CRIMINAL APPEAL (S.J.) NO. 51 OF 2007
[arising out of Judgment of Conviction dated 29th November, 2006 and
Order of sentence dated 30th November, 2006 passed by the learned
Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.07 of 2005]
Raju Yadav …. Appellant
The State of Jharkhand …. Respondent
For the Appellant : Mr. Sunil Kumar Sinha, Advocate
For the Respondent : Ms. Laxmi Murmu, A.P.P.
HON’BLE MR. JUSTICE ANANDA SEN
Reserved on 11.09.2018 Pronounced on 18/12/2018
Heard learned counsel for the appellant and learned counsel for the
2. This criminal appeal is directed against the Judgment of Conviction
dated 29th November, 2006 and Order of sentence dated 30th November,
2006 passed by the learned Sessions Judge, Seraikella-Kharsawan in
Sessions Trial No. 07 of 2005, whereby the sole appellant was held guilty
and was convicted for offence punishable under Section 376 of the Indian
Penal Code and was sentenced to undergo rigorous imprisonment for 7
(seven) years for offence under Section 376 of the Indian Penal Code.
3. Prosecution case, as it appears from the fardbeyan of P.W.2, the
victim (recorded on 08.10.2004), is that she resides as a tenant with her
mother, father, elder sister and brother-in-law in the house of Rajesh Gupta.
She stated that on the last night (07.10.2004), after taking meals with her
family members she went to sleep. At about 03.00 a.m. in the wee hours,
she woke up to nature’s call and thereafter when she was returning to her
room, when Raju Yadav, who is neighbor, all of a sudden came to her and
pressed her mouth with his hand and by threatening her to kill if she raises
alarm, took her dragging to his room and pushed her on the cot whereafter
he committed rape upon her. Victim tried to raise alarm but the appellant
kept her mouth pressed with his hand. Victim has further stated that
thereafter her brother-in-law Pradeep Tanti came there searching for her
and on seeing her brother-in-law, appellant fled.
4. On the basis of aforesaid fardbeyan, Adityapur Police Station Case
No.228 of 2004 was registered for offences punishable under Sections 376
of the Indian Penal Code.
5. Police investigated and filed chargesheet under Sections 376 of the
Indian Penal Code and cognizance of the offence was taken on 13.12.2004.
Case was committed to the Court of Session on 06.01.2005. After
commitment, the appellant pleaded not guilty to the charges. Thus, he was
put on trial.
6. To substantiate its case, prosecution examined 8 (eight) witnesses,
namely, P.W.1 Chandrashekhar Sah, who is a witness to the seizure, P.W.2
is the victim herself, P.W.3 Lalita Tanti is the mother of the victim, P.W.4
Lakh Nath Tannti is a tendered witness, P.W.5 Dr. Manorma Siddesh is the
doctor, who had examined the victim, P.W.6 Rajnandan Ram is the
investigating officer of the case, P.W.7 Pradip Tanti is brother-in-law of the
victim and P.W.8 Champa Tanti is elder sister of the victim.
7. In addition to the oral evidence, prosecution also exhibited the
following documents: –
Ext. 1 Signature of P.W.1 on Seizure List
Ext.1/1 Signature of P.W.7 on the fardbeyan
Ext. 1/2 Signature of P.W.7 on the seizure list
Ext.2 Medical report prepared by P.W.5
Ext. 3 Fardbeyan
Ext. 3/1 Endorsement on the fardbeyan
Ext. 4 Formal FIR
Ext. 5 Seizure list
P.W.1 Chandra Shekhar Sah is a seizure list witness. He proved his
signature on the seizure list which was marked Ext.1.
P.W.2 is the prosecutrix. She has supported the prosecution case as
narrated by her in the fardbeyan. During her cross examination, she has
stated that the appellant by showing her knife threatened not to raise any
alarm. She has denied of sustaining any injury. In her cross examination the
defence could not extract anything favourable from her.
P.W.3 Lalita Tanti is the mother of the victim (P.W.2). This witness has
also supported the fact that the victim woke up in the wee hours and had
gone out to attend nature’s call. She stated that when the victim did not
return within 10-15 minutes, she told her son-in-law (P.W.7) to see why the
victim had not returned. Thereafter this witness has narrated the entire
occurrence as stated by the prosecutrix.
P.W.4 Lok Nath Tanti has been tendered.
P.W.5 is Dr. Manorma Siddesh, who was posted as Medical Officer at
Sub Divisional Hospital, Seraikella, had examined the victim. She has
opined that sexual intercourse was made with the victim. She has stated
that according to x-ray report victim was aged about 16-17 years. This
witness had also found the victim not habitual to sexual intercourse. This
witness has proved her report which was marked Ext.2.
P.W.6 Raj Nandan Ram, Sub Inspector of Police, Chatra was the
investigating officer of this case. He at the relevant time was posted at
Adityapur Police Station as Sub Inspector of Police. He has proved the
fardbeyan, endorsement on the fardbeyan, formal FIR, the seizure list,
which were marked as Ext. 3, 3/1, 4 and 5 respectively. In addition he has
also stated about the investigation and recording of statement of witnesses
in course of investigation.
P.W.7 Pradip Tanti is the brother-in-law of the victim. He has stated
about the prosecution story as narrated by the victim. He has proved his
signature on the fardbeyan and seizure list, which were marked as Ext. 1/1
and 1/2 respectively.
P.W.8 Champa Devi is the sister of the victim. She has also stated
about the prosecution case as narrated by the victim.
8. After closure of evidence of the prosecution, statement of the
appellant was recorded under Section 313 of the Code of Criminal
Procedure. Defence did not adduce any evidence in this case.
9. Trial Court, after hearing the arguments of the parties and on
appraisal of evidence, held the appellant guilty of the offence and convicted
him under Sections 376 of the Indian Penal Code by Judgment dated 29th
November, 2006 and sentenced him to undergo rigorous imprisonment for 7
(seven) years for offence under Section 376 of the Indian Penal Code by
order dated 30th November, 2006.
10. Aggrieved by the said judgment of conviction and order of sentence,
appellant has preferred this appeal.
11. Learned counsel for the appellant submits that the prosecution has
miserably failed to prove its case. He submits that save and except the
witness to the seizure, the medical officer and the investigating officer, all
the other witnesses are family members of the victim and no independent
witnesses has been examined in this case on behalf of the prosecution. He
submits that there are major flaws on the part of the prosecution, vital one
being non-production of chemical report of the garments of the victim. He
submits that the doctor has not found any external injury or any sign of rape
and even the victim herself in her cross examination has admitted that no
injury was caused to her. He submits that though the witnesses are all
family members but there is vital contradiction in their evidence inasmuch as
the victim (P.W.2) has stated that there was no bleeding whereas her elder
sister (P.W.8) has stated that blood mark was there on the clothes of the
victim. He submits that the victim has stated in her cross examination that
the accused was holding knife in his hand and if that be true, it is not
possible for the appellant to commit rape upon the victim while holding knife
in his hand. On these grounds, he prays for acquittal of the appellant.
12. Learned A.P.P. appearing for the State opposes the prayer and
submits that the statement of the victim is cogent and the same is
corroborated by the evidence of other witnesses. He submits that solely on
the basis of victim’s evidence, the appellant can be convicted. He submits
that the doctor has opined that there was sexual intercourse. He submits
that on these grounds, impugned judgment needs no interference by this
13. After hearing the parties and going through the records, I find that 8
(eight) witnesses have been examined by the prosecution. P.W.3 is the
informant, who stated that when she went out to answer the nature’s call in
the wee hours, this appellant caught hold of her and took her upstairs,
thereafter committed rape. She stated that appellant with a knife threatened
her and thereafter committed rape. This fact of threatening with the knife
has not been mentioned by the informant in the FIR. She stated that she
could not raise any alarm as she was under threat and thereafter her
brother-in-law came when this appellant fled. The brother-in-law is P.W.7,
who supported the prosecution case and stated that when the victim did not
return till 10 minutes, he started searching her and when he reached near
the house of Raju Yadav, he found the door of the room open and then the
victim came out of the said room crying and narrated that Raju Yadav raped
her and at that point of time Raju Yadav fled from the room, but, he could
not be apprehended. He also stated that the police seized the apparels. The
evidence of P.W.2 and P.W.7 corroborates each other. From conjoint reading
of evidence of these two witnesses, it is evident that victim was found in the
room of this appellant and she came out crying and the appellant fled from
the place. Victim, then stated that she was raped by this appellant. Now, on
analysing the evidence of the doctor, who is P.W.5, I find that she found the
victim to be 16 – 17 years. Thus, she is a minor. This age was assessed
after going through the x-ray. She deposed that sexual intercourse was
committed with the victim and in cross examination she states that victim
was not habitual to sex. This clearly suggests that sexual intercourse had
taken place with the victim.
14. I find there may be minor contradiction in the evidence of P.W.2 and
P.W.7 and other witnesses, but the basic fact that the appellant fled from his
room when P.W.7 had seen him and the victim came out of that room crying
and stated that she was raped is consistent from the depositions. Non-
production of the garments cannot be said to be fatal in this case. Nothing
has been brought on record by the defence to suggest as to why the
appellant will be falsely implicated in this case. No evidence is there that the
parties were hostile to each other. The victim was a minor and as per the
doctor, sexual intercourse was committed with her. There is nothing in the
entire record to suggest that the said sexual act was consensual.
15. Thus, considering the evidence of P.W.2 and P.W.7 and the medical
evidence, which clearly suggest that the victim was sexually assaulted, I find
that the prosecution has been able to prove the charge of rape against the
appellant. I find that there is no illegality in the impugned judgment and
order of sentence. The Judgment of Conviction dated 29th November, 2006
and Order of sentence dated 30th November, 2006 passed by the learned
Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.07 of 2005 are
16. The appellant is on bail vide order dated 19.05.2009. His bail bonds
stand cancelled. He is directed to surrender before the Court below within a
period of four weeks from today to serve out the rest of the sentence. In the
event the appellant does not surrender within the said period of four weeks,
the Court below will take appropriate steps for taking him in custody.
17. This appeal, accordingly, stands dismissed.
18. Let the Lower Court Records be transmitted to the Court concerned
forthwith along with a copy of this judgment.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, the, 18th December, 2018