Partly allowed

Nanhak Sao v. State of Jharkhand

Jharkhand HC14 Dec 2018Cr.A(SJ)/395/2003

Case brief

AI extract

What is this about?

High Court modified appellant's conviction from rape (Section 376 IPC) to unlawful assault/modesty offence (Section 354 IPC) due to inconsistencies in victim's testimony regarding notification of incident and lack of explicit medical evidence confirming rape, while upholding the finding of sexual misconduct.

What did the court decide?

Conviction under Section 376 IPC modified to Section 354 IPC; sentence modified to three years rigorous imprisonment; bail cancelled and arrest directed.

Nanhak Sao Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Criminal Appeal (S.J.) No. 395 of 2003

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(Against the judgment of conviction and order of sentence dated 23.01.2003, passed in S.T. No. 639 of 1993 by the learned Additional Sessions Judge, Fast Track Court-I, Chatra)

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Nanhak Sao, son of Late Heman Sao, resident of village-Pitiz, Police Station-Itkhori, District-Chatra. ... Appellant

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-Versus-

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The State of Jharkhand …Respondent

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CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant :Mr. Sanjeev Thakur, Advocate; Mr. Subhash Chandra Prakash, Advocate. For the State :Mr. Pankaj Kumar, A.P.P.

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CAV on: 12/09/2018 Pronounced on:14/12/2018

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Ratnaker Bhengra, J:

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Heard the parties.

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Instant appeal is directed against the judgment of conviction and order of sentence dated 23.01.2003, passed in S.T. No. 639 of 1993 by the learned Additional Sessions Judge, Fast Track Court-I, Chatra, whereby and whereunder, the appellant has been held guilty for offence under Section 376 of the Indian Penal Code and thereby sentenced to undergo rigorous imprisonment for seven years under Section 376 of the Indian Penal Code.

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The prosecution case as per the fardbeyan of the informant/ victim PW-7 is that on 01.06.1993 at about 9:00 p.m. accused Nanhak Sao came to her house and took the victim to his house on the pretext that her husband had sent money for her. The victim believing the accused went to the house of accused. The victim was told by the accused that his wife was in the house. The victim relying on this entered into his house. In the meantime, the accused closed the door and dragged her on the earth. The victim was subjected to rape at the hands of accused in spite of her resistance. The accused committed rape for about half an hour. Victim sent information to her

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husband, who was working at Dhanbad. She could not sustain the agony of deathless shame and an attempt was made by the victim to commit suicide.

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On the basis of the fardbeyan, the formal FIR was registered under Section 376 of the Indian Penal Code. After investigation charge sheet was submitted and cognizance was taken and the case was committed to the Court of Sessions. Charges were framed under Sections 376, 306/ 511 of the Indian Penal Code. Trial was held and at the conclusion of the trial the accused or the appellant herein was convicted and sentenced as aforesaid. Hence, this appeal.

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Prosecution has examined altogether eleven witnesses to support the charges. They are PW-1, Masidas Horo, who proved formal FIR (Ext.1); PW-2, Shatrughan Prasad (Tendered); PW-3, Bhola Prasad (Tendered); PW-4, Indra Deo Yadav, who is husband of victim Malti Devi (Hostile); PW-5, Tekni Devi, so-called mother of victim (Hostile); PW-6, Shakaldeo Pd. Dangi (Hostile); PW-7, Victim and Informant; PW-8, Tekani Devi (Mother of Victim); PW-9, Badri Bhuiyan (Tendered); PW-10, Dr. Chandra Shekhar Agarwal, (Formal), who proved Injury Report (Ext.1); and PW-11, Bhuvneshwar Paswan.

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PW-7, who is the victim and informant, deposed that on the alleged date of occurrence Nanhak Sao came to her house and called her to his house on the pretext that her husband had sent money for her. She believed on the message and went to the house of accused. The accused Nanhak Sao closed the door of the house and dragged her on the earth and accused opened her petticoat and saree. She restrained herself and accused caught her leg and also pressed her mouth. She further deposed that accused committed rape with her. She further said that the accused had inserted his penis into her private part and committed rape about half an hour. After fully gratifying himself accused left her and opened the door. She came to her house. She sent the information to her husband, who was working at Dhanbad. Her husband came and she narrated the entire story. She went to police station where her statement was recorded and read over to her and she put her thumb impression and her husband also put his thumb impression on the fardbeyan. She

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identified the accused present in the Court and stated that this accused committed rape on her. She was sent to Doctor for examination. She could not sustain the agony of rape and attempted to commit suicide by taking poison.

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PW-8, Tekani Devi, who is the mother of the victim. She deposed that on the alleged date of occurrence, she was at her daughter’s house. Nanhak Sao came and took her daughter. After half an hour her daughter came. When her daughter came she started crying and told her that Nanhak Sao committed rape on her. She asked her daughter to call her husband from Dhanbad. Her daughter sent information to Dhanbad. Later on she received information that her daughter was serious. She again came to see her ailing daughter. This witness also identified the accused Nanhak Sao present in the dock.

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PW-10, Dr. Chandra Shekhar Agarwal, proved the injury report of victim, which is marked as Ext.1. This witness had deposed that:

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Victim was examined on 11.06.1993 as unconscious patient. She was treated on the line of insecticide poisoning. She stayed at the hospital for five days. During the period she regain her consciousness and was much better, but finally she was referred to Sadar Hospital, Hazaribagh on request for further treatment after informing the Itkhori Police Station. At present Sri R.R. Kedia is not posted at Itkhori Hospital.

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In cross this witness has deposed that, now Dr. R.R. Kedia is suspended. I have not seen to Dr. R.R. Kedia. He had not examined the victim nor she was referred by him for further treatment. There is no seal of hospital on the said injury report. Sex of injured and age has also been mentioned in the injury report. It is wrong to say that he had wrongly proved the injury report.

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PW-11, Bhuvneshwar Paswan, who is constable, has proved the fardbeyan Ext.3 and the endorsement on the fardbeyan Ext.4. 10. PW-4, Indra Deo Yadav, is non-else but the former husband of the victim Malti Devi. He had deposed that at the alleged time of occurrence he was at Dhanbad and his wife, the victim had died before 3 to 4 years back. But he had admitted that the statement of his wife victim was recorded in the hospital. Later on he was declared hostile. PW-5 and PW-6 have also been declared hostile.

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PW-1, Masidas Horo is a formal witness and he proved the FIR (Ext.1). PW-2, Shatrughan Prasad; PW-3, Bhola Prasad and PW-9, Badri Bhuiyan were tendered.

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Arguments of learned counsel for the appellant:

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Learned counsel for the appellant at the outset argued that first and foremost that this is the case of no witness except allegedly the sole witness who is also said to be the victim, or PW-7. Apart from that, her husband PW-4 Indra Deo Yadav did not corroborate her case and has been declared hostile and so did her mother PW-5, who was also declared hostile. Moreover, counsel says that PW-8 is said to be another mother of the victim and therefore, the entire case is clouded because PW-5, who had deposed earlier and said that the victim passed away and she had deposed on 08.02.2002. PW-8, who is Tekani Devi, who is also said to be the mother of the victim had deposed on 11.09.2002 but she had not said that the victim had passed away. However, in the light of the statement or deposition of PW-5 who had earlier deposed and submitted that the victim had died or passed away then the entire identity of the victim herself who is PW-7 is clouded and doubted and therefore, the case against the sole appellant should collapse on this basis alone. Counsel has also said that it could have been necessary to establish clearly the identity of PW-5, PW-7 and PW-8 and that seemingly has not been done hence putting the entire trial into question.

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Learned counsel for the appellant had said that the main case rests on the evidence of PW-7 or the victim herself, who claims to have been allegedly raped and he had tried to highlight some of the weaknesses in the deposition. He has argued that she did not raise alarm though she lived in a heavily populated area. That she had not informed her own elder sister. He pointed out that in one instance in para-7 of her deposition she has deposed that her gotni used to stay in the village and that regarding the incident she had not informed her bhaisur , gotni or children. However, then again in para-8 she says that she had informed all her gotnis and bhaisur regarding the incident. She had also informed her neighbours and all of them had told her to call her husband. As per para-11 & 12 it can be made out that it was a well populated area and yet she had not raised alarm.

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Referring to para-15, counsel points out that no clothes or saree was seized and therefore, in absence of such seizure, there is no corroboration of rape. Referring to para-26 & 27 of her deposition, counsel has argued that since Nanhak Sao was helping Bhola Yadav, who was bhaisur of the victim, in a case again the victim’s family, therefore, the allegations of rape was made against Nanhak Sao. He also argued while referring to para-33 that there is some doubt regarding the chastity of the woman concerned and therefore, the allegation of rape is also fully possible as a false and concocted case. 14. Referring to the evidence of PW-8, Tekani Devi, counsel pointed out that she had deposed on 11.09.2002 and she is also said to be the mother of the victim and in fact, in 1^st paragraph in the 1^st line she had deposed that the victim is her daughter. However, in the light of the deposition of PW-5, who is also reportedly her mother, then whether evidence of PW-8, can be taken into consideration by the Court is to be decided by this Hon’ble Court currently. Counsel says that there is no attempt made to establish the identity of PW-8 as the mother of the alleged victim, and only after doing this her deposition could be taken and conceded.

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Referring to the evidence of PW-10, Dr. Chandra Shekhar Agarwal, counsel pointed out that this witness in para-3 had deposed that he had not examined the victim and she was not referred by him for further treatment. Counsel therefore says that this Doctor had at least not examined the victim, therefore, his evidence is of not much use. Counsel also pointed out from para-4 that it is indicated that there was no seal of the hospital on the said injury report and therefore, the report is also doubtful.

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Learned counsel for the appellant has further argued that first and foremost it is to be seen that the FIR itself was delayed and this was only done so that a case could be made out or manufactured against the accused. Counsel says that he had already referred to a dispute between the victim’s family with that of her bhaisur , and this bhaisur was being assisted by Nanhak Sao in the matter and therefore, this case has been manufactured against this accused or this appellant.

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Learned counsel also argued that this is a case in which the only eye witness evidence is the sole victim. Moreover, counsel also stated that from her evidence it is clear that she is a highly unreliable witness because it is not possible that she was living in a highly populated area where allegedly incident of rape took place but nobody came to know about the crime of rape and she had not also raised any alarm even otherwise. It is revealed that she had not even informed her own elder sister, which is very much doubtful because after heinous crime of rape at least the immediate family members are informed regarding the same. It is also deposed in one instance that she had not informed her bhaisur or her gotnis and in the next instance she says that she had informed them. So this is a very confusing evidence to say the least and it is totally unreliable and untrustworthy for assisting in convicting the appellant.

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Learned counsel for the appellant also argued that there is no medical evidence regarding the rape. In absence of such medical evidence or corroborating rape, the conviction for rape cannot be sustained against the appellant. Counsel also argued that the Doctor, who had been examined as PW-10 or Dr. Chandra Shekhar Agarwal is not the actual Doctor, who had examined her, and therefore because of non-examination of the actual Doctor, who had examined her, the evidence of PW-10 is also not worthy of consideration. This Doctor or PW-10 in para-3 & 4 indicated that he had not examined the victim and there was no seal on the injury report. Counsel also says that even poisoning had not been proved.

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Learned counsel for the appellant then referred to the evidence of PW-4 and PW-5 and argued that though they have been declared hostile, however, their evidences cannot be totally discarded because of the reference to the victim already having died. This issue is further compounded by the fact that the Investigating Officer was also not examined and he would have been the best person to identify the victim or even the victim’s mother or to prove the evidence of PW-4 and PW-5 as to whether the victim was alive or dead and therefore, for non-examination of the Investigating Officer, the appellant is surely prejudiced and the identity of the victim or the mother has not really been established. Counsel had also argued that the depositions

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of the witnesses were taken almost 10 years later and whatever identification is done, is done by some other police person and definitely not by the then Investigating Officer of the case.

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Learned counsel had also said that the evidence of PW-4, Indra Deo Yadav, is important because he was the husband and he had also not supported her case. This is shocking because a husband is expected to support the case and this can only be when the victim is of a doubtful character and this has earlier been also pointed out.

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Finally, learned counsel says that PW-7, victim herself is not trustworthy and reliable witness because first and foremost identity has not been totally established, secondly, she is contradicting herself in particular instance in her evidence itself and also there is enmity with her bhaisur and in extension also with the accused and therefore, for all these grounds, PW-7 or victim cannot be a reliable witness and therefore, the rule that rape victim does not need to be corroborated by any one else, if she is herself trustworthy and reliable, does not apply in her case.

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Arguments of learned counsel for the State:

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Learned counsel for the State has however argued that this case is based on the testimony of the victim, PW-7; however, her testimony is sufficiently supported by PW-8, Tekani Devi, who is her mother. So far as the evidence of the Doctor, PW-10 is concerned, he is not the Doctor, who had actually examined the victim rather it was another Doctor, namely, Dr. Ram Ratan Kedia, who had examined the victim; however, he has referred to the medical or injury report, which has been marked as Ext.1. Being a colleague, Dr. Chandra Shekhar Agarwal would be familiar and conversant with the writing of Dr. Kedia. The injury report would be useful to the extent that it would indicate that she had gone for examination and in the deposition of PW-10 it has been indicated that she was examined on 11.06.1993 and she was treated for poisoning.

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Learned counsel for the State had then referred to para-28 of the deposition of the victim and pointed out that she has unequivocally stated that she had taken poison because of the rape committed upon her. Therefore, there is corroboration by the evidence or the deposition of Doctor as to the treatment having been

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done by Dr. Kedia and that she had been treated for poisoning. The victim herself stated the reasons for her taking poison and that was only because she had been raped, and this is not altogether unfamiliar scenario in the country. A woman who is sexually assaulted, feeling humiliated and sometimes can be compelled to take this sad step out of extreme agony and pressure.

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Learned counsel for the State had also argued that PW-7, the victim’s identity was not at all questioned during trial when she was giving evidence. For the defence to now raise questions regarding identity when they have not done so at the stage of trial itself only be a case of trying to imagine new arguments to be used in their defence which cannot be allowed at this stage. Even if this Court allows some consideration, the evidence of PW-7, the victim has also to be looked with the evidence of PW-8, Tekani Devi, who is the mother of the victim. Her identity has not been demolished at the stage of trial but in 1^st paragraph of her deposition, she has said that before her deposition or examination she had never deposed in Court or on 08.02.2002, which was the date in which PW-5, so-called other mother had deposed. She had in clear cut terms said that the victim is her daughter and that she knows about the case which the victim had filed, which would mean that she knew about the FIR registered against the accused or the appellant in the rape case. She had also in para-1 indicated that her daughter was married first to one Indra Deo Yadav, therefore, with the aforesaid opening comments in para-1 of her deposition she has fully established the identity not of herself only but also of her daughter, the victim. Thereafter in para-1 she has gone to corroborate what her daughter had already informed regarding the incident of rape.

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Learned counsel for the State has also argued that the enmity, which was alleged between Bhola Yadav and the family of the victim was not established by substantial evidence and neither it is established that the appellant Nanhak Sao, only because he was a friend of Bhola Yadav was assisting him in the case, therefore, such a weak argument cannot be accepted for demolishing the case of the prosecutrix. The allegation that the victim is a lady of easy virtue does

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not mean that any one can therefore commit rape upon her. No person can be made a victim of rape for whatsoever reason. 26. Finally, referring to the evidence of the victim herself, counsel for the State has pointed out that in her evidence she has very well explained why there was delay in lodging the case. This was only so because her husband was working in Dhanbad and it was only after he had returned from Dhanbad, the FIR was then able to be lodged with his assistance. She has fully corroborated her fardbeyan and given in some details in her evidence as to what transpired. It is indeed a heinous crime that was committed very cunningly by a person, who was known to the victim. The appellant in a very cunning and cruel manner treated the victim into believing that some money had been sent by her husband who was working in Dhanbad, this fact that her husband was working in Dhanbad was known to the appellant, and knowing very well the poor economic plight of the victim’s family, he exploited fully the situation by informing her that some money had been sent by her husband and that it is at his home and she should come and collect it. For any person, who is in a similar situation where she knows the person from before, who is calling her and saying that some money had come from her husband and to collect it and that too not very late in night, it is quite natural that she will be compelled to go there. This situation was fully exploited by the appellant and then alluring her to his house, he then committed rape upon her. The incidence of the victim tapping rape is soon after the case of rape and in rape cases this is something that is not very uncommon but rather occurs sometimes and is not unknown in the criminal history of the country. The victim herself had in her deposition very unequivocally stated that she took poison because she had been raped, and there is no reason why this Court should not believe her. In fact, attempt to take poison only gives more reason for this Court to believe that the incident of rape must have taken place. Therefore, for all the aforesaid reasons, this Court may fully uphold the conviction and the sentence of the appellant passed by the learned Trial Court below.

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FINDINGS

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In this case, some attempt was made to demolish the testimony of the prosecutrix or the alleged victim by raising the issue of the reported enmity with the prosecutrix that existed between the family of the prosecutrix and her bhaisur Bhola Yadav. This enmity had not been established by sufficient grounds and only for this reason that the accused or the appellant herein Nanhak Sao was helping Bhola Yadav in his case subsisting between the family of the victim and Bhola Yadav would not be a ground for setting aside the conviction and sentencing mainly because first that it is not so easily believable that a woman would stake her very reputation and modesty by making false allegation of rape and subsequently, also be dragged through the entire process of criminal investigation and subsequent trial. Secondly, even if there is enmity, a woman is not expected to do the same, and in this instance, the enmity is itself not described to be of such proportions or of such cruelty that could compel the victim to resort to such a measure. There is some inconsistency in the evidence of the victim, particularly, when she has said that she had informed her bhaisur and gotnis and in the next instance, she said she had not done so. Other aspect that may have to be considered is the evidence of the Doctor, and this Court sees that PW-10 is not the Doctor, who had actually examined the victim. But from his evidence, there is nothing much regarding the alleged rape rather it is regarding the treatment of poison, which when linked up with the deposition of the victim when she had said that she had taken poison due to rape attempt then the treatment of poisoning makes it of relevance to this Court.

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Given the entire gamut of evidence, the evidence of the victim daughter and her mother would corroborate the prosecution case. Therefore, the conclusion I am led to is that there must have been sexual assault but to what extent the sexual assault had been committed was not indicated.

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Therefore, having heard the arguments of both the counsels and gone through the records of the case and evidences as well as in the facts and circumstances of the case, I feel that the allegation of sexual assault made by the prosecutrix is not totally untrue because no woman will like to drag her name through police investigation and

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Court proceedings. The fact that she has informed her mother soon after and the mother had deposed accordingly only indicates further that something had taken place. The injury report of the Doctor (Ext.1) and the evidence of Doctor PW-10 also would indicate that something did take place; however, the medical report or the injury report has not explicitly pointed out the rape and therefore, on this aspect, some benefit of doubt may be possibly allowed to the appellant.

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Therefore, basing myself on all the aforesaid reasoning, I modify the judgment of conviction dated 23.01.2003, passed in S.T. No. 639 of 1993 by the learned Additional Sessions Judge, Fast Track Court-I, Chatra, whereby, the appellant has been held guilty for the offence under Section 376 of the Indian Penal Code, to one under Section 354 of the Indian Penal Code. Since the judgment of conviction is modified to Section 354 of the Indian Penal Code, I also modify the order of sentence dated 23.01.2003 to three years rigorous imprisonment under Section 354 of the Indian Penal Code, any period already undergone by him shall be deducted from this modified period of sentence. The appellant’s bail bond is cancelled and learned concerned or successor court-below is directed to take steps to procure his arrest.

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Accordingly, this appeal is dismissed with the above modification in conviction and sentence.

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(Ratnaker Bhengra, J.)

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S.B.-NAFR

Nanhak Sao v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Nanhak Sao v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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