Ravi Mahato Vs State of Jharkhand

2025:JHHC:17257

Criminal Appeal (S.J.) No. 555 of 2008

[Against the judgment of conviction dated 23.04.2008 and the order of sentence dated 25.04.2008 passed by learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial Case No. 250 of 2007]

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Ravi Mahato, son of Sri Munnilal Mahato, resident of Mohalla – Madhu Bazar, P.O. and P.S. Sadar, Chaibasa, Dist. Singhbhum West ... … Appellant

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... … Appellant

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Versus

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The State of Jharkhand ... … Respondent

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--------- For the Appellant : Mr. Naveen Kumar Jaiswal, Advocate For the Respondent : Mr. V. S. Sahay, A.P.P.

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P R E S E N T HON'BLE MR. JUSTICE ARUN KUMAR RAI JUDGMENT

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C.A.V. on 11.03.2025 Pronounced on 01.07.2025

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1. Heard Mr. Naveen Kumar Jaiswal, learned counsel appearing on behalf of the appellant and Mr. V. S. Sahay, learned A.P.P. for the State.

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2. This appeal is directed against the judgment of conviction dated 23.04.2008 and the order of sentence dated 25.04.2008 passed by learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 250 of 2007 whereby and whereunder, the appellant has been convicted and sentenced to undergo R.I. for five years for the offence under Sections 376/511 of IPC along with a fine of Rs. 5,000/- and rigorous imprisonment for one year under Section 448 of IPC and R.I. for one year under Section 323 of IPC and all the sentences were directed to run concurrently. 3. In the present case, F.I.R. has been registered on the written report dated 19.07.2007 by father of victim who allegedly stated therein that on last Thursday i.e. on 12.07.2007 at about

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10:30 P.M., Ravi Mahato (appellant herein) entered into his house and extinguished Diya and pressed mouth of his daughter with bad intent, while she was sleeping as he himself and other family members went to water tap to clean their hands and legs. When victim shouted, then accused fled away but Kedar Singh and, his wife while returning towards home from water tap, have seen the accused in electric light.

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It is further alleged that when complaint was made to the family member of Ravi Mahato, he visited informant’s vegetable shop on number of occasions and extended threat to liquidate him. Today, i.e. on 19.07.2007, the accused entered into his house and given fist blow to his son and chased him by taking knife in his hand but father of the accused came in between, as such, he could not give a knife blow to informant.

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4. After due investigation, charge-sheet has been submitted and learned Magistrate took cognizance of the offence and the case was committed to the Court of Sessions, where charges were read over to accused and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

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5. To conceal the identity of victim, her name, name of her parents and brother are not being disclosed in this judgment. 6. To prove its case, prosecution has examined as many as seven witnesses. They are P.W. – 1, father of the victim, P.W. – 2 Gopal Pandey (neighbourer), P.W. – 3 is the mother of the victim, P.W. – 4 is the brother of the victim, P.W. – 5 is the victim (name concealed), P.W. – 6 Kedar Singh is the neighbour of the victim, P.W. – 7 Kasmuddin Ansari is the Investigating Officer. Apart from ocular evidence, prosecution has also brought on record the written report as Exhibit – 1 and formal F.I.R. as Exhibit – 2.

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In statement under Section 313 Cr.P.C., accused denied the allegation leveled against him. Defence has also brought on record the evidence of three witnesses. They are D.W. – 1 Jitu

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Kumar, D.W. – 2 Chandradeo Prasad and D.W. – 3 Arbind Mahato.

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7. After analyzing the evidence available on record, learned Trial Court found the accused guilty for the offence punishable under Sections 376/511/448/323 of IPC, against which accused has preferred the present appeal.

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8. Learned counsel for the appellant submitted that it is a false case lodged against the appellant, as the appellant used to ask the son of the informant not to indulge in gambling. It has also been pointed out to this Court that there is no plausible explanation of seven days delay in lodging the present F.I.R. as the incident is allegedly said to be of 12.07.2007.

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Learned counsel further pointed out that there is improvement from the mouth of all the witnesses, who are in blood relation to victim, to make the case graver but even then taking the allegation on its face value, no case of attempt to rape is made out at all, in the present case.

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9. Learned A.P.P. appearing on behalf of the State has submitted that learned Trial Court has passed well reasoned order after appreciating the evidence and there is no reason before this Court to interfere in the impugned judgment of conviction dated 23.04.2008 and the order of sentence dated 25.04.2008.

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10. Heard the arguments advanced by learned counsel for the parties and perused the material available on record. 11. Before proceeding further, this Court would like to briefly state the ocular evidence brought on record on behalf of the prosecution.

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12. P.W. – 1 is the father of the victim and also the informant who has stated that the incident is of 12.07.2007 at about 10:30 P.M. and at that time, the victim, who was 12 years old, was alone at home and in the meanwhile, accused who used to reside

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backside of his house, entered into his house and pressed her mouth and extinguished Diya and extended threat to her daughter that, if she shouted then she would be liquidated.

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Informant further stated that with bad intent, the accused entered his house but could not succeed. P.W. – 6 Kedar Singh who is his neighbour did Hulla and the accused was seen by his wife and Kedar Singh (P.W. – 6) in the light of bulb of electric pole while he was fleeing away.

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On query, the victim told to the informant that, the accused pressed her mouth and wanted to do wrong with her but she freed herself and fled away. Informant made complaint to the guardian of the accused but the accused extended threat that the informant would be liquidated.

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It is further stated that on 19.07.2007, the accused by taking knife in his hand did Marpit with his son and in the meanwhile, father of the accused came there, and saved themselves. He further stated that the accused is a thief. Informant has identified own handwriting and signature on the written report and the same has been marked as Exhibit – 1.

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In cross-examination, informant has stated that he used to reside in Gairmajarua land by giving plastic shed and Kedar Singh used to reside nearby and also other Thela wala used to reside in the vicinity. He has categorically denied the suggestion of defence that his son used to involve in gambling for which accused Ravi Mahato and Mohalla persons made objection and on 19.07.2007 there was quarrel between his son and Ravi Mahato and no incident took place on 12.07.2007.

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13. P.W. – 2 Gopal Pandey showed his ignorance about the incident and he has been declared hostile.

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14. P.W. – 3 is the mother of the victim who has stated that the incident is of 12.07.2007 at about 10:30 P.M. and that time she went to latrin and her husband went to shop to bring rice. She

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further stated that the victim who was 12 years old, was sleeping and she heard loud voice of her daughter then she ran to her house and saw the accused fleeing away by coming out of her house and her daughter was crying and on being queried, the victim stated that the accused climbed onto the cot and pressed her mouth. She further stated the accused first slapped the victim, then pressed her mouth, and threatened to kill her if she shouted. The accused was trying to force himself on the girl with bad intent.

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On the next day, the incident was shared with brother and Bhabhi of accused then accused started frequently visiting her shop and giving threats. She further deposed that on 19.07.2007 at 03:00 P.M. while they were taking meal, then accused entered her house by taking knife in his hand and given beatings to her son and when she started fleeing away then she was also chased then his younger son went to police station and thereafter police came and taken away accused. She also stated that on shouting, father of accused came and he saved them.

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In cross-examination, she stated that on 12.07.2007 none of the family members visited to the police station as the issue was connected with girl. However, incident was told to police on 19.07.2007, when the accused started making trouble to them. She further stated that, she herself and Kedar Singh (her neighbour) had seen the accused while he was fleeing away. She has also denied the suggestion of defence that her younger son involved in gambling and Ravi Mahato used to object the same for which her family member were having objection with the accused and there was Marpit between his son and the accused, Ravi Mahato. She has categorically denied the suggestion of defence that no incident took place on 12.07.2007.

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15. P.W. – 4 is the brother of the victim who has reiterated the fact as stated by his mother and has stated that after hearing his

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sister’s voice, he and his mother came to the house and his mother saw accused Ravi Mahato who was fleeing away. He also stated that, on query his sister told him that the accused pressed her mouth, extinguished Diya and told that if she shouted then she would be liquidated and on next day, when complaint was made to the family member of accused, then accused started extending threat to them and on 19.07.2007 accused came to his house by taking knife and told that everyone would be cut.

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In cross-examination, he has stated that he himself, his younger brother, his mother and father used to go market and his sister stays alone in the house and in day time, she used to go to school.

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16. P.W. – 5 (name concealed) is the victim who stated that incident is of 12.07.2007 at 10:30 P.M., and after preparing meal, she took dinner and slept and no one was present in her house, then the accused entered the house and extinguished Diya and pressed her mouth and after climbing over Khatiya (bed), he pressed her chest and mouth also and told that if she shouted, she would be killed. She stated that the accused wanted to ravish her and when she did Hulla then Kedar Singh came and when he asked, she disclosed the incident to him. The accused fled upon seeing those persons approaching and he was seen by her mother and the brother. She has also narrated the incident of 19.07.2007 by saying that the accused came with knife in the house and told that he would liquidate all the family members and was also saying that they were defaming the accused in the Mohalla and he also caught hold of her mother’s hair and also chased her and the brother.

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In cross-examination, she has stated that she did not tell anyone that accused climbed over the cot (Khatiya ) and this was also not stated to Kedar Singh (P.W. - 6) that accused pressed

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her chest as the mother has told her not to disclose anyone. She further stated that when she woke up, it was dark in the room and when accused started fleeing away from the room then she identified him and when he pressed her mouth and chest, she could not identify him. The moment, he fled, she came out of her house and by that time her mother did not reach at home and when she shouted then her mother came there by running but her brother was not there. She also stated that she told the police about pressing of chest by the accused. She has denied the suggestion of defense that at the behest of her mother, she had stated that accused climbed over cot and pressed her chest and no incident took place on 12.07.2007.

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17. P.W. – 6 Kedar Singh has stated that victim used to reside in his house and incident is of 12.07.2007 at about 11:00 P.M. and he heard shouting of victim, then he visited to her house but he did not see anyone and found Diya was extinguished and victim has told nothing to him and has also stated that she had neither seen nor identified anyone. This witness declared hostile. 18. P.W. – 7 Md. Kasmuddin Ansari is the Investigating Officer of the present case. He has inspected the place of occurrence and has stated that it is a house made up of gunny bag and taat, it is a Jhoprinuma (hut shed) house made up of bora, taat and lakri and there was curtain of taat on the main gate which act as a door. In western side, there is a house of accused and towards South, there is Jhopri of Kedar Singh and towards North, there is house of Suresh Yadav. He has identified own writing and signature on the formal F.I.R. and the same has been marked as Exhibit – 2.

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In cross-examination, I.O. has stated that there is one room i.e. of Jhoprinuma . There was no electric light at the place of occurrence. However, there was light of electricity outside the house.

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I.O. has stated that victim and her parents have not stated in their respective statement that accused climbed over the Khatiya and pressed her chest. During course of investigation, he has found that at the time of incident parents and brother of victim were not present and they came later.

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19. D.W. – 1 Jitu Kumar is residing near the house of informant and has stated that on 12.07.2007 he did not hear any hulla from the house of the informant. He, however, stated that the son of the informant was involved in gambling, and Ravi Mahato forbade him, for which he used to quarrel with Ravi Mahato.

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20. D.W. – 2 Chandradeo Prasad has also stated that no incident took place in the night on last year and he also used to reside in the vicinity of the house of informant. He further stated that the accused neither did mar-pit with informant nor teased his daughter.

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21. D.W. – 3 Arbind Mahato has stated that he knows the informant and his house is 4-5 houses away from his house. He further stated that he does not have any information that Ravi Mahato did cherkhani with the victim.

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22. As far as, delay of seven days in lodging of FIR is concerned, the mother of the victim (P.W. – 3) has stated that as the matter is related with her daughter (girl), therefore, they hid the incident and no one from her family visited to police station on 12.07.2007. But, as the accused started creating nuisance then she disclosed about the incident on 19.07.2007. Evidence reveals that the accused entered his house by taking knife and did marpit with his elder son, this prompted the informant to lodge the case against the accused.

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23. In view of aforesaid fact, this Court finds that it is natural and normal conduct on the part of the informant side, therefore, it cannot be said that there is delay in lodging FIR.

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24. From the evidence of victim, it transpires that on 12.07.2007 at about 10:30 P.M. accused entered into her house while she was sleeping after taking her meal and Diya was lit in the room. Accused extinguished Diya and, thereafter pressed her mouth. The victim has also stated that the accused climbed over the cot and also pressed her chest, but this part of her version is an improvement, as is evident from the deposition of I.O. (P.W. – 7) who has stated that no such fact was ever stated in her (victim) statement recorded before him. Similar improvements have been made by parents of the victim.

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25. From perusal of evidence, it is clear that when the victim shouted, then the accused fled away and P.W. – 6, Kedar Singh, who used to reside in the vicinity of the victim was the first person who reached at the house of the victim but, he became hostile while deposing before the court, but his examination-inchief reveals that he has stated that incident is of 12.07.2007 at about 11:00 P.M. in the night and after hearing Hulla, he entered into the house of the victim which corroborates the fact as stated by the victim that incident took place on 12.07.2007 at about 10:30 P.M. in the night and Kedar Singh (P.W. – 6), visited her place. But, P.W. – 6, Kedar Singh, has stated that the victim stated nothing to him. However, victim has stated in her deposition that P.W. – 6, Kedar Singh, had also seen the accused while he was fleeing away. Mother of the victim (P.W. - 3) has also stated that after hearing her daughter’s voice, she ran toward her house as she was in latrin, then she saw the accused coming out of her house. It has also come from the mouth of other witnesses that near the house of informant number of Thela walas used to reside in such type of Jhopri .

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26. Coming to the facts in hand and evidences discussed in the preceding paragraphs, it is required to refer herein the distinction between attempt to rape and criminal assault enumerated by the Hon'ble Apex Court in the case of Tarkeshwar Sahu v. State of Bihar (Now Jharkhand) reported in (2006) 8 SCC 560 .Relevant Paragraph of the judgment is hereunder –

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14. Position of law in England is the same. To constitute the offence of rape, there must be a penetration [R. v. Hill, (1781) 1 East PC 439] . Even the slightest penetration will be sufficient. Where a penetration was proved, but not of such a depth as to injure the hymen, still it was held to be sufficient to constitute the crime of rape. This principle has been laid down in R. v. M'Rue [(1838) 8 C&P 641: 173 ER 653] and R. v. Allen [(1839) 9 C&P 31: 173 ER 727] . In R. v. Hughes [(1841) 2 Mood 190 : 169 ER 75] and R. v. Lines [(1844) 1 C&K 393 : 174 ER 861] , the Court has taken the view that “proof of the rupture of the hymen is unnecessary”. In R. v. Marsden [(1891) 2 QB 149] , the Court has laid down that “it is now unnecessary to prove actual emission of seed; sexual intercourse is deemed complete upon proof of penetration only”.

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16. The distinction between rape and criminal assault has been aptly described in the English case R. v. James Lloyd [(1836) 7 C&P 317 : 173 ER 141] . In this case, while summing up the charge to the jury, Patterson, J. observed: (ER p. 142)

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“In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part.”

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17. A similar case was decided by Mirza and Broomfield, JJ. of the Bombay High Court in Ahmed Asalt Mirkhan [ Cri A No. 161 of 1930, decided on 12-8-1930 in Law of Crimes by Ratanlal Dhirajlal, p. 922.] . In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused's house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her from crying and placed his private part against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he is just going to have sexual connection with her.

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27. It would also be apposite to notice the following observations of the Hon'ble Apex Court in State of Rajasthan v. Sri Chand , reported in (2015) 11 SCC 229 ,which reads as follows -

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8. We find that the FIR was recorded under Section 376 read with Section 511 IPC i.e. attempt to rape and not rape per se. There is no eyewitness on record apart from the prosecutrix herself as PW 3 Biharilal only saw the accused fleeing away and Saroj, the alleged eyewitness, was never produced before the court nor was her statement recorded under Section 161 CrPC. Also, no medical examination of the prosecutrix has been conducted. The prosecutrix has in her statement stated that the accused Sri Chand took her inside his house, closed it, undressed her and undressed himself. Thereafter, she states, he got on to her and did bad work. On being repeatedly asked what bad work was done, she kept quiet and bowed her head, in embarrassment understandably. One must not lose sight of the fact that the prosecutrix was a minor child at the time of the incident. The father (PW 6) of the prosecutrix has categorically stated that bad work meant rape. However, we find difficulty in veracity of his statement since he was not an eyewitness and was not even told about the incident by the prosecutrix. He was told details of the incident by Biharilal (PW 3) who is not an eyewitness to the incident. However, Biharilal was the first person to have learnt of the offence from the prosecutrix and he has completely corroborated her version. By this consistent evidence what is proved beyond reasonable doubt is the offence under Section 354 IPC. However, the question of attempt to rape is not proved beyond reasonable doubt.

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28. It is required to refer Section 354 of IPC at this juncture, which reads here under-

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“ 354. Assault or criminal force to woman with intent to outrage her modesty. —Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years and shall also be liable to fine.”

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29. A plain reading of Section 354 of IPC makes it clear that the essential ingredients of the offence include: (i) the victim being a woman, (ii) an act of assault or application of criminal force, and (iii) the presence of intent to outrage or knowledge that such an act is likely to outrage her modesty. Importantly, under Section 354 of IPC, either of the elements actual application of force and mere apprehension can constitute an offence if they are accompanied by the intent to outrage modesty.

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Hon’ble Apex Court in the judgment rendered Rupan Deol Bajaj v. Kanwar Pal Singh Gill reported in (1995) 6 SCC 194 has held that the ultimate test for ascertaining whether modesty of a woman has been outraged is the action of the offender such,

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as could be perceived as one which is capable of shocking the sense of decency of a woman. Each case, however, has to be assessed in light of its specific facts.

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30. It is a matter of common prudence that Thela wala used to go out from their respective home in the day time to sell the items on thela and in the evidence of brother of the victim (P.W. – 4) it has also come that victim’s parents and both brothers used to go market in the day time and victim used to stay alone in the home except going to school. It has also come in the evidence that mother had gone to latrin which is 100 ft. away from her house. Accused is also residing in the vicinity and must be knowing aforesaid facts especially that in the night time all the Thela Walas and family would be present in their respective houses and in this background, it is difficult for this Court to draw inference that accused was having mens rea to commit rape in the present case. Even otherwise, apart from mens rea, act of the accused is said (as Court is not considering improved version of witnesses) to be that he was pressing the mouth of the victim and extinguished Diya , which cannot be said to be an attempt towards the commission of ultimate crime i.e. rape.

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31 . A bare perusal of the allegations reveals that the essential ingredients of an offence under Section 354 of IPC are squarely met out. As noted in preceding discussions, this provision criminalises the use of criminal force or assault against a woman with the intent to outrage her modesty or with the knowledge that such an act is likely to do so. Section 354 of IPC, must be interpreted in light of the dignity and bodily autonomy of a woman, including a minor girl. The act of pressing the mouth of a girl child, especially in the absence of any plausible justification, falls well within the ambit of criminal force. Any intentional use of force without consent, which causes or is

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likely to cause fear, injury, or annoyance, constitutes “criminal force.”

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In the case in hand, the victim, a minor girl, has specifically stated in her statement that the petitioner's conduct had made her feel uncomfortable and uneasy. When she was alone further intrudes upon her personal space, creating a situation where she experienced fear or apprehension. Such conduct, in itself, satisfies the threshold of “assault”.

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32. Considering the above legal propositions and above discussed evidences, this Court is of considered view that at best, it can be said that it is outraging the modesty of the victim which comes under Section 354 of I.P.C. and appellant is found guilty under Sections 354 of IPC and not under Sections 376/511 of IPC.

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Above stated aspect has not been considered by learned trial court, as such, impugned judgment of conviction dated 23.04.2008 and order of sentence dated 25.04.2008 whereby and whereunder, the appellant has been convicted for the offence inter alia punishable under Sections 376/511 I.P.C. is liable to be set aside.

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33 . As far as, conviction by the learned trial court under Sections 448/323 of IPC is concerned, there is evidence on record, that the accused entered the house of the informant on 12.07.2007 at about 10:30 P.M. and on shouting of the victim, the accused fled away and again on 19.07.2007, the accused entered the house of the informant and did Marpit with the brother of the victim, therefore, ingredient of Section 448 and 323 of IPC is available.

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34. Resultantly, this Court finds appellant guilty under Sections 354/448/323 of IPC.

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The punishment enshrined under Section 354 of IPC is permissible upto five years as far as Sections 448/323 of IPC is

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concerned, it is permissible upto one year. However, with respect to the sentence which has been imposed upon the appellant, it appears that appellant is facing the rigors of the prosecution case for about eighteen years since the year 2007 and the appellant has also remained in custody out of the sentence imposed by the learned trial court. Having considered the aforesaid facts, this Court is of view that ends of justice would be met, if the awarded sentence under Sections 448/323 of IPC by learned trial court is modified to the period already undergone. Further, under Section 354 of IPC also appellant is awarded sentence as period already undergone.

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35. Consequently, the judgment of conviction dated 23.04.2008 and the order of sentence dated 25.04.2008 passed by learned Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 250 of 2007 is, hereby, modified to the above extent.

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36. The instant criminal appeal is, hereby, partly allowed.

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37. Since, the appellant is on bail, he is discharged from the liability of his bail bonds.

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38. Let trial court record be sent back to the court concerned forthwith.

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(Arun Kumar Rai, J.)

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High Court of Jharkhand at Ranchi

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Dated, the 01^st day of July, 2025 Umesh/-A.F.R.