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2018 DIGILAW 2428 (JHR)

Kana Nayak v. State of Jharkhand

2018-11-01

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : All these three appeals, arise out of the same impugned Judgment, and as such, we have heard them together and they are being disposed of by this common Judgment. 2. Heard learned counsel for the appellants and learned counsel for the State. 3. The appellants are aggrieved by the impugned Judgment of conviction dated 25.02.2009 and Order of sentence dated 26.02.2009, passed by the learned Addl. Sessions Judge II, Chaibasa, in S.T. Case No. 19 of 2006, whereby, the appellants have been found guilty and convicted of the offences under Sections 376(G) [sic - should be Section 376(2)(g)], 302/34 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, these appellants have been sentenced to undergo RI for ten years and fine of Rs.5000/- each, for the offence under Section 376(2)(g) of the Indian Penal Code. They were also sentenced to undergo imprisonment for life and fine of Rs.5000/- each, for the offence under Sections 302/34 of the Indian Penal Code, and further sentenced to RI for five years and fine of Rs.3000/- each, for the offence under Section 201 of the Indian Penal Code, and all the sentences were directed to run concurrently. 4. The prosecution case was instituted on the basis of the fardbeyan of the informant Laxman Gundua, recorded on 29.08.2005 at about 11:00 hours, at village Raghunathpur, P.S. Goilkea, District West Singhbhum, wherein it is stated that on 26.08.2005 at about 8:00 to 9:00 P.M., the informant was at his house preparing bidis, when the accused Angad Nayak, Antu Nayak and Kana Nayak came there in drunken state, demanding bidi, and it is alleged that during talks, Angad Nayak disclosed that they had committed rape upon the wife of Tappu Boipai, while she was returning from Goilkera haat, and when she stated that she would disclose the matter to her husband and villagers, they committed her murder by strangulating her and had hanged the dead body on the tree with the help of her saree. The informant confronted the accused whether he was speaking the truth, upon which he confirmed his statement, stating that they had made three cuts on the legs of the deceased by blade, which could be seen. Thereafter, the informant called his uncle Satrughan Gundua and one Kawilas Nayak, the brother-in-law of the accused Angad Nayak, but they did not come. The informant confronted the accused whether he was speaking the truth, upon which he confirmed his statement, stating that they had made three cuts on the legs of the deceased by blade, which could be seen. Thereafter, the informant called his uncle Satrughan Gundua and one Kawilas Nayak, the brother-in-law of the accused Angad Nayak, but they did not come. On the next day, which was a Saturday, everyone in the village knew that the dead body of the deceased lady was hanging on a tree, but he did not disclose these facts to anyone due to fear. Thereafter there was a meeting in the village, in which, he disclosed the facts to the villagers. On the basis of the fardbeyan of the informant, Goilkera P.S. Case No. 27 of 2005, corresponding to G.R. No. 243 of 2005, was instituted against the named accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet against all the three accused persons. 5. After commitment of the case to the Court of Session, charge was framed against all the three accused persons for the offences under Sections 376(G), [should be Section 376(2)(g)], 302/34 and 201 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, twelve witnesses were examined by the prosecution, including the IO and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 6. P.W.-4 Laxman Gundua is the most important witness in this case. This witness is the informant of the case, and has stated that the occurrence had taken place one and half years ago on a Friday. He was preparing bidis in his house, when three accused Angad, Antu and Kana came and demanded bidi. They were in drunken state and Angad informed that they had committed rape upon the wife of Tappu Boipai, while she was returning from Goilkera market, and when she told that she would inform her husband and villagers, they killed her by strangulating her, cut her thigh by blade, and hanged the dead body on a tree with the help of her saree. On the next day, i.e., on Saturday, the villagers knew about the fact that the dead body of the deceased was hanging on a tree. On the next day, i.e., on Saturday, the villagers knew about the fact that the dead body of the deceased was hanging on a tree. On Sunday, dead body was taken down from the tree and there was a meeting in the village, in which this witness had disclosed the fact to the villagers. His statement was recorded by the police on which, he had put his signature. He has identified his signature on the fardbeyan, which was marked as Ext.-2. This witness has identified all the three accused in the court. In his cross examination, this witness has stated that when the accused had disclosed the fact at the house of this witness, his wife and children were also present, but his wife did not hear this fact. He has stated that he had informed the brother-in-law of the accused Angad about this fact, but he did not inform the village Munda. He did not inform this fact to any one even on the next day. The meeting in the village was held on Monday, in which he had disclosed the fact. In the meeting, the accused persons were not present. He has denied the suggestion of giving false evidence. 7. P.W.-1 Budhram Gundua, P.W.-6 Dilip Kumar Nayak and P.W.-7 Basudeo Nayak have stated that they had attended the meeting relating to the murder of the deceased, but they were informed nothing about the occurrence in the said meeting. P.W.-2 Gura Boipai had also stated that he had attended the said meeting in which Laxman gave some information, but what information was given, has not been disclosed by this witness. 8. P.W.-3 Perdesia Boipai and P.W.-5 Dublia Boipai have stated that they had attended the meeting in which the informant Laxman Gundua had informed about the occurrence that these accused persons had committed the rape and murder of the deceased and had hanged the dead body. They had also seen the dead body. P.W.-3 Perdesia Boipai has also stated that he had seen the dead body in which plastic was inserted in the private part and cuts were made by blade on her legs. P.W.-5 Dublia Boipai is the person, who had seen the dead body hanging on the tree and he had informed the villagers. 9. P. W.-9 Dr. P.W.-3 Perdesia Boipai has also stated that he had seen the dead body in which plastic was inserted in the private part and cuts were made by blade on her legs. P.W.-5 Dublia Boipai is the person, who had seen the dead body hanging on the tree and he had informed the villagers. 9. P. W.-9 Dr. J. Srinivas Rao had conducted the post-mortem examination on the dead body of the deceased on 31.08.2005 and had found the following injuries:- The body was highly decomposed and of average built. Skin of the face, out half of head missing. Scalp hair loosened, laying separately, both sockets - empty. Tongue eyes, ears, nose - eaten up by maggots. Right maxilla had only one incisor teeth, 2 left incisor, and one central incisor and rest missing. Peeling of skin at places. Maggots present upon all over the body. External No injury as extremities on deep incision either upper and lower limbs. Internal injuries (i) Contusion of occipital and left temporal region of scalp. (ii) Contusion 3 cm x 3 cm over right side chest below clavicle. (iii) Soft tissue around thyroid cartilage contused. (iv) Fracture of cornu of hyoid bone right side. Mucosa ecchymosed brown and black blood stain over the mucosa of trachia and thyroid (v) Plenty of maggots present in the vaginal canal and vaginal canal was eaten up by maggots. (vi) Internal organs decomposed. This witness has stated that injuries were ante-mortem in nature, caused by hard and blunt substance, and the neck injuries was due to pressure over the neck. Death was due to strangulation manually. He has also stated that opinion regarding sexual violence could not be given due to the fact that the dead body was highly decomposed. However, the vaginal smear was preserved for chemical examination. He has stated that time since death was 4 to 6 days. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-3. 10. P.W.-11 Dr. Hrideyesh Kumar Sinha and P.W.-12 Awni Kant Trivedi are the Scientist and Assistant respectively, of Forensic Science Laboratory, who have proved the serological report of FSL, which was marked as Ext.-9. P.W.-11 Dr. He has proved the post-mortem report to be in his pen and signature, which was marked as Ext.-3. 10. P.W.-11 Dr. Hrideyesh Kumar Sinha and P.W.-12 Awni Kant Trivedi are the Scientist and Assistant respectively, of Forensic Science Laboratory, who have proved the serological report of FSL, which was marked as Ext.-9. P.W.-11 Dr. Hrideyesh Kumar Sinha has stated that semen was found in the vaginal swab of the deceased, which was human semen of Group-B. In his cross examination, he has stated that this semen was of a person having Blood Group-B. 11. P.W.-10 Nirmal Kumar Jha is the I.O. of the case. This witness has stated that on 29.08.2005 he was posted as S.I. in Goilkera Police Station. On that date, the Munda of the village, Mandhata Nayak came and gave the information that the dead body of the deceased was found hanging on a tree. Sanha entry about this information was made and he proceeded towards the place of occurrence. He recorded the statement of Laxman Gundua, and he has proved the fardbeyan which was marked Ext.-4. He has proved the endorsement on the fardbeyan, which was marked as Ext.-5 and has also proved the formal FIR, which was marked as Ext.-6. He prepared the inquest report of the dead body, which he has proved and the same was marked as Ext.-7. He sent the dead body for post-mortem examination. He has given the details of the place where the dead body was found, as also of the place of occurrence. He recorded the statement of the witnesses. He has stated that all the three accused persons had surrendered in the Court, whom he had taken on remand, and had also recorded their statements. He received the post-mortem report and thereafter he handed over the charge of investigation to S.I. Subodh Kumar Singh, who submitted the charge-sheet in the case. In his cross-examination, he has admitted that the accused persons had not admitted their guilt, and he had not recovered any incriminating material. P.W.-8 Subodh Kumar Singh has stated that he had only submitted the charge-sheet in the case. He has stated that he had not made any investigation in the matter. 12. The statements of the accused persons were recorded under section 313 of the Cr.P.C, wherein they have denied the evidence against them. No evidence was adduced by the defence. P.W.-8 Subodh Kumar Singh has stated that he had only submitted the charge-sheet in the case. He has stated that he had not made any investigation in the matter. 12. The statements of the accused persons were recorded under section 313 of the Cr.P.C, wherein they have denied the evidence against them. No evidence was adduced by the defence. On the basis of the evidence on record, the appellants have been convicted and sentenced by the Trial Court below, as aforesaid. 13. Learned counsel for the appellants has submitted that the impugned Judgement of conviction and Order of sentence passed by Trial Court below cannot be sustained in the eyes of law, inasmuch as, there is no direct evidence against the accused persons. It is only the evidence of P.W.-4 Laxman Gundua, who has stated that the information was given to him about the occurrence by accused Angad Nayak, but even the said information was given allegedly on 26.08.2005, but he disclosed this fact for the first time on 29.08.2005, after inordinate delay, for which there is no explanation, except a bald excuse, that he was under the fear. It is submitted by the learned counsel that though it is stated in the FIR that the accused had also informed him that he had cut the leg of the deceased by blade at three places, and P.W.-3 Perdesia Boipai has also claimed to have seen those cut injuries, but the evidence of P.W.-9 Dr. J. Srinivas Rao, and the post mortem-report proved by him as Ext.-3, clearly show that no such cut injury was found on the dead body of the deceased. Learned counsel for the appellants has further submitted that it is an admitted fact that the accused persons had not admitted their guilt before the police, and there is no scientific investigation to connect the appellants with the semen found in the forensic test. Learned counsel, accordingly, submitted that the prosecution has failed to prove the charges beyond all reasonable doubts, and this is a fit case in which the appellants ought to have been acquitted of the charges. 14. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-4 Laxman Gundua, who is the informant of this case, has given the vivid details as disclosed to him by the accused Angad Nayak. 14. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-4 Laxman Gundua, who is the informant of this case, has given the vivid details as disclosed to him by the accused Angad Nayak. As the informant was under the fear, naturally he kept mum. He disclosed the matter to the villagers only in the meeting. Learned counsel submitted that though in the post-mortem examination the evidence of rape could not be found due to the decomposition of the dead body, but in the forensic examination, human semen was found in the vaginal swab of the deceased, which fully proves the prosecution case. Learned counsel accordingly, submitted that prosecution has been able to bring home the charges against the accused persons beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by Trial Court below, worth any interference by this Court. 15. Having heard learned counsels for both the sides and upon going through the record, we find that the case rests only on the evidence of PW-4 Laxman Gundua, who has claimed that the accused Angad Nayak had disclosed the entire occurrence to him. Admittedly, such disclosure, if made by the accused, was made on 26.08.2005, but this witness kept mum and did not disclose it to anyone and it was disclosed for the first time on 29.08.2005, after inordinate delay, and the only excuse that has been given for this undue delay, is due to fear. Even if this disclosure is to be believed, we find that it was also disclosed to the informant that the accused persons had made three cut marks on the legs of the deceased, and P.W.-3 Perdesia Boipai has also claimed to have seen those cut marks on the dead body, but the evidence of PW-9 Dr. J. Srinivas Rao, who had conducted the post-mortem examination on the dead body of the deceased, completely belies this fact, as no such injury was found on the dead body. This apart, it is alleged that all the three accused persons had committed gang rape upon the deceased, before committing her murder, but the evidence of P.W.-11 Dr. J. Srinivas Rao, who had conducted the post-mortem examination on the dead body of the deceased, completely belies this fact, as no such injury was found on the dead body. This apart, it is alleged that all the three accused persons had committed gang rape upon the deceased, before committing her murder, but the evidence of P.W.-11 Dr. Hrideyesh Kumar Sinha, and the FSL report proved by him as Ect.-9, clearly show that there was semen of only one blood group, i.e., Group-B. No semen of any other blood group was found and it is quite unlikely that all the three accused persons must be having the same blood group. There is no scientific investigation on record to connect the accused persons with the semen found in the vaginal swab of the deceased. We also find from the record that husband of the deceased has not been examined in this case, which also goes against the prosecution. In the facts of the case, we are of the considered view that due to undue delay made by P.W.-4 Laxman Gundua, in making the disclosure, as also due to the contradictions pointed out above, his evidence is not at all trust worthy, and cannot be relied upon. As such, the prosecution has failed to bring home the charges against the accused appellants beyond all reasonable doubts, and the appellants were entitled at least to the benefits of doubt. Thus, and the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below, cannot be sustained in the eye of law. 16. For the foregoing reasons, the impugned Judgment of conviction dated 25.02.2009 and Order of sentence dated 26.02.2009, passed by the learned Addl. Sessions Judge-II, Chaibasa, in S.T. Case No. 19 of 2006, convicting and sentencing the appellants Kana Nayak, Angad Nayak and Antu Nayak, for the offences under section 376(G) [should be Section 376(2)(g)], 302/34 and 201 of the Indian Penal Code, are hereby, set aside. Consequently, the appellants are given the benefits of doubt, and they are acquitted of the charges. All the three appellants are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in any other case. 17. All these three appeals are accordingly, allowed. Consequently, the appellants are given the benefits of doubt, and they are acquitted of the charges. All the three appellants are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in any other case. 17. All these three appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this judgment.