Fagu Murmu @ Faguram Murmu vs The State Of Jharkhand
2024 Latest Caselaw 9982 Jhar

Jharkhand High Court

Fagu Murmu @ Faguram Murmu vs The State Of Jharkhand on 16 October, 2024

Author: Ananda Sen

Bench: Ananda Sen

       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                 Criminal Appeal (DB) No. 1960 of 2017
                                 With
                 Criminal Appeal (DB) No. 2253 of 2017
                                 With
                 Criminal Appeal (DB) No. 230 of 2018
                                 With
                 Criminal Appeal (DB) No. 276 of 2018

   [Against the Judgment of conviction dated 12.09.2017 and order of
 sentence dated 22.09.2017 passed by the learned Addl. Sessions
 Judge-VI-cum-Special Judge, FTC, East Singhbhum at Jamshedpur
 in Sessions Trial Case No. 209 of 2014 & Sessions Trial Case No.
 276 of 2014].

Fagu Murmu @ Faguram Murmu, son of Laxman Murmu, resident of village
Bigburu, P.O and P.S. Potka, Town- Jamshedpur, District- East Singhbhum,
Jharkhand                   ............APPELLANT (Cr.A. 1960 of 2017)

Dhiren Tudu @ Barishwar Tudu, son of late Bhim Sen Tudu, resident of
Bingburu, P.O. and P.S.- Potka, Jamshedpur, District- East Singhbhum,
Jharkhand.                .......... APPELLANT (Cr.A. 2253 of 2017)

(1)   Dhama Tudu son of late Guna Tudu,
(2)   Kamlesh Tudu, son of late Arjun Tudu
       Both residents of village- Bigburu, P.O and P.S. Potka, Town-
      Jamshedpur, District- East Singhbhum, Jharkhand.
                                ............APPELLANTS (Cr.A. 230 of 2018)

Kamlesh Tudu, son of late Arjun Tudu, resident of village- Bigburu, P.O. And
P.S. Potka, (Jamshedpur) District- East Singhbhum, Jharkhand.
                              ............APPELLANT (Cr.A. 276 of 2018)

                                     Versus
 The State of Jharkhand              .........RESPONDENT (in all cases)
                                      ......

  For the Appellants: M/s Dilip Kumar Karmakar, A.K. Sahni and
                          Ajit Kumar, Advocates.
  For the State     : M/s Manoj Kr. Mishra, Pankaj Kumar, Saket
                          Kumar and Bishwambhav Shastri, A.P.Ps.
                          ......

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

                            JUDGMENT

Page/1 Per, Ananda Sen, J.

It is pertinent to mention here that one of the Appellants namely Kamlesh Tudu has filed two appeals, Cr.Appeal (DB) No. 276/2018 in which he is the sole appellant and Cr.Appeal(DB) No.230/2018 in which he is one of the appellants. Cr.Appeal(DB)No. 276/2018 is filed by Jharkhand High Court Legal Services Committee and Cr.Appeal(DB)No.230/2018 was filed by himself.

2. These criminal appeals are directed against the Judgment of conviction dated 12.09.2017 and order of sentence dated 22.09.2017 passed by the learned learned Addl. Sessions Judge-VI-cum-Special Judge, FTC, East Singhbhum at Jamshedpur in Sessions Trial Case No. 209 of 2014 & Sessions Trial Case No. 276 of 2014, whereby and whereunder, the appellants having been found guilty of charge under Section 376(D) of the Indian Penal Code and have been convicted and sentenced to undergo rigorous imprisonment for life and fine of Rs.20,000/- each.

3. The learned counsel for the appellants submitted that there is no independent eye witness to support the prosecution case. I.O. of the case and the shop owner have not been examined as witness. As per the prosecution case Dashrath Sardar (P.W.3), whom the victim first met after the occurrence, has been declared hostile by the prosecution. He also submitted that all the appellants except Dhiren Tudu are young and none of them have a criminal antecedent.

4. The learned counsel for the state has defended the impugned conviction and order of sentence passed by the trial court. He submitted that the victim has been consistent in her statement. He also submitted that though Dashrath Sardar (P.W.3) has been declared hostile, he had admitted the fact that the victim had come to his home and he gave her clothes. He also submitted that P.W.2, P.W.4, and P.W.5 have testified that they were present in the panchayat on 16.02.2014, which was convened at the instance of the victim, and in the said panchayat the victim had narrated the entire incident. The counsel defended by stating that the victim-informant's testimony is corroborated by the medical examination report which is a crucial piece of evidence.

5. The prosecution case as per the Fardbeyan of an informant is that on 15.02.2014 at about 7 P.M, she was coming to her native village from Jamshedpur carrying Rs.1300/- of her wages and other articles. When she was purchasing some articles from a Grocery shop of Lakhan Tudu, four persons of her village Dhiren Tudu, Dhama Tudu, Kamlesh Tudu and Fagu Murmu intercepted and caught hold of her, she cried out then Dhiren Tudu covered her eyes and gagged her mouth by her own saree and they took her from the village and committed rape upon her one by one. She fell unconscious and then all these persons fled away with her cash and other articles. After regaining her consciousness, she reached the Village where Dashrath Murmu had given her Saree which she put on, and informed her family about the incident.

On the basis of the aforesaid fardbeyan, FIR was registered being Potka P.S. Case No. 09 of 2014 under Sections 376(D)/379 of the Indian Penal Code. After investigation, the police submitted chargesheet under Sections 376(D)/379 of the Indian Penal Code against these appellants. 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 against them for the aforesaid sections.

6. In order to prove the charges against the accused, the prosecution had examined altogether seven witnesses, who are as follows:-

P.W.1- [Informant and Victim] P.W.2- Bankim Chandra Baskey P.W.3-Dashrath Sardar P.W.4-Muniram Baskey P.W.5-Muchi Ram Baskey P.W.6-Versha Tudu P.W.7-Dr. Ranju Jha (Medical Officer)

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

Ext.-1: Signature of Bankim Chandra Baskey on Seizure list.

Ext.-2: Signature of Bankim Chandra Baskey on Seizure List. Ext.-3: Signature of Bankim Chandra Baskey on Seizure List. Ext.-4: Signature of Bankim Chandra Baskey on Arrest Memo.

                Ext.-5:     Signature of Bankim Chandra Baskey on Arrest


                                Page/3
      Memo
            Ext.-6:     Medical Examination Report.

8. After closure of prosecution witness, statement of the appellants under Section-313 of Cr.P.C were taken.

9. Defense has examined only one witness namely Barishwar Tudu @ Dhiren Tudu, he stated that he and his family reside in a quarter at Burmamines from where he was arrested. He denied all the allegations and stated that there are two groups in the village where there is a rivalry between them and because of which he has been falsely implicated in this case.

10.. The Trial Court thereafter hearing the arguments of the parties and considering the evidences had convicted all the appellants for committing the offence under Sections 376(D) of the Indian Penal Code.

11. We have gone through the oral and documentary evidence led by the prosecution. Considering all evidences of the witnesses, we find that the most important witnesses are P.W.-1 and P.W.-7 in this case. PW-7 is a doctor who examined the victim. The doctor upon examination of the victim found that her clothes were disorganized, there were scratch marks present over scapula region and vulva and vagina was tender. The medical report was exhibited as Ext.-6. The doctor also opined that on examination of private parts of the victim's body is suggestive of sexual violence and her age was also estimated around to be of 40 years. From the evidence of the doctor and the medical report (Ext.-6). It can safely be concluded that sexual violence had taken place and prosecution has proved that the victim was raped.

12. P.W.-2,4,5, and 6 are hearsay witness. P.W.-3 has been declared hostile.

13. Victim-Informant (P.W.-1) has stated that in the evening after she had gone to work as contract labourer, she was returning and got off the bus, purchased some articles from the shop at her village while all the accused were present at that shop, who caught hold of her and took her away, to the outskirts of the village despite her resistance, and committed rape one by one. The victim-informant what she has stated as a witness is exactly the same what she had stated in her fardbeyan. From the evidence of the doctor, her allegations got further corroboration and strength. From explicit findings of the doctor, the medical report (Ext.6) , coupled with the evidence of PW1, we find that the prosecution has proved the charge against the appellant beyond reasonable doubts that they had committed rape. There is no material to disbelieve the informant/victim.

14. Law is settled that a judgment of conviction and sentence in sexual assault case can rest on the sole testimony of the victim, provided it is cogent, reliable and trustworthy. Her testimony, if reliable, needs no corroboration.

The Hon'ble Supreme Court in the case of State (NCT of Delhi) Vs. Pankaj Chaudhary, reported in (2019) 11 SCC 575, has observed and held that as a general rule, if credible, conviction of the accused can be based on the sole testimony, without corroboration. It is further observed and held that sole testimony of the prosecutrix should not be doubted by the court merely on basis of assumptions and surmises. In para 29, it is observed and held as under: (SCC p. 587)

"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. [Vishnu v. State of Maharashtra [Vishnu v. State of Maharashtra]. It is well settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. (State of Rajasthan v. N.K.].

15. Thus, in this case the trial court has correctly convicted the appellants under section 376(D) of Indian Penal Code. The judgement of conviction needs no interference.

Now on the point of sentence, as appellants are in custody for more than ten years and the minimum sentence for commission of gang rape is 20 years under Section 376(D) of IPC which may extend to life which shall mean

Page/5 imprisonment for the remainder of that person's natural life and with fine, considering the age, criminal history and the overall facts and circumstances of the case, we are of the considered view that a sentence of 20 years of rigorous imprisonment shall meet the ends of justice for all the appellants.

16. With the aforesaid modification in sentence, accordingly, these appeals are dismissed.

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

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

(ANANDA SEN, J.)

(GAUTAM KUMAR CHOUDHARY, J.) High Court of Jharkhand, Ranchi.

Dated: the 16th October, 2024.

NAFR- Anu/- CP3.