Criminal Appeal (S.J.) No. 444 of 2002
[Against the Judgment of conviction dated 06.06.2002 and Order of
sentence dated 12.06.2002 passed by learned 1st Additional
Sessions Judge, Bokaro, in Sessions Trial No. 287 of 2 0 0 0 ]
Vijay Diggar @ Pawroti, S/o Mahavir Diggar, resident of
Village Bansgora, P.S.- Marafari, District - Bokaro.
–
Appellant
… …
Versus
1. The State of Jharkhand
2. Ghanshyam Hembram, S/o Runka Hembram.
3. Shanti Hembram, D/o Ghanshaym, both resident of
Village Bansgora, Steel Tolla, P.S. Marafari, District
– –
Bokaro.
Respondents
… …
P R E S E N T
SRI ANANDA SEN, J.
SRI PRADEEP KUMAR SRIVASTAVA, J.
…..
For the Appellant : Mr. Sanjay Kumar, Advocate.
For the State : Mr. Shailesh Kr. Sinha, A.P.P.
…..
JUDGMENT
C.A.V. on 11.12.2024 Pronounced on 20.12.2024
Per Pradeep Kumar Srivastava, J.
1.
Heard learned counsel for the parties.
2.
The present appeal is directed against the judgment of
conviction dated 06.06.2002 and order of sentence
dated 12.06.2002 passed by learned 1st Additional
Sessions Judge, Bokaro in Sessions Trial No. 287 of
2000, whereby and whereunder, the appellant has
been held guilty for the offence under Sections 366
and 376 of the I.P.C. and sentenced to undergo
rigorous imprisonment for ten years for the offence
under Section 366 of the I.P.C. and further sentenced
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to undergo rigorous imprisonment for ten years for
the offence under Section 376 of the I.P.C. Both the
sentences were directed to run concurrently.
FACTUAL MATRIX
3.
The factual matrix giving rise to this appeal is that on
12.06.2000 at about 7-7:30 P.M., the victim girl went
out from her house for walking, but she did not
return to home till late night. It is alleged that her
parents and neighbours started searching her at the
adjoining places, but no trace was found. In course of
search, the informant came to know that the present
appellant namely, Vijay Diggar @ Pawroti of same
mohalla had taken away minor victim girl for illicit
inter-course. The family members also went to house
of Vijay Diggar, but he was not found and his family
members did not offer any satisfactory reply.
4.
On the basis of written report of the informant,
Marafari P.S. Case No. 34 of 2000 (G.R. No. 627 of
2000) was registered for the offence under Sections
363, 366, 366(A) and 376 of the I.P.C. The charge of
investigation was undertaken by S.I. Md. Kasim (P.W.-
9). In the course of investigation, he raided the house
of the accused Vijay Diggar, who was absconding.
Ultimately, accused surrendered on 22.06.2000 before
the court of concerned Judicial Magistrate. The I.O.
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also received a telephonic message that the victim girl
is wondering near the house of MLA, Sri. Samresh
Singh at Sector-IV, B.S. City. Accordingly, the victim
was recovered in presence of witness, Santosh Kumar,
who identified her. Thereafter, the victim girl was
medically examined and handed over to her father.
After finding sufficient evidence against the sole
accused for the offences under Sections 363, 366,
366(A) & 376 of the I.P.C. charge sheet was submitted
against him. The case was committed to the court of
Sessions, where S.T. Case No. 287 of 2000 was
registered. Charges were read over and explained to
the accused, to which, he pleaded not guilty and
claimed to be tried.
5.
After conclusion of trial, the trial court has held the
appellant guilty for the offence under Sections 366 &
376 of the I.P.C. and acquitted from the charges
under Sections 363 and 366(A) of the I.P.C. and
sentenced him for R.I. for 10 years for each of the
offences, which has been assailed in this appeal.
6.
Learned counsel for the appellant has vehemently
argued that the victim girl was not minor, rather she
was aged about 25 years on the date of occurrence as
is well-proved by her medical evidence and no School
Certificate of the victim was properly proved in this
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case. The medical examination report of the victim
also does not corroborate the factum of commission of
rape with her. The victim girl herself has not
attributed any forceful sexual intercourse with her
against her will by the appellant. Just after recovery,
the victim has not complained any illicit conduct and
behaviour of the appellant with her. The victim girl
herself specifically admitted that throughout her
alleged travel with the appellant, she never raised any
alarm nor complained any ill-treatment with her at
the hands of the appellant. The love letters written by
the victim girl addressed to the appellant which was
submitted before the Investigating Officer by the
victim herself clearly indicate the consent of the victim
due to love affairs with the appellant. Therefore, no
offence as alleged and charge against the appellant is
constituted. It is further submitted that the appellant
and the victim girl had jointly made a petition during
pendency of the trial that they are ready and willing to
marry with each other in accordance with law and in
the matter of sentence a lenient view may be taken,
but that was not considered, since the offence levelled
against the appellant were not compoundable in
nature.
7.
In alternative, it is submitted that the case is of the
year 2000 and now more than two decades has been
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elapsed. There was consensual affair between the
appellant and the victim and now she is married with
any other person and appellant is also living his life in
his own ways. The appellant has also undergone two
years imprisonment during trial of the case, as such,
he has been sufficiently punished in this case for the
offence committed by him. Under such facts and
circumstances of the case, the sentence passed
against the appellant may ben reduced to the
imprisonment already undergone.
8.
Per contra, learned A.P.P. appearing for the State has
opposed the contentions raised on behalf of the
appellant and has submitted that there is no illegality
or infirmity in the impugned judgment of conviction
and order of sentence of the appellant. The learned
trial court has rightly observed that the offence is
non-compoundable. Hence, compromise between the
parties cannot be accepted, which was filed after
recording of prosecution evidence and at the stage of
argument. The offence is very serious in nature. The
victim girl has fully proved her case constituting
offence under Section 366 & 376 of the I.P.C.
Therefore, no leniency may be taken for reducing the
sentence of the appellant for such a heinous offence.
This appeal is devoid of merit is fit to be dismissed.
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9.
We have gone through the record of the case along
with impugned judgment and order in the light of
contentions raised on behalf of both side.
10.
It appears that out of nine witnesses examined in this
case, the most important witness is the victim girl
herself, who has been examined as P.W.-5 disclosing
her age about 16 years. According to her evidence, on
12.06.2000 at about 7 7:30 PM, she went outside of
–
her house for walking and reached near temple of the
mohalla, meanwhile, present appellant along with his
friend Amod Rawani and one other boy came there
and showing knife threatened her to keep silence and
she would follow with them and she was forcibly got
boarded on trekker and brought towards Sector-IX,
where she was stayed for one night. On next day, she
got boarded on a bus and brought to Tatanagar Dak
Bangla, where she was kept for three days. Thereafter,
she was brought to Chandankiyari at the house of
elder brother of Bijay Diggar (appellant) and kept for
2-3 days. Again, she was brought to Telidih Chas
Bokaro and kept in the house of unknown person for
two weeks. Thereafter, present appellant brought her
to Chas Court, where she was forced to put signature
on some documents in presence of an Advocate.
Those documents are also marked as Exhibit-3 & 3/1.
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She has also deposed that after execution of some
documents in the Civil Court, she was brought to
Balidih in the house of Narayan Diggar and kept there
for two weeks. Thereafter, she was left near a School
in front of house of MLA Sri Samresh Singh. She has
categorically stated that at all the places mentioned
above, where she was kept by accused person, the
accused Vijay Diggar (appellant) had established
sexual intercourse with her against her will and
without her consent. It is alleged that from the school
near the house of MLA Sri Samresh Singh, she was
brought at police station by the police and she
disclosed all the incident to the police, which was
recorded. Thereafter, she was medically examined at
the instance of police and handed over to her father.
She has been cross-examined at length by the
defence, but noting has been elicited to rebut her
aforesaid testimony.
11.
P.W.-7 Ghanshyam Hembrum is the father of the
victim girl cum informant of this case. He has
– –
proved the contents of fardbeyan that on 12.06.2024
at 7-7:30 P.M. his minor daughter went for walk, but
did not return and on search, he came to know that
one Vijay Diggar residing in his mohalla has
kidnapped his daughter for illicit intercourse.
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12.
P.W.-8 Choba Hembrum is the mother of the victim
girl and hearsay witness of occurrence.
13.
P.W.-1 Mansi Tudu is a local person, who came to
know about occurrence from mother and father of the
victim.
14.
P.W.-2 Basant Sinku is a local tailor master. He also
engaged in search of the victim girl at the instance of
her parents. Thereafter, case was lodged.
15.
P.W.-3 Nandlal Hembrum is the younger brother of
the victim, who has also deposed in the same line as
the above witnesses.
16.
P.W.-4 Bachan Biruah, an auto-rickshaw driver, is
the neighbour of informant. He has also come to know
from the informant about missing of her minor
daughter and during search, he came to know that
Vijay Diggar has kidnapped her for some illicit
purpose. They also went to house of the Vijay Diggar,
but he has was not present at the house. Thereafter,
case was lodged.
17.
P.W.-6 Dr. Rozy Shankar has medically examined the
victim girl. On examination of private part, she did not
find foreign hair in or around Vagina, hymen was old
torn. There was no tenderness around the Vagina and
on receipt of radiological and pathological report, she
found that there was no recent intercourse with the
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victim and her age was assessed in between 20-25
years. Her medical examination report, radiological
report and pathological report have been proved by
Exhibit-5, 5/1 & 5/2 respectively.
18.
P.W.-9 is the Investigating Officer in this case, who
after finding sufficient evidence against the accused
appellant submitted charge sheet for the offence
under Section 363, 366, 366(A), 376 I.P.C.
19.
We have also gone through the defence evidence, it
appears that father of the victim namely, Ghanshyam
Hembrum (P.W.-7) has been produced as Defence
Witness No. 1 (D.W.-1). After some understanding
between family members of the accused and
informant. He has brought on record a photocopy of
letter purported to be written by the victim girl
showing her desire to marry with the appellant and
accepting love affair with the appellant and voluntary
elopement with him. A joint compromise petition was
also filed before concerned trial court with assurance
that appellant is ready to marry with the victim girl.
20.
The defence has also exhibited following documents:-
Exhibit-A : Statement of victim girl recorded
by police on 04.07.2000 after her
recovery.
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Exhibit-B : Photocopy of letter purported to be
written by victim girl.
21.
The learned trial court considering the offence to be
non-compoundable and clear and cogent evidence
available on record proving the guilt of the accused
beyond all reasonable doubt for the offence under
Section 366 / 376 of the IPC has passed the judgment
of conviction and sentence of the appellant.
22.
We further find that the informant (P.W.-8), who
happens to be father of the victim, has been examined
as Defence Witness No. 1 (D.W.-1) has stated that
although real age of the victim is 25 years, but in the
school certificate, she is of 16 years, but no reliable
documentary evidence has been produced herein in
this case. The age factor of the victim is of no
relevance in view of her specific testimony that she
was ravished by appellant against her will and
without her consent, which remains un-rebutted by
the defence. There is no reason to disbelieve her
testimony about forcible intercourse established with
her. Merely because she was not raising any alarm
due to fear at various places brought by the accused
is not sufficient to draw inference of consent for
having sexual intercourse with the appellant. It
cannot be said that there was tacit consent of the
victim.
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23.
In view of the aforesaid discussion and reasons and
un-rebutted testimony of victim girl, who appears to
be fully reliable, the conviction and sentence of the
appellant recorded by learned trial court, appears to
be well-reasoned and based upon cogent evidence. We
do not find any justification for any interference in the
impugned judgment of conviction of the appellant.
24.
So far as sentence imposed upon appellant is
concerned and subsequent development in the case
and at the instance of the informant himself as
discussed above and also in view of the fact that 20
years has been passed from the date of occurrence
and the appellant has also undergone imprisonment
for more than 02 years during trial of the case, we are
inclined to reduce the sentence awarded to the
appellant from R.I. of 10 years to the imprisonment
already undergone for both the offences under
Sections 366 & 376 of the I.P.C.
25.
For the aforesaid discussions and reasons, this appeal
is dismissed on merit with modification in the
sentence to the extent mentioned above. Appellant is
on bail. He is discharged from the liability of bail bond
and sureties shall also discharged.
26.
Pending I.A., if any, stand disposed of.
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27.
Let a copy of this judgment along with trial court
record be sent back to the court concerned for
information and needful.
(Pradeep Kumar Srivastava, J.)
Per Ananda Sen, J. : I agree
(Ananda Sen, J.)
Jharkhand High Court, Ranchi
Dated, the 20th December, 2024.
N.A.F.R.
Sunil /
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