Jharkhand High Court
Hemchandra Dan vs The State Of Jharkhand on 4 March, 2022
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 654 of 2010
--
(Against the judgment of conviction dated 12 th July, 2010 and the order
of sentence dated 16th July, 2010, passed by the learned Additional
Sessions Judge, Fast Track Court 6th, Dhanbad in Sessions Trial No. 142
of 2005)
Hemchandra Dan, son of Sri Anil Chandra Dan, resident of Village and PO:
Tilabani, PS: Gobindpur, District: Dhanbad. ....Appellant
-V e r s u s-
The State of Jharkhand ...Respondent
...
PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Birendra Kumar, Advocate
For the State-Respondent : Mrs. Lily Sahay, APP
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Reserved on: 24/11/2021 Pronounced on: 4/3/2022
...
Ratnaker Bhengra, J.:
This criminal appeal has been filed against the judgment of conviction dated 12th July, 2010 and the order of sentence dated 16th July, 2010, passed by the learned Additional Sessions Judge, Fast Track Court 6 th, Dhanbad in Sessions Trial No. 142 of 2005, whereby, the appellant has been convicted for the offence under section 376 of the Indian Penal Code and sentenced to undergo RI for seven years with a fine of Rs.25,000/- and in default thereof, appellant was directed to undergo SI for further period of four months. It was further ordered that period undergone during trial shall be set off.
Case of the prosecution:
2. The prosecution case, in brief, as per the complaint case being C.P. Case no. 557/ 2000 filed by the PW-1 complainant (name concealed) before the C.J.M, Dhanbad on 29.05.2000 is that on 22 nd May, 2000 at 05:30 pm to 06:00 pm, the complainant PW-1 along with her younger sister Ganga Bala Dan (PW-2) had gone to nearby tank for defecation. The complainant had concealed herself near a bush and in the meantime two accused persons Hemchandra Dan (appellant herein) and Madan Chandra Dan came there.
The appellant committed rape upon her and when the complainant tried to raise halla, the appellant put saree in her mouth. The other accused Madan 2 Cr. Appeal (SJ) No. 654 of 2010 Chandra Dan had overpowered PW-2 Ganga Bala Dan and threatened her of dire consequences. Complainant further stated that she was aged about fourteen years and the appellant was her neighbour and prior to the occurrence also appellant had made indecent gesture in one or two occasions and had made proposal to the complainant, but, the complainant refused and resisted his behaviour. After returning home, the complainant informed about the occurrence to her father Tara Pada Dan (PW-3). Thereafter, the father of the complainant went to the house of the appellant and complained to the appellant's father regarding the misconduct of his son. The appellant confessed his guilt and promised to marry the complainant and on such promise, the father of the appellant requested not to lodge any complaint to the police. Further case of the prosecution is that on 26 th May, 2000, the father of the complainant again went to the house of the appellant and requested his father for fixing the date to marriage but the appellant and his father refused to marry with the complainant. On the next day, a village panchayati was held in which PW-4 Jaldhar Sahni, PW-5 Surender Dan and PW-6 Uma Podo Dan participated, but, before the panchayati also appellant's father refused to marry his son with the complainant. On the next day, the father of the complainant went to the police station and reported the matter to the police where he was advised to file a complaint before the Court.
3. The said complaint was transferred to the Court of the learned Judicial Magistrate, Dhanbad for inquiry under section 192 of the Code of Criminal Procedure and the learned Magistrate took cognizance under section 376 of the Indian Penal Code against the appellant and under section 341 of the Indian Penal Code against the co-accused Madan Chandra Dan and committed the case to the Court of Sessions. Here it is pertinent to note that other co-accused Madan Chandra Dan was absconding and hence the case was separated. Charges were framed against the appellant under sections 376(2)(g) and 341 of the Indian Penal Code and trial held. At the conclusion of the trail appellant was convicted and sentenced as aforesaid. Hence, this appeal.
4. Prosecution had examined altogether six witnesses in support of its case out of whom PW-1 is the complainant of the case; PW-2 is Ganga Dan, who is the sister of the complainant; PW-3 is Tara Pada Dan, who is 3 Cr. Appeal (SJ) No. 654 of 2010 the father of the complainant; PW-4 is Jaldhar Sahni, who is the maternal uncle of the complainant; PW-5 is Surendra Dan and PW-6 is Uma Pada Dan.
5. PW-1 is the victim or the complainant of the case. Complainant had stated in her evidence that on 22.05.2000 at 5.30 pm, in the evening, she along with her younger sister Ganga had gone to the pond for defecation and in the meantime accused Hemchandra Dan and co-accused Madan Chandra Dan came there. Accused Hem Chandra Dan undressed her and raped her and co-accused Madan Chandra Dan had caught hold of her younger sister. Accused Hemchandra Dan threatened her not to disclose the occurrence to anybody. Complainant further stated that they returned home and informed about the occurrence to her father and mother. Then her father went to the house of accused Hemchandra Dan, but, father of accused said that he will marry his son with the complainant and requested not to lodge case. After three days, her father went again to the house of accused Hemchandra Dan, but, father of accused refused to solemnize marriage. Thereafter, she along with her father went to police station, but, police refused to register the case and advised them to go to the Court. Complainant further deposed that prior to going to the police station a village panchayati was held in which the village mukhiya told them to lodge the case and thereafter, the case was filed in the Court.
6. PW-2 Ganga Dan is the younger sister of complainant. PW-2 had stated in her evidence that on 22.05.2000 at 5.30 pm, in the evening, she along with her elder sister or complainant had gone to the pond for defecation. There accused Hemchandra Dan and co-accused Madan Chandra Dan came. Accused Hemchandra Dan caught the hand of her sister and when she tried to raise halla then co-accused Madan Chandra Dan pressed her mouth with his palm and restrained her from raising halla. Accused Hemchandra Dan took her sister towards the field and raped her. They returned home and informed the matter to her father.
7. PW-3 Tara Podo Dan is the father of the complainant. PW-3 had stated in his evidence that on 22.05.2000 at 5:30 pm, he was in his house. He heard alarm of his daughter and went to the place of occurrence and saw the accused Hemchandra Dan and Madan Chandra Dan fleeing away. He brought his victim daughter to his house, where she told her mother that 4 Cr. Appeal (SJ) No. 654 of 2010 accused Hemchandra Dan had committed rape with her and then her mother informed about the occurrence to him. PW-3 further stated that he informed about the occurrence to the villagers, then, villagers told him to go to the house of accused for panchayati. He went to the house of accused Hemchandra Dan, then, his father said him not to lodge any case and he will marry his son to the complainant. After 2-3 days, he again went to the house of accused, then father of the accused refused to solemnize marriage of his son and told to pay money, then, marriage will be solemnized. Thereafter, villagers advised him to lodge the case. He along with his victim daughter went to police station, but, on that day boring work was going on due to which police officer refused to receive his case. Then on 28 th, they went to Court and complaint case was lodged and statement of victim was recorded.
8. PW-4 is Jaldhar Sahni, who is the maternal Uncle (mama) of the complainant. PW-4 had stated in his evidence that on 22.05.2000 at 5:30 pm, he had gone to his paddy field for planting paddy seeds and Surender Dan was along with him. After planting seeds, when they were returning they heard alarm and went to the place of occurrence by the side of pond and saw the accused Madan Chandra Dan and Hemchandra Dan were fleeing away and complainant was lying there. Complainant told that accused Hemchandra Dan had committed rape with her. They brought the victim to her house. Panchayati was held, in which Hemchandra Dan accepted to solemnize marriage with the victim, but after four days accused Hemchandra and his father refused to solemnize marriage. Then they went to police station for lodging case, but, police refused to accept the case and then case was lodged in Court. In his cross examination, PW-4 deposed that his house is situated at a distance of 10 to 12 km from the place of occurrence.
9. PW-5 is Surender Dan. PW-5 had stated in his evidence that in the month of Jaith of the year 2000 at 4:00 pm, he was going towards the pond. Complainant and her sister were returning and complainant told him that accused Hemchandra Dan had committed rape with her. He went to the house of the complainant and complainant narrated the occurrence to her father. Then, he along with complainant's father and Uma Podo Dan, went to the house of accused Hemchandra Dan and told to the father of accused Hemchandra Dan, about the rape committed by his son to which father of 5 Cr. Appeal (SJ) No. 654 of 2010 accused requested them not to lodge any case and promised to solemnize marriage of accused Hemchandra Dan with the complainant. But, after two days, he refused to solemnize marriage and then the case was lodged. In his cross examination, PW-5 deposed that in murder case of Nimai Chandra Dan (elder brother of the appellant), he along with Uma Podo Dan were convicted for life imprisonment and in that case he is on bail. Panchayati was held, but, document was not prepared and in the panchayati 15 to 20 persons were present.
10. PW-6 is Uma Podo Dan and he had stated in his evidence that on the day of occurrence he was plowing his field. Victim along with a little girl had gone in their field for throwing the dung and their accused Hemchandra Dan had caught the victim and the victim started crying. PW-6 further stated that he went there, but, accused Hemchandra Dan threatened him to return to his field otherwise he would be killed and PW-6 out of fear returned to his field. Accused Hemchandra Dan dragged the victim towards forest. In his cross examination, PW-6 deposed that in the murder case of Nemai Chandra Dan (elder brother of the appellant) he along with Surender Dan was convicted.
Arguments of the learned counsel for the appellant:
11. Mr. Birendra Kumar, the learned counsel for the appellant, has submitted that he is not arguing on the point of conviction rather on the point of sentence only. Learned counsel submitted that for his conviction under section 376 of the Indian Penal Code, the appellant has already undergone sentence of about three years, nine months and sixteen days, hence, that should be considered as sentence sufficiently served.
12. Learned counsel for the appellant in support of his proposition has cited the judgment delivered by the Hon'ble Supreme Court in Case of "Ram Kumar v. State of Haryana" reported in (2006) 4 SCC 347. In this case, the accused Ram Kumar was convicted and sentenced by the learned trial Court as under:
"Hence I hereby convict the accused u/s 376, I.P.C. and sentence him to the minimum sentence of R.I for seven years and a fine of Rs.250 (two hundred and fifty only), in default of payment of fine the accused shall undergo further R.I. for four months and I further convict the accused u/s 366, I.P.C. and sentence him to R.I. for five years and a fine of Rs.150 (one hundred and fifty only) and in default of payment of fine the accused shall undergo R.I. 6 Cr. Appeal (SJ) No. 654 of 2010 for three months."
In appeal to the High Court, the Hon'ble Court did not find it a fit case for reduction of sentence and then on appeal, before the Hon'ble Supreme Court, at para-3 Hon'ble Supreme Court held as follows:
"3. The appellant, aggrieved by the order passed by the High Court has filed the above appeal. We have been taken through the statement and evidence recorded by the Court. Our attention was also drawn to the judgment passed by both the Sessions Court as well as the judgment passed by the High Court. The learned Counsel for the appellant drew our attention to the statement of the girl Bimla (P.W.5) and also drew our attention to the evidence of the doctor. We have carefully analysed the evidence tendered by the prosecution. In our opinion, sufficient evidence was tendered by the prosecution to prove the guilt of the accused. However at the time of hearing it is brought to our notice that the girl has now got married and living with her husband. The said statement is also ratified by the evidence of the father of the girl. Having regard to the peculiar facts and circumstances of the case, we are of the view that the sentence imposed by the Sessions Court and as affirmed by the High Court under sections 366 and 376 of the Penal Code is on the high side. In our opinion, ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly."
The learned counsel for the appellant here argues that in all probability, the victim is now married and also that in the cited case, Hon'ble Apex Court had reduced the sentence to three years only.
13. Learned counsel for the appellant, has also cited the judgment of the Hon'ble Supreme Court delivered in case of "Raj Kumar ALIAS Raju Yadav ALIAS Raju Kumar Yadav v. State of Bihar" reported in (2006) 9 SCC 589. In this case, the appellant had already undergone approximately three and a half years incarceration. The Hon'ble Supreme had at para-5 held as under:
"5. Keeping in view the fact that there was a delay of three days in lodging the FIR and the fact that the doctor (PW-
6), who examined the victim, in her testimony has deposed that she did not find any confirmatory evidence of rape on the victim, in the peculiar facts and circumstances of the present case, we deem it appropriate to reduce the sentence awarded to the appellant to the period already undergone.
Ordered accordingly."
Learned counsel for the appellant submits that in the above cited case that there was delay of three days in lodging the FIR, but, the delay in the case in hand in lodging the complaint case before the CJM, Dhanbad is of a week and no FIR was lodged before the police. Learned 7 Cr. Appeal (SJ) No. 654 of 2010 counsel further submitted that in the cited case, the doctor had not found any confirmatory evidence of rape, but, in the case on hand, the victim had not undergone any medical examination, hence, there was no evidence of rape or any medical corroboration of rape. Learned counsel further submits that in the above cited case the period undergone was of approximately three and a half years, was considered sufficient and in the case on hand, the appellant, has served a sentence of more than three years and nine months and it should be considered as adequate sentence and sufficiently punished.
14. The learned counsel for the appellant has further cited the judgment of the Hon'ble Apex Court delivered in the case of "Ravindra v. State of Madhya Pradesh" reported in (2015) 4 SCC 491. Learned counsel submitted that in this cited case, the appellant was convicted for an offence under section 376(1) of the Indian Penal Code and sentenced for ten years RI with a fine of Rs.2,000/-. Proviso to section 376 was relied upon and it was contended that the incident took place twenty years ago and by passage of time, the victim and the accused were married, a lesser sentence be imposed. The Hon'ble Apex Court after considering the submissions, considered the said proviso and had reduced the sentence to the period already undergone.
15. Learned counsel referring to Ravindra (Supra) submitted that similarly in the case on hand, the appellant is already married, and also suggests that by now the victim is probably married. Further, in this cited case, the incident had taken place twenty years ago and in the case in hand also incident took place more than twenty years ago. Hence, learned counsel submitted that here too sentence may be reduced to the period already undergone.
16. Learned counsel for the appellant further cited the judgment of the Hon'ble Supreme Court delivered in the case of "Nehnu Ram @ Narendra v. State of Rajasthan and Another" reported in (2020) 4 RCR (Criminal) 104 and pointed out paras 3, 4 and 5 of the cited judgment, which read as under:
"3. The prosecution case in brief was:-
FIR No. 85/1989 was lodged on 27.02.1989 by Sh. Surendra Agarwal that his sister - Meera, who is about 15 years, is missing. It was further informed that one Shri Nehnu Ram was working in the house of the prosecutrix (the victim) and abducted the prosecutrix. The prosecutrix 8 Cr. Appeal (SJ) No. 654 of 2010 was recovered after 2 months.
4. Both the appellant and the girl went from Jaipur to Phulera to Delhi to Nasik and they also stayed at Shirdi.
The girl in her deposition stated about different places visited by them. It was stated by the prosecutrix that she was abducted and the appellant committed rape at various places The Trial Court came to the finding that the victim was less than 16 years of age at the time of incident and it is also an established fact that the victim stayed with the appellant from 25.02.1989 to 04.05.1989. The Trial Court convicted the accused for seven years R.I. under Section 376 of the IPC and fine of Rs.100/- and in default of paying fine one month S.I. However, he was discharged from Section 366.
5. Aggrieved by the order of the Trial Court, the appellant filed an appeal before the High Court. The High Court vide order dated 24.01.2017 dismissed the appeal and affirmed the view taken by the Trial Court that the victim was less than 16 years of age at the time of the incident."
17. Learned counsel for the appellant then pointed out para 20, 21, 23 and 24 of Nehnu Ram @ Narendra (Supra), wherein Hon'ble Apex court has observed and held as follows:
20. The present is a case where the provision of Section 376(1) proviso as it existed at the time of incident was available and not a case where minimum sentence prescribed under proviso to Section 376(1) of seven years cannot be reduced on adequate and special reasons found and therefore the sentence of seven years can be reduced as is statutorily provided.
21. Now, we come back to special reasons which have been placed before us. The incident took place about 30 years ago. At the time of incident, the appellant was 22 years of age and the prosecutrix was between 15-16 years. It has been stated by learned counsel on behalf of the appellant that the appellant is married and has three daughters whereas the prosecutrix is also married and has husband and kids. As noted above, this Court has already passed an order directing the State to obtain instructions on criminal antecedents of the appellant. It has been stated by learned counsel for the State before us that there are no criminal antecedents of the appellant.
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23. Looking into the facts and circumstances of the case that incident took place 30 years ago, that both the appellant and the prosecutrix having married (not with each other) and settled in life and the appellant having already undergone the sentence of one year and seven months, we are of the view that ends of justice would be served in reducing the sentence to the sentence already undergone.
24. We, thus, confirm the conviction of the appellant under Section 376 and by invoking proviso to Section 376(1) reduce the sentence to the sentence already undergone.
9 Cr. Appeal (SJ) No. 654 of 2010
18. Learned counsel for the appellant finally submitted that on the grounds of the then legal proviso, age of the incident, age of the appellant at the time of incident and also that appellant has spent considerably more time in custody than the appellant in the just cited case and hence, period already undergone by the appellant herein may be considered as sentence sufficiently served and adequately punished.
Arguments of the learned APP appearing on behalf of the State:
19. Mrs. Lily Sahay, the learned APP, appearing on behalf of the State, submitted that the victim, who is the complainant, had corroborated the prosecution case. PW-2 Ganga Dan, who is the sister of the complainant had also supported the prosecution case. PW-3 Tara Podo Dan, PW-4 Jaldhar Sahni, PW-5 Surender Dan, and PW-6 Uma Podo Dan have also supported the prosecution case in some manner. Some minor inconsistencies in the evidences of the witnesses does not detract from the allegation and conviction of rape, hence, also the remaining sentence. Learned counsel for the State also argues that in the light of the evidence of the victim, which is supported by the other witnesses and hence, non-examination of Doctor and Investigating Officer will not remove conviction and its sentence and therefore, the impugned judgment requires to be sustained and upheld by this court also.
FINDINGS
20. Learned counsel for the appellant has argued only on the point of sentence and has cited several judgments delivered by Hon'ble Apex Court and on the basis of the aforesaid rulings, culled out a space for himself to benefit from the then legal proviso to section 376(1) of the Indian Penal Code, based on other grounds and the grounds of mitigation, which he argued out.
21.(i) Learned counsel for the appellant has firstly relied on the case of Raj Kumar (Supra) in support of invoking proviso to section 376(1) of the Indian Penal Code. In this case learned trial court had convicted the appellant under section 376 of IPC and sentenced him for seven years for which appellant had undergone sentence of three and a half years, which was reduced to the period already undergone by the Hon'ble Apex Court. In this case Hon'ble Apex Court had noted that there was delay of three days in lodging the FIR and also noted the fact that doctor, who examined the 10 Cr. Appeal (SJ) No. 654 of 2010 victim, had not found any confirmatory evidence of rape on the victim. But, in the case in hand, FIR was not lodged and the complaint case was filed after a delay of seven days and medical examination of the victim was not even done, so, question of corroboration cannot be strictly applied, but benefit on this aspect as per Raj Kumar (Supra) can be drawn.
(ii) In Ravindra (Supra), the learned trial court had convicted the appellant under section 376(1) of IPC and sentenced him to ten years rigorous imprisonment and on appeal Hon'ble Apex Court had invoked the proviso to section 376(2) IPC and reduced the sentence to the period already undergone by the appellant and in this case Hon'ble Apex Court, noted that incident was 20 years old. In the case on hand the incident occurred 20 years ago, in the year 2000.
(iii) In Nehnu Ram @ Narendra (Supra), the learned trial court had convicted the appellant under section 376 of IPC and sentenced him for seven years RI, but, Hon'ble Apex Court invoked the proviso to section 376(1) and reduced the sentence to the sentence already undergone. In this case Hon'ble Apex Court noted that incident took place thirty years ago and at the time of incident, the appellant was 22 years of age. In the case in hand, from the record it appears that at the time of incident, appellant herein was 21 years of age.
22. Apart from the cited judgments, I have gone through the evidence of the case also. In this case altogether six prosecution witnesses were examined, but, complainant was not examined by the doctor. From the evidence, I find that PW-5 is Surender Dan and PW-6 is Uma Podo Dan and in their evidence, it has come that appellant's elder brother, namely, Nemai Chandra Dan was murdered and in the muder of Nemai Chandra Dan, both PW-5 Surender Dan and PW-6 Uma Podo Dan were convicted and sentenced for life and hence, both these witnesses are interested witnesses.
23. In summing up, viz. drawing parallels from the above cited judgments, delay of seven days in lodging complaint, incident occurred 20 years ago in 2000, age of the appellant at the time of incident being 21 years, no criminal antecedents of the appellant and overall appellant had already undergone more than three years nine months of the imposed sentence of seven years and hence, in the facts and circumstances of the case, proviso to section 376(1) IPC is invoked for awarding lesser sentence.
11 Cr. Appeal (SJ) No. 654 of 2010
24. Accordingly, the impugned judgment of conviction dated 12th July, 2010, passed by the learned Additional Sessions Judge, Fast Track Court 6th, Dhanbad in Sessions Trial No. 142 of 2005 is upheld, but, so far as sentence is concerned, I restrict the sentence to the period already undergone by the appellant. The appellant Hemchandra Dan is on bail, he is discharged from the liability of the bail bonds furnished by him.
25. Accordingly, appeal is dismissed with the modification in sentence.
(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated- 4/ 3/ 2022 SB/ NAFR.