Kishun Hansda vs The State Of Jharkhand
2024 Latest Caselaw 10520 Jhar

Jharkhand High Court

Kishun Hansda vs The State Of Jharkhand on 19 November, 2024

Author: Ananda Sen

Bench: Ananda Sen

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Criminal Appeal (DB) No. 376 of 2003

     [Against the Judgment of conviction and order of sentence dated
    04.03.2003 passed by the learned Addl. Sessions Judge, Ghatsila,
    in Sessions Trial No. 279 of 1997].

1. Kishun Hansda, son of Dugur Hansda,
2. Munshi Mahli, son of Chandra Mahli
        Both are residents of villager Santhal Para, Mosaboni-1, P.S.
        Mosaboni, District- East Singhbhum, Jharkhand.
                                                    ..........APPELLANTS
                                Versus
    The State of Jharkhand                      ............RESPONDENT
                                     ......

     For the Appellant :   Mr. D.K. Karmakar, Advocate.
     For the State     :   Mr. Rajesh Kumar, A.P.P.
                                    ......

                             PRESENT
                           SRI ANANDA SEN, J.
                           SRI GAUTAM KUMAR CHOUDHARY, J.

                             JUDGMENT

By Court:

(Dated: 19.11.2024)

This criminal appeal is directed against the Judgment of conviction and order of sentence dated 04.03.2003 passed by the learned Addl. Sessions Judge, Ghatsila, in Sessions Trial No. 279 of 1997, whereby, the appellants having been found guilty of charge under Sections 448, 366A and 376/34 of Indian Penal Code and have been convicted and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.5,000/- each under Section 376/34 IPC, R.I. for three months under Section 448 IPC and R.I. for seven years and fine of Rs.3,000 each under Section 366A of IPC.

2. The learned counsel for the appellants submits that the occurrence had taken place on a dark night and as per the evidence, the miscreants came after covering their face but it is surprising that the victim has taken the name of these appellants, which creates a doubt about the identification of the appellants, as in the dark night without there being any source of light, it is not possible to identify Page/1 them. He further submits that the prosecution story is not believable as the other family members along with victim were sleeping, but the victim did not raise any alarm and it is also surprising that the victim was kidnapped but none could realize that she was kidnapped. He lastly submits that the entire prosecution story is unbelievable, thus the conviction of these appellants is absolutely bad.

3. Counsel for the State submits that the victim has fairly supported the prosecution case so are the other witnesses and the medical evidence also corroborates the case of the prosecution. Thus, as per the counsel for the State, this appeal deserves to be dismissed.

4. The F.I.R is at the instance of the victim, who is aged about nine years. She stated that she was sleeping with her mother in the courtyard of her house, when at mid night, two boys covering their face entered the courtyard and after gagging her mouth, took her away with them. They took her near a pond where they raped her. She could identify them as Kishun Hansda son of Dugru Hansda and Munshi Mahli son of Chandra Mahli. They also threatened her of dire consequences, if she discloses their names. She stated that she got badly injured and the blood started oozing out from her private part and she became unconscious. In the morning, after regaining consciousness, she returned to her house and narrated the said story in trauma. The villagers also got information when they caught the accused and assaulted them.

On the basis of the said report, FIR being Musabani P.S. Case No. 15/1997 was registered under Sections 448/366A/376/34 IPC. After investigation, the police submitted chargesheet. Accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. As the appellants pleaded not guilty, charge was framed under Sections 448, 366A, 376/34 of the Indian Penal Code against these appellants.

5. In order to prove the charges against the appellants, the prosecution had examined altogether eight witnesses, who are as follows:-

Page/2 P.W.1- the Prosecutrix.

P.W.2- Acham Soren, the brother of the victim, P.W.3- Ganesh Soren, P.W.4- Masang Kisku, P.W.5- Tikaram Soren, P.W.6- Sita Soren, the mother of the victim, P.W.7- Dr. Raghu Kumari Ram, and P.W.8- Gurucharan Mahto.

6. Several documents were also exhibited, which are as follows:-

Ext.-1: Signature of Sunita Soren on the fardbeyan. Ext.-1/1: Signature of the victim on fardbeyan Ext.-2: LTI of P.W. 6 on fardbeyan.

            Ext.-3:     Injury report.
            Ext.-4:     Formal FIR and
            Ext.-5:     The fardbeyan.

7. After completion of prosecution evidence, the statement of the appellants was recorded under Section 313 Cr.P.C.

The Trial Court thereafter considering the evidences had convicted the appellants for committing the offence under Section 448, 376, 366A/34 of the Indian Penal Code and sentenced them as aforesaid.

8. The Hon'ble Supreme Court in the case of Ravindra Vs. State of M.P., reported in (2015) 4 SCC 491 has held that if the evidence of the victim- prosecutrix is reliable and there is no material to disbelieve, the conviction of the appellant can be based on the sole testimony of the prosecutrix. Considering the aforesaid proposition of law, we now examine the evidence of P.W.1 i.e. the prosecutrix. She stated that she was sleeping with her mother (P.W.6) in the courtyard, when two boys entered and kidnapped her by gagging her mouth and had taken her with them. She has identified them as Kishun Hansda and Munshi Mahli i.e. these two appellants and both of them had committed rape upon her. From her evidence, it is clear that she understands what rape means. She also stated that blood was oozing out from her private part but she could not raise alarm. She stated that after committing rape upon her, the appellants fled away. She came weeping to her mother, brother and father and narrated the entire story. The villagers also came to the place of occurrence, assembled Page/3 there and on search, they found the accused persons in their house. They caught the accused and assaulted them. She further stated that she has narrated all the facts. She also identified her signature in the fardbeyan, which has been marked as Ext. 1/1. She also stated that she was examined by doctor at Ghatsila and also at Tata. She identified the appellants, who were present in Court. From her evidence, we find that she had identified the appellants as they were from the same village. She also alleged that it is these two appellants, who had committed rape upon her. There is nothing in cross- examination to disbelieve her or to doubt her credibility. Thus, from her evidence, we do not find any material to suggest that these appellants have been falsely implicated in this case or this witness is not reliable.

9. P.W.7 is the doctor who had examined the victim. The doctor has opined that the hymen of the girl was ruptured, which happened one or two days back. Be it noted that the victim was examined on 11.5.1997. He further opined that this is a case of rape. We find external and internal injuries on the victim. The age of the girl assessed by the Doctor was 9-10 years at the time of occurrence. The medical report has been marked as Ext.-3. From the medical examination, we find that the sexual assault including rape upon the victim has been proved and substantiated by the prosecution.

10. P.W.6 is the mother of the victim. She also stated that while she along with the victim was sleeping in the courtyard, in the early morning, when she woke up, she could not find her daughter. In course of search, her son found the victim coming in limping condition, as she was raped. She also taken her in lap and brought to the house. Initially she said nothing, but later on, she stated that she was raped by the appellants and they threatened her. She also stated that she was senseless. This witness has also stated that the blood was oozing out from her private part. She also stated that the victim was examined by doctor at Ghatsila and Tata. Her statement was recorded by the police.

11. P.W. 5 is the brother of the victim, who also stated in the Page/4 similar manner. Similar statement was given by P.W. 4 as well as other witnesses. Thus, we do not find any material to disbelieve their testimony.

12. Thus from the evidence and the medical report, we find that the victim, who was minor at the time of occurrence was raped by these two appellants. This fact has been proved by the prosecution beyond all reasonable doubt. All these facts have been considered by the trial Court while convicting the appellants. We find no ground to differ with the judgment of the trial court. There is nothing in the evidence of the victim to disbelieve her. Thus, from the evidence, led by the prosecution, we find that the prosecution has been able to prove the guilt of the appellants beyond all reasonable doubt. We find no merit in this appeal. The appellants have rightly been convicted and sentenced. Accordingly, this appeal is dismissed.

13. We further find no illegality in impugned judgment of the trial court while convicting the appellant for committing gang rape, though the trial court has convicted the appellants under Section 376/34 IPC but it should be under Section 376(2)(g) IPC. This makes no difference in this case.

14. Since the appellants are on bail, their bail are cancelled and they are directed to surrender forthwith before the Court below and serve the rest of their sentences.

15. Pending interlocutory application, if any, is also disposed of.

16. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment.

(ANANDA SEN, J.)

(GAUTAM KUMAR CHOUDHARY, J.)

Jharkhand High Court, Ranchi.

Dated: the 19th November, 2024.

NAFR/Anu-Cp.-3.

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