Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 559 (JHR)

Jitram Oraon v. State of Jharkhand

2006-05-08

D.P.SINGH

body2006
By Court.- The appellants have preferred this appeal against the judgment and sentence dated 29.9.2000 in Session Trial No. 321 of 1996/24 of 1996 by Additional Judicial Commissioner, Lohardaga whereby and whereunder both the appellants stand convicted under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5000/- each and in default of payment of fine to serve R.I. for one year. 2. Brief facts leading to this appeal are that the victim P.W. 1 has gone to see Jatra Mela in the evening of 18th September 1995 with her minor nephew. Further stated that when she was returning after 7 p.m. from Mela both the appellants co-villagers followed her, when she reached at a lonely place near Nari Pulia she was caught hold by both of them and they asked he to satisfy their sexual lust. When she objected, her nephew was taken away by appellant Lakhan Oraon while other appellant Jitram Oraon forcibly committed intercourse with her. Further stated Lakhan Oraon came back and he also committed rape on her. According to victim, both of them committed rape on her twice and thereafter fled away leaving a new green bicycle at the spot. The victim did not venture to go to her house and remain for whole night there, in the. morning she went to her Fufa Somra Oraon of village Kisko and narrated the entire story, thereafter her Fufa called her father with whom they went to Kisko Police Station where her statement was recorded in the afternoon of 19th September, 1995. 3. The police after registration of the case under sections 341, 376/34 of the Indian Penal Code started the investigation and finally submitted charge-sheet against both of them for these offences. Their case was committed for trial before the court of sessions. The Trial Court framed charge against them for offence under section 376 Indian Penal Code only. The appellants pleaded not guilty and claimed false prosecution. The learned trial court after examining the witnesses found and held both of them guilty and sentenced them accordingly. 4. The present appeal has been preferred on the grounds that the trial court has committed mistake on records and in law. The appellants pleaded not guilty and claimed false prosecution. The learned trial court after examining the witnesses found and held both of them guilty and sentenced them accordingly. 4. The present appeal has been preferred on the grounds that the trial court has committed mistake on records and in law. It is further submitted that the appellants have remained in custody for nearly fourteen months during trial and for more than two years nine months after conviction. It is further submitted that the prosecution story is not probable. According to the learned counsel for the appellants, the prosecution story suffers from improbability. Learned counsel stressed before me that in case, the victim was forcibly raped by two persons twice against her will, there must be some injury on her body or private part which is belied from the medical reports. It is also submitted that the victim was above twenty years and habituated to sexual intercourse. It is further submitted that no corroborative evidence is available in this case. According to learned counsel, when the trial court found the statement of the victim not corroborated from circumstances, it should have believed the defence version that they were falsely implicated. It was also stressed that although police has ceased the cloths worn by the victim, no forensic report is available on the record to support the prosecution case. The learned counsel further pointed out that there was inordinate delay in lodging the FIR, the victim was resident of Sarna Toli situated only 500 meters from the police station. It is further pointed out that the seized cycle from the place of occurrence makes the whole story improbable; therefore the appellants may be acquitted of the charges. 5. Learned APP opposed these contentions of the grounds that the appellants were rightly convicted for the offences because the victim has supported her version positively before the trial court. 6. I have gone through the evidence available on the lower court records alongwith the statements made by the counsel for the appellants. In the present case the victim has alleged that she was coming from Jatra Mela when she was forcibly confined and raped by the appellants twice. 6. I have gone through the evidence available on the lower court records alongwith the statements made by the counsel for the appellants. In the present case the victim has alleged that she was coming from Jatra Mela when she was forcibly confined and raped by the appellants twice. According to her version, the occurrence took place at about 7 p.m. and thereafter the appellants fled away leaving their cycle on the spot but she did not go her house and remained at the place of occurrence till early morning when she went to her Fufa's house. I further find from her statement that she did not know the appellants from before the occurrence. She has asserted in her cross-examination that she got injuries on her body and private parts but this fact stands contradicted from the injury report. According to her version, the seized bicycle belongs to Lakhan Oraon as was informed by her Fufa. P.W. 5, Dr. M.M. Sen Gupta who examined the victim on 18th September, 1995 mentions specifically that he did not find any injury on her body and the private parts. It further mentions that there was no spermatozoa present in the vaginal swab and the girl was aged about 20 years with old ruptured hymen. In this context when the statement of P.W. 2 and P.W. 3 (parents of the victim) are concerned, they are only hearsay witness. P.W. 2 has admitted in cross-examination that the house of Somra Oraon was situated at a distance from her house. P.W. 3 Etwa Oraon, has stated as hearsay witness what happened with the victim. According to this witness vide para-2; bicycle was brought by the victim from the place of occurrence to Somra's house. P.W. 4, brother of the victim, Baldeo Oraon has been tendered by the prosecution. The I.O., P.W. 6 has proved the signature on the FIR, seizure list etc. and he admitted that the report of forensic tests of the seized clothes had not been received by him. 7. In view of the facts stated above, the prosecution story suffers from the following defects. (a) The manner in which the occurrence took place. According to victim she was accompanied her nephew aged about 4 and 1/2 years who was taken away by Lakhan Oraon from the place of occurrence. 7. In view of the facts stated above, the prosecution story suffers from the following defects. (a) The manner in which the occurrence took place. According to victim she was accompanied her nephew aged about 4 and 1/2 years who was taken away by Lakhan Oraon from the place of occurrence. It has further been asserted that bicycle was left after the occurrence by Lakhan Oraon which was brought to Somra'a House thereafter bicycle was brought to police station and seized. The question arises if the nephew of the victim was taken away from the place of occurrence to his house, the parents of the victim must have got information that the victim has not reached the house. It is also apparent from the records that PW. 2 and 3 did not try to find out their daughter during night after receiving the child in the house. (b) Secondly what prevented the appellants particularly Lakhan Oraon to run away on bicycle after the occurrence and left it to be carried by victim to the house of Somra Oraon in the morning for being produced before the police. (c) Lastly if incident has actually happened as per victim she was ravished repeatedly but no injury was available on very next date to be noticed by doctor PW. 5. It creates reasonable doubt in the prosecution story as a whole. 8. In the circumstances, the learned lower court relying upon the sole testimony of the victim has convicted the appellants who have already served in custody for nearly four years. In the circumstances, mentioned above, I find and hold that the prosecution in the present case has not been able to prove the charges under section 376 of the Indian Penal Code beyond all reasonable doubts. In result, the conviction of the appellants cannot be sustained and the present appeal deserves to be allowed. The appellants stand acquitted of the charges under section 376 of the Indian Penal Code and released from the liabilities of their bail bonds. In this manner this appeal is disposed of.