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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Ratnaker Bhengra, J.
Mukhtar Mian, Son of Jabbar Mian @ Jagdish Mian – Appellant
Versus
The State of Jharkhand - Respondent
Cr. Appeal (S.J.) No. 354 of 2003
Decided On : 20-12-2018
Indian Penal Code, 1860 – Section 376 – Rape – Judgment of conviction – Appeal is directed against the judgment of conviction d and order of sentence passed by Additional Sessions Judge, Fast Track Court No. V, in Sessions Case whereby and whereunder, the appellant has been convicted under Section 376 of the Indian Penal code and has been sentenced to undergo RI for 8 years and to pay fine of Rs.5, 000/- and in default of fine to undergo RI for a further period of two years. – Held, It can only be concluded that since the FIR was lodged after considerable delay of 14 days and then she was subsequently examined then it was unlikely that there would be any remaining evidence regarding the rape or assault. – It has come from the informant written report as well as from her deposition that she had not resisted in such a manner that injuries would have resulted in her body. – It is not unknown that out of fear a victim of rape simply possibly gets brutalized and makes no resistance. – This is simply out of fear and she has stated that due to the appellant being a man, being the he had the physical strength to subdue her and therefore she had not resisted. – There is also the argument by the appellant that she was already married and yet she wants to undergo the second marriage again. From the evidence that is on record, it is indicated that the mother and the daughter was living together, and therefore for whatever reasons, which is not apparent, the husband was not living with the victim. – In fact, if the husband was around then she most probably would not have been raped and become victim. – The appellant knowing fully well the situation of the victim and the family that only she and mother were living at the place where they were living took advantage of the situation and committed the assault on her. – The agreeing to marriage of the victim with the person who has assaulted her has to be seen in this background. – It is not unheard of in this country that it is suggested that the victim marry the person who has assaulted her in this situation, her agreeing to marry can be interpreted as an act of desperation. – Court is not inclined to acquit the appellant. – Accordingly Judgment of conviction and Order of sentenced passed by Additional Sessions Judge, Fast Track Court No. V, in Sessions Case whereby the appellant has been convicted under section 376 of the Indian Penal Code and sentenced to undergo R.I. for 8 years and to pay a fine of Rs. 5000/- and in default of fine to undergo further R.I. for a period of two years is sustained and upheld. – Appellant’s bail bond is cancelled. Learned court below is directed to take steps for his arrest. – Appeal Dismissed
1. Heard the parties.
2. This appeal is directed against the judgment of conviction dated 09.01.2003 and order of sentence dated 10.01.2003, passed by the learned Additional Sessions Judge, Fast Track Court No. V, Deoghar in Sessions Case No. 283 of 2001|217 of 2002, whereby and whereunder, the appellant has been convicted under Section 376 of the Indian Penal code and has been sentenced to undergo RI for 8 years and to pay fine of Rs.5, 000/- and in default of fine to undergo RI for a further period of two years.
3. The prosecution case, as per the written report of informant, the victim, PW-2, is that on 7th July, 2001 at about 11:00 a.m., she was alone at her house. Suddenly, accused Mukhtar Mian, found her to be alone, entered into her house and closed the door from inside and caught her and started molesting her. She started crying then he put the ‘anchal’ of her Sari in her mouth and thrashed her. Thereafter, he lifted her sari and saya and committed rape with her. It is further alleged that she wanted to escape from him, but the appellant being a male, she could not succeed. After committing rape, he threatened that if she will discuss this matter then he will ruin her life and fled away from there. When on the alarm the village people came there then she narrated about the occurrence to them. Thereafter, village people and her family members went in search and enquired about the accused in his house. The people assured them that after doing panchayati the matter will be solved. On the same day at about 6-7 p.m. a panchayati was held but accused Mukhtar Mian had not participated, then panches decided the matter with the order that accused will have to marry with informant. On the hearing of this decision, the father and brother of the accused suddenly stood up during the panchayat and went away to their house and drove away the accused from the village, therefore, the decision taken by the panches did not succeed.
4. On the basis of the said written report, Madhupur P.S. Case No. 129 of 2001 was registered against the accused. After investigation charge sheet was submitted and cognizance was taken and the case was submitted to the Court of Sessions for trial.
5. Prosecution had examined as many as nine witnesses. Out of nine witnesses, PW-1 is Jaigun Bibi, mother of informant, PW-2, the victim is the informant herself, PW-3 Md. Sanaul, PW-4 Md. Suleman Mian, PW-5 Md. Nasir, PW-6 Samid Mian, PW-7 Md. Salu Mian, PW-8 Dr. (Smt.) Kumari Asha and PW-9 Ras Bihari Paswan is the IO of this case. At the conclusion of the trial, the appellant was convicted and sentenced as aforesaid. Hence, this appeal.
6. PW-2 is the informant or the alleged victim. She deposed that on the day of occurrence she was alone in her house. In the mean time accused came there and found her alone, asked whereabouts of her mother. On which she told that she had gone towards village. Then the accused closed the door and felled her down and while she was crying, he climbed upon her body and lifted her sari and penetreated his penis in her vagina and committed rape up to ten minutes with her. He has also put the anchal of her sari in her mouth and threatened that if she will discuss the matter then he will ruin her life. Thereafter, he fled away from there after opening the door. She further stated that she has narrated the entire occurrence to her mother. She further said that on the same night a panchyati was held in her village but accused Mukhtar Mian had not participated, although his brothers and father participated. Panches decided the matter and ordered Mukhtar Mian to marry her, but they refused. She further said that she along with her mother and villagers went to police station to lodge the case but police had not registered her case. Thereafter, she went to local MLA Mr. Furkan Ansari. It is also started that Mr. Furkan Ansari had informed the police on telephone but police persons did not turn up. Thereafter again she along with her mother w
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