Jharkhand High Court
Daniel Kisku @ Daniyel Kisku vs The State Of Jharkhand on 20 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 778 of 2019
1. Daniel Kisku @ Daniyel Kisku
2. John Murmu
3. Marshel Murmu @ Marsel Murmu
4. Saddam Ansari
5. Suraj Soren --- --- Appellants
Versus
The State of Jharkhand --- --- Respondent
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CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through: Video Conferencing
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For the Appellants:M/s B.M.Tripathi, Sr. Advocate, Naveen Kr. Jaiswal, Advocate
For the Respondent:Mr. Shekhar Sinha, P.P
---
05 / 20.07.2021 Heard learned senior counsel for the Appellant Mr. B.M. Tripathi,
assisted by Mr. Naveen Kumar Jaiswal and Mr. Shekhar Sinha, learned Public
Prosecutor on the prayer for suspension of sentence made by these Appellants
through I.A. No. 7583/2019.
2. These five Appellants along with six others stand convicted for the
offences punishable under sections 341/34, 342/34, 323/34, 376D/34, 387/34,
201/34 and 504/34 of the Indian Penal Code by the impugned judgment dated
07.06.2019 passed in Sessions Trial No. 207/2017 by the Court of learned
Additional Sessions Judge-II-cum-F.T.C Offences Against Women, Dumka and
have been sentenced to undergo rigorous imprisonment in the following
manner, by the impugned order of sentence dated 10.06.2019.
Section of Quantum of Quantum of fine Period of sentence
offences punishment in case of default in
payment
341/34 S.I for one months -- ---
342/34 R.I for one year --- ---
323/34 R.I for one year --- ---
376D/34 R.I for life Rs. 20,000/- R.I for 1 year
387/34 R.I for seven years Rs. 5,000/- R.I for 6 months
201/34 R.I for 3 years Rs. 2,000/- R.I for 6 months
504/34 R.I for two years -- ---
3. Learned senior counsel for the Appellants submits that prosecution case
as depicted in the fardbeyan of the Informant / victim (PW-13) recorded on
07.09.2017 at 9.30 hrs. in Female Ward at Sadar Hospital, Dumka, alleging
sexual assault by about 17 accused persons and gory description of abominable
act, does not stand corroborated by the medical evidence. The victim was
examined by the Medical Board. The Medical Board did not opine that the
sexual assault was committed by a gang of about 15-17 persons. No
spermatozoa was found and only abrasion over the shoulder was found. The
victim was assessed between 19-20 years of age. The friend of the victim (PW-
1) was not medically examined, though it was alleged that he was also assaulted
by belt, etc. The defence has examined the prosecution witnesses including PW-
1 on the question that the prosecutrix has implicated several young person only
on account of the fact that the prosecutrix and her friend (PW-1) were caught
engaged in sexual act near the football ground adjacent to the Digghi Campus
on the evening of 06.09.2017. The medical evidence at best could suggest
sexual intercourse, but not a gang rape by 15-17 persons as alleged which
confirms the defence plea that the victim was engaged in sexual intercourse
with her friend (PW-1) when she was caught by the villagers and in retaliation,
FIR was instituted against all the 17 accused persons. Appellants are in custody
since September 2017 i.e. less than four years. Appellants are young persons
whose entire life would get ruined if on such exaggerated version of the
prosecutrix uncorroborated by the medical evidence, they are left to incarcerate
in prison for life. Therefore, appellants may be enlarged on bail by suspending
their sentence.
4. Learned Public Prosecutor has strongly opposed the prayer. He submits
that not only the version of the prosecutrix is supported by PW-1, her friend, an
eyewitness, but both of them have identified these appellants in T.I. Parade vide
Exts.21 to 21/15 and Ext.22 to 22/10 conducted in the presence of the Judicial
Magistrates (PWs-15 & 16). The injury report (Ext.5/1) adduced through the
doctors (PWs-8, 9 & 10) also confirms rape upon her. Accused persons
committed this gory act in frenzy and the word and expression used by them
and the manner in which victim was subjected to rape and thereafter made to
take bath in a pond to wipe out the traces of semen to destroy the evidence, all
taken together, leave no element of doubt regarding involvement of these
appellants and other convicts in the commission of gang rape upon the victim. It
is submitted that pursuant to the confession made by the Appellant No. 1 Daniel
.3
Kisku, knife was also recovered which was used to threaten the victim and her
friend. The I.O (PW-14) has also recovered the undergarments (bra), hairpin,
handkerchief, etc. from the place of occurrence. The I.O. has also found that the
seized mobile of the accused persons were within one tower at the same point of
time. As such, prosecution story is supported by other witnesses such as PW-2,
brother of PW-1 who was immediately informed of the incidence including
PW-3, father of PW-1 and PW-7, brother of the victim. Therefore, appellants do
not deserve any leniency in the grant of bail, otherwise it may give a wrong
message to the society.
5. We have considered the submissions of learned senior counsel for the
appellants and learned Public Prosecutor and taken note of the materials relied
upon by them from the lower court records. On consideration of the materials
on record, it appears that the statement of the victim (PW-13) who was admitted
in hospital on account of sexual assault for about 8-10 days along with the
statement of her friend (PW-1), identification of the appellants and other
accused persons in presence of the Judicial Magistrates (PWs-15 & 16) by the
victim as well as her friend (PW-1) coupled with the evidence of the Medical
Board showing sign of rape as also recovery of the undergarments of the victim
from the place of occurrence along with hairpin, handkerchief together form the
material basis for convicting the appellants and others for the offences of gang
rape and other offences under the Indian Penal Code. It further appears that the
Appellant No. 1 has confessed his crime which led to the recovery of knife used
in threatening of the victim and confession have also been made by the
appellant John Murmu and Saddam Ansari vide Ext.16 and 12 respectively.
Taking into consideration all these materials produced during the trial and the
manner of commission of gang rape upon the victim by the appellants and other
accused persons, we find no grounds made out to enlarge the appellants on bail
by suspending their sentence, at this stage. Accordingly, I.A. No. 7583/2019
seeking suspension of sentence is rejected.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Ranjeet/
