2017 vs The State Of Jharkhand
2024 Latest Caselaw 9751 Jhar

Jharkhand High Court

2017 vs The State Of Jharkhand on 1 October, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

               Cr. Appeal (D.B.) No. 1584 of 2022
    [Against the judgment and order of conviction and sentence dated 24.05.2022
    (sentence passed on 26.05.2022) passed by Sri Rakesh Kumar, learned
    Additional Sessions Judge-I-cum-Special Judge, POCSO, Pakur in Special
    POCSO Case No. 17 of 2018, arising out of Pakur (Town) P.S. Case No. 168 of
    2017]
                              ...........
     Masih Hembram, S/o Late Suraj Hembram @ Budhan Hembram,
     R/o Village: Mohanpur, P.O., P.S.- Murarai, District- Birbhum
     (West Bengal)                                ... ... Appellant
                              Versus
     The State of Jharkhand                      ... ... Respondent
                              ...........
     For the Appellant      : Mr. Syed Ramiz Zafar, Advocate
     For the State          : Mr. Vineet Kr. Vashistha, Spl. P.P.
     For the Victim         : Mr. Naveen Kr. Jaiswal, Amicus Curiae
                               PRESENT
           HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
         HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
                              ...........
C.A.V. on 09/09/2024                  Pronounced on 01/10/2024
Per Rongon Mukhopadhyay, J.

Heard Mr. Syed Ramiz Zafar, learned counsel for the appellant and Mr. Vineet Kr. Vashistha, learned Special P.P. for the State assisted by Mr. Naveen Kr. Jaiswal, learned Amicus Curiae for the victim.

2. This appeal is directed against the judgment and order of conviction and sentence dated 24.05.2022 (sentence passed on 26.05.2022) passed by Sri Rakesh Kumar, learned Additional Sessions Judge-I-cum-Special Judge, POCSO, Pakur in Special POCSO Case No. 17 of 2018, arising out of Pakur (Town) P.S. Case No. 168 of 2017, whereby and whereunder the appellant has been convicted for the offences punishable u/s 6 read with Section 18 of the POCSO Act and has been sentenced to R.I. for 10 years along with a fine of Rs. 50,000/- and in default in payment of fine to undergo further R.I. for 06 months.

3. The prosecution case arises out of the written report of Savitri Hansda, in which, it has been stated that on 29.11.2017 at about 3:50 P.M. a boy namely, Masih Hembram had come to her house in her absence and at that time there were no one in the house except her minor daughter. It has been alleged that Masih Hembram had asked her daughter to show him the bathroom and on such pretext he had taken her to the bathroom. The accused had forced her daughter to undress and he had also undressed himself. The age of the daughter of the informant is six years. At that point of time her niece had come and in search of the child she had gone near the bathroom and she heard some sounds coming from the bathroom. Having found the bathroom to be locked from inside she started banging on the door. The accused Masih Hembram threatened the daughter of the informant to keep quite. It has been alleged that due to the banging on the door by the niece of the informant the accused had fled from the Ventilator of the bathroom but due to the commotion the villagers had assembled who had apprehended the accused.

Based on the aforesaid allegations Pakur (Town) P.S. Case No. 168 of 2017 was instituted against Masih Hembram for the offences u/s 376(2)/511 of the IPC and Section 6/18 of the POCSO Act. On completion of investigation charge-sheet was submitted upon which cognizance was taken. Charge was framed against the accused for the offences punishable u/s 6 read with Section 18 of the POCSO Act and Section 376(2)(i)/511 of the IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as seven witnesses in support of its case.

5. P.W.1 "Victim X" is aged seven years who has stated that she and her friend Nikky were playing beneath a tree near her house and in the meantime a person had come and requested her to show her the toilet which is at the back of her house. This person had dragged her inside the toilet and opened her pant as well as his own pant. When his sister Rosemery peeped

from the ventilator the said persons fled away. Her sister raised a cry of alarm and the Police came and apprehended the said person. She had identified the accused in Court as the person who had opened her undergarment. She has identified her signature in her 164 Cr.P.C. statement which have been marked as Exhibits- 1, 1/1 and 1/2.

In cross-examination, she has deposed that on the date of the incident her parents were not in the house and her sister Rosemery Hansda was also not present. The person who had disrobed her used to frequent her house. She has deposed that the ventilator does not have any fittings. She has disclosed the size of the ventilator as that of an A4 size paper.

6. P.W.2 (Savitri Hansda) is the informant and the mother of the victim who has stated that the incident is of December, 2017 at 4:30 P.M. She was not in her house as she had gone to Maheshpur and when she came back at 6:00 P.M. she came to know that a person in her absence had come home and had asked her seven years old daughter about the whereabouts of her parents. Her daughter had replied that her parents were not at home. The said person requested her daughter to show him the bathroom as he was in need of using it, at which, her daughter took her to the bathroom which was situated behind her house. She has stated that her daughter had disclosed that the said person dragged her inside the bathroom and closed the door from inside and made her lie on the floor while opening his trouser and also by opening the pant of her daughter started doing an immoral act with her. The friend of her daughter namely, Nikki who was playing with her started crying aloud and this attracted the attention of her niece Rosemery Hansda who went towards the bathroom and banged on the door but it was not opened. Her niece somehow managed to open the door and found that the accused has escaped from the ventilator of the bathroom and when her

niece raised an alarm the persons nearby had chased and apprehended the accused who was later on handed over to the Police. When she returned from Maheshpur at 6:00 P.M, she came to know about the incident and on opening the pant of her daughter she found traces of blood on her private parts. At 7:00 P.M., she had gone to the Police Station and had submitted a written report which has been proved and marked as Exhibit-2. She had recognized the accused as she had seen him coming to her house once and the accused used to work as a labour in the Election Cell where her husband was a clerk. The accused had come to her house with several labourers demanding payment of their wages.

In cross-examination, she has deposed that the length and breadth of the ventilator would be two fingers on each side. The accused had once come with a group of labourers to demand their wages and had subsequently once again come to her house alone to demand his due wages.

7. P.W.3 (Babuchand Murmu) is the father of the victim who has stated that when he came back home at 6:00 P.M. he learnt about the occurrence of the accused committing rape upon his minor daughter.

In cross-examination, he has deposed that he was working in the District Election Office, Pakur and he was acquainted with the accused for a year. It is correct to say that the accused had earlier worked as a labourer in his office. The accused did not have any dues towards his wages.

8. P.W.4 (Rosemery Hansda) has stated that the incident is of 29.12.2017. It was around 3:30 P.M. when she had returned from her school at Maheshpur when she found her younger sister crying inside the bathroom. The friend of her sister Nikki was also crying. When she went towards the bathroom she heard some whispering coming from inside the bathroom. She

banged on the door but it was not opened. She thereafter went towards the backside of the bathroom where she found a boy coming out from the ventilator of the bathroom. The said boy was trying to flee away but when she raised a cry of alarm others arrived and he was chased and apprehended In cross-examination, she has deposed that on alarm several persons had assembled but she cannot say the name of those persons.

9. P.W.5 (Daniel Murmu) is the uncle of the victim who has stated that on 29.11.2017 at 3:30 P.M. he was returning from the college where he was doing B.Ed along with Ravi Soren and as they reached the road going towards D.C. Office he saw a person fleeing away with a small crowd chasing him. He with the assistance of the others managed to apprehend the said person who disclosed his name as Masih Hembram. The said accused was thereafter brought home. Her niece in relation Rosemery Hansda had disclosed that the victim is locked inside the bathroom at which he entered the bathroom through the ventilator where he found the victim in a naked condition. She was crying. He had opened the door of the bathroom and the victim was brought outside. The victim had disclosed that the apprehended person on the pretext of showing him the bathroom had taken her inside and after opening her clothes had tried to do an immoral act with her.

In cross-examination, he had deposed that when he had come to the place of occurrence the crowd which had gathered were assaulting Masih Hembram. The Police had not taken his statement. The accused did not suffer any injury even after the assault committed by the villagers.

10. P.W.6 (Ravi Soren) has stated that on the date of occurrence he was returning from the college and when he reached near the road going towards D.C. Office he had seen the Police putting a person in the Police vehicle. He came to know from the

persons who had gathered that the man who was being put in the vehicle was involved in an immoral act with a minor girl. He had refused to identify the accused who was produced through Video Conferencing.

In cross-examination, he has deposed that his statement was not recorded by the Police.

11. P.W.7 (Yogesh Prasad Yadav) was posted at Pakur (T) Police Station and on 29.11.2017 he had taken over the investigation of Pakur (Town) P.S. Case No. 168 of 2017. He had recorded the re-statement of the informant and had also inspected the place of occurrence which is at village Saharcoal in the house of the informant and at the back portion of the house two bathrooms are in existence; one which is usable and the other is under construction. The bathroom is 8 feet in length and 4 feet in breadth. In the western side of the bathroom is a ventilator whose length and breadth are 2 feet x 1½ feet. It is the same ventilator through which the accused is said to have escaped. He had recorded the statement of Rosemery Hansda. On 01.12.2017, the statement of the victim was got recorded u/s 164 Cr.P.C. He had also recorded the statements of Babuchand Murmu, Danish Murmu, Sumitra Devi, Munni Devi and Ravi Oraon.

In cross-examination, he has deposed that he had not recorded the statement of the victim. The informant Savitri in her statement had not stated about detecting blood in the private parts of the victim on opening her undergarment.

12. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his complicity in the incident.

13. It has been submitted by Mr. Syed Ramiz Zafar, learned counsel for the appellant that the appellant has falsely been implicated in the present case at the instance of the father of the victim since the appellant had some dues toward wages from him. It has been submitted that an absurd story has been created

that the appellant had escaped from the ventilator of the bathroom. The evidence of the Investigating Officer (P.W.7) would indicate that the informant had developed a story in course of trial as it has been stated that in the statement before the Police she had not disclosed about finding traces of blood in the private part of the victim. There is no medical evidence on record. It has been submitted that when the appellant was supposedly apprehended by the crowd he was heckled and manhandled but not a single scratch was found on his person as per P.W.5 who has claimed himself to be a witness to such assault.

14. Mr. Vineet Kr. Vashistha, learned Special P.P. for the State has submitted that the victim (P.W.1) has in her evidence stated about the attempt made by the petitioner to commit an aggravated penetrative assault upon her by luring her inside the bathroom and undressing himself. It was on account of the swift action taken by P.W.4 by banging on the door of the bathroom which forced the appellant to escape before he could fulfill his carnal desires.

15. Mr. Naveen Kr. Jaiswal, learned Amicus Curiae for the victim has reiterated what has been submitted by the learned Special P.P. for the State.

16. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records.

17. The appellant had on the pretext of wanting to use the bathroom and to show its location had been taken by the victim to the back portion of the house where the appellant had dragged the victim inside, locked the door and undressed himself as well as the victim. However, due to the timely intervention of P.W.4 who sensed something wrong and started banging on the door of the bathroom the appellant was forced to escape from the ventilator of the bathroom and on being chased by the public he was apprehended and handed over to the Police. Out of the seven

witnesses examined, P.W.1 is the victim, P.W.2 is the informant and the mother of the victim, P.W.3 is the father of the victim, P.W.4 is the sister of the victim while P.W.5 is the uncle of the victim. The only independent witness seems to be P.W.6 who has failed to identify the appellant. Therefore, it appears that a majority of the witnesses are related to the informant. It is the case of the prosecution that when P.W.4 started banging on the door the appellant had escaped through the ventilator. As per the victim (P.W.1) the size of the ventilator was akin to A4 size paper. The Investigating Officer (P.W.7) has on inspection of the place of occurrence given the size of the ventilator to be 2 feet x 1½ feet. The height of the ventilator from the ground level has not been described by P.W.7. There does appear to be an ambiguity with respect to the size of the ventilator and as to whether any grown up person can climb or enter the bathroom through the ventilator.

18. As per P.W.5 as also P.W.4 the appellant was chased by the persons of the locality when P.W.4 raised an alarm and he was apprehended by the crowd and was also subjected to manhandling. However, as per P.W.5 the appellant did not suffer any injury on account of such assault which itself seems farfetched. P.W.5 in his examination-in-chief has projected himself as one of the persons who had chased the appellant and assisted in his being apprehended but in his cross-examination a diametrically opposite stand has been adopted by him to the effect that when he arrived at the place of occurrence the crowd was already assaulting the appellant. Therefore, it can be said that not a single witness far less an independent witness of substance connected with apprehending the appellant and assaulting him has been examined by the prosecution.

19. All these factors reveal an element of absurdity in the prosecution case. These findings of ours would consequently bring us to the question as to whether there exists any motive or

not for such false implication.

20. The evidence of the informant P.W.2 mentions about the appellant coming to her house along with the other labourers demanding payment of their wages to them. The husband of the informant, namely Babuchand Murmu has been examined as P.W3 and he has stated that he works in the District Election Office, Pakur and he was acquainted with the appellant for a year as the appellant worked as a labour in the said office. It can, therefore, be construed that the appellant was known to P.W.2 and P.W.3 and he was not a stranger to them. It is the case of the appellant that since he had demanded wages from P.W.3 he has been falsely implicated in the case. The surrounding circumstance does strengthen the defense of the appellant regarding his false implication.

21. To make the offence more grave P.W.2 in her evidence had stated about seeing blood on the private parts of the victim but she had never stated such fact before P.W.7. There is nothing on record that the victim was taken for medical examination. The medical evidence would have a corroborative value specifically in relation to a sexual offence and absence of any medical examination would further undermine the case of the prosecution.

22. On an overall conspectus of the case, it is concluded that the prosecution has miserably failed to prove its case against the appellant and consequently, we hereby set aside the judgment and order of conviction and sentence dated 24.05.2022 (sentence passed on 26.05.2022) passed by Sri Rakesh Kumar, learned Additional Sessions Judge-I-cum-Special Judge, POCSO, Pakur in Special POCSO Case No. 17 of 2018, arising out of Pakur (Town) P.S. Case No. 168 of 2017.

23. This appeal is allowed.

24. Since the appellant is in custody he is directed to

be released immediately and forthwith, if not, wanted in any other case.

25. Pending I.As., if any, stand closed.

(Rongon Mukhopadhyay, J.)

(Pradeep Kumar Srivastava, J.)

High Court of Jharkhand at Ranchi Dated, the 1st day of October, 2024.

A. Sanga/-