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2015 DIGILAW 578 (JHR)

Prakash Bhuiya v. State of Jharkhand

2015-05-05

PRAMATH PATNAIK, R.R.PRASAD

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JUDGMENT : This appeal is directed against the judgment of conviction dated 31.05.2005 and order of sentence dated 02.06.2005 passed by the then Additional Sessions Judge, Fast Track Court-VI, Hazaribag in S.T. No. 275 of 1998 whereby and whereunder the court having found the appellant guilty for kidnapping the victim and then committing gang rape upon her convicted them for the offence punishable under Sections 366 and 376 (2g) of the Indian Penal Code and sentenced them to undergo imprisonment for life for the offence punishable under Section 376 (2-g) and further for ten years for the offence punishable under Section 366 of the Indian Penal Code. 2. The case of the prosecution as it appears from the fardbeyan of the informant-Suresh Bhuiya (P.W.-3) is that the informant along with his family members were residing in C.C.L quarter at Bhurkunda. On 03.03.1998 at about 9.00 a.m. his sister aged about 15 years, went to collect cow dung towards Sangam Dumping Yard. When she did not return home then the informant and other family members started searching her. In that course they went to Sangam Dumping Yard but did not find any clue. Meanwhile, the appellant-Prakash Bhuiya residing in the neighbourhood was found missing from his house and thereby they suspected the hand of the appellant-Prakash Bhuiya in the commission of offence of kidnapping. After getting some clue the informant-Suresh Bhuiya (P.W.-3) came to Dumri in the night along with Dugun Bhuiya (P.W.-7) and Jagdish Bhuiya (P.W.-6) but they did not find the victim. Thereafter, they came to village Sudna in the next morning at 7.00 a.m and found the accused Prakash Bhuiya and his sister present in the house of Ramdeo Bhuiya (Mousa of the appellant-Prakash Bhuiya). There the victim (sister of the informant) told them that when she was picking cow dung near dumping area, all the three appellants suddenly came over there and then forcibly took her towards river where they administered some toxic substance to her, from where they took a tracker and came to Ramgarh, from where she was taken to Daltonganj and ultimately to village Sudna. It was disclosed by the victim that the appellant Rakesh Bhuiya and Md. Ashphque @ Babua had returned from Ramgarh itself and only the appellant Prakash Bhuiya had brought her to village Sudna where appellant-Prakash Bhuiya had committed rape on her. It was disclosed by the victim that the appellant Rakesh Bhuiya and Md. Ashphque @ Babua had returned from Ramgarh itself and only the appellant Prakash Bhuiya had brought her to village Sudna where appellant-Prakash Bhuiya had committed rape on her. On that day i.e. 04.03.1998, the informant as well as P.Ws. 6 and 7 stayed back in the night. On 05.03.1998 they returned home along with the victim but, the informant did not go there to lodge the case. Only on 08.03.1998, the informant came to Bhurkunda police station along with victim and gave his fardbeyan, upon which a case was registered under Section 366 and 376 of the Indian Penal Code against all the appellants. On the basis of fardbeyan a formal F.I.R was drawn. The matter was taken for investigation by the I.O-Mehndi Hasan (not examined). During investigation, the I.O got the victim examined by Dr. Prakash Kumar Bisa-P.W.-5 on 08.03.1998, who did not find any evidence of administration of any intoxication nor did find any sign of victim being raped. To that effect, he issued injury report (Exhibit-1/1). After two days, the I.O again got the victim examined by Dr. Kalpana Saran-P.W.-4, a Civil Assistant Surgeon, who after examining victim also did not find any sign of rape nor she did find any mark of violence on the person of the victim, however, the hymen was found torned but, it was old. She also determined the age of the victim on the basis of the ossification test and found the age of the victim as seventeen years. The I.O during investigation, got the statement of the victim recorded by P.W.-8 under Section 164 of the Cr.P.C., after 20 days of the lodgment of the case where she stated that while she had gone to Sangam Dumping Yard for collecting cow dung, all the appellants came over there suddenly and forcibly took her towards river side where all the three persons committed rape upon her. Thereupon, all the three persons took her to village Sudna to the house of Mousa of appellant no.1, where all the three appellants committed rape upon her. Further, she has stated that when her brother Suresh Bhuiya-P.W.-3 came to village Sudna along with P.Ws.-6 and 7, they did find only Prakash Bhuiya present in the house as the other two appellants had already left the place. Further, she has stated that when her brother Suresh Bhuiya-P.W.-3 came to village Sudna along with P.Ws.-6 and 7, they did find only Prakash Bhuiya present in the house as the other two appellants had already left the place. The I.O. also recorded the statement of father of the victim as well as P.W.-6 and P.W.-7, who had accompanied Suresh Bhuiya-P.W.-3 to village Sudna. 3. On completion of the investigation, charge sheet was submitted upon which cognizance of the offence punishable under Section 366 and 376 of the I.P.C. was taken against the appellants. When the case was committed to the court of Sessions, charge was framed under Section 366 of the Indian Penal Code. However, subsequently charge was framed also under Section 376 and then later on charge was also framed under Section 376 (2 g) of the Indian Penal Code. 4. During trial, the prosecution examined altogether eight witnesses. Of them, P.W.-3 is the informant (brother of the victim), P.W.-1-Bigan Bhuiya is the father whereas P.W.-2 is the victim. According to the victim, while she had gone to collect cow dung, all the appellants came there and caught hold of her and forcibly took her at the river side where they committed rape and then all the three appellants took her to village Sudna where all the appellants committed rape upon her. Similar is the testimony of the informant-P.W.-3, though in his fardbeyan, he had never alleged that all the three appellants had committed rape upon her rather he had made statement that only Prakash Bhuiya had committed rape upon her. P.W.-6-Jagdish Bhuiya and P.W.-7-Dagun Bhuiya are the persons who had accompanied P.W.-3 to village Sudna where they found the victim girl in the company of the appellant Prakash Bhuiya. According to P.W.-6, when they reached village Sudna and met with the victim the victim told that she had come to that place willingly in company of Prakash Bhuiya as she wanted to marry him but, father and mother were objecting it. 5. When the prosecution case was closed, incriminating evidences/materials appearing against the appellants were put to them under Section 313 of the Cr.P.C., to which the appellants denied. The case of the defence as has been suggested to the witnesses is that victim, a major girl was in love with the appellant-Prakash Bhuiya and she forced Prakash Bhuiya to take her to village Sudna. 6. The case of the defence as has been suggested to the witnesses is that victim, a major girl was in love with the appellant-Prakash Bhuiya and she forced Prakash Bhuiya to take her to village Sudna. 6. Thereafter, the court by ignoring the report of P.W.-4 suggesting the age of victim as seventeen years placed its reliance upon the testimonies of the witnesses the victim (P.W.-2), the informant (P.W.-3) as well as father of the victim (P.W.-1) relating to age of the victim and culpability of appellants recorded the judgment of conviction and order of sentence which is under challenge. 7. Mr. Anil Kumar, learned senior counsel appearing for the appellants submitted that it never happens to be a case of victim forcibly taken to village Sudna and was raped there by the appellants, rather it is a case where the victim aged about seventeen years herself forced appellant Prakash Bhuiya to take her to village Sudna as she wanted to marry Prakash Bhuiya but, the parents of the victim were not agreeable to it. But, the court below completely ignored this aspect of the matter, instead placed its reliance on the testimony of the victim which according to the court finds corroboration from the statement made under Section 164 of the Cr.P.C. which was never in consonance with statement made in the fardbeyan rather there had been major departure and thereby the court committed illegality in recording the judgment of conviction and order of sentence. 8. As against this, learned counsel for the State submits that it is true that there has been some departure in the statement made in the 164 statement from the statement made in the fardbeyan but that was on account of the fact that the victim who was under trauma could not explain everything to her brother, Suresh Bhuiya-P.W.-3 and thereby some departure appears to be there in between these two statements but, it hardly makes any difference as there had been no reason on the part of the victim to falsely implicate the appellants and thereby the trial court is absolutely justified in recording the judgment of conviction and order of sentence. 9. 9. Having heard learned counsel for the parties and on perusal of record, we do find that the prosecution initially made out it’s a case which has been made out in the fardbeyan that the victim came to Sangam Dumping Yard for collecting cow dung where the appellants came and administered some toxic substance and then they brought her to Ramgarh, fromwhere they took a tracker by which she along with Prakash bhuiya came to village Sudna whereas the other two appellant stayed back at Ramgarh. At village Sudna the victim was taken to the house of Ramdeo Bhuiya (Mousa of appellant Prakash Bhuiya), where in the night the appellant Prakash Bhuiya committed rape upon her. Subsequently, the case was developed by the victim that when she come to collect cow dung, all the three appellants came and caught hold her and then they brought her to river side where all the appellants committed rape and then brought to village Sudna, there also all the three appellants committed rape upon her. The victim-P.W.-2 and also the informant-P.W.-3, during evidence supported this story upon which the court placed his reliance but while putting reliance, the court completely ignored the testimony of P.W.-6-Jagdish Bhuiya, who had accompanied the informant to village Sudna while they had set out in search of the victim. According to P.W.-6 when they came to the house of Ramdeo Bhuiya they found the victim along with Prakash Bhuiya.There the victim told them that she had come there along with Prakash Bhuiya willingly as she wanted to marry him but, the parents were not allowing her to marry.Further, it does appear that when attention of the victim was drawn towards ten letters said to have been written by the victim to the appellant-Prakash Bhuiya she explained that she told that under threat these letters were written by her but, the facts and circumstances appearing in this case go to suggest that the victim was in love with the Prakash Bhuiya with whom she had had sex. Had victim been taken forcibly first to Ramgarh and then from Ramgarh to Daltonganj and then to Sudna by a tracker, she had had ample opportunity to raise alarm in the way but, no such evidence appears to be there that victim ever made an attempt to raise alarm and then disclosure made by the victim to P.W.-6 that she had willingly come to Sudna. It be further recorded that when the doctor examined the victim nether did he find any sign of rape nor did find any mark of violence on the person of the victim. The doctor by subjecting victim to ossification test found her age as 17 years. Under the circumstances prosecution cannot be said to have proved its case that the victim was kidnapped/abducted by the appellants to compel her to marry with one of them or to have illicit intercourse with them. Same time the prosecution also failed to establish that they committed gang rape upon the victim. 10. Under the circumstances, the trial court was absolutely unjustified in recording the judgment of conviction and order of sentence. Hence, the judgment of conviction and order of sentence is hereby set aside and the appellants are acquitted of all the charges. 11. The appellants, named above, who are in custody, are directed to be released forthwith, if not wanted in any other case. 12. In the result, this appeal stands allowed.