Jharkhand High CourtMamlat Sk vs The State Of Jharkhand on 19 August, 2023Author:Deepak RoshanBench:Deepak Roshan1\n\nIN THE HIGH COURT OF JHARKHAND AT RANCHI\n             Cr. Appeal (SJ) No. 1161 of 2004\n   (Against the judgment of conviction and order of sentence dated\n   05.07.2004 passed by the Additional Sessions Judge-IIIrd, Rajmahal,\n   in Sessions Case No. 251 of 1993 and Sessions Trial No. 236 of 2002.)\n                             ---------Mamlat Sk.                                   .....      Appellant\n                              Versus\n        The State of Jharkhand                       ......   Respondent\n                             ---------CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN---------For the Appellant          : Mr. Jai Praksh Jha, Sr. Adv\n        For the State              : Mr. Pankaj Kumar, P.P\n                             ---------\n  07/Dated: 19th August, 2023\n               Heard learned counsel for the parties.2.     This appeal is directed against the judgment of\n        conviction and order of sentence dated 05.07.2004 passed by\n        the Additional Sessions Judge-IIIrd, Rajmahal, in Sessions\n        Case No. 251 of 1993 and Sessions Trial No. 236 of 2002;\n        whereby the appellant was convicted undersection 376IPC\n        and sentenced to undergo R.I. for 7 years and further imposed\n        fine of Rs.1000/- and in default, further sentenced to undergo\n        S.I. for 6 months.3.     The prosecution case in short is that on 28.7.1992,\n        informant had come out for discharging soil then all of a\n        sudden accused along with one another person caught her\n        and wrapped her mouth with gamcha and tried to bring her\n        towards forest but upon raising alarm, her husband and\n        mother-in-law reached there on which accused fled away from\n        the place of occurrence taking advantage of darkness. After 4\n        days of occurrence, she informed to police that accused had\n        committed rape on her which she did not disclosed on the\n        first occasion, when she informed police on the very next date\n        of occurrence.4.     Mr. Jai Prakash Jha, learned senior counsel for the\n        appellant made following submissions;(i)    The first information about the incident is given by the\n        victim on next day of incident i.e., on 29.7.1992 wherein\n        victim has made allegation that the accused has attempted to2commit rape on her however fortunately he did not succeed in\ncommitting rape.(ii)    The version of the prosecutrix that in the first\ninformation     to   police,   she   could   not   disclose   about\ncommission of rape to save her prestige in the eye of Society\nand further apprehended that if she disclose the truth, her\nhusband would desert her and would drive her out from the\nhouse appears to be concocted; as the husband of the victim\nin his deposition had stated that on raising alarm, he and his\nmother, went towards place of occurrence wherein they saw\naccused was fleeing away and the sari of the victim was open\nand there was semen stained on the petticoat of victim. From\nthis it can be inferred that the husband and his mother was\nvery much aware of the fact of rape because they had seen\nthemselves. After seeing the incident, the family of victim after\ndiscussion must have given the information to the police\nabout the true fact of incident and in the second information,\nshe has said that due to fear of being driven out by the\nhusband she had not informed the police about Rape.(iii)   From the deposition of PW4-father-in-law, it clearly\ntranspires that victim has informed the attempt of rape on the\nnight of incident itself. From this it can be inferred that\nsecond information is further development and was an\nafterthought.(iv)    Even from the deposition of Doctor-PW-5, it appears\nthat there was no mark of violence found on body and there\nwas no sign of rape.(iv)    Further PW-9 Deputy Director Forensic science has\nstated that sample of seized petticoat was sent to the\nlaboratory for chemical examination of the semen which was\nfound on it; however, in his cross examination he admitted\nthat semen stained on saya was not compared with the\nsemen of accused.Relying upon the aforesaid submissions, he prays for\nacquittal of the appellant.35.    Mr. Pankaj Kumar, learned P.P. opposed the prayer for\nacquittal and submits that the learned trial court has not\ncommitted any error in convicting the appellant. Further. The\nprosecution has considerably proved the charge of Rape; as\nsuch no lenience is required.6.    Having heard learned counsel for the parties and after\ngoing through documents available on L.C.R, it appears that\nthe first information about the incident was given by the\nvictim on the next day of incident i.e., on 29.7.1992, wherein\nvictim has made allegation that the accused has attempted to\ncommit rape on her; however, fortunately he did not succeed\nin committing rape. Interestingly, after about 4 days of\nincident she has made another written information to the\npolice on 02.08.1992 that in the FIR, she has not stated true\nfact because of the fear that his husband will desert/leave her\nfor this incident and upon insistence from all the family\nmember that if the rape was committed by the accused then\nyou must inform the true fact of rape to the police; she has\ngiven correct information to police in which she has said\nabout the incident that the accused with one another person\ncaught the victim and took her towards bushes and\ncommitted rape. This clearly shows that improvisation has\nbeen made by the victim.7.    It further, from the statement underSection 161Cr.\nP.C. of mother-in-law and her husband, is evident that rape\nwas not committed on victim and they made statement\nregarding appellant's attempt to commit rape. Further, from\nperusal of the FIR, she could not disclose first time about\ncommission of rape to save her prestige in the eye of Society\nand further apprehended that if she disclose the truth, her\nhusband would desert her and would drive her out from the\nhouse; however the fact remains that the husband of the\nvictim in his deposition had stated that on alarm, he and his\nmother went toward place of occurrence wherein they saw\naccused was fleeing away and the sari of the wife was open4and there was semen stained on the petticoat of victim. From\nthis it can be inferred that the husband and his mother was\nvery much aware of the fact of incidence because they had\nseen themselves. Thus, the statement of the prosecutrix that\ndue to fear of being driven out by the husband she stated\nincorrect fact in the FIR; though the husband and his mother\nhas seen the incident, is improvisation on the face of it.8.     Further from the deposition of PW4 father-in-law, it\nclearly transpires that victim has informed the commission of\nincidence on the night of incident itself. From this it can be\ninferred that second information given by the prosecutrix is\nfurther development and an afterthought.9.     Even from the deposition of Doctor- PW-5 it appears\nthat there was no mark of violence found on body and there\nwas no sign of rape. As aforesaid, even in the statement undersection 161Cr. P.C. husband of victim and as well his mother\nhas given statement regarding attempt to commit rape only\nhowever in the deposition of husband they have said about\ncommission of rape. By this it can be inferred they made\nimprovisation in the story in their deposition.10.    Further PW-9, Deputy Director Forensic science has\nstated that sample of seized saya was sent to the laboratory\nfor chemical examination of the semen found on Saya.\nHowever, in his cross examination he admitted that semen\nstained on saya was not compared with the semen of\naccused.11.    It is also pertinent to refer the defense version which\nwas contended by his counsel that a criminal case being G.R.\nCase No. 280 of 1991 which was lodged by the brother of the\naccused in which cousin brother of the victim's husband was\nconvicted. Thus, false implication of the appellant cannot be\nruled out.Having regards to the aforesaid discussion, it clearly\ntranspires that the conviction of the accused is made on\nsurmises and conjuncture as well as presumption. The5learned trial court has failed to consider all these aspects and\n      convicted the appellant merely on expectations. In such\n      circumstances, the conviction of appellant for the substantive\n      offense of rape by the trial Court deserves to be set aside and\n      he must be acquitted for the same.12.   Consequently, the judgment of conviction and order of\n      sentence dated 05.07.2004 passed by the Additional Sessions\n      Judge-IIIrd, Rajmahal, in Sessions Case No. 251 of 1993 and\n      Sessions Trial No. 236 of 2002 is set aside. As a result, the\n      instant appeal stands allowed.13.   The appellant shall be discharged from the liability of\n      his bail bond.14.   Let the copy of this order and the lower court record be\n      sent to the court concerned forthwith.(Deepak Roshan, J.)\nAmardeep/