High Court allowed appeal in rape case due to substantial doubt in prosecution story about pregnancy. Conviction and sentence set aside and accused acquitted.
Judgment of conviction and sentence set aside; accused acquitted of rape charge discharged from bail liability.
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (S.J.) No.420 of 2006
Against the judgment of conviction dated 25.02.2006 and order of sentence dated 27.02.2006 passed by Mohammed Kasim, Addl. Sessions Judge, (F.T.C.)-II, Seraikella in Sessions Trial No.105 of 2005.
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Fuleshwar Mahto … … Appellant Versus The State of Jharkhand … … Respondent --- For the Appellant : Mr. R.C.P. Sah, Adv. For the Respondent : Mr. Tapas Roy, A.P.P.
PRESENT
HON’BLE MR. JUSTICE RAJESH KUMAR
Heard Mr. R.C.P. Sah, learned counsel appearing for the appellant and Mr. Tapas Roy, learned A.P.P. appearing for the State.
2. This appeal is filed against the judgment of conviction dated 25.02.2006 and order of sentence dated 27.02.2006 passed by Mohammed Kasim, Addl. Sessions Judge (F.T.C.)-II, Seraikella in Sessions Trial No.105 of 2005, whereby and whereunder the appellant has been convicted for the offence under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven (07) years and a fine of Rs.2000/-. In default of payment of fine, further to undergo simple imprisonment for three months.
3. The criminal law has been put into motion by lodging FIR by the victim-Kumari Seema Behra by submitting written complaint in her own handwriting and the same was registered as Kharsawan P.S. Case No.14 of 2005 dated 15.04.2005. It has been alleged that when the victim was a student of class-8, the appellant used to follow her. Subsequently the accused had established physical relation with her against her will and on the pretext of marriage continued for about two years. Learned counsel for the appellant has submitted that before lodging FIR, menstrual cycle of the victim has stopped and as such, she complained to her mother. Thereafter, mother of the victim took her for medical examination by a private doctor who confirmed that the victim is carrying pregnancy of about three months. Thereafter, panchayati was held but the appellant
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refused to marry with the victim rather he has offered some money for the termination of pregnancy and hence the present case has been lodged. Thereafter, the Investigating Officer referred the victim to Government Hospital, Seraikella on 16.04.2005 for medical examination by formulating four questions.
4. The victim has been examined under Section 164 of the Cr.P.C. on 30.04.2005 and this has been marked as Ext.2/2. The same has been proved by P.W.8-the Judicial Magistrate, Seraikella. In her statement she has repeated the allegation with some more details. The medical report of the doctor has been received on 21.04.2005 which has been marked as Ext.1 and it has been proved by P.W.4-the Doctor. In the medical report it has been opined by the doctor that the age of the victim is 17 years, further he also opined that she is not pregnant and the stoppage of menstrual cycle may be due to other reasons. He has negated the termination of pregnancy.
5. After conclusion of investigation, the appellant had been chargesheeted under Section 376 of the Indian Penal Code to which cognizance has been taken and the case has been committed to the court of sessions. The charge has been framed to which the appellant pleaded not guilty and claimed to be tried.
6. To substantiate the prosecution story, altogether eight (08) witnesses have been examined. The defence has also examined one witness namely Bikash Mahato.
P.W.1-Ratan Behra, P.W.2-Anant Behra and P.W.3-Manoj Rajak have been declared hostile.
P.W.4-the Doctor namely Manorma Sidhesh has proved the medical report and in medical report the pregnancy has been negated.
P.W.5 is the victim girl who has confirmed the allegation levelled against the appellant regarding having sexual relation on the pretext of marriage. She has stated in her statement in para-8 that the pregnancy has
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automatically got terminated before medical check-up. This fact has not been stated either in the FIR or in the statement made before the magistrate recorded under Section 164 of the Cr.P.C.
P.W.6. is the mother of the victim girl. She has also supported the allegation and regarding the pregnancy. She has stated that two to four days before medical examination the pregnancy of the victim lady has got automatically terminated.
P.W.7. is the Investigating Officer who has testified that the victim girl has stated regarding the physical intercourse by the appellant but no statement has been given regarding the termination of her pregnancy.
P.W.8. is the Judicial Magistrate who supported the statement made under Section 164 Cr.P.C.
D.W.1-Vikash Mahto has simply stated that the relationship between the appellant and the victim was not known to him.
7. Heard. The counsel for the parties and perused the materials available on record, it appears that the FIR has been lodged on 15.04.2005. The victim girl has been examined on 16.04.2005 and she has made her statement under Section 164 Cr.P.C. on 30.04.2005. This sequence falsifies the allegation of the pregnancy. Further as per the statement of the victim girl (P.W.5) and her mother (P.W.6) that the victim has been examined by a private medical practitioner but no evidence has been produced regarding the sign of victim’s pregnancy. Further the age of the victim has been assessed by the doctor (P.W.4) to be 17 years.
8. It appears that the entire story of prosecution is not convincing on such viable points i.e. stoppage of menstrual cycle and thereafter medical examination has been done by a private doctor who has confirmed the pregnancy. Subsequently, P.Ws.5 and 6 have proved their statement in the court of sessions that the pregnancy was automatically got terminated, but this fact has neither been disclosed in the FIR nor in their statements made under Section 164 Cr.P.C. nor before P.W.4-the doctor who has examined the prosecutrix. Further the Investigating Officer specifically referred the prosecutrix by formulating four questions as discussed above regarding pregnancy but the same has been negated by
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the medial report and the contradictory statement of the prosecutrix and her mother creates doubt in the judicial mind of the Court.
9. In view of above discussion, this Court finds that there is substantial doubt in the prosecution story and it is a well settled law that doubt gives benefit to the accused.
10. Considering the entire materials available on record and as per discussion made above, this Court find that prosecution has failed to substantiate Section 376 of the Indian Penal Code lodged against the appellant, resultantly, the accused is acquitted from the charge under Section 376 I.P.C. Consequently, the judgment of conviction dated 25.02.2006 and order of sentence dated 27.02.2006 passed by Mohammed Kasim, Addl. Sessions Judge, (F.T.C.)-II, Seraikella in Sessions Trial No.105 of 2005 is, hereby set aside.
Since the appellant is already on bail, he is discharged from the liability of his bail bond.
Accordingly, the present appeal stands allowed.
(Rajesh Kumar, J)
Jharkhand High Court at Ranchi The 08th of January, 2021 Amar/NAFR/
2 issues framed by the court
Whether the prosecution story regarding a rape case is convincing in view of contradictory statements about pregnancy.
Whether more credible version of the accused should be adopted in view of substantial doubt in the prosecution case.
1 provisions across 1 enactments
Fuleshwar Mahto
The State of Jharkhand
RAJESH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
