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2011 DIGILAW 192 (JHR)

Rajdeo Oraon v. State of Jharkhand

2011-03-14

D.K.SINHA

body2011
Order D.K. Sinha, J.-The instant Cr. Appeal is directed against the judgment of conviction dated 18.3.2008 and order of sentence dated 19.3.2008 passed by Shri Rajesh Kumar Dubey, the learned Sessions Judge, Latehar in S.C. No.9 of 2006 by which the appellant was convicted under Section 376(2) (g)/109 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for ten years. He was further convicted in part(ii) of Section 304/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 5000/- with default stipulation, however, with the direction that both the sentences would run concurrently against him. 2. The prosecution story in short was that in the night of 7.8.2005 at about 10 p.m. accused (appellant) Rajdeo Oraon came to the house of the informant Neema Oraon where he came across Surji Devi (since deceased) and asked her to arrange liquor. To find out liquor in the village he requested Surji Devi and both came out from her house leaving her husband Neema Oraon there. After sometime Rajdeo Uraon returned back and informed the informant Neema Oraon that his wife Surji Devi was lying at some place in critical condition and he asked Neema Oraon to take back Surji Devi at home. Pursuant to such information, the informant Neema Oraon, his daughter Prabha Devi accompanied Rajdeo Oraon to the place but Surji Devi was not there. The informant then raised alarm whereupon the witnesses Shiban Oraon and Sugan Oraon came there and all enquired from Rajdeo Oraon as to the whereabouts of Surji Devi. The informant Neema Uraon then came to the road where he heard cry and murmuring originated from a bush in fibble voice. All went towards the origin of the voice and found a person committing rape upon Surji Devi. The person at the sight of the witnesses tried to escape but he could be overpowered and on interrogation disclosed his name Ramesh Kumar. Surji Devi was found unconscious and was partially naked. She. was brought to the home but she died at about 5 a.m. after she vomited intermittently for whole of the night. The occurrence was witnessed by Akhilesh Oraon, Jagatar Oraon, Khiru Oraon and Sukan Oraon. Surji Devi was found unconscious and was partially naked. She. was brought to the home but she died at about 5 a.m. after she vomited intermittently for whole of the night. The occurrence was witnessed by Akhilesh Oraon, Jagatar Oraon, Khiru Oraon and Sukan Oraon. The police arrived in the morning of 8.8.2005 at 7.30 a.m. on information and recorded the Fardbeyan of the husband Neema Oraon of the deceased Surji Devi. Inquest report of the deceased was prepared and the dead body was sent for post mortem examination. The statement of other witnesses were recorded and the police visited the place of occurrence. In the post mortem examination her vagina was found full of seminal fluid and her face swollen, as such, viscera was preserved. The Investigating Officer after investigation of the case submitted charge-sheet against the appellant Rajdeo Oraon and Ramesh Kumar for the alleged offence under Sections 376/304/34 of the Indian Penal Code. Charge, however was framed by the Sessions Judge, Latehar against them under Sections 376(2)(g) and 304/34 of the Indian Penal Code and they were put on trial. 3. During course of trial the prosecution examined P.W. 1 Siban Oraon, P.W. 2 Sugan Oraon, P.W.3 Akhilesh Oraon, PW. 4 Neema Oraon, P.W. 5 Prabha Devi, P.W. 6 Awadh Kumar Yadav, P.W. 7 Manoj Kumar Gupta and P.W. 8 Ravindra Narain. Beside, the prosecution proved several other documents such as the inquest report, Formal F.I.R. and the post mortem report of the Surji Devi. 4. P.W. 1 Siban Oraon, P.W. 2 Sukan Oraon, P.W.3 Akhilesh Oraon, P.W.4 Neema Oraon (informant) and P.W. 5 Prabha Devi all claimed to be the eye witnesses of the occurrence, who visited the place of occurrence with the appellant Rajdeo Oraon in course of search of Surji Devi and when they arrived on the road, they heard cry. someone crying "AYO DADA MUA DELE". All went to the bush and found the co-convict Ramesh Kumar' committing rape on Surji Devi though at the sight of the witnesses he tried to escape but could be overpowered. As regards the complicity of the appellant Rajdeo Oraon was concerned, none of the witnesses claimed having seen him committing rape on Surji Devi except that the appellant Rajdeo Oraon persuaded and took away Surji Devi on the pretext to arrange liquor for him in the village. As regards the complicity of the appellant Rajdeo Oraon was concerned, none of the witnesses claimed having seen him committing rape on Surji Devi except that the appellant Rajdeo Oraon persuaded and took away Surji Devi on the pretext to arrange liquor for him in the village. After an hour, according to the informant and his daughter, the appellant Rajdeo Oraon returned and communicated that Surji Devi was lying unconscious and he asked the informant to take her back to home. On such information, the informant P.W.4 Neema Oraon accompanied the appellant Rajdeo Oraon, followed by his daughter Prabha Devi to the pointed place but when Surji Devi could not be located there he asked him as to the whereabouts of his wife Surji Devi and in the meantime the other two witnesses Shiban Oraon and Sugan Oraon joined them. All came to the Pitched road during course of search of Surji Devi and only there they heard the voice originated from a bush situated at the eastern side of the road and the informant claimed to identify the voice that it belonged to his wife (deceased). They went towards the bush and found the accused Ramesh Kumar committing rape on Surji Devi. Ramesh Kumar tried to flee away at the sight of the witnesses but he was chased and overpowered. The informant P.W.4 found his wife unconscious and partially naked. She was removed to the home where she continued vomiting for the whole of night and died in the morning at about 5 O'clock. Somebody informed the police on telephone and only then the police came and recorded the statement of the informant. In the cross-examination the witness admitted that Rajdeo Oraon happened to be the nephew-in-law in relation and that he had already taken his meal in the night by the time Rajdeo. Oraon came there. The witness admitted having no enmity with Rajdeo Oraon and that Surji Devi used to take liquor occasionally. The informant further testified that when he went to the place of occurrence he spotted Ramesh Kumar naked and that Surji Devi's voice ceased and she became unconscious. He admitted having narrated before the police that it was Ramesh Kumar whom he had found committing rape and that he had witnessed the accused Ramesh Kumar in the light of torch when he started fleeing from the bush at some distance of about 100 yards. He admitted having narrated before the police that it was Ramesh Kumar whom he had found committing rape and that he had witnessed the accused Ramesh Kumar in the light of torch when he started fleeing from the bush at some distance of about 100 yards. 5. P.W. 5 Prabha Devi, the daughter of Surji Dev consistently supported the statement of her father informant (PW. 4). She testified that the occurrence took place some one and half years ago in the night when the members of her family including her mother, father and sister-in-law were sleeping. Then Rajdeo Uraon came at about 10 p.m. and asked her mother to search out liquor in the village for him. Her mother accompanied him. After about an hour Rajdeo Uraon returned and asked the members in her home to take back her mother as she was trembling at some place. On such information she accompanied her father and Rajdeo Oraon to the pointed place but her mother was not there. An alarm was raised whereupon Siben Oraon and Sugan Oraon arrived and they also accompanied them in search of her mother. After covering some distance when they arrived at the pitched road, they heard female voice originating from a bush. All went there and witnessed Ramesh Kumar committing rape on her mother who started running from the place at the sight of the witnesses but he was chased and overpowered. She found her mother partially naked and she was unconscious and vomiting, as such, she was lifted and brought to the home where she vomited through out and died in the morning. She named the witnesses who had seen the occurrence. Both the accused Rajdeo Oraon and Ramesh Kumar were apprehended and confined in the village. The police came in the morning on information given on telephone and took away both the accused to the police station. In the cross-examination she admitted that Rajdeo Oraon happened to be the brother-in-law of her brother who was on visiting terms in her house. She admitted that though her mother was in a• habit of taking liquor but on that day she had not consumed and that she had accompanied Rajdeo Oraon in search of liquor. She further admitted that Rajdeo Oraon was all alongwith them until her mother could be located and removed to the house while she was unconscious. She admitted that though her mother was in a• habit of taking liquor but on that day she had not consumed and that she had accompanied Rajdeo Oraon in search of liquor. She further admitted that Rajdeo Oraon was all alongwith them until her mother could be located and removed to the house while she was unconscious. Ramesh Kumar was not known to her from before and that no treatment was extended to her mother in the night though she was vomiting. She denied that her mother died of consuming spurious liquor. 6. P.W.6 Awadh Kishore Yadav i.e the Investigating Officer of the case testified that on 8.8.2005 about 6 a.m. he heard rumor with respect to certain occurrence which took place at the village Pipratola Parsahi while he was posted at Manika police station. Upon such information he proceeded to the village Pipratola Parsahi after making entry in the station diary. He recorded the statement of the informant Neema Oraon in his pen and signature at the saine village. He proved the endorsement made on the Fardbeyan in his pen and signature and formal FIR and his signature thereon. He prepared the inquest report of the deceased in presence of the witnesses and examined the place of occurrence which was the barren land of one Dhobia Mahato of village Pipratola Parsahi, with wild bushes grown thereon within the circumference of 30/40 metres. He found dragging mark on the ground in grasses surrounded by bushes, pointed out to be the place of alleged occurrence. He had given the boundary of such land by describing that the Ranchi Medninagar, main road was situated at the distance of 50 yards from the said place. He admitted having not found any other incriminating article like broken bangles, hair or piece of cloths etc. except dragging mark at the place of occurrence and further admitted having seen the cloths on the dead body of Surji Devi and bangles in her wrists. He further admitted that viscera which was delivered by the Doctor after her autopsy could not be sent for test, rather the same was preserved as the material exhibit. 7. It would be relevant to mention that the post mortem report though was proved by the formal witness P.W.7 Manoj Kumar Gupta, an advocate's clerk but after examination of the accused Rajdeo Oraon under Section 313 Cr.P.C. Dr. 7. It would be relevant to mention that the post mortem report though was proved by the formal witness P.W.7 Manoj Kumar Gupta, an advocate's clerk but after examination of the accused Rajdeo Oraon under Section 313 Cr.P.C. Dr. Ravindra Narain was summoned, who had held autopsy, as court witness. He deposed that on 8.8.2005 while he was posted as the Medical Officer at the sub Divisional Hospital Latehar where he held post mortem examination on the body of Surji Devi, a Hindu female, aged about 45 years w/o Neema Oraon and he found the following :- (I) Rigor mortis was present on both upper and lower limbs. (II) Ante-mortem injury :-Face was swollen, multiple bruise were found present, face blackish in colour, vagina was full of seminal fluid. Visceras were preserved for chemical examination. He reserved his opinion as to the cause of her death. Time since death was determined between 48 to 72 hours. He identified the post mortem report in his pen and signature which was already proved by formal witness and marked Ext. 1/5, the witness admitted in his cross examination that he had not examined the fluid present in the vagina of the deceased under the microscope and he did not deny that it might be Leucorrhoea discharge. Finally he opined that her death was not possible due to injuries found on her body. 8. The learned counsel submitted that the appellant Rajdeo Oraon has been convicted by the Sessions Judge without any legal evidence on the record on both the counts i.e. under Sections 376(2) (g)/109 and Part-ii of Sections 304/34 of the Indian Penal Code. Neither direct evidence nor circumstantial evidence' could be brought against him during trial that he had abetted Ramesh Kumar to commit rape on Surji Devi or that he had committed culpable homicide which did not amount to murder with the knowledge that his act was likely to cause death of Surji Devi so as to attract his conviction. The prosecution witnesses failed to establish nexus between the appellant Rajdeo Oraon and the co-convict Ramesh Kumar in any of such alleged crimes. Even there was no circumstantial evidence to infer that the appellant Rajdeo Oraon had abetted Ramesh Kumar to commit rape on Surji Devi. The court witness Dr. The prosecution witnesses failed to establish nexus between the appellant Rajdeo Oraon and the co-convict Ramesh Kumar in any of such alleged crimes. Even there was no circumstantial evidence to infer that the appellant Rajdeo Oraon had abetted Ramesh Kumar to commit rape on Surji Devi. The court witness Dr. Ravindra Narayan who had held autopsy of Surji Oevi opined on the guess work that he found that her vagina was full of seminal fluid but admitted in the cross examination that the fluid was not examined by him under microscope and in the same breath he did not deny the suggestion that such fluid found in the vagina of the deceased could be Leucorrhoea discharge. None of the witnesses claimed having seen the appellant Rajdeo Omon either indulged in the gang rape with Ramesh Kumar committing on Surji Devi or abetting the co-convict for committing such offence and therefore, conviction of the appellant on both the counts by the trial court would tantamount to miscarriage of justice. Otherwise also he remained all alongwith the witnesses since the very beginning assisting in recovery of Surji Devi from the bush till her death and had not left the place. He was closely related to the deceased being brother-in-law of her son and was on regular visiting terms and having no criminal antecedent or any kind of misconduct in his past which needed conscious consideration for his acquittal. 9. Heard Mr. Binod Singh, the learned A.P.P. on behalf of the Respondent-State. 10. Mr. Singh conceded that though there was no eye witness of the occurrence but a strong circumstance against the appellant Rajdeo Oraon who had taken away Surji Devi on the pretext to search out liquor for him in the dead of night but returned alone apprising the informant/husband that she was gasping and was in serious condition at some place. He took the witnesses at the pointed place but she was not there. When the witnesses went towards the pitched road in the wake of searching her, they heard her voice emerging from the bush and when proceeded in the same direction they found Ramesh Kumar committing rape who was chased and apprehended when tried to escape at the sight of the witnesses. When the witnesses went towards the pitched road in the wake of searching her, they heard her voice emerging from the bush and when proceeded in the same direction they found Ramesh Kumar committing rape who was chased and apprehended when tried to escape at the sight of the witnesses. The appellant was silent and did not explain in his statement recorded under Section 313 Code of Criminal Procedure as to under what circumstances he had left Surji Devi alone in the dead of night in the hands of Ramesh Kumar. He was the last person found in the company of the deceased prior to her death and only on the persuasion of this appellant Surji Devi had accompanied her in the night for searching out liquor for him. 11. Admittedly none of the witnesses claimed having seen the appellant Rajdeo Oraon either committing rape on Surji Devi or abetting the co-convict Ramesh Kumar for doing so. He was all alongwith the informant Neema Oraon and his daughter Prabha Devi after he communicated the critical condition of Surji Devi requesting them to take her back to home. The fact has been left unanswered and the prosecution failed to connect the missing link as to what happened between the period the appellant Rajdeo Oraon took away Surji Devi with him to search out liquor in the village around 10 p.m. but returned alone conveying her critical condition. The prosecution even failed to establish nexus between the appellant Rajdeo Oraon and the co-convict Ramesh for the alleged offence. Premeditation to commit gang 'rape and culpability of death of Surji Devi being not categorized as the murder could not be proved against the appellant Rajdeo Oraon. The doctor did not ascertain the cause of her death, at the same time observed that the injuries found on her body were not sufficient to cause death. The victim on account of sustaining external violence was speechless so she could not declare as to the cause of her death. The doctor in the post mortem report mentioned that he had found seminal fluid in her vagina but during course of cross examination he did not deny that it could be Leucorrhoea as the fluid was not examined by him under the microscope. Even the cause of her constant vomiting in the fateful night could not be established by the medical evidence. Even the cause of her constant vomiting in the fateful night could not be established by the medical evidence. It was' unfortunate on the part of the prosecution that viscera which was given to the Investigating Officer after autopsy of Surji Devi was never sent to the Forensic Science Laboratory to find out as to what was the cause of her death. The witnesses were consistent having seen only accused Ramesh Kumar committing rape on Surji Devi and that suspicion was raised against the appellant Rajdeo Oraon that he abetted in commission of gang rape because Surji Devi had proceeded with him. The ingredients to constitute an offence of gang rape under Section 376(2) (g) could not be fulfilled as it was not the case that the appellant Rajdeo Oraon had participated in gang rape but the charge was that he abetted in commission of gang rape and accordingly he was convicted for the said offence without there being any legal evidence on the record, except suspicion. The prosecution failed to prove the charges either of abetting the commission of gang rape or of culpability of homicide of Surji Devi which did not amount to murder as against the appellant Rajdeo Oraon beyond shadow of all reasonable doubts. It is settled that "serious the offence, heavy the burden upon the prosecution to prove the charge". I am, therefore, of the firm view that the prosecution failed to discharge its heavy burden and the appellant was convicted without any legal evidence on the record and that merely on suspicion. Even the chain of circumstances which suspected the complicity of the appellant has been found broken at places. In his statements recorded under Section 313 of Cr.P.C. he was never confronted with any incriminating material that he either participated in gang rape or abetted to anyone for such offence or that he committed culpable homicide in furtherance of common intention which did not amount to murder as because there was no material at all on the record but he was convicted on erroneous consideration which amounts to miscarriage of justice. 12. In the facts and circumstances the judgment of conviction and order of sentence recorded against the appellant Rajdeo Oraon by the learned Sessions Judge, Latehar in S.C. No.9 of 2006 arising out of. Manika P.S. case No.17 of 2005 is set aside. This Criminal appeal is allowed. 12. In the facts and circumstances the judgment of conviction and order of sentence recorded against the appellant Rajdeo Oraon by the learned Sessions Judge, Latehar in S.C. No.9 of 2006 arising out of. Manika P.S. case No.17 of 2005 is set aside. This Criminal appeal is allowed. The appellant Rajdeo Oraon is directed to be set at liberty at once if he has not yet been released.