{"id":250947,"date":"2011-03-14T00:00:00","date_gmt":"2011-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajdeo-uraon-vs-state-of-jharkhand-on-14-march-2011"},"modified":"2016-07-17T13:40:54","modified_gmt":"2016-07-17T08:10:54","slug":"rajdeo-uraon-vs-state-of-jharkhand-on-14-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajdeo-uraon-vs-state-of-jharkhand-on-14-march-2011","title":{"rendered":"Rajdeo Uraon vs State Of Jharkhand on 14 March, 2011"},"content":{"rendered":"
Jharkhand High Court<\/div>\n
Rajdeo Uraon vs State Of Jharkhand on 14 March, 2011<\/div>\n
CRIMINAL APPEAL(S.J.) NO. 1019 of 2008\n\n                  Against the judgment of conviction dated 18.3.2008 and order of\n           sentence dated 19.3.2008 passed by Shri Rajesh Kumar Dubey, the\n           learned Sessions Judge, Latehar in S.C. No. 9 of 2006.\n\n           Rajdeo Oraon ........................................................ Appellant\n\n                                   Versus\n           The State of Jharkhand .............................................. Respondent\n\n\n           For the Appellant              :- Mr.Rakesh Kumar Advocate.\n           For the State                  :- Mr. Binod Singh, A.P.P.\n\n               C.A.V. on 1.10.2010                    Delivered on     14-3-2011\n\n                                      PRESENT\n\n                         THE HON'BLE MR. JUSTICE D.K. SINHA\n\nD.K. SINHA,J               The instant Cr. Appeal is directed against the judgment of\n           conviction dated 18.3.2008 and order of sentence dated 19.3.2008 passed\n           by Shri Rajesh Kumar Dubey, the learned Sessions Judge, Latehar in S.C.\n           No. 9 of 2006 by which the appellant was convicted under section 376(2)\n           (g)\/109 of the Indian Penal Code<\/a> and was sentenced to undergo rigorous\n           imprisonment for ten years. He was further convicted in            part(ii) of\n           Section 304<\/a>\/34<\/a> of the Indian Penal Code and sentenced to undergo\n           rigorous imprisonment for seven years and to pay fine of Rs. 5000\/- with\n           default stipulation, however, with the direction that both the sentences\n           would run concurrently against him.\n                    2.               The prosecution story in short was that in the night\n           of 7.8.2005 at about 10 p.m. accused(appellant) Rajdeo Oraon came to the\n           house of      the informant Neema Oraon where he came across Surji\n           Devi(since deceased) and asked her to arrange liquor. To find out liquor in\n           the village he requested Surji Devi and both came out from her house\n           leaving her husband Neema Oraon there. After sometime Rajdeo Uraon\n           returned back and informed the informant Neema Oraon that his wife Surji\n           Devi was lying at some place in critical condition and he asked Neema\n           Oraon to take back Surji Devi at home. Pursuant to such information, the\n           informant Neema Oraon,his daughter Prabha Devi accompanied Rajdeo\n           Oraon to the place but Surji Devi was not there. The informant then raised\n           alarm whereupon the witnesses Shiban Oraon and Sugan Oraon came\n           there and all enquired from Rajdeo Oraon as to the whereabouts of Surji\n           Devi. The informant Neema Uraon then came to the road where he heard\n           cry and murmuring originated from a bush in fibble voice .All went\n           towards the origin of the voice and found a person committing rape upon\n           Surji Devi. The person at the sight of the witnesses tried to escape but he\n could be overpowered and on interrogation disclosed his name Ramesh\nKumar. Surji Devi was found unconscious and was partially naked. She\nwas brought to the home but she died at about 5 a.m. after she vomited\nintermittently for whole of the night. The occurrence was witnessed by\nAkhilesh Oraon, Jagatar Oraon,Khiru Oraon and Sukan Oraon. The police\narrived in the morning of 8.8.2005 at 7.30 a.m. on information and\nrecorded the Fardbeyan of the husband Neema Oraon of the deceased\nSurji Devi. Inquest report of the deceased was prepared and the dead body\nwas sent for post mortem examination. The statement of other witnesses\nwere recorded and the police visited the place of occurrence. In the post\nmortem examination her vagina was found full of seminal fluid and her\nface swollen , as such, viscera was preserved. The Investigating Officer\nafter investigation of the case submitted chargesheet against the appellant\nRajdeo Oraon and Ramesh Kumar for the alleged offence under sections\n376<\/a>\/304<\/a>\/34<\/a><\/pre>\n
 of the Indian Penal Code<\/a>. Charge,however was framed by the
\nSessions Judge, Latehar against them under sections 376(2)(g)<\/a> and 304<\/a>\/34<\/a>
\nof the Indian Penal Code and they were put on trial..\n<\/p>\n
       3.             During course of trial the prosecution examined
\nP.W.1 Siban Oraon,P.W.2 Sugan Oraon,P.W.3 Akhilsh Oraon,P.W.4
\nNeema Oraon,P.W.5 Prabha Devi,P.W.6 Awadh Kumar Yadav,P.W.7
\nManoj Kumar Gupta and P.W.8 Ravindra Narain . Beside, the prosecution
\nproved several other documents such as the inquest report, Formal F.I.R.
\nand the post mortem report of the Surji Devi.\n<\/p>\n
       4.             P.W.1 Siban Oraon,P.W.2 Sukan Oraon,P.W.3
\nAkhilesh Oraon,P.W.4 Neema Oraon(informant) and P.W.5 Prabha Devi
\nall claimed to be the eye witnesses of the occurrence, who visited the
\nplace of occurrence with the appellant Rajdeo Oraon in course of search of
\nSurji Devi and when they arrived on the road, they heard cry, someone
\ncrying “AYO DADA MUA DELE”. All went to the bush and found the
\nco-convict Ramesh Kumar committing rape on Surji Devi though at the
\nsight of the witnesses he tried to escape but could be overpowered . As
\nregards the complicity of the appellant Rajdeo Oraon was concerned,
\nnone of the witnesses claimed having seen him committing rape on Surji
\nDevi except that the appellant Rajdeo Oraon persuaded and took away
\nSurji Devi on the pretext to arrange liquor for him in the village. After an
\nhour, according to the informant and his daughter, the appellant Rajdeo
\nOraon returned and communicated that Surji Devi was lying unconscious
\nand he asked the informant to take her back to home. On such information,
\nthe informant P.W.4 Neema Oraon accompanied the appellant Rajdeo
\nOraon, followed by his daughter Prabha Devi to the pointed place but
\nwhen Surji Devi could not be located there he asked him as           to the
\nwhereabouts of his wife Surji Devi and in the meantime the other two
\n witnesses Shiban Oraon and Sugan Oraon joined them. All came to the
\nPitched road during course of search of Surji Devi and only there they
\nheard the voice originated from a bush situated at the eastern side of the
\nroad and the informant claimed to identify the voice that it belonged to his
\nwife(deceased). They went towards the bush and found the accused
\nRamesh Kumar committing rape on Surji Devi. Ramesh Kumar tried to
\nflee away at the sight of the witnesses but he was chased and
\noverpowered. The informant P.W.4 found his wife unconscious and
\npartially naked. She was removed to the home where she continued
\nvomiting for the whole of night and died in the morning at about 5
\nO’clock. Somebody informed the police on telephone and only then the
\npolice came and recorded the statement of the informant .In the cross-
\nexamination the witness admitted that Rajdeo Oraon happened to be the
\nnephew-in-law in relation and that he had already taken his meal in the
\nnight by the time Rajdeo Oraon came there. The witness admitted having
\nno enmity with Rajdeo Oraon and that Surji Devi used to take liquor
\noccasionally. The informant further testified that when he went to the
\nplace of occurrence he spotted Ramesh Kumar naked and that             Surji
\nDevi’s voice ceased and she became unconscious. He admitted having
\nnarrated before the police that it was Ramesh Kumar whom he had found
\ncommitting rape and that he had witnessed the accused Ramesh Kumar in
\nthe light of torch when he started fleeing from the bush at some distance of
\nabout 100 yards.\n<\/p>\n
       5.             P.W.5 Prabha Devi, the daughter of Surji Dev
\nconsistently supported the statement of her father informant(P.W.4).She
\ntestified that the occurrence took place some one and half years ago in
\nthe night when the members of her family including her mother, father and
\nsister-in-law were sleeping. Then Rajdeo Uraon came at about 10 p.m.
\nand asked her mother to search out liquor in the village for him. Her
\nmother accompanied him. After about an hour Rajdeo Uraon returned and
\nasked the members in her home to take back her mother as she was
\ntrembling at some place. On such information she accompanied her father
\nand Rajdeo Oraon to the pointed place but her mother was not there. An
\nalarm was raised whereupon Siben Oraon and Sugan Oraon arrived and
\nthey also accompanied them in search of her mother. After covering some
\ndistance when they arrived at the pitched road, they heard female voice
\noriginating from a bush. All went there and witnessed Ramesh Kumar
\ncommitting rape on her mother who started running from the place at the
\nsight of the witnesses but he was chased and overpowered. She found her
\nmother partially naked and she was unconscious and vomiting, as such,
\nshe was lifted and brought to the home where she vomited through out
\nand died in the morning.. She named the witnesses who had seen the
\n occurrence. Both the accused Rajdeo Oraon and Ramesh Kumar were
\napprehended and confined in the village. The police came in the morning
\non information given on telephone and took away both the accused to the
\npolice station. In the cross-examination she admitted that Rajdeo Oraon
\nhappened to be the brother-in-law of her brother who was on visiting
\nterms in her house. She admitted that though her mother was in a habit of
\ntaking liquor but on that day she had not consumed and that she had
\naccompanied Rajdeo Oraon in search of liquor. She further admitted that
\nRajdeo Oraon was all along with them until her mother could be located
\nand removed to the house while she was unconscious. .Ramesh kumar was
\nnot known to her from before and that no treatment was extended to her
\nmother in the night though she was vomiting. She denied that her mother
\ndied of consuming spurious liquor.\n<\/p>\n
         6.              P.W.6Awadh Kishore Yadav i.e the Investigating
\nOfficer of the case testified that on 8.8.2005 about 6 a.m. he heard rumor
\nwith respect to      certain   occurrence which took place at   the village
\nPipratola Parsahi while he was posted at Mnika police station. Upon such
\ninformation he proceeded to the village Pipratola Parsahi after making
\nentry in the station diary. He recorded the statement of the informant
\nNeema Oraon in his pen and signature at the same village. He proved the
\nendorsement made on the Fardbeyan in his pen and signature and formal
\nFIR and his signature thereon. He prepared the inquest report of the
\ndeceased in presence of the witnesses and examined the place of
\noccurrence which was the barren land of one Dhobia Mahato of village
\nPipratola Parsahi, with wild bushes grown thereon within the
\ncircumference of 30\/40 Metres. He found dragging mark on the ground in
\ngrasses surrounded by bushes, pointed out to be the place of alleged
\noccurrence. He had given the boundary of such land by describing that the
\nRanchi Medninagar, main road was situated at the distance of 50 yards
\nfrom the said place. He admitted having not found any other
\nincriminating article like broken bangles, hair or piece of cloths etc.
\nexcept dragging mark at the place of occurrence and further admitted
\nhaving seen the cloths on the dead body of Surji Devi and bangles in her
\nwrists. He further admitted that Viscera which was delivered by the
\nDoctor after her autopsy could not be sent for test, rather the same was
\npreserved as the material exhibit.\n<\/p>\n
         7.              It would be relevant to mention that     the post
\nmortem report though was proved by the formal witness P.W.7 Manoj
\nKumar Gupta, an advocate’s clerk but after examination of the accused
\nRajdeo        Oraon under section   313<\/a> Cr.P.C. Dr. Ravindra Narain was
\nsummoned, who had held autopsy, as court witness. He deposed that on
\nwhile 8.8.2005 he was posted as the Medical Officer at          the   sub-
\n Divisional Hospital Latehar where he held post mortem examination on
\nthe body of Surji Devi, a Hindu female, aged about 45 years w\/o Neema
\nOraon and he found the following :-.\n<\/p>\n
                                             (1)     Rigor mortis was
\n                      present on both upper and lower limbs.\n<\/p>\n
                                             (II)   Ante-mortem injury :-\n<\/p>\n
                      Face was swollen, multiple bruise were found
\n                      present, face blackish in colour, vagina was full of
\n                      seminal fluid.\n<\/p>\n
               Visceras were preserved for chemical examination. He
\nreserved his opinion as to the cause of her death. Time since death was
\ndetermined between 48 to 72 hours. He identified the post mortem report
\nin his pen and signature which was already proved by formal witness and
\nmarked Ext.1\/5. the witness admitted in his cross examination that he had
\nnot examined the fluid present in the vagina of the deceased under the
\nmicroscope and he did not deny that it might be Leucorrhoea discharge.
\nFinally he opined that her death was not possible due to injuries found on
\nher body.\n<\/p>\n
       8.             The learned    counsel submitted that the appellant
\nRajdeo Oraon has been convicted by the Sessions Judge without any legal
\nevidence on the record on both the counts i.e. under sections 376(2)<\/a>\n<\/p>\n
(g)\/109 and Part-ii of Sections 304<\/a>\/34<\/a> of the Indian Penal Code. Neither
\ndirect evidence nor circumstantial evidence could be brought against him
\nduring trial that he had abetted Ramesh Kumar to commit rape on Surji
\nDevi or that he had committed culpable homicide which did not amount
\nto murder with the knowledge that his act was likely to cause death of
\nSurji Devi so as to attract his conviction. The prosecution witnesses failed
\nto establish nexus between the appellant Rajdeo Oraon and the co-convict
\nRamesh Kumar in any of such alleged crimes. Even there was no
\ncircumstantial evidence to infer that the appellant Rajdeo Oraon had
\nabetted Ramesh Kumar to commit rape on Surji Devi. The court witness
\nDr. Ravindra Narayan who had held autopsy of Surji Devi opined on the
\nguess work that he found that her vagina was full of seminal fluid but
\nadmitted in the cross examination that the fluid was not examined by
\nhim under microscope      and in the same breath he did not deny the
\nsuggestion that such fluid found in the vagina of the deceased could be
\nLeucorrhoea discharge. None of the witnesses claimed having seen the
\nappellant Rajdeo Oraon either indulged in the gang rape with Ramesh
\nKumar committing on Surji Devi or abetting the co-convict for
\ncommitting such offence and therefore, conviction of the appellant on both
\nthe counts by the trial court would tantamount to miscarriage of justice.
\nOtherwise also he remained all along with the witnesses since the very
\nbeginning assisting in recovery of Surji Devi from the bush till her death
\nand had not left the place. He was closely related to the deceased being
\n brother-in-law of her son and was on regular visiting terms and having no
\ncriminal antecedent or any kind of misconduct in his past which needed
\nconscious consideration for his acquittal.\n<\/p>\n
       9.              Heard Mr.     Binod Singh, the learned A.P.P. on
\nbehalf of the Respondent-State.\n<\/p>\n
       10.             Mr.Singh conceded that though there was no eye
\nwitness of the occurrence but a strong circumstance against the appellant
\nRajdeo Oraon who had taken away Surji Devi on the pretext to search
\nout liquor for him in the dead of night but returned alone apprising the
\ninformant\/husband that she was grasping and was in serious condition at
\nsome place. He took the witnesses at the pointed place but she was not
\nthere. When the witnesses went towards the pitched road in the wake of
\nsearching her, they heard her voice emerging from the bush and when
\nproceeded in the same direction they found Ramesh Kumar committing
\nrape who was chased and apprehended when tried to escape at the sight of
\nthe witnesses. The appellant was silent and did not        explain in his
\nstatement recorded under section 313<\/a> Code of Criminal Procedure as to
\nunder what circumstances he had left Surji Devi alone in the dead of night
\nin the hands of Ramesh Kumar. He was the last person found in the
\ncompany of the deceased prior to her death and only on the persuasion of
\nthis appellant Surji Devi had accompanied her in the night for searching
\nout liquor for him.\n<\/p>\n
       11.             Admittedly none of the witnesses claimed having
\nseen the appellant Rajdeo Oraon either committing rape on Surji Devi or
\nabetting the co-convict Ramesh Kumar for doing so. He was all along
\nwith the informant Neema Oraon and his daughter Prabha Devi after he
\ncommunicated the critical condition of Surji Devi requesting them to take
\nher back to home. The fact has been left unanswered and the prosecution
\nfailed to connect the missing link as to what happened between the period
\nthe appellant Rajdeo Oraon took away Surji Devi with him to search out
\nliquor in the village around 10 p.m. but returned alone conveying her
\ncritical condition. The prosecution even failed to establish nexus between
\nthe appellant Rajdeo Oraon and the co-convict Ramesh for the alleged
\noffence. Premeditation to commit gang rape and culpability of death of
\nSurji Devi being not categorized as the murder could not be proved against
\nthe appellant Rajdeo Oraon. The doctor did not ascertain the cause of her
\ndeath, at the same time observed that the injuries found on her body were
\nnot sufficient to cause death. The      victim on   account of sustaining
\nexternal violence was speechless so she could not declare as to the cause
\nof her death. The doctor in the post mortem report mentioned that he had
\nfound seminal fluid in her vagina but during course of cross examination
\nhe did not deny that it could be Leucorrhoea        as the fluid was not
\n              examined by him under the microscope .Even the cause of her constant
\n             vomiting in the fateful night could not be established by the medical
\n             evidence. It was unfortunate on the part of the prosecution that viscera
\n             which was given to the Investigating Officer after autopsy of Surji Devi
\n             was never sent to the Forensic Science Laboratory to find out as to what
\n             was the cause of her death. The witnesses were consistent having seen
\n             only accused Ramesh Kumar committing rape on Surji Devi and that
\n             suspicion was raised against the appellant Rajdeo Oraon that he abetted in
\n             commission of gang rape because Surji Devi had proceeded with him.
\n             The ingredients to constitute an offence of gang rape under section 376(2)<\/a>\n<\/p>\n
             (g) could not be fulfilled as it was not the case that the appellant Rajdeo
\n             Oraon had participated in gang rape but the charge was that he abetted
\n             in commission of gang rape and accordingly he was convicted for the
\n             said offence without there being any legal evidence on the record, except
\n             suspicion. The prosecution failed to prove the charges either of abetting
\n             the commission of gang rape or of culpability of homicide of Surji Devi
\n             which did not amount to murder as against the appellant Rajdeo Oraon
\n             beyond shadow of all reasonable doubts. It is settled that “serious the
\n             offence, heavy the burden upon the prosecution to prove the charge”. I
\n             am, therefore, of the firm view that the prosecution failed to discharge its
\n             heavy burden and the appellant was convicted without any legal evidence
\n             on the record and that merely on suspicion. Even the chain of
\n             circumstances which suspected the complicity of the appellant has been
\n             found broken at places. In his statements recorded under section 313<\/a> of
\n             Cr.P.C. he was never confronted with any incriminating material that he
\n             either participated in gang rape or abetted to any one for such offence or
\n             that   he    committed     culpable homicide in furtherance of common
\n             intention which    did not amount to murder as because there was no
\n             material at all on the record but he was convicted on erroneous
\n             consideration which amounts to miscarriage of justice.\n<\/p>\n
                    12.             In the facts and circumstances, the judgment of
\n             conviction and order of sentence recorded against the appellant Rajdeo
\n             Oraon by the learned Sessions Judge, Latehar in S.C. No. 9 of 2006
\n             arising out of Manika P.S. case No. 17 of 2005 is setaside. This Criminal
\n             appeal is allowed. The appellant Rajdeo Oraon is directed to be set at
\n             liberty at once if he has not yet been released..\n<\/p>\n
                                                                  (D.K.Sinha, J)<\/p>\n
Jharkhand High Court, Ranchi.\n<\/p>\n
Dated 14 -3-2011\/SD\/NAFR
\n           (J.H.C. Sch.IV-9)<\/p>\n
              IN THE HIGH COURT OF JHARKHAND,
\n          RANCHI
\n                             RANCHI
\n                       Dated , the 14th March, 2011
\n                           (Criminal Jurisdiction)
\n                        THE HON’BLE MR. JUSTICE D.K.SINHA
\n                                       Cr.Appeal No. 1019 of 2008<\/p>\n
Rajdeo Oraon                                         .       …     …       …Appellant<\/p>\n
The State of Jharkhand                                                     … …Respondent\n<\/p>\n
                                                   ————\n<\/p>\n
Against the judgment of conviction dated 18.3.2008 and order of sentence
\ndated 19.3.2008 passed by Shri Rajesh Kumar Dubey, the learned
\nSessions Judge, Latehar in S.C. No. 9 of 2006.\n<\/p>\n
                                         ————\n<\/p>\n
                                      COURT ORDER<\/p>\n
          In the facts and circumstances, the judgment of conviction and
\norder of sentence recorded against the appellant Rajdeo Oraon by the
\nlearned Sessions Judge, Latehar in S.C. No. 9 of 2006 arising out of
\nManika P.S. case No. 17 of 2005 is set aside. This Criminal appeal is
\nallowed. The appellant Rajdeo Oraon is directed to be set at liberty at
\nonce if he has not yet been released..\n<\/p>\n
                                                                               [D.K.Sinha,J.]\n<\/p>\n
                                         ————-\n<\/p>\n
                                 Memo No……………………Cr.\n<\/p>\n
          Copy forwarded to the……………………………………………………..for
\nInformation and necessary action with reference to his order dated
\nthe       ……………………………..day        of    ………………20……………and   or
\ncommunication to the ……………………………Magistrate…………………..Class
\nof……………………….\n<\/p>\n
                    HIGH COURT
\n                                                                     “formal rule with follow”\n<\/p>\n
                                                                     By order of the High Court
\n                                  Asstt. Registrar
\nThe………………..20…..<\/p>\n","protected":false},"excerpt":{"rendered":"
Jharkhand High Court Rajdeo Uraon vs State Of Jharkhand on 14 March, 2011 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 […]<\/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-250947","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"\nRajdeo Uraon vs State Of Jharkhand on 14 March, 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\/rajdeo-uraon-vs-state-of-jharkhand-on-14-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajdeo Uraon vs State Of Jharkhand on 14 March, 2011 - 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