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Jharkhand High Court
Mikail Tudu & Ors. vs State Of Jharkhand on 17 November, 2011
                         Criminal Appeal (S.J) No. 579 of 2002
                                            -----------

(Against the judgment of conviction and order of sentence dated 24.08.2002
and 26.08.2002 respectively passed by the Sessions Judge, Dumka in Session
Case No. 345 of 1990).

———–

1. Mikail Tudu

2. Vakil Murmu

3. Motilal Soren

4. Sunil Hansda

5. Gopin Soren

6. Shankar Hansda

7. Sanat Soren …… Appellants

–Versus–

          The State of Jharkhand                             .......      Respondent
                                            ------------
          For the Appellants:          Mr. S.P.Roy, Advocate.
          For the Respondent         : Mr. Swapan Manjhi, A.P. P.

                                          PRESENT

                         HON'BLE MRS. JUSTICE JAYA ROY

                                           ----
                                        JUDGMENT

               C.A.V. ON 07.12.2010                       PROUNCED ON..../11/ 2011.
                                          ------
Jaya Roy, J.          The appellants have filed this appeal against the Judgment of

conviction and order of sentence dated 24.08.2002 and 26.08.2002 passed
by the Sessions Judge, Dumka Session Case No. 345 of 1990), whereby he
has convicted the appellant under Section 376 of the Indian Penal Code
and sentenced him to undergo R.I. for ten years and the sentenced to run
concurrently.

2. The prosecution case in brief is that a case has been registered on
a written report of Sushila Kisku daughter of Lubin Kisku wherein she
has stated that on 22.11.86 at about 4.P.M., she along with her friend
Shilbanti Kisku and her brother Anand Kisku and Bhabhi had gone to
the village Kushpahari under P.S. Shikaripara, District Dumka to see
Rash Mela. When they were returning from Rash Mela on 22.11.86 and
reached at Karma Morh, at about 6. P.M., nine boys intercepted them
and assaulted the brother and Bhabhi of the informant and forced them
to flee away and then six boys raped the informant and three boys raped
her friend Shilbanti Kisku. The informant said that accused Sanat Soren,
Vakil and Shankar and three unknown boys raped her. She further
stated that the rest three unknown boys raped her friend Shilbanti Kisku.
She has further stated that after half an hour of the occurrence, her
parents and other persons came from the village and then the accused persons
fled away. Then the informant and their parents went to the village
Pradhan of village Karma. But the village Pradhan refused to decide the
matter and then they came to the police Station. The informant has further
alleged that the accused persons snatched her gold ear ring and silver
chain also. The Police has registered Dumka (M) P.S. Case No.100/86
under Section 376 and 379 I.P.C. and after investigation submitted the
charge sheet only under Section 376 of the I.P.C. against the aforesaid
appellants and two others namely Debi Dhan Hansda and Babulal Soren.
During the pendency of this case Baburam Soren died and the trial court
acquitted the Debidhan Hansda by its aforesaid judgment.

3. The prosecution to prove its case has examined 13 witnesses namely
P.W.1 Lobin Kisku, P.W.2 Rabedha Besera, P.W.3 Anant Kisku, P.W.4
Lal Soren, P.W.5 Sunil Murmu, P.W.6 Wakil Kisku, P.W.7 Jiwan Kisku,
P.W.8 Sushila Kisku (the victim), P.W.9 Basant Kumar Dey, P.W.10 Dr.
Pushpa Lata Tudu, P.W.11 Babulal Das, P.W.12 Manoj Kumar Verma
(Judicial Magistrate), and P.W.13 Shilwanti Kisku (Victim). The P.W.4
and P.W.5 have been declared hostile by the prosecution and P.W.9 and
P.W.11 are the formal witnesses. The prosecution has not examined the
I.O. and no reason has been assigned for the same.

4. The learned counsel of the appellant has submitted that there is no eye
witness of the alleged occurrence except P.W.8 and P.W.13 who are
alleged to be victim of the occurrence. P.W.13 Shilwanti Kisku has stated
in her evidence that she could not identify any of the accused person. Even
in the T.I. Parade she could not identify any of the appellants.

5. Mr. S.P.Roy, the learned counsel of the appellants has submitted that
the only material witness is P.W.8 according to her statements in the
F.I.R. and also in her evidence she named three persons only. She even in
T.I. Parade only identified Mikail Tudu (the appellant no.1). The T.I.
Chart is Exhibit-6.

6. P.W.1 Labin Kisku is the father of victim Sushila Kisku. He has
stated in his evidence that when he was in his house, he was informed
about the occurrence by his nephew Anand Kisku and then he went to the
place of occurrence and found both the girls were in unconscious state at
the place of occurrence. He has further stated that both the victim girls
told about their alleged rape and also named Sanat and Shankar and one
other accused whose name was not being remembered by him. On the
next day, he went to the village Pradhan of Karma village but as he
refused to take any action then the present case was lodged at the Police
Station. He has also stated that both the victim girls were examined at
Sadar Hospital, Dumka on 23.11.1986 at about 6.00 P.M. and further
stated in his evidence at para-9 that the victim girls came to their sense at
his house and then told about the occurrence. He has also stated in
para-10 that cloths of the victim girls were not at the place of occurrence.
During his cross examination he has admitted that his daughter Sushila
Kisku and her friend Shilwanti Kisku were unmarried at the time of
occurrence. Thus, P.W.1 is purely a hearsay witness.

7. P.W.2 Rabedha Besera is the wife of Lobin Kisku (mother of the
Sushila Kisku). She has stated in her evidence, she was informed about
the occurrence by her nephew Anand Kisku and his wife. Thereafter, she
along with her husband and few other and with few villagers went to the
place of occurrence and found both the victim girls lying there
unconscious. She has also stated that all the nine accused persons fled
away when they arrived at the place of occurrence. She has stated in her
evidence that she had seen the accused Baburam Soren (now dead)
running away from the place of occurrence but the name of Baburam
Soren was not mentioned in the F.I.R. though the said F.I.R. was lodged
after one day of the alleged occurrence. She is also a hearsay witness.

8. P.W.3, Anant Kisku is the brother of victim Sushila Kisku, he has
stated that when he was returning from Rash Mella along with his wife
and both the victim girls, the accused persons came and assaulted him
and taken away both the girls with them. He and his wife fled away from
there and came to his house and told the same to his uncle Labin Kisku
and then they along with few other persons went to the place of
occurrence and on seeing them, accused persons fled away. In his cross
examination he has stated that few peoples were passing by on the road
but he did not informed them neither raised any hulla when both the
victim girls were taken away by the appellants.

9. P.W.6, Wakil Kisku is also hearsay witness but in his statement he
has said that he went to the place of occurrence carrying Lantern and
Lathi. He has also stated that he also identified Baburam Soren.

10. P.W.7, Jiwan Kisku who is also a nephew of P.W.1 who has stated
that he went to the place of occurrence along with the villagers and he
identified in the light of Lantern and Torch Sanat, Sunil, Gopin and
Baburam also.

11.Mr. S.P.Roy, the learned counsel of the appellant has submitted that
though Baburam Soren was identified at the spot by the three witnesses
(P.W.2 and P.W.6 and P.W.7) and admittedly F.I.R. was lodged on the
next day but surprisingly the name of Baburam was not mentioned in
the said F.I.R. He has further pointed out that P.W.7 who is nephew of
P.W.1 (i.e. cousin of the informant) has identified Gopin at the place of
occurrence but the name of Gopin was also not mentioned in the F.I.R.
All these things cast a doubt on the prosecution story.

12. P.W.10, Doctor Pushpa Lata Tudu who examined both the victim
girls on the next day of the alleged occurrence at about 6.P.M., has
opined that no definite opinion could be given whether they were raped
or not. She has also stated in her statements and also in her report that no
external or internal injury were found on both the girls. She has further
stated that if three to four persons have forcibly intercourse with a girl
then extensive injuries are expected. Thus, the Doctor has not supported
the prosecution case at all.

13. Mr. S.P.Roy, the learned counsel for the appellants has submitted
the only witness is P.W.8 (one of the victim girl) but her evidence is not
at all trustworthy as there are major contradictions in her evidence. The
learned counsel has pointed out that the P.W.8 has submitted she and her
friend were kept by the accused persons for one and half hour and
thereafter the accused persons fled away. When her parents and villagers
came, both the victim girls went to their house with them. Furthermore,
the P.W.8 has stated that she has received numbers of injuries even
when her parents and villagers came, blood was oozing from her body
and her clothes were soaked with bloods and she was taken to her house
on a cot. Where as the P.W.1 the father of P.W.8 has stated that when
he along with his wife (P.W.2) and other villagers reached at the place
of occurrence, both the victim girls were lying naked and unconscious
and their clothes were not there. It is further pointed out that P.W.8 has
very specifically stated that she could not identified any of the accused
persons who committed rape upon Shilwanti (the other victim). She has
further stated that in T.I. Parade she has identified only one person. On
the other hand the P.W.13 the another victim girl has stated that they
were detained by the accuseds for whole night and accused persons
committed rape on them.

14. The learned counsel has contented that the prosecution has not
examined the I.O. nor has assigned any reason for his none
examination. The appellants are highly prejudiced for the same.

15. After going through the records and the argument advanced by
both the parties, admittedly P.W.8 is the only witness of the alleged
occurrence who is alleged to be a victim. All other witnesses are
hearsay witness therefore, her evidence should be scrutinized very
carefully. According to the F.I.R., P.W.8 named three persons and
claimed to identify other accused persons but in T.I. Parade she has
identified only one person but has not stated whether the said accused
has committed rape upon her. The Exhibit-6 also proves the same. From
the record, I further find that there are major contradictions in the
evidence of the P.W.8 and in the evidence of other witnesses who
according to the prosecution case reached at the place of occurrence just
after the alleged occurrence. Enen the evidence of P.W.8 and P.W.13
are also contradictory to each other.

16. The learned counsel of the appellant has rightly pointed out that in
the evidence of P.W.3 the brother of the victim girl, it has come that
there are few other villagers at a short distance when the aforesaid
accused persons assaulted him and his wife and dragged the aforesaid
two victim for committing rape upon them. But the P.W.3 and his wife
did not raised any hulla or inform the said persons. Utter surprise, they
went to their house and informed the parents of the victim.
Furthermore, though according to the prosecution a number of villagers
came to the place of occurrence with the parents with the victim girls
but prosecution has not examined a single villagers. Furthermore, the
Doctor has not supported the prosecution case. From the record, I find
three witnesses i.e. P.W .2, P.W.6 and P.W.7 have stated in their
evidence that they have identified Baburam Soren and Sanat, Sunil,
Gopin at the place of occurrence but neither Baburam nor Gopin was
named in the F.I.R.

17. No doubt, it is true that to hold an accused guilty for commission
of an offence of rape, the solitary evidence of the prosecutrix is
sufficient provided the same inspires confidence and appears to be
absolutely trustworthy, unblemished and should be of sterling quality.
In the present case the only witness P.W.8 who is one victim also but
there are numbers of major contradictions, even with her own evidence
and the contention of the F.I.R. which was lodged by her just after one
day. Admittedly the evidence of other witnesses does not corroborate
with her evidence. The other victim girl P.W.13 could not identfy in
T.I. Parade any of the appellants which is very clear from the Exhibit-6.
Thus, in my opinion, P.W.8 was certainly not telling the truth.
Therefore, it is neither prudent nor safe to hold the appellants guilty of
commission of the aforesaid offence.

18. Considering all the aspects as stated above, in my opinion the
prosecution has failed to prove the aforesaid charge against the
appellants. Therefore, I allow this appeal and the judgment dated
24.8.2002 and the order of sentence dated 26.08.2002 passed by the
Sessions Judge, Dumka in Session Case No. 345 of 1990 are, hereby, set
aside and quashed. As the appellants are on bail, they are discharged
from their liabilities of the bail bonds.

(Jaya Roy, J)
Jharkhand High Court, Ranchi,
Dated the 17th November, 2011
N.A.F.R./ S.I.


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