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2004 DIGILAW 40 (JHR)

Anil Kujur v. State Of Bihar (Now Jharkhand)

2004-01-09

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the appellant is directed against the impugned judgment and order dated 27.6.1998 passed in Sessions Trial No. 326 of 1997/T.R. No. 6 of 1997 by Shri Anant Vijay Singh 3rd Additional Judicial Commissioner, Ranchi whereby and whereunder the appellant was found guilty for the offence punishable under Section 366A and 376 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for ten years each under Sections 366A and 376 of the Indian Penal Code. However, the sentences were ordered to run concurrently. 2. The prosecution case has arisen on the basis of the first information report (Ext. 2) of PW 2 Sadho Tirkey, the father of PW 1 Manit Tirky @ Guddu, said to be five years old and victim of the alleged ravishment in this case lodged before Namkom Police Station on 16.9.1996 at 11.00 hours regarding the occurrence which is said to have taken place on 15.9.1996 at 19.30 hours in village Chhota Kavali, P.S. Namkom, District-Ranchi. The first information report has been received on 16.9.1996 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that PW 1 Manik Tirkey @ Guddu was sleeping inside her house at 19.30 hours on 15.9.1996 and the informant was sitting under a jackfruit tree fifty yards from the said house and he heard the sound of opening of the door of his house aforesaid and he came there and found the door of his house open and Manit Tirkey who was sleeping on the mat inside the house was found missing. It is alleged that thereafter a hectic search was made to find her out and in course of search he found her at about 21.00 hours and on query she told the informant in her mother tongue (Sadari) that the appellant had taken her from her house and he has removed her panty under a tree and has ravished her. The prosecution case further is that thereafter the informant and others went to the house of the appellant but he was seen coming and he was apprehended. 4. The prosecution case further is that thereafter the informant and others went to the house of the appellant but he was seen coming and he was apprehended. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case due to village politics at the instance of one Sona Lakra. 5. The prosecution has examined, in all, seven witnesses to substantiate its case. PW 2 Sadho Tirkey, the informant and PW 5 Kumari Tirkey are the parents of PW 1 Manit Tirkey, the alleged victim of ravishment in this case. PW 4 Arjun Tirkey is the resident of the said village and he claims himself to be sitting under the jack-fruit tree with the informant at the relevant time. PW 6 Jutiny Tirkey is the father of the informant and he has been tendered in this case by the prosecution. PW 3 Dr. Rita Lal has examined PW 1 Manit Tirkey @ Guddu on 16.9.1996 at 16.00 hours on the requisition of the Investigating Officer and the report in respect thereof per her pen is Ext. 3 in this case. Ext. 1 is the signature of PW 2, the informant on the first information report. PW 7 Bhagirath Tiwari is the Investigating Officer of this case. No oral and documentary evidence has been adduced on behalf of the defence. 6. Relying upon the testimony of PW 1 read with the evidence of PW 3, the medical witness corroborated by PW 2, PW 5 and PW 4 coupled with the objective finding of PW 7, regarding the trampling marks on the grass at the place of occurrence, the learned Court below found the appellant guilty and convicted and sentenced him as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the entire occurrence as alleged is highly improbable and there is no legal evidence on the record to substantiate the prosecution case and PW 1, the alleged victim girl has falsely deposed on being tutored by her mother, PW 5 Kumari Tirkey and the learned Court below did not properly scan and scrutinize the evidence on the record and has committed a manifest error in coming to the finding of the guilt of the appellant. It has further been submitted that PW 1 is said to have been ravished under a tree which is according to PW 2, the informant is at a distance of fifteen to twenty yards from his house and the said distance is hardly ten to twelve yards from the jackfruit tree where he was sitting but he has not heard any alarms or cry of PW 1 and this aspect of the matter further casts a cloud of suspicion to the very credibility of the prosecution case. It has further been submitted that the appellant has been falsely implicated in this case at the instance of Sona Lakra, the leader of the village in this got up case. It has also been submitted that the appellant was apprehended in the night by the informant and others and he was badly assaulted but he was not brought to the police station which is not very far away and he was let off and again he was apprehended from his house and brought to the police station and had he committed the offence as alleged there was no reason for him to remain present at his house but the IO has not got the appellant medically examined to ascertain the fact as to whether there was any sign on his person to have ravished PW 1 Manit Tirkey. It has also been submitted that PW 3, the medical witness has deposed that the injury on the private part of PW 1, has been caused by hard and blunt substance, which is not at all in conformity with the manner of the alleged occurrence. Lastly, it has been contended that PW 1 Manit Tirkey is a child witness, aged about five years, though her age has been assessed by the medical witness seven to eight years but the learned Court below did not take any step to ascertain her capability, intelligence and fitness to depose in this case and she is a tutored witness and her testimony is fit to be brushed aside and in this view of the matter, the impugned judgment is unsustainable. 8. 8. Refuting the contention aforesaid it has been submitted by the learned Additional Public Prosecutor that there is no enmity at all between the informant and the appellant prior to the occurrence and the appellant has taken away PW 1 Manit Tirkey-from her house when she was sleeping on the mat and he has ravished her under a tree removing her panty and the medical witness on examination has found injuries on her private part and also stains of semen and dead spermatozoa on her panty and on the slide of her vaginal swab and PW 1 in her evidence on oath has categorically deposed about her ravishment by the appellant in the manner as averred in the first information report (Ext. 2). It has also been submitted that the IO has also found grass at the place of occurrence trampled and in view of the evidence on the record, the learned Court below has rightly come to the finding of the guilt of the appellant and there is no illegality or any infirmity in the impugned judgment. 9. Let us now advert to the evidence on the record. PW 2 Sadho Tirkey, the informant has deposed that he was sitting along with his wife PW 5 Kumari Tirkey and PW 4 Arjun Tirkey besides one Sukhdeo under a Jackfruit tree at 7.00 or 7.30 p.m. on 15.9.1996 and they were talking with each other and her daughter PW 1 Manit Tirkey was sleeping inside his house and he heard the sound of the door of his house being opened and thereafter he went to his house and fond his daughter PW 1 Manit Tirkey missing from there. PW 5 Kumari Tirkey and PW 4 Arjun Tirkey in their evidence on oath have materially corroborated the testimony of PW 2, the informant as stated above. PW 2 Sadho Tirkey has further deposed that he made hectic search for his daughter PW 1 but she could not be found. PW 5 has also deposed to have made a hectic search to find out her daughter aforesaid. Similar is the evidence of PW 4 Arjun Tirkey. PW 2 Sadho Tirkey has further deposed that he found PW 1 Manit tirkey coming to the house after one and half hours. PW 5 has also deposed to have made a hectic search to find out her daughter aforesaid. Similar is the evidence of PW 4 Arjun Tirkey. PW 2 Sadho Tirkey has further deposed that he found PW 1 Manit tirkey coming to the house after one and half hours. PW 4 and PW 5 have deposed in their evidence on oath that PW 1 came to her house at 9 oclock in the night. PW 5 has further deposed that PW 1 was weeping. PW 2 Sadho Tirkey and PW 5 Kumari Tirkey have also further deposed that they inquired from their daughter PW 1 and she stated that the appellant had taken her away from her house and he has ravished her. PW 4 has deposed that when PW 1 returned to her house at 9 oclock in the night she was not in a position to speak but later on she disclosed that the appellant had taken her away with him and he has ravished her. He has further deposed that PW 1 has further told that she is feeling pain in her private parts. PW 1 Manit Tirkey has deposed that she was in her house and appellant Anil Kujur took her under a guava tree where he removed her panty and thereafter he has ravished her. PW1 Manit Tirkey was examined by PW 3 Dr. Rita Lal on 16.9.1996 at 16.00 hours. PW 3, the medical witness has deposed to have examined PW 1 Manit Tirkey and has fond that her hymen reveals fresh rupture with bleeds on touch and there is some laceration laterally on the right side of her hymen. The medical witness has further deposed that stains of semen were found on her undergarment and the said undergarment along with the vaginal swab was sent for pathological examination and on that examination dead spermatozoa were found on her undergarment and also on the slide of her vaginal swab. The medical witness has further deposed that there was no external injury on her body. In view of the findings aforesaid, the medical witness has opined that rape has been committed on PW 1 Manit Tirkey. The medical witness has further deposed that the age of PW 1 is between seven to eight years. The evidence of PW 1 Manit Tirkey stands materially corroborated by the medical evidence on the record. In view of the findings aforesaid, the medical witness has opined that rape has been committed on PW 1 Manit Tirkey. The medical witness has further deposed that the age of PW 1 is between seven to eight years. The evidence of PW 1 Manit Tirkey stands materially corroborated by the medical evidence on the record. PW 7, the IO has deposed to have inspected the place of occurrence which is a lonely place 250 yards north from the house of the informant and it is surrounded by bush and shrubs and there are several plants of Futkan Karanj and a guava tree and there is a kachcha well in the close vicinity of the said guava tree. He has further deposed that he had fond the grass at the place of occurrence trampled. He has also deposed to have seized the undergarment of PW 1 Manit Tirkey. The objective finding of the I.O. also corroborates -the fact that PW 1 Manit Tirkey was ravished under guava tree which is situated 250 yards north of the house of the informant. It appears from the evidence of PW 1, the victim girl that she has not raised any alarms and in this view of the matter there was no question for PWs 2, 4 and 5 to hear her cry. PW 2 has further deposed that the said guava tree is ten to twelve yards away from the place where they were sitting under jackfruit tree and the said place of occurrence is fifteen to twelve yards away from his house has no relevancy in this case in view of the objective finding of the IO in respect of the place of occurrence. It is true that PW 1 Manit Tirkey is a child of seven or eight years old. It also appears that before recording her evidence, the learned Court below did not take pains of ascertaining her I.O. but from tenor of her evidence it does not appear that she lacks intelligence or IO being incapable of disposing regarding the occurrence in question. In her evidence on oath she has specifically deposed that on the following day of the occurrence she was taken to the doctor by a constable. She has also deposed that she has narrated the incident to her parents. In her evidence on oath she has specifically deposed that on the following day of the occurrence she was taken to the doctor by a constable. She has also deposed that she has narrated the incident to her parents. However, in her cross-examination she has stated that her mother has told him to tell all the facts before the Court regarding the occurrence. This part of her evidence does not cast any reflection upon her testimony in view of the fact that she was not told by her mother specifically that she has to depose that the appellant has ravished her. Therefore, the evidence aforesaid appearing in her cross-examination does not at all cast a cloud of suspicion to the very warp and woof of the prosecution case. It is equally pertinent to mention here that the informant has no enmity with the appellant prior to the occurrence and therefore, there is no reason for him to falsely implicate the appellant. There is also no evidence on the record to suggest PW 4 was also inimical to the appellant having animus to depose falsely against him. Therefore, the false implication of the appellant in the facts and circumstances of this case coupled with legal and reliable evidence on the record totally ruled out the possibility of the false implication of the appellant in this case. It is true that the appellant was brought before Namkom Police Station by the informant and others on the following morning of the occurrence and the appellant was arrested by the police but the IO did not get him also medically examined. This is nothing but omission on the part of the investigating agency and the said omission is not a flaw of that type to invite consequence of jettisoning his testimony as well as to discard the prosecution case on that score. It is equally relevant to mention here that Sona Lakra has also no enmity with the appellant and if the informant has taken advice from him regarding the occurrence to proceed against the appellant in respect of ravishing of his minor daughter, it cannot be said or inferred that the appellant has been falsely implicated in this case at the instance of Sona Lakra. The evidence of PW 1, the informant that she used to play with the appellant who was also a child does not lead to the inference that the appellant is a juvenile delinquent whereas there is evidence on the record to show that the appellant is seventeen years old as per his statement under Section 313 of the Code of Criminal Procedure. In view of the evidence on the record, the contention put forward on behalf of the appellant has no substance. The learned Court below has meticulously considered the evidence on the record and has rightly come to the finding of the guilt of the appellant and I see no reason to disagree with the finding of the learned Court below in view of the evidence on the record. 10. Viewed thus, there is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is hereby dismissed. The bail bond of the appellant is cancelled and he is directed to surrender before the Court below to serve out the sentence. The learned Court below is also directed to take all coercive steps in accordance with law to apprehend the appellant for serving out the sentence. Appeal dismissed.