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2023 DIGILAW 485 (JHR)

Cheruwa Kuwar @ Anant Kuwar v. State of Jharkhand

2023-04-10

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dated 17.06.2003 passed by learned 3rd Additional District & Sessions Judge, Dumka corresponding to S.T. No.76 of 88/639 of 02, whereby the appellant was convicted for the offence under Section 376 IPC and sentenced to undergo R.I. for a period of Five years for the offence under Section 376 IPC. 3. The brief fact of the case is that on 27.02.1987 informant was going to Tetaria village along with his brother and sister-in-law (Bhaiya & Bhabhi) and at about 6.p.m in the evening when they were on the way, four persons suddenly came out and caught hold of the informant and took her in the field. The brother and sister-in-law fled away out of fear. Thereafter, all four accused persons committed gang rape on the informant forcibly for the whole night. In the morning informant went to village Tetaria and narrated the alleged occurrence. 4. Mr. Indu Shekhar Gupta learned counsel for the appellant assisted by Mr. Ranjan Kr. Singh and learned Amicus, Ms. Abha Verma, made following submissions:- (i) The FIR has been lodged after two days as such it can be inferred that the F.I.R. is an afterthought. (ii) The I.O has not been examined in this case so as to corroborate the place of occurrence and manner of occurrence. (iii) Even the Doctor has not been examined in this case so as to prove the charge under Section 376 IPC. (iv) Although as per the prosecution case there were four persons involved, however one of the co-accused Mahabir Rout was acquitted by the learned trial court in different trial, marked as Ext. A, against whom there was a direct allegation of rape. He draws attention towards the deposition of P.W.3 and submits that P.W.3 has categorically stated in his examination-in-chief that Mahabir Rout was in police custody and villagers were assembled there and Mabavir Raut has confessed the commission of rape upon the victim lady. Since the main accused has been acquitted from the charge of Section 376 IPC there is no reason as to why the learned trial court has convicted the appellant. (v) He further draws attention of the evidence of P.W.1 and submits that she also did not identify the appellant on the dock with certainty. Since the main accused has been acquitted from the charge of Section 376 IPC there is no reason as to why the learned trial court has convicted the appellant. (v) He further draws attention of the evidence of P.W.1 and submits that she also did not identify the appellant on the dock with certainty. (vi) Even the brother and sister-in-law of the victim who were going along with the victim have not been examined for reason best known to the prosecution. Relying upon the aforesaid submissions learned counsel for the appellant submits that the instant appeal may be allowed and the judgment passed by the learned trial court be set aside. 5. Learned APP has supported the judgment and submits that there is no error or perversity in the impugned judgment as the learned trial court after dealing with the evidences found the appellant guilty and thus convicted him. So far as delay is concerned, the victim is a rustic villager and it is quite natural for a village girl not to say about the offence freely and that is the reason of delay of one day because the offence has been committed on 27.2.1987 in the evening and on the next day the F.I.R has been lodged. However, learned APP could not revert the argument of the learned counsel for the appellant with regard to the examination of doctor and I.O. She also could not able to reply to the query as to why the brother and sister-in-law (bhaiya and bhabhi) who accompanied with the victim at the time of occurrence, have not been examined. 6. Having heard learned counsel for the parties and after going through the impugned judgment and the documents available on LCR, it appears that the appellant has been convicted under Section 376 IPC; though initially charges were framed for the offence under Section 379 and 376 IPC but finally the learned trial court acquitted this appellant from the charge under Section 379 IPC. All together four prosecution witnesses were examined in this case including the informant. However out of PWs, P.W.-2 who was Ex-Mukhiya has been declared hostile and P.W.-4 was formal witness; per se, the deposition of informant-P.W.-1 was the sole basis of conviction. 7. It further emerges from record that no T.I.P has been conducted by the prosecution for identification of the accused by the informant. However out of PWs, P.W.-2 who was Ex-Mukhiya has been declared hostile and P.W.-4 was formal witness; per se, the deposition of informant-P.W.-1 was the sole basis of conviction. 7. It further emerges from record that no T.I.P has been conducted by the prosecution for identification of the accused by the informant. From the deposition of victim girl, she herself has stated in paragraph no.5 of her deposition in reply to the court’s query that she was not certain as to whether the appellant was present at the time of occurrence. For brevity paragraph nos.5 and 6 of the deposition of P.W.-1 is quoted hereinbelow:- 5- iz0& Tkks vkneh dks vkius galMhgk pkSd ij igpkuh vkSj idMh Fkh D;k ;g vkneh ogh gS \ M0& ges [;ky ugh gS D;ksfd cgqr fnu gks x;kA 6- vfHk;qDr pwWafd vHkh dV?kjk esa [kMk gS blfy, es vUnkt ls vHkh crkb fd blus Hkh esjk cyRdkj fd;k Fkk So, by going through the aforesaid deposition it can be inferred that the victim lady was not self-assured regarding identification of this appellant. 8. It further transpires from deposition of P.W.-3 who was the Mukhiya of the Village, though he has been declared hostile, that one Mahavir Raut has accepted the commission of rape on the victim girl. For brevity relevant portion of paragraph no.1 is quoted hereinbelow:- --------egknso dks iqfyl idMdj j[kk FkkA xkzfe.k tek FkkA pqMdh dks mlus jsi fd;k FkkA egkohj us nks"k Lohdkj fd;k Fkk rFkk crk;k fd eqerkt------A At this stage it is also relevant to mention that Ext.A is the judgment passed in the case of Mahabir Rout which transpires that Mahavir Raut has been acquitted from the charge of 376 IPC. 9. Further, from the time of occurrence it can be presumed that 18.30 i.e., 6.30 p.m. evening in the month of February is not that late and not so dark that the victim cannot see the accused. Additionally; in evening of February, the place of occurrence cannot be so lonely that no villagers or passerby will be available but the facts remains that none of the independent witness has been examined in order to support the prosecution case. Even the I.O has not been examined so as to prove the time, manner and place of occurrence. Additionally; in evening of February, the place of occurrence cannot be so lonely that no villagers or passerby will be available but the facts remains that none of the independent witness has been examined in order to support the prosecution case. Even the I.O has not been examined so as to prove the time, manner and place of occurrence. It also emerges from record that the doctor has also not been examined in this case and in any such offence the deposition of doctor is indispensable so as to corroborate the veracity of the statement of the victim. 10. Last but not the least; as per the prosecution case and the deposition of the victim herself it is admitted that the victim was going to Tetaria village along with his brother Master Hansda (Bhaiya) and her sister-in-law (Bhabhi); however, for the reason best known to the prosecution, none of them who were the actual eye witnesses of the alleged offence have been examined. The learned trial court has failed to consider all these aspects of the matter. The trial court has also not given much weightage to Exhibit-A, which is the judgment in another case where Mahabir Rout has been acquitted from the charge under Section 376 IPC. It is a settled principal of criminal jurisprudence that the prosecution has to prove the case beyond all shadow of reasonable doubts which is missing in the instant case. At the cost of repetition, in the instant case the victim herself could not identify the appellant with sureness. Further non-examination of I.O and doctor highly prejudice the prosecution case. In view of the aforesaid discussions, the instant appeal requires interference. 11. Consequently, the judgment of conviction and order of sentence dated 17.06.2003 passed by learned 3rd Additional District & Session Judge, Dumka corresponding to S.T. No.76 of 88/639 of 02, is hereby, quashed and set aside. 12. The appellant is discharged from the liability of his bail bonds. 13. Accordingly, the instant criminal revision application, is hereby, allowed. Pending I.A., if any, is also closed. 14. Let a copy of this order be communicated to the court below and also to the Secretary, Jharkhand High Court Legal Services Committee for quantify the fee of the learned amicus and the lower court record be sent to the court concerned forthwith.