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2022 DIGILAW 1070 (JHR)

Satendra Ram v. State of Jharkhand

2022-08-26

NAVNEET KUMAR

body2022
ORDER : 1. This appeal is directed against the judgment of conviction dated 09.06.2005 and order of sentence dated 10.06.2005 passed by the learned 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial Case No. 183 of 2003 corresponding to G.R. Case No. 622 of 2002 arising out of Sadar P.S. Case No. 134 of 2002, Palamau at Daltonganj, Jharkhand whereby and where under both the appellants were convicted for the offence punishable u/s 366-A/34 of IPC and each of them were sentenced to undergo R.I. for a period of 7 years and also to pay fine of Rs. 1000/- (Rupees one thousand) and in default of payment of fine they were further directed to undergo for R.I. for a period of six months. 2. The prosecution case arose in the wake of the fardbeyan of the informant Arbind Oraon (P.W. 6) recorded by S.I. Ahmad Ali Officer In-charge of Sadar Police Station Baraiya Chowk on 16.05.2002 at 13.40 hours. The informant P.W. 6- Arbind Oraon stated on 16.05.2002 before the officer In-charge of Sadar Police Station that in the night of 10/11.05.2002 when all the family members were sleeping in the house, Reena Kumari, the minor sister of the informant eloped from the house. The informant and his family members started searching for Reena Kumari in the morning in their house and village and thereupon one Sanjay Oraon covillager informed the informant that both the accused persons namely Jay Kumar Oraon and Satendra Ram were seen moving near his house in suspicious manner in the night. Getting this information, the informant Arbind Oroan went to the house of accused Jay Kumar Oraon and enquired about him. His sister Saro Kumari informed him that Jay Kumar Oraon and Satendra Ram had come to her house in the night with Reena Kumari and in the early morning they all left the house. Accused Satendra Ram was also absent in his house. Informant Arbind Oraon suspected the hands of these accused persons in the alleged kidnapping of his minor sister. 3. On the basis of the fardbeyan, Sadar P.S. Case No. 134 of 2002 dated 16.05.2002 u/s 366 A/34 of IPC was registered against both the accused persons. Accused Satendra Ram was also absent in his house. Informant Arbind Oraon suspected the hands of these accused persons in the alleged kidnapping of his minor sister. 3. On the basis of the fardbeyan, Sadar P.S. Case No. 134 of 2002 dated 16.05.2002 u/s 366 A/34 of IPC was registered against both the accused persons. Sub Inspector Ahmad Ali took up the investigation of the case and after completion of the investigation, he submitted charge sheet vide charge sheet No. 90/2002 dated 25.06.2002 against both the accused persons u/s 366-A/34 of IPC. Accordingly, cognizance was taken by the learned C.J.M., Daltonganj. After compliance of the provisions under section 207 of Cr.P.C. the case was committed to the court of Sessions. On 23rd day of August 2003 the charge u/s 366-A/34 of IPC was framed against both the accused persons. Charge was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal. 5. Heard Mr. Hemant Shikarwar, learned defence counsel appearing for the appellants and Mrs. Nehala Sharmin, learned A.P.P. for the State. Arguments advanced on behalf of the appellants 6. Assailing the impugned judgment of conviction and order of sentence the learned counsel appearing on behalf of the appellants submitted that both the appellants are innocent and they have been falsely implicated in this case and the victim girl was major about 18 years at the time of the alleged occurrence and infact she was in love affair with the appellant no. 2- Jay Kumar Uraon, which is evident from her statement recorded u/s 164 of Cr.P.C. but, later on before the court during the course of the trial she completely backed out from her earlier statement recorded u/s 164 of Cr.P.C. and she stated that she was sexually assaulted by both the appellants which was totally unbelievable and unreliable and not to be relied upon, but, the learned trial court discarded all the relevant evidences and convicted both the appellants u/s. 366 A /34 of IPC. The two FIR named witnesses namely Sanjay Uraon- P.W. 3 and Saro Kumari- P.W. 1 both have been declared hostile as they have not supported the case of the prosecution and these two witnesses were very important witnesses because from whom the informant came to know about kidnapping/ abduction of the victim girl. 7. Further, it has been pointed out that non-examination of the I.O. has caused serious prejudice to the case of the defence when the victim herself reversed her entire statement recorded u/s 164 of Cr.P.C. before the court below and, therefore, it was necessary for the defence to test the I.O. in the cross-examination particularly with respect to her earlier statement either recorded u/s. 161 of Cr.P.C. or u/s 164 of Cr.P.C., however, her statement recorded u/s. 164 of Cr.P.C., before the learned Judicial Magistrate, has been brought on record vide Ext. 4 and that has been appreciated by the learned court below and but did not heed upon it and relied upon her subsequent statement before the court in the trial about the commission of rape by these two appellants, but, the appellants were neither charged nor convicted for the offence punishable u/s 376 of IPC and without holding any guilt of the accused persons u/s 376 of IPC, the offence punishable u/s 366-A/34 of IPC is also bad in law because the version of the victim P.W. 8 is wholly unreliable and does not gain confidence in her statement and, therefore, the conviction u/s 366-A of IPC of the appellants is also bad in law and fit to be set aside. Arguments advanced on behalf of the State 8. Arguments advanced on behalf of the State 8. On the other hand, the learned A.P.P. for the State opposed the contentions raised on behalf of the appellants and submitted that the victim girl P.W. 8 categorically supported the case of the prosecution and stated that both these appellants had taken her away from her house when she had come out from the house to attend the nature’s call and the same has been consistently supported by her brother P.W. 6 Informant, Arbind Oraon and P.W. 4 her mother Motiya Devi and, therefore, the learned trial court has rightly appreciated the evidences, taking into consideration of statement u/s 164 of Cr.P.C. of victim P.W. 8 and passed the impugned judgment of conviction and order of sentence and hence this appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 9. Having heard the learned counsel for the parties, and perused the record of the case including the Lower Court Record. 10. It is found that both the appellants charged for the offence u/s 366-A /34 of IPC and the learned trial court after holding their guilt convicted both of the appellants u/s 366-A/34 of IPC. 11. In order to, substantiate its case the prosecution has been able to examine altogether 08 witnesses: P.W. 1 Saro Kumari (sister of accused Jay Kumar Oraon) P.W. 2 Balraj Uraon P.W. 3 Sanjoy Uraon P.W. 4 Motiya Devi (mother of victim girl) P.W. 5 Sanju Uraon (sister of victim girl) P.W. 6 Arbind Uraon (informant) P.W. 7 Dr. Punam Sinha (Dr. who examined the victim girl) P.W. 8 Reena Kumari (Victim Girl) Apart from oral evidences,some documentary evidences have also been adduced on behalf of the prosecution which are as under:- Ext. 1- Signature of Arbind Oraon on fardbeyan (informant) Ext. 2- Admit Card of Reena Kumari (victim) Ext. 1/1- Signature of Arbind Oraon on Jimennama Ext 1/2 - Signature of Jagdish Uroan on jimmenama Ext. 3- Medical Report of victim Renna Kumari Ext. 4- Statement u/s 164 of Cr.P.C. of victim Reena Kuamri 12. The I.O. in this case has not been examined. On the other hand, no defence evidence has been adduced in this case. 13. 1/1- Signature of Arbind Oraon on Jimennama Ext 1/2 - Signature of Jagdish Uroan on jimmenama Ext. 3- Medical Report of victim Renna Kumari Ext. 4- Statement u/s 164 of Cr.P.C. of victim Reena Kuamri 12. The I.O. in this case has not been examined. On the other hand, no defence evidence has been adduced in this case. 13. P.W.1- Saro Kumari is the FIR named witness from whom the informant P.W. 6 Arbind Oraon had come to know about the abduction/ kidnapping of the victim girl from their house by these two appellants. Therefore, she was very important witness examined on behalf of the prosecution. But, this witness P.W. 1 has been declared hostile and she has not supported the case of the prosecution at all. 14. P.W. 2 Balraj Uraon examined on behalf of the prosecution has also been declared hostile as he has also not supported the case of the prosecution. 15. P.W. 3 Sanjoy Uraon is also a FIR named witness and from whose version the informant P.W.6 Arbind Oraon suspected these two appellants to take her sister away from their house. But, this witness P.W. 3 has also not supported the case of the prosecution and he has been declared hostile. 16. P.W. 4 Motiya Devi is the mother of the informant and she is admittedly a hearsay witness and she came to know that these appellants had taken away her daughter. She stated that before the occurrence these two appellants were also seen by this witness around her house and her daughter was found taken away by these two appellants. The attention of this witness has been drawn before her earlier statement recorded by the police during the course of the investigation, but, since the I.O. in this case has not been examined and, therefore, the appellants were debarred from their valuable rights to test the truthfulness and veracity of deposition of this witness by cross examining this I.O. This witness appears to be ignorant about the fact that the victim was examined by the doctor or not or whether her statement was recorded by the Magistrate or not. Whereas in fact the victim was medically examined by the doctor and her statement was also recorded u/s 164 of Cr.P.C. which are available on record and the doctor has also been examined as P.W.7. 17. Whereas in fact the victim was medically examined by the doctor and her statement was also recorded u/s 164 of Cr.P.C. which are available on record and the doctor has also been examined as P.W.7. 17. P.W. 5 Sanju Uraon is the sister of the victim and she is a hearsay witness and simply told that appellants had taken away her sister P.W.8 because she was not found in the morning of the next date of occurrence and the her attention was drawn before her earlier statement recorded by the I.O. in this case but, non-examination of the I.O. has caused serious prejudice also to ascertain the truthfulness of her version. 18. P.W. 6 Arbind Oraon was the informant of this case. He is also a hearsay witness and he did not see as to who had taken away the victim from her own eyes. He had also stated that the victim was recovered by the police and handed over to his father Jagdish Uraon and also the receipt (Zimmanama: Ext.-1/1 & Ext.-1/2) to that effect that the father of the victim had at first taken back the custody of the victim from the police has been proved by this witness comprising the signature of the father of the victim Jagdsih Uraon, thumb impression of the mother of the victim Motiya Devi and also the signature of this witness Arbind Oraon, who is the brother of the victim. But, since the I.O. in this case has not been examined nor the father of the victim to whom custody of minor was given after the alleged recovery by the police, therefore, the manner and mode of her recovery and the victim’s immediate narration about her whereabouts, or deals and other incidents of her kidnapping could not be ascertained and the defence taken on behalf of the appellants that one of the appellant i.e. appellant no. 2- Jay Kumar Oraon had solemnized the marriage with the victim and both were in love with each other since last three years prior to the occurrence, cannot be ruled out and thus the case of the prosecution gets doubtful. In view of the statement of the victim recorded u/s 164 of Cr.P.C. and further the statement of the accused recorded u/s 313 of Cr.P.C. where the accused appellant no. In view of the statement of the victim recorded u/s 164 of Cr.P.C. and further the statement of the accused recorded u/s 313 of Cr.P.C. where the accused appellant no. 2 had explicitly stated that he had married with the victim- who had stated the same fact in her statement recorded by the Judicial Magistrate u/s 164 of Cr.P.C., which has been marked as Ext. 4 and available on record. The learned trial court ironically rightly appreciated the versions of the victim recorded under section 164 of the Cr.P.C. but, came to an erroneous findings in the impugned judgment. 19. P.W.7- Dr. Punam Sinha is the doctor in this case and she has examined the victim after 12 days’ from the date of the occurrence i.e. 23.05.2002 and according to her evidence there was no external or internal injury anywhere in the body. For determination of her age, X-ray of left wrist joint, left elbow joint and pelvis was advised and opinion of orthopedic surgeon and Dentist was obtained. According to the Doctor, there was no sign of recent sexual intercourse. Her age was within 17 to 18 years. The medical report has been marked as Ext. 3. The Doctor has also stated that the age was determined by Medical Board constituted of three doctors and she was one of the members of the Board, Dr. B.K. Singh and Dr. Jhon Ekka were other two members of the Board. 20. P.W.8 Reena Kumari is the victim of the occurrence and as such she was the most important witness examined on behalf of the prosecution. The learned trial court has found that her statement was not recorded u/s 161 of Cr.P.C. rather her statement was recorded u/s 164 of Cr.P.C. on 24.05.2002 by the Judicial Magistrate which is Ext. 4. From the perusal of the Ext. 4, it is well founded that she was in love affair with the accused appellant No. 2 and they were neighbour and both had been meeting regularly from each other since last three years in a lonely place from the date of the occurrence. The victim P.W. 8 categorically in unequivocal words stated that both had decided to marry and, in order to, solemnize the marriage she had left the house in the day at about 1-30 p.m.on 11.05.2002 without informing anyone of the members of the family. The victim P.W. 8 categorically in unequivocal words stated that both had decided to marry and, in order to, solemnize the marriage she had left the house in the day at about 1-30 p.m.on 11.05.2002 without informing anyone of the members of the family. She further stated that she met Jay Kumar Oraon on the road and both of them had come to the Daltonganj Railway Station on foot and they boarded the Train “Shaktipunj” thereafter both of them reached Barkakana Railway Station and she also stated that they got themselves married in a Kali Mandir near railway station at Barkakana and stayed in a hotel there and after 2-3 days they returned to Daltonganj. She further stated in her statement recorded u/s 164 of Cr.P.C. (Ext.4) that her husband Jay Kumar Oraon appellant no. 2 took her to the house of his friend and thereafter, she came to know that her family members were in search of her and one of the relatives of her husband took them to police station from where her statement was recorded u/s 164 of Cr.P.C. in the court where she stated that the said Jay Kumar Oraon was her husband and she wanted to live with him. But, subsequent version recorded during the course of trial in the learned trial court below, a complete different story was given by her where she stated that she was raped by both the appellants and her statement recorded u/s 164 of Cr.P.C. (Ext. 4) was out of fear. In absence of examination of the learned Judicial Magistrate who recorded her statement in the court by the prosecution and also non-examination of the I.O., the statement of the victim cannot be appreciated at all as such reliability and truthfulness of her testimonies become highly doubtful because from the perusal of Ext. 4, as it has been recorded by the learned Judicial Magistrate, where she stated that her statement was being recorded without any fear and coercion. 4, as it has been recorded by the learned Judicial Magistrate, where she stated that her statement was being recorded without any fear and coercion. Further, she stated categorically in her testimony during the course of trial vide para 3 of her deposition that her statement was recorded u/s 164 of Cr.P.C. thereafter reading and finding the same (Ext.-4) correct, she had put her signature mentioning therein that she had willingly and voluntarily given her statement recorded u/s 164 of Cr.P.C. Therefore, in this view of the matter, the credibility of this victim witness P.W.8 is found highly doubtful and fit to be discarded. Neither her mother P.W. 4 nor her sister P.W. 5 nor her brother P.W. 6 (informant) supported her version about the rape at all. None of the witnesses including her mother P.W.4, her sister P.W.5 and her brother P.W.6 stated that the victim P.W.8 was induced by the appellants with an intent that she may be or knowing that it is likely that the victim P.W.8 would be forced or seduced to illicit intercourse. Meaning thereby when she was recovered she did not narrate the story about the sexual assault committed by these appellants neither to her mother nor to her brother nor to her father (not examined) nor to her sister which is highly unbelievable and improper and as such the case of the prosecution is totally collapsed. 21. In this view of the matter, the version of the victim girl can not to be relied upon and the charges levelled against the appellants are not substantiated. So far as the age of the victim is concerned, it is also found that she was major because of her matriculation certificate which is Ext. 2 where her date of birth is written as 20.11.1984 and date of occurrence was of 11.05.2002. The doctor P.W.7, who has opined that her age was between 17 to 18 years. She herself recorded her statement u/s 164 of Cr.P.C. that her age was 18 years and in the deposition recorded during the course of the trial she disclosed her age as 20 years, it means that she was 18 years and at the time of occurrence she was major. 22. She herself recorded her statement u/s 164 of Cr.P.C. that her age was 18 years and in the deposition recorded during the course of the trial she disclosed her age as 20 years, it means that she was 18 years and at the time of occurrence she was major. 22. Therefore, in the backdrop of the evaluation of the witnesses and other evidences adduced of behalf of the prosecution, it is manifest that the learned trial court has failed to appreciate the evidences in a holistic manner and the statement of the victim and deposition of the victim has not been appreciated in totality. Her earlier statement recorded u/s 164 of Cr.P.C. has totally falsified the case of the prosecution and her subsequent statement given during the course of the trial is not substantiated and corroborated either by her mother P.W. 4 or by her brother P.W. 6 and, therefore, the entire case of the prosecution gets falsified. Non-examination of the I.O. and the learned Judicial Magistrate who recorded the statement of the victim P.W.8 under section 164 of Cr.P.C. (Ext.-4) is fatal in this case inasmuch as the veracity and truthfulness of her earlier statement recorded u/s 164 of Cr.P.C. could not be testified during the course of the trial and the appellants had been debarred from their valuable rights to draw the attention of the I.O. about their earlier statement. The correctness of the statement of the witnesses, namely, P.W. 4, P.W.5, P.W.6 and P.W.8 (victim) examined during the course of the investigation and subsequently in the trial, upon which the learned trial court has relied upon, had not been tested by cross-examining the Investigating Officer and the learned Judicial Magistrate and since the learned Trial Court has convicted the appellants upon taking into consideration of the statements of these witnesses, P.W.4, P.W.5, P.W.6 and P.W.8 (victim) the impugned judgment of conviction has occasioned great miscarriage of Justice. The statement of the accused particularly appellant No. 2 recorded u/s 313 of Cr.P.C, categorically stated that he had married with the victim girl which is falling in line with the statement of the victim girl recorded u/s 164 of Cr.P.C. where she categorically stated that she had been in love with the appellant No. 2 Jay Kumar Oraon since last three years from the date of occurrence and she had married with him. Thus, the entire case of the prosecution gets demolished and the charges levelled against the appellants could not be proved against the appellants. 23. In the result, the impugned judgment of conviction dated 09.06.2005 and order of sentence dated 10.06.2005 passed by the learned 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial Case No. 183 of 2003 corresponding to G.R. Case No. 622 of 2002 arising out of Sadar P.S. Case No. 134 of 2002, Palamau at Daltonganj, against the appellants is set aside. 24. Accordingly, this appeal is allowed. 25. The appellants are acquitted from the charges levelled against them. Since both the appellants are on bail in this case, they are discharged from the liabilities of their bail bonds. 26. Let a copy of this judgment be sent back to the learned court below along with the Lower Court Record.