Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1594 (JHR)

Motu Murmu @ Majhi v. State of Jharkhand

2009-12-16

PRADEEP KUMAR

body2009
JUDGMENT By court: This appeal is against the judgment of conviction and order of sentence dated 26.08.2002 passed by Shri B.N. Pandey, Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 68 of 1999, by which judgment, the learned Sessions Judge found the appellants guilty for the offence under Section 376 (g) of the Indian Penal Code and convicted them to undergo rigorous imprisonment for ten years. 2. It is submitted by learned counsel for the appellants that all the three appellants have remained in jailcustody for approximately five and a half years. The appellants namely Motu Murmu @ Majhi and Loko Majhi were taken into custody on 14.04.1998 and both the appellants have been released on bail by the order of this Court dated 29.08.2003. The appellant namely Parma Tanty was taken into custody on 15.04.1998 and he was released on bail by the order of this Court dated 05.09.2003. It is further submitted that the prosecution case, as disclosed by the informant, Achma Gagrai has not be corroborated by the evidence of doctor P.W.2, Dr. P. Kujur, who examined her just after one day of the occurrence and found neither injury on the body of the victim girl nor any injury on her private part and has opined that no rape was committed upon her. Moreover, the witnesses named in the F.I.R. were not examined in the trial and except her father, P.W.4 and mother, P.W.5, who have stated that they were informed about the occurrence by their daughter. All the other witnesses have turned hostile and no one has supported the prosecution case. In that view of the matter, learned counsel for the appellants has relied in a decision reported in 2008 (10) Supreme Court Cases page 81 in the case of Premiya @ Prem Prakash Vs. State of Rajasthan, where it was held by the Hon'ble Supreme Court that in a case where doctor found that no rape was committed and there is evidence that the victim girl was dragged by the accused persons by force, the offence committed comes under Section 354 of the Indian Penal Code, and as such, it has been submitted that the conviction of the appellants under Section 376 (g) of the Indian Penal Code is bad in law and fit to be set aside. 3. 3. On the other hand, learned counsel for the State has opposed the prayer and submitted that the prosecution case has fully been supported by the evidence of the victim girl, P.W.3 herself and P.W.11, I.O. of the case has also supported the prosecution case and all the witnesses examined during investigation supported the fact that she was dragged by force by the three appellants. 4. After hearing both the parties and after going through the records, I find that the prosecution was started on the basis of F.I.R. given by the informant, Achma Gagrai on 11.04.1998 at 20.00 Hrs. stating therein that she stayed in the house of Raison Manjhi, P.W.9 on rent in village Potka at Chakradharpur Police Station along with her younger brother and sister and all of them are the students of Carmel school and she is the student of Class-X. She stated that on 10.04.1998 in the mid night at 12 night the three accused persons i.e. Motu Murmu @ Majhi, Loko Majhi and Parma Tanty entered into her room by breaking upon the 'Chhitkini' lock. Thereafter, they started searching for her when she went inside the bed. In the light of 'lantern', which was burning in the room, she identified the three accused persons. They got hold of her and started dragging her towards a deserted place. When they were dragging her, she was shouting for help, then the mother of the landloard namely Deola Manjhi, P.W.7 came out and her sister also came out and they asked the accused persons as to why they are dragging her. Then, the accused persons threatened them, then she started weeping, then, they closed her mouth and the accused, Parma Tanty put a 'Gupti' on her back. Then, they took her to a deserted 'maidan' where all the three accused persons committed rape upon her and thereafter she became unconscious. In the next morning, she came to her room and told the occurrence to the family members of the landlord. Then, police was informed, who came on her room and recorded the statement given by her. 5. On the basis of F.I.R., police registered a case under Section 376/34 of the Indian Penal Code and after investigation submitted charge sheet against the accused persons. Then, police was informed, who came on her room and recorded the statement given by her. 5. On the basis of F.I.R., police registered a case under Section 376/34 of the Indian Penal Code and after investigation submitted charge sheet against the accused persons. Since, the case was exclusively triable by the court of Sessions, learned magistrate after taking cognizance committed the case to the Court of Sessions for trial and subsequently, the case was tried by the Sessions Judge, West Singhbhum at Chaibasa himself and found the appellants guilty as aforesaid. 6. It appears that in course of trial, prosecution has examined eleven witnesses. P.W.1 is Laxman Murmu. P.W.2 is Dr. P. Kujur, who examined the victim girl. P.W.3 is Achma Gagrai, the victim girl. P.W.4 is Girish Chandra Garai, the father of the victim girl. P.W.5 is Jaimoni Garai, the mother of the victimgirl. P.W.6 is Arjun singh Murmu. P.W.7 is Deola Manjhi, the mother of the landlord. P.W.8 is Munni Manjhi. P.W.9 is Raison Manjhi, the landlord. P.W.10 is Rukmoni Murmu P.W.11 is Nishikand Mishra, the I.O. of the case. 7. It is important to note that P.W.1, Laxman Murmu is a formal witness and she was declared hostile.Similarly, the mother of the landlord, P.W.7, Deola Manjhi and the landlord P.W.9, Raison Manjhi also turned hostile. Further, witnesses P.W.6, Arjun Singh Murmu, P.W.8, Munni Manjhi and P.W.10, Rukmoni Murmu also turned hostile and they have not supported the prosecution case. The prosecution has only been supported by the victim girl, P.W.3, Achma Garai and hearsay witnesses P.W.4, Girish Chandra Garai and P.W.5, Jaimoni garai, the mother and father of the victim girl, respectively and the prosecution case is not supported by the doctor P.W.2, Dr. P. Kujur. P.W.3, Achma Garai is the informant and P.W.11, Nishikand Mishra is the I,O. of the case. 8. P.W.2, Dr. P. Kujur stated that she has examined the victim girl on 12.04.1998 and found that the victimgirl is aged about 16 years and she neither found the sign of injury over the body nor sign of any injury over her private part. Also, no foreign material or hair was found. She found no tenderness on her private part and she opined that no rape was committed upon her. 9. Also, no foreign material or hair was found. She found no tenderness on her private part and she opined that no rape was committed upon her. 9. Although, the victim girl, examined as P.W.3, has supported her statement as given in the F.I.R. She wastaken by force by the three accused persons and all of them committed rape upon her. But, she changed the statement so far as the objection made by her landlord's mother, Deola Manjhi is concerned. In her cross examination, she admitted that she identified the accused persons in the light of 'lantern', but the 'lantern' was also not produced. However, from the evidence of P.W.11, the I.O. of the case, it appears that the hostile witnesses had supported the case of kidnapping of the victim girl by the three appellants and they all stated that she was taken by force from her room. So far as the occurrence with regard to her kidnapping and attempt to commit rape is concerned, it has been proved beyond reasonable doubts. Since, the rape has not been supported by the doctor, who examined the victim girl on the very next day. In that view of the matter, the conviction of the appellants under Section 376 (g) of the Indian Penal Code seems to be excessive, since, rape has not been proved beyond the reasonable doubts. 10. Thus, the conviction of the appellants under Section 376 (g) of the Indian Penal Code in the light of the judgment as reported in 2008 (10) Supreme Court Cases page 81 in the case of Premiya @ Prem Prakash Vs. State of Rajasthan is altered to that under Section 354/34 of the Indian Penal Code, as stated earlier, since all the three accused persons have already undergone approximately five and a half years of sentence during trial and the occurrence took place in 1998, in that view of the matter, custodial period has already been undergone, and thus, all the appellants are released from the bondage of their bail bonds. 13. With the aforesaid alteration in the sentence, both these appeals are allowed in part.