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2016 DIGILAW 722 (JHR)

Tambo Kunkal v. State of Jharkhand

2016-04-27

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D.N. Upadhyay, J. - This Cr. Appeal has been directed against the judgment of conviction and order of sentence dated 06.10.2004 and 08.10.2004 respectively passed by the Addl. Sessions Judge, F.T.C.-II at Chaibasa in connection with S.T.No.223 of 2003, corresponding to G.R.No.237 of 2003, arising out of Manjhari P.S. Case No. 11 of 2003 whereby the appellants have been held guilty for the offence punishable under Sections 302/34, 376 (2) (g) and under Section 201 of the Indian Penal Code and sentenced to undergo R.I. for life for each of the offences under Section 302/34 and 376 (2) (g) of the Indian Penal Code and 7 years under Section 201 of the Indian Penal Code. 2. The facts in brief, as it appears from the F.I.R., is that the appellants were having friendship with the deceased and they had been in visiting term to the house of the informant. It is disclosed that on 28.06.2003 at about 4 p.m. the appellants took Jema Mai Birua (deceased) with them. Jema Mai Birua (daughter of the informant) did not return home. Thereafter the informant with his family made a search but could not succeed to find out Jema Mai Birua. On 29.06.2003 in the afternoon Menjo Kui (P.W.7) informed that she had seen dead body of Jema Mai Berua hanging with the branch of 'Jamun' tree. Receiving such information, the informant rushed to the place and saw the dead body of his daughter Jema Mai Berua hanging with the branch of said tree. The police arrived at the place and recorded fardbayan of Selai Birua (P.W.5). On the basis of fardbayan of Selai Birua, Manjhari P.S. Case No.11/2003, under Sections 376/302/34 of the Indian Penal Code was registered. The informant had noticed blood on the finger and found the undergarment wet and semen like thing was visible on it. The police after due investigation submitted charge-sheet against the appellants, under Sections 376 (2) (g), 302/34 of the Indian Penal Code and accordingly cognizance was taken and the case of the appellants was committed to the court of sessions and registered as S.T.No.223/2003. Charges under Sections 376(2) (g)/302/34 and 201 of the Indian Penal Code were framed against the appellants to which they pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether 12 witnesses and Dr. Charges under Sections 376(2) (g)/302/34 and 201 of the Indian Penal Code were framed against the appellants to which they pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether 12 witnesses and Dr. S.C. Arun as Court witness No.1 has been examined. The prosecution has proved postmortem report, seizure list, inquest report, swab test report etc. The learned Sessions Judge placing reliance on the evidence and documents available held the appellants guilty and inflicted sentence as indicated above. 3. Learned Counsel for the appellants has assailed the impugned judgment on the ground that nobody had seen the appellants taking the deceased from her house. There is no eye-witness to the occurrence. The entire prosecution case is banking upon the evidence of P.W.5 and P.W.9. Jambira Kunkal (P.W.3) has turned hostile whereas Chaitan Gope (P.W.4) has been tendered. Chumburu Birua (P.W.6) is the hearsay witness. It is apparent from the evidence on record that appellants were having cordial relation with the family of the informant and they were having friendship with the deceased. No objection from any corner was ever raised against the visit of appellants in the house of informant. No motive has been assigned behind the murder of Jema Mai Birua. No mark of violence has been found on the person of deceased to suggest that she was subjected to gang rape. Since the deceased felt herself always comfortable with the appellants, question of committing rape on her does not arise and that could not be a motive for the appellants to commit murder. Nothing incriminating has been recovered from possession of any of the appellant. Learned Addl. Sessions Judge has erred in holding the appellants guilty by placing reliance on the circumstantial evidence which is not consistently and unerringly pointing out towards the guilt of appellants. The appellants are languishing in jail since about 13 years. 4. Learned A.P.P. has opposed the argument and submitted that the evidence on record unerringly proves the guilt of appellants. They took the deceased with them on 28.06.2003 and thereafter Jema Mai Birua did not return alive. In presence of Somwari Kui (P.W.9), who happens to be mother of deceased, Jema Mai Birua left home in the company of these appellants. This fact find support from the evidence of P.W. 5 also. The hearsay witnesses have supported the prosecution case. They took the deceased with them on 28.06.2003 and thereafter Jema Mai Birua did not return alive. In presence of Somwari Kui (P.W.9), who happens to be mother of deceased, Jema Mai Birua left home in the company of these appellants. This fact find support from the evidence of P.W. 5 also. The hearsay witnesses have supported the prosecution case. The documents which have been marked exhibits, particularly, Ext. 8 and Ext. 1 and 1/1 are relevant. The prosecution has proved the fardbayan and the signature of attesting witnesses appearing on the fardbayan. The postmortem report and vaginal swab report clearly suggest that the deceased was subjected to rape before her murder. According to postmortem report, cause of death was asphyxia as a result of strangulation. The case of the prosecution against the appellants is well proved and there is no merit in this appeal. 5. We have examined the evidence and material available on record and we find force in the submission of learned A.P.P. It reveals from the fardbayan that the appellants were in visiting term to the house of informant and they were conformable with the deceased. It further transpires from deposition of P.W.9 that appellants were relative of Budhni (wife of younger brother of informant). Since the appellants were relative of the informant, their visit to the house was common and taking advantage of situation they developed friendship with the deceased. The informant (P.W.5) has confirmed this fact, on the date of occurrence i.e. on 28.06.2003 both the appellants had come to the house of informant. The deceased left home in the company of appellants at about 4 p.m. on 28.06.2003 but did not return home alive. This contention of informant find support from evidence of P.W.9, who happens to be mother of the deceased and she was present in the house at the time the deceased left home. P.W.9 has clearly stated that in her presence the appellants took the deceased with them, therefore, consistent evidence on record is that on 28.06.2003 at about 4 p.m. the appellants took the deceased with them thereafter Jema Mai Birua did not return home alive. On the following day in the afternoon dead body of Jema Mai Birua hanging with a Jamun tree was seen by Menjo Kui (P.W.7), who immediately informed the informant and his family members. They reached to the place and found the information correct. On the following day in the afternoon dead body of Jema Mai Birua hanging with a Jamun tree was seen by Menjo Kui (P.W.7), who immediately informed the informant and his family members. They reached to the place and found the information correct. In the meantime, police also arrived at the place and recorded fardbayan of Selai Birua (P.W. 5) in presence of witnesses, namely, Chumburu Birua (P.W.6), Kushal Chandra Karmakar (P.W.11) and Durlabh Bandhoo Birua (P.W.2) and all these three attesting witnesses have supported the prosecution case as brought on record by the informant. Most important witness is Dr. B.K.Singh (P.W.1) and Court witness No.1 Dr. S.C.Arun. The postmortem on the dead body of Jema Mai Birua was done by a Medical Board headed by C.W.No.1 (Dr. S.C.Arun) assisted by Dr. B.K.Singh (P.W.1) and Dr. B.K.Sahni. C.W.1 has proved his signature as well as signature of Dr. B.K.Singh and Dr. B.K.Sahani appearing on the postmortem report marked exhibits 1 /2, 1/3 and 1/ 4. C.W.1 has further reiterated that ext. 1 postmortem report was prepared by him. Pathological examination was conducted by Dr. P.Ranjan and vaginal swab report was prepared by him and that report has been marked ext. 8. According to vaginal swab report, dead spermatozoa were found in the vaginal sample. Plenty of epithelial cells were in the background. Death of Jema Mai Birua was caused due to asphyxia as a result of strangulation. The Doctors who conducted postmortem examination have supported this fact that the deceased was subjected to rape prior to her death. Durlabh Bandhoo Birua (P.W.2) has proved his signature as well as signature of Chumburu Birua (P.W.6) appearing on the inquest report. The Investigating Officer has been examined as P.W. 12 and he has fully supported the investigation done and proved fardbayan (Ext. 3), endorsement made on the fardbayan (ext.3/1), inquest report (ext.4), production cum seizure list (ext.5), formal F.I.R. (ext.6) and para 77 to 89 of the case diary (ext.7). The prosecution has successfully proved that Jema Mai Birua (deceased) was taken by these appellants on 28.06.2003 at 4 p.m. from her house and she did not return home alive. Postmortem report, inquest report and the vaginal swab report proved that she was subjected to rape prior to her death and her death was homicidal caused by strangulation. The prosecution has successfully proved that Jema Mai Birua (deceased) was taken by these appellants on 28.06.2003 at 4 p.m. from her house and she did not return home alive. Postmortem report, inquest report and the vaginal swab report proved that she was subjected to rape prior to her death and her death was homicidal caused by strangulation. Considering the evidence and documents available on record, we feel no hesitation to observe that heinous crime like gang rape with murder has been committed and the prosecution has proved its case beyond shadow of all reasonable doubts against both the appellants. We do not find merit in this appeal and the same stands dismissed. Appeal dismissed.