Criminal Appeal (SJ) No. 594 of 2002
with
Criminal Appeal (SJ) No. 537 of 2002
(Against the judgment of conviction and order of sentence dated 26.08.2002
passed by Shri B.N. Pandey, Sessions Judge, West Singhbhum at Chaibasa in
Sessions Trial No. 68 of 1999.)
--------------
1. Motu Murmu @ Majhi
2. Loko Majhi ......... Appellants (Criminal Appeal (SJ) No. 594 of 2002)
Parma Tanty......... Appellant (Criminal Appeal (SJ) No. 537 of 2002)
-Versus-
The State of Jharkhand .......... Respondent
---------------
For the Appellants : M/S. Rajesh Kumar, J.K. Mazumdar, Advocates
For the State : Mr. T.N. Verma, A.P.P.
--------------
P R E S EN T
THE HON'BLE MR. JUSTICE PRADEEP KUMAR
By court: This appeal is against the judgment of conviction and order of
sentence dated 26.08.2002 passed by Shri B.N. Pandey, Sessions Judge,
West Singhbhum at Chaibasa in Sessions Trial No. 68 of 1999, by which
judgment, the learned Sessions Judge found the appellants guilty for the
offence under Section 376 (g) of the Indian Penal Code and convicted
them to undergo rigorous imprisonment for ten years.
2. It is submitted by learned counsel for the appellants that all the
three appellants have remained in jail custody for approximately five and a
half years. The appellants namely Motu Murmu @ Majhi and Loko Majhi
were taken into custody on 14.04.1998 and both the appellants have
been released on bail by the order of this Court dated 29.08.2003. The
appellant namely Parma Tanty was taken into custody on 15.04.1998 and
he was released on bail by the order of this Court dated 05.09.2003. It is
further submitted that the prosecution case, as disclosed by the informant,
Achma Gagrai has not be corroborated by the evidence of doctor P.W.2,
Dr. P. Kujur, who examined her just after one day of the occurrence and
found neither injury on the body of the victim girl nor any injury on her
private part and has opined that no rape was committed upon her.
Moreover, the witnesses named in the F.I.R. were not examined in the trial
2
and except her father, P.W.4 and mother, P.W.5, who have stated that
they were informed about the occurrence by their daughter. All the other
witnesses have turned hostile and no one has supported the prosecution
case. In that view of the matter, learned counsel for the appellants has
relied in a decision reported in 2008 (10) Supreme Court Cases page 81
in the case of Premiya @ Prem Prakash Vs. State of Rajasthan, where
it was held by the Hon'ble Supreme Court that in a case where doctor
found that no rape was committed and there is evidence that the victim girl
was dragged by the accused persons by force, the offence committed
comes under Section 354 of the Indian Penal Code, and as such, it has
been submitted that the conviction of the appellants under Section 376 (g)
of the Indian Penal Code is bad in law and fit to be set aside.
3. On the other hand, learned counsel for the State has opposed the
prayer and submitted that the prosecution case has fully been supported
by the evidence of the victim girl, P.W.3 herself and P.W.11, I.O. of the
case has also supported the prosecution case and all the witnesses
examined during investigation supported the fact that she was dragged by
force by the three appellants.
4. After hearing both the parties and after going through the records, I
find that the prosecution was started on the basis of F.I.R. given by the
informant, Achma Gagrai on 11.04.1998 at 20.00 Hrs. stating therein that
she stayed in the house of Raison Manjhi, P.W.9 on rent in village Potka
at Chakradharpur Police Station along with her younger brother and sister
and all of them are the students of Carmel school and she is the student of
Class-X. She stated that on 10.04.1998 in the mid night at 12 night the
three accused persons i.e. Motu Murmu @ Majhi, Loko Majhi and Parma
Tanty entered into her room by breaking upon the 'Chhitkini' lock.
Thereafter, they started searching for her when she went inside the bed.
In the light of 'lantern', which was burning in the room, she identified the
three accused persons. They got hold of her and started dragging her
towards a deserted place. When they were dragging her, she was
shouting for help, then the mother of the landloard namely Deola Manjhi,
P.W.7 came out and her sister also came out and they asked the accused
persons as to why they are dragging her. Then, the accused persons
threatened them, then she started weeping, then, they closed her mouth
and the accused, Parma Tanty put a 'Gupti' on her back. Then, they took
her to a deserted 'maidan' where all the three accused persons committed
rape upon her and thereafter she became unconscious. In the next
morning, she came to her room and told the occurrence to the family
members of the landlord. Then, police was informed, who came on her
room and recorded the statement given by her.
3
5. On the basis of F.I.R., police registered a case under Section
376/34 of the Indian Penal Code and after investigation submitted charge
sheet against the accused persons. Since, the case was exclusively
triable by the court of Sessions, learned magistrate after taking
cognizance committed the case to the Court of Sessions for trial and
subsequently, the case was tried by the Sessions Judge, West
Singhbhum at Chaibasa himself and found the appellants guilty as
aforesaid.
6. It appears that in course of trial, prosecution has examined eleven
witnesses.
P.W.1 is Laxman Murmu.
P.W.2 is Dr. P. Kujur, who examined the victim girl.
P.W.3 is Achma Gagrai, the victim girl.
P.W.4 is Girish Chandra Garai, the father of the victim girl.
P.W.5 is Jaimoni Garai, the mother of the victim girl.
P.W.6 is Arjun singh Murmu.
P.W.7 is Deola Manjhi, the mother of the landlord.
P.W.8 is Munni Manjhi.
P.W.9 is Raison Manjhi, the landlord.
P.W.10 is Rukmoni Murmu
P.W.11 is Nishikand Mishra, the I.O. of the case.
7. It is important to note that P.W.1, Laxman Murmu is a formal
witness and she was declared hostile. Similarly, the mother of the
landlord, P.W.7, Deola Manjhi and the landlord P.W.9, Raison Manjhi also
turned hostile. Further, witnesses P.W.6, Arjun Singh Murmu, P.W.8,
Munni Manjhi and P.W.10, Rukmoni Murmu also turned hostile and they
have not supported the prosecution case. The prosecution has only been
supported by the victim girl, P.W.3, Achma Garai and hearsay witnesses
P.W.4, Girish Chandra Garai and P.W.5, Jaimoni garai, the mother and
father of the victim girl, respectively and the prosecution case is not
supported by the doctor P.W.2, Dr. P. Kujur. P.W.3, Achma Garai is the
informant and P.W.11, Nishikand Mishra is the I,O. of the case.
8. P.W.2, Dr. P. Kujur stated that she has examined the victim girl on
12.04.1998
and found that the victim girl is aged about 16 years and she
neither found the sign of injury over the body nor sign of any injury over
her private part. Also, no foreign material or hair was found. She found
no tenderness on her private part and she opined that no rape was
committed upon her.
9. Although, the victim girl, examined as P.W.3, has supported her
statement as given in the F.I.R. She was taken by force by the three
accused persons and all of them committed rape upon her. But, she
changed the statement so far as the objection made by her landlord’s
4
mother, Deola Manjhi is concerned. In her cross examination, she
admitted that she identified the accused persons in the light of ‘lantern’,
but the ‘lantern’ was also not produced. However, from the evidence of
P.W.11, the I.O. of the case, it appears that the hostile witnesses had
supported the case of kidnapping of the victim girl by the three appellants
and they all stated that she was taken by force from her room. So far as
the occurrence with regard to her kidnapping and attempt to commit rape
is concerned, it has been proved beyond reasonable doubts. Since, the
rape has not been supported by the doctor, who examined the victim girl
on the very next day. In that view of the matter, the conviction of the
appellants under Section 376 (g) of the Indian Penal Code seems to be
excessive, since, rape has not been proved beyond the reasonable
doubts.
10. Thus, the conviction of the appellants under Section 376 (g) of the
Indian Penal Code in the light of the judgment as reported in 2008 (10)
Supreme Court Cases page 81 in the case of Premiya @ Prem
Prakash Vs. State of Rajasthan is altered to that under Section 354/34
of the Indian Penal Code, as stated earlier, since all the three accused
persons have already undergone approximately five and a half years of
sentence during trial and the occurrence took place in 1998, in that view of
the matter, custodial period has already been undergone, and thus, all the
appellants are released from the bondage of their bail bonds.
13. With the aforesaid alteration in the sentence, both these appeals
are allowed in part.
[Pradeep Kumar, J.]
Jharkhand High Court, Ranchi
The 16th December, 2009
R.K./NAFR