Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 412 (JHR)

Birsa Uraon v. State of Jharkhand

2023-03-27

DEEPAK ROSHAN

body2023
JUDGMENT : Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and order of sentence dated 18.06.2003 & 20.06.2003, respectively, passed by learned Additional Judicial Commissioner-FTC No. V, Ranchi corresponding to S.T. No.72 of 91; whereby the appellant has been convicted for the offence under Section 376 of the IPC and sentenced to undergo R.I. for a period of Seven years with a fine of Rs.1000/- and in default of payment of fine, further to undergo S.I. for Six months. 3. The brief fact of the case is that on 16.07.1990 when the informant was returning home along with her brother-in-law, at about 5.00 p.m. when they reached Balu Tard, they saw accused Birsa Uraon along with Mahli Oraon coming. Thereafter, Birsa Uraon began to assault informant’s brother-in-law and Mahil Oraon returned back and due to fear of assault her brother in-law fled away. Thereafter, the accused threw down the informant on the road and committed rape. 4. Learned counsel appearing for the appellant assailed the impugned judgment on the following grounds: - (i) There is vital contradiction regarding manner of occurrence as stated in F.I.R. with the statement of P.W.1 & P.W.-2. (ii) Neither injury report has been brought on record nor the doctor who has inspected the victim has been examined. (iii) Though the allegation of rape in on road, but even then, there is no eye witnesses. (iv) I.O has not been examined in this case which is highly prejudice the case of the appellant. Relying upon the aforesaid submission, he prays for acquittal of the appellant. 5. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellant. 6. Having heard learned counsel for the parties and after going through the judgment and the lower court records, it appears that there is vital contradiction between the deposition of the informant and her statement in the FIR. 6. Having heard learned counsel for the parties and after going through the judgment and the lower court records, it appears that there is vital contradiction between the deposition of the informant and her statement in the FIR. The victim-P.W-1 at para-1 has given different version as she deposed that on the alleged date of occurrence, she return from her Naihar to Sasural at 5 p.m. Further, at para-4 she has stated that her medical examination was done but no statement under Section 164 Cr.P.C. was recorded and the fact remains that neither any injury report has been produced before the learned trial court nor any doctor has been examined who has alleged to have inspected the victim. Even the I.O. has not been examined in this case. 7. At this stage, it is relevant to observe that since there is only one eye witness i.e., victim herself, examination of I.O. was very necessary as the time of occurrence was 5 p.m. and the distance from alleged place of occurrence and residence of the victim was only ½ K.M. as such it is not believable that in the month of July at around 5 p.m. no independent witness was there in order to support the allegation of the victim. In this regard reference may be made in the case of Ravishwar Manjhi & Ors. Vs. State of Jharkhand (2008) 16 SCC 561 . Para-27 is quoted herein below : “27. The investigating officer in a case of this nature should have been examined. His examination by the prosecution was necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor.” Further, in the case of Lahu Kamlakar Patil & Anr. Vs. State of Maharashtra (2013) 6 SCC 417 , the Hon’ble Apex Court in para-18 has held as under:- 18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. Vs. State of Maharashtra (2013) 6 SCC 417 , the Hon’ble Apex Court in para-18 has held as under:- 18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [ (1996) 2 SCC 317 : 1996 SCC (Cri) 271] , this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [ (2000) 9 SCC 153 : 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar [ (2001) 6 SCC 407 : 2001 SCC (Cri) 1148], Rattanlal v. State of J&K [ (2007) 13 SCC 18 : (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [ (2008) 16 SCC 561 : (2010) 4 SCC (Cri) 50], has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution. After going through the aforesaid judgment, it is clear that in the facts and circumstances of ths case; non examination of I.O has prejudiced the case of the appellants. 8. It further transpires from record that P.W.-2 who claimed to be eye witness has deposed in paragraph no.2 that when the appellant assaulted him, he fled away and raised hulla thus; so far allegation of rape is concerned, the same was not corroborated by him being not present at the place of occurrence. Further, the statement made by this witness in paragraph-13 that he wanted to compromise the matter for a sum of Rs.10,000/- but the same was not paid; itself goes to show that the entire story is concocted and must have been done with some ulterior motive. As aforesaid, the doctor, who has been alleged to have inspected the victim, has not been examined by the prosecution; as such the allegation of rape is not corroborated by either the injury report or deposition of doctor which is necessary in the case of charge under Section 376 IPC. Further, P.W-3 (husband of victim) P.W.4(Mama of victim) are hearsay witnesses. P.W.-5, 6, 7 and 8 are also hearsay witnesses and P.W-9 was formal witness. 9. Looking to the aforesaid infirmity in the prosecution case, this Court is of the firm view that the appellant deserves the benefit of doubt and the impugned judgment requires interference. Consequently, the judgment of conviction and order of sentence dated 18.06.2003 & 20.06.2003, respectively, passed by learned Additional Judicial Commissioner-FTC, No.V Ranchi, corresponding to S.T. No.72 of 91, is hereby, quashed and set aside. 10. The appellant is discharged from the liability of his bail bonds. 11. Accordingly, the instant criminal appeal, is hereby, allowed. Pending I.A., if any, is also closed. 12. Let a copy of this order be sent to the court below and to the appellant through the concerned police station and the lower court record be sent to the court concerned forthwith.