. She had also
in para-1 indicated that her daughter was married first to one Indra
Deo Yadav, therefore, with the aforesaid opening comments in para-1
of her deposition she has fully established the identity not of herself
only but also of her daughter, the victim. Thereafter in para-1 she has
gone to corroborate what her daughter had already informed
regarding the incident of rape.

25. Learned counsel for the State has also argued that the enmity,
which was alleged between Bhola Yadav and the family of the victim
was not established by substantial evidence and neither it is
established that the appellant Nanhak Sao, only because he was a
friend of Bhola Yadav was assisting him in the case, therefore, such a
weak argument cannot be accepted for demolishing the case of the
prosecutrix. The allegation that the victim is a lady of easy virtue does
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not mean that any one can therefore commit rape upon her. No
person can be made a victim of rape for whatsoever reason.

26. Finally, referring to the evidence of the victim herself, counsel
for the State has pointed out that in her evidence she has very well
explained why there was delay in lodging the case. This was only so
because her husband was working in Dhanbad and it was only after
he had returned from Dhanbad, the FIR was then able to be lodged
with his assistance. She has fully corroborated her fardbeyan and
given in some details in her evidence as to what transpired. It is
indeed a heinous crime that was committed very cunningly by a
person, who was known to the victim. The appellant in a very cunning
and cruel manner treated the victim into believing that some money
had been sent by her husband who was working in Dhanbad, this fact
that her husband was working in Dhanbad was known to the
appellant, and knowing very well the poor economic plight of the
victim’s family, he exploited fully the situation by informing her that
some money had been sent by her husband and that it is at his home
and she should come and collect it. For any person, who is in a
similar situation where she knows the person from before, who is
calling her and saying that some money had come from her husband
and to collect it and that too not very late in night, it is quite natural
that she will be compelled to go there. This situation was fully
exploited by the appellant and then alluring her to his house, he then
committed rape upon her. The incidence of the victim tapping rape is
soon after the case of rape and in rape cases this is something that is
not very uncommon but rather occurs sometimes and is not unknown
in the criminal history of the country. The victim herself had in her
deposition very unequivocally stated that she took poison because
she had been raped, and there is no reason why this Court should
not believe her. In fact, attempt to take poison only gives more reason
for this Court to believe that the incident of rape must have taken
place. Therefore, for all the aforesaid reasons, this Court may fully
uphold the conviction and the sentence of the appellant passed by
the learned Trial Court below.

FINDINGS
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27. In this case, some attempt was made to demolish the testimony
of the prosecutrix or the alleged victim by raising the issue of the
reported enmity with the prosecutrix that existed between the family
of the prosecutrix and her bhaisur Bhola Yadav. This enmity had not
been established by sufficient grounds and only for this reason that
the accused or the appellant herein Nanhak Sao was helping Bhola
Yadav in his case subsisting between the family of the victim and
Bhola Yadav would not be a ground for setting aside the conviction
and sentencing mainly because first that it is not so easily believable
that a woman would stake her very reputation and modesty by
making false allegation of rape and subsequently, also be dragged
through the entire process of criminal investigation and subsequent
trial. Secondly, even if there is enmity, a woman is not expected to do
the same, and in this instance, the enmity is itself not described to be
of such proportions or of such cruelty that could compel the victim to
resort to such a measure. There is some inconsistency in the
evidence of the victim, particularly, when she has said that she had
informed her bhaisur and gotnis and in the next instance, she said
she had not done so. Other aspect that may have to be considered is
the evidence of the Doctor, and this Court sees that PW-10 is not the
Doctor, who had actually examined the victim. But from his evidence,
there is nothing much regarding the alleged rape rather it is regarding
the treatment of poison, which when linked up with the deposition of
the victim when she had said that she had taken poison due to rape
attempt then the treatment of poisoning makes it of relevance to this
Court.

28. Given the entire gamut of evidence, the evidence of the victim
daughter and her mother would corroborate the prosecution case.
Therefore, the conclusion I am led to is that there must have been
sexual assault but to what extent the sexual assault had been
committed was not indicated.

29. Therefore, having heard the arguments of both the counsels
and gone through the records of the case and evidences as well as in
the facts and circumstances of the case, I feel that the allegation of
sexual assault made by the prosecutrix is not totally untrue because
no woman will like to drag her name through police investigation and
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Court proceedings. The fact that she has informed her mother soon
after and the mother had deposed accordingly only indicates further
that something had taken place. The injury report of the Doctor
(Ext.1) and the evidence of Doctor PW-10 also would indicate that
something did take place; however, the medical report or the injury
report has not explicitly pointed out the rape and therefore, on this
aspect, some benefit of doubt may be possibly allowed to the
appellant.

30. Therefore, basing myself on all the aforesaid reasoning, I
modify the judgment of conviction dated 23.01.2003, passed in S.T.
No. 639 of 1993 by the learned Additional Sessions Judge, Fast
Track Court-I, Chatra, whereby, the appellant has been held guilty for
the offence under Section 376 of the Indian Penal Code, to one under
Section 354 of the Indian Penal Code. Since the judgment of
conviction is modified to Section 354 of the Indian Penal Code, I also
modify the order of sentence dated 23.01.2003 to three years
rigorous imprisonment under Section 354 of the Indian Penal Code,
any period already undergone by him shall be deducted from this
modified period of sentence. The appellant’s bail bond is cancelled
and learned concerned or successor court-below is directed to take
steps to procure his arrest.

31. Accordingly, this appeal is dismissed with the above
modification in conviction and sentence.

(Ratnaker Bhengra, J.)
S.B.-NAFR

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