{"id":127975,"date":"2011-11-17T00:00:00","date_gmt":"2011-11-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mikail-tudu-ors-vs-state-of-jharkhand-on-17-november-2011"},"modified":"2018-03-30T00:10:23","modified_gmt":"2018-03-29T18:40:23","slug":"mikail-tudu-ors-vs-state-of-jharkhand-on-17-november-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mikail-tudu-ors-vs-state-of-jharkhand-on-17-november-2011","title":{"rendered":"Mikail Tudu & Ors. vs State Of Jharkhand on 17 November, 2011"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Mikail Tudu & Ors. vs State Of Jharkhand on 17 November, 2011<\/div>\n
                         Criminal Appeal (S.J) No. 579 of 2002\n                                            -----------\n<\/pre>\n
          (Against the judgment of conviction and order of sentence dated 24.08.2002
\n          and 26.08.2002 respectively passed by the Sessions Judge, Dumka in Session
\n          Case No. 345 of 1990).\n<\/p>\n
                                            ———–\n<\/p>\n
          1.        Mikail Tudu\n<\/p>\n
          2.        Vakil Murmu\n<\/p>\n
          3.        Motilal Soren\n<\/p>\n
          4.        Sunil Hansda\n<\/p>\n
          5.        Gopin Soren\n<\/p>\n
          6.        Shankar Hansda\n<\/p>\n
          7.        Sanat Soren                             ……         Appellants\n<\/p>\n
                                      –Versus–\n<\/p>\n
          The State of Jharkhand                             .......      Respondent\n                                            ------------\n          For the Appellants:          Mr. S.P.Roy, Advocate.\n          For the Respondent         : Mr. Swapan Manjhi, A.P. P.\n\n                                          PRESENT\n\n                         HON'BLE MRS. JUSTICE JAYA ROY\n\n                                           ----\n                                        JUDGMENT\n\n               C.A.V. ON 07.12.2010                       PROUNCED ON....\/11\/ 2011.\n                                          ------\nJaya Roy, J.          The appellants have filed this appeal against the Judgment of\n<\/pre>\n
               conviction and order of sentence dated 24.08.2002 and 26.08.2002 passed
\n               by the Sessions Judge, Dumka Session Case No. 345 of 1990), whereby he
\n               has convicted the appellant under Section 376 of the Indian Penal Code
\n               and sentenced him to undergo R.I. for ten years and the sentenced to run
\n               concurrently.\n<\/p>\n
               2.     The prosecution case in brief is that a case has been registered on
\n               a written report of Sushila Kisku daughter of Lubin Kisku wherein she
\n               has stated that on 22.11.86 at about 4.P.M., she along with her friend
\n               Shilbanti Kisku and her brother Anand Kisku and Bhabhi had gone to
\n               the village Kushpahari under P.S. Shikaripara, District Dumka to see
\n               Rash Mela. When they were returning from Rash Mela on 22.11.86 and
\n               reached at Karma Morh, at about 6. P.M., nine boys intercepted them
\n               and assaulted the brother and Bhabhi of the informant and forced them
\n               to flee away and then six boys raped the informant and three boys raped
\n               her friend Shilbanti Kisku. The informant said that accused Sanat Soren,
\n               Vakil and Shankar and three unknown boys raped her. She further
\n               stated that the rest three unknown boys raped her friend Shilbanti Kisku.
\n               She has further stated that after half an hour of the occurrence, her
\n parents and other persons came from the village and then the accused persons
\n   fled away. Then the      informant and their parents went to the village
\n   Pradhan of village Karma. But the village Pradhan refused to decide the
\n   matter and then they came to the police Station. The informant has further
\n   alleged that the accused persons snatched her gold ear ring and silver
\n   chain also. The Police has registered Dumka (M) P.S. Case No.100\/86
\n   under Section 376 and 379 I.P.C. and after investigation submitted the
\n   charge sheet only under Section 376 of the I.P.C. against the aforesaid
\n   appellants and two others namely Debi Dhan Hansda and Babulal Soren.
\n   During the pendency of this case Baburam Soren died and the trial court
\n   acquitted the Debidhan Hansda by its aforesaid judgment.\n<\/p>\n
   3.    The prosecution to prove its case has examined 13 witnesses namely
\n   P.W.1 Lobin Kisku, P.W.2 Rabedha Besera, P.W.3 Anant Kisku, P.W.4
\n   Lal Soren, P.W.5 Sunil Murmu, P.W.6 Wakil Kisku, P.W.7 Jiwan Kisku,
\n   P.W.8 Sushila Kisku (the victim), P.W.9 Basant Kumar Dey, P.W.10 Dr.
\n   Pushpa Lata Tudu, P.W.11 Babulal Das, P.W.12 Manoj Kumar Verma
\n   (Judicial Magistrate), and P.W.13 Shilwanti Kisku (Victim). The P.W.4
\n   and P.W.5 have been declared hostile by the prosecution and P.W.9 and
\n   P.W.11 are the formal witnesses. The prosecution has not examined the
\n   I.O. and no reason has been assigned for the same.\n<\/p>\n
   4.    The learned counsel of the appellant has submitted that there is no eye
\n   witness of the alleged occurrence except P.W.8 and P.W.13 who are
\n   alleged to be victim of the occurrence. P.W.13 Shilwanti Kisku has stated
\n   in her evidence that she could not identify any of the accused person. Even
\n   in the T.I. Parade she could not identify any of the appellants.\n<\/p>\n
    5.   Mr. S.P.Roy, the learned counsel of the appellants has submitted that
\n    the only material witness is P.W.8 according to her statements in the
\n    F.I.R. and also in her evidence she named three persons only. She even in
\n    T.I. Parade only identified Mikail Tudu (the appellant no.1). The T.I.
\n    Chart is Exhibit-6.\n<\/p>\n
    6.     P.W.1 Labin Kisku is the father of victim Sushila Kisku. He has
\n    stated in his evidence that when he was in his house, he was informed
\n    about the occurrence by his nephew Anand Kisku and then he went to the
\n    place of occurrence and found both the girls were in unconscious state at
\n    the place of occurrence. He has further stated that both the victim girls
\n    told about their alleged rape and also named Sanat and Shankar and one
\n    other accused whose name was not being remembered by him. On the
\n    next day, he went to the village Pradhan of Karma village but as he
\n refused to take any action then the present case was lodged at the Police
\nStation. He has also stated that both the victim girls were examined at
\nSadar Hospital, Dumka on 23.11.1986 at about 6.00 P.M. and further
\nstated in his evidence at para-9 that the victim girls came to their sense at
\nhis house and then told about the occurrence. He has also stated in
\npara-10 that cloths of the victim girls were not at the place of occurrence.
\nDuring his cross examination he has admitted that his daughter Sushila
\nKisku and her friend Shilwanti Kisku were unmarried at the time of
\noccurrence. Thus, P.W.1 is purely a hearsay witness.\n<\/p>\n
7.    P.W.2 Rabedha Besera is the wife of Lobin Kisku (mother of the
\nSushila Kisku). She has stated in her evidence, she was informed about
\nthe occurrence by her nephew Anand Kisku and his wife. Thereafter, she
\nalong with her husband and few other and with few villagers went to the
\nplace of occurrence and found both the victim girls lying there
\nunconscious. She has also stated that all the nine accused persons fled
\naway when they arrived at the place of occurrence. She has stated in her
\nevidence that she had seen the accused Baburam Soren (now dead)
\nrunning away from the place of occurrence but the name of Baburam
\nSoren was not mentioned in the F.I.R. though the said F.I.R. was lodged
\nafter one day of the alleged occurrence. She is also a hearsay witness.\n<\/p>\n
8.    P.W.3, Anant Kisku is the brother of victim Sushila Kisku, he has
\nstated that when he was returning from Rash Mella along with his wife
\nand both the victim girls, the accused persons came and assaulted him
\nand taken away both the girls with them. He and his wife fled away from
\nthere and came to his house and told the same to his uncle Labin Kisku
\nand then they along with few other persons went to the place of
\noccurrence and on seeing them, accused persons fled away. In his cross
\nexamination he has stated that few peoples were passing by on the road
\nbut he did not informed them neither raised any hulla when both the
\nvictim girls were taken away by the appellants.\n<\/p>\n
9.    P.W.6, Wakil Kisku is also hearsay witness but in his statement he
\nhas said that he went to the place of occurrence carrying Lantern and
\nLathi. He has also stated that he also identified Baburam Soren.\n<\/p>\n
10.    P.W.7, Jiwan Kisku who is also a nephew of P.W.1 who has stated
\nthat he went to the place of occurrence along with the villagers and he
\nidentified in the light of Lantern and Torch Sanat, Sunil, Gopin and
\nBaburam also.\n<\/p>\n
 11.Mr. S.P.Roy, the learned counsel of the appellant has submitted that
\n though Baburam Soren was identified at the spot by the three witnesses
\n(P.W.2 and P.W.6 and P.W.7) and admittedly F.I.R. was lodged on the
\nnext day but surprisingly the name of Baburam was not mentioned in
\nthe said F.I.R. He has further pointed out that P.W.7 who is nephew of
\nP.W.1 (i.e. cousin of the informant) has identified Gopin at the place of
\noccurrence but the name of Gopin was also not mentioned in the F.I.R.
\nAll these things cast a doubt on the prosecution story.\n<\/p>\n
12.   P.W.10, Doctor Pushpa Lata Tudu who examined both the victim
\ngirls on the next day of the alleged occurrence at about 6.P.M., has
\nopined that no definite opinion could be given whether they were raped
\nor not. She has also stated in her statements and also in her report that no
\nexternal or internal injury were found on both the girls. She has further
\nstated that if three to four persons have forcibly intercourse with a girl
\nthen extensive injuries are expected. Thus, the Doctor has not supported
\nthe prosecution case at all.\n<\/p>\n
13.   Mr. S.P.Roy, the learned counsel for the appellants has submitted
\nthe only witness is P.W.8 (one of the victim girl) but her evidence is not
\nat all trustworthy as there are major contradictions in her evidence. The
\nlearned counsel has pointed out that the P.W.8 has submitted she and her
\nfriend were kept by the accused persons for one and half hour and
\nthereafter the accused persons fled away. When her parents and villagers
\ncame, both the victim girls went to their house with them. Furthermore,
\nthe P.W.8 has stated that she has received numbers of injuries even
\nwhen her parents and villagers came, blood was oozing from her body
\nand her clothes were soaked with bloods and she was taken to her house
\non a cot. Where as the P.W.1 the father of P.W.8 has stated that when
\nhe along with his wife (P.W.2) and other villagers reached at the place
\nof occurrence, both the victim girls were lying naked and unconscious
\nand their clothes were not there. It is further pointed out that P.W.8 has
\nvery specifically stated that she could not identified any of the accused
\npersons who committed rape upon Shilwanti (the other victim). She has
\nfurther stated that in T.I. Parade she has identified only one person. On
\nthe other hand the P.W.13 the another victim girl has stated that they
\nwere detained by the accuseds for whole night and accused persons
\ncommitted rape on them.\n<\/p>\n
14.     The learned counsel has contented that the prosecution has not
\nexamined the I.O. nor has assigned any reason for his none
\nexamination. The appellants are highly prejudiced for the same.\n<\/p>\n
 15.    After going through the records and the argument advanced by
\nboth the parties, admittedly P.W.8 is the only witness of the alleged
\noccurrence who is alleged to be a victim. All other witnesses are
\nhearsay witness therefore, her evidence should be scrutinized very
\ncarefully. According to the F.I.R., P.W.8 named three persons and
\nclaimed to identify other accused persons but in T.I. Parade she has
\nidentified only one person but has not stated whether the said accused
\nhas committed rape upon her. The Exhibit-6 also proves the same. From
\nthe record, I further find that there are major contradictions in the
\nevidence of the P.W.8 and in the evidence of other witnesses who
\naccording to the prosecution case reached at the place of occurrence just
\nafter the alleged occurrence. Enen the evidence of P.W.8 and P.W.13
\nare also contradictory to each other.\n<\/p>\n
16.   The learned counsel of the appellant has rightly pointed out that in
\nthe evidence of P.W.3 the brother of the victim girl, it has come that
\nthere are few other villagers at a short distance when the aforesaid
\naccused persons assaulted him and his wife and dragged the aforesaid
\ntwo victim for committing rape upon them. But the P.W.3 and his wife
\ndid not raised any hulla or inform the said persons. Utter surprise, they
\nwent to their house and informed           the parents of the victim.
\nFurthermore, though according to the prosecution a number of villagers
\ncame to the place of occurrence with the parents with the victim girls
\nbut prosecution has not examined a single villagers. Furthermore, the
\nDoctor has not supported the prosecution case. From the record, I find
\nthree witnesses i.e. P.W .2, P.W.6 and P.W.7 have stated in their
\nevidence that they have identified Baburam Soren and Sanat, Sunil,
\nGopin at the place of occurrence but neither Baburam nor Gopin was
\nnamed in the F.I.R.\n<\/p>\n
17.   No doubt, it is true that to hold an accused guilty for commission
\nof an offence of rape, the solitary evidence of the prosecutrix is
\nsufficient provided the same inspires confidence and appears to be
\nabsolutely trustworthy, unblemished and should be of sterling quality.
\nIn the present case the only witness P.W.8 who is one victim also but
\nthere are numbers of major contradictions, even with her own evidence
\nand the contention of the F.I.R. which was lodged by her just after one
\nday. Admittedly the evidence of other witnesses does not corroborate
\nwith her evidence. The other victim girl P.W.13 could not identfy in
\n T.I. Parade any of the appellants which is very clear from the Exhibit-6.
\nThus, in my opinion, P.W.8 was certainly not telling the truth.
\nTherefore, it is neither prudent nor safe to hold the appellants guilty of
\ncommission of the aforesaid offence.\n<\/p>\n
18.     Considering all the aspects as stated above, in my opinion the
\nprosecution has failed to prove the aforesaid charge against the
\nappellants. Therefore, I allow this appeal and the judgment dated
\n24.8.2002 and the order of sentence dated 26.08.2002 passed by the
\nSessions Judge, Dumka in Session Case No. 345 of 1990 are, hereby, set
\naside and quashed. As the appellants are on bail, they are discharged
\nfrom their liabilities of the bail bonds.\n<\/p>\n
                                                       (Jaya Roy, J)
\nJharkhand High Court, Ranchi,
\nDated the 17th November, 2011
\nN.A.F.R.\/ S.I.<\/p>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-127975","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nMikail Tudu & Ors. vs State Of Jharkhand on 17 November, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mikail-tudu-ors-vs-state-of-jharkhand-on-17-november-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mikail Tudu & Ors. vs State Of Jharkhand on 17 November, 2011 - 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