Najrul Ansari  Gushan Biswas Vs State of Jharkhand

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Cr. Appeal (S.J.) No.814 of 2006

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[Against the judgment and order of conviction dated 15.05.2006 and sentence dated 17.05.2006 passed by learned Sessions Judge, Jamtara in Sessions Case No.101 of 2004]

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Najrul Ansari @ Gulshan Biswas, son of Sri Nasiuddin Ansari, Resident of village-Khajuria, P.S.-Kundhit, District-Jamtara

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.... .... …. Appellant Versus The State of Jharkhand .... .... .... Respondent

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For the Appellant : Mr. Suman Kr. Ghosh, Advocate Mr. Durga C. Mishra, Advocate Mr. Atanu Bannerjee, Advocate For the State : Mr. Pankaj Kumar Mishra, A.P.P.

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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JUDGEMENT

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CAV On 06/01/2025 Pronounced On: 03/ 04 /2025

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Per-Pradeep Kumar Srivastava

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The present appeal is directed against the judgment and order of conviction dated 15.05.2006 and sentence dated 17.05.2006 passed by learned Sessions Judge, Jamtara in Sessions Case No.101 of 2004 whereby and whereunder, the sole appellant has been held guilty for the offence under sections 347/376 of

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Indian Penal Code and sentenced to undergo R.I. of 1 year for the offence under section 347 of I.P.C. and R.I. of 7 years for the offence under section 376 of IPC. Both sentences are directed to run concurrently.

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FACTUAL MATRIX

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Factual matrix giving rise to this appeal in a narrow campus as per written report of prosecutrix-cum-victim is that on 30^th June, 2003, the present appellant met the prosecutrix in her village and ensured her to procure matriculation certificate and asked to come on 02.07.2003 at Fatehpur, T.K. Gram, thereafter, they will go to Jamtara. Relying upon his assurance, the prosecutrix went to T.K. Gram, Fatehpur after disclosing the above fact to her sister-in-law Phool Kumari (PW-5) and reached there about 2:00 PM, where Nazrul Ansari was waiting her. After some conversation with the prosecutrix, the appellant left the place saying that he is going to manage a motorcycle to go to Jamtara and asked her to wait till his arrival. It is further alleged that the appellant returned that place in the evening and requested her to stay over the night in the forest quarter of his friend, Ram Payere Das (Forest Guard) situated at village Muridih Salbagan and in the next day morning, they will proceed to Jamtara. It is further alleged that

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in the night, the appellant brought some food and both took meal but at about 9:00 PM, the present appellant entered into the room of the prosecutrix and sat on her cot and forcibly committed rape upon her. It is further alleged that subsequently the forest guard Ram Payere Das also committed rape upon her. She was threatened to be killed by both the accused persons, if she attempts to raise alarm or disclose the incident to anyone. It is further alleged that after departure of forest guard Ram Payere Das, the appellant again came inside the room and committed rape upon her and on the next day morning i.e. on 03.07.2003, brought her to Jamtara for providing matriculation certificate and again sexually abused and assaulted her. The appellant also obtained signature of the prosecutrix on some plain paper and threatened her to take her life, if she discloses the above incident to anyone. It is further alleged that after commission of rape, the accused assured to solemnize marriage with the prosecutrix, she remained silent due to fear for a month, thereafter, disclosed the incident to her

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parents and brother and lodged this case.

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On the basis of above information, the FIR was registered for the offence under sections 347/376 (G) of Indian Penal Code against both the accused persons including present appellant.

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After conclusion of the investigation, the charge-sheet was submitted against both the accused persons and learned trial court, after conclusion of trial, extending the benefit of doubt to the accused, Ram Payree Das (forest guard) has acquitted him but held the present appellant guilty for the offences under sections 376 and 347 of IPC and sentenced him as stated above.

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Learned counsel for the appellant has vehemently argued that except the prosecutrix (P.W.4), all the witnesses are hearsay witnesses. The testimony of the victim, who was already married prior to the alleged occurrence is tainted with falsehood. It is not proved by the prosecution that the victim was literate and has ever attended any school and how she was entitled for matriculation certificate. The aforesaid assurance was also within the knowledge of the parents of the prosecutrix, who have also consented in the matter. This false case was instituted merely on the ground that the matriculation certificate was not provided to the prosecutrix by the appellant. The FIR was lodged after lapse of 34 days from the date of alleged occurrence with due deliberation and concoction without offering any reasonable explanation for such inordinate delay. In the facts and circumstances of the case as projected by the prosecution, mere impression of threat on

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mind of prosecutrix allegedly extended by the appellant cannot be a valid ground to be entertained. The prosecutrix has also stated that the appellant assured her that he will solemnize marriage with her but it is also not believable in as much as the prosecutrix was already a married lady. The prosecution has also failed to prove any place of occurrence where the said forcible sexual assault was committed against the prosecutrix. It is further submitted that on the basis of same evidence, other co-accused, who happens to be forest guard has been acquitted. It is utter surprising that the prosecutrix has given clean chit to other co-accused in her evidence before the court. Therefore, having tendency of false implication of the appellant exonerating the other co-accused. There is no iota of evidence to prove the commission of rape with the victim, and also does not find corroboration from her medical examination report. It is further submitted that it is an old case and the occurrence is of the year 2003. The appellant has remained in custody during trial about 1 ½ years and has sufficiently been punished. Therefore, in alternative, it is prayed that his sentence may be reduced to the imprisonment already undergone.

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On the other hand, learned Additional Public Prosecutor appearing for the State has vehemently refuted the aforesaid

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contentions raised on behalf of the appellant and submitted that the prosecution has reasonably explained the cause of delay in lodging the FIR and in case of such ghastly offence, threat to life extended to the prosecutrix as well as mental trauma undergone by her due to such ghastly offence, the delay, if any, cannot be said to be fatal to the prosecution. Learned trial court has taken into consideration all pros and cons of the case and also considered the defence witness. The material evidence appearing against the appellant has not been controverted or rebutted in the cross-examination of the prosecutrix. Admittedly, the medical examination of the victim was conducted after 34 days, therefore, sign of rape could not be found but there was evidence of sexual assault with the victim. Learned trial court has very wisely concluded that there is no reason to disbelieve the testimony of the prosecutrix and there was no occasion to falsely implicate the appellant for any reason whatsoever. Therefore, there is no requirement of corroborative evidence in the present case. Hence, there is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellant calling for any interference in this appeal, which is fit to be dismissed.

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For better appreciation of rival contentions, it is desirable to apprise with the evidence adduced in this case. The most important and sterling witness is P.W.4, the victim-cumprosecutrix . She has disclosed her age to be 18 years and stated that on 30^th June, 2003 at about 10:00 AM, while she was at her village, then Nazrul Ansari asked her to provide Board Certificate and also suggested her to come on 02^nd July, 2003, then they will go to Jamtara. Accordingly, she boarded a bus and arrived at T.K. Gram on 02^nd July, 2003, where Nazrul Ansari was waiting her. She has further deposed that Nazrul Ansari told her that he is going to bring a motorcycle from his friend suggesting her to wait him till his arrival. She has further deposed that Nazrul Ansari returned in the evening and showed his inability to arrange motorcycle, hence, he told her to stay at the house of his friend and in the next morning, they will go to Jamtara. She along with Nazrul Ansari went to a place but in that house no one was present in the room. She was provided food and a folding cot. She sat on the cot and started talking with Nazrul Ansari and in the course of talking, he put off her all clothes and he also became naked and started threatening her to kill, if she raised any alarm and committed rape upon her. In the next day morning, she went to Jamtara

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along with the accused Nazrul Ansari by a bus. She has further deposed that when they arrived at Jamtara, the accused obtained her signature on some plane papers and they also walked hither and thither and took lunch in a hotel and in the night, again she was brought to T.K. Gram and stayed in the night and Nazrul Ansari again committed rape with her. When this witness started weeping, the accused assured not to worry as he will solemnize marriage with her. She has further deposed that in the next day, she boarded a bus and returned to her home and due to threatening given by the accused, she did not disclose the above incident to her parents and other family members. This witness was so depressed and thereby she started a lonely life and in spite of request of her sister-inlaw, she did not disclose anything to her sister-in-law but ultimately about after one month, she narrated the above story to her mother. Thereafter, she went to police station and lodged a written report, which beard her signature and marked as Ext.2.

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In her cross-examination, she has admitted that she went to police station along with her brother and his friends. She was staying outside and her brother and his friends were writing the report, thereafter she was asked to sign on written

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report, which was presented before police, the said report was neither read over and explained to her nor she herself read the contents of written report. This witness further admits that about 7 years ago, she was married with one Bhim Soren but she had never gone to her matrimonial home. She further states that Ramchandra Barman of Fatehpur is the friend of her brother and she calls him ‘Jija Ji’. She has denied that Ramchandra Barman has performed court marriage with her. She also admits that in T.K. Gram, there is an old hospital but she did not know that there is any residence of forester. In T.K. Gram, she stayed the first night but in the second night, where she was kept, she does not know. She further admits that she was acquainted with Nazrul Ansari from three months prior to the occurrence and he used to talk with her friends and she has also seen while talking with her friends but she has declined to disclose the name of any of her friends and she has also not shared the alleged incident to any of her friends.

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P.W.1 Robin Kumar Murmu is step brother of the

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victim. According to his evidence, one month after the occurrence, he came to know that Nazrul Ansari and Ram Payree Das have committed rape with his sister. This fact was disclosed to him by his sister. She also disclosed that in the

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name of providing matriculation certification to her, Nazrul Ansari called her to go to Jamtara. She was kept at T.K. Gram forest for the night and both Nazrul Ansari and Ram Payare Das committed rape upon her. After getting knowledge of occurrence, he along with his sister went to police station where he scribed written report, which was signed by him and his sister and submitted it before the police station.

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In cross-examination, this witness admits that prior to this occurrence, the victim had never gone to any other place and stayed overnight with any person. He persistently asked his sister to tell where she has stayed for two nights and also forced to disclose but she told nothing. He further admits that when the victim did not disclose about any incident, then he came to Muridih, Fatehpur and enquired and then he came to know that one night, his sister stayed at T.K. Gram and one night at the residence of forest guard. The fact was disclosed to him by a hotel owner of Fatehpur, whose name, he does not know. This witness further admits that just after two days of returning of his sister, he traced out where she stayed for two nights and he told his sister that she has stayed for two nights at T.K. Gram at the residence of a forest guard, then she disclosed that she was brought forcibly and compelled to stay

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there by the accused and rape was committed with her. It is also surprising that when this witness got knowledge of incident just after two days from returning of his sister, he lodged FIR after 25 days and in between 25 days, this witness along with other friends Sama and Ramchandra Barma met with Ram Payare Das but he denied that he asked any money from Ram Payare Das. He also admits that on the second occasion, when he visited to Ram Payare Das along with his friends then Ram Payre Das did not talk with him. Thereafter, this witness lodged this case. He has denied the suggestion of defence that in order to extort money from the accused Ram Payre Das, he has falsely implicated the accused persons in this case.

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P.W.2 Debishasar Murmu is the father of the victim. According to him, the occurrence is dated July, 2003 and at that time, his daughter was aged about 17 years. The wife of this witness informed him that Nazrul Ansari has brought his daughter out and kept her for one day. When his daughter returned back to the house, this witness asked about spending of last one day, she did not reply, then this witness reported the matter before the police station. This witness was not acquainted with Nazrul Ansari.

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In cross-examination, this witness admits that his daughter-victim had studied at 8^th Class but he had no memory about the year of admission of his daughter in the school and the date of her birth. His daughter was aged about 18 years at the time of occurrence. This witness was not acquainted with Nazrul Ansair and there has no visitation of Nazrul Ansari to his house.

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P.W.3 Chabi Hansda is the mother of the victim. According to her, about two years ago, Nazrul Ansari asked her daughter to reach at T.K. Gram by boarding a bus and then he brought her to Jamtara for taking examination of matriculation. On assurance of Nazrul Ansari, her daughter went with him and thereafter, she did not know about where her daughter went. After two days, her daughter returned back to the house but she was not eating properly and doing any work. This witness scolded her daughter for not doing anything properly, then she disclosed about the alleged incident narrating that Nazrul Ansari had kept her in a house for two days and forcibly committed rape with her without her consent. After hearing the said incident, the case was lodged in Fatehpur Police Station. This witness was acquainted with Nazrul Ansari.

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In cross-examination, this witness admits that before marriage of this witness with her husband (P.W.2), her husband has already married twice and the victim is her own elder daughter. This witness further admits that the case was instituted after one month of alleged occurrence. This witness had been acquainted with Nazrul Ansari for 2-3 months and her daughter was studying in 9^th class but she dropped the study before 4-5 months prior to the occurrence. Her daughter has not given the exam of matriculation and it is admitted that we are searching for matriculation certificate. None of the villagers has provoked her to institute the case and it is not like that to extort money, this case was lodged.

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P.W.5 Phool Kumari is sister-in-law of the victim .

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According to her evidence, the incident is of two year back, when Nazrul Mian came to her house and told the victim to provide her matriculation certificate, so she came to T.K. Gram. This witness further deposed that the victim went to T.K. Gram and when she returned after two days, this witness asked the victim about spending of last two days but she replied nothing. After one month, this witness came to know about abominable act committed by Nazrul Mian with the victim. This witness is known to Nazrul Mian.

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In cross-examination, she states that she is sister-inlaw(bhabhi) of the victim and she talks each other. After one month of returning from Jamtara, the victim revealed about wrongful act done by Nazrul Mian with her. This witness further admits that she is known to Ramchandra Berman of Fatehpur and whenever this witness went to Fatehpur, she talked with Ramchandra Barman. There was no visitation of the victim to Ramchandra Barman. The police have recorded the statement of this witness and she disclosed before the police about commission of rape committed by two persons as narrated by the victim herself to her. The victim did not disclosed about the place of occurrence where the alleged occurrence took place at T.K. Gram in the house of forester. This witness has denied the suggestion of defence that the false case has been lodged against the appellant to extort money.

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P.W.6 Dr. Kumari Asha . According to her evidence, on 07.08.2003, she was posted on the post of Sub-Divisional Hospital, Jamtara and was holding the post as a lady medical Officer on deputation, she examined the victim at about 9:30 A.M and found following injuries:-

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It is not possible to say that whether the rape has been committed or not as the victim is married woman but at

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present she is not living with her husband. Her vaginal swab has been sent to Sadar Hospital, Dumka for microscopic examination for confirmation of presence or absence of spermatozoa (alive or dead). However, no foreign hair was found on her private part. There appeared no injury on the private part of the victim or any other part of her body. She was aged about 20 years but for determination of the exact age of the victim, the medical Board to be constituted. After receiving the report regarding vaginal swab, which shows absence of spermatozoa in the aforesaid vaginal swab. The medical report bears the signature of this witness, which is marked as Ext.3. The medical examination has been conducted upon the victim on police requisition.

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P.W.7 Om Prakash Shukla is the Investigating Officer . According to his evidence, on 05.08.2003, the victim came to Fatehpur O.P. along with her brother Robin Kumar Murmu and submitted a written report before the police station. This witness has visited the place of occurrence along with the victim and her brother. The first place of occurrence is situated in village Mauja Musidih near western side of Munagabani pitch road at a distance of 15 feet and the government quarter of two rooms of forest guard, Ram Payre Das. The door of one

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room opens towards east side and the door of second room opens towards west side. Both the rooms were locked. It was disclosed that in the eastern side room fitted with window and door, the occurrence took place on a folding cot. According to this witness, the second place of occurrence, is a lonely place situated at T.K. Gram, belonging to Seva Mandal, staff quarter within Gaushala. In the backside of the room, there was an open kitchen room. This witness has also proved the formal FIR marked as Ext.5.

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From the aforesaid discussion of oral testimony of witnesses, it

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is crystal clear that the brother of the prosecutrix, namely, Robin Kumar Murmu was quite instrumental in implicating the appellant in this case. It is not in dispute that the victim girl kept mum for 25 days after the alleged occurrence and disclosed to none of the family members including her brother (P.W.1) about the said incident and the reason has been explained by her that due to fear, she did not disclose the above incident. In the interval of above 25 days, P.W.1, the brother of the victim looking his sister under depression was quite anxious to know about the reason as to why she remained two days outside of the home and in the course of his own enquiry, P.W.1 came to know that appellant had enticed the victim to

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provide matric certificate and in that pretext, the appellant had called her outside the village at T.K. Gram and from where brought her to residential quarter of Ram Payre Das and kept her overnight and committed rape upon her. P.W.1 has also come to know that Ram Payre Das had committed rape with the victim but the present appellant was concealing himself. Inspite of search by P.W.1 at his home village and other places could not be found. Thereafter he along with his sister went to police station and lodged the FIR. It is quite evident from the testimony of prosecutrix P.W.4 that at the time of lodging FIR, she was outside police station premises and her brother and his friends Ramchandra Barman and others got the First Information Report scribed and obtained her signature without reading out and explaining the contents of the FIR to her and lodged the report. She has clearly admitted that on her statement, no report was registered and she was not interrogated by the police at the time of lodging the written report. Therefore, the prosecutrix appears to be tutored by her brother (P.W.1) about the false story of providing matriculation certificate to her. Although, the prosecutrix has studied up to 8^th class only and it is also admitted by the mother of the prosecutrix that they were desirous to get the matriculation

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certificate of the prosecutrix. The appellant is not a teacher or principal of any college nor he has capacity to procure the matric certificate for the prosecutrix. It is also admitted that prior to the date of occurrence, the prosecutrix was married with another person but she had never gone to her matrimonial home. It is also not the case of prosecution that there was love affair between the prosecutrix and the appellant. From the medical examination report, it is evident that no sign of rape was found rather being a married lady, she was habitual to sexual intercourse. It further appears that the Investigating Officer has mentioned the place of occurrence i.e. village Mauja Musidih near western side of Munagabani pitch road and the government quarter of two rooms of Forest Guard, Ram Payre Das but complete description of place of occurrence and the room which was used for commission of rape has not been properly proved. The overall evidence of witnesses including the prosecutrix does not appear to be trustworthy and reliable rather the story smells about false implication of the appellant exonerating the co-accused Ram Payre Das whose forest quarter has been alleged to be used for commission of offence. The prosecutrix in her alleged written report has stated about commission rape by the co-accused Ram Pyare Das but no

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reason has been offered for denying his complicity in the alleged offence. Therefore, the witnesses have tendency to suppress the material facts. Learned trial court has miserably failed to properly analyze and appreciate the aforesaid glaring infirmities in the prosecution evidence and also the motive of the brother of prosecutrix (P.W.1) to falsely implicate the appellant. Therefore, the impugned judgment and order of conviction and sentence of the appellant is not justified under law and is liable to be set aside.

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Accordingly, the judgment and order of conviction dated 15.05.2006 and sentence dated 17.05.2006 passed by learned Sessions Judge, Jamtara in Sessions Case No.101 of 2004 is hereby, set aside and this appeal is allowed.

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