Criminal Appeal (SJ) No. 26 of 2002
Against the judgment of conviction and order of sentence dated
12/10/2001
and 15/10/2001 respectively passed by Sri Pradeep
Kumar, Sessions Judge, Garhwa in Sessions Trial No. 467 of 1998.
Krishna Prasad Modi………………… Appellant
Versus
State of Jharkhand…………………
Respondent
……
For the Appellant : Mr. V.K.Tiwary, Advocate
For the State : Mr. S.N.Rajgarhia, A.P.P.
……
P R E S E N T
The Hon’ble Mr. Justice R.K.Merathia
J U D G M E N T
By Court. This appeal is directed against the impugned judgment of
conviction and sentence passed on 12/15th October, 2001 by Sri Pradeep
Kumar, Sessions Judge, Garhwa in Sessions Trial No. 467 of 1998, whereby
the appellant Krishna Prasad Modi has been found guilty for committing the
offence under Sections 376 and 342 of the Indian Penal Code and, thereby,
he has been sentenced to undergo R.I. for 10 years for the offence under
Section 376 IPC. No separate sentence was passed under Section 342 IPC.
2. The prosecution case, in short, is that accused Sarswatia Devi
took a loan of Rs. 2000/ for purchasing land from the appellant Krishna
Prasad Modi, who was a Constable in Meral Police Station. In lieu thereof,
she asked the VictimBhukhali Devi (PW5), who happened to be her
daughterinlaw, to sleep with the appellant Krishna. When she refused,
Sarswatia Devi threatened her. After about 8 days, Krishna again came to
meet Sarswatia Devi at about 10 p.m. And started talking to her. Thereafter,
Sarswatia Devi asked the victim to give water to him. When she refused,
Sarswatia Devi insisted to give water to him and when she went near
Krishna, he caught hold of her hand. She wanted to run away by getting her
hand disengaged. She wanted to bite him on his hand but Sarswatia Devi
caught hold her and put a cloth into her mouth. Thereafter, Sarswatia Devi
and Krishna put her on a cot and tied her hands and legs with cot. While
Sarswatia Devi kept her mouth closed with clothes, Krishna committed rape
on her. When Krishna left her after committing rape, Sarswatia Devi untied
her hands and legs. She wanted to meet villagers and tell the occurrence to
them but Sarswatia Devi asked her to keep silence . She contacted the
villagers and with their help, she came to the police station and gave the
statements. The FIR was registered on 10/04/1998. On 11/04/1998, the
statements of witnesses were recorded under Section 164 Cr.P.C. including
the husband of the victim Mahendra Saw (PW4).
3. Learned counsel for the appellant assailed the impugned
judgment on various grounds. He submitted that the FIR was lodged after
about 15 days and there is no explanation for such delay; and that the
Doctor opined that it was difficult to say as to whether the victim was raped
or not; and that PW4 the husband of the victim, turned hostile; and that
in any event, the appellant has remained in jail custody for about five years
and five months and, therefore, at least the sentence may be reduced to the
period already undergone.
4. On the other hand, Mr. Rajgarhia, learned APP for the State
supported the impugned judgment.
5. It is true that PW4 Mahendra Sao, husband of the victim was
declared hostile in the court but he clearly said in his statement under
Section 164 Cr.P.C. that the victim told her when he returned in the night
about the occurrence and when he protested about the occurrence with his
motherSarswatia, she assaulted him by Danda. Thereafter, Panchayati was
held and then as there was no help from any corner, FIR was lodged. But in
the court PW4 turned hostile. PWs 1, 2 and 3, who gave statements under
Section 164 Cr.P.C. that they learnt about the occurrence from the victim
PW5, also turned hostile in court. The evidence of the Doctor is not
relevant as the victim was examined after about 15 days. Thus, the
conviction is based only on the evidence of the victim PW5. It is settled
position that only on the evidence of the victim, conviction can be passed in
such type of cases. There is nothing to discredit the evidence of PW5.
6. After hearing the parties and on going through the records
carefully, in my opinion, no grounds are made out for any interference with
the conviction of the appellant. Accordingly, it is affirmed.
7. So far as sentence is concerned, it is submitted that the appellant
Krishna Prasad Modi has already remained in jail custody for about five
years and five months out of the sentence of 10 years. It is further
submitted that he has also been dismissed from service.
8. In the circumstances, in my opinion, no useful purpose will be
served by sending the appellant again in jail to serve out the sentence.
Accordingly, he is sentenced to undergo R.I. for the period already
undergone by him. The appellant, who is on bail, is discharged from the
liabilities of his bail bonds.
With this modification in sentence, this appeal is dismissed.
(R.K.Merathia, J)
Jharkhand High Court, Ranchi
Dated the 21st September 2011;
NAFR/Mukund/c.p. 3