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2016 DIGILAW 120 (JHR)

Satendra Kumar Balmiki v. State of Jharkhand

2016-01-18

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : By Court This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 23rd June, 2006 and 28th June, 2006 passed by the IInd Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions Trial No. 255/328 of 2004, corresponding to G.R.No.85/2004 (Telco P.S. Case No.05/2004) whereby the appellant has been held guilty for the offence punishable under Sections 302/376 of the Indian Penal Code and sentenced to undergo R.I. for life under Section 302 of the Indian Penal Code and R.I. for 10 years for the offence punishable under Section 376 of the Indian Penal Code and the sentences so passed shall run concurrently. 2. The case of the prosecution in brief is that on 17.01.2004 in the evening Runu Ghose, aged about 5 years, sister-in-law of the informant had gone to play outside of her quarter. She was found missing when a search was made to send her tuition. The informant with his friend Harjinder and nearby people started searching Runu Ghosh. In course of search they met with the appellant near Quarter No.30 who asked the identity of informant and his friend and said that you people come to commit crime and we have to have face consequences. The informant and his friend noticed blood stain on the shirt of the appellant at that point of time. Thereafter the appellant left the place but search for Runu Ghosh continued by the informant and his companion. Harjinder Singh (P.W.9) entered in quarter No.30 of D.V.C. Colony and found a girl half nude lying dead. Blood was oozing from her vagina too. The fact was immediately brought to the notice of the informant and other witnesses and they rushed to Quarter No.30 and found dead body of Runu Ghosh lying in the kitchen of that vacant Quarter and she was having injury on her neck and vagina. It is further disclosed in the fardbayan that Runu Ghosh was seen playing in the field where presence of appellant-Satendra Kumar Balimiki @ Bhalu @ Satender Kr. Balmiki was noticed by Sunil Kumar Ghosh. On the basis of fardbayan of Pradyut Ghosh (P.W.1), East Singbhum, Telco P.S. Case No.05/2004 dated 17.01.2004 under Sections 376/302 I.P.C. was registered against the appellant. Investigation was carried out, the appellant was apprehended, on the basis of confession made by appellant, his underwear and shirt stained with blood were recovered. Balmiki was noticed by Sunil Kumar Ghosh. On the basis of fardbayan of Pradyut Ghosh (P.W.1), East Singbhum, Telco P.S. Case No.05/2004 dated 17.01.2004 under Sections 376/302 I.P.C. was registered against the appellant. Investigation was carried out, the appellant was apprehended, on the basis of confession made by appellant, his underwear and shirt stained with blood were recovered. Before the police and witnesses, the appellant had given his confessional statement in which he had admitted that he had committed rape on Runu Ghosh and then killed her. The Investigating Officer after due investigation submitted charge-sheet and accordingly cognizance was taken and the case of the appellant was committed to the court of sessions and registered as S.T.No.255/2004. Charges under Sections 376 and 302 of the Indian Penal Code were framed to which he pleaded not guilty and claimed to be tried. 3. The prosecution in order to substantiate the charges examined altogether 11 witnesses including the Informant, Investigating Officer, Doctor and further proved documents like inquest report, seizure list, postmortem report and fardbayan etc. The learned Additional Sessions Judge at the conclusion of trial held the appellant guilty for the offence punishable under Sections 376 and 302 of the Indian Penal Code and sentenced him as indicated above. 4. The appellant has assailed the impugned judgment mainly on the ground that there is no eye-witness to the occurrence, nobody had seen the appellant taking the deceased to Quarter No. 30, D.V.C. Colony, no report received if any, from Forensic Science Laboratory has been brought on record. The appellant never confessed his guilt nor the statement recorded by the police is admissible in law. The prosecution case is based on circumstantial evidence and the chain of circumstantial evidence is not as such leading to the guilt of the accused/appellant excluding all hypothesis of his innocence. Last but not the least, most of the material prosecution witnesses are highly interested witnesses. 5. Learned A.P.P. has opposed the argument and submitted that presence of appellant at the place of occurrence has been proved by P.W. 1 and P.W. 9. The appellant talked to them and blood spot on his sky coloured shirt was noticed. Thereafter P.W. 9 entered in Quarter No.30 where dead body of Runu Ghosh was lying in the kitchen. 5. Learned A.P.P. has opposed the argument and submitted that presence of appellant at the place of occurrence has been proved by P.W. 1 and P.W. 9. The appellant talked to them and blood spot on his sky coloured shirt was noticed. Thereafter P.W. 9 entered in Quarter No.30 where dead body of Runu Ghosh was lying in the kitchen. Immediately he came out of the house and brought it to the notice of P.W. 1 and then both went to the place of occurrence and saw the dead body of Runu Ghosh having injury on her vagina and neck. Learned A.P.P. has drawn my attention towards the evidence of P.W. 5 (para 1) and P.W. 7 (para 1) and submitted that both the witnesses prior to the occurrence had seen the deceased playing in the field where appellant was present. Thereafter Runu Ghosh (deceased) disappeared and her dead body was located lying in the kitchen of Quarter No.30. When the matter was reported to the police, the appellant was arrested and on the basis of confession made by him blood stained underwear, handkerchief, shirt and trouser have been recovered from his house (Ext. 7/1). Learned A.P.P. has further submitted that all the prosecution witnesses have supported the prosecution case and they stood to the test of cross-examination. Dr. Akhilesh Kumar Choudhary (P.W.10) had conducted autopsy on the dead body of deceased-Runu Ghosh and the postmortem report (Ext.4) corroborates that Runu Ghosh was ravished and then throttled. Heinous crime committed by the appellant has well been proved by the prosecution and he has rightly been held guilty and sentenced, which need no interference. 6. We have examined the case record, perused the evidence and documents available and also gone through the impugned judgment. If we summarize the entire incident on the basis of evidence available on record, story which comes out is that Runu Ghosh, a girl aged 5 years (daughter of P.W. 8) was playing in the field situated near her Quarter in the evening. The place where the deceased was playing, the appellant-Satendra Kumar Balimiki @ Bhalu @ Satender Kr. Balmiki was present. Since the appellant was resident of same locality, he was familiar with the child and often used to give her chocolate. After a while when Runu Ghosh was searched by her family members for sending her to tuition, she was found missing. Balmiki was present. Since the appellant was resident of same locality, he was familiar with the child and often used to give her chocolate. After a while when Runu Ghosh was searched by her family members for sending her to tuition, she was found missing. A search commenced and in course of search, dead body of Runu Ghosh in halfly nude condition lying in the kitchen of vacant Quarter No. 30 was noticed. Blood was oozing from her vagina, nail mark on the neck were present. The appellant was seen by two of the witnesses while he was leaving the place, they also noticed blood spot on his shirt. The appellant was apprehended, confessed his guilt, on the basis of confession, blood stained cloths belonging to the appellant were recovered. The facts so narrated by the witnesses gives a picture that minor girl aged 5 years was taken by the appellant to a nearby vacant Quarter where she was ravished and then killed and then the appellant left the place. To find out the truth behind the story indicated above, we have examined the evidence available on record. P.W. 1 is the informant and brother-in-law of the deceased, who along with his friend had been to the place of his mother-in-law on the eve of Tusu (Makar shankranti) festival. He was informed that Runu Ghosh (deceased) who had gone to play in the field has been missing. This witness has said that he along with his friend Harjinder had started searching Runu Ghosh in the nearby places. In course of that Harjinder Singh went to vacant Quarter No.30 where dead body of Runu Ghosh was lying in the kitchen of that Quarter. This fact was duly informed by Harjinder Singh to this witness. He has deposed when he was going towards Quarter No.30 along with Harjinder, the appellant met with them and raised question about their identity. He further says that he had noticed blood stain on the shirt of the appellant at the time he was leaving the place of occurrence. P.W. 1 has fully corroborated the statement given by him in his fardbayan. We do not find any material contradiction in the statement of P.W. 1. He has stood to the test of cross-examination which is in detail. P.W. 1 has fully corroborated the statement given by him in his fardbayan. We do not find any material contradiction in the statement of P.W. 1. He has stood to the test of cross-examination which is in detail. Sunil Kumar Ghosh (P.W. 2) has deposed that he had seen Runu Ghosh in the field where the appellant was present. After some time this witness started searching Runu Ghosh to send her tuition but she was not available. It is disclosed that Munmun Ghosh daughter of this witness used to attend tuition along with Runu Ghosh and that was the reason Sunil Kumar Ghosh had been searching Runu Ghosh. This witness has supported the prosecution case as made out by the informant. In para 2 he says that he had seen blood spot on the shirt of the appellant. He had also seen the dead body of Runu Ghosh lying in the kitchen of vacant Quarter No.30. Harjinder Singh (P.W. 9) happens to be an independent witness who had gone to the house of the deceased along with his friend Pradyut Ghosh (P.W.1). He is the witness, who had first seen the dead body lying in the kitchen of vacant Quarter No. 30. He supports this fact in his deposition in Court. This witness has also corroborated the entire occurrence as narrated by Pradyut Ghosh (P.W. 1), Mohan Prasad Verma (P.W.5) and Tapan Ghosh (P.W. 7) had seen the appellant playing with the deceased in that very field in the evening. When these witnesses could learn about the missing of Runu Ghosh, they immediately rushed to the place of occurrence and disclosed the fact that they had seen the appellant playing with the deceased just prior to the occurrence. Chhaya Rani Ghosh (P.W.8) happens to be the mother of the deceased and she too supports the prosecution case. Dr. Akhilesh Kumar Choudhary (P.W. 10) has proved the postmortem report and the Doctor has affirmed this fact that deceased Runu Ghosh was subjected to rape and then throttled. Hymen were found ruptured, blood was oozing from vagina, nail mark were noticed on the neck of the deceased and all those injuries which the Doctor had noticed at the time of conducting postmortem, have been explained. Raj Ballabh Paswan (P.W.11) happens to be Investigating Officer and he has supported the investigation done by him. He has proved the fardbayan (Ext. Raj Ballabh Paswan (P.W.11) happens to be Investigating Officer and he has supported the investigation done by him. He has proved the fardbayan (Ext. 5), endorsement made on the fardbayan (Ext. 5/1), formal F.I.R. (Ext.6), two seizure lists (Ext.7 & 7/1). The Investigating Officer has further admitted that blood stained cloths of the deceased were sent for its chemical examination to F.S.L. but till submission of charge-sheet he did not receive the report. Investigating Officer has described the place of occurrence. He has also proved the inquest report. From perusal of evidence available on record, we feel no hesitation to observe that prosecution has successfully brought home the charges leveled against the appellants and prosecution evidence stand intact. The learned Additional Sessions Judge has elaborately discussed the evidence available on record and meet out the points raised by Counsel appearing from both sides. The reasoning behind the findings appears tenable and, therefore, we do not find any merit in this appeal and the same stands dismissed. The judgment of conviction and order of sentence dated 23rd June, 2006 and 28.06.2006 respectively passed by the IInd Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions Trial No. 255/328 of 2004 is hereby upheld.