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2018 DIGILAW 150 (JHR)

Sadanand Patro v. State Of Jharkhand

2018-01-17

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. – Heard learned counsel for the appellant and learned Addl. PP for the State. 2. This appeal has been preferred by the appellant against the Judgment of conviction dated 19.04.2004 and order of sentence dated 21.04.2004 passed by the 1st Additional Sessions Judge, Jamshedpur, in S.T. No. 212 of 2003,Whereby and whereunder, the court below has convicted the sole appellant for the offence punishable under section 376 of the I.P.C and Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced him to undergo R.I. for seven years for the offence punishable under Section 376 of the I.P.C, R.I. for one year for the offence punishable under Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. The prosecution based on the fardbeyan of the informant is that in the intervening night of 16-17th March, 2003 in village Narge, Tola Baridih, a drama programme was being held in connection with celebrating the Bahe festival and the victim also went there to watch the drama programme. During the said programme, she went to attend the call of nature behind a truck parked near the place of occurrence. It is alleged that the appellant went there and caught hold of the informant and the forcibly took her towards Putush shrubs and committed rape on her. The victim raised alarm. Thereupon the members of the Committee, which was organizing the drama programme, arrived there and brought both the victim and the appellant before the members of the committee. After some time, eight to ten persons came to the place of occurrence and forcibly took away the appellant. On receiving information Mango police arrived at village Narga Tola, Saridih and recorded fardbeyan of prosecutrix and basing upon the same Mango (M.G.M.) P.S. case No. 62 of 2003 corresponding to G.R. No. 458 of 2003 was registered and the police took up investigation of the case. After completion of the investigation, the police submitted charge sheet and the case was committed to the court of Sessions. Charge for the offence punishable under Section 376 I.P.C. and Section 3(1) (xii) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 was framed and upon the appellant denying the charges, he was put to trial. 4. After completion of the investigation, the police submitted charge sheet and the case was committed to the court of Sessions. Charge for the offence punishable under Section 376 I.P.C. and Section 3(1) (xii) of the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act, 1989 was framed and upon the appellant denying the charges, he was put to trial. 4. In support of its case, the prosecution altogether examined ten witnesses including the prosecutrix, doctor and the Investigating Officer. Out of ten witnesses examined by the prosecution, P.W.2-Gorachand Hembrom, P.W.3- Karu Ram Murmu, P.W.4- Thakur Munda, P.W.5- Biram Tudu, P.W.7- Raghu Besra, P.W.8- Piru Tudu are all either members of the committee organizing the drama programme or went there to watch the programme. They have all stated that they went after the alarm being raised by the prosecutrix and they found the prosecutrix and the appellant near the Putush bush about 100 yards from the place of occurrence and the prosecutrix told them that the appellant committed rape on her but none of them have seen the occurrence. In their cross-examination it was suggested by the defence that this case has falsely been foisted as there is dispute between the tribals and non-tribals. 5. P.W. 6 is the prosecutrix herself. She has stated that the occurrence took place about nine months prior to her deposition. She deposed that at about 3.00 A.M., while she went to attend the call of nature at some distance of the drama programme, the appellant caught hold of her and after gagging her mouth with hand, he dragged her towards the putush bush and committed rape on her. After the appellant removed his hand from her mouth, she raised alarm and on raising alarm, many volunteers came from the drama programme and caught hold of the appellant and took both the prosecutrix and the appellant to the committee members and made them sit there. After some time, one Badal Patro and other persons came there and after assaulting, forcibly got the appellant released. She further stated that the police was informed and the police arrived at 6.00 A.M. She identified the appellant in the court. In her cross-examination, she has stated that her statement was recorded under Section 164 Cr.P.C, with the help of an interpreter. She stated that at time of occurrence, she was wearing sari which became dirty during the occurrence. She further stated that the police was informed and the police arrived at 6.00 A.M. She identified the appellant in the court. In her cross-examination, she has stated that her statement was recorded under Section 164 Cr.P.C, with the help of an interpreter. She stated that at time of occurrence, she was wearing sari which became dirty during the occurrence. Police took her saya (petticoat). She sustained some abrasion on her back, hand and cheeks. Her clothes were stained with blood. The appellant told him that if she does not agree, he will assault her with knife but at that time, the appellant was not having any knife. When the appellant was taking her away after gagging her mouth, she fell down and the appellant dragged her to a distance. She also sustained some injuries on her feet by Putush bush. She showed all her injuries to the doctor. The stage is not visible from the place where the appellant gaged her mouth. She did not know the appellant before the occurrence. 6. P.W.9- Dr. Saroj Saha is the Medical Officer of M.G.M. Medical College Hospital Jamshedpur, who examined the victim at 7.30 PM on 17th March, 2003. He has stated that there was one linear abrasion of 1 c.m. in length 1/2" below and lateral to left ala of nose. It was covered with brown scab. About this injury, in his cross examination, he has stated that the age the said injury was more than 24 hours. He further submitted that there was no other external injury on the body of the prosecutrix. On local examination, P.W. 9 found hymen ruptured and vagina admitting two fingers easily. No foreign material or hair found in the vagina, no injury on her private parts including vagina, vulva and thighs. As per investigation report, vaginal swab shows no presence of spermatozoa. The doctor assessed the age of the victim between the 18-19 years but he could not express any definite opinion about the commission of rape. The injury report prepared by him has been marked as Exhibit 2. In his cross examination, he has stated that the victim was habitual for intercourse. She has not borne any other injury on her body. The injury report prepared by him has been marked as Exhibit 2. In his cross examination, he has stated that the victim was habitual for intercourse. She has not borne any other injury on her body. To a question from the court, P.W. 9 has stated that there was no tenderness and abrasion and swelling on her private parts and on the basis of pathological report, he has stated that no spermatozoa was found-dead or alive. 7. P.W. 10- Rama Shankar Dubey is the first I.O. of the case, in his deposition, he has stated that he was entrusted with the investigation of the case on 17.03.2003 at the place of occurrence by the officer-in-charge of the police station. Apart from him, the officer-in-charge of the police station and other police officers went to the place of occurrence. He inspected the place of occurrence along with the victim, witness and the Deputy Superintendent of Police. He described the place of occurrence with boundaries. He arrested the appellant on 15.04.2003 as the appellant voluntarily surrendered in the police station. As per the order of the Superintendent of Police, he handed over the investigation of the case to Mr. M.P. Lakra, the Deputy Superintendent of Police on 16.04.2003. In his cross examination he stated, that he reached at the place of occurrence at 14.00 hours on 17.03.2003 on getting anonymous information. He got the information at 6.30 A.M., when he was present in the police station and station diary entry was made on receiving the information. He further stated that he has given description of the place of occurrence from his memory. He has not mentioned the description of the place of occurrence in the case diary. He does not know Santhali language. 8. P.W. 1 is the second Investigating Officer of the case, namely M. P. Lakra. He has deposed that on 17.03.2003, Arun Kumar Sahay made an endorsement on the written report identified by him, and the same has been marked as Exhibit 1. P.W. 1 visited place occurrence on 16.04.2003. In his cross examination, he has not stated anything of importance. 9. After recording evidence of prosecution, the statement under Section 313 Cr.P.C of the appellant was recorded wherein he denied the materials appearing in evidence against him. 10. P.W. 1 visited place occurrence on 16.04.2003. In his cross examination, he has not stated anything of importance. 9. After recording evidence of prosecution, the statement under Section 313 Cr.P.C of the appellant was recorded wherein he denied the materials appearing in evidence against him. 10. Learned counsel for the appellant submitted that the case of the prosecution is unnatural and since admittedly, the mike of the drama programme was at high pitch, it was not possible for anyone to hear alarm of the victim lady. It was further submitted that testimony of P.W.6 has been falsified by the report of her medical examination wherein, no injury has been found on her body by the doctor. Further no sign of rape has been found rather she was found habitual to sexual intercourse. It was also submitted that there is delay in lodging the FIR and has resulted in embellishment and false implication of the appellant as an afterthought. It was further submitted that though admittedly, there was station diary entry in respect of the alleged occurrence but the same has been withheld from the court for suppressing the truth and establishing a false. Further it is submitted that the statement recorded under section 164 Cr.P.C. of the victim girl, wherein she did not state about commission of rape on her, has also been withheld by the prosecution with an ulterior motive of suppressing the truth and to ensure the conviction of the appellant. It was further submitted that there is discrepancy as to when the police recorded farbeyan of the prosecutrix. There is also discrepancy regarding the place of occurrence and doubt is created as to when the Investigating Officer visited the place of occurrence as P.W. 10 who is the 1st I.O. of the case has categorically admitted that he has not mentioned the place of occurrence in his case diary and the 2nd I.O. has stated that as 1st I.O. has already visited the place of occurrence hence he has not mentioned the description of the place of occurrence in the portion of the case diary written by him. It was also submitted that all the material witnesses examined in this case belong to the tribal community though it is specific case of the defence that this case has falsely been instituted because of the rivalry between the tribals and non-tribals. It was also submitted that all the material witnesses examined in this case belong to the tribal community though it is specific case of the defence that this case has falsely been instituted because of the rivalry between the tribals and non-tribals. Hence, it is submitted that this is a fit case, where the appellant be acquitted by giving him at least the benefit of doubt. 11. Learned Addl. PP on the other hand defended the impugned judgment and submitted that the prosecutrix has categorically stated about commission of rape by the appellant on her and other post occurrence witnesses have also supported about the commission of rape by the appellant. Hence, it is submitted that the appellant has rightly been convicted and sentenced by the court below. 12. After giving anxious consideration to the rival submissions made at the bar, I find that the doctor- P.W. 9, who examined the prosecutrix, has not found any sign of rape. The station diary entry which was made prior to the institution of FIR as well as the statement under section 164 Cr.P.C of the victim has been withheld from the court without any plausible reason creates a doubt about the case of the prosecution. There is discrepancy in the evidence of the witness of the prosecution as to when the police reached the place of occurrence because P.W. 10 has stated that officer in charge of the police station was at the place of occurrence at 9.00 am on 17.03.2003 and he reached at the place of occurrence at 2.00 P.M., so it remains unexplained as how and where the P.W. 10 recorded the fardbeyan of the informant at 9.00am on 17.03.2003. Though the PW 10 was examined in this case still he has not proved the fardbeyan of the informant recorded by him without any plausible reason this appears to be a deliberate omission to suppress the truth. Further perusal of the record reveals that though the FIR was registered on 17.03.2003 yet the same was placed before the Magistrate only on 21.03.2003 this is also a factor which magnifies the doubt about the case of the prosecution. Further perusal of the record reveals that though the FIR was registered on 17.03.2003 yet the same was placed before the Magistrate only on 21.03.2003 this is also a factor which magnifies the doubt about the case of the prosecution. As a cumulative effect of the aforesaid facts and circumstances of the case I have no hesitation in holding that this is a fit case where the appellant be acquitted of charges by giving him the benefit of doubt, in respect of the charges for the offences punishable under Section 376 of the IPC and also under Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of atrocities) Act, 1989. 13. Accordingly, the impugned Judgment of conviction dated 19.04.2004 and order of sentence dated 21.04.2004 passed by the 1st Additional Sessions Judge, Jamshedpur, in S.T. No. 212 of 2003, being not sustainable in law, are hereby, set aside and the appellant-accused is acquitted of both the charges. The appellant is on bail and since his conviction and sentence has been set aside, the appellant is discharged from the liabilities of his bail bond. 14. Let the original Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. 15. This appeal is, accordingly, allowed.