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2019 DIGILAW 637 (JHR)

Ramesh Kumar v. State of Jharkhand

2019-03-06

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT : Heard learned Amicus Curiae Mr. Mukesh Kumar Dubey and Learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor. 2. This appellant faced trial along with co-accused Rajdeo Oraon for the charge under section 376(2)(g) and 304/34 of the I.P.C for committing gang rape of Victim ‘X’ (name withheld) in furtherance of their common intention and also for commission of culpable homicide not amounting to murder as their act led to the death of the victim ‘X’. 3. It needs to be mentioned at the outset that the above two accused persons were held guilty under Section 376(2)(g) and 304/34 of the I.P.C. This appellant was sentenced to undergo R.I. for life for his conviction under Section 376(2)(g) of the I.P.C and further to undergo R.I. for 10 years for his conviction under Section 304 Part II/34 of the I.P.C. The accused Rajdeo Oraon was sentenced to undergo R.I. for 10 years for his conviction under Section 376(2)(g) of the I.P.C and R.I. for 7 years for his conviction under Section 304 Part II/34 of the I.P.C. Beside the above, this appellant was imposed with a fine Rs.5000/- under Section 376(2)(g) of the I.P.C and in default whereof to further undergo R.I for 6 months. Similar fine was imposed upon the co-convict Rajdeo Oraon. This appellant has remained in custody since his arrest on 09.08.2005. The co-convict Rajdeo oraon also preferred a criminal appeal before this Court being Criminal Appeal (SJ) No. 1019 of 2008. Learned Single Judge by judgment dated 14.03.2011 has been pleased to set aside the judgment of conviction and order of sentence recorded against the appellant Rajdeo Oraon by the learned Sessions Judge in Sessions Trial Case No. 09 of 2006 arising out of Manika P.S. Case No. 17 of 2005. The present appellant, the co-convict is before us assailing the same impugned judgment of conviction dated 18.03.2008 passed in same Sessions Trial Case No. 09 of 2006 and the order of sentence dated 19.03.2008. 4. The prosecution case has unfolded on the basis of the fardbeyan of Neema Oraon, husband of victim ‘X’ and is the basis for institution of the formal F.I.R being Manika P.S. Case No. 17 of 2005 dated 08.08.2005 under Section 376/304/34 of the I.P.C against the two named accused persons. The informant Neema Oraon (P.W.4) whose fardbeyan was recorded at 7.30 hrs. The informant Neema Oraon (P.W.4) whose fardbeyan was recorded at 7.30 hrs. on 08.08.2005 at Persani Village by the Sub Inspector of Police Awadh Kumar Yadav, Officer-in-charge of Manika Police Station (Latehar) inter alia alleged as follows: On the previous night his whole family had gone to sleep after taking meal when at 10 P.M. brother-in-law of his son, Prabhu Oraon came to their house and requested the wife of the Informant, Victim ‘X’ to come along with him in search of country made liquor. He returned after one hour and told that victim ‘X’ is trembling and asked them to bring her. Thereupon the Informant, his daughter Prabha and the accused Rajdeo Oraon went to the place pointed out by Rajdeo Oraon where other villagers Siban Oraon and Sugan Oraon had also reached on hearing brawl and all these persons were questioning Rajdeo Oraon. As soon as they came on the road they heard a scream from behind the bush “Ayo Dada Mua Dele”( complaining that she is being killed ). Informant and others went towards the bush and saw one person committing rape upon victim ‘X’ who on seeing them started fleeing away. They chased him and caught hold of him. He disclosed his name as Ramesh Kumar of village Khijri Nawatoli, District Simdega (appellant herein). Victim ‘X’ was in a stage of unconscious and her under garments were exposed. They picked her up and brought to the house. She was vomiting and at 5.00 A.M. she died. This incidence was seen by Akhilesh Oraon, Jagtar Oraon, Khiru Oraon, Sukan Oraon by their own eyes. On these allegations, Informant asserted that accused Ramesh Kumar and Rajdeo Oraon have together committed rape upon the victim ‘X’ after intoxicating her, which has resulted in her death. 5. Upon completion of the investigation, charge-sheet was submitted by the Police bearing no. 31 of 2005 dated 31.08.2005 under Section 376/304/34 of the I.P.C against the two accused persons. Thereafter cognizance was taken and the case was committed to the Court of Sessions. Charge was framed under Section 376 and 304/34 of the I.P.C on 03.04.2006 by the learned Sessions Judge. The charge was amended on 18.03.2008 to one under Section 376 (2)(g) against both the accused persons. Charges were read over to the accused persons and explained in Hindi to which they pleaded not guilty and claimed to be tried. 6. Charge was framed under Section 376 and 304/34 of the I.P.C on 03.04.2006 by the learned Sessions Judge. The charge was amended on 18.03.2008 to one under Section 376 (2)(g) against both the accused persons. Charges were read over to the accused persons and explained in Hindi to which they pleaded not guilty and claimed to be tried. 6. During course of trial, prosecution had examined 7 witnesses as under: 1. P.W.1 Siban Uraon 2. P.W.2 Sugan Oraon 3. P.W.3 Akhilesh Oraon 4. P.W.4 Neema Oraon 5. P.W.5 Prabha Devi 6. P.W.6 Awadh Kumar Yadav 7. P.W.7 Manoj Kumar Gupta 8. C.W.1 Dr. Ravindra Narain was examined as Court Witness. P.W.1 Siban Uraon, has deposed as an eye witness. He has stated that he had gone to search the wife of the informant and upon hearing her scream, he saw the appellant Ramesh Kumar committing rape upon her. He was chased and caught. He had also stated that the fardbeyan was recorded in his presence. He has proved and identified his signature on the fardbeyan marked as Ext.1. In his cross examination he has stated that the deceased was his aunt who had 8 children and she was aged about 55 years. When the appellant was being chased, he was naked. Accused Rajdeo Oraon was brother-in-law of the son of the victim and used to work as a driver. According to this witness, Informant Neema Oraon(P.W.4), his daughter Prabha Devi (P.W.5), Sugan Oraon (P.W.2) and Rajdeo Oraon (accused) along with Akhilesh Oraon (P.W.3) had gone to search the victim. He had no enmity with the family of accused Rajdeo Oraon. P.W.2 Sugan Oraon has also deposed as an eye witness. He had also gone to search the victim ‘X’ apart from the Informant Neema Oraon (P.W.4), his daughter Prabha Devi (P.W.5), Siban Oraon (P.W.1). He has supported the statements of the informant and also corroborated the statement of P.W.1. In his cross examination, he has further stated that distance of the place of occurrence was at about 150 yards and that the victim ‘X’ was vomiting after the incidence. P.W.3 is Akhilesh Oraon. According to this witness, he had also accompanied the informant Neema, Siban, Sugan, Sukhdar Oraon and Prabha Devi, daughter of the informant along with accused Rajdeo Oraon to search the victim lady. P.W.3 is Akhilesh Oraon. According to this witness, he had also accompanied the informant Neema, Siban, Sugan, Sukhdar Oraon and Prabha Devi, daughter of the informant along with accused Rajdeo Oraon to search the victim lady. He has also stated that he heard the sound of “Ayo Dada Mua Dele” and when he reached the place he saw accused Ramesh Kumar committing rape upon the victim lady. Accused Ramesh Kumar was chased and apprehended. The victim ‘X’ was unconscious and her under garments and clothes were removed. She was vomiting in the night and died at 5.00 A.M. in the morning. In his cross examination he has also stated that they had gone to search on the information of accused Rajdeo Oraon. He has stated that his statement was recorded by the Police. P.W.4 Neema Oraon is the informant of the case who in his deposition has supported the prosecution story as made out in his own fardbeyan. He has stated that on being told by Rajdeo Oraon, he along with his daughter Prabha Devi had proceeded to search for the victim ‘X’ and on the way Sugan and Siban also joined. When they reach near the bush by the side of the road, they heard scream of the victim lady and on going there, they saw this accused Ramesh Kumar/appellant committing rape upon his wife. He tried to flee away but was apprehended after chase. His wife, victim ‘X’ had fallen unconscious and brought to the house. She died at 5.00 A.M. in the morning. In his cross examination, he has stated that the accused Rajdeo Oraon is the brother-in-law of his son. He has also stated that when these persons had reached the place of occurrence, the victim had been rendered unconscious and had stopped speaking. P.W.5 Prabha Devi is the daughter of the Informant and wife of Gandu Oraon. She has supported the prosecution case as made out in the fardbeyan and also corroborated the statements made by prosecution witness no. 1,2,3 and 4(informant). The defence has not been able to discredit the testimony of any of these witnesses in cross examination. P.W.6 Awadh Kumar Yadav is the Investigating Officer of the case who has proved the fardbeyan written in his handwriting and signature thereupon marked as Ext.2 and 1/2. He has also proved the endorsement on the fardbeyan marked as Ext.3. The defence has not been able to discredit the testimony of any of these witnesses in cross examination. P.W.6 Awadh Kumar Yadav is the Investigating Officer of the case who has proved the fardbeyan written in his handwriting and signature thereupon marked as Ext.2 and 1/2. He has also proved the endorsement on the fardbeyan marked as Ext.3. He has also proved and identified the signature of the Investigating Officer on the fardbeyan marked as Ext. 1/3 and formal F.I.R marked as Ext. 4 and signature of the writer Constable on the formal F.I.R marked as Ext. 1/4. Inquest report has been proved and marked as Ext. 5 and signature of the Medical Officer on the post mortem report has been proved and marked as Ext.1/5. P.W.7 Manoj Kumar Gupta is an Advocate Clerk who has proved the post mortem report of the Victim ‘X’ marked as Ext. 6 in the handwriting of the Medical Officer Dr. Ravindra Narain. Dr. Ravindra Narain, Medical Office has been examined as Court Witness No.1 who had undertaken the post mortem examination of the victim ‘X’ on 08.08.2005 and he found the following injuries: “Rigor Mortis was present on both upper and lower limb. Ante mortem injury:- Face was swollen, multiple bruises were present, face blackish in colour. Vagina was full of seminal fluids. Flowing viscera’s were preserved for chemical analysis: 1.a piece of heart; 2. a piece of lung; 3. stomach and its contents; 4.a loop of intestine; 5. a piece of liver; 6. A piece of spleen; 7. Left kidney; 8. Uterus”. He has reserved his opinion about the cause of death. In his cross examination he has stated that he did not microscopically examined the fluid present in the vagina of the deceased. It may be leucorrhoea discharge. Death cannot be due to injury found on the body. 7. After conclusion of the prosecution evidence, the accused persons were examined under Section 313 Cr.P.C to which they denied their involvement in the crime and claimed them selves to be innocent. 8. Based on these material evidence on record and upon consideration of the submissions of learned counsel for the parties, the judgment of conviction and order of sentence was recorded against the two accused persons. 9. 8. Based on these material evidence on record and upon consideration of the submissions of learned counsel for the parties, the judgment of conviction and order of sentence was recorded against the two accused persons. 9. Learned Amicus Curiae has assailed the conviction of the present appellant on the ground that charge of gang rape under Section 376(2)(g) of the I.P.C. does not stand established since the co-accused Rajdeo Oraon has been acquitted of the charge and conviction by the learned Single Judge of this Court in Criminal Appeal (SJ) No. 1019 of 2008 dated 14.03.201. He has drawn support from a judgment rendered by the Apex Court in the case of Rajesh Vrs. State of Goa reported in (2003) 11 SCC 736. Learned Amicus Curiae has further submitted that the appellant has remained in custody for 14 years by now, that means, he has served entire sentence under Section 304 Part-II/34 of the I.P.C. However, he at the same time submits that the charge under Section 304 Part II/34 I.P.C are not fully established as the medical evidence does not support the cause of death attributed to the appellant. As such, even if the conviction of the appellant under Section 376(2)(g) of the I.P.C is modified to one under Section 376 of the I.P.C, appellant has served custody for a period much more than 10 years. This Court may accordingly set aside the conviction under Section 304 Part-II/34 of the I.P.C and suitably modify the conviction under Section 376(2)(g) of the I.P.C as it would meet the ends of justice. 10. Learned Additional Public Prosecutor has supported the findings of the learned Trial Court. He however is not in a position to dispute the argument raised by learned Amicus Curiae that the charge and conviction under Section 376(2)(g) of the I.P.C as against this appellant cannot survive in the light of the acquittal of the co-convict Rajdeo Oraon under Section 376(2)(g) of the I.P.C by the learned Single Judge. However, learned Additional Public Prosecutor has submitted that evidence of the prosecution witness no.1,2,3,4 and 5, all of whom are eye witness, completely establish the charge and conviction under Section 376 of the I.P.C, though Medical Officer has not given any opinion as to the presence of fluid found in the vagina of the victim. However, learned Additional Public Prosecutor has submitted that evidence of the prosecution witness no.1,2,3,4 and 5, all of whom are eye witness, completely establish the charge and conviction under Section 376 of the I.P.C, though Medical Officer has not given any opinion as to the presence of fluid found in the vagina of the victim. However, medical evidence is not such, which completely rules out the ocular testimony of the witnesses. Victim ‘X’ aged about 55 years died due to brutal sexual assault by the appellant and as such conviction under Section 304 Part-II/34 of the I.P.C is proper in the eyes of law and needs no interference. 11. We have considered the submission of the learned Amicus Curiae on behalf of the appellant and learned Additional Public Prosecutor for the State; gone through the material evidence on record including the F.I.R; framing of the charge; evidence of prosecution witnesses and court witness Dr. Ravindra Narain; prosecution exhibits ; statement of the accused under Section 313 Cr. P.C and impugned judgment of conviction and order of sentence. The judgment of acquittal of the co-convict Rajdeo Oraon passed in Criminal Appeal(SJ) No. 1019 of 2008 has also been placed before us. We have scanned the material evidence on record in entirety. We find that the prosecution story based upon the F.I.R./Fardbeyan of the Informant Neema Oraon(P.W.4), husband of the victim ‘X’ stands corroborated by other eye witnesses namely Siban Uraon (P.W.1), Sukan Oraon(P.W.2), Akhilesh Oraon (P.W.3) and Prabha Devi (P.W.5), daughter of the Informant. All of them had consistently deposed having gone to the place of occurrence accompanied with the accused Rajdeo Oraon and seen the accused Ramesh Kumar/Appellant herein, committing rape upon the victim ‘X’. Appellant tried to escape on seeing them where after he was chased and apprehended. Victim lady had by that time fallen unconscious. All these witnesses have consistently deposed that the victim was vomiting thereafter throughout the night and died at 5.00 A.M. in the morning. The evidence of C.W.1 Dr. Ravindra Narain shows ante mortem injuries in the nature of swollen face, multiple bruises, face blackish in colour and vagina full of seminal fluids. Victim lady had by that time fallen unconscious. All these witnesses have consistently deposed that the victim was vomiting thereafter throughout the night and died at 5.00 A.M. in the morning. The evidence of C.W.1 Dr. Ravindra Narain shows ante mortem injuries in the nature of swollen face, multiple bruises, face blackish in colour and vagina full of seminal fluids. Though viscera report had not been produced to substantiate the presence of spermatozoa in the fluid found in the vagina of the deceased but the medical evidence is not such, which completely rules out the ocular testimony of the prosecution witnesses who are eye witness to the act of rape on the victim ‘X’. 12. It is also not in dispute that the victim who was about 55 years of age and mother of 8 children died within 6 hours of the assault at 5.00 A.M. in the morning. As such, we are in a position to hold that the charge under Section 376 of the I.P.C were established on the basis of the prosecution evidence brought on record beyond shadow of all reasonable doubt. The victim ‘X’ suffered death as a consequence of brutal sexual assault upon her. As such, conviction of the appellant under Section 304 Part-II/34 of the I.P.C also does not deserve interference in appeal. However, since the co-convict Rajdeo Oraon stands acquitted of the charge under Section 376(2)(g) of the I.P.C by the learned Single Judge vide judgment dated 14.03.2011 passed in Criminal Appeal (SJ) No. 1019 of 2008, the conviction of this appellant under Section 376 (2)(g) of the I.P.C cannot be sustained. As observed herein above, though the appellant cannot be convicted for the charge of gang rape under Section 376(2)(g) of the I.P.C but the charge under Section 376 I.P.C simplicitor stands proved beyond shadow of all reasonable doubts. 13. Considered thus, the impugned judgment of conviction under Section 376(2)(g) of the I.P.C stands modified to Section 376 of the I.P.C. Consequently, the sentence of R.I. for life imposed on this appellant on his conviction under Section 376(2)(g) of the I.P.C also deserves to be modified by sentencing him to undergo R.I for 10 years as it would be proportionate to the proved charge and would meet the ends of justice. Since the appellant has remained under incarceration since his arrest on 09.08.2005, he has already served the sentence of more than 13 ½ years by now. As such the appellant should be released, if not wanted in any other case. 14. In the result, appeal is partly allowed in the aforesaid terms. Let the Lower Court Records be sent to the Court below forthwith along with the copy of the judgment. 15. Before parting, we record our appreciation for the valuable assistance accorded by the learned Amicus Curiae in this case. The Secretary, High Court Legal Services Committee would ensure that the legal remuneration of the learned Amicus Curiae are duly paid within a period of 4 weeks from the date of receipt of an application along with a certified copy of this judgment.