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2018 DIGILAW 2535 (JHR)

Nilu Murmu Alias Milu Murmu v. State Of Jharkhand

2018-11-22

KAILASH PRASAD DEO

body2018
JUDGMENT Kailash Prasad Deo, J. - The instant Criminal Appeal has been preferred against the judgment of conviction dated 22.01.2004 and order of sentence, dated 23.01.2004, passed by learned Additional Sessions Judge-IV, Fast Track Court, Jamtara, in Sessions Case No. 38 of 2003, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 376 and 341 of the Indian Penal Code and has been awarded rigorous imprisonment for seven years for the offence committed and punishable under Section 376 of the Indian Penal Code and rigorous imprisonment for one month for the offence committed and punishable under Section 341 of the Indian Penal Code and both the sentences are directed to run concurrently. 2. The prosecution case is based upon the fardbeyan of Savitri Hansda (P.W. 9) before the Officer-in-Charge, Jamtara Police Station on 27.08.2002 at around 13.00 Hrs. The informant has alleged that while she (after working as a labourer) was returning to her house on 23.08.2002 (Friday) at around 20.00 Hrs., covillager Nilu Murmu @ Milu Murmu caught hold of her and dragged her towards the forest and committed rape upon her. She has further alleged that accused has also threatened to kill her. The informant has stated that one co-villager namely Daroga Baski came for rescue, but he was threatened by the accused and thus, Daroga Baski has fled away. The informant was restrained for whole night and raped against her will by the accused. The victim has subsequently asked the accused to solemnize marriage with her, as he has committed rape upon her but the accused refused to do so. The informant has further stated that accused has taken her to Jamtara station and left her in the train. The victim could not work on that day and returned to her house in the evening and disclosed the matter to her mother and father. They have informed the villagers and subsequently a panchayati was convened, where the people have asked the appellant Nilu Murmu to solemnize marriage with the victim but the accused/appellant has refused. Thereafter, people asked the informant to proceed in accordance with law. 3. On the basis of the fardbeyan of the informant-victim, police has instituted Jamtara P.S. Case No. 165 of 2002 dated 27.08.2002, under Section 376 of the Indian Penal Code against Nilu Murmu @ Milu Murmu. 4. Thereafter, people asked the informant to proceed in accordance with law. 3. On the basis of the fardbeyan of the informant-victim, police has instituted Jamtara P.S. Case No. 165 of 2002 dated 27.08.2002, under Section 376 of the Indian Penal Code against Nilu Murmu @ Milu Murmu. 4. After investigation, the police has submitted charge sheet against the appellant Nilu Murmu @ Milu Murmu vide charge sheet no. 162 of 2002, dated 30.11.2002, under Sections 376/ 342 of the Indian Penal Code. Further, it is relevant to mention here that during investigation the informant was examined under section 164 CrPC, 1973 on 31.08.2002 and the said statement of the victim, recorded under section 164 CrPC, 1973 has been proved and marked as Exhibit- 5 by P.W. 13 Sanjay Kumar Singh, learned Judicial Magistrate. 5. The cognizance of the offence has been taken vide order dated 13.12.2002 and the case has been committed to the Court of Sessions vide order dated 05.04.2003. 6. The charge has been framed against the accused/appellant under Sections 376 and 342 of the Indian Penal Code vide order dated 04.06.2003, to which the accused/appellant has pleaded his innocence and thus, he was put under trial. 7. The prosecution, to prove its case, has examined altogether fourteen witnesses and exhibited a number of documentary evidence up to Exhibit- 6. Daroga Baski has been examined as P.W. 1. As per the fardbeyan of the informant, he is an eye-witness to the occurrence to the effect that the accused/appellant has dragged the informant towards the forest forcibly, which was protested by this witness but this witness while examining as P.W. 1 has not supported the prosecution case and has been declared hostile by the prosecution. Suniti Baski, Pradhan of the village, has been examined as P.W. 2. This witness is a hearsay witness, who knew about the occurrence from the father of the victim namely Janki Hansda (P.W. 7). Biru Marandi has been examined as P.W. 3. He was the witness of the panchayati, where this witness has heard from people that appellant Nilu Murmu @ Milu Murmu has committed rape upon the victim, Savitri Hansda. Nunulal Hansda has been examined as P.W. 5. He was also a witness to the panchayati where the victim Savitri Hansda has disclosed that appellant Nilu Murmu @ Milu Murmu has committed rape upon her. Nunulal Hansda has been examined as P.W. 5. He was also a witness to the panchayati where the victim Savitri Hansda has disclosed that appellant Nilu Murmu @ Milu Murmu has committed rape upon her. The witnesses of the panchayati asked the appellant for solemnizing marriage as requested by the victim, upon which the appellant has refused and thus, the person present in the panchayati asked the informant to proceed in accordance with law. Similar statement has been given by Lakhiram Murmu, who has been examined as P.W. 6. He was also a witness of the panchayati. These two witnesses have not been cross-examined by the defence nor the accused present in the dock has asked any question rather the court has only cross-examined them, where both the witnesses have admitted their presence in the panchayati. Saheblal Marandi has been examined as P.W. 4 and has been declared hostile by the prosecution. Janki Hansda has been examined as P.W. 7 and Maloti Murmu has been examined as P.W. 8, the father and mother of the victim respectively and they have supported the prosecution case as made out in the fardbeyan of the informant, Savitri Hansda. These two witnesses have also not been crossexamined by the defence, as on repeated calls lawyer for the accused did not appear and the accused present in the dock, has not asked any question. Informant Savitri Hansda has been examined as P.W. 9. She has supported her fardbeyan and has identified the accused present in the dock. She was cross-examined by the defence. She has categorically stated in paragraph- 10 of her cross-examination that accused has not allowed her to raise brawl as accused was giving threatening with dire consequences. She has further stated that while the accused was committing rape, she has protested. In the entire lengthy cross-examination of the victim by the defence nothing has been elucidated to disbelieve the prosecution case. Dr. Kumari Asha, Medical Officer, who has medically examined the victim on 28.08.2002, has been examined as P.W. 10 and proved the injury report, which has been marked as Exhibit- 1. The doctor has not found any injury on private part or any part of the victim but her petticoat (blue in colour) has white spots, which has been sent for chemical examination by the police to Forensic Science Laboratory, Ranchi to know, whether, white spots are semen or other thing. The doctor has not found any injury on private part or any part of the victim but her petticoat (blue in colour) has white spots, which has been sent for chemical examination by the police to Forensic Science Laboratory, Ranchi to know, whether, white spots are semen or other thing. The doctor has explained regarding absence of any foreign hair on the private part of the victim as the victim has washed her private part on 24.08.2002 in the morning. The occurrence is of the night of 23.08.2002 to 24.08.2002. This witness was cross-examined by the defence. This witness has stated in paragraph- 3 of her cross-examination, that it is not essential that mark of violence would be apparent on the victim lady. If the victim lady get frightened and the surface is smooth, there may not be any abrasion on the body of the victim. Nothing has been elucidated by the defence during cross-examination of this witness to disbelieve the prosecution case. Mukesh Chandra Kuwar, Sub-Inspector of Police has been examined as P.W. 11. He has proved the handwriting and signature of the then Officer-in-Charge, Surya Bhushan Sharma on the formal F.I.R. which has been proved and marked as Exhibit- 2. The fardbeyan of the informant recorded by the then Officer-in-Charge, Surya Bhushan Sharma has been proved and marked as Exhibit- 3. This witness has proved the seizure list in his hand-writing and signature which has been proved and marked as Exhibit- 4. The seized material i.e. the petticoat stained with white spot has been sent to the Forensic Science Laboratory, Ranchi for chemical examination by the order of learned Chief Judicial Magistrate, Jamtara vide memo No. 229/2002 through constable no. 23, Gardi Sirka. This witness was also cross-examined by the defence but nothing has been elucidated by the defence to disbelieve the prosecution case. Sanjeev Kumar Sinha, the investigating officer of the case, has been examined as P.W. 12. This witness has supported the prosecution case and explained the place of occurrence as Suyaldih Forest, a lonely place having trees of Palash and he has found the grass to be crushed and after recording the statement of witnesses, this witness has handed over the charge to Sub-Inspector Mukesh Chandra Kuwar, who has subsequently investigated the case and submitted the charge-sheet. Sanjay Kumar Singh, learned Judicial Magistrate has been examined as P.W. 13. Sanjay Kumar Singh, learned Judicial Magistrate has been examined as P.W. 13. This witness has recorded the statement of the victim under section 164 CrPC, 1973 during investigation and proved the same, which has been marked as Exhibit- 5. This witness was not cross-examined by the defence though the accused was present in the dock. Sailendra Kumar Sinha, technician of Forensic Science Laboratory, Ranchi has been examined as P.W. 14. He has proved the report signed by Regional Director, E.A. Khan, which has been proved and marked as Exhibit- 6. This witness was cross-examined and on questioning by the Court, this witness has categorically stated that from the report, it is hundred percent proved that petticoat of the victim was having spot of semen. 8. After closure of the prosecution evidence, the statement of the accused /appellant, has been recorded under Section 313 Cr.P.C., 1973 on 08.01.2004, to which the accused/appellant has denied about the occurrence and any legal material against him. 9. After hearing the parties and on perusal of the records, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, convicting the appellant for the offence committed and punishable under Sections 376 and 342 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellant has filed the present criminal appeal, before this Hon''ble Court on 22.03.2004, which was admitted on 08.07.2004 for hearing and prayer for suspension of sentence has been rejected. Subsequently, the appellant has preferred I.A. No. 1975 of 2005, which was disposed of by granting bail to the appellant after suspending the sentence vide order dated 31.01.2006. 10. Heard, learned counsel for the appellant, Mr. Rajeev Lochan, Advocate. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that the fardbeyan of the informant was recorded by the then Officer-in-Charge Surya Bhushan Sharma, who has not been examined in this case. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that the fardbeyan of the informant was recorded by the then Officer-in-Charge Surya Bhushan Sharma, who has not been examined in this case. From perusal of the fardbeyan, which has been proved and marked as Exhibit-3 and the statement of the victim recorded under section 164 CrPC, 1973 by the learned Judicial Magistrate Sanjay Kumar Singh (P.W. 13), which has been proved and marked as Exhibit- 5, there are vital contradictions with respect to the manner of the occurrence. From perusal of the statement of the victim recorded under section 164 CrPC, 1973 it is apparent that the victim is not familiar with Hindi Language, rather she speaks in Santhali and as such, her father has acted as an interpreter in the court during her examination, though no such precaution has been taken by the then Officer-in-Charge, Jamtara, while recording the fardbeyan of the victim. The then Officer-in-Charge Surya Bhushan Sharma has not been examined in this case to prove that he was knowing Santhali Language and as such, the prosecution case, which is based upon the fardbeyan of the informant is not free from genuine suspicion. Learned counsel for the appellant has further submitted that the sole eye-witness Daroga Baski, who has been examined as P.W. 1, has not supported the case of the prosecution and thus has been declared hostile by the prosecution. Learned counsel for the appellant has further submitted that though as per the prosecution case, the victim was raped at a lonely place inside the forest but the Medical Officer, P.W. 10 Dr. Kumari Asha, who has examined the victim and proved the injury report, has categorically stated that she has not found any mark of violence on the person of the victim. Learned counsel for the appellant has thus, submitted that if a victim is raped in such a place, then there must be some mark or scratches on the person of the victim, even caused by the grasses or the bushes. Learned counsel for the appellant has thus, submitted that if a victim is raped in such a place, then there must be some mark or scratches on the person of the victim, even caused by the grasses or the bushes. Learned counsel for the appellant has thus submitted that no such occurrence has taken place rather for solemnizing re-marriage of the victim, whose marriage was earlier solemnized with another person, a false case has been instituted against the appellant to pressurise him to solemnize marriage with the victim. Learned counsel for the appellant has thus submitted that the case may be of consensual sexual relationship between two major persons and when the informant and her father could not succeed in their game plan, a false case has been instituted against the appellant. Thus, the learned counsel for the appellant Mr. Rajeev Lochan, Advocate, has submitted that the appellant is entitled for benefit of doubt and may be acquitted from the charge and conviction levelled against him. 11. Heard, learned counsel for the State, Mr. Azeemuddin, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the materials available on record. Learned counsel for the State has further submitted that victim has supported her fardbeyan during her examination in the court as P.W. 9. Nothing has been elucidated to disbelieve the prosecution case, which is based upon the fardbeyan and evidence of the informant. Defence has never claimed or given any suggestion to the witness (P.W. 9) that fardbeyan is not based on her statement rather a concocted version has been recorded by the Officer-in-Charge, Surya Bhushan Sharma. Learned counsel for the State has further submitted that no foreign hair was found on the private part of the victim as it appears from injury report, which has been proved by P.W. 10, Medical Officer Dr. Kumari Asha. The Medical Officer has stated that because of wash of the private part on 24.08.2002 she has not found any foreign hair on the private part of the victim while examining her on 28.08.2002. Kumari Asha. The Medical Officer has stated that because of wash of the private part on 24.08.2002 she has not found any foreign hair on the private part of the victim while examining her on 28.08.2002. The investigating officer (P.W. 14) has categorically stated that he has inspected the place of occurrence, which was in a lonely place, surrounded by palash trees and has found the place of occurrence to be grassy, which was found crushed by the investigating officer. Learned counsel for the State has thus submitted that such grassy place of occurrence coupled with the fact, that the victim was frightened, no such mark, would be found on the person of the victim. Learned counsel for the State has further submitted that the blue petticoat of the victim, which was seized by the police and sent for chemical examination and its report showing presence of semen thereof have been proved and marked Exhibit- 4 and 6 respectively. The seizure of the blue petticoat has been proved by prosecution witness Mukesh Chandra Kuwar (P.W. 11), which has been marked as Exhibit- 4. The forensic report has been proved by Shailendra Kumar Sinha(P.W. 14), Forensic Expert which has been marked as Exhibit- 6. Learned counsel for the State has further submitted that though P.W. 1 Daroga Baski and P.W. 4 Saheblal Marandi have been declared hostile by the prosecution but P.W. 2 Suniti Baski, Pradhan of the village, P.W. 3 Biru Marandi, P.W. 5 Nunlal Hansda and P.W. 6 Lakhi Ram Murmu, who are co-villagers and witnesses of the panchayati have supported the prosecution case and have stated in the Court, that victim Savitri Hansda has alleged against the appellant Nilu Murmu @ Milu Murmu for commission of rape against her will in the panchayati and has also requested him to solemnize marriage, which was refused by the accused/appellant and thus the people present in the panchayati have directed to take legal recourse. These witnesses have not been cross-examined by learned counsel for the defence nor by the accused/appellant present in the dock rather they have been examined by the court and they have categorically stated their presence in the panchayati. P.W. 7 Janki Hansda (father of the informant) and P.W. 8 Maloti Murmu (mother of the informant) have also supported the prosecution case as stated by the victim Savitri Hansda. P.W. 7 Janki Hansda (father of the informant) and P.W. 8 Maloti Murmu (mother of the informant) have also supported the prosecution case as stated by the victim Savitri Hansda. They have also not been cross-examined by the learned counsel for the defence nor by the accused/appellant present in the dock. P.W. 9 Savitri Hansda, victim has been cross-examined by the learned counsel for the defence and she has supported her case. In paragraph- 10 of her cross-examination, the victim has stated that she was not allowed to raise brawl because of threat given by the accused/appellant, while rape was committed against her will, she has also made protest but was assaulted and restrained by the appellant for whole night and was raped by the accused/appellant. The doctor (P.W. 10) has proved the injury report of the victim as Exhibit- 1. Mukesh Chandra Kuwar (P.W.11) is the second investigating officer, who has submitted the chargesheet after investigation of the case. Sanjeev Kumar Sinha (P.W.12) is the first investigating officer, who has inspected the place of occurrence and found place of occurrence as crushed grassy place and also recorded the statement of witnesses, who have supported the prosecution case. Sanjay Kumar Singh (P.W.13) is the learned Judicial Magistrate, who has recorded the statement of the victim under section 164 CrPC, 1973 on 31.08.2002 and proved the same, which has been marked Exhibit- 5. Shailendra Kumar Sinha (P.W. 14) is the technician of Forensic Science Laboratory, Ranchi, who has proved the report written by regional Director E.A. Khan mentioning the white spot found on the blue petticoat as semen and brought on record as Exhibit- 6, as such, the learned trial court has rightly passed the impugned judgment of conviction and order of sentence, which does not warrants any interference by this Hon''ble Court at this stage. 12. Heard, learned counsel for the appellant, Mr. Rajeev Lochan, Advocate and learned counsel for the State, Mr. Azeemuddin, Additional Public Prosecutor and perused the evidence brought on records including the F.I.R., framing of charge, evidence of fourteen prosecution witnesses, six prosecution exhibits, statement of the appellant recorded under Section 313 Cr.P.C., 1973 and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. Azeemuddin, Additional Public Prosecutor and perused the evidence brought on records including the F.I.R., framing of charge, evidence of fourteen prosecution witnesses, six prosecution exhibits, statement of the appellant recorded under Section 313 Cr.P.C., 1973 and the impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. From perusal of the materials available on record, this Court has found minor discrepancies in the evidence of the informant in her fardbeyan i.e. Exhibit- 3 and the statement of the victim recorded under section 164 CrPC, 1973 i.e. the Exhibit- 5 but that is not fatal for the prosecution. The case of the prosecution has been supported by the informant, which is based upon her fardbeyan and also while examining in the Court as P.W. 9. The father and mother of the victim, who have been examined as P.W. 7 and P.W. 8 namely Janki Hansda and Maloti Murmu respectively have also supported the case of the prosecution. P.W. 2 Suniti Baski, Pradhan of the village, P.W. 3 Biru Marandi, P.W. 5 Nunlal Hansda and P.W. 6 Lakhi Ram Murmu have been examined in this case and they are the witnesses, who were present at the panchayati and have supported the version of the victim Savitri Hansda made in the panchayati against the appellant Nilu Murmu @ Milu Murmu. The investigating officers P.W. 11 Mukesh Chandra Kuwar and P.W. 12 Sanjay Kumar Sinha have also supported the prosecution case and the statement of the victim recorded under section 164 CrPC, 1973 has been proved by the learned Judicial Magistrate, Sri Sanjay Kumar Singh (P.W. 13) which has been brought on record as Exhibit- 5 i.e. the Forensic Report, which has been proved by P.W. 14 Shailendra Kumar Sinha and marked as Exhibit- 6 in this case, shows presence of semen on blue petticoat of victim. Considering the materials brought on record as discussed above and the submissions made by the learned State counsel has force, as learned trial court has rightly convicted the appellant for the charge under Sections 376 and 342 of the Indian Penal Code. This Court has scrutinized the entire materials, nothing has been found to disbelieve the prosecution case. Considering the materials brought on record as discussed above and the submissions made by the learned State counsel has force, as learned trial court has rightly convicted the appellant for the charge under Sections 376 and 342 of the Indian Penal Code. This Court has scrutinized the entire materials, nothing has been found to disbelieve the prosecution case. The commission of rape has been supported by the informant Savitri Hansda (P.W. 9) coupled with Exhibit-6, which is Forensic Report of white spot on blue petticoat of victim, as semen and non-explanation of false implication of the appellant in his statement recorded under section 313 CrPC, 1973 coupled with the evidence of other prosecution witnesses, are sufficient to prove the case of rape against appellant. 13. Under the aforesaid facts and circumstances, this Court is of the opinion that the impugned judgment of conviction and order of sentence has been rightly passed by the learned trial court on the basis of materials available on record, which requires no interference by this Hon''ble Court. The same is upheld and affirmed by this Court. 14. In the result, the impugned judgment of conviction dated 22.01.2004 and order of sentence, dated 23.01.2004, passed by learned Additional Sessions Judge-IV, Fast Track Court, Jamtara in Sessions Case No. 38 of 2003, arising out of Jamtara P.S. Case No. 165 of 2002 , corresponding to G. R. No. 334 of 2002, is hereby affirmed and upheld. 15. Accordingly, the present criminal appeal is dismissed. 16. The appellant, who is on bail, his bail bond is hereby cancelled to serve out rest of the sentence, as awarded by the learned trial court, by surrendering in the learned court below forthwith. 17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.