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2020 DIGILAW 196 (JHR)

Surukunu Gope v. State of Jharkhand

2020-01-31

RAJESH KUMAR

body2020
JUDGMENT : 1. Heard Mr. A.K. Sahani, learned counsel for the appellants and Ms. Nehala Sharmin, learned A.P.P. appearing for the State. 2. This appeal is directed against the judgment of conviction dated 23.02.2006 and order of sentence dated 25.02.2006 passed by Shri R.B.Singh, Additional Sessions Judge, Fast Track Court No.1, Ghatshila in Sessions Trial No. 639/1996 whereby and whereunder the appellant No.1 has been convicted under Section 376 of the IPC and appellant No.2 has been convicted under Section 376/109 of the IPC and both convicts have been sentenced to undergo R.I. for seven years. 3. Chakulia P.S. Case No.21/1996 has been registered on 29.05.1996 on the fardbeyan of Arjun Patar (P.W.-4) that rape has been committed upon his daughter, namely, Fulmani Patar by the appellant No.1 assisted by appellant No.2 on 26.05.1996 while she was returning to home after attending the nature call. Appellant no. 2 has tied her hand and appellant No.1 had committed rape upon her. When she returned to her house, narrated the incident to the family members and a panchayati was convened. Thereafter, the information has been given to the police upon which F.I.R. has been registered. 4. On completion of investigation, both the appellants have been charge sheeted to which cognizance has been taken. Case has been committed to the court of sessions and ultimately, charge has been framed against the appellant No.1 under Section 376 of the IPC and under Section 376/109 of the IPC against the appellant No.2. The charge-sheet has been explained to the appellants to which they have pleaded not guilty and claimed to be tried. 5. To substantiate the prosecution story altogether nine witnesses have been examined. P.W-1, Fulmani Patar is the victim girl. P.W.-2, Tuni Patar is mother of the victim girl. P.W.-3, Dr. Renu Kumari, who has examined the victim girl on 29.05.1996. P.W.-5, Bhaktu Patar is the uncle of the victim girl. P.W.-6, Chhemi Patar is the wife of P.W.-5 and aunt of the victim girl. P.W.-7, Bhujang Pradhan Tudu and P.W.-8, Thakur Das Soren are witnesses to the written report. P.W.-9, Bhagwat Murmu has been tendered hostile. In the present case, I.O. has not been examined. 6. On conclusion of prosecution witnesses, the appellants have been examined under Section 313 of the Cr.P.C. in which defense was totally denial. 7. P.W.-7, Bhujang Pradhan Tudu and P.W.-8, Thakur Das Soren are witnesses to the written report. P.W.-9, Bhagwat Murmu has been tendered hostile. In the present case, I.O. has not been examined. 6. On conclusion of prosecution witnesses, the appellants have been examined under Section 313 of the Cr.P.C. in which defense was totally denial. 7. It has been argued by learned counsel for the appellants that non-examination of informant has prejudiced the case of the appellants. It has been further argued that the victim girl, who has been examined as P.W.-1 has testified that P.W.-4, namely, Arjun Patar is not her father although in the F.I.R., the name of the father of the victim has been disclosed as Dasu Patar. It has been further argued that P.W.-1 has testified that she has sustained minor injury which has not been corroborated by the medical evidence. Thus, the prosecution story is full of doubt and there is contradiction and the allegation does not get any corroboration from the independent source and as such the appellants deserve acquittal from leveled charges. 8. Per contra, learned APP has supported the judgment of conviction and argued that P.W.-1-the victim, who is minor girl aged about 14-15 years, has been raped by the appellant No.1 and assisted by appellant No.2. The story as disclosed by P.W.-1 has been corroborated by her parents and family members as testified before the court below. Immediately, after the incident, it has been narrated to P.W.-2, P.W.-4 and P.W.-5 and they have testified the same to that effect. P.W.-3, the doctor has found the rupture of hymen, corroborating the factum of sexual intercourse. Further in the radiological examination, age of the victim girl has been assessed as 14-15 years. 9. Heard learned counsel for the parties. 10. It appears from testimony of the victim girl, while returning to her home after attending call of nature was raped by the appellant No.1 assisted by appellant No.2. The victim girl returned back to her home and narrated the incident to her mother and other family members. P.W.-2, mother of the victim girl has supported the incident. P.W.-4, P.W.-5 and P.W.-6 all have supported the factum that immediately after the incident, the victim has narrated the story regarding rape committed by appellant No.1 in assistance of appellant No.2. The victim girl returned back to her home and narrated the incident to her mother and other family members. P.W.-2, mother of the victim girl has supported the incident. P.W.-4, P.W.-5 and P.W.-6 all have supported the factum that immediately after the incident, the victim has narrated the story regarding rape committed by appellant No.1 in assistance of appellant No.2. P.W.-3, the doctor, has testified that she has found rupture of hymen and has opined that there is possibility of sexual intercourse. 11. The defense has examined three witnesses. These defense witnesses have testified that there was a panchayati but the panchayati was for a dispute between the victim girl and the appellants. They have testified that the panchayati was for different purpose i.e. for assault of appellants by the victim girl. Thus, the factum of panchayati regarding some incident between the appellants and the victim has been admitted by the defense witnesses also. 12. Further the contention of the appellants that I.O. has not been examined which has caused prejudice is not tenable, in view of the fact that the incident of rape has been proved by the prosecutrix. The testimony of the prosecutrix got corroboration from the prosecution witnesses and also by the defense witnesses. Further medical examination has also support the same. In the present case, the testimony of the prosecutrix gets sufficient corroboration and as such non examination of I.O. is not fatal to the prosecution’s case. 13. Accordingly, this argument of counsel for the appellants is rejected. 14. Considering the material available on record and after perusing and scrutinizing the record, this Court finds that the prosecution is able to prove the commission of rape by appellant No.1 with the assistance of appellant No.2 beyond all reasonable doubt and as such, no interference is required in the judgment of conviction dated 23.02.2006 and order of sentence dated 25.02.2006 passed by Shri R.B.Singh, Additional Sessions Judge, Fast Track Court No.1, Ghatshila in Sessions Trial No. 639/1996. Accordingly, the present appeal stands dismissed. 15. The appellants are on bail. Their bail bonds are cancelled. They are directed to surrender before the court concerned to serve out the remaining sentence. 16. Let a copy of this judgment be transmitted to the court concerned through ‘FAX’. 17. Let the lower court records be sent to the court concerned forthwith.