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Jharkhand High Court · body

2007 DIGILAW 685 (JHR)

Basant Sahu v. State of Jharkhand

2007-08-27

D.K.SINHA

body2007
JUDGMENT :- Both the criminal appeals are directed against the common judgment of conviction passed by the Sessions Judge, Gumla in S.T. No. 272 of 2001 where-by and whereunder the appellants Chilgu Oraon and Basant Sahu were sentenced to undergo rigorous imprisonment for ten years each and to pay fine of Rs. 500/-each with default stipulation for their conviction under Section 376(2)(g) of the Indian Penal Code and further to undergo rigorous imprisonment for seven years each for their conviction under Section 366/34 of the Indian Penal Code and to pay fine of Rs. 500/- each with default stipulation. Both the sentences against each of the appellants were directed to run concurrently. 2. The prosecution story as it stands narrated in the statement (fardbeyan) of the informant, Bandhna Oraon (P.W.8) was that in the night of 21-6-2001 at about 21.30 hours while he was taking meal in his house, he heard knock on the window followed by command from outside to open the door and in the same sequence the window pans were opened with the push. The informant then witnessed two miscreants standing outside window holding country guns in their hands. They threatened commanding the informant to open the door and pursuant to that, the informant opened under their fear. Both entered into his house. He identified one of the intruders being the appellant, Chilgu Oraon in the light of electric bulb but another could not be identified. Chilgu Oraon placed his demand that his party was in need of a person and for that he asked the informant or his son to join his party or allow his sister to accompany them otherwise, he threatened that all the members of his family would be shot dead. The informant further narrated that inspite of his resistance both the intruders took away his sister Manorama Kumari, 22 forcibly with them after closing the door of his house from outside with ulterior motive. Several villagers and the witness Birsa Bhagat (P.W.1) assembled there on the alarm raised by him who opened the door from outside but by that time the miscreants had escaped with Manorama Kumari from that place. Several villagers and the witness Birsa Bhagat (P.W.1) assembled there on the alarm raised by him who opened the door from outside but by that time the miscreants had escaped with Manorama Kumari from that place. He delivered his statement when the police arrived there on information, and the police registered Gumla P.S. Case No. 160 of 2001 initially under Section 366A of the Indian Penal Code against the appellant, Chilgu Oraon and one unknown on 22-6-2001 at 1.30 hours. 3. From the facts of the case it transpires that Monorama Kumari returned back in the morning of 22-6-2001 and soon thereafter her statement was recorded by the police. In course of investigation the police arrested the appellants and forwarded them to Judicial custody under the orders of the C.J.M. Gumla. The police after investigation submitted chargesheet against both the appellants for the offence under Sections 366A/34, 376(2)(g) and 458/34 of the Indian Penal Code as also under Section 27 of the Arms Act. The statement of the victim Monorama Kumari was recorded during investigation of the case under Section 164 Cr. P.C. and the police collected piece of bangles from the alleged place of occurrence in presence of the witnesses to which seizure list was prepared. The police had also prepared production cum seizure list of the garments produced by Manorama Kumari which she wore at the time of gang rape but it were washed. She was medically examined by P.W.3 Dr. Shakuntala Pandey who proved injury report (Ext.3). 4. The charge against both the appellants was framed under Section 366/34 and 376(2)(g) of the Indian Penal Code to which they pleaded not guilty and claimed to be tried and they were put on trial. 5. By common argument the learned counsel for the appellants submitted that the occurrence as alleged took place in the night of 21-6-2001 at about 21.30 hours, the fardbeyan was recorded in the same night at about 22.45 p.m., FIR was lodged on the basis of the fardbeyan on 22-6-2001 at 1.30 hours but the FIR was received in the court of CJM on 25-6-2001 without explanation of the inordinate delay of three days in transmission of the FIR to the court. The learned counsel pointed out that the victim Monorama Kumari (P.W.2) returned back in the morning of 22-6-2001 and her statement was recorded by the police at 8 a.m.. The learned counsel pointed out that the victim Monorama Kumari (P.W.2) returned back in the morning of 22-6-2001 and her statement was recorded by the police at 8 a.m.. But neither the informant in the first instance nor the victim Monorama Kumari in her statement before the police recorded first point in time disclosed the name of the appellant Basant Sahu as accomplish. She clearly stated that since another accused had covered his face with towel, she could not identify him though she was gang raped by Chilgu Oraon and another person. The learned counsel agreed that Monorama Kumari delivered her statement under Section 164 Cr. P.C. after about 8 days before the Magistrate on 30-6-2001 in which apart from the narration of manner of occurrence consistent to her earlier version before the police she made substantial development by claiming to identify both the culprits who ravished her severely that one was Chilgu Oraon whereas another was Basant Sahu. She further narrated that the appellant Chilgu Oraon ravished her thrice whereas Basant Sahu committed rape on her twice and that Chilgu Oraon had caused injury on her breast by his teeth, but without such injury, the learned counsel exhorted, in the injury report (Ext.3). 6. The attention of the court was attracted by the learned counsel who submitted that the material witnesses such as P.W.8 Bandhana Oraon (informant), P.W.2 Monorama Kumari (victim) P.W.5 Binay Oraon, P.W.6 Sushila Kumari and P.W.7 Budhmani Devi (wife of the informant) are inconsistent in their evidence on material particulars, though they were the members of the same family and claimed to be the eye witnesses of the occurrence in respect of the charge under Section 366/34 IPC against the appellants. 7. Advancing his argument the learned counsel pointed out the following contradictions in the statement of the material witnesses :- (i) P.W.8 Bandhana Oraon claimed to have identified the appellant Chilgu Oraon in his testimony but in paragraph-20 under cross-examination, he admitted having not stated before the police that he identified the gun men in the light of electric bulb and one of them was Chilgu Oraon. On the other hand he admitted that both the gun men had masked their faces at the time of the alleged occurrence, therefore, his statement suffers from inconsistency. On the other hand he admitted that both the gun men had masked their faces at the time of the alleged occurrence, therefore, his statement suffers from inconsistency. (ii) It was the specific case of the informant, P.W.8 in his statement before the police that two intruders after entering into his house asked him to join as the member of his party or allow his son or daughter or sister in the service of the party and that when Bandhana Oraon (P.W.8) resisted, both the intruders forcibly took away his sister Manorama Kumari with ill motive and shackled the door of his house from outside. But in his substantial evidence he developed that on refusal there being made by him, both intruders forcibly took away him together with his wife from his house and confined them in the house of P.W.1 Birsai Bhagat. He narrated that from there his wife escaped and on the alarm raised by her the villagers came and released him from the confinement. He further narrated that when he visited his house with the villagers, he did not find his sister there. The witness testified that he was apprised by his son Binay Oraon (P.W.5) that Manorama Kumari was forcibly taken away by both the intruders and the occurrence of taking away did not take place in his presence. (iii) P.W.2 Manorama Kumari in her statement before the police recorded first point in time, had disclosed only the name of Chilgu Oraon amongst two culprits who had committed gang rape on her but when her statement was recorded under Section 164 Cr. P.C. after eight days she disclosed the name of both the appellants with the specific allegation that they committed gang rape on her, without explaining as to from where she ascertained the name of the appellant Basant Sahu. (iv) P.W.2 Manorama Kumari testified by admitting as contained in paragraph-5 that the miscreants, who entered into the house on the material night of occurrence, had covered their faces with towel but she explained in paragraph-6 under cross-examination that she identified the appellants on the basis of a past incidence that they along with one stranger had visited her house on 19-6-2001 and she came to learn about their names from her brother informant after the occurrence. She admitted that she had not disclosed the name of Basant Sahu when her statement was recorded on 22-6-2001 i.e. on the next very date when she returned back alone. 8. The learned counsel, on the basis of above points submitted that identity of the appellants was doubtful in respect of their complicity for the alleged charge of commission of gang rape on Manorama Kumari in view of her clear admission that the miscreants had covered their faces with towel and it was a dark night and therefore, the fact cannot be ruled out that the name of the appellants were purposely introduced in this case on the instance of the informant (P.W.8) who had personal grudge against them as they had opposed the illegal act of the informant who used to issue school leaving certificate against monetory consideration. Similarly, P.W.5, Binay Oraon, son of the informant deposed that though he was there in the home but could not identify the intruders and similarly Budhumani Devi (P.W.7) wife of the informant testified that intruders who entered into her house with guns had covered their faces with towel and hence their faces were not identifiable. 9. The learned counsel further attracted the attention by submitting that P.W.6 Sushila Kumari, who is the daughter of the informant, was also consistent in her testimony as contained in paragraph-10 under cross-examination that after 2/3 days of the occurrence the police arrested both the accused, brought to the police station where father, mother and aunt Manorama were called for. When they returned back from the police station she was apprised by her aunt Manorama that arrested culprits were Chilgu Oraon and Basant Sahu. Similarly, P.W.7 Budhmani Devi, wife of the informant, admitted that both the intruders were arrested by the police and lodged in the police lock up where she along with her husband, Manorama and Birsai Bhagat (P.W. 1) were called for. Both the intruders were put in a room there and she witnessed both of them and only because of their previous identification she identified the appellants in the dock during her statement in the trial court. Both the intruders were put in a room there and she witnessed both of them and only because of their previous identification she identified the appellants in the dock during her statement in the trial court. The informant Bandhana Oraon admitted this fact in his testimony as contained in paragraphs 24 and 25 but only in respect of the appellant Chilgu Oraon that he identified him and that on the basis of his identification,Chilgu Oraon confessed his guilt on the coercion of the police. The informant admitted by testifying that no information was given to him by the police as to when the appellant Basant Sahu was arrested. 10. Concluding his argument the learned counsel submitted that in this manner it can safely be argued that the Investigating Officer neither investigated the case fairly nor the witnesses produced and examined on behalf of the prosecution were truthful and consistent in their statements so as to attract the allegation against the appellants in a serious offence like Ss. 376(2)(g) and 366/34 of the Indian Penal Code and the defence of the appellants of their false implication cannot be ruled out. 11. The learned A.P.P. opposed the contention raised on behalf of the appellants and submitted that all the prosecution witnesses are consistent in their evidence in respect of the alleged charge under Sections 376(2)(g) and 366/34 of the Indian Penal Code as framed against both the appellants which was proved in the trial court. The allegation of gang rape is a very serious offence which is alleged and proved against the appellants. Personal grudge with the informant was the genesis and for such reason the occurrence was given effect to by them on the gun point. The learned A.P.P. further pointed out that the Investigating Officer had visited Ganeshpur Deepatoli in the house of Alester Khalko in course of investigation on 24-6-2001 and recovered broken bangles of Manorama, green in colour which was seized and seizure list was prepared (Ext.5). 12. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties I find that the allegation of gang rape committed on Manorama Kumari (P.W.2) is not disputed either by the prosecution or by the appellants but the fact in respect of identification of the appellants is disputed. 12. Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties I find that the allegation of gang rape committed on Manorama Kumari (P.W.2) is not disputed either by the prosecution or by the appellants but the fact in respect of identification of the appellants is disputed. Similarly material contractions in the statement of the informant P.W.8 and his wife Budhani Devi (P.W4) on the manner of the occurrence and their conducts compels to think over the veracity of their statements, whether reliable or not ? I find substance in the argument advanced on behalf of the appellant Chilgu Oraon with reference to the statement of the informant P.W.8 Bandhana Oraon as contained in paragraph-20 that he could not identify any of the culprits and that he had admitted in his testimony having not stated before the police that he identified one of the gunmen as Chilgu Oraon in the light of the electric bulb, when the window was opened and that gunmen had covered their faces. I further find that P.W.2 Manorama Kumari is consistent in her testimony as contained in paragraph-5 that the culprits, who had entered in the house, bad covered their faces with towel and on the point of identification she explained in paragraph-6 that she could identify them only with reference to the earlier visit of the appellants at her house and when she enquired their names, her brother, informant apprised her their names. Before that she was not knowing the names of the appellants. There is substance in the argument advanced on behalf of the appellants that P.W.5, Binay Oraon admitted that he could not see the face of the appellants and his mother P.W.7 Budhmani Devi is more clear that both the intruders, with guns, had covered their faces with towel and that their faces were not identifiable. 13. Similarly, P.W.6 Sushila Kumari i.e. daughter of the informant and P.W.7 Budhmani Devi i.e wife of the informant are consistent in their testimonies that both the appellants after their arrestation were put in police lock up where the informant along with his wife and Manorama Kumari visited and spotted the culprits. 13. Similarly, P.W.6 Sushila Kumari i.e. daughter of the informant and P.W.7 Budhmani Devi i.e wife of the informant are consistent in their testimonies that both the appellants after their arrestation were put in police lock up where the informant along with his wife and Manorama Kumari visited and spotted the culprits. Such identification of suspects at the police station by the witnesses is against the principle of natural justice and the procedure established by law and therefore, the conduct of the investigation Officer of the case is deprecated. I further find that the appellants have prejudiced for being denied of their fair trial in a serious offence of gang rape. Similarly, I observed that the identification of the appellants was improbable in view of the admission of the material witnesses that both the miscreants had covered their faces and the prosecution failed to explain as to when and under what circumstances Manorama Kumari got opportunity to identify any of the miscreants as the appellant. She was silent in her testimony, and it was not the case of the prosecution that she had occasion to identify the appellants when their towels skipped from their faces. 14. I therefore find and observe that the materials on record are not sufficient so as to attract the conviction of the appellants for the alleged charge under Sections 376(2)(g) and 366/34 of the Indian Penal Code as their identification could not be established by the prosecution. On the other hand, I find that reasonable doubt is created as to the complicity of the appellants for the alleged charge and it is settled principle of law that whenever any doubt is created in relation to the identification it always goes in favour of the accused. 15. In the result, after according them benefit of doubt, the appellants are acquitted from the charge under Section 376(2)(g) and 366/34 IPC. The judgment of conviction and order of sentence passed against them in S.T. No. 272 of 2001 by the Sessions Judge Gumla is set aside and this appeal is allowed. The appellant Basant Sahu in Cr. Appeal No. 801 of 2003 is on bail and he is discharged from the liability of the bail bonds. Let the appellant Chilgu Oraon in Cr. Appeal No. 1401 of 2003 be released at once from the judicial custody if not required in any other cases. Appeal allowed.