Jharkhand High Court
Sunil Mandal @ Akal Mandal vs State Of Jharkhand on 14 October, 2009
Cr. Appeal No.434 of 2000
With
Cr. Appeal No.436 of 2000
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Against the judgment of conviction and order of sentence dated 23 rd
November, 2000 passed by the Additional Sessions Judge-II,
Seraikella in S.T.No.212 of 1997 corresponding to G.R.Case No.105 of
1997.
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1. Ajit Mandal.
2. Manik Mandal.
3. Barun Mandal.
4. Gurua Mandal. (In Cr. Appeal No. 434 of 2000). ... ...Appellants
-Versus-
The State of Jharkhand. ... ... ... ... ... ...Respondent
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1. Sunil Mandal @ Akal Mandal.
2. Anand Chitrakar. ( In Cr. Appeal No.436 of 2000) ... ...Appellants
-Versus-
The State of Jharkhand. ... ... ... ... ... ...Respondent
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For the Appellants: Mr. A.S. Dayal, Advocate.
For the Respondent: Mr. Md. Hatim, A.P.P.
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C.A.V. on 10.08.2009 : Pronounced on 14.10.2009
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PRESENT
THE HON'BLE MR. JUSTICE DILIP KUMAR SINHA
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D.K.Sinha,J. Both the appeals are taken together arising out of common cause of
action as directed against the judgment impugned dated 23rd November, 2000
passed by the Additional Sessions Judge, II, Seraikella in Sessions Trial No. 212 of
1997 with respect to Gamharia P.S. Case No. 15 of 1997 by which the appellants
Ajit Mandal, Manik Mandal, Barun Mandal & Gurua Mandal( Cr. Appeal No. 434 of
2000) were convicted under Section 448/34 I.P.C. and sentenced to undergo R.I.
for one year whereas, the other appellant Sunil Mandal @ Akal Mandal ( Cr.
Appeal No.436 of 2000) was convicted under Section 376 I.P.C. and sentenced to
undergo R.I. for 7 years. The another accused Anand Chitrakar(Cr. Appeal No. 436
of 2000) was convicted under Sections 109/376 I.P.C. and was sentenced to
undergo R.I. for 7 years. He was further convicted under Sections 448/34 I.P.C.
and was sentenced to undergo R.I. for one year and it was directed that the
sentences passed against Anand Chitrakar would run concurrently.
2. The prosecution story in short was that the informant P.W. 3
Indrajeet Barik submitted a written report before the Officer-in-Charge of
Gamaharia Police Station that on 25.02.1997 when he returned back from
Jagranathpuri, he was apprised by his brother and son that on the alleged date of
occurrence i.e. on 23.2.1997 while they were watching serial on T.V. on
23.02.1997whereas his deaf and dumb daughter aged about 16 years was cooking food in the adjacent room, the appellants Sunil Mandal @ Akal Mandal & Anand Chitrakar peeped from the boundary wall of the informant and having found no obstruction, trespassed in the room where his deaf and dumb daughter was alone. It was alleged that the appellant Anand Chitrakar stood outside on guard whereas appellant Sunil Mandal @ Akal Mandal outraged modesty of his daughter 2 and there held altercation in such transaction. The brother of the informant Lakhan Barik (P.W.1) suspected some foul play from the noise emerging from her room and upon visualizing that Anand Chitrakar was standing outside in suspicious condition, he entered in her room and found the appellant Sunil Mandal @ Akal Mandal trying to hide himself. It is alleged that the appellant Anand Chitrakar in the meantime informed to the members of the family of Sunil Mandal @ Akal Mandal consequent to sudden appearance of other appellants Ajit Mandal, Manik Mandal, Barun Mandal with Anand Chitrakar. All of them forcibly got Sunil Mandal released from the clutches of the witnesses. It was further alleged that the appellants Sunil Mandal @ Akal Mandal and Gurua Mandal returned back after a short while and extended threat of dire consequences to the witnesses. The informant was apprised by his victim daughter Renuka Barik that the accused held her body with the intention to commit rape. The police initially instituted a case for the alleged offence under Sections 448/354/323/34 I.P.C. against all the six appellants but later on Section 376 I.P.C. was added on the request of the Investigating Officer. The victim girl was examined by a lady doctor and after conclusion of the investigation charge-sheet was submitted against the accused persons under Sections 448/34/376/109 I.P.C. The Trial Judge, however, framed the charge under Sections 448/34 I.P.C. against the appellants Anand Chitrakar, Ajit Mandal, Manik Mandal, Barun Mandal and Gurua Mandal. Separate charge under Section 376 I.P.C. was framed exclusively against Sunil Mandal @ Akal Mandal and charge under Sections 109/376 I.P.C. was framed against Anand Chitrakar and all the six accused were put on trial.
3. Mr. A.S. Dayal, learned Counsel appearing on behalf of the appellants in both the appeals first took up the matter of the appellants Sunil Mandal @ Akal Mandal & Anand Chitrakar (Cr. Appeal No. 436 of 2000) and assailed the impugned judgment by submitting that the Trial Court failed to take into consideration that the entire prosecution story was full of contradictions and the witnesses had improved their version in the Court what they had earlier stated before the police in course of investigation. The occurrence as alleged took place on 23rd February, 1997 but the written report was presented after three days on 26th February, 1997 after due deliberation and consultation, in spite of the fact that the uncles and brother of the victim were present in the house who were competent to lodge the case, if at all the offence as alleged had taken place.
4. Mr. Dayal, pointed out that at the first instance the informant had not complained of rape having been committed on his daughter Renuka Barik by the appellant Sunil Mandal @ Akal Mandal rather such allegation was developed intentionally and purposely by the witnesses in course of trial and the learned Trial Judge failed to take into consideration of such omission and commission. Even uncles of the victim viz. P.W. 1 Lakhan Barik and P.W. 2 Andar Mohan Barik who were present in the adjacent room watching T.V. have not supported the prosecution case that the offence of rape was committed on their niece Renuka Barik by the appellant Sunil Mandal or that such offence was abetted by the appellant Anand Chitrakar or the other appellants had extended threat of dire consequences by trespassing into the house of the informant.
35. The learned Counsel submitted by raising the point that the informant as well as the prosecution witnesses were consistent that the victim Renuka Barik was a deaf and dumb girl and therefore, her statements by signs and signals before the Court has got no evidentiary value as the same was not recorded in terms of Section 119 of the Evidence Act. On the contrary, the trial Court interpreted the signs and signals as also expressions of the girl according to his own wisdom without taking help of any expert and therefore, such so called evidence was not fool proof leaving much scope for misinterpretation and misunderstanding, which caused prejudice to the appellants in the back drop as well that there was no eye-witness of alleged rape. Even the investigation of the case was made is most perfunctory manner and the trial court failed to take into consideration that in a serious charge under Section 376 I.P.C. framed against the accused, burden was heavy upon the prosecution to prove it conclusively. But in the instant case, the appellants have been convicted without meticulously examining the statements of the witnesses who were admittedly not the eye witnesses of the alleged occurrence. The Apex Court in catena of decisions held that on single testimony of the prosecutrix, conviction under Section 376 I.P.C. can be sustained but such testimony must be unimpeachable un-blemish and must transpire confidence and such elements are lacking in the signs and signals of the girl Renuka Barik.
6. Mr. Dayal further raised the point of law that the appellants though were convicted in their respective charges but without pointing out incriminating materials brought on the record in course of their statements recorded under Section 313 Code of Criminal Procedure against each of them in course of trial and for such reason all the appellants have been highly prejudiced thus judgment of conviction and order of sentence recorded against them cannot be sustained which amounts to miscarriage of justice.
Learned Counsel emphatically submitted that no witness has been produced and examined on behalf of prosecution who claimed having seen the alleged occurrence of rape by the appellant Sunil Mandal @ Akal Mandal on the victim Renuka Barik except his presence in the room and the witness P.W. 1 (Lakhan Barik) noticed that the appellant Sunil Mandal @ Akal Mandal was trying to hide himself when he entered into the room of Renuka. It would be relevant to mention that the written report that was presented at the first point in time before the Police Station by the father of the victim girl Indrajeet Barik nowhere alleged that the offence of rape was committed on his daughter Renuka Barik except that the appellant Sunil Mandal was trying to caught hold her body, that too, on the information derived from his brother after three days leaving much room for consultation and due deliberations and therefore, the prosecution miserably failed to bring home charge under Section 376 I.P.C. The Trial Court relied upon the statement of deaf and dumb girl recorded under Section 164 Cr.P.C. (Ext.4) and her subsequent evidence in the Trial Court but there was no consistency between the statements. The medical report (Ext.3) was also not clear in which the Doctor who attended the victim opined " it cannot be said that rape has not been committed." As a matter of fact, the occurrence did not take place in the manner 4 presented by the prosecution and the appellants have been falsely implicated out of village politics who have been highly prejudiced and therefore, appellants of both the appeals deserve acquittal thereby setting aside their conviction and sentence.
7. Heard the learned A.P.P. on behalf of the Respondent-State.
8. Upon careful and conscious consideration of entire facts and materials on both the records of appeals, I find that the admitted case of the prosecution was that the victim girl P.W. 9 Renuka Barik was a deaf and dumb girl, quite unable to speak and she could express only by signs and signals. Her statement was recorded at the first instance under Section 164 Code of Criminal Procedure without assistance of expert/interpreter. However, during her statement before the Trial Court I find that assistance of one Ajeet Kumar Singh was taken as is found in the endorsement of the Trial Judge at the foot of the statement of Renuka Barik and his competency as interpreter was seriously challenged by the defence as has been found noted in the said endorsement. But the issue remains that neither the court put questions as to competency of the interpreter for fair trial nor such question was put by the defence to him and such lapses have left much room for ifs and buts as to the veracity of so called testimony of the victim Renuka Barik.
9. I carefully perused her testimony and in her statement contained in para 8, she deposed that she had visited the Police Station after four days of alleged occurrence where she delivered her statements by signs and signals duly recorded by "Darogajee" and she put her L.T.I. thereon. I could not understand as to how she expressed " Darogajee" by signs and signals without aid of interpreter. Even if interpreter was required by the Trial Court in the given facts and circumstances of the case, I am of the firm view that either such interpreter should have either been examined by the prosecution or under Section 311 Code of Criminal Procedure with a view to ascertaining his competency in such area of doing interpretation of a deaf and dumb girl. On the other hand, I find that the informant in the instant case is the father of Renuka namely Indrajeet Barik and no explanation could be afforded on behalf of the prosecution about such discrepancy as on his statement law was set to motion and investigation of the case was done.
10. The next point that has been highlighted is delay of four days in lodging case. I find substance that the uncle and brother of Renuka Barik were present in the house and they were competent person to lodge case but the prosecution failed to explain as to what prevent them in instituting case. The possibility of due deliberation and consultation before lodging case for long four days cannot be ruled out for false implication of the appellants.
11. I find that the own uncles of Renuka viz. P.W. 1 Lakhan Barik and P.W. 2 Andar Mohan Barik in their statements had not supported the charge of rape against the appellant Sunil Mandal @ Akal Mandal though both were present in the house at the alleged time and place of occurrence in the adjacent room. Even the informant father in his statement before the police had not reported the offence of rape against Sunil Mandal and for such reason case was instituted initially for the alleged offence under Sections 448/354/323/34 I.P.C. against all the appellants.
512. Renuka Barik was examined by a lady doctor P.W. 7 after five days of alleged occurrence on 28.02.1997 but no injury around and no spermatozoa dead or alive was found in vaginal swab taken out from her private part. Old rupture of her vagina was found and the doctor did not rule out the possibility that she was habitual of sexual intercourse. She was not sure as to whether rape was committed on Renuka or not though abrasion were found on her breast and abdomen.
13. In view of above discussions, I find that the prosecution failed to bring home fool proof charge against the appellants, rather a reasonable doubt is created as to their complicity for the alleged charge. Having regard to the facts and circumstances of the case and after giving them benefit of doubt, all the appellants namely Ajit Mandal, Manik Mandal, Barun Mandal & Gurua Mandal( Cr. Appeal No. 434 of 2000) & Sunil Mandal @ Akal Mandal and Anand Chitrakar (In Cr. Appeal No.436 of 2000) are acquitted by allowing their appeals. The appellant Sunil Mandal @ Akal Mandal is set at liberty and is directed to be released at once in this case if not required in any other case. Other appellants are discharged from their liability of bail bonds.
[D.K.Sinha,J.]
Jharkhand High Court, Ranchi
Dated the 14.10.2009
P.K.S./N.A.F.R.