Jamaluddin Ansari Alias Jamal Ansari Vs the State of Jharkhand

CRIMINAL APPEAL (SJ) NO. 889 OF 2012

---AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 16^TH JULY, 2012 PASSED BY SESSIONS JUDGE, BOKARO IN SESSIONS TRIAL NO. 292 OF 2006.

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Jamaluddin Ansari @ Jamal Ansari son of Jahir Ansari, resident of Village Baghrabera Tola Tetulia, PO Satanpur, PS BS City (Sector XII), District Bokaro.

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… Appellant -versus- The State of Jharkhand … Respondent

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For the Appellant : Mr. Ram Chandra Prasad Sah, Advocate For the Respondent : Mr. Vishwanath Roy, A.P.P.

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PRESENT: SRI ANANDA SEN, J.

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J U D G M E N T

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RESERVED ON 13.09.2024 PRONOUNCED ON 01.10.2024

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The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 16^th July, 2012 passed by the Sessions Judge, Bokaro in Sessions Trial No. 292 of 2006, arising out of B.S. City Police Station Case No.109 of 2006, corresponding to G.R. No.489 of 2006, whereby and whereunder, the appellant has been convicted for offences under Sections 366 and 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and a fine of Rs.3000/- for committing the offence punishable under Sections 366 of the Indian Penal Code and to undergo rigorous imprisonment for seven years and a fine of Rs.3000/- for committing the offence punishable under Section 376 of the Indian Penal Code and in case of default of payment of fine, sentenced to undergo further simple imprisonment of 15 days each. 2. Learned counsel appearing on behalf of the appellant submitted that there is no material and evidence to convict the appellant. It is his contention that the prosecution has miserably failed to bring home the charges against the appellant. He submits that the victim girl left her home on her own wish and remained with the appellant for 12 (twelve) days. During this period she never raised any alarm and was all along a consenting party. He further contended that there is no eye witness in this case either to the incident of kidnapping or commission of rape. The

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testimony of the witnesses is only to the extent that the victim girl had gone to attend the nature’s call in the morning at 05.50 on the date of occurrence and thereafter she did not return till she was recovered by the police along with the appellant. He further argued that the medical evidence also suggests that there was no mark of violence on the body of the victim girl. Thus, on overall assessment of evidence, learned counsel argued that it is a fit case for acquittal of the appellant and the appellant deserves to be acquitted.

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3. Learned counsel appearing for the State contended that the Trial Court has rightly convicted the appellant on the basis of the evidence available on record. He submitted that the prosecution witnesses had all stated in same tone that the victim girl had left at 05.30 in the morning on the date of occurrence for natural call but did not return. After twelve days the girl was recovered along with the appellant from Village Chilgadda Tola Upardih, PS Jaridih. He further argued that after the girl was recovered, her statement was recorded under Section 164 of the Code of Criminal Procedure, wherein she had narrated about the sexual assault made by the appellant upon her under threat. The victim had supported the prosecution case while deposing as P.W.4 also. Learned counsel for the State argued that the Trial Court had correctly appreciated the evidence and finding the charges as proved, has rightly convicted and sentenced the appellant. Thus, there being no merit, this appeal deserves to be dismissed.

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4. The prosecution case is based on the written report dated 09.05.2006 of the informant- Birbal Manjhi father of the victim girl, wherein he has narrated that his daughter on 04.05.2006 at about 05.30 AM left her home to attend the nature’s call, but when she did not return, he searched for her in the neighbourhood and at the places of acquaintances, which went in vain. After searching for three days, when he went to the house of her maternal uncle (Mama) situated at Village Madhamu, Post Chitma, Police Station Jhalda, District Purulia, there the villagers told that they had seen a muslim boy had forcibly brought a tribal girl and they had seen them going towards Musalman Tola. The informant further mentioned that he has a strong belief that his daughter has been kidnapped by the appellant as the appellant is also missing since the same day. Informant also expressed his anxiety about committing rape by the appellant or establishing illicit physical

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relation under threat.

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5. On the basis of the aforesaid written report, Bokaro Steel City Police Station Case No.109 of 2006 was registered for offences under Section 366(A) of the Indian Penal Code.

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The victim girl was recovered after 12 days along with the appellant from Village Chilgadda Tola Upardih, PS Jaridih, whereafter statement of the victim girl was recorded under Section 164 of the Code of Criminal Procedure and she was medically examined. Police, after completion of investigation, submitted charge sheet against the appellant for offences under Sections 366, 376 of the Indian Penal Code. Cognizance of the offence was taken and the case was committed for trial. Charges with two heads were framed for offences under Sections 366A and 376 of the Indian Penal Code, which were read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried.

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6. To bring home the charges, the prosecution had examined 7 (seven) witnesses, namely P.W.1 Charku Manjhi, P.W.2 Harhi Ram, P.W.3 Birbal Manjhi, P.W.4 the victim herself, P.W.5 David Hembrom, P.W.6 Jhirga Xess, and P.W.7 Dr. Dipali Dey.

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The prosecution also produced following documents to substantiate its case, which were marked exhibits:-

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Ext.1	Written report
Ext. 1/1	Forwarding on written report
Ext. 1/2	Endorsement for case registration
Ext. 2	Chargesheet
Ext. 3	Injury report

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7. P.W.1, Charku Manjhi, has stated in his evidence that the victim stated before him that appellant, forcibly after smothering her mouth on the point of knife, took her away and committed rape upon her.

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P.W.2, Harhi Ram, who is an uncle of the victim, has also stated in the same line as P.W.1.

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P.W.3, Birbal Manjhi, who is the father of the victim and also the informant in this case, deposed that on 04.05.2006 at 5 O’clock in the morning his daughter had gone for natural call and when she did not not return home by 7-7.30 AM, he started searching for her nearby in the village but not finding her, he went to his in-law’s house at village - Lahtand where also he did not find her. Thereafter he went to Madhamu, which is the place

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of maternal uncle of the appellant. There he came to know that one tribal girl was seen with a mohammadan boy and they had gone towards Mohammadan tola. He came to know that her daughter was forcibly taken away by the appellant. He returned home and thereafter lodged the case at police station. He further deposed that after 12 days his daughter came back and she told him that when she had gone for nature’s call appellant, forcibly after smothering her mouth on the point of knife, took her away and she had also stated that appellant had committed rape upon her. He had proved his signature on the written report in the handwriting of David Hembrom, which was marked as Exhibit 1.

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P.W.- 4 is the victim herself. She deposed that on the date of occurrence at 5 o’clock in the morning when she had gone to attend the nature’s call in the field, the appellant forcibly caught her and when she tried to raise alarm, he by smothering her mouth on the point of knife took her to village Madamu and there he committed rape upon her forcibly. From village Madamu she was brought to Ranchi where she was again raped by him. Thereafter they came to Karkara where again she was raped by him. From Karkara, they came to Ubardih where police caught them. She further deposed that her statement was recorded in the court and she had made her thumb impression on it.

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P.W.5 David Hembrom, has deposed that the victim is his cousin and when she did not return home, he with other family members started searching her. During the search they came to know that appellant who was living beside their house was also missing. Thereafter they went to the house of maternal uncle (Mama) of the appellant at village Madamu which is situated within Malda Police station at West Bengal, where they came to know that appellant had come there with one girl, whose complexion matched with the victim and then he went away.

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P.W.6 Jhirga Xess is the Investigating officer of this case. He has proved the written report in the writing and signature of Rukhsar Ahmad, which was marked as Ext.1/1. He also proved the endorsement for case registration in the writing and signature of Sri Shiv Shankar Jha, which was marked as Exhibit 1/2. He also proved the charge sheet which was marked as Exhibit 2.

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P.W.7 Dr. Dipali Dey, is the doctor who had examined the victim

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girl. She found the following:-

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(i) There is no mark of violence under body or private parts.

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(ii) Breast were developed and her mensuration period was fifteen days back from date of examination. (iii) No Auxillary hair present but public hair present . Pro veginal examination admitted two fingers. There was no blood or any discharge in private part or anywhere on the body. Teeth – Total - 27 Victim came before for examination after 12to 13 days. Age of victim was less than 18 years.

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He has proved the medical examination report, which was marked as Exhibit 3.

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8. After closure of prosecution evidence, the statement of the appellant was recorded under Section 313 Cr.P.C wherein he claimed to be innocent.

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9. The Trial Court, after hearing the arguments and appreciating the evidences on record, by the judgment of conviction and order of sentence dated 16^th July, 2012 passed in Sessions Trial No. 292 of 2006 has convicted and sentenced the appellant for offences under Sections 366 and 376 of the Indian Penal Code.

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10. I have gone through the records of this case including the evidence.

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11. It is the case of the prosecution that minor girl has been kidnapped / abducted with an intention that she may be compelled or knowingly or likely to be compelled to marry or she may be forced or seduced to illicit intercourse. Further, there is an allegation of commission of rape, thus, the conviction is also under Section 376 of the Indian Penal Code.

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12. From the evidence led by the prosecution, we find that P.W.7, the doctor, has stated that the age of the victim was less than 18 years. In the statement of the victim girl recorded under Section 164 of the Code of Criminal Procedure her age has been shown as 14 years. Father of the victim also stated that his daughter is aged about 14 years. The accused has not led any evidence nor is there any material from the cross examination to suggest that the girl was major.

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13. Since the defence has not adduced any evidence to suggest that the girl was major, I conclude that the prosecution has been able to

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prove that the girl was less than 18 years. Be it noted that so far as the female is concerned, the age of consent is 18 years.

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14. The girl, who is the victim had deposed that in the morning she went to ease herself where she was forcibly caught and taken by this appellant. Father of the girl, P.W.3 has also narrated in the same manner. As per Section 361 of the Indian Penal Code, whoever takes any minor girl under the age of 18 years out of the keeping of lawful guardian without the consent of such guardian, is said to have committed the offence of kidnapping. In this case when the girl is less than 18 years and from the evidence there is nothing to suggest that father and mother had ever given consent for taking this girl by the appellant, I find that the offence of kidnapping is complete. Thus, the Trial Court has correctly convicted the appellant under Section 366 of the Indian Penal Code.

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15. Though I find that charge was framed under Section 366A of the Indian Penal Code, but based on the evidence, which has been led by the parties, the Trial Court has convicted the appellant under Section 366 of the Indian Penal Code since the appellant had taken the deceased himself, had seduced her to establish illicit physical relation. The defence did not allege any prejudice, rather knowing fully well about the facts leading to charge, has cross examined the witnesses. Thus, I find that the defence is not prejudiced in any manner by his conviction which was under Section 366 of the Indian Penal Code.

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16. So far as offence under Section 376 of the Indian Penal Code is concerned, I find that the doctor did not find any injury or violence either on the body or on the private parts, but one thing cannot be lost sight of is that the victim was examined after 12-13 days of her recovery. From the evidence, I find that she was taken to several places, thus, there may not be any mark of violence or any mark of injury on her body or private parts.

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17. In this case I find that the victim has stated that sexual intercourse was committed by this appellant. Admittedly, the girl was less than 18 years at the time of occurrence. There is nothing in the evidence of the girl that the said sexual intercourse was with her consent. Description of offence under Section 375 of the Indian Penal Code suggests that the sexual intercourse would be rape if the girl is under 18 years of age. In this case, admittedly, the girl is below 18 years of age and she states that there

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was sexual intercourse. There is nothing to disbelieve her statement.

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18. Further, the Hon’ble Supreme Court, in the case of Ravindra versus State of M.P. reported in (2015) 4 SCC 491 has held that the evidence of the victim prosecutrix if found reliable, by itself may be sufficient to convict the culprit and no corroboration of her evidence is necessary and secondly in prosecution of rape, the law does not require corroboration. It has further been held that the evidence of the prosecutrix may sustain a conviction. Paragraph 4 of the said judgment in the case of Ravindra (supra) reads as under:-

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4. After considering the evidence adduced by the parties, the High Court was of the view that it is well settled that the woman who is a victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accomplice. As a matter of fact her evidence is similar to the evidence of an injured complainant or witness. The testimony of the prosecutrix, if found reliable by itself may be sufficient to convict the culprit and no corroboration of her evidence is necessary. Secondly, in prosecution of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that the court may look for some corroboration so as to satisfy its conscience and rule out any false accusations. Thus, the High Court was of the view that the trial court had not committed any error in convicting the appellant under Section 376 IPC. The statement of the prosecutrix was reliable. Prompt FIR was lodged by her and no further corroboration of her statement was required.

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19. From the above discussions and findings, I conclude and hold that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt. The Trial Court has correctly convicted and sentenced the appellant. I find no merit in this appeal so as to interfere with the impugned judgment of conviction and sentence. The judgment of conviction and order of sentence dated 16^th July, 2012 passed by the Sessions Judge, Bokaro in Sessions Trial No.292 of 2006 is, accordingly, affirmed.

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20. This appeal is, accordingly, dismissed. Pending interlocutory applications, if any, stands disposed of.

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21. Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.

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(Ananda Sen, J.)

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High Court of Jharkhand, Ranchi Dated, the 1^st October, 2024 NAFR/Kumar/Cp-03

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Cr. Appeal (SJ) 889 of 2012

Jamaluddin Ansari Alias Jamal Ansari v. the State of Jharkhand

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Jamaluddin Ansari Alias Jamal Ansari v. the State of Jharkhand

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