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2007 DIGILAW 723 (JHR)

Dilip Soren v. State Of Jharkhand

2007-09-10

DILIP KUMAR SINHA

body2007
JUDGMENT D.K. Sinha, J. 1. The present appeal is directed against the judgment of conviction and order of sentence passed by the Sessions Judge, Dumka(S.P.) in Sessions Case. No. 151 of 2001 whereby and whereunder the appellant, Dilip Soren was convicted under Section 366 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and ten years respectively on each count. 2. The prosecution story, as it stands narrated in the written report (Ext. 1) presented by the prosecutrix Mani Murmu (P.W.3) before the Officer-incharge of Shikaripara police station on 14.7.2000, was that on 15.6.2000 at about 8.30. p.m. while she was alone in the house, the appellant, Dilip Soiren came and enquired the whereabouts of her husband, Sangram Hembruin (P.W.1) who was running Crusher Machine at Digalpahari. On the reply of the prosecutrix that he had not returned back, it was alleged that the appellant forcibly dragged her out at the point of dagger and took away with him to village Basauria, put and confined her in a house of his near relative and ravished her. She was confined there for one night and one day and he did not allow her to come out from the room and from there she was again taken away by the appellant to village Galdaha where she was kept confined in the house of his relative for six days and it was alleged that the appellant committed rape on her for all the six nights. It was further alleged that the parents of the appellant came there at village Galdaha to whom she conveyed about the occurrence and also requested them to take her back to her own house as marriage of her daughter was to be solemnized on 22.6.2000 but she was assured that she would be taken to her house only after the marriage of her daughter. It was further alleged that from village Galdaha she was taken to village Bakijar by the appellant where she was again ravished in the house of his near relative and on Friday noon the parents of the appellant came there and conveyed that marriage of her (daughter was solemnized and then she was taken by the mother of the appellant to her (prosecutrix) sisters house at village Kudupahari where she narrated the occurrence to her sister Nachan, Murmu (P.W.5). Disclosing the motive, the prosecutrix narrated that the father of the appellant Man, Singh Soren was a night guard at the Crusher Machine of Her husband and Man Singh Soren was removed from service by her husband and for such reason the appellant on account of enmity ravished her for several nights together. On the written report Shikaripara P.S. Case No. 60 of 2000 (Ext.3) was registered by drawing a formal FIR(Ext.4) for the offence under Section 366 and 376 of Indian Penal Code against the appellant Dilip Soren. The police after investigation submitted chargesheet in the said sections and the appellant was put on trial after his pleading false implication on account of enmity during framing of charge. 3. The prosecution had examined altogether six witnesses. Besides, the prosecution proved the written report (Ext.1), injury report of the prosecutrix (Ex.2), endorsement on the written report (Ext.3) and the formal FIR (Ext.4) 4. The learned Counsel for the appellant to begin with submitted that the prosecution case as has been brought about by the prosecutrix is highly improbable on the facts and the appellant was maliciously prosecuted without his involvement in the offence for which he stood charged and convicted. The age of the appellant on the date of the judgment i.e. 14 th August 2003 was assessed 22 years by the trial judge and in this manner he was only 19 years old on the alleged date of occurrence on 14.7.2000. The learned Counsel pointed out with reference to the evidence of P.W.4 Dr. Pushpa Lata Tudu who had examined the prosecutrix on 14.7.2000 that no definite opinion could be given as to whether Mani Murnu (prosecutrix) was ravished but her age was assessed only above 19 years. On the other hand she had herself disclosed her age to be 35 years on oath. On such contradiction P. W.4 Dr. Pushpa Lata Tudu who had examined the prosecutrix on 14.7.2000 that no definite opinion could be given as to whether Mani Murnu (prosecutrix) was ravished but her age was assessed only above 19 years. On the other hand she had herself disclosed her age to be 35 years on oath. On such contradiction P. W.4 Dr. Pushpa Lata Tudu was recalled] for re- examination on the point of assessment of the age of the prosecutrix and on question when put to her by the trial court, she retracted from her earlier statement by testifying the age of the prosecutrix to be 40 years and in this manner, the learned Counsel submitted that the prosecutrix was not examined by the Doctor at the earlier stage and therefore, the age of the appellant was just half of the age of the prosecutrix and therefore, a reasonable doubt is created as to whether the appellant could abduct and ravish the prosecutrix for seven nights without any resistance from her side in the back drop of her narration in the written report as she was moved from one village to another but she did not raise any alarm. Admittedly the appellant was not an elderly person and If at all there could be probability of sex between the two, it can well be presumed to be a consent sex, though denied. 5. The next point for consideration was that though the occurrence as alleged took place on 15.6.2000 but the written report was presented after a month on 14.7.2000 without plausible explanation of such inordinate delay which cast doubt and that false implication of the appellant cannot be ruled out. No complain was made by her husband Sangram Hembrum (P.W.1) about missing of bis wife Mani Murmu (P.W.3) either before the police or the village chief nor any explanation was given in his testimony as to why not any attempt was made tot search out Mani Murmu (P.W.3) in view of ensuing marriage of her daughter. No complain was made by her husband Sangram Hembrum (P.W.1) about missing of bis wife Mani Murmu (P.W.3) either before the police or the village chief nor any explanation was given in his testimony as to why not any attempt was made tot search out Mani Murmu (P.W.3) in view of ensuing marriage of her daughter. He admitted in his testimony that after the marriage of his daughter he received information from the house of P.W.5 Nachan Murmu that his first wife (P.W3) was in her house and when he visited there, he was apprised by the prosecutrix that she was ravished by the appellant In the cross-examination the witness admitted that the proscutrix was his first wife and he had one son and four daughters from her. According to this witness, the age of his son was 24-25 years and in this manner, the fact required consideration that the son of the prosecutrix was quite elder than the appellant. 6. While referring the evidence of P.W.5, Nachan Murmu (sister of the prosecutrix) the learned Counsel submitted that this witness has given altogether a different story. She testified that her sister Mani Murmu (proseuctrix) was ravished at her house by the appellant but she could not point out the particular place where the appellant committed rape on her. She further testified that her sister was taken to her home by the appellant Dilip Soren who left her there but she could not identify the appellant Dilip Soren in the dock at the time of her testimony before the trial court and she further deposed that she did not recognize Dilip Soren. The case of the prosecutrix in her written report was that she was brought by the mother of the appellant at her sisters house. 7. The learned Counsel further submitted that according to P.W.6 Upendra Singh, Investigating Officer of the case, he had received the written report on 14.7.2000 and visited the place of occurrence which was the house of the prosecutrix. In the cross-examination the Investigating Officer testified that there was only one place of occurrence in the instant case and inspite of restatement of the prosecutrix recorded by him he did not visit the place of occurrence where the prosecutrix was allegedly taken away and kept confined for several days by the appellant. In the cross-examination the Investigating Officer testified that there was only one place of occurrence in the instant case and inspite of restatement of the prosecutrix recorded by him he did not visit the place of occurrence where the prosecutrix was allegedly taken away and kept confined for several days by the appellant. The learned Counsel: vehemently argued that if there was only one place of occurrence being the matrimonial home of the prosecutrix, then, the alleged offence under Sections 366/376 of Indian Penal Code did not wise against the appellant. 8. Finally, the learned Counsel submitted that inspite of specific allegation against the parents of the appellant as the abettors of the offence, they were not implicated in the instant case. Similarly, the owners of the different houses of different villages where the proscutrix was kept confined and ravished by the appellant, were neither examined nor implicated as the abettors and therefore, the testimony of the prosecution witnesses including the Investigating Officer and the Doctor Pushpa Lata Tudu did not inspire confidence being not worthy of credence and therefore the judgment of conviction and order of sentence recorded for the charge under Sections 366/376 IPC is unsustainable. 9. Heard Mr. I.N. Gupta, the learned A.P.P. for the State 10. Having regard to the facts and circumstances of the case, I find substance in the Jarguments of the learned Counsel advanced on behalf of the appellant that the trial court below without appreciation of the merit of the case convicted the appellant on the sole testimony of the prosecutrix P.W. 3 Mani Murmu without examining the credibility of her statement and the statements of P.W.1 Sangram Hembrum, P.W.2 Nirmala Murmu and P.W.5 Nachan Murmu. The observation of the trial court was based upon following finding and to quote: Since P.W.3 (the informant) cannot be disbelieved in view of the poor cross examination by the defence as well as there is admitted motive based on old enmity of the accused, this Court finds and holds that the prosecution has been able to prove that the accused Dilip Soren out of old enmity abducted the informant Mani Murmu and rapec her for nights together at the point of dagger. 11. 11. According to the prosecutrix Mani Murmu as contained in her testimony in paragraph 12, she was never brought to village Basauria though it was consistently alleged that she was forcibly taken away by the appellant in the first leg to village Basauria where she was kept in the house of his near relative and ravished on the point of dagger and that she was confined there for a day and night. She admitted in the written report and substantiated in her testimony that from there she was taken to village Galdaha and was confined for six days but she did neither raise alarm nor any attempt was made to attract the attention of the neighbhours and that she did not take the police to Galdaha to show the place of occurrence. She admitted that the appellant was co-villager and also that he was younger to her and moved her from one village to another on foot by roads but no attempt was made by raising alarm to attract the attention of by-passers. There appears substance in the arguments that investigation of the case by the investigating Officer was undertaken in most perfunctory manner and the statement of P.W.4 Dr. Pushpa lata Tudu is also self contradictory, therefore, do not inspire confidence to base the finding of conviction. 12. I therefore, find and hold that the facts and circumstances; from which the conclusion of guilt of the appellant Dilip Sorcn is sought to be withdrawn have not been fully and satisfactorily established for the charge under Sections 366/376 IPC beyond all reasonable doubts. On the other hand the evidence on record falls short of proving guilt of the appellant being not adequate and hence the conviction of the appellant Dilip Sorcn for the alleged charge is unsustainable. 13. In the result the Judgment of conviction dated 14.8.2003 and order of sentence dated 16.8.2003 passed by the Sessions Judge, Dumka(S.P) in Sessions Case. No. 151 of 2001 is set aside. This appeal is allowed and the appellant, Dilip Soren is acquitted. The appellant, Dilip Soren is directed to be released from jail custody forthwith in this case, if not wanted in any other cases.