Jharkhand High Court
Appellant vs State Of Jharkhand on 20 April, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.19 of 2004
(Against the Judgment of conviction dated 18.12.2003 and order of
sentence dated 22.12.2003, passed in S.T. No.161 of 1998 by the
learned Sessions Judge, Singhbhum West at Chaibasa).
Sita Ram Khandait, S/o Heron Khandait, Resident of Village :-
Matagutu, P.S.:- Jhinkpani, Distt:- Singhbhum (West).
.... Appellant
Versus
State of Jharkhand. ..... Respondent
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.....
For the Appellant : Mr. A. K. Sahani, Advocate
For the State : Mr. Ram Prakash Singh, APP
......
By Court:- Heard learned counsel for the appellant and learned counsel for the State.
2. The instant Criminal appeal is directed against the Judgment of conviction dated 18.12.2003 and order of sentence dated 22.12.2003, passed in S.T. No.161 of 1998 (arising out of G.R. No.657 of 1997 corresponding to Jhinkpani P.S. Case No.68 of 1997) by the learned Sessions Judge, Singhbhum West at Chaibasa, whereby the sole appellant has been found guilty for offence under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for 7 years.
Being aggrieved by the impugned judgment, the appellant preferred the instant appeal which has been admitted on 16.04.2004 and subsequently sentence was suspended by granting bail to the appellant on 21.05.2004 by this Court and since then Criminal appeal is pending.
3. The prosecution case as is based upon the written report submitted by the informant (victim) herself before the officer in charge Jhinkpani Police Station on 17.12.1997. As per the written report, the informant is tribal girl child, aged about 13 years and she used to be sexually exploited by co-villager, Sita Ram Khandait (appellant). Sometime, the same was forcibly done and as such, she became pregnant, but the accused refused to keep her with him. She has further stated that the occurrence is known to the villagers, namely, Tutru Khandait, Pradhan Khandait, Durga Buriully and Govind Buruilly.
On the basis of the aforesaid 'fardbeyan' of the informant the Police instituted First Information Report being Jhinkpani P.S. Case No. 68 of 1997 (dated 17.12.1997) corresponding to G.R. No.657 of 1997 under Sections376/366A of the Indian Penal Code .
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4. After investigation, the Police submitted charge-sheet vide Charge-sheet no.3 of 1998 dated 27.01.1998 under Section 376 of the Indian Penal Code.
5. Cognizance of the offence was taken and the case was committed to the court of Sessions vide Notification dated 4.05.1998 where the charge has been framed against the appellant under Section 376 of the Indian Penal Code on 08.07.1998. The appellant pleaded his innocence and thus put under trial.
6. The prosecution in order to prove its case has examined altogether 7 witnesses including the informant (P.W.6), Doctor (P.W.4) and the Investigating Officer (P.W.5) and also adduced documentary evidence. Ext.1 is the written report. Ext.2 is injury report, Ext.3 is First Information Report and Ext. 3/1 is endorsement on written report.
7. Durga Biruli was examined as P.W.1, she has stated that the occurrence took place 8-9 months ago. She was informed by Jobna Biruli (father of the victim) that Sitaram Khandait committed rape with his daughter and thereafter a Panchayati was held in the village in which after hearing the victim and the accused, the Panchayat found Sitaram Khandait guilty and ordered Sitaram Khandait to live with the girl, upon which accused, Sitaram Khandait refused. On refusal by the appellant Sitaram Khandait, Jobna along with his daughter went to the Police Station and lodged written report which has been proved and marked as Exhibit 1. During cross-examination by the defence, nothing has been elucidated to demolish the prosecution case rather as per the cross-examination, he has confirmed that the Panchayati was held and attended by 80-90 persons including the pradhan and others. She claims herself to be a hearsay witness on the basis of the information given by Jobna Biruli. Defence has cross-examined, her but nothing has been extracted which goes to the root of the prosecution.
8. Govind Biruli, has been examined as P.W.2. This witness is also a hearsay witness, who was also informed by Jobna Biruli regarding commission of rape by Sitaram Khandait against the consent of his minor daughter. This witness also stated that the panchayati was held and Sitaram Khandait (appellant) was found guilty, but the appellant refused to obey the orders of panchayati and thereafter the Police was informed. This witness was cross-examined by the defence where nothing has been elucidated to demolish the prosecution case. This
-3- [Cr. Appeal (SJ) No.19 of 2004] witness has attended the Panchayati and has supported the prosecution case.
9. Pradhan Khandait, has been examined as P.W.3. He is also a hearsay witness, who heard about the commission of rape upon the daughter of Jobna Biruli by the accused Sitaram Khandait. He also supported the panchayati held in the village. On such allegation, the Panchayati has ordered the accused Sitaram Khandait, to maintain the victim, but he refused to do so. Nothing has been elucidated by the defence.
10. Dr. C.A.S.J. Suri has been examined as P.W.4, who has found the victim having pregnancy of 6 to 8 weeks. Wrist and elbow joint - not fused. X-ray - Pelvish epiphysis of iliac crest not fused and assessed age without any test and ascertained the age as 14 to 17 years old and proved the medical report written by him bearing his signature as Exhibit 2.
11. Hiralal Ram, Investigating officer of the case, has been examined as P.W.5. This witness has stated that while he was posted as an Assistant Sub-Inspector at Jhinkpani Police Station on 17.12.1997, the informant came and gave a written report to the Sub Inspector, Robin Kujur, who was In-charge of the Police Station. The case has been registered. He proved the endorsement made by the officer-in-charge, Robin Kujur in the First Information Report as Exhibit-3 and signature of Robin Kujur as Exhibit-3/1. The written report submitted by the victim, which has been identified and proved by him. This witness has investigated the case recorded re-statement of the victim, sent her to Sadar Hospital, Chaibasa for medical examination and went to the place of occurrence which is in the Village :-Matagutu, where the accused was apprehended by the villagers and from them, he took custody of the accused and the accused has also confessed his guilt before him. The statement of the victim was recorded under Section 164 Cr.P.C. by the learned Judicial Magistrate, which is part of the record and after receiving the medical report of the victim and found the case to be true. He submitted charge-sheet as per the order of the superior officers. During cross-examination, this witness has stated, that the informant has not submitted written report before him rather the same was written in presence of the officer-in-charge. At that time, this witness was also in the Police Station, but not at the place where the written report was prepared. He has also recorded the statement
-4- [Cr. Appeal (SJ) No.19 of 2004] of the co-villagers who have produced the accused to him. The evidence of the Doctor and the Investigating officer have supported the prosecution case and nothing has been elucidated by the defence to demolish the prosecution case rather the accused had admitted the guilt and in 164 Cr.P.C. statement of the victim, the learned Judicial Magistrate, has also assessed the age of the victim to be 14 years.
12. Victim has been examined as P.W.6, but her name is not being mentioned here so as to protect the identity of the victim girl. The victim has stated that while she was going to attend the call of the nature towards the pond, Sitaram Khandait (accused) used to search her. When she became pregnant, then her father informed the Munda (village head). Munda called him, but the accused refused to come and thereafter FIR was lodged. She identified her signature on the First Information Report. She has stated that she became pregnant because of Sitaram Khandait (appellant). After having knowledge about pregnancy, her father asked her, then she disclosed that Sitaram Khandait (accused/appellant) has committed rape with her. When in- mates of the house went to accused, Sitaram Khandait refused to acknowledge the pregnancy and refused to attend the panchayati, she identified the accused, Sitaram Khandait. She has stated that her treatment was done at Chaibasa Sadar Hospital and her statement was also recorded in the Court. During cross-examination, she has stated that she has now been married and she has a child of 11 months. Sitaram Khandait, accused/appellant used to reside besides her house. She has stated the name of the persons who have attended the Panchayati and Panchayat paper was given at the Police Station. The suggestion was given to the victim, but the same is not going to demolish the prosecution.
13. Jobna Biruli has been examined as P.W.7. He is the father of victim and has supported the prosecution case and Panchayati also. This witness has stated during cross-examination that victim is the only daughter of this witness, as his wife left him. Panchayati was convened. Several persons including the Village head has attended the same. At the time of occurrence, the victim was aged about 14 years. Sitaram Khandait (accused/appellant) used to run a shop for livelihood of his family. Nothing has been elucidated by the defence to disbelieve the prosecution case.
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14. After closure of the prosecution case, the statement of the appellant was recorded under Section 313 Cr.P.C. This appellant has admitted that panchayati was convened in which he was present, but denied having any relation with the victim.
15. Mr. A. K. Sahani, learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law and the judgment of conviction has been passed on the basis of evidence of a girl, whose age has not been actually ascertained properly nor the prosecution has brought any birth certificate to prove, that the victim was aged about 13 years only. The learned Judicial Magistrate, while recording the statement of the victim under Section 164 Cr.P.C., has assessed her age to be 14 years and the Doctor has assessed her age to be 14-17 years at the time of medical examination. The Doctor has mentioned on the basis of the pathological report, the pregnancy of 6-8 weeks, but no Sonography test was made.
16. Learned counsel in support of his submission has further submitted that there is no eye-witness to the occurrence, and it is only on the basis of the disclosure made by the victim before her father and panchayat, the impugned judgment of conviction and order of sentence has been passed.
17. Mr. Ram Prakash Singh, learned Additional Public Prosecutor has submitted that it is a case of rape of a minor girl in a tribal society who has disclosed her age to be 13 years. The learned Judicial Magistrate has also assessed her age to be 14 years and the Doctor has assessed her age to be 14-17 years, but the assessment made by the Doctor is without any scientific examination and as such, the age of the victim as per her statement and as per the assessment made by the Judicial Magistrate is 14 years. The defence has not brought anything on record to say that the girl was not minor at the relevant time and as such, it is a heinous crime where a minor girl child of Tribal society has been victimized. The appellant who is of 20 years of age at the relevant time.
18. Mr. Ram Prakash Singh, learned Additional Public Prosecutor has further submitted that the witnesses at the time of Panchayati have also supported the case and even the appellant in his statement
-6- [Cr. Appeal (SJ) No.19 of 2004] made under Section 313 Cr.P.C., admitted about the Panchayati and as such, in such type of offence, availability of eye-witness is impossible and there is no reason to disbelieve that as to why the victim being a minor girl child has filed the case against the appellant and as such, the impugned judgment of conviction and order of sentence requires no interference by this Hon'ble Court.
19. Having heard Mr. A. K. Sahani, learned counsel for the appellant, Mr. Ram Prakash Singh, learned Additional Public Prosecutor and on perusal of the the materials available on records i.e. F.I.R., medical report and the deposition of the witnesses, this Court is of the opinion that heinous crime like rape has been committed with minor tribal girl against her consent as mentioned in one of the descriptions of Section 375 Cr.P.C. (1) Against her will (2) without her consent (3) with or without consent when she is under 18 years of age. As per the medical report also, the victim is 14-17 years as assessed by the Doctor without any scientific test and the learned Judicial Magistrate, has also assessed the age to be 14 years and as such, this Court is of the opinion that the victim was minor at the time of alleged offence which has been committed by the appellant. The appellant never took such plea as envisaged under Section 53 Cr.P.C. and as such, there is nothing to disbelieve that a minor tribal girl will allege falsely against the appellant.
20. Under the aforesaid circumstances, on the basis of the evidence on record, this Court is of the opinion that the prosecution has succeeded in proving the charge of offence committed under Section 376 I.P.C. against the appellant.
21. The impugned judgment of conviction dated 18.12.2003 and the order of sentence dated 22.12.2003 passed in S.T. No.161 of 1998 (arising out of G.R. No.657 of 1997 corresponding to Jhinkpani P.S. Case No.68 of 1997) by the learned Sessions Judge, Singhbhum West at Chaibasa, is hereby affirmed.
22. The appellant who is on bail, his bail bond is cancelled and is directed to surrender forthwith within 15 days from the date of receipt of a copy of this judgment. On failure of his surrender, the learned Trial Court is directed to take all coercive steps against the appellant to serve out the rest of the sentence.
24. Accordingly, the instant appeal stands dismissed.
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25. Let the L.C.R. be sent to the court concerned along with a copy of this judgment be communicated to the court concerned at once.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated 20th April, 2018 sandeep/