CRIMINAL APPEAL(S.J.) NO. 1019 of 2008
Against the judgment of conviction dated 18.3.2008 and order of
sentence dated 19.3.2008 passed by Shri Rajesh Kumar Dubey, the
learned Sessions Judge, Latehar in S.C. No. 9 of 2006.
Rajdeo Oraon ........................................................ Appellant
Versus
The State of Jharkhand .............................................. Respondent
For the Appellant :- Mr.Rakesh Kumar Advocate.
For the State :- Mr. Binod Singh, A.P.P.
C.A.V. on 1.10.2010 Delivered on 14-3-2011
PRESENT
THE HON'BLE MR. JUSTICE D.K. SINHA
D.K. SINHA,J The instant Cr. Appeal is directed against the judgment of
conviction dated 18.3.2008 and order of sentence dated 19.3.2008 passed
by Shri Rajesh Kumar Dubey, the learned Sessions Judge, Latehar in S.C.
No. 9 of 2006 by which the appellant was convicted under section 376(2)
(g)/109 of the Indian Penal Code and was sentenced to undergo rigorous
imprisonment for ten years. He was further convicted in part(ii) of
Section 304/34 of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for seven years and to pay fine of Rs. 5000/- with
default stipulation, however, with the direction that both the sentences
would run concurrently against him.
2. The prosecution story in short was that in the night
of 7.8.2005 at about 10 p.m. accused(appellant) Rajdeo Oraon came to the
house of the informant Neema Oraon where he came across Surji
Devi(since deceased) and asked her to arrange liquor. To find out liquor in
the village he requested Surji Devi and both came out from her house
leaving her husband Neema Oraon there. After sometime Rajdeo Uraon
returned back and informed the informant Neema Oraon that his wife Surji
Devi was lying at some place in critical condition and he asked Neema
Oraon to take back Surji Devi at home. Pursuant to such information, the
informant Neema Oraon,his daughter Prabha Devi accompanied Rajdeo
Oraon to the place but Surji Devi was not there. The informant then raised
alarm whereupon the witnesses Shiban Oraon and Sugan Oraon came
there and all enquired from Rajdeo Oraon as to the whereabouts of Surji
Devi. The informant Neema Uraon then came to the road where he heard
cry and murmuring originated from a bush in fibble voice .All went
towards the origin of the voice and found a person committing rape upon
Surji Devi. The person at the sight of the witnesses tried to escape but he
could be overpowered and on interrogation disclosed his name Ramesh
Kumar. Surji Devi was found unconscious and was partially naked. She
was brought to the home but she died at about 5 a.m. after she vomited
intermittently for whole of the night. The occurrence was witnessed by
Akhilesh Oraon, Jagatar Oraon,Khiru Oraon and Sukan Oraon. The police
arrived in the morning of 8.8.2005 at 7.30 a.m. on information and
recorded the Fardbeyan of the husband Neema Oraon of the deceased
Surji Devi. Inquest report of the deceased was prepared and the dead body
was sent for post mortem examination. The statement of other witnesses
were recorded and the police visited the place of occurrence. In the post
mortem examination her vagina was found full of seminal fluid and her
face swollen , as such, viscera was preserved. The Investigating Officer
after investigation of the case submitted chargesheet against the appellant
Rajdeo Oraon and Ramesh Kumar for the alleged offence under sections
376/304/34
of the Indian Penal Code. Charge,however was framed by the
Sessions Judge, Latehar against them under sections 376(2)(g) and 304/34
of the Indian Penal Code and they were put on trial..
3. During course of trial the prosecution examined
P.W.1 Siban Oraon,P.W.2 Sugan Oraon,P.W.3 Akhilsh Oraon,P.W.4
Neema Oraon,P.W.5 Prabha Devi,P.W.6 Awadh Kumar Yadav,P.W.7
Manoj Kumar Gupta and P.W.8 Ravindra Narain . Beside, the prosecution
proved several other documents such as the inquest report, Formal F.I.R.
and the post mortem report of the Surji Devi.
4. P.W.1 Siban Oraon,P.W.2 Sukan Oraon,P.W.3
Akhilesh Oraon,P.W.4 Neema Oraon(informant) and P.W.5 Prabha Devi
all claimed to be the eye witnesses of the occurrence, who visited the
place of occurrence with the appellant Rajdeo Oraon in course of search of
Surji Devi and when they arrived on the road, they heard cry, someone
crying “AYO DADA MUA DELE”. All went to the bush and found the
co-convict Ramesh Kumar committing rape on Surji Devi though at the
sight of the witnesses he tried to escape but could be overpowered . As
regards the complicity of the appellant Rajdeo Oraon was concerned,
none of the witnesses claimed having seen him committing rape on Surji
Devi except that the appellant Rajdeo Oraon persuaded and took away
Surji Devi on the pretext to arrange liquor for him in the village. After an
hour, according to the informant and his daughter, the appellant Rajdeo
Oraon returned and communicated that Surji Devi was lying unconscious
and he asked the informant to take her back to home. On such information,
the informant P.W.4 Neema Oraon accompanied the appellant Rajdeo
Oraon, followed by his daughter Prabha Devi to the pointed place but
when Surji Devi could not be located there he asked him as to the
whereabouts of his wife Surji Devi and in the meantime the other two
witnesses Shiban Oraon and Sugan Oraon joined them. All came to the
Pitched road during course of search of Surji Devi and only there they
heard the voice originated from a bush situated at the eastern side of the
road and the informant claimed to identify the voice that it belonged to his
wife(deceased). They went towards the bush and found the accused
Ramesh Kumar committing rape on Surji Devi. Ramesh Kumar tried to
flee away at the sight of the witnesses but he was chased and
overpowered. The informant P.W.4 found his wife unconscious and
partially naked. She was removed to the home where she continued
vomiting for the whole of night and died in the morning at about 5
O’clock. Somebody informed the police on telephone and only then the
police came and recorded the statement of the informant .In the cross-
examination the witness admitted that Rajdeo Oraon happened to be the
nephew-in-law in relation and that he had already taken his meal in the
night by the time Rajdeo Oraon came there. The witness admitted having
no enmity with Rajdeo Oraon and that Surji Devi used to take liquor
occasionally. The informant further testified that when he went to the
place of occurrence he spotted Ramesh Kumar naked and that Surji
Devi’s voice ceased and she became unconscious. He admitted having
narrated before the police that it was Ramesh Kumar whom he had found
committing rape and that he had witnessed the accused Ramesh Kumar in
the light of torch when he started fleeing from the bush at some distance of
about 100 yards.
5. P.W.5 Prabha Devi, the daughter of Surji Dev
consistently supported the statement of her father informant(P.W.4).She
testified that the occurrence took place some one and half years ago in
the night when the members of her family including her mother, father and
sister-in-law were sleeping. Then Rajdeo Uraon came at about 10 p.m.
and asked her mother to search out liquor in the village for him. Her
mother accompanied him. After about an hour Rajdeo Uraon returned and
asked the members in her home to take back her mother as she was
trembling at some place. On such information she accompanied her father
and Rajdeo Oraon to the pointed place but her mother was not there. An
alarm was raised whereupon Siben Oraon and Sugan Oraon arrived and
they also accompanied them in search of her mother. After covering some
distance when they arrived at the pitched road, they heard female voice
originating from a bush. All went there and witnessed Ramesh Kumar
committing rape on her mother who started running from the place at the
sight of the witnesses but he was chased and overpowered. She found her
mother partially naked and she was unconscious and vomiting, as such,
she was lifted and brought to the home where she vomited through out
and died in the morning.. She named the witnesses who had seen the
occurrence. Both the accused Rajdeo Oraon and Ramesh Kumar were
apprehended and confined in the village. The police came in the morning
on information given on telephone and took away both the accused to the
police station. In the cross-examination she admitted that Rajdeo Oraon
happened to be the brother-in-law of her brother who was on visiting
terms in her house. She admitted that though her mother was in a habit of
taking liquor but on that day she had not consumed and that she had
accompanied Rajdeo Oraon in search of liquor. She further admitted that
Rajdeo Oraon was all along with them until her mother could be located
and removed to the house while she was unconscious. .Ramesh kumar was
not known to her from before and that no treatment was extended to her
mother in the night though she was vomiting. She denied that her mother
died of consuming spurious liquor.
6. P.W.6Awadh Kishore Yadav i.e the Investigating
Officer of the case testified that on 8.8.2005 about 6 a.m. he heard rumor
with respect to certain occurrence which took place at the village
Pipratola Parsahi while he was posted at Mnika police station. Upon such
information he proceeded to the village Pipratola Parsahi after making
entry in the station diary. He recorded the statement of the informant
Neema Oraon in his pen and signature at the same village. He proved the
endorsement made on the Fardbeyan in his pen and signature and formal
FIR and his signature thereon. He prepared the inquest report of the
deceased in presence of the witnesses and examined the place of
occurrence which was the barren land of one Dhobia Mahato of village
Pipratola Parsahi, with wild bushes grown thereon within the
circumference of 30/40 Metres. He found dragging mark on the ground in
grasses surrounded by bushes, pointed out to be the place of alleged
occurrence. He had given the boundary of such land by describing that the
Ranchi Medninagar, main road was situated at the distance of 50 yards
from the said place. He admitted having not found any other
incriminating article like broken bangles, hair or piece of cloths etc.
except dragging mark at the place of occurrence and further admitted
having seen the cloths on the dead body of Surji Devi and bangles in her
wrists. He further admitted that Viscera which was delivered by the
Doctor after her autopsy could not be sent for test, rather the same was
preserved as the material exhibit.
7. It would be relevant to mention that the post
mortem report though was proved by the formal witness P.W.7 Manoj
Kumar Gupta, an advocate’s clerk but after examination of the accused
Rajdeo Oraon under section 313 Cr.P.C. Dr. Ravindra Narain was
summoned, who had held autopsy, as court witness. He deposed that on
while 8.8.2005 he was posted as the Medical Officer at the sub-
Divisional Hospital Latehar where he held post mortem examination on
the body of Surji Devi, a Hindu female, aged about 45 years w/o Neema
Oraon and he found the following :-.
(1) Rigor mortis was
present on both upper and lower limbs.
(II) Ante-mortem injury :-
Face was swollen, multiple bruise were found
present, face blackish in colour, vagina was full of
seminal fluid.
Visceras were preserved for chemical examination. He
reserved his opinion as to the cause of her death. Time since death was
determined between 48 to 72 hours. He identified the post mortem report
in his pen and signature which was already proved by formal witness and
marked Ext.1/5. the witness admitted in his cross examination that he had
not examined the fluid present in the vagina of the deceased under the
microscope and he did not deny that it might be Leucorrhoea discharge.
Finally he opined that her death was not possible due to injuries found on
her body.
8. The learned counsel submitted that the appellant
Rajdeo Oraon has been convicted by the Sessions Judge without any legal
evidence on the record on both the counts i.e. under sections 376(2)
(g)/109 and Part-ii of Sections 304/34 of the Indian Penal Code. Neither
direct evidence nor circumstantial evidence could be brought against him
during trial that he had abetted Ramesh Kumar to commit rape on Surji
Devi or that he had committed culpable homicide which did not amount
to murder with the knowledge that his act was likely to cause death of
Surji Devi so as to attract his conviction. The prosecution witnesses failed
to establish nexus between the appellant Rajdeo Oraon and the co-convict
Ramesh Kumar in any of such alleged crimes. Even there was no
circumstantial evidence to infer that the appellant Rajdeo Oraon had
abetted Ramesh Kumar to commit rape on Surji Devi. The court witness
Dr. Ravindra Narayan who had held autopsy of Surji Devi opined on the
guess work that he found that her vagina was full of seminal fluid but
admitted in the cross examination that the fluid was not examined by
him under microscope and in the same breath he did not deny the
suggestion that such fluid found in the vagina of the deceased could be
Leucorrhoea discharge. None of the witnesses claimed having seen the
appellant Rajdeo Oraon either indulged in the gang rape with Ramesh
Kumar committing on Surji Devi or abetting the co-convict for
committing such offence and therefore, conviction of the appellant on both
the counts by the trial court would tantamount to miscarriage of justice.
Otherwise also he remained all along with the witnesses since the very
beginning assisting in recovery of Surji Devi from the bush till her death
and had not left the place. He was closely related to the deceased being
brother-in-law of her son and was on regular visiting terms and having no
criminal antecedent or any kind of misconduct in his past which needed
conscious consideration for his acquittal.
9. Heard Mr. Binod Singh, the learned A.P.P. on
behalf of the Respondent-State.
10. Mr.Singh conceded that though there was no eye
witness of the occurrence but a strong circumstance against the appellant
Rajdeo Oraon who had taken away Surji Devi on the pretext to search
out liquor for him in the dead of night but returned alone apprising the
informant/husband that she was grasping and was in serious condition at
some place. He took the witnesses at the pointed place but she was not
there. When the witnesses went towards the pitched road in the wake of
searching her, they heard her voice emerging from the bush and when
proceeded in the same direction they found Ramesh Kumar committing
rape who was chased and apprehended when tried to escape at the sight of
the witnesses. The appellant was silent and did not explain in his
statement recorded under section 313 Code of Criminal Procedure as to
under what circumstances he had left Surji Devi alone in the dead of night
in the hands of Ramesh Kumar. He was the last person found in the
company of the deceased prior to her death and only on the persuasion of
this appellant Surji Devi had accompanied her in the night for searching
out liquor for him.
11. Admittedly none of the witnesses claimed having
seen the appellant Rajdeo Oraon either committing rape on Surji Devi or
abetting the co-convict Ramesh Kumar for doing so. He was all along
with the informant Neema Oraon and his daughter Prabha Devi after he
communicated the critical condition of Surji Devi requesting them to take
her back to home. The fact has been left unanswered and the prosecution
failed to connect the missing link as to what happened between the period
the appellant Rajdeo Oraon took away Surji Devi with him to search out
liquor in the village around 10 p.m. but returned alone conveying her
critical condition. The prosecution even failed to establish nexus between
the appellant Rajdeo Oraon and the co-convict Ramesh for the alleged
offence. Premeditation to commit gang rape and culpability of death of
Surji Devi being not categorized as the murder could not be proved against
the appellant Rajdeo Oraon. The doctor did not ascertain the cause of her
death, at the same time observed that the injuries found on her body were
not sufficient to cause death. The victim on account of sustaining
external violence was speechless so she could not declare as to the cause
of her death. The doctor in the post mortem report mentioned that he had
found seminal fluid in her vagina but during course of cross examination
he did not deny that it could be Leucorrhoea as the fluid was not
examined by him under the microscope .Even the cause of her constant
vomiting in the fateful night could not be established by the medical
evidence. It was unfortunate on the part of the prosecution that viscera
which was given to the Investigating Officer after autopsy of Surji Devi
was never sent to the Forensic Science Laboratory to find out as to what
was the cause of her death. The witnesses were consistent having seen
only accused Ramesh Kumar committing rape on Surji Devi and that
suspicion was raised against the appellant Rajdeo Oraon that he abetted in
commission of gang rape because Surji Devi had proceeded with him.
The ingredients to constitute an offence of gang rape under section 376(2)
(g) could not be fulfilled as it was not the case that the appellant Rajdeo
Oraon had participated in gang rape but the charge was that he abetted
in commission of gang rape and accordingly he was convicted for the
said offence without there being any legal evidence on the record, except
suspicion. The prosecution failed to prove the charges either of abetting
the commission of gang rape or of culpability of homicide of Surji Devi
which did not amount to murder as against the appellant Rajdeo Oraon
beyond shadow of all reasonable doubts. It is settled that “serious the
offence, heavy the burden upon the prosecution to prove the charge”. I
am, therefore, of the firm view that the prosecution failed to discharge its
heavy burden and the appellant was convicted without any legal evidence
on the record and that merely on suspicion. Even the chain of
circumstances which suspected the complicity of the appellant has been
found broken at places. In his statements recorded under section 313 of
Cr.P.C. he was never confronted with any incriminating material that he
either participated in gang rape or abetted to any one for such offence or
that he committed culpable homicide in furtherance of common
intention which did not amount to murder as because there was no
material at all on the record but he was convicted on erroneous
consideration which amounts to miscarriage of justice.
12. In the facts and circumstances, the judgment of
conviction and order of sentence recorded against the appellant Rajdeo
Oraon by the learned Sessions Judge, Latehar in S.C. No. 9 of 2006
arising out of Manika P.S. case No. 17 of 2005 is setaside. This Criminal
appeal is allowed. The appellant Rajdeo Oraon is directed to be set at
liberty at once if he has not yet been released..
(D.K.Sinha, J)
Jharkhand High Court, Ranchi.
Dated 14 -3-2011/SD/NAFR
(J.H.C. Sch.IV-9)
IN THE HIGH COURT OF JHARKHAND,
RANCHI
RANCHI
Dated , the 14th March, 2011
(Criminal Jurisdiction)
THE HON’BLE MR. JUSTICE D.K.SINHA
Cr.Appeal No. 1019 of 2008
Rajdeo Oraon . … … …Appellant
The State of Jharkhand … …Respondent
————
Against the judgment of conviction dated 18.3.2008 and order of sentence
dated 19.3.2008 passed by Shri Rajesh Kumar Dubey, the learned
Sessions Judge, Latehar in S.C. No. 9 of 2006.
————
COURT ORDER
In the facts and circumstances, the judgment of conviction and
order of sentence recorded against the appellant Rajdeo Oraon by the
learned Sessions Judge, Latehar in S.C. No. 9 of 2006 arising out of
Manika P.S. case No. 17 of 2005 is set aside. This Criminal appeal is
allowed. The appellant Rajdeo Oraon is directed to be set at liberty at
once if he has not yet been released..
[D.K.Sinha,J.]
————-
Memo No……………………Cr.
Copy forwarded to the……………………………………………………..for
Information and necessary action with reference to his order dated
the ……………………………..day of ………………20……………and or
communication to the ……………………………Magistrate…………………..Class
of……………………….
HIGH COURT
“formal rule with follow”
By order of the High Court
Asstt. Registrar
The………………..20…..