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2009 DIGILAW 595 (JHR)

Kanhai Sao @ Kandru Sao v. State of Jharkhand

2009-04-21

NARENDRA NATH TIWARI, PRASHANT KUMAR

body2009
JUDGMENT : 1. The appellant was charged under Sections 376 and 302 of the Indian Penal Code for committing rape on his own 19 years old niece, namely, Suku (name has been changed to conceal her identity) and committing murder by strangulating her. Learned court below found him guilty of the said charges and convicted him and sentenced to undergo rigorous imprisonment for life u/s 302 of the Indian Penal Code and to undergo rigorous imprisonment for seven years u/s 376 of the Indian Penal Code. Both the sentences are to run concurrently. 2. The prosecution was launched on the basis of the fardbeyan of the mother of the deceased, Manki Devi. 3. Prosecution case, in brief, is that the appellant-Kanhal Sao is the husband of the sister of the informant. His wife had gone to her 'MAYKA' on 30th March, 1997. Kanhai, who is resident of neighbouring area, asked the informant to send her 19 years old daughter Suku for cooking his food. The appellant being a closed relative, the informant trusted him and sent her daughter to help the appellant in household works and cook his food. On 30th March, 1997 till evening her daughter did not return. She sent her another daughter, Premlata (P.W.7), to call Suku. Premlata came back and informed that her uncle Kanhai Sao asked Suku to stay in night in order to give helping hand in the morning work, The next morning when Suku did not return till 8.00 a.m., the informant went to the house of the accused-appellant and there she found her daughter lying dead on wooden plank (CHOWKI) inside the house, blood oozing out from her mouth and nose. She also found her cloths disturbed, some stain in her pant and swelling on her neck. She suspected that her daughter was raped and murdered by the accused-appellant. 4. On the basis of the said fardbeyan of Manki Devi (P.W.6), police registered the case under Sections 376 and 302 of the Indian Penal Code against the appellant, took up investigation and on completion thereof submitted charge-sheet against him under the said sections. 5. The Court took cognizance of the said offences against the appellant. 6. The case was committed to the court of sessions, Charges were framed under the said sections against the appellants to which the appellant denied and claimed to be tried. 7. 5. The Court took cognizance of the said offences against the appellant. 6. The case was committed to the court of sessions, Charges were framed under the said sections against the appellants to which the appellant denied and claimed to be tried. 7. The defence of the appellant was that he was not present in the house and in his absence the incident took place to which he had. vlo knowledge. 8. In order to prove the charges against the appellant, the prosecution altogether examined ten witnesses P.W. 1-Md, Amanullah, P.W.2-Ramdeo Raut, P.W.3-Constable Surendra Singh and P.W.9- Tapeshwar Sao are formal witnesses. They proved their signatures on various documents P.W.4- Ram Sharan Singh, covillager, turned hostile. P.W. 5-Dr. Dilip Kumar had medically examined the accused-appellant-Kanhai Sao after his arrest on the same day. P.W,6-Manki Devi is the informant. P.W.7-Premlata Kumari is the sister of the deceased and daughter of P.W.6-Manki Devi. P.W.8-Banarsi Sao is a covillager, he corroborated the prosecution case to some extent. P.W. 10-Gobardhan Prasad is the brother of the deceased. Dr. Ashok Kumar Das, who had conducted postmortem on the dead body of the deceased Suku was examined as court witness, C.W.I. 9. Prosecution also proved the first information report-Ext. 1, fardbeyan-Ext.2, charge sheet-Ext.3, inquest report-Ext.4, seizure list-Ext.5 and postmortem report-Ext. 6. 10. Learned Trial Court after through appraisal of evidences and materials on record found positive and sufficient evidence in support of the charges against the appellant. He held the appellant guilty of committing rape on Suku and thereafter her murder and convicted him under Sections 302 and 376 of the Indian Penal Code. 11. In this appeal, the appellant has challenged the impugned judgment of conviction and order of sentence mainly on the ground that the Investigating Officer was not examined in this case and that there are contradictions in the oral testimony of the prosecution witnesses. There is no eye-witness and direct evidence to prove the charges against the appellant and the links are not complete to form chain of circumstantial evidence. There is no legal evidence to prove the charges against the appellant and to hold him guilty of the said charges. 12. Learned Counsel for the appellant submitted that the appellant's conviction is based on very weak circumstantial evidences. There are vital contradictions in the oral testimony. The evidences on record are not sufficient to establish the charges against the appellant. 12. Learned Counsel for the appellant submitted that the appellant's conviction is based on very weak circumstantial evidences. There are vital contradictions in the oral testimony. The evidences on record are not sufficient to establish the charges against the appellant. Learned court below has brushed aside the contradictions and erroneously ignored the other infirmities in the evidence. There are improvements in the statement of the witnesses at the later stage, which renders their testimony unreliable. Learned court below has not properly appreciated the statement of the appellant made by him in his examination u/s 313 Cr.P.C. that at the time of occurrence, he was not in his house. The said circumstance has not been discussed by learned court below. The impugned judgment is vitiated on account of vital lacunae in the impugned judgment and the same is not sustainable in law. 13. Learned A.P.P. on the other hand, submitted that the trial court has thoroughly discussed and examined all the evidences meticulously and has found evidence and material on record to hold the appellant guilty of the charges. Oral testimony of P.Ws.6, 7, 8 and 10 is supported by the medical evidence of P.W.5-Dr. Dilip Kumar, who had medically examined the accused-appellant on the same day and the postmortem report and evidence of Dr. Ashok Kumar Das- C.W.I leads to the only conclusions that the appellant was the author of the said heinous crime of committing rape on his own niece, misusing the trust and faith reposed in him by his sister-in-law and thereafter finishing her life. 14. It has been submitted that since there are unimpeachable, adequate and cogent evidences on record, non-examination of the Investigating Officer becomes immaterial. The appellant has failed to show that any prejudice has been caused to him due to non-examination of the Investigating Officer. The accused-appellant has not disputed the place of occurrence, rape committed on the deceased and recovery of her dead body from his house. 15. In view of the said admitted position and the sufficient evidences on record to establish the guilt of the appellant, such technical objection is misconceived. The judgment is well considered and supported by legal evidence. There is no infirmity and illegality in the judgment, 16. Having heard learned Counsel for the appellant and learned A.P.P., we have also thoroughly scrutinised the evidences on record. Out of ten witnesses produced by the prosecution, P.W.1-Md. The judgment is well considered and supported by legal evidence. There is no infirmity and illegality in the judgment, 16. Having heard learned Counsel for the appellant and learned A.P.P., we have also thoroughly scrutinised the evidences on record. Out of ten witnesses produced by the prosecution, P.W.1-Md. Amanuliah is a formal witness, who has proved the formal first information report (Ext.l). P.W.2- Ramdeo Raut has proved the fardbeyan (Ext.2) and P.W. 3- Surendra Singh, Constable, has proved the charge sheet (Ext.3). One more formal witness, namely, P.W.9- Tapeshwar Sao is a witness to the seizure, who has proved the seizure list (Ext.5). P.W.4- Ram Sharan Singh was produced by the prosecution, but he turned hostile. P,W.5-Dr. Dilip Kumar had examined the accused-appellant medically on the same day i.e. on 31st March, 1997. On examination of his genital part, he found semen present in his penis. On examination of his glands on his penis, he opined that the accused-appellant had sexual contact and discharge of semen within 24 hours. Excoriation was present on the glands of his penis. He has proved his report (Ext.4). P.W.6- Manki Devi is the informant. She has supported the fardbeyan and fully corroborated the same. In her statement, she has stated that the accused appellant is the husband of her sister. The appellant's wife had gone to her 'MAYKA'. The appellant requested the informant to send Suku, her 19 years old daughter, to cook food for him. She accordingly sent her daughter. On 30th March, 1997 she did not come. The appellant's house is at a distance of 100 yards from her house. She sent her daughter Premlata (P.W.7) to call Suku, but Kanhai did not send her. The next day till 8 O' Clock in the morning when Suku did not come, the informant went to the house of the appellant and found her daughter's dead body lying on a wooden plank. Her cloths were not at proper place and there was stain in her panty. There was swelling on her neck. This witness has, thus, fully proved her statement given in the fardbeyan. P.W.7-Premlata Kumari is the daughter of the informant and the younger sister of the deceased Suku. She has also supported and corroborated the informant's version. She has proved that when she went to call her sister Suku, the appellant did not allow Suku to come home. This witness has, thus, fully proved her statement given in the fardbeyan. P.W.7-Premlata Kumari is the daughter of the informant and the younger sister of the deceased Suku. She has also supported and corroborated the informant's version. She has proved that when she went to call her sister Suku, the appellant did not allow Suku to come home. The appellant told this witness that she will stay in the night, as she has to prepare wine in the morning. This witness had also accompanied her mother and had found her sister's dead body lying on the wooden plank inside the house of the appellant. P.W.8- Banarsi Sao is a co-villager. He has deposed that in the morning when he was going out to attend natural call, the appellant asked him to help him in removing the household articles, as Suku died in his house. This witness also saw the dead body of Suku lying inside his house. He, thereafter, called 5-6 co-villagers, who caught hold of the accused-appellant and handed over him to the Sarpanch of the village. P.W. 10-Gobardhan Prasad is the younger brother of the deceased and the son of the informant. Though he was aged eight years at the time of his examination as witness, he had full understanding of the things, which appears from his test of understanding recorded by the Court. This witness has also fully corroborated the prosecution version, He has stated that the appellant had called Suku and she did not return in the night on 30th March, 1997. He also went there and stayed in the house of his uncle (MAUSA) in the night. He was given meal and was asked to sleep. In the night, the accused-appellant and Suku were struggling. His uncle had given Re.l/- and asked him to sleep and not to raise alarm. 17. Dr. Ashok Kumar Das, who conducted postmortem of the dead body of Suku, was examined as court witness. He deposed that on examination of the dead body of Suku, he found several ante-mortem injuries. The hyoid bone was found fractured. Trachea was found lacerated. There was sign of trail of bleeding from mouth and nose. Echymosis both flanks below auxiliary over both thigh. On examination of genitals of the deceased, he found vaginal cavity full of thick semen, libia minora of both sides of vagina were torn and lacerated. Cervix was also found lacerated. The hyoid bone was found fractured. Trachea was found lacerated. There was sign of trail of bleeding from mouth and nose. Echymosis both flanks below auxiliary over both thigh. On examination of genitals of the deceased, he found vaginal cavity full of thick semen, libia minora of both sides of vagina were torn and lacerated. Cervix was also found lacerated. He opined that the deceased was raped and strangulated and she died due to asphyxia caused by throttling. He also proved postmortem report (Ext.6). 18. In cross examination of those witnesses, nothing adverse could be elicited by the defence. 19. Learned Trial Court on assessment of the evidences, both, ocular and medical, came to the finding that the deceased Suku was raped by the appellant and, thereafter, strangulated. He concluded that the prosecution has been able to prove the charges under Sections 302 and 376 of the Indian Penal Code against the appellant beyond the shadow of reasonable doubt. 20. On close analysis and appraisal of said evidences, we do not find any infirmity in the impugned judgment of the learned Trial Court. Since the appellant has not disputed the presence of Suku in his house, clear sign of rape and ravishment on her followed death due to strangulation. There is no explanation for the same. The said admitted position coupled with the presence of semen on the penis of the appellant in absence of his wife and evidence of intercourse on the genital and the presence of semen in the vaginal canal and other sign of ravishment on the deceased, her death due to strangulation strongly leads to the conclusion of establishing the said charges against the appellant. 21. Though there is no eye witness in the case, there are strong links to form a chain of circumstantial evidence. There is no explanation on the record for any other conclusion. There are clear material and evidence to lead to the conclusion that the appellant and none else was the author of the said crime. We, therefore, find no error, infirmity or illegality in the Impugned judgment. 22. In the result, we uphold the conviction and sentence recorded by learned court below. 23. This appeal, accordingly, fails and is dismissed. Appeal dismissed.