Jharkhand High Court
Diku Chaki vs The State Of Jharkhand on 4 August, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Ambuj Nath
Criminal Appeal (D.B.) No. 2129 of 2017
[Against the judgment and order of conviction and sentence dated
22.08.2017 (sentence passed on 25.08.2017) passed by Sri Manoj Kumar
Singh, learned Additional Sessions Judge-I, West Singhbhum at Chaibasa
in S.T. Case No. 102 of 2011]
...........
Diku Chaki, S/o Late Jaipal Chaki, R/o Village- Kudaburu, P.S. Sunua, P.O.- Sunua, District- West Singhbhum ... Appellant Versus The State of Jharkhand ... Respondent With Criminal Appeal (S.J.) No. 2152 of 2017 ...........
Mantri Chaki, S/o Ladura Chaki, R/o Kudaburu, P.O. Lonjo, P.S. Sonua, District-West Singhbhum at Chaibasa ... Appellant Versus The State of Jharkhand ... Respondent ...........
For the Appellants : Mr. Ashish Verma, Advocate (In Criminal Appeal (D.B.) No. 2129 of 2017) Mr. N.K. Sahani, Advocate (In Criminal Appeal (S.J.) No. 2152 of 2017) For the State : Mr. Satish Prasad, A.P.P. (In both cases) PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........
C.A.V. on 28/07/2022 Pronounced on 4 /08/2022 Heard Mr. Ashish Verma, learned counsel for the appellant in Criminal Appeal (D.B.) No. 2129 of 2017, Mr. N.K. Sahani, learned counsel for the appellant in Criminal Appeal (S.J.) No. 2152 of 2017 and opposed by Mr. Satish Prasad, learned A.P.P. for the State.
2. Since both these appeals arise out of a common judgment and order of conviction and sentence the same are being disposed of by this common order.
3. Both these appeal are directed against the judgment and order of conviction and sentence dated 22.08.2017 (sentence passed on 25.08.2017) passed by Sri Manoj Kumar Singh, learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in S.T. Case No. 102 of 2011, whereby and whereunder the appellants have been convicted for the offence u/s 366 of the IPC and the appellant-Diku Chaki in Criminal Appeal (D.B.) No. 2129 of 2017 has been further convicted for the offence punishable u/s 376 of the IPC for which
-2- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 he has been sentenced to undergo imprisonment for 10 years along with a fine of Rs. 10,000/- while both the appellant have been sentenced to undergo imprisonment for 05 years along with a fine of Rs. 10,000/- each for the offence u/s 366 of the IPC.
4. The fardbeyan of Kumari Nagi Tiu was recorded on 13.09.2010 at 10:00 A.M., in which, it has been stated that she sells Haria at Goilkera weekly market on Friday's. About three weeks back on a Friday (27.08.2010) she was as usual selling Haria when at about 03:00 P.M. Diku Chaki and Mantri Chaki from village Kudaburu had come to drink Haria and after having Haria Mantri Chaki proposed her for marriage and asked her to accompany him. She went to Sonua on the bicycle of Mantri Chaki and Diku Chaki was in the other bicycle. Thereafter all three of them went to the house of the maternal uncle of Diku Chaki. While Mantri Chaki at night went outside to answer the call of nature Diku Chaki at about 01:30 A.M. came near the informant and committed rape upon her. On the offer of Diku Chaki to keep her the informant refused as he had committed her rape. It has been alleged that Diku Chaki had thereafter left and the informant also left and disclosed the incident to her family members. The incident was also brought to the knowledge of the village Munda Shivshankar Nayak who along with the family members of the informant and the villagers went to Kudaburu in search of Diku Chaki and Mantri Chaki and this caused the delay in institution of the First Information Report.
Based on the aforesaid allegations Sonua P.S. Case No. 32/2010 was instituted u/s 366 and 376 of the IPC against Diku Chaki and Mantri Chaki. On conclusion of investigation charge-sheet was submitted against both the accused persons and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. Case No. 102 of 2011. Charge was framed against both the accused persons u/s 366 of the IPC and against Diku Chaki u/s 376 of the IPC which was read
-3- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.
5. The prosecution has examined as many as eleven witnesses in support of its case.
6. P.W.1 (Namrata Bodra) is the aunt of the informant. She has deposed that the incident is of two years back on a Friday when Nagi Tiu had gone to sell Haria in Goilkera market but she did not return. She returned after five days and disclosed that Diku Chaki and Mantri Chaki had taken her to Sonua to the house of the maternal uncle of Diku and he had committed rape upon her consecutively for five days.
In cross-examination, she has deposed that the disappearance of the victim from Goilkera market was not informed to the Police.
7. P.W.2 (Nagi Tiu) is the informant who has proved her signature in the fardbeyan which has been marked as Exhibit-1. She has stated that the incident is of two years back when she had gone to Goilkera market to sell Haria and Diku Chaki and Mantri Chaki had come to her shop, consumed Haria and thereafter both had taken her to Jeruasai and Mantri had proposed to marry her. She has further stated that Diku Chaki had taken her to his maternal uncle's place and at night Diku Chaki had committed rape upon her. She was kept for five days but rape was committed only on the first day. She had informed her brother-in-law and her father after which a Panchayati was held and since no decision could be arrived at in the Panchayat the case was instituted.
In cross-examination, she has deposed that she and Mantri Chaki belong to the "HO" community where the custom is of the boy taking away an adult female and get married and the family members accept the marriage. On the date of occurrence, her parents were with her but she did not inform them when she left with the accused. She has deposed that she had returned alone
-4- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 from the house of the maternal uncle of Diku Chaki. She had filed the case when no decision could be taken in the village. When Diku Chaki refused to solemnize marriage the case was lodged.
8. P.W.3 (Bagun Tiu) is the father of the victim Nagi Tiu. He has stated that Mantri Chaki and Diku Chaki had taken his daughter to Jeruasai on the pretext of marriage and when she did not return a search was made and she was brought back home from Kudaburu. On being asked his daughter had disclosed that Diku Chaki had committed rape upon her. She had also stated that Mantri Chaki was also with Diku Chaki. He has stated that the issue could not be resolved in the Panchayat.
In cross-examination, he has deposed that in the Panchayat the matter regarding marriage was discussed and on refusal the case was lodged.
9. P.W.4 (Shivshankar Nayak) has identified his signature in the fardbeyan which has been marked as Exhibit-1/1. He has stated that the occurrence is of 2010 for which a Panchayati was held in the village and both Diku Chaki and Mantri Chaki were called to attend the Panchayat. He has further stated that Nagi Tiu had disclosed that Diku Chaki had committed rape upon her. She had also disclosed that she was taken to Jeruasai by Diku Chaki and Mantri Chaki. He has stated that Diku Chaki had confessed to have committed rape upon Nagi Tiu.
In cross-examination, he has deposed that in the Panchayat it was decided that Diku Chaki will keep Nagi Tiu with him. The father of Diku Chaki did not like Nagi Tiu due to which the meeting of the Panchayat ended and a case was lodged.
10. P.W.5 (Ramesh Tiu) has deposed that the victim is his niece who had gone to sell Haria but she did not return and after three days it came to light that she was at Kudaburu. The brother of this witness had disclosed that Diku Chaki and another person had taken her away for keeping her and Diku Chaki had committed rape upon her.
-5- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 In cross-examination, he has stated about the customs prevailing in the "HO" community regarding marriage. He has also stated that Nagi had gone to the house of Diku Chaki to solemnize marriage with him. He had come to know about the occurrence after about a month.
11. P.W.6 ((Dr. Anita Samant) had conducted the medical examination of Nagi Tiu on 15.09.2010 and had found the following:
(i) Identification mark :-
(a) A black til on right arm.
(b) A til over right eyebrow.
(ii) General Examination :- Complexion - Dark, Body Built- average, Height - 148 cm., Weight - 41 Kg., Teeth - 14/14.
(iii) Mental Status :- Normal.
(iv) Secondary Sex Character - Breast well developed. Axillary hair present (Scanty). Pubic hair - present.
(v) M/H :- Menarche four years back as per her statement.
(vi) M/V :- No mark of violence on bady & private parts.
(vii) Per Vaginal :- Hymen - ruptured, Bleeding - Absent, Tenderness - Absent, Introitus - Admit one finger.
(viii) Vaginal Swab Report :-
(a) On physical examination - Hazy,
(b) Microscopic examination - No spermatozoa dead or live found.
(ix) X-ray Report :- Wrist & Hand shows - Pisiform ossified, Heads of metacarpal fused, Lower end of radius and ulna fused.
(x) X-ray elbow shows - Medial epicondyl fused.
(xi) X-ray of pelvis shows :- Crest of ilium not fused but fusion has started, Ischial tuberosity not fused, Age 17 to 18 years.
As per her opinion, sexual intercourse had taken place. The age of the victim was assessed to be between 17-18 years.
In cross-examination, she has stated that her opinion that sexual intercourse had taken place is based upon the fact that the hymen was found ruptured. The hymen may be ruptured due to other reasons such as cycling or climbing on
-6- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 tree etc.
12. P.W.7 (Devnandan Murari) is the Investigating Officer of the case who was handed over the investigation of Sonua P.S. Case No. 32 of 2010 by the Officer-in-Charge of Sonua P.S. He had recorded the restatement of the informant and had also recorded the statements of Bagun Tiu, Namrata Bodra and Shivshankar Nayak. He had thereafter proceeded to the place of occurrence which is at village Jeruasai in the house of the maternal uncle of Diku Chaki which consists of three rooms and in the middle room rape was said to have been committed. Both the accused persons were apprehended from village Kudaburu. He had sent the victim for medical examination on 15.09.2010 to Sadar Hospital, Chaibasa and on 27.09.2010 he had obtained the medical report. On the orders of the higher authority and on conclusion of investigation he had submitted charge-sheet u/s 366 and 376/34 of the IPC.
In cross-examination, he has stated that he had taken the statement of the witnesses who resides in village Jeruasai.
13. P.W.8 (Prem Gagrai) is the owner of a Savari vehicle which was booked by the father of the victim for going to attend the Panchayat meeting at village Kudaburu. The Panchayati was held on the issue of commission of rape upon Nagi Tiu.
14. P.W.9 (Ladura Bodra) did not support the case of the prosecution and was accordingly declared hostile by the prosecution.
15. P.W.10 (Basudeo Gunuwa) has deposed that about three years back two unknown persons had come on a motorcycle to the house of Joy Gunuwa and had asked his wife about the whereabouts of Diku Chaki and Mantri Chaki. Since she could not state anything this witness was called and when he asked the wife of Joy Gunuwa she disclosed that Diku Chaki and Mantri Chaki had come to her house. This witness was declared hostile by the
-7- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 prosecution.
16. P.W.11 (Joy Gondua) has been declared hostile by the prosecution.
17. The statements of both the accused were recorded u/s 313 Cr.P.C. in which both have denied about their involvement in the incident.
18. Mr. Ashish Verma, learned counsel appearing for the appellant in Criminal Appeal (D.B.) No. 2129 of 2017 has submitted that the appellant Diku Chaki has falsely been implicated and there is nothing on record to indicate that he had committed rape upon the victim. It has been submitted that the victim had willingly gone with him and stayed for five days as per the "HO" custom and only because no headway could be made regarding the marriage between Diku Chaki and Nagi Tiu the First Information Report was lodged. There also appears to be an inordinate delay in lodging the First Information Report and no explanation has been put forward with respect to such delay. He has also submitted that the appellant has been released after serving out his sentence.
19. Mr. N.K. Sahani, learned counsel appearing for the appellant in Criminal Appeal (S.J.) No. 2152 of 2017 has submitted that no allegation of rape has been attributed to the appellant Mantri Chaki. It has been submitted that even the evidence of P.W.2 does not demonstrate that she was compelled by the appellant to get married or forced to have illicit intercourse on her abduction and therefore no case u/s 366 of the IPC is made out against the appellant.
20. Mr. Satish Prasad, learned A.P.P. has opposed the prayer of the appellants and has submitted that the evidence of the witnesses reveal that the victim was abducted by the appellants and taken to the house of the maternal uncle of Diku Chaki where she was ravished by Diku Chaki.
21. We have heard the rival submissions advanced by
-8- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 the learned counsels and have also perused the Lower Court Records.
22. So far as Mantri Chaki (appellant in Cr. Appeal (S.J.) No. 2152 of 2017) is concerned, he has been convicted u/s 366 of the IPC. No allegation of rape has been attributed to him. The victim in her fardbeyan and in her evidence as P.W.2 is consistent with respect to the appellant Mantri Chaki proposing marriage to her. As per P.W.2, she was taken to the house of the maternal uncle of Diku Chaki by Diku Chaki where she was subjected to rape. The involvement of Mantri Chaki seems to have been minimized and restricted only to her being accompanied by him to village Jeruasai. It would be profitable at this juncture to refer to Section 366 of the IPC which reads as follows:
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
23. The ingredients to bring home the charge u/s 366
-9- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 of the IPC have been delineated in the case of "Kavita Chandrakant Lakhani versus State of Maharashtra & Anr." reported in (2018) 6 SCC 664, wherein it has been held as follows:
"16. In order to constitute the offence of "abduction", a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse.
17. Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366 IPC, the court cannot hold the accused guilty and punish him under Section 366 IPC."
24. In the case of "Mohammed Yousuff @ Moula & Anr. versus The State of Karnataka" in Criminal Appeal No. 1938 of
-10- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 2010, it has been held as follows:
"8. Chapter XVI of IPC contains offences against the human body. Section 366, which is the pertinent provision, is contained within this Chapter. Kidnapping/abduction simpliciter is defined under Section 359 and maximum punishment for the same extends up to seven years and fine as provided under Section 363. However, if the kidnapping is done with an intent of begging, to murder, for ransom, to induce women to marry, to have illicit intercourse stricter punishments are provided from Section 363A to Section 369.
9. Section 366 clearly states that whoever kidnaps/abducts any woman with the intent that she may be compelled or knowing that she will be compelled, to either get her married or forced / seduced to have illicit intercourse they shall be punished with imprisonment of up to ten years and fine. The aforesaid Section requires the prosecution not only to lead evidence to prove kidnapping simpliciter, but also requires them to lead evidence to portray the abovementioned specific intention of the kidnapper. Therefore, in order to constitute an offence under Section 366, besides proving the factum of the abduction, the prosecution has to prove that the said abduction was for one of the purposes mentioned in the section. In this case at hand the prosecution was also required to prove that there was compulsion on the part of the accused persons to get the victim married. [See Kavita Chandrakant Lakhani v. State of Maharashtra, (2018) 6 SCC 664]."
25. It would therefore, appear that in order to prove an offence u/s 366 of the IPC "intent" has to be of paramount importance. On reverting back to the evidence of P.W.2 except the proposal of marriage and accompanying her and Diku Chaki to the house of the maternal uncle of Diku Chaki no other overt act has been alleged against Mantri Chaki. The appellant Mantri Chaki seems to have been convicted by the learned trial court by taking recourse to the Second Part of Section 366 of the IPC which denotes inducement of a women in order to force her to illicit intercourse with any other person by any other method of
-11- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 compulsion. Section 366 of the IPC, therefore, deals with compulsion upon a victim and the said compulsion can be by way of inducement, allurement or temptation. Mere proposal of marriage and an accompaniment to the house of the maternal uncle of Diku Chaki would not come within the entrapment of Section 366 of the IPC in absence of any further act indicating the knowledge of the appellant Mantri Chaki that the victim will be subjected to illicit intercourse by Diku Chaki. Another noticeable feature is the place of occurrence. It was not a secluded place but the house of the maternal uncle of Diku Chaki which also dilutes the "intent" of Mantri Chaki. Even in the Panchayati which was held the issue in question was the marriage between Diku Chaki and P.W.2 though it did not materialize. No where was the name of Mantri Chaki mentioned. The "intent" has to be processed by dint of the evidences on record but what could be discerned is a mere marriage proposal which according to P.W.2 is permissible in "HO" community and a visit to the house of the maternal uncle of Diku Chaki. There is no allegation of forcible abduction or an act of compulsion upon the victim to establish physical relationship with Diku Chaki. The learned trial court has not appreciated the aforesaid factual and legal aspects and, therefore, we come to the conclusion that the prosecution has miserably failed to prove its case against the appellant Mantri Chaki.
26. The appellant Diku Chaki has been convicted for the offences punishable u/s 366 and 376 of the IPC. His act comes within the First Part of Section 366 of the IPC as projected by the prosecution but once again falls short of the parameters guiding the guilt of an accused under the said Section. In "Mohammed Yousuff @ Moula & Anr. versus The State of Karnataka (supra) what has been held is that the prosecution is required not only to lead evidence to prove kidnapping simpliciter but also requires them to lead evidence to portray the specific "intent" of the kidnapper. The evidence of P.W.2 whose age has been assessed to be between 17-
-12- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 18 years as per P.W.6 does not reveal an act of compulsion or forcible abduction on the part of Diku Chaki. It was Mantri Chaki who had extended the proposal of marriage to P.W.2 and thereafter all three went to the house of the maternal uncle of Diku Chaki. As per P.W.2 her parents were also with her in the shop selling Haria and she had gone with the accused persons without informing them. Therefore, the initial act of Diku Chaki does not specify an act of abduction with a specific intention and in such circumstances, the learned trial court could not have convicted Diku Chaki for the offence u/s 366 of the IPC.
27. However, as regards the allegation against Diku Chaki of committing rape upon the informant is concerned, the evidence of P.W.2 is categorical in as much as in the first night itself Diku Chaki had forcible sexual intercourse with her and she was also kept in the house of his maternal uncle for five days. No doubt some delay had occurred in lodging the First Information Report but the same appears to have been suitably explained as the informant and her family members were exploring the possibility of marriage between Diku Chaki and the informant for which a Panchayati was also held but which yielded a negative result. The Doctor (P.W.6) has also opined that sexual intercourse had taken place. The evidence of P.W.2 is insulated by the evidence of P.W.1, P.W.3, P.W.4 and P.W.5. The learned trial court was, therefore, justified in recording a finding of guilt against the appellant Diku Chaki for the offence punishable u/s 376 of the IPC.
28. As a consequence to the discussions made hereinabove, we dismiss Criminal Appeal (D.B.) No. 2129 of 2017 by sustaining the conviction and sentence of the appellant Diku Chaki for the offence u/s 376 of the IPC while setting aside his conviction u/s 366 of the IPC.
29. So far as Criminal Appeal (S.J.) No. 2152 of 2017 is concerned, the judgment of conviction and order of sentence dated
-13- Cr. Appeal (D.B.) No. 2129/2017 with Cr. Appeal (S.J.) No. 2152/2017 22.08.2017 (sentence passed on 25.08.2017) passed by Sri Manoj Kumar Singh, learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in S.T. Case No. 102 of 2011 is set aside.
30. The appellant in Criminal Appeal (D.B.) No. 2129 of 2017 has already served out his sentence as submitted at the Bar by the learned counsel for the appellant and as regards the appellant in Criminal Appeal (S.J.) No. 2152 of 2017 is concerned, since he is on bail he is discharged from the liabilities of his bail bond.
31. Both these appeals are disposed off.
32. Pending I.As., if any, stand disposed off as well.
(Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) High Court of Jharkhand at Ranchi Dated, the 4th day of August, 2022.
Alok/NAFR