Jharkhand High Court
Against The Judgment Of Conviction And ... vs The State Of Jharkhand on 7 May, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra, Ambuj Nath
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (D.B.) No.771 of 2022
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[Against the judgment of conviction and order of sentence dated
04.06.2022 (sentence passed on 14.06.2022) passed by Sri Anjanee Anuj,
learned Additional Sessions Judge-IV, Gumla in Special Session Trial
Case No. 26/2021, arising out of Sursang P.S. Case No. 09/2021]
Vishwanath Kharia ... Appellant
-Versus-
The State of Jharkhand ... Respondent
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PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
HON'BLE MR. JUSTICE AMBUJ NATH
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For the Appellant : Mr. A. K. Chaturvedy, Advocate
For the State : Mr. Shiv Shankar Kumar, A.P.P
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C.A.V. On : 22.01.2024 Pronounced On: 7/ 05/2024
Heard the parties.
2. This appeal is directed against the judgment of conviction and
order of sentence dated 04.06.2022 (sentence passed on 14.06.2022)
passed by Sri Anjanee Anuj, learned Additional Sessions Judge-IV,
Gumla in Special Session Trial Case No. 26/2021, arising out of Sursang
P.S. Case No. 09/2021, holding the appellant Vishwanath Kharia guilty of
offences under Section 376(3) of the Indian Penal Code and Section 4(2)
of the POCSO Act and thereby, sentencing him to undergo rigorous
imprisonment (R.I.) for twenty years alongwith a fine of Rs.25,000/- for
the offence under Section 4(2) of the POCSO Act and in default of
payment of fine, he was further directed to undergo S.I for one year. No
separate sentence was passed under Section 376(3) of the Indian Penal
Code.
3. The prosecution case was instituted on the basis of the Fardbeyan
of the informant, a 13 years old girl at the time of occurrence, alleging
therein that on 10.04.2021, she had gone to attend the marriage of
daughter of Jalsu Kharia. While she was present there, the appellant
Vishwanath Kharia came there and asked her to accompany him. He took
her to nearby forest, disrobed her and raped her.
4. After investigation, police found the occurrence to be true and
submitted the charge-sheet against the appellant under Section 376(3) of
the Indian Penal Code and Sections 4 & 6 of the POCSO Act. The
cognizance of the case was taken by Sri S.B. Ojha, learned District &
Additional Sessions Judge-I-cum-Special Judge, Gumla under the
aforesaid Sections on 09.06.2021.
5. The charge was framed against the appellant under Section 376(3)
of the Indian Penal Code and Sections 4 & 6 of the POCSO Act on
24.09.2021. The contents of the charge was read over and explained to
the appellant in Hindi to which he pleaded not guilty and claimed to be
tried.
6. In order to prove its case, the prosecution has adduced both oral
and documentary evidence.
7. The victim has been examined as P.W.1. Ashrita Kindo the aunt of
the victim is P.W.2. Kunti Devi P.W.3 is the mother of the victim. Jagdish
Singh P.W.4 is the father of the victim. Sumanti Kindo P.W.5 is the friend
of the victim. Divya Kiro P.W.6 is another friend of the victim. All the
aforesaid witnesses have not supported the prosecution case and as such,
they have been declared hostile.
Aakash Kumar Pandey P.W.7 is the Investigating Officer of the
case. He has proved the fardbeyan of the victim which is Exhibits-1/2. He
has further proved the formal F.I.R which is Exhibit-4. He has proved the
place of occurrence.
Anup Kumar P.W.8 is another Investigating Officer of the case who
had obtained blood sample of the victim and sent it for forensic
examination.
Dr. Shakuntala Murmu P.W.9 has medically examined the victim.
She has proved the medical report which is Exhibit-9.
Alia Kindo P.W.10 is another friend of the victim and she has been
declared hostile.
Dr. Brajesh Kumar Yadav P.W.11 is the Assistant Director, Foresic
Science Laboratory, Ranchi. He has proved the foresic report which has
been marked Exhibit-10.
8. The statement of the appellant was recorded under Section 313
Cr.P.C, the defence is general denial of the occurrence and false
implication.
9. On the basis of the evidence, both oral and documentary
available on record, learned Trial Court held the appellant guilty and
sentenced him accordingly.
10. Mr. A. K. Chaturvedy, learned counsel for the appellant has
submitted that in the present case, all the witnesses have been declared
hostile. Learned Trial Court found the appellant guilty only on the basis
of finding of the Forensic Science Laboratory, Ranchi. On this ground, it
was prayed that this appeal be allowed and the appellant be acquitted of
the charge.
11. Mr. Shiv Shankar Kumar, learned A.P.P on behalf of the State has
submitted that the forensic report conclusively proved that the appellant
had sexually assaulted the victim, who was aged about 13 years old and
the conviction of the appellant can solely be based on forensic report and
accordingly, it was prayed that this appeal be dismissed.
12. Now, it has to be ascertained whether the prosecution has been able
to prove its case against the appellant beyond all reasonable doubts ?
13. The victim who has been examined as P.W.1 has been declared
hostile as she has stated that no occurrence as alleged had taken place.
The family members of the victim namely Ashrita Kindo P.W.2, Kunti
Devi P.W.3 and Jagdish Singh P.W.4 have also stated that no occurrence
as alleged has taken place. Sumanti Kindo P.W.5, Divya Kiro P.W.6 and
Alia Kindo P.W.10 are the friends of the victim. They have also not
supported the prosecution case and as such, they have been declared
hostile.
14. Dr. Shakuntala Murmu P.W.9 has medially examined the victim
and she has stated that there was no sign of rape on the person of the
victim. She has also stated that in the vaginal swab, no spermatozoa was
found. She has further stated that she had obtained navy blue panty and
maroon skirt of the victim alongwith finger clippings. She has vulval
swab and vaginal swab.
15. Dr. Brajesh Kumar Yadav P.W.11 who is the Assistant Director of
Foresic Science Laboratory, Ranchi has proved the report of FSL, which
is Exhibit-10. He has stated that whitish stain was found on the navy blue
color panty, which was forwarded for chemical examination. The
examination was found to be semen and DNA Profile generated from the
blood of the appellant matched with the semen found in the
undergarments of the victim.
16. Now the question is whether the conviction of the appellant can be
held on the basis of the findings of forensic examination report ?
17. The forensic science report is the opinion of an expert. The
admissibility of its report depends on number of factors depending upon
various variables and accuracy of such tests. No scientific opinion can be
hundred percent correct and as such will be nothing more than
corroborative in nature.
18. The evidence of an expert is corroborative in nature. In the present
case, none of the public witnesses have supported the prosecution case.
The forensic science report being corroborative in nature cannot be made
basis of conviction of the appellant.
19. From the aforesaid discussions, it is evident that the findings of the
forensic science report as Exhibit-10 cannot be solely ground for the
conviction of the appellant in absence of any corroborative evidence.
20. Accordingly, this appeal is allowed. The judgment of conviction
and order of sentence passed by the learned Trial Court is hereby, set
aside.
Pending I.A, if any, also stands disposed of.
(Ratnaker Bhengra, J.)
(Ambuj Nath, J.)
Jharkhand High Court, Ranchi
Dated : 7/ 05/2024
BS/-
