Jharkhand High Court
The State Of Jharkhand Through The ... vs Father S. Christu Das on 29 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No. 32 of 2008
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The State of Jharkhand through the Deputy Commissioner, Dumka
(Jharkhand) ... Appellant
Versus
Father S. Christu Das, s/o Sri Swami Das, residing at Social
Development Centre, PO-Dumka, PS-Dumka, District-Dumka
Resident of Mohalla Nawatoli, PS-Daltonganj, PO-Daltonganj,
District-Palamau ... Respondent
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Abhay Kumar Tiwari, APP
For the Respondent : None
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ORDER
th
29 March 2023
Per, Shree Chandrashekhar, J.
The State of Jharkhand has challenged the judgment
dated 25th June 2008 passed by Sessions Judge, Dumka in
Criminal Appeal No. 4 of 2005.
2. By the aforesaid judgment, the order of conviction of
Father S. Christu Das was set-aside and he was acquitted of the
criminal charge framed against him under section 377 of the
Indian Penal Code (in short, IPC).
3. In GR Case No. 734 of 1997 (TR Case No. 23 of 2004)
which was registered on the basis of Jama PS Case No. 93 of 1997,
Father S. Christu Das has been convicted and sentenced to RI for
3 years with a fine of Rs.1000/- under section 377 IPC.
4. The victim boy who was a student of Class-VII of
St. Joseph High School, Guhiajori gave his fardbeyan to the officer-
in-charge of Jama PS on 2 nd September 1997 on the basis of which
a First Information Report was lodged against Father S. Christu
Das. The prosecution case as narrated by the victim boy is that
Father S. Christu Das came to his dormitory after the evening
prayer and asked him to come to his room. The victim boy has
levelled allegation against Father S. Christu Das that he caught
him by both hands and started kissing him, put off all his clothes
2 Acquittal Appeal No. 32 of 2008
and removed his undergarment in the bathroom. He has made
further allegations against the accused of unnatural sex with him.
5. During the trial, the prosecution has examined
16 witnesses out of whom PW8 Santosh Kumar Manjhi and PW9
Rajendra Kumar Yadav did not support seizure of Pant and
Janghia in their presence. The prosecution's case is based on the
testimony of PW15 who was an eyewitness to the occurrence. PW1
and PW14 are the hearsay witnesses who have come to the Court
to say that they could hear about the occurrence from PW15.
Before 1st Appellate Court, it was contended on behalf of the
accused that the testimony of PW2 Father Jaochim Lakra, PW4
Father Anil Lugun, PW10 Sister Maria and PW11 Father Sushil
Tete who did not support the prosecution story was ignored by the
trial Judge while recording a finding of guilt against the accused.
6. The defence set-up by the respondent is that the
students of Class-VII, VIII and X who were staying in the hostel
formed an unlawful assembly along with the students of
S. P. College, undressed him, cut his hairs and put on garland of
old shoes and slippers on him and forced him to march from
Guhiajori to Dudhani and to abort any attempt of disciplinary
action against them a false case was lodged against the
respondent.
7. The 1st Appellate Court has discussed the statement of
PW15 recorded under section 164 of the Code of Criminal
procedure viz.-a-viz. his testimony in the Court. In a judgment
running across 27 pages, 1st Appellate Court has discussed the
materials laid during the trial of TR Case No. 23 of 2004 threadbare
and came to a conclusion that the prosecution has failed to explain
delay in lodging the First Information Report; the conduct of the
victim boy in not informing any other person including the school
authorities was unnatural and creates a doubt; there is serious
inconsistency in the evidence of PW1 and PW14; seized clothes
were produced after 3 days and sent for chemical examination after
50 days and; PW8 and PW9 who are the seizure witnesses have
denied any seizure in their presence.
3 Acquittal Appeal No. 32 of 2008
8. The 1st Appellate Court has held as under:
"24. From detailed discussion of the aforesaid evidence of
witnesses available on record it is crystal clear that there is
unusual delay in the FIR without any proper explanation for such
delay, the non disclosure of the occurrence by the informant
himself to any other persons including school authorities except
his close friends as P.W.1 and P.W.14 creates a reasonable
doubt about the occurrence. There is no consistency in the
evidence of P.W.1 and PW.14 what was disclosed to them by
victim, rather it is admitted by P.W.14 Sakal Hansda that he
disclosed about the occurrence to P.W.1 therefore, it is apparent
that P.W.15 informant did not disclose about the occurrence even
to his another friend P.W.1 Benjamin Soren Ext.5 to 5/2
statement u/s 164 Cr.P.C. of aforesaid witnesses how non-
disclosure to principal or other teacher. There is no iota of
evidence of the informant who is victim cum sole eye witness of
the occurrence that discharged semen was wiped in his pant or
Janghia as well as in Ext.10 there is no whisper about presence
of semen spot, under such circumstances any report of chemical
examination as mentioned in Ext.7 cann't be attached any legal
value for reason that in absence of substantial evidence in this
regard about the presence of semen over the seized material,
corroborative evidence like F.S.L. report cannot be acted upon.
Moreover in his examination victim boy was found to be able to
discharging semen. The said seized materials were produced
after 3 days of occurrence and further send by Police for chemical
examination after lapse of 50 days. Therefore possibility if
manipulation in the seized material itself by the informant or
Police Officer cannot be over-ruled, seized materials has also
been doubtful as per evidence of P.W.8 and P.W.9 who are
witnesses of seizure list. The very genesis of occurrence is that
the victim boy was suffering from Eczema but the Doctors who
examined him under the Medical Board have not found any mark
of Eczema on his body. Thus the very genesis of the occurrence
itself becomes doubtful. From discussion of place of occurrence
which is office of the accused adjacent to the mess cum hostel of
the informant, where about 200 students residing together and
uses a common bath room which passes through the office of the
accused, clearly indicates that no one could dare to commit such
offence opening the door. This fact also makes the prosecution
story extremely doubtful.
From the aforesaid evidence it further transpires that
accused of this case was very strict administrator and had been
Vice Principal in the year 1989 thereafter hostel superintendent
since 1990. In his period he maintained strict discipline and also
framed new rules in expelling the students who are involved in
ragging or drug addict. He never allowed the hostel students for
going to market without any reasonable cause. As such students
were excited and were in search of appropriate occasion for
revolting against the accused. Esipocal Ordination of Bishop was
scheduled to be held on 7.10.97 and preparation of music and
other function was under the charge of accused Father Krestu
Das, before the said ceremony the informant and his associates
excited the other students and committed indecent act against
the accused and forming an unlawful assembly marched a rally
wherein the accused was brutally assaulted, made naked, his
hairs was cut and shoes garland was put on as is evident from
Ext. E to C/a, Ext. F & F/2, Ext. G & H, prior to this occurrence
and in the course of rally nothing was disclosed before any
person or any school authority or Police Officers. Thus the
commission of alleged unnatural sexual inter-course is highly
4 Acquittal Appeal No. 32 of 2008
doubtful in the given circumstances of the case. The prosecution
case has been given serious zolt by the evidence of P.W.2 Father
Jaochim Lakra who was the Principal at the relevant time of
occurrence i.e on 30.8.97 he was in the school premises he along
with Father Krestu Das, Father Maria Luis were in the office cum
residence of Krestu Das from 8:00 to 8:30 p.m and after prayer
they again met in the meeting for preparation of Esipocal
Ordination of Bishop which continued up to 10:30 p.m. P.W.4
Father Anil Lugun has also deposed about the aforesaid fact.
Father Sushil Tete P.W.11 who was also School Teacher in the
said school has also deposed the said fact at Para-14 in the
deposition. These witnesses have been examined by the
prosecution and have not been declared hostile as such their
testimony must be treated as admission of prosecution.
In this view of the matter also the alleged occurrence of
sexual inter course by the accused person becomes highly
doubtful. The I.O of the case has also conducted a perfunctory
and incomplete investigation of the case.
25. I have gone through the citations relied upon by both side I
have no hesitation to admit the legal Principal propounded in the
aforesaid citations. In the present case there is sole eye witness
of the occurrence and other witnesses of fact are not only
interested but also inimical to the accused due to his strict
discipline. As a rule there is no bar to pass the conviction of
accused on the sole testimony of the victim if appears to be
wholly reliable and there is no attending circumstances to
disbelieve or discredit his testimony. It is also settled principle of
law that a charge of Sodomy is very easy to bring and very
difficult to refute. The evidence in support of such a charge has to
be very convincing in order to convict the accused. Hence as a
matter of prudence in a fit case corroboration becomes necessary.
In the instant case the victim (P.W.15) has categorically alleged
about all the ingredients constituting the offence u/s 377 IPC but
at the same time I find no veracity in his allegations in view of the
attending facts and circumstances under which alleged offence
has been said to be committed by the accused as mentioned
above therefore, conviction of accused without corroboration will
be hazardous prosecution itself has projected self contradictory
facts with regard to commission of the said offence. At one time
P.W.15 (the sole eye witness) himself said that the offence was
committed with him at about 9:00 p.m. and P.W.2, 4, 10 and 11
have said that they were discussing about Episocal Ordinations
of Bishop scheduled to be held on 7.10.97 in the Office of accused
Father Kresto Das till 10:30 p.m. It is also settled law that if two
views are possible in respect of an offence the view in favour of
accused must be taken for granted."
9. In Criminal Appeal No. 4 of 2005, the respondent has
raised inter alia the following grounds: (i) errors in the judgment in
TR Case No. 23 of 2004 such as wrong marking of the exhibits and
material objects are not typographical errors and have seriously
affected the reasoning of the trial Court (ii) evidence of PW2, PW4,
PW10 and PW11 was completely ignored by the trial Court and
(iii) the defence evidence of the photographer who took photographs
of the students forcing the accused marching in naked condition
5 Acquittal Appeal No. 32 of 2008
and investigating officer of Jama PS Case No. 94 of 1997 who spoke
about lodging of case against the students for the said incident
were completely ignored by the trial Court.
10. To set-up a defence that the students who are accused
in Jama PS Case No. 94 of 1997 set-up the victim boy against the
respondent and lodged a false case against the respondent who is
the victim in Jama PS Case No. 94 of 1997, on behalf of the
defence DW1 Vinod Kumar Sinha who is the photographer and
DW3 SI Subodh Kumar Jaiswal who is the investigating officer
Jama PS Case No. 94 of 1997 were examined. The respondent has
also examined himself as DW2 under section 315 of the Code of
Criminal Procedure in support of his defence of false implication in
the present case. He has laid in evidence injury report of the
accused, written report, FIR, charge-sheet etc. in Jama PS
Case No. 94 of 1997. The respondent has also laid in evidence
photographs taken by DW1 of the incident in which he was
garlanded with shoes and slippers and forced to march in naked
condition by the students of St. Joseph High School and
S.P. College. This is also a matter of record that in the said incident
the students attacked the respondent with the hockey sticks and
caused head injuries to him. This has also come on record that the
victim boy along with PW1 Benjamin Shoren and PW14 Narayan
Hansda are on bail in Jama PS Case No. 94 of 1997. In the cross-
examination, the victim boy has admitted that at about 9:00 AM on
2nd September 1997 Father S. Christu Das was forced to march
from Guhiajori near ITI to Dudhani. PW1 and PW14 have also
admitted in the Court that it was the victim boy who himself
informed him about the occurrence of the night of 30 th August
1997. PW2 Father Jaochim Lakra who was the Principal of the
school, PW4 Father Anil Lugun, PW10 Sister Maria and PW11
Father Sushil Tete have deposed in the Court that in the morning
of 2nd September 1997 some students had surrounded the office-
cum-residence of Father S. Christu Das and caused damage to
window glass, doors and Kawashaki motorcycle of Father
S. Christu Das. We have also examined the medical evidence
6 Acquittal Appeal No. 32 of 2008
rendered through PW5, PW6 and PW7 and the testimony of the
investigating officer who was examined in the Court as PW16. In
our opinion, 1st Appellate Court has applied the correct parameters
to test the prosecution case which contained more chaff than grain.
11. Having considered the materials on record, we do not
find any substantial ground to interfere with the judgment dated
25th June 2008 passed in Criminal Appeal No. 4 of 2005. While
recording this finding we have this in our mind that a judgment of
acquittal recorded by the Court below is not easily interfered by
the High Court in exercise of the powers under section 386(a) of the
Code of Criminal Procedure unless it is shown to the Court that the
judgment of acquittal is based on incorrect appreciation of evidence
whereby some admissible evidence has been ignored by the Court
or the judgment is bordering perversity.
12. Having regard to the aforesaid facts and circumstances
in the case, Acquittal Appeal No. 32 of 2008 is dismissed.
13. Let the lower Court records be transmitted to the Court
concerned, forthwith.
14. Let a copy of the Judgment be transmitted to the Court
concerned through FAX.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 29th March 2023
Amit
N.A.F.R
