Babujan Soren vs State Of Jharkhand
2023 Latest Caselaw 1480 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      (Criminal Appellate Jurisdiction)
                      Acquittal Appeal No. 75 of 2018
Babujan Soren, s/o late Bharan Soren, r/o Village Ranga Matia, PO & PS
Tongra, District Dumka, Jharkhand                        .... Appellant
                                  Versus
1. State of Jharkhand
2. Mithushila Hembrom, s/o Motilal Hembrom, r/o Village Ranga Matia, PO
& PS Tongra, District Dumka, Jharkhand                  .... Respondents
                                  ------
 CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
                   HON'BLE MR. JUSTICE RATNAKER BHENGRA
                                        -------
      For the Appellant                   : Mr. Purnendu Sharan, Advocate
      For the State                       : Ms. Nehala Sharmin, Spl. PP
      For OP No.2                         : Mr. Vishal Kumar Rai, Advocate
                                        --------
                                                                 ORDER

th 5 April 2023 Per, Shree Chandrashekhar, J.

Babujan Soren who is the informant of Masalia (Tongra) PS Case No. 87 of 2010 is aggrieved of the judgment dated 13 th March 2018 passed in Sessions Trial No. 64 of 2011.

2. In his fardbeyan, the informant has raised suspicion against Mithushila @ Babuta Hembrom and Makai Dafadar who sexually assaulted his daughter Sharmila Soren and murdered her.

3. After the investigation, a charge-sheet was laid and Sessions Trial No. 64 of 2011 was registered against Mithushila @ Babuta Hembrom and Makai Dafadar under section 302/34, 201 and 376 of the Indian Penal Code (in short, IPC). However, Makai Dafadar absconded and his trial has been separated. During the trial against the respondent no.2, the prosecution has examined 14 witnesses out of whom PW10 is the informant. The prosecution has also produced seizure list of nokia mobile phone, subscription detail of the sim card and CDRs to prove the case against the respondent no.2.

4. The learned trial Judge has held as under:

"20. On perusal of evidences, it further transpires that there is enmity with deceased Sharmila Soren. Enmity is double aged weapon. Due to enmity there is possibility of commit the offence but on the contrary there is much possibility to false implication also. As discussed above I find that no one had seen the accused along with deceased at Masanjore dam, where incident occurred. On the date of occurrence on dated 26.10.2010 deceased had talked to one Pradeep Marandi several times but it

is surprising that this person has not been made accused by the I.O. On perusal of evidence of witnesses, it further appears that after marriage deceased resided in her father's house and I.O. has told in para-27 that he had made inquiry with Pradeep Marandi and there was illicit relation of Sharmila with the brother of Pradeep Marandi namely Meghnath Marandi. But they both have not been made accused in this case."

5. Mr. Purnendu Sharan, the learned counsel for the appellant has contended that the informant has seen Mithushila @ Babuta Hembrom following his daughter in the evening of 26th October 2010 and motive for her murder has also been established by the prosecution. Therefore, the judgment of acquittal of the respondent no.2 recorded in Sessions Trial No. 64 of 2011 suffers from serious infirmities in law and warrants interference by this Court.

6. Mr. Vishal Kumar Rai, the learned counsel for the respondent no.2 has also supported the present Acquittal Appeal on the ground that on minor discrepancies in the prosecution case the testimony of witnesses cannot be disbelieved altogether.

7. According to the prosecution, PW2, PW3, PW5, PW8, PW9 and PW11 who are co-villagers of the informant have tendered independent evidence. But they all have deposed in the Court that they could hear about the incident from the informant. The dead body of Sharmila Soren was found near Sanga Nala on 30th October 2010 which was first seen by Pansal Tudu who is a relative of the informant. The CDRs of the calls made to Sharmila Soren do not connect the respondent no.2 with the crime inasmuch as the mobile phone with which calls were made to her has been found belonging to Pradeep Marandi who was neither made an accused nor produced in the Court as a witness.

8. Generally motive does not play any important role in a case based on eyewitness account. However, in a case based on circumstantial evidence if motive is proved it becomes one significant circumstance in the chain of circumstances to prove the guilt of the accused. According to the prosecution, the motive behind the crime was that there was a dispute between the deceased and the father of the respondent no.2 who was President of the Village Education Committee on account of non-payment of salary to the deceased. The further case of the prosecution is that on a

complaint made by the deceased Motilal Hembrom who is the father of the respondent no.2 was removed from the post of President of the Utkramit Prathmik Vidayalay at Latar Tola, Ranga Matia.

9. There is no eye witness to the murder of Sharmila Soren. PW14 is the doctor who conducted the postmortem examination over the dead body of Sharmila Soren. The doctor has found evidence of sexual assault but the respondent no.2 was never subjected to any medical examination. All the prosecution witnesses have stated in the Court that there was animosity between Sharmila Soren and Motilal Hembrom but except this circumstance no other incriminating circumstance has been established by the prosecution to prove the charge of rape and murder of Sharmila Soren.

10. The learned counsel for the appellant has contended that the informant has seen the respondent no.2 following his daughter and this piece of evidence has been ignored by the learned trial Judge. However, this is not the case of the prosecution that the informant has made inquiry from the respondent no.2 about his daughter or that the respondent no.2 had gone missing after 26th October 2010. It has come on record that on 26th October 2010 when according to the informant his daughter went missing and also on 27th October 2010 Sharmila Soren had attended the school. Moreover, the prosecution has failed to establish that the respondent no.2 was connected with the crime in any manner whatsoever.

11. This is a well-accepted proposition in law that the judgment of acquittal recorded by the learned trial Court is not interfered with by the High Court on some minor mistakes in appreciation of the evidence and, that, the view taken by the learned trial Court must be accorded precedence.

12. In "Sambasivan v. State of Kerala" (1998) 5 SCC 412 the Hon'ble Supreme Court has observed as under:

"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal....."

13. Having examined the materials on record, we find no ground to interfere in this matter and, accordingly, Acquittal Appeal No. 75 of 2018 is dismissed.

14. Consequently, I.A No. 7445 of 2018 is disposed of.

15. Let the lower Court records be transmitted to the Court concerned, forthwith.

16. Let a copy of the judgment be transmitted to the Court concerned through FAX.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranch Dated: 5th April 2023 RKM/ NAFR