Allowed

Ganesh Marandi v. State of Jharkhand

Jharkhand HC29 Nov 2021Cr.A(SJ)/405/2010

Case brief

AI extract

What is this about?

The High Court examined inconsistencies in victim evidence, conflicting accounts of the incident location, and lack of medical findings of injuries sufficient to support a rape conviction. Finding unreliability in the prosecution case, the court set aside the conviction.

What did the court decide?

Conviction and sentence under section 376 IPC set aside; appellant discharged from liability of bail bond.

Ganesh Marandi Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. (Jail) Appeal (S.J.) No. 405 of 2010

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(Against the judgment of conviction dated 25.02.2010 and the order of sentence dated 26.02.2010, passed by the learned 5^th Additional Sessions Judge, FTC, Dumka in Sessions Case No. 07 of 2009)

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Ganesh Marandi, son of Somlal Marandi, resident of village- Goriyari, PSJarmundi (Taljhari), District-Dumka ..... 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. Sunil Kumar Mahto, Advocate For the State : Mrs. Nehala Sharmin, A.P.P.

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------ 29.11.2021/ RATNAKER BHENGRA, J.

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Heard the learned counsel for the appellant and the learned counsel for the state.

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2. This appeal is directed against the judgment of conviction dated 25.02.2010 and order of sentence dated 26.2.2010 passed by the learned 5^th Additional Sessions Judge, FTC, Dumka, in Sessions Case No. 07 of 2009 arising out of Jarmundi (Taljhari) PS case No. 141 of 2008 corresponding to GR Case No. 1031 of 2008, whereby and whereunder, the appellant was convicted under section 376 IPC and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 5,000/- and in default of payment of fine, he was further directed to undergo RI for six months.

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3. The prosecution case, in brief, as per the written report dated 08.07.2008 of the informant victim PW-6 (name concealed) is that on 06.07.2008 at about 12:00 O'clock, noon, informant had gone to rock for drying paddy. In the meantime, appellant Ganesh Marandi came there and dragged her behind the Palash tree and committed rape upon her. Informant further stated that when she raised halla , then appellant slapped her and threatened her to kill. She returned home and informed her mother about the incident. Thereafter, panchayati was held, but, the appellant’s father Somlal Marandi, did not obey the order of panchayati and threatened the informant saying that go where you want to go, you couldn’t do anything to me. Informant further stated that delay in coming to the police station was due to panchayati .

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4. On the basis of written report of the informant, FIR being Jarmundi (Taljhari) PS Case No. 141 of 2008 was registered against the appellant under section 376 IPC. After investigation, a charge-sheet was submitted and cognizance of the offence was taken and the case was committed to the Court of sessions. Charge was framed against the appellant under section 376 IPC and trail was held. At the conclusion of the trial appellant was convicted and sentenced as aforesaid, hence, this appeal.

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5. Prosecution in order to prove of its case had examined altogether nine witnesses out of whom PW-6 is the informant/ victim of the case; PW-1 is Madan Murmu, PW-2 is Viram Besra, PW-3 is Babu Ram Marndi, PW-4 is Chandmuni Murmu, who is the mother of the victim; PW5 is Sonua Soren, who is the father of the victim; PW-7 is an Advocate Clerk, a formal witness, who had proved the written report which was marked as Ext.-1; PW-8 is Dr. Mary Thelma Dan, who had examined the informant and PW-9 is Dilip Singh Soy, who is the Investigating Officer of the case.

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6 . PW-6 is the victim/ informant of the case. Informant had stated in her evidence that on the day of occurrence they had gone to the rock, which is near her village, for drying paddy. PW-6 further stated that at 12 O'clock, in the noon, she was going to gather the paddy, then, appellant Ganesh Marandi took her towards the bank of river, and in the forest he raped her. Informant further stated that when she was being dragged, she, in order to save herself, caught hold the branch of Palash tree and raised halla and tried to save herself, but, appellant gagged a towel (gamcha) in her mouth. She returned home and informed her mother and father about the incident, then, her mother and father went to the house of Pradhan to inform him. Pradhan called a panchayati , but, no decision was reached and, thereafter, they went to the police station. In her cross-examination informant stated that the appellant had pushed her on the path, due to which she had also sustained injury and some blood oozed out.

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7. PW-8 Dr. Mary Thelma Dan had stated in her evidence that on 08.07.2008, she had examined the victim at 03:15 p.m. Doctor further stated that on external examination and internal examination, no mark of injury was found over her body and her private part and hymen showed old rupture. In her pathological report, no spermatozoa were found. Doctor opined the age of the victim girl as 18 years and also opined that no definite

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opinion could be given whether the victim was raped or not. Doctor had proved the medical report of the victim which was marked as Ext.-2.

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8. PW-9 is Dilip Singh Soy, who is the Investigating Officer of the case. Investigating Officer had proved the endorsement on the written report and endorsement for registering FIR on the written report which were marked as Ext.-1/1 and Ext.-1/2 respectively. Investigating Officer further proved the formal FIR which was marked as Ext.-3. Investigating Officer stated that he took the re-statement of the victim and sent her for medical examination. Investigating Officer described the place of occurrence, which is a lonely place situated at ½ km south of village Guriyari, surrounded with Palash forest and big rocks.

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9. PW-1 is Madan Murmu, PW-2 is Viram Besra and PW-3 is Babu Ram Marandi and all these witnesses had participated in the panchayati . All these witnesses had stated in their evidence that on 07.07.2008, a panchayati was held and the appellant had disobeyed the decision of panchayati and then the victim went to the police station.

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10. PW-4 is Chandmuni Murmu, who is mother of the victim girl. PW-4 had stated in her evidence that when her daughter had gone for drying paddy, then, appellant had raped her daughter. PW-4 further stated that her daughter returned home and told her about the occurrence of rape. She went to the house of Pradhan and panchayati was held in which appellant’s father did not obey the order of panchayati and then her daughter went to the police station.

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11. PW-5 is Sonua Soren, who is the father of the victim. PW-5 had stated in his evidence that on the day of occurrence his daughter had gone near the rock for drying paddy. She came home from there and then she went to collect the paddy. There appellant caught hold of her and dragged her to the Palash bushes and raped her. His daughter came home crying and narrated the entire incident. He approached the Pradhan and panchayati was held, but, accused did not obey the order of the panchayati , then, they went to the police station and lodged the case.

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ARGUMENTS ON BEHALF OF THE APPELLANT:

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12. Learned counsel for the appellant submitted that the case is built upon the allegation which has not been supported by proper or sufficient evidence and on this score the allegation of rape against the appellant would collapse. Learned counsel also submitted that the evidence

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of so-called victim is inconsistent and is not reliable and, therefore, she is an untrustworthy witness. Learned counsel said that in the FIR she had stated that she was dragged towards a big rocky surface where the alleged occurrence of rape took place and that the big rocky surface was used for drying paddy. However, in her evidence she has very inconsistently deposed that she was dragged towards the Palash bush which is near the river and there the appellant raped her. He further points out that in the evidence of the informant it is indicated that the gamcha (traditional towel) was inserted in her mouth, while in the FIR it is not even mentioned at all and this is the second inconsistency and it is important because insertion of the gamcha in her mouth basically raises the issue as to whether she was able to make alarm or not. However, there are two different versions in the FIR and in the evidence of PW-6.

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13. Learned counsel further submitted that even the evidence of the father and mother of the victim and the victim herself are inconsistent with each other. Learned counsel submits that the victim in her written report had stated that she was raped when she had gone for drying the paddy, but, in her evidence, she deposed that when she had gone to gather grains, then she was raped, which is in variation with her earlier statement given in her written report. Learned counsel points out the evidences of mother PW-4 and submitted that the mother of the victim had deposed in her crossexamination that the victim had gone towards the place of occurrence and she stayed there, while the father of the victim had deposed that she initially returned home and, then, again she went to the place of occurrence to collect paddy and, then, the occurrence took place which shows inconsistencies in the evidence of victim’s father and mother. Learned counsel also says that PW-8 doctor had also not supported the offence of rape and the Investigating Officer had also not properly investigated the case. Therefore, when the victim is unreliable and evidence of the mother and father of the victim is also inconsistent from the evidence of the victim and also the medical evidence did not support the case of the prosecution, then with such unreliability and inconsistency in factual evidence, the charge of rape against the appellant simply cannot be sustained and shall be set-aside.

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ARGUMENTS ON BEHALF OF THE STATE:

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14. Learned counsel for the State has argued that in this case the

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primary witness is the victim, who is the informant and though there may be some inconsistencies in the evidence of the victim, but, those are not major and on this basis, the entire case against the appellant cannot collapse. Learned APP further submitted that the victim had corroborated the charge of rape in her evidence and that is the main issue and minor inconsistencies and variations about the exact place of occurrence may not be an issue because the rape took place in the same vicinity. There is also no question of delay in FIR, because as per the record and evidence initially the victim and her family sought justice through a panchayati but on failure, FIR was lodged. Though there may be inconsistencies in the evidence of victim’s mother PW-4 and father PW-5, but, both have also supported the case. Regarding the doctor who is PW-8 Dr. Mary Thelma Dan, the learned APP said that the doctor had not categorically said that sex did not take place. Moreover, there is no evidence of old enmity or prior dispute to make it a case of concoction. Investigating Officer apparently proved the place of occurrence which shows that he had visited the place of occurrence. Hence, on the basis of aforesaid, the impugned judgment of conviction and order of sentence against the appellant should be sustained and upheld by this court.

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FINDINGS:

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15. I have heard both counsels and gone through the records of the case. The appellant is convicted under section 376 IPC.

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16. On perusal of the written report of the informant, I find that informant PW-6 had stated that when she had gone to the rock for drying paddy, then appellant dragged her towards the Palash bush and raped her and when she tried to raise hulla , appellant slapped her and threatened to kill her. But, in her deposition PW-6 had deposed that when she was going to gather paddy, then, appellant raped her and when she in order to save herself raised hulla , then appellant gagged her mouth with gamcha (towel). Hence, in her deposition, victim had deposed that she was raped, when she had gone to gather paddy, which is inconsistent with her written report wherein, victim had stated that she was raped when she had gone to the rock for drying paddy. Further, I also find one more inconsistency in the statement of the victim, in her evidence victim had deposed that appellant had gagged gamcha (towel) in her mouth, but, in her written report, victim had not stated about gagging a towel in her mouth. I also find untrustworthiness in the victim’s evidence, that victim in her cross-

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examination had deposed that appellant had slammed her due to which she sustained some minor injuries and blood oozed out. But, PW-8 Doctor had deposed that she had not found any external injuries on the person of the victim and this raises doubt in the prosecution case, as the alleged occurrence of rape is of 06.07.2008 and doctor had deposed that she had examined the victim on 08.07.2008. So, it is very surprising that, when the doctor had examined the victim only two days after the alleged occurrence of rape, but, doctor did not find any external injuries or traces of injury on the person of victim though victim had deposed that blood had oozed out from the injury sustained by her. Further as per doctor the alleged victim is around 18 years of age, but after examination no definite finding of rape was given. Hence, from the aforesaid reasonings the appellant Ganesh Marandi is acquitted of the charges under section 376 IPC by giving him benefit of doubt.

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17. Accordingly, the impugned judgment of conviction dated 25.02.2010 and the order of sentence dated 26.2.2010 passed by the learned 5^th Additional Sessions Judge, FTC, Dumka in Sessions Trial Case No. 07 of 2009 arising out of Jarmundi (Taljhari) PS case No. 141 of 2008 corresponding to GR Case No. 1031 of 2008 are hereby set aside. Appellant Ganesh Marandi is discharged from the liability of bail bond.

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18. Accordingly, Cr. (Jail) Appeal (SJ) No. 405 of 2010 is allowed.

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(Ratnaker Bhengra,J)

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Jharkhand High Court,Ranchi Dated the 29.11.2021 N.A.F.R./Nibha

Ganesh Marandi v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Ganesh Marandi v. State of Jharkhand

Case brief

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What did the court decide?

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