Jharkhand High Court
Manoj Mahto vs The State Of Jharkhand on 17 December, 2024
Author: Sanjay Prasad
Bench: Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1440 of 2008
.....
Manoj Mahto, son of Narayan Mahto, resident of Railway Gate,
Phusro, PO-Phusro, PS-Bermo, District- Bokaro...... Appellant
Versus
The State of Jharkhand ...... Respondent
-----
Present
HON'BLE MR. JUSTICE SANJAY PRASAD
-----
For the Appellant : Mr. Pankaj Verma, Advocate
For the State : Mrs. Nehala Sharmin, Spl. P. P.
......
JUDGMENT
Pronounced on 17/12/2024 This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 02.12.2008 and sentence dated 05.12.2008 passed by Sri M. C. Verma, learned Additional Sessions Judge, Fast Track Court No. 1, Bermo at Tenughat in connection with S. T. No. 116 of 2007 arising out of Bermo P. S. Case No. 10 of 2007 corresponding to G. R. No. 51 of 2007 by which the appellant- Manoj Mahto has been convicted for the offences under Sections 376 and 452 of the Indian Penal Code and has been sentenced to undergo R. I. for a period of seven (7) years and to pay fine of Rs. 1,000/- for the offence under Section 376 of the Indian Penal Code and has also been sentenced to undergo R. I. for a period of three (3) years and to pay fine of Rs. 500/- for the offence under Section 452 of the Indian Penal Code. However, both the sentences have been directed to run concurrently.
2. The prosecution case, in brief, is that on 17-01-07 S.I Fransis Indiwar (PW-8), with armed force was on patrolling 1 duty and he, when reached near railway gate Phusro, found the people gathered over there and learnt that in the previous night, wife of one Suresh Rai was raped.
Thereafter, the victim girl got recorded her fardbeyan on 17.01.2007 at 10.30 AM near her house before the Officer In-charge Bermo Police Station stating therein that yesterday i.e. 16.01.2007 at around 8.00 to 9.00 PM, while she was sleeping alongwith her younger daughter aged around two years with one Doli Kumari (daughter of Bhaisur) aged around 10-11 years in her private house then at around 01.30 AM in the night one person entered into her house after scaling the wall and there is aluminium door, which was opened and that person entered from there and arrived at the place where she was sleeping and started searching there and when he had touched her body, then she raised alarm, but that person threatened her of dire consequences on the point of knife and threatened to kill her. Thereafter the said person caught her both the hands in sleeping condition and covered her mouth by shawl and pressed by hand due to which, she could not raised alarm. Thereafter, the said person removed her sari and forcibly committed rape upon her. In the meantime, he also threatened her not to raise any alarm and fled away. She further alleged that she had identified those person from his face and voice as being he is local and that person is Manoj Mahto (i.e. the appellant), who is living at his house situated at some distance from her house and the accused is aged around 35-40 years. She asserted that the accused Manoj Mahto deliberately entered into her house at around 1.30 am for committing rape upon her and forcibly committed rape upon her. At that time her husband was not in the house as he had gone to his house at Kosogondo, Digi, 2 Giridih for some urgent work for around 7-8 days ago.
3. Heard learned counsel for the appellant and leaned counsel for the State.
4. Learned counsel for the appellant has submitted that the judgment of conviction and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. It is submitted that the alleged occurrence took place in the night of 16/01/2007 whereas the F.I.R. was registered on 17/01/2007 which is a belated F.I.R. and it smacks foul over the prosecution version. It is submitted that the learned court below further erred in not appreciating that in a room when the informant was sleeping with two girls and the appellant alleged to have committed rape but she could not raise alarm due to fear. It is quite unbelievable that a person could misbehave forcibly and two girls sleeping with the informant did not raise alarm. It is submitted that there is nothing on record that even those two girls were threatened by the informant. It is submitted that the police failed to collect or seized any incriminating article much less the so-called knife on the basis whereof the appellant alleged to have threatened the informant. It is submitted that the learned court below misdirected itself in not considering that the room was dark and there was no source of light. Since the appellant never came to the house of the informant except on the alleged date of occurrence, as such it was quite impossible for the informant or two girls to identify the appellant by voice especially in view of admission on the part of prosecution that there are two Manoj in the locality. It is submitted that the identification by voice is weak evidence and that cannot be a ground to presume participation of the appellant in the alleged crime. It is submitted that although the informant claimed that 3 her apparels were carrying bloodstain but the police failed to seize such apparels to corroborate such fact. It is submitted that even the Doctor did not find any injury or scratch or any mark on the person of the victim which demolishes the story of the victim that there was forcible commission of rape. It is submitted that the learned court below also erred in not noticing the fact that there had been laches on the part of investigating agency. It is submitted that the case of prosecution is also demolished in view of the fact that the Doctor did not find any sign of recent sexual intercourse whereas the victim claimed to have been raped by the appellant. It is submitted that the learned court below utterly failed to take into consideration that it was a case of consent if such occurrence took place. It is submitted that the impugned judgment is vitiated in view of untrustworthy and uncorroborative evidence of PW-1, Victim Lady. It is submitted that evidence of P.W.-1, Victim Lady cannot be relied upon. It is submitted that P.W.-2, Nandlal, P.W.-3, Suresh Rai, P.W.-4, Sanjay Sinha, P.W.-5, Prakash Rai and P.W.-7, Lalita Singh are hearsay witnesses. It is submitted P.W.-6, Doly Kumari is the Niece of the informant and a child witness and her evidence is not reliable as her statement was not recorded by the police. It is submitted that I. O. has been examined as P.W.-8 and P.W.-8, Fransis Indewar had not recovered any incriminating articles and I.O. has not seized the clothes and apparels of the informant. It is submitted that P.W.-9, Dr. Dipali Dey is the Doctor who examined the victim lady but no injury or mark of violence was found on her person. No sperm was found. According to her, she did not find symptom of recent sexual intercourse. Hence, the impugned judgment of conviction and sentence may be set aside and the appellant may be acquitted for 4 the offences under Sections 376 and 452 of the Indian Penal Code and this Criminal Appeal may be allowed.
5. On the other hand, learned counsel for the State has submitted that the impugned judgment and sentence passed by the learned Court below is fit and proper and no inference is required from this Court. It is submitted that the appellant is named in the FIR for committing rape upon the victim lady. It is submitted that the victim lady while examined as P.W.-1, Victim Lady has fully supported her case and she has stood the test of cross-examination and she has stated that the appellant had committed rape upon her, though it was dark night, but she had identified the appellant on the account of her voice. It is submitted that informant -prosecturix has identified the appellant in the light of torch. It is submitted that immediately after the occurrence, the victim lady P.W.-1, Victim Lady has narrated the occurrence to her neighbour Nandlal, who has been examined as P.W.-2. It is submitted that P.W.-2, Nandlal has supported the allegation against the appellant though he has not stated that name of the appellant. It is submitted that P.W.-3, Suresh Rai is the husband of the prosecutrix and he has also supported the prosecution case. It is submitted that P.W.-4, Sanjay Sinha is an independent witness and he has also supported the allegation of the informant for committing rape upon the prosecutrix. It is submitted that P.W.-5, Prakash Rai has also supported the prosecution case. It is submitted that P.W.-6, Doly Kumari is the niece of the victim lady, aged around ten (10) years and she is an eyewitness and she has also supported the prosecution case and even the informant has named her in the FIR for sleeping with her at the time of occurrence. It is submitted that P.W.-7, Lalita Singh has also supported the 5 prosecution case and stated that the appellant has committed rape upon the victim lady. It is submitted that P.W.-8, Fransis Indewar is the I.O. of this case, who has supported and corroborated the prosecution case. It is submitted that P.W.-9, Dr. Dipali Dey is the Doctor and thus the prosecution case has successfully proved its case from the evidence of the prosecution witnesses. It is submitted that even uncorroborated the evidence of the prosecution lady can be taken into consideration for convicting the appellant - accused as there is no reason as to why the informant will falsely implicate the appellant. It is submitted that thus, there is no illegality in the judgment of conviction and order of sentence passed by the learned Court below and as such, this Criminal Appeal may be dismissed.
6. Perused the Lower Court Records and considered the submissions of both the sides.
7. It transpires that the informant-prosecutrix had lodged the FIR against the appellant-Manoj Mahto on 17.01.2007 by recording her fardbeyan before the Officer In-charge of Bermo P.S. stating therein that while she along with her daughter aged around two years and one Doli Kumari aged around 10-11 years, who is daughter of her Bhaisur were sleeping, then at around 1.30 P.M. in the night one person entered into her house by scaling the wall and started touching her body and when the informant awoke and tried to raise alarm, then he showed dagger and put her in fear of murder and forcibly committed rape upon her and threatened her. She has identified the appellant by stating that she had seen him by face and by voice of Manoj Mahto i.e. appellant residing near the Railway Gate, Phusro aged around 35-40 years. On the date of occurrence, her 6 husband was not at residence and he has gone outside 7-8 days ago.
8. On the basis of fardbeyan of victim lady i.e. the informant, the police instituted Bermo P. S. Case No. 10 of 2007 on 17.01.2007 for the offences under Sections 376/452 of the Indian Penal Code against the Appellant.
9. The police, after investigation, had submitted charge sheet under Sections 376 and 452 of the Indian Penal Code on 13.02.2007 before the learned Additional Chief Judicial Magistrate, Bermo at Tenughat and learned Additional Chief Judicial Magistrate, Bermo at Tenughat had taken cognizance on 13.02.2007 against the appellant under Sections 376 read with 452 of the Indian Penal Code.
10. After supplying the police papers to the accused, the case was committed to the Court of Sessions.
11. The charges were framed against the appellant- Manoj Mahto on 30.03.2007 for the offence under Sections 376 read with 452 of the Indian Penal Code by the learned Additional Sessions Judge-FTC-I, Bermo at Tenughat (Bokaro) and to which he pleaded not guilty and claimed to be tried.
12. It transpires that during trial, the prosecution got examined nine (9) witnesses, who are as follows:
(i) PW-1 is victim girl i.e. the informant (name not being disclosed in view of guideline of Hon'ble Supreme Court)
(ii) P.W.-2 is Nandlal, ( i.e. neighbour)
(iii) P.W.-3 is Suresh Rai, (i.e husband of informant)
(iv) P.W.-4 is Sanjay Sinha,
(v) P.W.-5 is Prakash Rai,
(vi) P.W.-6 is Doly Kumari, (i.e niece of informant)
(vii) P.W.-7 is Lalita Singh, 7
(viii) P.W.-8 is Fransis Indewar (i.e the I.O.) and
(ix) P.W.-9 is Dr. Dipali Dey.
13. The prosecution has got proved the following documents, as the Exhibit, which are as follows:-
(i) Ext.-1 is Fardbayan,
(ii) Ext.-2 is formal FIR,
(iii) Ext.-3 is Memo of Arrest and
(iv) Ext. -4 is Medical Examination report of victim.
14. The prosecution has further proved the document 'X' for identification, which was later on marked as Ext.-4.
15. It transpires that the appellant was examined under Section 313 of the Cr. P. C. on 06.08.2008 by learned Additional Sessions Judge-FTC-I, Bermo at Tenughat (Bokaro) and the appellant has denied the circumstances put forth before him.
16. Defence, in support of his case, has got examined one witness namely Manoj Sharma as D.W.-1.
17. However, no document has been marked on behalf of the appellant as the Exhibits.
18. Thereafter the learned Court below has convicted the appellant for the offences under Sections 376 and 452 of the Indian Penal Code and has sentenced him to undergo R. I. for a period of seven (7) years for the offence under Section 376 of the Indian Penal Code and also sentenced him to undergo R. I. for a period of three (3) years for the offence under Section 452 of the Indian Penal Code.
Hence appreciation of evidence of prosecution witnesses is necessary.
19. From scrutinizing the evidence of P.W.-1, (i.e. the victim lady- (name has not been disclosed in the judgment as per the guideline of the Hon'ble Supreme Court), it is evident that 8 she is informant-prosecutrix and she stated, during her evidence that she lives in her house, which is situated at Railway Gate, Phusro in which there are three rooms and Verandah and it was surrounded by wall having height of 7-8 ft. and in the night of 16/17 January, her husband had gone to the house of his sister and she along with her daughter Komal Kumari, (aged around three years) and daughter of her Bhaisur namely Doli Kumari (aged around 10-11 years) were sleeping in her house and she had locked the door and All three were sleeping on the Chowki in a room inside the Net. However, suddenly she awoke in the night around 1.30 P.M. as somebody was touching her body and then she raised alarm, but the accused-appellant freighted her on the point of knife and threatened to kill her and the appellant- Manoj Mahto, who is residing at Railway Line near her house, had removed her Saree and Saya and had committed rape upon her and threatened her of dire consequences while he was leaving. Thereafter the prosecutrix raised alarm and upon which her neighbour Nandlal came and she disclosed the matter to her neighbour Nandlal and Nandlal and others went in search of the accused person. Next day at around 11-12 hours the police came and recorded her statement and she put her Right Thumb Impression and thereafter she was sent for medical examination in the Hospital where she was treated by the Doctor at 6.00 P.M. in Bokaro and she was wearing the same clothes, which were wore by her at the time of occurrence and the same clothes are with herself and even today, she is wearing the same saree, which she wore on the date of occurrence. Thereafter, the police brought her at Tenughat and recorded her statement before the Court and she put her Thumb Impression at her Beyan. She identified the appellant in Court for committing rape upon her.
920. During her cross-examination, she stated that she used to sleep with light, but at the time of occurrence, it was dark as the appellant switched off the light. She further stated that when she awoke, then it was dark and the accused was having the knife. However, the accused covered her face by cloth and she had raised alarm at the time of commission of rape upon her and even after occurrence of rape. She has further stated that the appellant was lighting the torch and she has seen the time on the watch fixed on the wall and learnt that it was around 1.30 P.M. and torch was 10-11 inch long. She claimed to have seen the appellant several times outside her house, though he had arrived for the first time in her house on the date of occurrence and the appellant had taken wine on the date of occurrence. However, she had not received any scratch at the time of occurrence. She stated that she was undergoing the period of menstruation on the date of occurrence and before the date of occurrence, she was undergoing menstruation period. She further stated that on alarm raised by her, mother and wife of Nandlal and one Chhotu had arrived there. The police recorded her statement in police station after 2-3 days of occurrence and at that time, Nandlal and Chhotu were also present. She further stated that her husband returned on the next date after the occurrence at around 12.00 Noon. Although, Prakash Rai is her Bhaisur, but the accused- appellant does not remain with him. At the time of her examination, her Bhaisur and husband had also accompanied her. She stated to have disclosed the fact of occurrence of rape upon her in the Court. There was stain on her Sari and Saya on account of occurrence of rape. She also asserted that the appellant committed rape upon her as the appellant had entered into inside the Net on the Chowki on which she was sleeping and 10 due to which Net had fallen. On alarm raised by her, both the girl child awoke and they also started weeping at the time of commission rape upon her. She denied the suggestion for falsely implicating the appellant due to enmity with Prakash Rai and Nandlal.
21. Thus, from scrutinizing the evidence of P.W.-1, i.e. the victim lady, it is evident that she has fully supported the allegation of rape committed upon her by the appellant. Even she stood the test of cross-examination and stated that the appellant had committed rape upon her. She had identified the appellant at the time of commission of offence and even when he was leaving her house. There is nothing to show that the informant has falsely implicated the appellant. It is further evident that the informant had recognized the appellant by his face as well as by his voice. [Even the statement of victim lady was recorded under Section 164 of the CrPC before the learned Judicial Magistrate, 1st Class, but it was not marked as Exhibits.] Thus, P.W.-1, 'victim lady' has fully supported the prosecution case.
22. P.W.-2, Nand Lal, who is the neighbour and has stated that he is acquainted with the prosecution case as the prosecutrix was his neighbour, but she had sold the house 8-9 months ago. He also supported the prosecution case by stating that the occurrence took place at the night of 16-17 January, at around 1.30 P.M. and at that time, the informant-prosecutrix lady knocked her door repeatedly by force. She informed that someone had entered into her house, and he went there, but not found any person. The prosecutrix also disclosed him that she has been subjected to rape. However, she has not disclosed the name of person, who has committed rape upon her.
11During his cross-examination, he admitted that the police has recorded his statement, and he also stated that he along with informant i.e. the prosecutrix lady had gone to the police station. He also stated that after the occurrence, the prosecutrix along with two children were sleeping in his house and nearby people had arrived at his house on the date of occurrence.
23. Thus, from scrutinizing the evidence of P.W.-2, Nand Lal, it would appear that he is the neighbour of the informant- proseutrix and has supported the prosecution case on the point of commission of rape. He had also gone to the police station along with the victim lady, although he had not stated about the name of the appellant, but his evidence corroborates the prosecution case.
24. P.W.-3 is Suresh Roy, and who is the husband of the informant and has stated that on the date of occurrence, he had gone to the house of his sister 2-3 ago prior to the occurrence at Bhagalpur and occurrence took place on 16-17 January. He stated that prosecutrix is his wife and when he arrived at his house at 11.00 hours, he found his house closed and he learnt from the nearby people that his wife and some other people had gone to the police station and then he also went to the police station. He learnt from his wife i.e. informant in the police station that the appellant-Manoj Mahto had committed rape upon her in the night, who resides near the Railway Line.
25. During cross-examination, he admitted that the appellant- Manoj Mahto used to come at his Tea Shop and he is acquainted with the appellant- Manoj Mahto, but the appellant- Manoj Mahto was not on visiting terms with him. He denied the suggestion that he had taken Rs. 3,000/- as loan from the 12 appellant- Manoj Mahto for running Tea Shop, but he had not paid the said loan amount. This witness has emphatically denied and stated that he had not taken any loan amount from the appellant-Manoj Mahto. He admitted that Prakash Roy is his elder brother.
Thus, from scrutinizing the evidence of P.W.-3, Suresh Roy, who is a hearsay witness, it would appear that he has supported the prosecution case regarding commission of rape upon her by the appellant, which was learnt by him from his wife i.e. the informant.
26. P.W.-4 is Sanjay Sinha, who is businessman and submitted during his evidence that at the time of date of occurrence in the night that somebody had entered into the house of the informant. Thereafter, he went to the house of Nandlal Sharma i.e. P.W.-2 and had found that the informant-prosecutrix is in frightened condition in the courtyard of Nandlal Sharma i.e. P.W.-2. Then he arrived to his residence. Next morning while he was going to his work, then he found that the informant was abusing that rape had been committed upon her and he learnt from the nearby lady neighbor that the appellant-Manoj Mahto had committed rape upon her, who lives near Khatal Railway line.
During cross-examination, he stated that he had not entered into the house of the informant, but he learnt from the mother of Nandlal Sharma, the name of rapist i.e. the appellant. However, he had gone to the police station at around 10.30 hours and stayed there for around half an hour and had met with the police and they were 15-20 people and the police had enquired from all of them.
27. Thus, from scrutinizing the evidence of P.W.-4 i.e. 13 Sanjay Sinha, it would appear that though he is hearsay witness, but he has supported the prosecution case that the appellant- Manoj Mahto has committed rape upon the victim lady and he had also seen the informant-victim lady in frightened condition in the house of PW-2 Nand Lal.
28. P.W.-5 is Prakash Roy, who is Bhaisur of the informant and during his evidence, he stated that they live separately in different house and both houses are near to each other and Doli is his daughter and aged around 10 -11 years. He stated that the occurrence took place in the night of 16th January and on that date, his daughter Doli was sleeping with her Aunt as she was alone and his brother Suresh had gone outside. On the next morning at 5.00 A.M. he learnt that the appellant- Manoj Mahto had committed rape upon the informant-victim lady by entering into her house.
During cross-examination, he stated that the police has recorded his statement. However, he does not go to the house of the informant as he is elder brother of her husband. However, after the occurrence, he along with the police had gone inside the house of the informant. He denied the suggestion for taking wine with the appellant-Manoj Mahto and due to dispute with the appellant-Manoj Mahto, he has implicated him in this case.
29. Thus, from scrutinizing the evidence of P.W.-5, Prakash Roy, it would appear that he has also supported the prosecution case, although he is a hearsay witness. Even during his cross-examination, defence has failed to draw his attention of his dispute with the appellant and thus, his suggestion for taking wine with the appellant-Manoj Mahto by P.W.-5, Prakash Roy does appear to be correct.
30. P.W.-6, Dolly Kumari, who is Niece of the informant 14 and aged around 10 years and her statement was recorded by learned Additional Sessions Judge after fully testing her.
Even P.W.-6 Dolly Kumari has fully supported the prosecution case and stated that on the date of occurrence while she was sleeping in the house of her Aunt on the same Chowki and in the night her Aunt raised alarm, then he awoke and had seen that the appellant- Manoj Mahto had climbed upon her Aunt and then he left. Thereafter her Aunt called nearby people and started searching the appellant-Manoj Mahto. She has shown acquaintance with the appellant as he used to take tea from the shop of her father and she identified him in the Court also.
During cross-examination, she again stated that Manoj Mahto i.e. the appellant had climbed upon her Aunt. However, she could not raise alarm as the appellant had shown knife to her. Net was broken. She has denied the suggestion that the appellant used to visit her house.
31. Thus from scrutinizing the evidence of P.W.-6, Dolly Kumari, who is a child witness, it is evident that she has fully supported the prosecution case and stated that she has seen the appellant climbing upon her Aunt. Thus, PW-6 has fully supported the prosecution case.
32. P.W.-7 is Lalita Singh, who is neighbour and stated that the prosecutrix was living near her house, but now she sold her house. She further stated that she learnt from the informant, who had disclosed that the appellant committed rape upon her by covering her face by shawl and she had identified the appellant by voice. She had taken the informant to the police station and Prakash father of Rupa i.e. P.W.-5 had also accompanied them. However, she could not identify the appellant.
During cross-examination, she stated that Rupa is aged 15 about eight years. Rupa also stated that she was sleeping with Aunt and Dolly i.e. P.W.-6 was not sleeping and Dolly is elder sister of Rupa and Dolly was sleeping with her mother. She has stated that Two Manoj lives near her house and one resides near the Railway Line and other is having furniture shop.
Thus, from scrutinizing the evidence of P.W.-7, Lalita Singh, it would appear that she has also supported the prosecution case.
33. P.W.-9 is Dr. Depali Dey, who had conducted medical examination of the informant on 17.01.2007 and found as follows:-
"(2)) On Examination, I found no injury or mark of violence anywhere on the body or on private parts.
Auxiliary and pubic hair were present, breast well developed, vagina was admitting two fingers with ease. There was even no scratch mark anywhere on her private parts. Vaginal swab was taken and in clinical examination no sperm was found therein.
(3) At the time of examination I found blood in vagina and prosecutrix informed me that she menstruating for the last three days.
There was no stains on the wearing clothes of the prosecutrix.
(4) I advised X-Ray for determination of age. The X-ray plate was showing that she was above 19 years of age. She was having 14 teeth in each Jaw.
I prepared the examination report which is correct and bears my signature. The said report is Mark-X which now is exhibited as Ext.-4.
(5) I did not find any symptoms of recent sexual intercourse."
1634. Thus, from scrutinizing the evidence of P.W.-9, Dr. Depali Dey, it would appear that she had not found any mark of violence on the body or on the private part of the victim lady and she had not found any symptom of recent sexual intercourse upon the victim lady. However, she stated that the victim lady was undergoing menstruation period and she had found blood in vagina of the prosecutrix and found that she is menstruating for last three days. However, there was no stains on wearing clothes of the prosecutrix. She proved the medical report marked as Ext.-4 and hence, there is possibility that due to menstruation, sign of rape could not be found by the doctor.
35. P.W.-8 is Faransis Indwer and I. O. of this case and during evidence, he stated that while he was doing patrolling along with armed forces at around 10.00 P.M. from police station and arrived near the Railway crossing of Phusro, then he found that huge crowed had assembled and learnt that in the previous night, wife of Suresh Roy has been subjected to rape. Thereafter he along with staff arrived at the house of Suresh Roy and he met with informant-prosecutrix lady and thereafter he recorded the fardbeyan of the prosecutrix lady and also took her thumb impression and also put his signature and Ext.-A is the fardbeyan written by him. Thereafter he along with prosecutrix arrived at the place of occurrence and fardbeyan was handed over to Officer In-charge Brij Kishore Kumar and on the basis of fardbeyan, Officer In-charge instituted P.S. Case No. 10 of 2007. FIR is marked as Ext.-2. Thereafter he was handed over the investigation of this case. Thereafter he recorded the subsequent statement of the informant and he sent the prosecutrix to Referral Hospital Phusro for her medical examination with one lady constable Gita Devi, but she was 17 referred to Civil Surgeon, Bokaro. Thereafter he left for the place of occurrence and had inspected the place of occurrence, which was shown by the witnesses and one of which was Nandlal i.e. P.W.-2 and he described the boundary of the place of occurrence and found that door was made of Tin and there was no lock etc. fixed on the door and there was main gate of the house and the wall was approx. 10 ft. of height and there was one chowki alongwith bed and net was found fallen. He has described the nearby people of the house of the informant. After recording the statement of some witnesses thereafter on 31.01.2007, he got recorded by the statement of the victim lady under Section 164 of the Cr. P. C. and the medical report marked as 'X' for identification. There he arrested the appellant by preparing the arrest memo marked as Ext.-3. After completing investigation, he had submitted charge sheet against the appellant.
36. During cross-examination, he admitted that place of occurrence was shown to him by the prosecutrix and bhaisur of the prosecutrix and at that time 5-6 persons were also present there. Prakash Roy, i.e. P.W.-5 is the Bhaisur of the informant, though he could not say the name of other persons. He stated that there was no window in the room where the occurrence had taken place and could say the length and breadth of the room, but the room was of small size and there was 'khat' (i.e. the cot) and chowki inside the room. He admitted that he had not seized the wearing clothes of the prosecutrix and even he not demanded the said clothes from the prosecutrix. He had not seized anything from the place of occurrence.
37. Thus, from scrutinizing the evidence of P.W.-8, Faransis Indwer, it is evident that he is the I. O. of this case and had submitted the charge sheet against the appellant. It further 18 reveals that he has not done proper investigation and he had not seized wearing clothes of the victim lady and had not sent it to FSL for its examination which remains lacuna in this case. However, his evidence reveals that he arrived near the house of the informant, during course of enquiry, and found that huge crowd had assembled there and he learnt that rape has been committed upon the wife of the Suresh Roy. Thereafter he took the informant to the police station. Thus, P.W.-8 has supported and corroborated the prosecution case.
38. It is well settled law that in case of direct ocular evidence, commission of rape is proved, even if, it is in conflict with the medical report.
39. It is well settled that due to lacuna on the part of the prosecution, the victim should not suffer and the prosecution case should not fail.
40. It has been held in the case of Karnel Singh Versus State of M. P. reported in (1995) 5 SCC 518 at paragraph 4, 5, 6 and 8 as follows:-
"Para-4:- We have very carefully scrutinized the evidence having regard to the fact that (PW 6) the investigating officer had not taken the care expected of him. He did not record the statements of the two witnesses nor did he refer to the attachment of the 'chaddi' in his oral evidence. That was a very vital piece of evidence to which little or no attention was paid. If the seizure of that article was properly proved, the article with semen stains would have lent strong corroboration to the evidence of the prosecutrix. There is no doubt that the investigation was casual and defective. But despite these deficiencies both the courts below have recorded a conviction. The question is : are they right?
Para-5:- Notwithstanding our unhappiness regarding the nature of investigation, we have to consider whether the 19 evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. Any investigating officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure-memo in regard to the 'chaddi'. That is the reason why we have said that the investigation was slipshod and defective.
Para-6:- We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding insult to injury.
Para-8:- This is what this Court said in paragraph 16 of the judgment in the aforementioned case: (SCC p. 559) "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on 20 the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
Applying the above test to the facts of the present case we are satisfied beyond any manner of doubt that the prosecutrix, a victim of the crime, had absolutely no reason whatsoever to falsely involve the appellant nor did her husband have any reason to do so or tutor his wife to involve the appellant. No such suggestion was made to the prosecution witnesses in cross-examination nor is there any evidence on record in that behalf. The prosecutrix is a poor labourer who was toiling to earn her livelihood to augment the family income. She was working in the factory since the last few days only and the appellant and his companion, taking advantage of the situation, drove away Charan by asking him to fetch tea and after he left the appellant violated her person. The find of semen stains on the petticoat and in the vagina lend assurance to the story narrated by the prosecutrix. The submission that there was delay in lodging the complaint has to be stated to be rejected for the simple reason that immediately after the 21 incident she had to go in search of her husband who was a rickshaw-puller, narrate to him the incident, go down to the police station and then lodge the complaint. She has explained the absence of injuries by stating that she was laid on minute sand which was lying on the floor and, therefore, there were no marks of injury. The only explanation is by way of suggestion in the cross-examination of the prosecutrix to the effect that she was falsely implicating the appellant in order to grab money. Therefore, taking an overall view of the matter we are satisfied that it is safe to place reliance on the testimony of the prosecutrix. Both the courts below relied on her evidence and we see no reason to take a different view."
41. It has been held in the case of C. Muniappan and Others Versus State of Tamil Nadu reported in (2010) 9 SCC 567 at paragraph 55 as follows:-
"Para-55:- There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandrakant 22 Luxman v. State of Maharashtra [(1974) 3 SCC 626 : 1974 SCC (Cri) 116 : AIR 1974 SC 220] , Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] , Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085 : AIR 1998 SC 1850] , Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] , State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715 : 2000 SCC (Cri) 61 : AIR 2000 SC 185] , Amar Singh v. Balwinder Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] , Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] and Ram Bali v. State of U.P".
42. It is well settled that the evidence of a child witness is reliable, if his/her evidence is found trustworthy.
43. It has been held in the case of Yogesh Singh Versus Mahabeer Singh and Others reported in (2017) 11 SCC 195 at paragraph 22, 23 and 30 as follows:-
"Para-22:- It is well settled that the evidence of a child witness must find adequate corroboration, before it is relied upon as the rule of corroboration is of practical wisdom than of law. (See Prakash v. State of M.P. [Prakash v. State of M.P., (1992) 4 SCC 225 : 1992 SCC (Cri) 853] , Baby Kandayanathil v. State of Kerala [Baby Kandayanathil v. State of Kerala, 1993 Supp (3) SCC 667 :
1993 SCC (Cri) 1084] , Raja Ram Yadav v. State of Bihar [Raja Ram Yadav v. State of Bihar, (1996) 9 SCC 287 : 1996 SCC (Cri) 1004] , Dattu Ramrao Sakhare v. State of Maharashtra [Dattu Ramrao Sakhare v. State of Maharashtra, (1997) 5 SCC 341 : 1997 SCC (Cri) 685] , State of U.P. v. Ashok Dixit [State of U.P. v. Ashok Dixit, (2000) 3 SCC 70 : 2000 SCC (Cri) 579] and Suryanarayana v. State of Karnataka [Suryanarayana v. State of Karnataka, (2001) 9 SCC 129 : 2002 SCC (Cri) 413] .) Para-23:- However, it is not the law that if a witness is a child, 23 his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring.
(Vide Panchhi v. State of U.P. [Panchhi v. State of U.P., (1998) 7 SCC 177 : 1998 SCC (Cri) 1561] ) Para-30:- In C. Muniappan v. State of T.N. [C. Muniappan v. State of T.N., (2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] , this Court explained the law on this point in the following manner: (SCC p. 589, para 55) "55. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
44. It is well settled that the conviction of the accused can be based on the sole testimony of the prosecution without corroboration if it inspires confidence.
2445. It has been held in the case of Phool Singh Versus State of Madhya Pradesh reported in (2022) 2 SCC 74 at paragraph 9, 10, 11 and 12 as follows:-
"Para-9:- In Pankaj Chaudhary [State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 : (2019) 4 SCC (Cri) 264] , it is observed and held that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of the prosecutrix should not be doubted by the court merely on basis of assumptions and surmises. In para 29, it is observed and held as under : (SCC p. 587) "29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217] ]. It is well settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming.
[State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898] ]."
Para-10:- In Sham Singh v. State of Haryana [Sham Singh v. State of Haryana, (2018) 18 SCC 34 : (2019) 3 SCC (Cri) 129] , it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should 25 find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In paras 6 and 7, it is observed and held as under : (SCC pp. 37-38) "6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 :
1996 SCC (Cri) 316] (SCC p. 403, para 21).]
7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case 26 or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725] .)"
Para-11:- Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained. Para-12:- Now so far as the submission on behalf of the accused that as there were no external or internal injuries found on the body of the prosecutrix and therefore it may be a case of consent is concerned, the aforesaid has no substance at all. No such question was asked, even remotely, to the prosecutrix in her cross-examination. Therefore, the aforesaid submission is to be rejected outright.
46. It is well settled that the evidence of a hostile witness can be considered to the extent, it supports the prosecution case.
47. It has been held in the case of Malti Sahu Versus Rahul and Another reported in (2022) 10 SCC 226 at paragraph 27
-17 as follows:-
"Para-17:- As per the settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution. Therefore, the prosecution has established and proved the motive to that extent."
48. It is well settled that the criminal appeal is an continuation of trial and this has been observed also in the case of Deepak Rai v. State of Bihar reported in (2013) 10 SCC 421 and in the case of Ajay Kumar Ghoshal and Ors. Verses State of Bihar and Anr. reported in (2017) 12 SCC 699 .
49. It has been held in the case of Deepak Rai v. State of Bihar, reported in (2013) 10 SCC 421 at paragraph -35 and 36 as follows:-
"Para-35:- More so, it is settled law that an appeal by special leave under Article 136 is a continuation of the original proceedings. In Moran M. Baselios Marthoma Mathews (2) v. State of Kerala [(2007) 6 SCC 517] , this Court categorically observed as follows : (SCC p. 523, para 13) "13. We, therefore, are of the opinion that despite the fact that the appellants had insisted upon before the High Court for issuance of a writ or in the nature of mandamus upon the State or its officers for the purpose of grant of police protection as this Court has exercised its appellate jurisdiction under Article 136 of the Constitution of India, it can and should go into that question as well viz. as to whether the writ petition itself could have been entertained or not, particularly, when the appeal is a continuation of the original proceedings."
(emphasis supplied) Para-36:- Further, this Court in Netai Bag v. State of W.B. [(2000) 8 SCC 262] , while observing that the scope of an 28 appeal under Articles 136 and 226 cannot be wider than the earlier proceedings, has noticed that the appeals under the said provisions are continuation of the original proceedings."
50. It is evident that the victim lady has supported the prosecution case for committing rape upon her.
51. Although P.W.-2, Nandlal, who is next door neighbour, who has not taken the name of the appellant, but admitted that the victim lady had arrived at his house in frightened condition and stayed there in the night with two girl childs and thus, from the evidence of PW-2 Nandlal, the circumstances also suggests that the rape was committed upon the victim girl by the accused- appellant.
Thus, evidence of P.W.-2, Nandlal supports and corroborates the prosecution case.
52. Even P.W.-7, Lalita Singh, who had accompanied the informant to the police station and had also stated that rape was committed upon the informant-victim lady, although she is hearsay witness.
53. P.W.-4, Sanjay Sinha is another hearsay witness, who is an independent witness and supported the prosecution case that he learnt from the mother of Nandlal i.e. P.W.-2 that the appellant had committed rape upon the informant-victim lady. Similarly, P.W.-5, Prakash Roy, who is the Bhaisur of the informant and has supported the prosecution case.
54. Apart from this, it is evident that P.W.-6, Dolly Kumari is an eye witness and she has fully supported and corroborated the prosecution case although she is a child witness and had stated and supported the prosecution case that she had seen the appellant-Manoj Mahto climbing upon the body of her Aunt, which suggests that rape was committed upon her.
29Thus, P.W.-6, Dolly Kumari is an eye witness of the occurrence.
55. It is also evident from P.W.-9, Dr. Depali Dey that the victim lady was undergoing with menstruation period for the last three days and thus even if, she had not found any mark of violence on the private part or on the body of the informant- victim lady. Thus, Commission of rape cannot be denied in view of the consistent evidence of PW-1, victim lady, the informant herself and P.W.-6, Dolly Kumari and also corroborated by the evidence of P.W.-2, Nandlal, P.W.-3, Suresh Rai, P.W.-4, Sanjay Sinha, P.W.-5, Prakash Rai, and P.W.-7, Lalita Singh respectively.
56. This Court is of the view that the prosecution has successfully established the charges against the appellant.
57. Thus, this Court finds that no illegality has been committed by the learned Court below by convicting the appellant -Manoj Mahto for the offences punishable under Section 376 and 452 of the Indian Penal Code and sentenced him to undergo R. I. for a period of seven (7) years for the offence under Section 376 of the Indian Penal Code and has also been sentenced to undergo R. I. for a period of three (3) years for the offence under Section 452 of the Indian Penal Code.
58. Considering the facts and in the circumstances of the case, the judgment of conviction dated 02.12.2008 and sentence dated 05.12.2008 passed by Sri M. C. Verma, learned Additional Sessions Judge, Fast Track Court No. 1, Bermo at Tenughat in connection with S. T. No. 116 of 2007 arising out of Bermo P. S. Case No. 10 of 2007 corresponding to G. R. No. 51 of 2007 is hereby upheld and this Criminal Appeal (SJ) No. 1440 of 2008 is dismissed.
3059. The appellant- Manoj Mahto is directed to surrender in the learned Court below forthwith to serve the remaining sentence and the period during which, the appellant remained in jail, shall be set- off from his period of sentence.
60. It is well settled from the judgment reported in (2013) 10 SCC 421 and (2017) 12 SCC 699 that Criminal Appeal is continuation of trial and hence, the victim lady i.e. the prosecutrix is also entitled to be compensated by the State in the light of the provisions of Section 357 of Cr.P.C.
61. It also reveals that due to the occurrence of rape, the victim lady was compelled to sell her house and live with her children and husband to some other places in order to escape of humiliation and prestige in the society as even till date the woman even the victim of crime is looked into lower sight in the Society. It is an admitted fact that commission of rape upon the body of a woman demolishes the soul and it maligns her image in Society.
61. Therefore this Court directs to the State Authorities of the Home Department/ Competent Authorities of the State to pay a compensation of Rs. 5,00,000/- (Rupees Five Lakh) to the prosecutrix-victim lady under Section 357 of the CrPC and also in the light of amended provisions of Section 357 A of CrPC, who had undergone the mental agony of rape through the Deputy Commissioner/Superintendent of Police, Bokaro and learned Member Secretary, JHALSA is directed to take necessary steps in assistance with DLSA, Bokaro/ SDLSC, Bermo at Tenughat for payment of compensation of Rs. 5,00,000/- (Rupees Five Lakh) to the informant-victim lady, which may be paid to her by informing her through DLSA, Bokaro/ SDLSC, Bermo at Tenughat and by the process of learned Court below and 31 payment of such compensation is to be informed in writing before this Court.
62. With the above observations and directions, this Criminal Appeal (SJ) No. 1440 of 2008 is hereby dismissed.
63. Let the Original Lower Court Records be sent to the learned Court below at once.
64. Let a copy of this judgment be sent to the Member Secretary, JHALSA and be also handed over to the learned Spl. P. P. for the needful.
(Sanjay Prasad, J.) Kamlesh/ 32