Jharkhand High Court
Juggu Oraon vs State Of Jharkhand on 23 September, 2015
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
Criminal Appeal No. 636 of 2002
(Against the judgment and order of conviction dated
11.9.2002and sentence dated 18.9.2002 respectively passed by Sri.William Minz Ist Addl District and Sessions Judge Bokaro in Session Trial No. 295 of 2000.) ......
Juggu Oraon S/O Jeetu Oraon resident of Sonatarn P.S.B.S City District Bokaro ...... Appellant Versus The State of Jharkhand ...... Respondent ......
For the Appellant :- Mrs. Rashmi Kumari Advocate
For the State :- Mr. Mukesh Kumar A.P.P
PRESENT
HON'BLE MR. JUSTICE Ratnaker Bhengra
C.A.V On 26.6.2015 Delivered on 23-9-2015
Ratnaker Bhengra,J.
This Criminal appeal is directed against the judgment of
conviction dated 11.9.2002 and order of sentence dated 18.9.2002 in S.T. No. 295 of 2000 passed by the learned Ist Addl. District and Sessions Judge, Bokaro whereby the above named appellant has been found guilty and convicted under section 363/498/376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years under sections 363 of the Indian Penal Code, two years rigorous imprisonment under section 498 of the Indian Penal Code and five years rigorous imprisonment under section 376 of the Indian Penal Code. All the sentences would run separately.
2. The prosecution case in brief as per Fardbayan of Sri Jhingan Sao, who is the informant in this case, recorded under sections 363/366A/498/34 of the of the Indian Penal Code by the Officer In- charge of B.S. City Case No. 172 of 2000 dated 18.5.2000 is that said victim, aged about 16 years, who is resident in front of Sonatand Adarsh High School,P.S B.S.City, was married with Amarjit Sao and after marriage she came back to her paternal house to serve her mother. On 16.5.2000 at about 7.00 P.M. Victim went out from her house to attend nature's call . In the meantime, the informant also went out of his house and noticed Juggu Oraon standing near the shop of Charitar Sao. After completion of nature's call when she had gone towards ditch, accused Juggu Oraon also turned towards ditch and intercepted her and put her in fear and compelled her to accompany him. Meanwhile Arvind Sharma and Pratap Sharma went towards the ditch. It is further alleged that when the victim did not return home after an hour then the informant along with neighbours started searching for victim but she was traceless. The informant further searched Juggu Oraon, Arvind Sharma and Pratap Sharma in their house but they were also not found in their houses and ultimately case was registered against the accused persons under the aforesaid sections. After investigation I.O submitted charge-sheet under sections 363/ 366A / 498/376/34 of the Indian Penal Code against the accused-appellant and others and cognizance of the offence was taken against the accused persons.
3. As per the observation of the learned trial court, the prosecution had examined all together seven witnesses i.e. P.W 1 Charitar Sao,P.W 2 Ram Badan Yadav, P.W 3 Rameshwar Ram(I.O), P.W 4 Harihar Sao, BSL employee, P.W 5 Dr. Maithili Thakur, M.O, P.W 6, Victim and P.W 7 Jhingan Sao (Informant).
4. P.W.1 Charitar Sao and P.W 2 Ram Badan Yadav both have been declared hostile by the prosecution who have stated that they do not know about the occurrence. There is no material in the cross- examination.
5. P.W.6, who is the victim in this case, has stated that occurrence had taken place about two years ago. On the alleged date of occurrence at about 7/8 P.M she was going to attend nature's call. After attending nature's call while she was returning home then Juggu Oraon intercepted her and put her in fear and compelled her to accompany him. She out of fear went along with Juggu Oraon who took her towards Naya More,from where on a tempo, he took her to some other unknown place to a hut. He detained her in the hut for about 10-12 days and during that period, he committed rape on her. Thereafter police rescued her and apprehended Juggu Oraon. She was taken to hospital for medical treatment and thereafter she was sent to remand home, Deoghar. She further deposed that Juggu Oraon abducted her for the purpose of marriage and she told him that she could not marry him because she was already married to another person. In her cross examination she stated that she had given her statement under section 164 Cr.P.C before the Magistrate and stated the entire incidents. She was detained in the hut for about 12 days and Juggu Oraon brought food for her. She used to go to attend nature's call out of the hut alone. When the police recovered her, she did not refuse to go along with her uncle. However,the court sent her to remand home Deoghar and she was there for 5-6 months. She was married with another person in the year 1999 and lived in her matrimonial house for six months. She does not remember whether she used to go along with Juggu Oraon while he was going to attend nature's call or to bring food. She had never told before police that she had love affair with Juggu Oraon before 4-5 years of her marriage. She was in a hut of sector IV for 12 days .She further deposed that Juggu Oraon restrained her on the road and she raised Halla and he scolded her.
6. P.W.7 Jhingan Sao(Informant),father of the victim girl, has stated that on 16.5.2000 at about 7.00P.M he was present in his house and his daughter/victim went out of the house to attend nature's call. victim went towards south in the ditch and Juggu Oraon was standing near the shop of Charitar Sao and after sometime Juggu Oraon went towards the ditch . After sometime both accused Arvind Sharma and Pratap Sharm also came to the shop of Charitar Sao and both of them also went towards ditch, where Juggu Oraon and his daughter had gone. His daughter/victim did not return home after one hour and he searched for her but she was traceless. Again, he searched for his daughter in the locality and on the next date further he searched for her, but she was traceless. Thereafter he informed his brother Harihar Sao(P.W.4) about missing of his daughter and continued to search for his daughter. Lastly, on 18.5.2000 he lodged an F.I.R. He has proved his signature on the typed report which is marked as Ext '4'. In paragraph 12 and 15 of his cross examination he has answered that at about 7.00 P.M it was darkness. After one hour when victim did not return home, he went to search for her. He further went to the house of Juggu Oraon, Arvind Sharma and Pratap Sharma. He did not inform about the occurrence to the police at police camp since police was not there. On suspicion, he had gone to the house of Juggu Oraon, but his father did not tell anything. Lastly in paragraph 21 of his cross examination,he has answered that his daughter has been recovered after 12 days of lodging the F.I.R.
7. P.W.4 Harihar Sao uncle of the victim girl has stated that Jhingan Sao is his younger brother and he has lodged this case about kidnapping of victim by the accused Juggu Oraon,Arvind Sharma and Pratap Sharma on 16.5.2000 at 6.p.m (evening) . He stated that he was informed by the informant on 17.5.2000 and searched for victim and on 18..5.2000 lodged F.I.R in the concerned police station. He replied in para-6 and 7 of his cross examination that victim was married on 11.5.1999.He went to B.S.City P.S on
18..5.2000 and on recovery of victimi police recorded his statement at police station. He does not know about the love affair between victim and Juggu Oraon.
8. P.W.5 Dr. Maithili Thakur has stated that on 2.6.2000 she was posted as Medical Officer at State Dispensary , Sector 'I' B.S.City and on the same day she examined victim/daughter of Jhingan Sao resident of Sonatand Adarsh High School, P.S B.S City Dist Bokaro and found as follows :-
(i) gait is normal. There is no sign of struggle i.e. abrasion, scratch etc on face, neck, breast, arms and inner side of thigh in and around vagina.
(ii) Secondary Sex Character well developed, teeth count
32.
(iii) Hymen absent in vagina and admits two fingers loose , uterus is normal in size. There is no discharge/or secretion or blood and foreign body in and around vagina.
9. The doctor opined that there is no sign of struggle present. Vagina swab reports-sperm is not seen, so there is no sign of rape. According to the X-ray report, the age appears to be 17-18 years old. She has proved the medical report in her handwriting, marked Ext.'3'.
10. P.W.3 Rameshwar Ram (S.I),I.O has stated that on 18.5.2000, he was posted at B.S. City P.S and was handed over investigation of this case from the inspector cum officer-Incharge Ramashish Rout of B.S.City P.S. He recorded the statement of the informant on 18.5.2000 and visited the place of occurrence along with the informant. The place of occurrence is 50 yards south from the sonatand police picket and on the east of the house of the informant and in the east of the house of the informant there is tiled roof of the house. He further recorded the statement of witnesses Asha Devi W/O Jhingan Sah, Mantosh Kumar son of Sudama Sah at Sonatand.Charitar Sah son of Ram Chandra Sao of Sonatand and all have supported the version of the F.I.R. He searched for the accused and arrested Pratap Sharma @ Pratap Kumar Yadav on 19.5.2000. He came to know from accused Pratap Sharma that Juggu Oraon had kidnapped victim. He searched for Juggu Oraon but did not get any trace. Thereafter he raided the hut of Sector 'IV' and recovered victim and accused Juggu Oraon fled away. He has got victim medically examined and received the medical report. He recorded the statement of victim on 30.5.2000 at the P.S. He arrested Juggu Oraon on 30.5.2000 and forwarded him to Jail on 31.5.2000. He got the statement recorded of victim under section 164 Cr.P.C on 1.6.2000. He found sufficient evidence against Juggu Oraon and Pratap Sharma and submitted charge sheet against them. He has answered in Para 15 and 18 of his cross examination that he recorded the statement of victim and she told that she was in love since before her marriage with accused Juggu Oraon. She further told him that Juggu Oraon had asked her to go and she accompanied with him. Victim complained against juggu Oraon and Pratap Kumar Yadav. Juggu Oraon committed sexual intercourse with her 20 times and there was love affair with him. On 16.5.2000 the informant has not reported in the police station.
11. Learned counsel for the appellant has defended her case by first and foremost stating that no case whatsoever is made out because the victim was a consenting party and whatever transpired did so between two consenting mature persons, hence no case under section 376 and 498 IPC can be made out and sustained. Further she was not taken from isolated place nor kept in isolated place. She was not totally confined there. She went for toilet and Juggu Oraon brought her food and that no independent witness supports her case and some have turned hostile.
12. The learned counsel for the appellant has pointed out that in the statement dated 1.6.2000 made under section 164 Cr.P.C P.W. 6 the victim has stated that four to five years prior to her marriage she was in romantic relationship with Juggu Oraon. That on 16.5.2000 Juggu Oraon had called her on the road and asked her to accompany him to sector IV to which she agreed. Juggu Oraon was alone and the two of them went to a hut in Sector IV. They stayed in the hut for around 10-12 days and during that time Juggu Oraon must have had sexual intercourse twenty times. Juggu Oraon knew that She was married. Even before marriage Juggu Oraon has had sexual intercourse with her. Hence from this statement made under section 164 Cr.P.C it is quite obvious that there was already a relationship between the P.W 6(victim) and Jaggu Oraon, even 4 to 5 years before. P.W 6 was married to one, and from her statement it is clear that P.W. 6 and Juggu Oraon were still very much on not only on cordial terms but also intimate term, so much so that she submits that she willingly had sex with Juggu Oraon 20 times in a span of 10 to 12 days.
13. Against this, though in the dock of the court she seems to negate any relationship with the accused, she nevertheless from her conduct seems to be a willing and consenting party in going along with Juggu Oraon. The hut where they stayed was it seems not in an isolated place and she did go out for toilet in the morning and evening and Juggu Oraon it seems brought her food from somewhere, so she had ample occasion to flee but rather she stays there and was recovered.
14. Then the P.W.3 namely Rameshwar Ram Sub-Inspector, who was the Investigating Officer(I.O) of this case, has recorded in para 15 and 18 of his cross examination about the relationship or prior relationship of Juggu Oraon and victim, she told that she was in love with the accused Juggu Oraon before her marriage. That she further told him that Juggu Oraon asked her to go with him to Sector IV and she did go willingly. She also told that Juggu Oraon had intercourse with her 20 times and there was love affair with him.
15. Learned counsel for the petitioner has further stated that no offence under section 498 IPC is made out because she was not married to Juggu Oraon .Offence under sections 363 and 376 of the Indian Penal Code also is not made out since relationship existed prior to marriage. She willingly went with Juggu Oraon and continued intimates relationship even after marriage.
16. The learned counsel for the appellant has also asserted that in fact no independent witness has supported her case.Learned counsel for the appellant has also pointed out P.W 5 or the Doctor's examination of the alleged victim lady and has asserted that this also does not support or corroborate the alleged rape. That gait of victim was normal and there was no sign of scratch mark on her body, hence no struggle. The Doctor had given opinion that rape was not committed.
17. The learned counsel for the State on the other hand submitted that the victim lady,P.W 6 has supported the prosecution in her evidence and some variation is minor. Moreover,the father of the girl P.W 7 and her uncle P.W4 have also supported the prosecution in their evidence. Also that the victim lady was recovered from the hut or place of the alleged accused which prove his involvement in the crime.
Findings:
18. Having heard the arguments, perused the records and weighed the facts and circumstances certain points emerge. That though she claims that she was forced or threatened to go along with Juggu Oraon and kept in a hut, it seems from her statement that she had sufficient occasion to flee from the clutches or the company of Juggu Oraon, but did not. She has stated that she was with Juggu Oraon in the hut for 10-12 days. She used to go to toilet outside alone and that she used to go morning and evening .So she had ample opportunity to escape if she wanted to. She further deposed that regarding whether she used to accompany Juggu Oraon, when he used to go to toilet or go and get food alone, she has no remembrance .In this case, if the accused left her to get food, then again she was left alone. If she accompanied him to get food then also over a 10-12 days period she would have had opportunity to escape or raise alarm. Morerover, it is highly doubtful that the victim lady would accompany the accused every time, he used to go to the toilet and hence again she would have been left alone. Hence from her deposition and her conduct that seems to emerge from the circumstances in the deposition, the victim lady seems to be staying with the accused voluntarily. Her "recovery" was made after only 10-12 days when the hut of the accused was raided. It is possible that if the hut was not raided the recovery would not have been made. To corroborate her conduct that emerges from her deposition it will be necessary to read the deposition of P.W 3 or the I.O. He has said that the victim girl had given a statement that she knew the accused from before her marriage and she was in a relationship with him. That on that particular day Juggu Oraon had called her besides the road and asked her to go with him to Sector IV to which she agreed(Para-15 of deposition of I.O).She also informed the P.W.3 that accused Juggu Oraon had sexual intercourse with her twenty times and they were romantically involved from before(Para 18 of deposition of I.O). So if the deposition of the victim lady P.W.6 and the I.O. P.W 3 are taken together it seems that the two persons were known to each other from before and were in an intimate relationship that she went willingly with Jagu Oraon to Sector IV and and she was willingly staying there in the hut for about 10-12 days till she was recovered.
19. It appears that the Doctor, P.W.5 has opined after examination of the victim lady that she not found any mark of violence on the body of the patient and she not found any sign of rape after examining of the patient. So as per the doctor's observation also, the offence of rape is not made out.
20. Finally, in her deposition there is an indication that her relationship with her husband and in-laws were not too cordial or warm. She has stated that she had come home to her parent's place for 5-6 months, but her husband did not come to meet her. That she was in Nari Niketan at Deoghar for 5-6 months, but neither her husband nor in -laws came to meet her and neither was any letter sent by her husband nor her father-in-law. Thus lack of communication by her husband and -in-law to a wife or daughter-in- law who was allegedly raped raises some doubts about the accusation.
21. In (1982) 2 SCC 538, Jaya Mala Versus Home Secretary, Government of Jammu and Kashmir in a case where a young person was accused of offence under sections 307/504 and 306 of the Indian Penal Code, the Hon'ble Apex Court observed at para-9 that;
"........ However, 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....."
22. In this case in the fardbeyan, the father of the girl puts the age as 16.That in deposition form for recording statement under section 164 Cr.P.C by the victim, two ages are indicated i.e. 16 and 17. That Dr. Maithili Thakur, in her deposition before the court below has stated that age of the girl, according to Xray report, appears to be 17 years to 18 years old.
23. That In this case age is of decisive importance. From what is on record on the documents, her age range from 16 to 18, with 16 being the age claimed by the father-informant which is natural, if he wants to get conviction. It must, however, not be disregarded that the family of the girl had already married her ahead of the alleged incident, so they must have considered her mature enough to be married.
24. The Doctor has certified that as per radiological basis, she is 17-18 years. It has been held by a decision of the Apex Court that margin in the age of radiological examination can be of two years on either side.
25. Now if one looks at section 361 of the IPC, the age of offence for kidnaping a minor from lawful guardianship for a female is 18 years,so it is possible that she was matured enough and also of 18 years when the incident took place and if the margin is allowed in excess, she would have been even 19 years or more.
26. Further in another case(2010) 1 SCC 742(Sunil Vs. State of Haryana) where the Apex court has observed at para-26 that;
".........In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date."
27. Hence, giving the accused the benefit of doubt, as per radiological basis, her age would have been 18 or 19 and her consent would be a valid consent. Hence from her prior conduct and relationship with the accused before marriage that she seems to have also gone along willingly with the accused as deposed by the P.W.3,I.O and the victim girl in her deposition under section 164 Cr.P.C and though she had ample occasion to flee away in the 10-12 days she was with the accused would absolve accused person from offence of section 363 IPC.
28. With reference to Section 376 IPC, once again the issue of consent is raised here. It has already been observed that taking the radiological basis of age and the margin on the excess side, that she was already wed by her parents, that the girl was in a relationship with him prior to marriage and willingly went with him and she freely stayed with him for 10-12 days till she is "recovered" and the observation of the doctor P.W. 5, that rape had not taken place , would lead to the conclusion that rape against the will of the girl had not taken place, Hence the accused would not also be guilty of section 376 IPC.
29. Finally regarding 498 IPC here also the element of consent is required. The Section uses the word "entice" or takes away any woman and " conceals" or "detains" her. Here too, as per the reasons already mentioned aforesaid, she already had a prior intimate relationship that continued and she rather willing went and stayed with him, so the question of enticement concealment or detaining her does not arise. From the conduct of her husband and father-in-law who did not visit her in the shelter/ or women home in Deoghar when she was there for 5-6 months or even write her a letter, would suggest that for some reason there was a lack of concern on their behalf.
30 Hence based on my aforesaid findings on the basis of records and arguments it does not seem to be that the offence of Sections 363/376/498 of the Indian Penal Code are proved beyond reasonable doubt to hold the accused guilty. Rather both are mature persons and the statements made by the P.W 6 victim lady and P.W3 I.O indicates an intimate prior relationship which was still continuing and she willingly stayed with the accused. I, therefore, hold the accused Juggu Oraon as not guilty for the offences under sections 363/376/498 of the Indian Penal Code and acquit him for the offences charged against him. Accordingly, this appeal is allowed and judgment of conviction dated 11.9.2002 and order of sentence dated 18.9.2002 passed by the trial court are set aside. Since the appellant Juggu Oraon is on bail as per order dated 21.1.2003 of this court, he is discharged from the liability of his bail bond.
(Ratnaker Bhengra,J) Jharkhand High Court, Ranchi.
Dated 23-9-2015/SD/AFR