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2018 DIGILAW 2561 (JHR)

Khena Kaibarta @ Chhotu v. State of Jharkhand

2018-11-27

H.C.MISHRA, RAJESH KUMAR

body2018
JUDGMENT : Heard learned amicus curiae appointed by the Court for the appellant, and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 5th December, 2007 and Order of sentence dated 10th December, 2007, passed by the learned 1st Addl. Sessions Judge, Seraikella, in Sessions Trial No. 187 of 2005, whereby, the appellant has been found guilty for the offences under Sections 302 and 376(2)(f) of the Indian Penal Code. Upon hearing the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs.10,000/- for each of the offences, and both the sentences were directed to be run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Tilak Toma Kaibarto, the mother of the deceased girl, recorded at her house on 25.09.2005 at 4:00 AM, wherein she has stated that on the previous day, i.e., 24.09.2005, her daughter, aged about 9 years, had gone to take bath in the pond at about 1:00 PM. When her daughter did not return back for a long time, she went to the pond and found that her daughter was taking bath and the accused Khena Kaibarta was sitting on the bank nearby and was eating cucumber. She told her daughter to return back early, and went towards the fields. When she was returning back, she did not find her daughter in the pond, nor the accused was there. She came to her house and did not find her daughter even at the house. By that time, it was about 6:00 PM. She started searching her daughter with the help of some villagers and she could find the dead body of her daughter in the pond, and there was bleeding in her private parts. She brought the dead body to her house. Claiming that the accused had committed rape and murder of her daughter, she gave the fardbeyan to the police, on the basis of which Gamharia P.S. Case No. 98 of 2005, corresponding to G.R. No. 783 of 2005, was instituted against the accused for the offences under Sections 376 and 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet against the accused. 4. After investigation, the police submitted the charge-sheet against the accused. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 and 376 of the Indian Penal Code, and upon the accused’s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, the prosecution has examined eight witnesses, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-4 Anadi Kaibarta has turned hostile and has not supported the prosecution case at all. 5. P.W.-5 Tilak Toma Kaibarta is informant of the case, and the mother of the deceased. This witness has supported the prosecution case, stating that the occurrence had taken place on a Saturday. Her daughter had gone to take bath in the pond at about 1:00 PM, along with her three younger brothers. Her brothers returned back, but her daughter did not return back and thereupon she went to the pond and asked her daughter to return back early. The accused Khena Kaibarta was also sitting on the bank and was eating cucumber. Thereafter, she went towards the fields. When she was returning back, she did not find her daughter in the pond and the accused was also not there. She returned back to her house and did not find her daughter in the house also, but she thought that her daughter might have gone to the neighbouring houses. When she did not return back even upto 6:00 PM, she started searching her in the nearby houses, but she was not found, and then she went towards the pond and found the dead body of her daughter in the pond. She took up the dead body and found bleeding from her private parts. Other villagers had also seen the dead body and brought the dead body to the house. There was strangulating marks on the neck also. Thereafter, she searched for Khena Kaibarta, but she was informed that he was not there in his house since 12:00 PM. Thereafter, the police arrived. She gave her fardbeyan to the police, whereupon she put her thumb impression. She has identified the accused in the Court. There was strangulating marks on the neck also. Thereafter, she searched for Khena Kaibarta, but she was informed that he was not there in his house since 12:00 PM. Thereafter, the police arrived. She gave her fardbeyan to the police, whereupon she put her thumb impression. She has identified the accused in the Court. This witnesses was put to extensive cross-examination, in which she has stated that she had gone to the pond after about one hour, after her sons had returned back. 6. P.W.-1 Bhim Kaibarta and P.W.-2 Badal Kaibarta have also stated that they had seen the deceased girl taking bath in the pond and the accused was also sitting on the bank. In the same evening, the dead body of the deceased was found with the injuries in her private parts. They went to the house of the accused, but the accused was not in the house. These witnesses have also identified the accused in the Court. There is nothing of much importance in their cross-examinations. P.W.-2 Badal Kaibarta has stated in his cross-examination that when he had seen the deceased taking bath, her brothers were also taking bath along with her. 7. Similarly, P.W.-3 Bhushal Dutta and P.W.-7 Suresh Kaibarta are also the hearsay witnesses to the occurrence. They had only seen the dead body of the deceased and they were informed by the mother of the deceased that the accused had committed rape and murder of the deceased. 8. P.W.-6 Dr. Akhilesh Kumar Choudhary had conducted the post-mortem examination on the dead body of the deceased, aged about nine years, on 25.09.2005, and had found that the blood had discharged from the nostrils. There was sub-conjunctival hemorrhage inside the left eye. There was hemorrhage in nasal mucosa and there were blood stains around the private parts of the deceased with torn and rupture injuries in her private parts. The soft tissue under skin along upper airway (larynx) was contused and there was haemorrhage in the airway mucosa. The Doctor has opined that the death was result of asphyxia as a result of pressure over the mouth, nostril and neck, and there were medical evidences to suggest forceful penetration of hard and blunt substance inside the genital of the deceased. He had also preserved the vaginal swab and had handed over to the police. The Doctor has opined that the death was result of asphyxia as a result of pressure over the mouth, nostril and neck, and there were medical evidences to suggest forceful penetration of hard and blunt substance inside the genital of the deceased. He had also preserved the vaginal swab and had handed over to the police. He has proved the post-mortem report to be in his pen and signature, which was marked Ext. 3. 9. P.W.-8 Kamal Kishore is the Investigating Officer of the case. This witness has stated that on 25.09.2005, he was posted as Officer-Incharge of Gamharia Police Station. At about 01:00 AM in the night, he received an information that a dead body of female child had been found in a pond and upon the information he went for verification along with the police party. He got the inquest report prepared and sent the dead body for post-mortem examination. He recorded the fardbeyan of the mother of the deceased. He has proved the fardbeyan, endorsement on fardbeyan, the formal FIR and the inquest report of the dead body, which were marked Exhibits-4, 4/1, 5 and 6 respectively. He inspected the place of occurrence and recorded the statement of the witnesses and he also arrested the accused. After getting the post-mortem report and completing the investigation, he submitted the charge sheet against the accused. In his cross-examination, this witness has admitted that he had not sent the vaginal swab or the panty of the deceased for any forensic examination. He has denied the suggestion of making faulty investigation. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of evidence on record, the appellant has been convicted and sentenced for the offences as aforesaid. 11. Learned amicus curiae appointed by the Court for the appellant, submitted that this is a case of practically no evidence against the appellant. The only evidence against the appellant is that while the deceased was taking bath in the pond, the appellant was on the bank of pond. Thereafter, there is no evidence to the occurrence of rape and murder of the deceased. It has been submitted by the learned counsel for the appellant that there was no forensic examination to suggest the implication of the accused in the crime. Thereafter, there is no evidence to the occurrence of rape and murder of the deceased. It has been submitted by the learned counsel for the appellant that there was no forensic examination to suggest the implication of the accused in the crime. Learned counsel submitted that in the facts of this case the appellant was entitled at least to the benefits of doubt. 12. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that P.W.-1 Bhim Kaibarta, P.W.-2 Badal Kaibarta and P.W.-5 Tilak Toma Kaibarta, the mother of the deceased and the informant of the case, are the witnesses to the fact that while the deceased was taking bath in the pond, the accused was also sitting there on the bank. It is submitted that thereafter the dead body of the deceased was found in the pond, with the clear evidence that she was ravished and murdered. Since only the accused was present there with the deceased girl, and thereafter he was not found in his house, these circumstances point out only towards the guilt of the accused. The offences of rape and murder are fully proved by the medical evidence of P.W.-6 Dr. Akhilesh Kumar Choudhary and the post-mortem report proved by him as Ext.-3. Learned counsel accordingly, submitted that the prosecution has been able to prove the charge against the accused beyond all reasonable doubts. 13. Having heard learned counsels for both the sides and upon going through the record, we find that so far as allegation of rape and murder of the deceased is concerned, there is no eyewitness to the occurrence. The only evidence that has come against the appellant is that he was sitting on the bank of the pond and eating cucumber, while the deceased was taking bath in the pond. There is no evidence that the deceased was ever seen in the company of the accused, though there is evidence that he was seen in proximity, while the deceased was taking bath. The deceased had gone to take bath with her younger brothers, and when they returned back, the mother of the deceased had gone to call the deceased, who saw her taking bath and the accused was sitting on the bank. The deceased had gone to take bath with her younger brothers, and when they returned back, the mother of the deceased had gone to call the deceased, who saw her taking bath and the accused was sitting on the bank. By that time the accused had not taken any benefit of the loneliness during the time gap of about one hour, when the brothers had returned back and the mother had arrived there, and there was no suspicion against the accused. Since there is no eyewitness to the occurrence of rape and murder, only on the basis of the evidence of last seen in the proximity, or that the accused was not found in his house after occurrence when searched, the accused cannot be found guilty and convicted for the offences charged. P.W.-6 Dr. Akhilesh Kumar Choudhary has stated that vaginal swab of the deceased was handed over to the police, and P.W.-8 Kamal Kishore, clearly admitted the same was not sent for any forensic examination. As such, there is no scientific investigation of the case, though there was ample scope for the same, for which only the prosecution can be blamed. We are of the considered view that on the basis of the evidence on record, the prosecution has failed to bring home the charges against the accused beyond all reasonable doubts, and it is a fit case in which the accused appellant ought to have been given benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court cannot be sustained in the eyes of law. 14. For the foregoing reasons, the impugned Judgment of conviction dated 5th December, 2007 and Order of sentence dated 10th December, 2007, passed by the learned 1st Addl. Sessions Judge, Seraikella, in Sessions Trial No. 187 of 2005, convicting and sentencing the accused appellant Khena Kaibarta @ Chhotu, for the offences under Sections 302 and 376(2)(f) of the Indian Penal Code, are hereby, set aside. Consequently, the appellant is given the benefits of doubt and he is acquitted of the charges. The appellant Khena Kaibarta @ Chhotu in custody undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 15. Consequently, the appellant is given the benefits of doubt and he is acquitted of the charges. The appellant Khena Kaibarta @ Chhotu in custody undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 15. Though the prosecution has not been able to prove the charges against the accused beyond all reasonable doubts, but this is a case in which it is proved that the deceased girl was brutally ravished and murdered. In our considered view, the mother of the deceased, P.W.-5 Tilak Toma Kaibarta, is the victim of crime, and she should be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in this regard, in consultation with the Secretary of the concerned District Legal Services Authority, so that she may be duly compensated at an early date. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 16. We also wish to record that we have been given able assistance by Mr. Binod Kumar Jha, learned amicus curiae appointed by this Court for the appellant. We accordingly, direct the Secretary, High Court Legal Services Committee, Ranchi, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be also sent to the Secretary, High Court Legal Services Committee, Ranchi, for the needful. 17. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.