Unknown vs The State Of Jharkhand
2022 Latest Caselaw 2488 Jhar

                    Criminal Appeal (D.B.) No. 192 of 2015
    [Against the judgment and order of conviction and sentence dated
    19.01.2012 passed by Sri Madan Mohan Singh, learned Additional
    District & Sessions Judge-I, Dhanbad in S.T. No. 623 of 2010 and the
    judgment and order of conviction and sentence dated 29.05.2015
    (sentence passed on 02.06.2015) passed by Sri Arun Kumar Rai, learned
    Additional Sessions Judge-cum-Spl. Judge, CBI, Dhanbad in S.T. No.
    429/2011]
                                          ...........

Darshan Yadav, S/o Prasadi Yadav, R/o Village Jalai, P.O. & P.S.- Sikandra, District- Jamui ... ... Appellant Versus The State of Jharkhand ... ... Respondent With Criminal Appeal (D.B.) No. 329 of 2012 Lallu Yadav @ Lalan Yadav @ Lalan, S/o Shri Prahlad Yadav, R/o Village-Binod Nagar Barmasia, P.O. & P.S.- Dhanbad, District- Dhanbad, Jharkhand ... ... Appellant Versus The State of Jharkhand ... ... Respondent With Criminal Appeal (D.B.) No. 340 of 2012 Babloo Yadav @ Bablu Yadav, S/o Sri Bhim Yadav, R/o Barmashia Phatak, P.O.- Dhanbad, P.S.- Dhansar, District-

    Dhanbad                                         ... ... Appellant
                                    Versus
    The State of Jharkhand                       ... ... Respondent
                                    With
                   Criminal Appeal (D.B.) No. 586 of 2015

Chottu Rawani, S/o Prem Lal Rawani, R/o Binod Nagar Paharigora, P.S. Dhansar, P.O. and District- Dhanbad ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........

For the Appellants : Mr. Arwind Kumar, Advocate (In Cr. Appeal (D.B.) No. 192 of 2015 & Cr. Appeal (D.B.) No. 340 of 2012) Mr. K.S. Nanda, Advocate (In Cr. Appeal (D.B.) No. 329 of 2012) Mr. D.K. Malityar, Advocate (In Cr. Appeal (D.B.)No. 586 of 2015) For the State : Mr. B.N. Ojha, Mrs. Vandana Bharti & Mrs. Nehala Sharmin, A.P.Ps.

PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........

10/07.07.2022 Heard Mr. Arwind Kumar, learned counsel for the appellants in Cr. Appeal (D.B.) No. 192 of 2015 & Cr. Appeal (D.B.) No. 340 of 2012, Mr. K.S. Nanda, learned counsel for the appellant in Cr. Appeal (D.B.) No. 329 of 2012, Mr. D.K. Malityar, learned counsel for the appellant in Cr. Appeal (D.B.) No. 586 of 2015 as well as Mr. B.N. Ojha, Mrs. Vandana Bharti and Mrs.

Nehala Sharmin, learned A.P.Ps. for the State.

2. All these appeals arise out of two different judgments but a common First Information Report and hence are being disposed of by this common order.

3. Cr. Appeal (D.B.) No. 192 of 2015, Cr. Appeal (D.B.) No. 329 of 2012 and Cr. Appeal (D.B.) No. 340 of 2012 are directed against the judgment and order of conviction and sentence dated 19.01.2012 passed by Sri Madan Mohan Singh, learned Additional District & Sessions Judge-I, Dhanbad in S.T. No. 623 of 2010, whereby and whereunder the appellants have been convicted for the offences u/s 341, 323, 376(G) of the Indian Penal Code and Section 3(i)(xii) of the S.C./S.T. (Prevention of Atrocities) Act and have been sentenced to R.I. for 03 months for each of the offences u/s 341, 323 of the Indian Penal Code and Section 3(i)(xii) of the S.C./S.T. (Prevention of Atrocities) Act and R.I. for life for the offence u/s 376(G) of the Indian Penal Code and all the sentences are directed to run concurrently.

Cr. Appeal (D.B.) No. 586 of 2015 is directed against the judgment and order of conviction and sentence dated 29.05.2015 (sentence passed on 02.06.2015) passed by Sri Arun Kumar Rai, learned Additional Sessions Judge-cum-Spl. Judge, CBI, Dhanbad in S.T. No. 429/2011, whereby and whereunder the appellant has been convicted for the offences u/s 323, 341, 376(2)

(g) of the Indian Penal Code and has been sentenced to undergo R.I. for 3 months u/s 323 of the Indian Penal Code, R.I. for 01 month u/s 341 of the Indian Penal Code and R.I. for life u/s 376(2)

(g) of the Indian Penal Code. All the sentences are to run concurrently.

4. The fardbeyan of Laxmi Hansda was recorded on 02.03.2010 at 5:30 P.M. in which she has stated that on the occasion of Holi her cousin brothers Baila Marandi and Tutu Hembram had come to her house. Her one year old daughter Anjali was suffering from fever. On 01.03.2010 at about 9:00 P.M. her

husband Manoj Hansda had gone to Barmasia gate for purchasing medicine and when he did not return even after a considerable time she along with her cousin brothers and her sister went in search of him. At around 10:30 P.M. when she reached Barmasia gate she saw Babloo Yadav, Chotu, Lallu Yadav and Darshan Yadav and an unknown person who started assaulting the brothers of the informant. It has been alleged that when she started running towards her house she was caught by Babloo Yadav, Darshan Yadav and Chotu and taken to a motorcycle garage. The brothers of the informant had fled away due to fear. It was Babloo Yadav who committed rape upon her followed by Darshan Yadav and Chotu. Out of the five persons Lallu Yadav and an unknown person after assaulting her brothers had fled away from the scene. After committing rape upon her all the three accused persons fled away. The persons of the locality and her maternal aunt had thereafter brought her home.

Based on the aforesaid allegations Dhanbad P.S. Case No. 199/2010 was instituted for the offence u/s 376(G) of the I.P.C. against Babloo Yadav, Chotu, Lallu Yadav, Darshan Yadav and an unknown person.

Charge-sheet was submitted against Babloo Yadav, Lallu Yadav and Darshan Yadav vide Charge-Sheet No. 838/2010 while investigation remained pending as against Chotu Rawani and Ashok Yadav. Subsequently, vide Charge Sheet No. 76/2011, charge-sheet was submitted against Chotu Rawani and Ashok Yadav showing them as absconders.

5. After cognizance was taken the case of Babloo Yadav, Lallu Yadav and Darshan Yadav was committed to the Court of Sessions where it was registered as S.T. No. 623/2010. Charge was framed u/s 341, 323, 376(G) of the I.P.C. against Babloo Yadav, Lallu Yadav and Darshan Yadav which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

6. In the supplementary record after cognizance was taken the case was committed to the Court of Sessions and since the original case record being S.T. No. 623/2010 had already been transferred to the Court of Additional Sessions Judge-I-cum-Spl. Judge, Dhanbad the supplementary record was also transferred to the said court.

Charge was framed against Chotu Rawani u/s 341, 323, 376(2)(g) of the Indian Penal Code and Section 3(i)(xii) of the SC/ST (Prevention of Atrocities) Act which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

7. The prosecution has examined as many as eight witnesses in support of its case.

8. P.W.1 in S.T. No. 623/2010 is the informant Laxmi Hansda. She has deposed that it was the time of Holi. Her husband had gone to Barmasia to bring medicine for her daughter who was sick. It was around 10:00 P.M. and since her husband did not return she, Tutu, Baila and others went in search of her husband. When the Yadavs were asked they denied to have any knowledge about the whereabouts of her husband. She has stated that one of the boys whom she failed to recognize had caught the neck of Baila and she was taken towards the garage. She has stated that Babloo Yadav had gagged her mouth and Chotu had torn off her cloths. She has further stated that Babloo Yadav had committed rape upon her and the others had also subjected her to rape. There were three persons who had committed rape upon her. The accused persons had thereafter fled away. She has deposed that she was taken back to her house by her maternal aunt and others. The Police had come to her house where her fardbeyan was recorded. She was thereafter taken to the Police Station and the Police had also taken her to the Hospital.

In cross-examination, she has stated that the accused persons are her neighbours. Babloo Yadav drives a vehicle

while Chotu runs a shop.

In S.T. No. 429/2011 Laxmi Hansda has been examined as P.W.5. in which she has stated that after being taken to the motorcycle garage she was subjected to rape by Chotu Rawani, Babloo Yadav and Darshan Yadav.

In her cross-examination, she has stated that Babloo Yadav had initially committed rape upon her and thereafter she became unconscious. Darshan and Chotu had also committed rape upon her.

9. P.W.2 (Tutu Hembram) has deposed that the occurrence is of a year back at the time of Holi. He along with his brother Baila and his elder sister Laxmi had gone to search for his brother-in-law who had gone out to purchase medicine. As soon as he reached near Barmasia gate five persons had accosted them and while two persons had assaulted him and his brother, three of them had taken away his sister. He has stated that he rushed home and returned with his uncle when he found his sister who disclosed that three persons had subjected her to rape.

In cross-examination, he has deposed that he had returned back to the place of occurrence with his uncle and aunt. The accused had fled away by then.

In S.T. Case No. 429 of 2011, this witness has been examined as P.W.2 and in his examination-in-chief he has claimed to identify Chotu Yadav.

10. P.W.3 (Baila Marandi @ Suresh Marandi) has deposed that he had come to Barmasia to his sister's house and on the date of occurrence at around 10:00 P.M. since his brother-in- law who had gone to purchase medicine did not return he, Tutu and his sister Laxmi went in search of him. In the darkness five persons had attacked them and while three of the miscreants had taken away his sister he and Tutu were assaulted. They had fled away. Her sister had later on disclosed that Babloo and others had committed rape upon her. He has stated that he does not know

any of the miscreants.

This witness has been examined as P.W.1 in S.T. No. 429/2011 and his version is similar to what has been stated by him in S.T. No. 623/2010.

11. P.W.4 (Manoj Hansda) is the husband of the victim. He has deposed that he had gone to purchase medicine since his child was sick to Barmasia gate but since the shop was closed he went to another place. When he came back to his house after 1½ hours he was informed that his wife had gone towards Barmasia gate in search of him. He has further stated that when he reached the said place he saw his parents-in-law, wife, brother-in-law and others present. His wife Laxmi Hansda has disclosed that five persons had committed rape upon her. She had disclosed that Babloo Yadav, Darshan Yadav and Chotu Rawani had committed rape upon her.

In cross-examination, he has stated that he had disclosed about the name of the persons who had committed rape and he also claims to know them. His in-laws house is situated just besides the house of the accused.

In S.T. No. 429/2011, this witness has been examined as P.W.3 and in his cross-examination he has claimed to know Chotu Rawani, Babloo Yadav and Darshan Yadav.

12. P.W.5 (Somari Devi) is the mother of the informant who has stated that it was the festival of Holi and she was at home. Her son-in-law had gone for purchasing medicine for his daughter and since his son-in-law did not return home Laxmi, Baila and Tutu had gone in search of him. When they returned back Tutu and Baila disclosed that they were assaulted and Laxmi was dragged towards the garage. When all of them went in search of Laxmi they found that blood was in the wearing apparels of Laxmi and she disclosed that she had been subjected to rape by Babloo, Darshan and another.

In cross-examination, she has stated that the

person who had gone in search of her son-in-law had returned within half an hour. There were about 10-12 persons who had reached the place of occurrence. When she had seen Laxmi she was in an unconscious condition and she had regained consciousness when she was brought home. The accused Babloo, Darshan and Lalan stays in front of her house. She has stated that they were known to her from before. She has denied to be on inimical terms with the accused due to picking up of cow dung.

In S.T. No. 429/2011, this witness has been examined as P.W.4 and in her examination-in-chief she has stated that Baila and Tutu had returned back and had disclosed that Babloo Yadav, Lalan Yadav, Darshan Yadav and Chotu Rawani had outraged the modesty of Laxmi and Tutu and Baila were assaulted and chased away by them. She has stated that Laxmi was subjected to rape by these persons.

In cross-examination, she has deposed that she was sick and Baila and Tutu had informed her about the occurrence.

13. P.W.6 (Dr. Rekha Rani Sinha) was posted at P.M.C.H., Dhanbad and on 03.03.2010 she had examined Laxmi Hansda and had found the following:

"Victim was conscious. Pulse-90, B.P. 120/80, Height- 5'1", Wt-40 Kgs. Mark of Indemnification Til on right side chin and Til on left upper arm. Her secondary sex character breast, U.B. Axillary hair are developed. She has one female baby as stated by her (victim) and one abrasion present upper part of left breast. P.B. Examination- Her labia, Mejora & Minora well developed, Hymens old ruptured, vagina admits one finger loose. No blood stain discharge on her public area. Pregnancy report test-negative. H.B.S. Report shows no spermatozoa. X-ray report- Epiphysis of head or radius, olicarsion process of ulna and episcopates of humourous. Epiphisis of lower end of radius and ulna are fused. Epiphysis of ilioc creat is partially fused. The fore middle, piece of body of sternumon of fused with each other. Siphoid- Process and Membriom sterni are fused. Externally body. Radiological-age-17 years.

The Radiological age was assessed to be 17 years.

She has proved the report which is in her hand writting and which bears her signature and which has been marked as Exhibit-1.

In her cross-examination, she has stated that she could not find any sign of rape upon the victim.

This witness has also been examined as P.W.6 in S.T. No. 429/2011.

14. P.W.7 (Ashok Kumar) has deposed that on 02.03.2010 he was posted in Dhanbad Police Station as a Sub- Inspector of Police. He had written the fardbeyan of Laxmi Hansda in which she had put her thumb impression and Mangal Dev Tudu had signed on it as a witness. The same has been marked as Exhibit-2. He had taken over investigation on the orders of the Officer-in-Charge and had recorded the re-statement of the informant. He had also inspected the place of occurrence. The place of occurrence is a shack near Barmasia gate which was used as a motorcycle garage. He had sent the victim for medical examination for which he had prepared a requisition which has been proved and marked as Exhibit-4. He had obtained the medical report and had also recorded the statement of witnesses. All the witnesses have led credence to the allegations made. He has stated that the accused Babloo Yadav was arrested and his confessional statement recorded which has been proved and marked as Exhibit-5. On the orders of the superior authority the investigation was handed over to Sri Sanjay Ranjan Singh, Dy. S.P. since the allegations involved offences under the SC/ST (Prevention of Atrocities) Act.

In cross-examination, he has stated that at the place of occurrence no broken bangles were found. There were however signs of struggle present. The accused persons were residents of Barmasia. Their house is near the house of Laxmi Hansda.

This witness has been examined as P.W.8 in S.T.

No. 429/2011 and he has more or less deposed in similar terms as in S.T. No. 623/2010.

15. P.W.8 (Sanjay Ranjan Singh) had taken over investigation from Ashok Kumar. He had recorded the statement of the witnesses and on finding the case to be true he had submitted charge-sheet against Babloo Yadav, Lallu Yadav @ Lalan Yadav and Darshan Yadav while keeping the investigation pending against Chotu Rawani and Ashok Yadav.

In cross-examination, he has stated that he had inspected the place of occurrence but had not written down the description of the place of occurrence.

This witness has been examined as P.W.7 in S.T. No. 429/2011. Additionally, he has stated that he had filed charge- sheet against Chotu Rawani showing him as an absconder.

16. The statement of the accused persons were recorded u/s 313 Cr.P.C. in which all have denied their involvement in the commission of rape upon Laxmi Hansda.

17. Mr. Arwind Kumar, learned counsel for the appellants in Cr. Appeal (D.B.) No. 192 of 2015 & Cr. Appeal (D.B.) No. 340 of 2012 has submitted that the case of the prosecution is based upon the evidence of the informant-P.W.1. He has submitted that no independent witnesses have been examined by the prosecution though the witnesses have stated that several persons had gathered at the place of occurrence. The witnesses who have been examined on behalf of the prosecution being P.Ws. 6, 7 and 8 are all family members of the victim and being interested witnesses, their evidence cannot safely be relied upon.

18. Mr. D.K. Malityar, learned counsel for the appellant in Cr. Appeal (D.B.) No. 586 of 2015 has adopted the arguments advanced by Mr. Arwind Kumar.

19. Mr. K.S. Nanda, learned counsel for the appellant in Cr. Appeal (D.B.) No. 329 of 2012 has submitted that so far as the appellant Lallu Yadav @ Lalan Yadav is concerned, in the

fardbeyan, it has clearly been revealed that he and an unknown accused had assaulted the brothers of the informant and had fled away. Even in her evidence as P.W.1 the informant has not alleged any act of commission of rape against the appellant.

20. Learned A.P.Ps. have opposed the prayer of the appellants and have submitted that all are named in the First Information Report and the witnesses including the informant have supported their involvement in committing rape upon the informant Laxmi Hansda.

21. We have noted the submissions advanced by the learned counsels and have also perused the Lower Court Records.

In the First Information Report there is a clear cut allegation against the appellants Babloo Yadav, Darshan Yadav and Chotu Rawani of dragging the informant towards the hut which doubled up as a motorcycle garage and thereafter ravishing her. So far as the appellant Lallu Yadav is concerned, he and another unknown miscreants had assaulted the brothers of the informant and thereafter fled away. Lallu Yadav @ Lalan Yadav has not been attributed to have taken part in the commission of rape.

22. Babloo Yadav, Darshan Yadav and Lallu Yadav @ Lalan Yadav were tried in S.T. No. 623/2010 while the trial of the appellant Chotu Rawani was split up and registered as S.T. No. 429/2011.

23. We will first consider the evidence of the prosecution against Babloo Yadav, Darshan Yadav and Chotu Rawani. Babloo Yadav and Darshan Yadav were tried in S.T. No. 623/2010. The informant who has been examined as P.W.1 has deposed that Babloo Yadav had gagged her mouth and was the first person instrumental in committing rape upon her. According to her three persons had committed rape upon her. In her fardbeyan, she has been specific with respect to Babloo, Darshan and Chotu Rawani committing rape upon her. She has not named Darshan in her evidence as P.W.1. P.W.2 and P.W.3 who are the

brothers of the informant have stated about the informant disclosing that three persons had committed rape upon her but none of these witnesses have taken the name of those persons. However, P.W.4 who is the husband of the informant has stated about both Babloo Yadav and Darshan Yadav committed rape upon the informant as confided to him by his wife (informant). Similar is the evidence of P.W.5 Somari Devi who is the mother of the informant. The witnesses are therefore consistent about the active participation of Babloo Yadav and Darshan Yadav in committing rape upon the informant. Merely, because the witnesses are related to the informant the same cannot be a ground to discard their testimony. If at all the witnesses were prejudiced they could have implicated all the five miscreants of committing rape upon the informant. P.W.2 and P.W.3 in fact does not even name any of the miscreants except Babloo as disclosed to them by his sister. The evidence of the witnesses seem to be natural and bereft of any additions and alterations. None have claimed themselves to be an eye-witness and have given an unadulterated version of the occurrence. So far as the medical evidence is concerned no external or internal injuries were found on the person of the victim and no sign of sexual assault was detected. The incident had occurred on 01.03.2010 at night, the fardbeyan was recorded on 02.03.2010 in the evening and the medical examination was conducted on 03.03.2010. Due to such delay the possibility of detecting signs of sexual assault had automatically waned. Moreover, the informant appears to be a married lady. In such circumstances, no benefit accrues to the defence.

24. The ocular evidence overwhelmingly points to the involvement of Babloo Yadav and Darshan Yadav in committing rape upon the informant and since the prosecution has been able to establish its case, we are not inclined to interfere in the impugned judgment dated 19.01.2012 and hence Cr. Appeal (D.B.)

No. 192 of 2015 & Cr. Appeal (D.B.) No. 340 of 2012 stands dismissed.

25. So far as the appellant Chotu Rawani (in Cr. Appeal (D.B.) No. 586 of 2015) is concerned, as stated above, he was tried separately and in his trial the informant has been examined as P.W.5 and she has specifically stated about Chotu Rawani being one of the threesome who had committed rape upon her. P.W.1 and P.W.2 are her brothers who had not named any of the miscreants. P.W.3 who is the husband of the informant has named Chotu Rawani as disclosed to him by his wife. The name of Chotu Rawani prominently figures in the evidence of P.W.5 and it corroborates her narration in the fardbeyan. We therefore, do not find any error committed by the learned trial court in its judgment dated 29.05.2015 and accordingly Cr. Appeal (D.B.) No. 586 of 2015 is also dismissed.

26. So far as the appellant Lallu Yadav @ Lalan Yadav (in Cr. Appeal (D.B.) No. 329 of 2012) is concerned, his involvement seems to be negligible. He is said to have assaulted the brothers of the informant and as per the fardbeyan after the assault he had fled away. The informant who has been examined as P.W.1 does not even take the name of this appellant. P.W.2 and P.W.3 have not whispered about the appellant even on the assault purportedly committed upon them. The husband of the informant who has been examined as P.W.4 has named the persons who had committed rape as told to him by his wife but here also the name of the appellant is conspicuous by its absence. Though P.W.5 (mother of the informant) has deposed that Babloo Yadav and Darshan Yadav and three other miscreants had committed rape upon her daughter but the source of her information seems to be P.W.2 and P.W.3 though in their evidence P.W.2 and P.W.3 had not stated so. Moreover, the name of the appellant has not been taken by her. Thus there is no evidence on record to implicate the appellant.

27. The learned trial court has not meticulously

considered the evidence of the witnesses and has attributed the commission of rape upon the informant to all the accused persons without taking note of the distinguishable feature of the case of the present appellant which emerges on dissecting the evidence of the witnesses. The learned trial court has committed an error of law in convicting the appellant Lallu Yadav @ Lalan Yadav @ Lalan for the offences u/s 341, 323, 376(G) of the Indian Penal Code and Section 3(i)(xii) of the SC/ST (Prevention of Atrocities) Act.

28. Accordingly, the judgment and order of conviction and sentence dated 19.01.2012 passed by Sri Madan Mohan Singh, learned Additional District & Sessions Judge-I, Dhanbad in S.T. No. 623 of 2010 is hereby set aside so far as the appellant Lallu Yadav @ Lalan Yadav @ Lalan is concerned. Since the appellant Lallu Yadav @ Lalan Yadav is on bail he is discharged from the liabilities of his bail bond.

29. We therefore, dismiss Cr. Appeal (D.B.) No. 192 of 2015, Cr. Appeal (D.B.) No. 340 of 2012 and Cr. Appeal (D.B.) No. 586 of 2015 while Cr. Appeal (D.B.) No. 329 of 2012 is allowed.

30. Pending I.As., if any, stand disposed off.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 7th day of July, 2022.

Alok/NAFR