Jharkhand High Court
Kuber Chandra Das vs State Of Bihar (Now Jharkhand) on 10 February, 2004
Equivalent citations: 2004CRILJ4776, [2004(2)JCR88(JHR)], 2004 CRI. L. J. 4776, 2004 AIR - JHAR. H. C. R. 2944, (2004) 2 JCR 88 (JHA), (2005) 1 RECCRIR 905, (2005) 2 ALLCRILR 238, (2004) 1 JLJR 729, (2004) 2 CRIMES 421
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the appellant stands directed against the impugned judgment and order dated 23.9.1998 passed in Sessions Trail No. 347 of 1997 by Shri Shiveshwar Narayan, Sessions Judge, Singhbhum West at Chaibasa whereby and whereunder the appellant was found guilty for the offence punishable under Sections 366A and 376 of the Indian Penal Code and he was convicted and sentenced to undergo R I for seven years each for the aforesaid offence. However, the sentences were ordered to run concurrently.
2. The prosecution case has arisen on the basis of the FIR of informant PW 1 Kuttu Dai, an unmarried girl aged about 17 years lodged before Jagannathpur P.S on 29.6.1997 at 17.00 hours regarding the occurrence which is said to have taken place between 15.6.1997 and 24.6.1997 at village Gardisai Danguaposi within Jagannathpur PS and it continued at village Jamda, P.S. Gua, District Singhbhum West and also at Bandamunda District Sundargarh, Orissa where the informant is said to have been taken away by the appellant. The FIR has been received on 30.6.1997 in the Court empowered to take cognizance.
3. The prosecution case, in brief, is that the informant is a 17 years old unmarried girl and resident of village Gardisai and she works as a labourer in the construction of road between Toragahatu and Mangaon under the scheme of the World Bank and appellant Kuber Chandra Das, resident of village Kalaiya PS Nowamundi was also a co-labourer with her along with others and in course of the execution of the construction work aforesaid he made a proposal to her for her marriage with him and she accepted the said proposal considering his affluent economic condition coupled with her own poor family background and he induced her to have sexual co-habitation with her though she was not willing for that but on his insistence that she shall be his wife after the marriage he had sexual intercourse with her. It is alleged that in the existence of having sexual co-habitation with her from before he came to her house in the evening of 15.6.1997 in village Gardisai and asked her to accompany him for going to the temple at Danguaposi for solemnization of the marriage and she proceeded with him for Danguaposi on foot and during the course of the said journey he had thrice sexual intercourse with her. It is alleged that she reached Danguaposi in the morning of 16.6.1997 and from there she boarded a train and came to Jamda and after roaming for the day here and there he came to the house of the sister of his father with her and finding the house locked they stayed together in the night on the verandah of the said house where they had sexual intercourse and from there they proceeded to Bandamunda on 17.6.1997 to her cousin sister PW 3 Laxmi Devi where they lived together in the said night and there was also sexual intercourse between them several times and in that course the appellant told her that he will go to his village and after taking clothes and money he will be back here and, thereafter, he will take her from there and on the following day i.e., on 18.6.1997 he went to his village and again came to Bandamunda on 24.6.1997 where she was staying. The prosecution case further is that she became suspicious seeing the nail of the appellant having been coloured and on query he told her that he has solemnized his marriage with a girl of village Gua and asked her to accompany him for her house. It is also alleged that she started weeping out of disgust and she stayed at the house of Laxmi Devi considering her to be defamed of not being married with him and he returned to his house. It is further alleged that she has returned to her house in the company of her brother PW 2 Chaturbhuj Das and, thereafter, she has lodged the said FIR.
4. The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case to put pressure on him to solemnize his marriage with the informant and also due to the land dispute existing and alive between him and the paternal grand father of the informant.
5. The prosecution has in all examined six witnesses to substantiate its case PW 1 Katti Dai is the informant of this case and said to be the alleged victim of kidnapping and ravishment in this case. PW 2, Chaturbhuj Das and PW 3, Laxmi Devi are the brother and sister respectively of the informant and they are said to be the hearsay witnesses of the alleged occurrence. PW 4 Vishwanath Jerai, resident of viiiage Gardisai has been tendered by the prosecution in this case. PW 5, Anirudh Prasad Sharma is a formal witnesses who has proved the FIR (Ext. 3). PW 6 Dr. E.J. Topno (wrongly numbered as PW 5) has examined the informant on 30.6.1997 and her report in respect thereof per her pen is Ext. 2 in this case. The IO has not taken oath in this case for the prosecution. No oral and documentary evidence has been brought on the record on behalf of the defence.
6. Relying upon the solitary testimony of PW 1, the informant read with the evidence of PWs 2 and 3 as hearsay witnesses, the learned Court below came to the finding of the guilt of the appellant and convicted and sentenced him as stated above.
7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not at all consider the evidence on the record in proper perspective meticulously and has erroneously come to the finding of the guilt of the appellant. It has also been submitted that the informant is a major girl above 18 years of age and her evidence as well as the evidence of the medical witness regarding her age being 17 years on the day of the occurrence is neither based on any cogent legal evidence nor any scientific data. Elucidating further it has been submitted that there is always a margin of error in age ascertained by radiological examination which is two years on either side and in support of his contention reliance has been placed upon the ratio of the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and Ors.. AIR 1982 SC 1297. It has also been submitted that PW 3 aged about 40 years has deposed that the informant is younger to her by 20 or 25 years and the brother of the informant in his evidence has not disclosed either the age or the year of birth of the informant whereas the mother of the informant though alive has not come to support the prosecution ease regarding the age of the Informant being 17 years on the date of the occurrence. It has further been submitted that the informant had love affairs with the appellant as per her evidence on the record and being a major girl above 18 years of age she wanted to solemnize her marriage with the appellant considering his affluent economic condition and she has voluntarily left her house in his company and even the sexual co-habitation, if any, though denied by the appellant is definitely a consented sexual intercourse between them and as such no offence under Sections 366A and 376 of the Indian Panel Code is made out against the appellant. The further contention on behalf of the appellant is that there is no iota of legal evidence on the record to show that the appellant has ever induced the informant to go with him with intention that should be compelled to marry a person against her Will or she would be forced or seduced to intercourse when as per the case of the informant there had been sexual co-habitation between her and the appellant much prior to alleged date of occurrence several times. Lastly it has been contended that serious prejudice has been caused to the appellant due to the non-examination of the IO in the facts and circumstances of this case and all the circumstances emanating on the record relied upon by the learned Court below have not been put to the appellant in course of his examination under Section 313 of the Cr PC. As such the impugned judgment is unsustainable.
8. Refuting the contention aforesaid it has been submitted by the learned APP that the informant is 17 years old at the relevant time as per her testimony coupled with the testimony of the medical witness and she has been taken away from the lawful guardianship of her mother by the appellant after inducing her on the pretext of the promise of marriage with her and during the period between 15.6.1997 and 24.6.1997 he has ravished the informant on several occasions against her wish and consent and PW 1, the informant in her evidence on oath has materially corroborated the prosecution case and viewed thus there is no infirmity in the impugned judgment requiring an interference therein.
9. According to the prosecution case the informant is a resident of village Gar-disai, PS Jagannathpur and the appellant is a resident of village Kalaiya PS Nowamundi both within the district of Singhbhum West and both were working together as labourer besides others in the construction of the road between Toragahatu and Mangaon under World Bank scheme much prior to the occurrence. PW 1 in para 7 of her evidence has deposed that she and the appellant are of the same caste and the appellant hails from a family having economic affluence and she had a desire to soleminize her marriage with him and as such she has gone with him. She has further deposed that she had love affairs with the appellant for the last one year prior to the occurrence and they were to solemnize their marriage with each other. In para 11 of her cross-examination she has deposed that she had accompanied the appellant from her house up to Bundamunda out of her free will and volition. If the woman is less than 16 years of age her consent is immaterial for the offence under Section 376 of the Indian Penal Code. A woman below 18 years of age if induced and taken away by the accused from the lawful guardianship of her parent to different places and kept there for considerable period even if she had consented to accompany the said accused it would not amount that she has consented in respect thereof and the question of consent does not arise in that case. Therefore, the crux of the matter is as to what was the age of the informant on the date of the alleged occurrence. To constitute an offence under Section 366A it has to be established by the prosecution that the appellant has induced the informant a woman within 18 years of age to go from a place or to do an act with intent that such woman may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. It has been stated in the FIR (Ext. 3) that the informant is 17 years old. The informant has taken oath in this case as PW 1 on 24.2.1998 in which she has disclosed that she is aged 17 years. The Court recording her evidence has also assessed her age being 17 years. PW 6 the medical witness in course of her examination of the informant has found the informant having 16 teeth in the upper jaw and also 16 teeth in her lower jaw. The medical witness has further deposed that as per radiological report epiphysis of lower end radius and ulna of the informant were found fused but epiphysis of iliac crest not fused. On the basis aforesaid she has opined that the informant is 17 years old. In her cross- examination the medical witness has categorically deposed that she has not conducted ossification test of the informant for coining to the finding of her age as opined by her. She has further deposed that in this case Hawaldar Din Bandhu Thakur had taken the informant to the X Ray Clinic and he has given the X- Ray plate to her. The said X-Ray plate has also not been brought on the record to evidence the fact that the said X-ray plate has its co-relation with the informant. PW 2, Chaturbhuj Das, the brother of the informant is aged 28 years and he has deposed that the informant is younger to him. He has not deposed that the informant is 17 years old on the date of the occurrence or she is younger to him by how many years. PW 3, Laxmi Devi, the cousin sister of the informant is 40 years old as per her evidence and in her cross-examination she has deposed that informant is younger to her by 20 or 25 years. As per her evidence the age of the informant comes either to 20 years or 15 years. It is not the prosecution case that the informant is 15 years old. Therefore, taking the line of least resistance as per her testimony, the age of the informant comes to 20 years. The most important witness on this matter is the mother of the informant who has accompanied the informant at the time of lodging of the FIR but surprisingly enough she has not come before the Court to depose regarding the age of her daughter, the informant and the best possible evidence in the facts and circumstances of this case regarding the age of the informant has been deliberately suppressed and not brought on the record. The principal means which enable one to form a fairly accurate opinion about the age of an individual specially in the earlier years are teeth and ossification of bones. The estimation of age from the teeth by noting the number and position of the teeth erupted and the X-Ray examination with some amount of certainty is only possible upto 17 and 20 years of age and beyond that it is merely a guess work. The primary teeth replaced by permanent teeth which are 32 in number consisting of four incisors canines four premolars or biscuspids and six molars in each jaw. As per Modi's Medical Jurisprudence and Toxicology, third molar teeth erupt in the age group between 17th to 25th year and all the molar teeth of the informant stands erupted and as such she is definitely not of the age of 17 years. The Apex Court in the case of Jaya Mala (supra) has observed that it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. In view of the evidence on the record referred to above coupled with the ratio aforesaid of the Apex Court PW 1, the informant is definitely not below 18 years of age.
10. According to the prosecution case the informant and the appellant were co-workers in the construction of road and the appellant is said to have made a proposal to the informant for her marriage with him and the said proposal was accepted by the informant and in pursuance thereto they indulged in sexual co- habitation on several occasions and, thereafter, on 15.6.1997 the appellant came to the house of the informant and asked-her to accompany her to a temple for solemnization of the marriage and the informant left her house in the company of the appellant and during the stay together till 24.6.1997 at several places there had been sexual co-habitation between them. PW 1 has deposed that she had love affairs with the appellant and she has consented for her marriage with him and she has accompanied him from his house. In para 11 she has deposed that she had remained in the company of the appellant till Bundamunda out of her free will, volition and consent." Since the informant was not below 18 years as held above, question of her kidnapping or abduction by the appellant in the facts and circumstances of this case does not arise. She has deposed that she has been ravished by the appellant several times since long prior to the occurrence and also in the course of her journey during the period of occurrence between 15.6.1997 to 24.06.1997 at different places against her wish and, thereafter, the appellant did not solemnize his marriage with her. The appellant has denied the allegation In his statement under Section 313 of the Cr PC regarding having sexual cohabitation with the informant.
11. Let us now advert to the medical evidence. PW 5 has deposed to have examined the informant on 30.6.1997 te., after the 6th day of the last alleged sexual cohabitation of the appellant with the informant at Bundamunda in the house of PW 3 Laxmi Devi where according to the prosecution case they had slept together. PW 3 in her evidence on oath is conspicuously silent that they had slept together in his house during their stay there for two nights. The medical witness has deposed that she has not found any external injury on the person of the informant and her hymen reveals old tear which admits two fingers easily and there was no injury on her Introitus. She has further deposed that no spermatozoa either dead or alive was found in the vaginal swab of the informant. The presence of human spermatozoa is a positive sign of rape in the grown up virgin and in case of grown up married woman it proves the occurrence of a recent sexual intercourse. As per Modi's Medical Jurisprudence and Toxicology, 22nd Edition at page 504 it has been stated that presence of spermatozoa in the vagina after intercourse has been reported by Polock (1943) from 30 minutes to 17 days and by Morrison (1972) up to nine days in vagina and 12 days in cervix. Here the absence of spermatozoa in the vaginal swab of the informant as per evidence of the medical witness negates the appellant having sexual intercourse with the informant. The matter may be viewed by another angle also. Section 375 of the Indian Penal Code defines rape. The relevant extract of this Section as it pertains to this case reads thus :
".....A man is said to commit "rape" who, except in the case hereinafter ex-cepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
First--Against her will. Secondly--Without her consent.
XX XX XX A plain reading of the averment in the FIR of the informant and the evidence of the informant clearly suggests that PW 1, the informant was a willing and fully consenting party to that of the sexual intercourse with the appellant and prior to the occurrence also she had sexual intercourse with the appellant on several occasions for a long time as she had love with the appellant. It is crystal clear as per the testimony of PW 1, the informant that it is a case where on her own showing the informant was willing and fully consenting party to the act of sexual intercourse with, the appellant. It also appears that she continued without any protest demur on objection with the affair of having sexual intercourse with the appellant since much prior to the alleged occurrence. In this view of the matter the allegation that the informant was made to have sexual intercourse with the accused on the assumption based on an assurance and promise or giving out an understanding that appellant would marry her cannot amount to the lack of consent so far as the informant is concerned. Here PW 1, the informant is a major woman and if she gives consent even on any of the aforesaid assumptions and thus she has sexual intercourse with the appellant she will b'e under all circumstances and in all respect considered to be a consenting party. This consented sexual intercourse continued for a long period prior to the occurrence and until the day of reckoning when she filed this case on assumption that the appellant has cheated her by refusing to solemnize his marriage with her. Therefore, in the facts and circumstances of this case the Informant is deemed to have given consent so far as sexual intercourse between her and the appellant is concerned and such consent cannot be called as an illegal consent so far as the applicability of Section 376 of the Indian Penal Code is concerned. Viewed thus, in such a situation the appellant cannot be deemed to have even prima facie committed the offence of ra'pe under Section 376 of the Indian Penal Code. The ratio of the case of 2002(1) JLJR 431, Sahdeo Pandit and Ors. v. State of Jharkhand and Ors.; 2001(3) JCR 311, Arjun Gupta v. State of Jharkhand and 2000(2) BCC 713, Baldhari Ohdar v. State of Bihar squarely covers the case at hand. The informant being a jealous lover having become frustrated due to the solemnization of the marriage of the appellant with a girl of Gua had the audacity to go to the house of the appellant in village Kalaiya from his sister's house at Bandamunda with a view to prevail upon the appellant to accept her as his wife and on his refusal she was brought to her house by non-else but the father of the appellant and to wreck vengeance she appears to have filed this case against the appellant. Therefore, the false implication of the appellant in this case cannot be totally ruled out. And last but not the least there is no iota of legal evidence even prima facie making out a case under Sections 366A and 376 of the Indian Penal Code against the appellant as per the averments made in the FIR read with the evidence of the informant. The learned Court below did not meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellant. Viewed thus the impugned judgment is unsustainable.
12. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside, The appellant is found not guilty to the charges levelled against him and he is accordingly, acquitted and discharged from the liability of the bail bond.