Dismissed

Ashok Kumhar Alias Kumar v. the State of Jharkhand

Jharkhand HC8 Oct 2018Cr.A(DB)/179/2015

Case brief

AI extract

What is this about?

The appellant appealed against conviction and sentence for rape arising from the offence under Section 376(2)(g) IPC. The bench affirmed the trial court's judgment, holding that the prosecutrix's testimony, though uncorroborated, was reliable and sufficient for conviction, dismissing the challenges regarding delay and conduct.

What did the court decide?

Appeal dismissed; conviction and sentence of the appellant under Section 376(2)(g) IPC and Section 3 of the Code of Criminal Procedure, 1973 confirmed.

Ashok Kumhar Alias Kumar Vs the State of Jharkhand — Jharkhand HC (2018) — LawSathi Research

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Cr. Appeal (DB) No. 179 of 2015

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Cr. Appeal (D.B.) No. 179 of 2015

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(Against the judgment of conviction dated 22.1.2015 and order of sentence dated 2.2.2015 passed by the learned Sessions Judge, Seraikella Kharswan in Sessions Trial No. 60 of 2012)

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Ashok Kumhar @ Kumar, S/o Late Gunadhar Kumhar, R/o Vill. Hutui, P.O. & P.S. Nimdih, Distt.- Seraikella Kharswan …

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Distt.- Seraikella Kharswan … … Appellant Versus The State of Jharkhand … … Respondent -----For the Appellant : Mr.Satya Narayan Prasad, Advocate For the State : Mr. Gouri Shankar Prasad, Addl. P.P. ------

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P R E S E N T

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HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE ANANT BIJAY SINGH

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C.A.V. ON 30/08/2018 PRONOUNCED ON 08/10/2018

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Aniruddha Bose, CJ: The appellant assails in this appeal the judgment of the

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Sessions Judge, Seraikella Kharswan delivered on 22^nd January, 2015

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in Sessions Trial No. 60 of 2012 holding him guilty of having committed offence under Section 376(2)(g) of the Indian Penal Code, 1860. The victim was related to her, being the wife of his father’s brother.

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The date of occurrence of the incident is past midnight of 4^th October, 2011. Case was started against the appellant on complaint made by the victim on 8^th October, 2011, which was registered as FIR No. 34/11. This FIR, along with the complaint has

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Cr. Appeal (DB) No. 179 of 2015

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been marked as Ext.3 in the Trial. In the complaint in writing, on the basis of which the FIR was registered, the victim informant stated that on 4^th October, 2011 at about 1:00 am the appellant Ashok Kumar had

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got the door of her house opened and entered therein. At that point of time, as per her statement, she also saw Dhuchu Majhi, Riday Kumar and Ketap Kumar with him. Ashok Kumar and Dhuchu Majhi commanded her to keep quite on the threat of shooting her and thereafter two of them i.e. Ashok Kumar and Dhuchu Majhi had committed rape upon her. She further stated that Ketap Kumar and Riday Kumar were standing at the door. She alleged that Ketap Kumar

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and Riday Kumar had stolen one brass kalash (Water Pot). Prior to that, she stated in her complaint that they had stolen two cycles, three

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gold mahar and Rs.40,000/-. Charge-sheet, however, was submitted against the appellant and Dhuchu Majhi only.

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We are apprised by the learned Advocate for the State that

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Dhuchu Majhi had been absconding and hence there was direction for split up trial. In the trial, the appellant having been found guilty of committing offence under Section 376(2)(g) of the Code was sentenced to undergo rigorous imprisonment of ten years and also to pay fine of Rs. 2000/-. In case of default in payment of fine, simple imprisonment for a further period of two months was prescribed.

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In the trial, altogether 11 witnesses were examined. Among them, nine were witnesses of fact, including the prosecutrix

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Cr. Appeal (DB) No. 179 of 2015

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who deposed as P.W.1. P.W.10 was the medical practitioner, Dr. Punam Minj, who had examined the victim after lodging of the FIR. P.W.11 was the Investigating Officer. Of these nine witnesses of fact,

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P.W.3, P.W.4, P.W.5 and P.W.6 had turned hostile. All these four prosecution witnesses were residents of the same village i.e. Hutu. P.W.4 described the prosecutrix as her chachi (Aunt).

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Conviction was primarily based on evidence of the prosecutrix. Before the Trial Court, there was no direct evidence in the form of eyewitness account barring the deposition of the prosecutrix on commission of the offence and involvement of the appellant in such offence.

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P.W.10 in course of her examination opined that there was

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intercourse but she did not say the same had taken place in near past. No external or internal injury and no spermatozoa, dead or alive, could

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be found as per the evidence of P.W.10. Wearing apparels of the prosecutrix were not seized. The other witnesses who deposed for the prosecution were P.W.2, Fatu Kumhar, husband of the informant, P.W.7, her daughter-in-law, P.W.8, Azambar Kumar, and P.W.9, Shokha Kumhar, both sons of the prosecutrix. P.nW.2, P.W.7, P.W.8 and P.W.9 were not at the place of occurrence when the incident took place. It is evidence of the prosecutrix that at the point of time the offence was committed, she was sleeping alone in her house. She has deposed that after occurrence of the incident she had bolted the door

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Cr. Appeal (DB) No. 179 of 2015

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and slept. She has named both Dhuchu Majhi and the appellant being the two men who had outraged her modesty, in that order. She has attributed her lack of resistance to fear, as the accused persons were armed with an axe. She stated that as she was thrown on the “soil” (floor), there was no injury on her body. It is also her evidence that she had disclosed the incident to the mother of the appellant very next morning. It has also come out from evidence of the victim that the mother of the appellant had told her not to disclose the incident to her husband. According to the deposition of the prosecutrix, she informed both her sons over telephone and called them to her home. P.W.2, husband of the victim, deposed that on the day of occurrence, he had gone to sell vegetables to Gamharia Bazar and when he returned next

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day at about 4 O’clock in the morning, his wife had narrated to him the incident.

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P.W.7, daughter-in-law of the victim and wife of P.W.8-

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Azambar Kumar, deposed that on the day of occurrence, she was in “Tata” with her husband. Her father-in-law had called asking them to come and thereafter she along with her husband reached her in-laws home. After reaching there, her mother-in-law had told her that Ashok Kumar and Dhuchu Majhi had forced open the door and violated her

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modesty. P.W.8 Azambar Kumar had corroborated what P.W. 7 stated

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in her deposition. P.W.9, Shokha Kumhar, the other son of the victim,

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also broadly narrated the event in same sequence.

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So far as P.W.2, P.W.7, P.W.8 and P.W.9 are concerned,

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they were not at the place of occurrence at the material point of time but in their depositions they corroborated what the victim had stated

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to have had done after the incident occurred.

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Mr. Satya Narayan Prasad, learned Advocate appearing on behalf of the appellant, has argued that this was not a case where the appellant could be convicted on the sole testimony of the prosecutrix. He has referred to the conduct of the victim at the time of commission of offence as also subsequent thereto. She raised no alarm and even after the accused persons left the place of occurrence, she did not alert any of the persons close by. There was no injury mark on her body to show use of force. There was three days’ delay in making the complaint. Apart from that, there was an element of inconsistency in the deposition of the prosecutrix and that of P.W.7, in that the prosecutrix stated that she had opened the door on hearing the knock assuming it was her husband who was knocking, whereas P.W.7 in her deposition stated that she was told by the prosecutrix that Ashok Kumar and Dhuchu Majhi had forced open the door. Moreover, P.W.11, being the Investigating Officer, in his examination-in-chief, stated that

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he had recorded the statement of P.W.2 along with other prosecution

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witnesses but P.W.2 in his deposition stated that he was not asked any question by the police.

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The Trial Court has examined these factors and on the question of delay, referring to the judgment of the Hon’ble Supreme Court in the case of State of Punjab Vs. Gurmit Singh and others

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[AIR 1996 SC 1393] , found that the delay in lodging the FIR in this case would not be fatal. The prosecutrix has stated that it was only after her sons and daughter-in-law came, she went to the police station. Her conduct in the meantime does not seem to us unnatural as initially she had informed the mother of the appellant of the incident.

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On the aspect of not raising alarm at the time of commission of offence, the victim has stated that she was gagged by cloth materials for which she could not raise alarm. Moreover, she was threatened that she would be shot. In such circumstances, there is no reason to disbelieve the prosecutrix as regards reason of her silence at

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the time of occurrence of the incident and immediate aftermath thereof. Her conduct subsequent to departure of the assailants also was highlighted by Mr. Prasad. She bolted the doors and slept. But by that factor alone we again ought not to disbelieve her statement made on oath on this count. The reaction of a victim recovering from the trauma of sexual assault can vary from person to person and just because she did not raise any alarm in the middle of the night while

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she was alone in her home cannot be the reason for disbelieving the assault altogether. Lack of injury is also not fatal. The learned Trial

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Court cited the decision of the case of State of U.P. Vs. Chhotey Lal

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[(2011) 2 SCC 550] on this aspect.

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Mr. Gauri Shankar Prasad, learned Addl. P.P. appearing for

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the State, has defended the judgment, arguing that there was no error on the part of the learned trial court in finding the appellant guilty.

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The contradictions emphasized by Mr. Prasad, in our opinion, are not of such dimension that would make us reject the victim’s statement, which otherwise suffers from no contradiction. The victim has given a reliable account of the sequence of events and there is no gap in her evidence. Her testimony could not be shaken through cross-examination. In the judgment under appeal, the decisions in the cases of Md. Iqbal Vs. State of Jharkhand [(2013)

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14 SCC 481, Narender Kumar Vs. State (NCT of Delhi) [(2012)

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7 SCC 171] as also the case of Radhu Vs. State of M.P. [2007

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(12) Supreme Court 57] have been referred to. All these authorities

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lay down that it is permissible to convict an accused in a sexual offence on the basis of sole testimony of the prosecutrix. In his answer to a question put under Section 313 of the Code of Criminal Procedure, 1973, the appellant’s stand was that of bare denial. He has not produced any independent witness. There is no reason for rejecting

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the finding of the learned trial Court in holding the appellant guilty. The evidence of the prosecutrix does not raise any doubt.

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