Jharkhand High Court
Dharmeshwar Oraon S/O Late Sohrai Oraon vs The State Of Jharkhand on 6 May, 2025
Bench: Rongon Mukhopadhyay, Sanjay Prasad
Criminal Appeal (D.B.) No. 1169 of 2018
Against the judgment of conviction and order of sentence dated
01.09.2018 (sentence passed on 06.09.2018) passed by Sri Lolark Dubey,
learned Additional Sessions Judge I cum Special Judge, Gumla in
connection with S. T. No. 260 of 2013. ---
Dharmeshwar Oraon S/o Late Sohrai Oraon, resident of Village Telya,
PO & PS Raidih, District Gumla ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
---
For the Appellant : Mr. A. S. Dayal, Advocate
For the Respondent : Mr. Manoj Kumar Mishra, A.P.P.
---
Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE SANJAY PRASAD
---
Per, R. Mukhopadhyay, J.
06.05.2025 Heard Mr. A. S. Dayal, learned counsel for the appellant and
Manoj Kumar Mishra, learned A.P.P. for the State.
2. This appeal is directed against the judgment of conviction
and order of sentence dated 01.09.2018 (sentence passed on 06.09.2018)
passed by Sri Lolark Dubey, learned Additional Sessions Judge I cum
Special Judge, Gumla in connection with S. T. No. 260 of 2013 whereby
and whereunder the appellant has been convicted for the offences
punishable under Sections 376 and 346 I.P.C. and has been sentenced to
undergo rigorous imprisonment for life along with a fine of Rs. 20,000/-
for the offence under Section 376 I.P.C. and in case of default in payment
of fine to undergo simple imprisonment for 6 months and rigorous
imprisonment for 1 year for the offence under Section 346 I.P.C. Both the
sentences were directed to run concurrently.
3. The prosecution case is based on the written report of the
victim - 'X' in which it has been stated that on 21.04.2013 she had gone to
graze cattle at 3:00 P.M. and her two younger brothers were also there.
At about 5:00 P.M., Dharmeshwar Oraon (appellant) had come and
started making small talks with the informant. When the informant went
up a hillock in search of a cattle, Dharmeshwar Oraon who was hiding
behind a bush had come out and gagged the mouth of the informant,
thrown her on the ground, disrobed her and committed rape upon her.
At around 1:00 A.M. when the father of the informant and others had
come searching for her, the informant was forcibly taken to the house of
Lalit, a friend of the accused where she was kept the entire night.
Dharmeshwar Oraon had also issued threat of committing the murder of
the informant, if she discloses the incident to anyone. It has been stated
that today i.e., on 22.04.2013, the informant managed to flee away from
the custody of the accused and went to the house of her aunt at village
Pogra and disclosed the entire incident to her. On being informed, the
father of the informant had come and had taken her to the police station
where the written report was submitted.
Based on the aforesaid allegations, Raidih P. S. Case No. 23 of 2013
was instituted under Sections 376 and 346 I.P.C. On completion of
investigation, charge-sheet was submitted and after cognizance was
taken, the case was committed to the court of Sessions where it was
registered as S. T. No. 260 of 2013. Charges were framed against the
accused under Sections 376 and 346 I.P.C. which were read over and
explained to him in Hindi to which he pleaded not guilty and claimed to
be tried.
4. The prosecution has examined as many as 8 witnesses in
support of its case.
5. P.W. 1 - Ranjit Oraon has stated that the incident is of
21.04.2013. He had come to the market and returned at 8:00 P.M. When
he came to know that the victim is not at her house he and Bal Mohan
Oraon started searching for her, but she could not be traced out, but on
the next day a phone call came from Mohan Oraon at which he along
with Bal Mohan Oraon went to Pogra village where they met the victim
where she disclosed that Dharmeshwar Oraon had committed rape upon
her. The victim had given a written report to police station in which he
has signed and which has been proved by him and marked as Exhibit 1.
The wearing apparels of the victim were seized and a seizure list was
prepared in which he has signed and he has proved his signature on the
seizure list which has been marked as Exhibit 2.
In cross-examination, he has deposed that the two younger
brothers of the victim who were with her when she had gone to graze
cattle also feigned ignorance about her whereabouts.
6. P.W. 2 - Gondo Devi is the grand-mother of the victim. The
victim had gone to graze cattle along with her brothers - Ajit and Sachin.
In the evening both her brothers returned back, but she did not return
back. She has stated that Dharmeshwar Oraon had committed rape upon
her. The victim was traced out by Bal Mohan and brought home and the
victim had disclosed about the rape committed upon her by
Dharmeshwar Oraon.
In cross-examination, she has deposed that the victim and her
brothers had gone to graze cattle at 2:00 P.M. and Ajit and Sachin had
returned at 6:00 P.M. She had not gone in search of the victim. The
victim had returned on the next day at 8:00 A.M. along with her father.
She did not have any conversation with the villagers about the incident.
7. P.W. 3 - Nandiya Devi is the mother of the victim who has
stated that her daughter and her sons - Sachin and Ajit had gone to graze
cattle. In the evening, her sons had returned back. Her daughter had
gone in search of a missing cow and Dharmeshwar Oraon had
committed rape upon her by tying her hands and mouth. The father of
the victim had brought her back on the next day from Pogra village and
she had disclosed about the incident to her.
In cross-examination, she has deposed that her sister who is at
village Pogra had informed her that the victim is with her. There was a
previous dispute with Dharmeshwar Oraon.
8. P.W. 4 - Ajit Oraon has stated that on 21.04.2013 he was
grazing cattle at Kanhar Tutu hillock along with his brother Sachin and
sister. They were sitting when Dharmeshwar Oraon came and returned
back after some time. While returning one cow got lost and the victim
had gone in the search of the missing cow. They called out for his sister,
but she did not return at which he and his brother returned back home
with rest of the cattle. They disclosed the matter to the grand-mother
and they started to search out the victim, but she could not be found.
They thereafter disclosed the matter to the father who also tried to search
the victim but all his efforts went futile. On Monday, her sister was
located at Pogra village and her father had brought her back home. Her
sister had disclosed that Dharmeshwar Oraon had tied her and
committed rape upon her.
In cross-examination, he has deposed that the police has not
recorded his statement. His sister has disclosed about the incident to his
father and not to him.
9. P.W. 5 - the victim - 'X' has stated that the incident is of
21.04.2013 at 3:00 P.M. She had gone to graze cattle along with Ajit and
Sachin Oraon at Kanhar Tutu hillock. Her age at that point of time was
14 years. When she went to the jungle at 5:00 P.M. to search out a cow
which was missing, Dharmeshwar Oraon came out of the bushes, caught
hold of her, stuffed her mouth with a handkerchief and after tying her
hands committed rape upon her. She had struggled to get herself freed,
but she was subjected to rape thrice. She had kept silent when she heard
the voice of her father. She was taken by the appellant to the house of
Lalit in Pogra village. She was kept there for a night and she was
subjected to rape also. At 8:00 A.M., she managed to flee away and went
to her aunt's house at Pogra village itself and disclosed to her the entire
incident. Her aunt had called her father on which he had come and had
taken her to the police station, where a written report was submitted by
her. She has proved her signature on the written report which has been
marked as Exhibit 1/1. Her statement under Section 164 Cr.P.C. was
recorded in which she had put her signature which has been marked as
Exhibit 3. The police has thereafter sent her to Sadar hospital where she
was medically examined.
In cross-examination, she has deposed that Dharmeshwar used to
work at her house. She used to converse with Dharmeshwar Oraon and
had a friendship with him. She did not have any love affair with the
accused. She had written two letters to Dharmeshwar Oraon which have
been proved and marked as Exhibit A and A/1. In the first letter, she
had asked to take back the mobile which was gifted to her by
Dharmeshwar and in the second letter, she had expressed her deep love
for Dharmeshwar. Later on Dharmeshwar had started having a love
affair with another girl for which he had left having contact with her.
When she had friendship with Dharmeshwar, she had given some
photographs to him. She had got some injury on her body due to which
she was not able to walk and blood had clotted. Her father had got her
treated, though no prescription has been submitted to the police. She
had friendship with Manoj Oraon and Karampal Oraon. The accused
had kept her confined in the hillock from 5:00 P.M. to 12:00-1:00 A.M.
The distance from the place of occurrence to village Pogra would be
about 5-10 kms. She has disclosed about the incident to Lalit who did not
offer any assistance to her. The distance of the house of Lalit from the
house of her aunt is about 1 km. Ranjit Oraon (P.W. 1) is her uncle.
10. P.W. 6 - Bal Mohan Oraon is the father of the victim who
has stated that on 21.04.2013, he had gone to the market to sell vegetables
and returned home at 8:00 P.M. His daughter had gone to graze cattle,
but she had not returned at which he along with his cousin brother -
Ranjit Oraon went in search of her. He searched in the vicinity of the
hillock, but she could not be traced out. His sister at Pogra village made
a phone call that her daughter was at her place. He thereafter went with
Ranjit Oraon to Pogra village. His daughter had disclosed that
Dharmeshwar Oraon had forcibly taken her to the hillock and committed
rape upon her. She was forcibly taken to the house of Lalit from where
she fled and went to the house of his sister. Thereafter she was taken
home and he again went to police station along with his daughter and
filed a case. The police has seized the pyjama and panty of his daughter
and a seizure list was prepared which has been proved and marked as
Exhibit 2/1.
In cross-examination, he has deposed that the distance from his
house to that of Dharmeshwar Oraon is 150 feet. Both the families used
to visit to each other's places. He has further deposed that one Kalavati
Devi had filed a case of rape against Ranjit Oraon in which Ranjit Oraon
had gone to jail.
11. P.W. 7 - Sundari Devi has stated that on 22.04.2013 at 8:00
A.M., the victim had come to his house in a frightened state. She
disclosed that Dharmeshwar Oraon had committed rape upon her.
In cross-examination, she deposed that whatever has been stated
by her in court is on the basis of what has been dictated to her by the
father of the victim.
12. P.W. 8 - Dr. Asha Ekka was posted as Medical Officer in
Sadar Hospital, Gumla and on 23.04.2013 being a member of the Medical
Board had conducted an examination upon the victim - 'X' and found
the following:
"1. Height 5 feet, 2 inch, weight 47 kg.
2 Auxilliary hair present, pubic hair present, breast
developed.
3. Menstrual history LMP 23.04.2013, Menarche 4 years
back, as said by candidate.
4. No mark of violence present on her external part of the
body.
5. Examination of private part:- There is recent tear of
hymen. Abrasion on posterior part of hymen. Vagina
tender on touch. Vagina admits one finger.
6. On microscopical examination of vaginal swab, no
spermatozoa found.
7. Marks of identification: (a) Mole on right cheek (b) Black
naevus on upper part of her back in left side."
It was opined that there is medical evidence of recent sexual
activity. She has proved the medical report which has been marked as
Exhibit 4.
In cross-examination, she has deposed that she has not found any
sign of tying anything in the hands of the victim.
13. The statement of the accused was recorded under Section
313 Cr.P.C. in which he has denied his complicity in the rape of the
victim.
14. It has been submitted by Mr. A. S. Dayal, learned counsel for
the appellant that the prosecution has failed to prove any convincing
evidence to suggest that the appellant was instrumental in committing
rape upon the victim. It has been submitted that P.W. 5 is the victim who
has categorically stated about the love affair she was having with the
appellant which turned sour on account of the appellant having an affair
with another girl and this was the reason for false implication of the
appellant. Mr. Dayal has stressed upon the fact that it was the house of
Lalit which had provided a hide out for the appellant and the victim, but
the said Lalit has not been examined by the prosecution. The medical
report also does not conclusively prove that the victim was subjected to
rape.
15. Mr. Manoj Kumar Mishra, learned A.P.P. has submitted that
the evidence of P.W. 7 clearly demarcates the role of the appellant in
committing rape upon her after tying her hands and legs and gagging
her mouth with a handkerchief. The medical report suggests that there is
evidence of recent sexual activity.
16. We have heard the learned counsel for the respective parties
and have also perused the trial court records.
17. As per the prosecution case, the victim had gone to graze
cattle along with her two younger brothers and in course of which one of
the cows could not be traced out and which resulted in the brothers of
the victim taking away the rest of the cattle home, while the victim had
gone out to search out the lost cow. The victim did not return back at
night despite a search made by her father (P.W. 6) and uncle (P.W. 1) and
ultimately on the next day, her aunt informed the father of the victim that
she is at her house at village Pogra and subsequently she had narrated as
to how the appellant had subjected her to rape and confined her in the
house of Lalit and from where she managed to escape. The victim has
been examined as P.W. 5 and though she has supported her written
report in examination-in-chief, but in cross-examination a different
narrative has been propounded by her. It appears from the evidence of
the father of the victim (P.W. 6) that the appellant lives in the
neigbourhood at a distance of 150 feet from the house of P.W. 6 and both
the families used to frequent the house of each other. Though P.W. 6 has
projected that the relationship with the appellant was cordial, but a
spammer has been put to such assertion by P.W. 3, who has stated about
a dispute with the appellant. P.W. 3 incidentally is the mother of the
victim. The relationship with the appellant seems to have been
highlighted by the victim (P.W. 5). P.W. 5 has admitted of having a love
affair with the appellant; the letters exhibited as A and A/1 being a
testimony to the said fact. P.W. 5 was also given a mobile by the
appellant and she had expressed her desire to return back the mobile
perhaps on account of the fact that the relationship had spiralled
downwards due to the appellant having an affair with another girl. P.W.
5 has further stated that she had heard the voice of her father searching
for her, but she did not respond. When she was taken on foot by the
appellant to the house of Lalit, she willingly accompanied him and no
efforts were made by her to draw the attention even of the villagers of
village Pogra. The assertion of P.W. 5 that she was kept confined in the
hillock from 5:00 P.M. to 1:00 A.M., is hard to believe which can be
fathomed from the medical report which depicts that there was no sign
of tying anything in the hands of the victim. It also appears that the
victim had stated in her evidence that she had suffered some scratches on
various parts of her body, but the medical report has not found any
external injury on the person of the victim. The surrounding
circumstances emanating from the evidence of P.W. 5 creates a doubt
over the case of the prosecution. Some added features in the case of
defence is of non-examination of Lalit in whose house, the victim was
kept by the appellant as well as of non-examination of the Investigating
Officer who could not be confronted with the evidence of P.W. 5. Even
the semen found on the panty of the victim, as per the FSL report has not
been substantiated to be that of the appellant. The aforesaid would
therefore indicate that the prosecution has failed to prove its case beyond
all reasonable doubt in terms of the various inconsistencies and
incongruities in the prosecution case and false implication of the
appellant cannot be ruled out and therefore I have no hesitation but to set
aside the of conviction and order of sentence dated 01.09.2018 (sentence
passed on 06.09.2018) passed by Sri Lolark Dubey, learned
Additional Sessions Judge I cum Special Judge, Gumla in connection
with S. T. No. 260 of 2013.
18. This appeal is allowed.
19. Since the appellant is in custody, he is directed to be released
immediately and forthwith, if not wanted in any other case.
20. Pending I.A., if any also stands closed.
(Rongon Mukhopadhyay, J.)
Jharkhand High Court at Ranchi
The 6th day of May, 2025
R.Shekhar/NAFR/Cp.3
Later on
6th May of 2025
Per Sanjay Prasad, J.
21. I have the privilege to go through the judgment of my
Esteemed Brother Hon'ble Mr. Justice Rongon Mukhopadhay.
However, this Court respectfully differs with the view
taken by my Esteemed Brother and this Court wishes to pass its
own separate judgment.
22. It is stated in the FIR that on 21.04.2013 at about 03.00
PM in the afternoon while the victim lady alongwith her two
other brothers had gone for cattle grazing of the mountain, then
the appellant Dharmesh Oraon came and started talking with her
and she was gone in search of cattle to the hill of mountain then
appellant Dharmesh Oraon suddenly came out from bushes and
thrashed her and gagged her mouth and her hands were tied with
her 'Chunri' then he opened her clothes and committed rape
upon her. Thereafter, while her father was searching the victim
at around 1:00 clock in the night then on hearing his voice, the
accused -appellant took the house of one Lalit Yadav and kept
whole night and threatened her not to disclose the incident to
anyone otherwise she will be killed. On 22.04.2003 she fled
away from his house on the pretext of washing the glass and
came to the house of her Fua and narrated the whole incident
then her Fua informed her father on telephone and then her
father came.
23. The Police, after completing the investigation, had
submitted the chargsheet against the appellant under Section 376
and 346 of IPC and kept the investigation pending against one
Lalit Yadav.
24. After supplying the police papers to the accused-
appellant, the case was committed to the Court of Sessions.
Thereafter, the charges were framed under Sections 376 and 346
of IPC on 04.09.2014 by the Shri AkhilKumar, the learned
Additional Sessions Judge-I, Gumla and to which he pleadednot
guilty and claimed to be tried.
25. During trial prosecution got examined eight (08)
witnesses who are as follows:-
(i). PW-1 is Ranjit Oraon (i.e the uncle of the victim girl),
(ii). PW-2 is Gonda Devi,
(iii). PW-3 is Nadiya Devi, (i.e. the mother of victim girl)
(iv). PW-4 is Ajit Oraon i.e. the brother of victim girl,
(v). PW-5 is victim girl
(vi). PW-6 is Balmohan Oraon (i.e. the father of victim girl),
(vii). PW-7 is Sundari Devi Bara i.e. the Fua of victim girl and
(viii). PW- 8 is Dr. Asha Ekka.
26. The prosecution got proved several documents in
support of its proves which are as follows:-
(i). Exhibit-1 is Signature of Ranjit Oraon (i.e. PW-1)on
written application,
(ii). Exhibit- 2 is signature of Ranjit Oraon on production-cum -
seizure list,
(iii). Exhibit-2/1 is production-cum-seizure list,
(iv). Exhibit-3 is the signature of victim girl on her statement
recorded Section 164 Cr.PC.
(v). Exhibit-3 is Medical report of the victim girl, (later on
Ext.3 was rectified as Ext.4 by the learned Court below).
(vi). Exhibit-3/1 is signature of Dr. R.P. Khalko on medical
report,(which was rectified as Ext.4/1(.
(vii). Exhibit-3/2 is signature of Doctor in medical report,(which
was rectified as Ext.4/2),
(viii). Exhibit-5 is FSL report, which was later on rectified vide
order dated 01.09.2018.
27. Thereafter, the accused-appellant was examined under
section 313 Cr.PC on 12.06.2018 to which he denied the
circumstances put forth before him.
28. No witness was examined on behalf of the defence
against the appellant. However, the letter written by the victim
which mentionedExhibit-A and Exhibit-A/1 respectively.
Ext.B is the certified copy of FIR of Raidih P.S. Case
No.41/2010 and Ext. C is cognizance order dated 24.09.2010.
29. Thereafter, the learned Court below had convicted the
appellant for the offences under Sections 376 and 346 of IPC
and sentenced undergo to R.I. for life and under Section 346 to
R.I. for one yearrespectively.
30. So far as the evidence of prosecution witnesses is
concerned,
PW-1 is Ranjit Oraon who stated during evidence that
occurrence on 21.04.2020 i.e. Sunday at that time he had gone to
market and when he returned around 8 P.M. then he found that
victim girl was not in the house and then he searched herat
nearby places as she had gone for grazing ox.He searched for
whole night but she could not be traced. On the next morning, he
received a telephone from one of Lal Mohan Oraon and he went
to his house and found the victim girl present there and then she
informed that the appellant Dharmesh Oraon had committed rape
upon her by establishing physical relationship with her, then he
went before the Police Station and the victim girl submitted the
written application on which he put his signature i.e. Exhibit-1.
He had handed over the pink dress of the victim girl and also the
black panty of the victim to the police station and he also put
signature in seizure list marked as Exhibit-2.
31. During cross examination, he stated that he had gone to
Gumla Bazar in the morning when he returned then found the
victim girl is not in the house as she had gone for cattle grazing.
She could not be found in the village and even the two brothers
of accompany the victim girl had not stated herwhereabouts and
his both younger brothers returned with the Cow and Ox. He
alongwith Bal Mohan had searched the victim girl but she could
be not found. He further stated that the victim rang in the
morning and informed them that she is in the house of her Fua
(i.e. PW-7) then they went there and where she stated about the
commission of rape upon her by the accused appellant Dharmesh
Oraon who had arrived and tied her mouth and hands and
committed rape with her. They had gone to the police station on
the next day i.e. 22.04.2013 and submitted her written
application on that day they had also handed over the clothes of
her. She had given the said cloth in Jimma to the Police Station,
he denied the suggestion for instituting the false case upon the
appellant.
Thus, from scrutinizing the evidence of PW-1, it is
evident that he is uncle of the victim girl and he had also
searched her alongwith father of the victim girl and on
22.04.2013, he learnt about that the victim girl was in the house
her Fua and she narrated that the appellant committed rape upon
her.
32. Thus, the PW-1 has fully supported the prosecution
case.
33. PW-2 is Gondu Devi i.e. the grandmother of the victim
and stated that the victim girl alongwith with her brother Sachin
and Ajit had gone to graze the cow and ox but she had not
returned and she further stated that that the appellant had
committed rape upon her. Later on Balmohan Oraon brought the
victim girl and where she informed about the commission of
rape upon her.
During cross-examination she stated, that the victim girl
with his two brothers Sachin and Ajit had gone to cattle grazing
in the nearby jungle. However, Ajit and Sachin returned about
07:00 PM whereas the victim girl did not return then they
searched but she could be found.
On the next day, the victim girl returned with her father
in the 8:00 AM in the morning. The police had recorded her
statement.
34. Thus, from scrutinizing the evidence of PW-2, it is
evident that she is the grandmother of the victim girl and has
also supported the prosecution case. However, she is a hearsay
witness.
35. PW-3 is Nadiya Devi who is the mother of the victim
girl and stated during her evidence that on the date of the
occurrence her daughter i.e the victim girl along with her two
brother Sachin and Ajit had gone to graze the cattle and her both
younger brothers of victim girl returned with cow but victim girl
had not returned. Further, she stated that the appellant had
committed rape upon her by tieding her mouth and hands.
On the next day, the father of the victim brought the
victim girl in the village and where she narrated the about the
incident of commission of rape.
During cross-examination, she stated that she is not
aware about relationship of victim girl and the appellant. Her
sons Ajit and Sachin informed her that didi is grazing cow and
ox and she learnt from her daughter that she was tied with
duppata. However, on the next day in the morning at 08:00 AM,
She was informed by her sister that the victim girl is in her
house.
However, she stated that she had not talked to
Dharmesh and she has not talked in the aspect with the villagers.
She denied the suggestion that Dharmesh had not done any
wrong act.
36. Thus, from scrutinizing of the evidence of PW-3, it is
evident that she has supported the prosecution case that the
appellant had committed rape upon her, though she is a hearsay
witness.
37. PW-4 is Ajit Oraon i.e. the brother of victim girl and
who stated during evidence that while he alongwith his brother
and sister were grazing the cow then the appellant came and
went. Thereafter, they had returned then a cow was left then her
sister went for search of the cow and they were calling her sister
by her name but he and his brother returned home and informed
the matter to his mother and grandmother then her mother
searched her but she could not found. Thereafter, her father came
and he also tried to search her but she could not be found and his
sister was found in village Pogra on Monday and his father
brought her in the house and then she informed the appellant had
tied her and committed rape upon her. He further stated that
Dharmesh was not doing the work of rice pounding. He also
stated that his father had gone to take his sister and his sister has
informed the incident to his father.
38. Thus, from scrutinizing of the evidence of PW-4, it is
evident that he had seen the appellant Dharmesh on the date of
occurrence while he alongwith his victim sister and other brother
had gone for grazing the cow. Thereafter the victim sister was
traceless. Thus, the evidence of PW-4 supports the prosecution
case.
39. PW-5 is the victim herself and she stated during her
evidence that on 21.04.2013 at around 03.00 PM on Sunday
while she has gone to mountain alongwith Sachin and Ajit for
cow grazing at that time she was around 14 years and when she
tried to search a cow then the appellant Dharmesh came behind
from the bushes and caught her and gagged her mouth by his
handkerchief and he tied her hands and committed rape upon her
and which was resisted by her. She further stated that the
accused-appellant committed rape upon her three times.
Thereafter, she sat quietly and when she heard the voice of her
father then the appellant threatened her of dire consequences and
took her in the house of one Lalit at village Pogra and kept here
for one night where he also committed rape upon her there. Later
on the morning at 08.00 AM, she fled away to the house of her
Fua which is also situated at Pogra where she narrated the
incident to her Fua and then her Fua ranged her father and her
father came and went to the Police Station. Thereafter, she had
submitted the written application in the Police Station and she
identified her signature on the written application which is
marked as Exhibit-1/1.
Thereafter, she was taken to Court for recording her
statement under Section 164 of Cr.PC on 09.05.2013 and she put
her signature on the statement recorded under Section 164 of
Cr.PC which is marked as Exhibit-3.
Thereafter the police took her to Sadar Hospital, Gumla
and where her medical test was conducted.
40. During cross-examination she stated that the appellant
Dharmesh used to work at her house and the during the said
work he used to talk with her and she was having friendship with
him but there was no love relationship between them.
However, she admitted that the two letters were written
by her to the appellant Dharmesh which is marked as Exhibit-A
and A/1 respectively. In the first letter, she stated that she had
written to return back to the mobile which was given by the
appellant. In the second letter, she stated about having deep love
with him. Later on Dharmesh started love with another girl then
she left Dharmesh at that time she has given several
photographs.
She further stated that she had gone to the mountain
with her brothers and her brothers were also present where she
was grazing the cow and ox but one Ox was missing and when
she was searching the ox then the appellant Dharmesh came out
from the bushes and caught and he gagged her mouth by his
handkerchief and she had resisted but he was threatening to kill
her.
She further stated that she had sustained scratches on
her hand and legs so she was unable to walk and she was having
wound having in her leg, hand and back and blood was clotted in
those places as such she was not able to walk properly. She was
taken to the Sadar Hospital by her father.
She admitted to be acquainted with Manoj Oraon of
Vitty Village, she denied the suggestion that she had love
relation with Manoj Oraon. She also denied the suggestion for
trying to commit suicide by taking poison twice. She also
admitted to be acquainted with one Karampal Oraon of the
village but she is not aware of Vikash Oraon. She denied the
suggestion that she ended relationship with appellant Dharmesh
then she was having love affair with these three boys. She also
stated that the appellant kept her on the mountain from 5.00 PM
to 11.00 to 12.00 'o' clock in the night, at that time she could not
slept but she was weeping.
She further stated that the distance of Pogra village
from place of occurrence would be 5 to 10 km and she was taken
to Pogra village by foot and they had gone together to Pogra
village. She also stated that one Lalit Yadav, who is friend of
Dharmesh, whom she is acquainted him also and she had arrived
in the house of Lalit at about 3.00-4.00 AM in morning. On
arriving the house of Lalit where she had no talk with the
household members of his house and the villager and nor she
tried to talk with them. However, she had informed about the
incident to Lalit. Even Lalit had given money to Dharmesh to
keep away the informant. She remained in the house of Lalit at
7.00 A.M in the morning from when she had arrived there and
thereafter, she fled away.
The House of her Fua is situated at a distance of
approx. 1.00 km from the house of Lalit Yadav. In the meantime,
while going to house of her Fua from the house of Lalit, she had
met one boy and from the said boy she had inquired the address
of her Fua. There is about 10-12 house with the house of Lalit
and her Fua. But, she had not talked with any person of said
house. She remained in the house for 1-2 hours. Thereafter, her
father came and then they went to the Police Station.
The police again recorded her statement after
submitting the application. Thereafter, she had come for giving
beyan in Court after 1-2 week after submitting the written
application. The police asked her to state about the occurrence
which had happened to her. She further stated Ranjit Oraon is
her uncle who was living in the house for 4-6 months earlier
also. Her uncle Ranjit Oraon had gone to jail. She is also
acquainted with Jhunu Oraon son of Lila Oraon and one
Kalawati. She denied the suggestion that Kalawati had instituted
a rape case against Ranjit Oraon in which he had gone to jail.
Whereas, Jhunnu Oraon is uncle of Dharmesh. She further
denied the suggestion that Kalawati daughter of Jhunnu Oraon
had instituted a case on his uncle Ranjit Oraon in which he had
gone to jail and hence she had instituted this case at the instance
of her father.
41. Thus, from scrutinizing the evidence of PW-5 i.e. the
victim, it is evident that she has fully supported the prosecution
case and stated that the appellant had committed rape upon her
on the mountain and she was taken to the house of one Lalit
from where she fled away.
However, the defence has tried her to discredit her
evidence by falsely implicated the evidence in view of the fact
Kalawati had instituted a rape case against her uncle Ranjeet
Oraon due in which her uncle had gone to jail.
It is further evident that while the Ranjit Oraon was
examined as PW-1 however, no such question was asked by the
defence side from him that Kalawati Devi had instituted rape
case upon her uncle in which he had gone to the jail.
42. PW-6 is Balmohan Oraon who is father of the victim
girl and had stated that the occurrence took place on 21.04.2013
and on that day he had gone to market for selling the vegetables
and when he returned at about 8.00 PM in the night then he
found the daughter had not returned the house after grazing the
cattle. Thereafter he and his brother Ranjit Oraon started
searching his daughter and searched her also on the mountain but
did find her. On the next day, his sister Sundari Devi of village
Pogra informed him by telephone that the victim girl was in her
house. Thereafter, he alongwith Ranjit Oraon had gone to Pogra
village to bring her daughter. Then the victim girl had informed
them that the appellant Dharmesh Oraon had forcibly committed
rape upon her and he kept her whole night in the mountain and in
the night between 12.00-1.00 'o' clock the appellant took the
victim girl to Pogra in the house of his friend Lalit Oraon.
However, she fled away from the house of Lalit Oraon to the
house of her sister in village Pogra. Thereafter, his daughter had
instituted the case in the Police Station and they had also handed
over pink color of pajama and also handed over brown color
panty of the daughter having stain to the police. He further put
his signature on production-cum-seizure list marked as Exhibit-
2/1.
During cross-examination, he stated that he and the
appellant belong to the same village and the house of appellant
Dharmesh is situated at about 150 feets from his house. Prior to
the occurrence, both the family members were on visiting terms.
However, he denied the suggestion Dharmesh used to come his
house regularly and used to look after his Khalihan.
His daughter is educated but he is not aware of any love
letter written by her daughter and he is not aware about the
photographs given by her daughter to the appellant Dharmesh.
He denied the suggestion that the appellant Dharmesh had come
to his house regularly and was doing the work of Khalihan
regularly. He also denied that his daughter used to love him and
wrote the love letters. He could not remember the phone number
on which he received the call.
He further denied the suggestion that Ranjit Oraon is his
brother and he has been living for 2-3 years and he belongs to
the same village. He is also aware of Jhunnu Oraon of his village
and also aware about the Kalawati Devi. Kalawati had instituted
a rape case upon said Ranjit Oraon in which Ranjit Oraon had
gone to jail and at that time he had gone outside.
Thus, PW-6 is the father of the victim girl and she had
fully supported and corroborated the prosecution case and had
found her daughter in the house of his sister i.e. PW-7 and he
learned about the occurrence.
This witness was examined on 23.08.2016 whereas the
occurrence is about 21.04.2013 i.e. more than 3 years and 4
months after the occurrence. Thus, he may not remember the
phone number in which he had received the call, as he is a rustic
villager.
43. PW-7 is the Sundari Devi, i.e. sister of father of the
victim girl and who stated that the victim girl had arrived in her
house at around 8.00 AM in the morning on 22.04.2013 and she
was in fearful condition and informed that Dharmesh Oraon had
committed rape upon her. Thereafter, she informed the matter to
her father and then her father brought her to the house from her
house.
During cross-examination, she stated that she learnt
about the occurrence but she is not acquainted with Dharmesh
Oraon and she is not aware about the phone number from which
she informed the father of the victim. She could not say that date
of occurrence when the victim girl arrived her house.
44. However, the evidence of the PW-7 also supports the
prosecution case as she had seen the victim girl in fearful
condition whom she had arrived at her house and the victim girl
had narrated the incident of rape committed upon her by the
appellant Dharmesh Oraon to her Fua i.e PW-7.
Thus, from scrutinising the evidence of PW-7, it is
evident that the victim girl had arrived at her home on
22.04.2013 at morning around 08.00 a.m. Thereafter, she
informed the matter to her brother Balmohan i.e. the father of the
informant in this case. Though, she could not say the mobile
number by which she had informed to her brother but that does
not discredit her evidence.
45. PW-8 is Doctor Asha Ekka who had examined the
victim girl on 23.04.2013 and had found following :-
(i). Height 5 feet, 2 inch Weight 47 Kg,
(ii). Auxiliary hair present, Pubic hair present, Breast
developed,
(iii). Menstrual History LMP 23-04-2013, Menarche 4 years
back, as said by candidate,
(iv). No mark of violence present on her external part of the
body,
(v). Examination of Private part:- There is recent tear of
hymen. Abrasion on posterior part of hymen. Vagina
tender on touch. Vagina admits one finger,
(vi). On microscopic Examination of Vaginal Swab no
spermatozoa found,
(vii). Mark of Identification:- a) Mole on Right cheek. b) Black
naevus on upper part on her back in left side,
(viii). Opinion:- There is medical evidence of recent sexual
activity.
She has further proved the medical report in her
signature and writing which marked as Exhibit-3. (Later on this
was marked as Exhibit-4 vide order dated 01.09.2018 by the
learned Court below).
She has further proved the signature, thereafter
Dr. R.P. Xalxo and Dr. S.P. Sinha marked as Exhibit-3/1 and
Exhibit 3/2 respectively. (Later on this was marked as
Exhibit-4/1 and Exhibit-4/2 respectively vide order dated
01.09.2018)
However, during cross-examination, she stated that
except Dentition and X-ray Findings and second para of opinion
regarding age of the examinee is not written by her. She had not
received any report separately from Dr. R.P. Xalxo and Dr. S.P.
Sinha. The X-ray plate was not attached with this medical report
in the Court. She had not found any external injury on the period
of the examinee. She had not found the sign of tying anything in
the hand of the examinee. The clothes of victim was not
examined by her.
Thus, from scrutinising the evidence of PW-8, i.e. the
Doctor, it is evident from Dr. Asha Ekka that she had found
recent tear in hymen and also abrasion on the posterior are of the
hymen of the victim girl.
She also opined that there is medical evidence of recent
sexual activity.
Thus, the evidence of PW-8 i.e. the Dr. Asha Ekka fully
supports the prosecution case.
46. So far as the defence evidence is concerned and no
occular witness has been examined, however, the defence has
proved the certain documents marked as Exhibit-A and A/1 and
Exhibit-B and Ext. C respectively.
(i). Ext.A and A/1- are the letters written by the PW-5 to
the appellant,
(ii). Ext.B is the certified copy of Raidih P.S. Case No.
41/2010 instituted under Section 452,366A,323,354,504/34
of IPC.
(iii). Ext.C is the order taking cognizance dated 24.09.2010
in said Raidih P.S. case no.41/2010.
47. It is well settled that the conviction of the accused can
be based on the sole testimony of the prosecutrix without
corroboration, if it inspires confidence.
48. It has been held in the case of Phool Singh Versus State
of Madhya Pradesh reported in (2022) 2 SCC 74 at paragraph 9,
10,11 and 12 as follows:-
"Para-9:- In Pankaj Chaudhary [State (NCT of
Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575 : (2019) 4
SCC (Cri) 264] , it is observed and held that as a general
rule, if credible, conviction of the accused can be based on
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, (2006) 1
SCC 283 : (2006) 1 SCC (Cri) 217] ]. 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., (2000) 5
SCC 30 : 2000 SCC (Cri) 898] ]."
Para-10. In Sham Singh v. State of Haryana [Sham
Singh v. State of Haryana, (2018) 18 SCC 34 : (2019) 3
SCC (Cri) 129] , it is observed that testimony of the victim
is vital and unless there are compelling reasons which
necessitate looking for corroboration of her statement, the
courts should find no difficulty to act on the testimony of
the victim of sexual assault alone to convict an accused
where her testimony inspires confidence and is found to be
reliable. It is further observed that seeking corroboration of
her statement before relying upon the same, as a rule, in
such cases amounts to adding insult to injury. In paras 6
and 7, it is observed and held as under : (SCC pp. 37-38)
"6. We are conscious that the courts shoulder a great
responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity.
The courts should examine the broader probabilities of a
case and not get swayed by minor contradictions or
insignificant discrepancies in the statement of the
prosecutrix, which are not of a fatal nature, to throw out an
otherwise reliable prosecution case. If the evidence of the
prosecutrix inspires confidence, it must be relied upon
without seeking corroboration of her statement in material
particulars. If for some reason the court finds it difficult to
place implicit reliance on her testimony, it may look for
evidence which may lend assurance to her testimony, short
of corroboration required in the case of an accomplice. The
testimony of the prosecutrix must be appreciated in the
background of the entire case and the court must be alive to
its responsibility and be sensitive while dealing with cases
involving sexual molestations or sexual assaults. [See State
of Punjab v. Gurmit Singh [State of Punjab v. Gurmit
Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] (SCC p.
403, para 21).]
7. It is also by now well settled that the courts must, while
evaluating evidence, remain alive to the fact that in a case
of rape, no self-respecting woman would come forward in
a court just to make a humiliating statement against her
honour such as is involved in the commission of rape on
her. In cases involving sexual molestation, supposed
considerations which have no material effect on the
veracity of the prosecution case or even discrepancies in
the statement of the prosecutrix should not, unless the
discrepancies are such which are of fatal nature, be allowed
to throw out an otherwise reliable prosecution case. The
inherent bashfulness of the females and the tendency to
conceal outrage of sexual aggression are factors which the
courts should not overlook. The testimony of the victim in
such cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her
statement, the courts should find no difficulty to act on the
testimony of a victim of sexual assault alone to convict an
accused where her testimony inspires confidence and is
found to be reliable. Seeking corroboration of her statement
before relying upon the same, as a rule, in such cases
amounts to adding insult to injury. (See Ranjit
Hazarika v. State of Assam [Ranjit Hazarika v. State of
Assam, (1998) 8 SCC 635 : 1998 SCC (Cri) 1725] .)"
Para-11:- Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand and as
observed hereinabove, we see no reason to doubt the
credibility and/or trustworthiness of the prosecutrix. She is
found to be reliable and trustworthy. Therefore, without
any further corroboration, the conviction of the accused
relying upon the sole testimony of the prosecutrix can be
sustained.
Para-12:- Now so far as the submission on behalf of the
accused that as there were no external or internal injuries
found on the body of the prosecutrix and therefore it may
be a case of consent is concerned, the aforesaid has no
substance at all. No such question was asked, even
remotely, to the prosecutrix in her cross-examination.
Therefore, the aforesaid submission is to be rejected
outright."
49. It is evident PW-5 is the victim girl and she has fully
supported the prosecution case during her evidence that the
appellant had committed rape upon her and she stood the test of
cross-examination. The victim girl was aged around 14 years on
the date of occurrence and even she had written the application
before the Police In-charge on 22.04.2013 itself stating therein
that the appellant had committed rape upon her.
Thereafter, the statement of victim girl was recorded on
09.05.2013 under Section 164 Cr.P.C in which she again stated
that the appellant had committed rape upon her forcibly by
tieding her hand by dupatta and gauging her mouth by
handkerchief.
50. PW-8 is the Doctor Asha Ekka and the evidence of
Doctor also fully supports the prosecution case and the Doctor
has opined that there is recent sexual activity.
Thus, the commission of rape is fully proved from the
evidence of PW-8 i.e the Doctor.
51. Apart from this, it is evident that the PW-6 is the father
of the informant in this case who has also supported and
corroborated the statement of the victim girl, even PW-1 i.e. the
Uncle, PW-2 i.e. the grandmother, PW-3 i.e. the mother and
PW-4 i.e the brother and also corroborated the statement of
victim girl. Though PW-1, PW-2, PW-3, PW-4 are the uncle,
grandmother, mother and brother respectively are hearsay
witnesses but their evidence support the prosecution case. Even
the PW-4 had seen the appellant Dharmesh Oraon on the date of
occurrence which was just before the occurrence at the
mountain.
52. It is evident from the FSL report marked as Exhibit-4
marked under Section 293 of Cr.PC and later on it was marked
as Exhibit-5, that semen of appellant was found on the brownish
panty of the victim girl marked as Exhibit-B before FSL.
53. So far as non-examination of I.O is concerned, the same
is not fatal to the prosecution in view of the direct evidence i.e.
the victim girl which is corroborated by the Doctor i.e. PW-8
namely Asha Ekka.
54. The defence has tried to show that the victim girl had
implicated the appellant only on the ground that one Kalavati
Devi daughter of Jhunno Oraon had instituted a rape case against
PW-1 i.e. Ranjit Oraon.
However, the defence has not put any question from the
PW-1 i.e. Ranjit Oraon who was implicated by Kalavati Devi
daughter of Jhuno Oraon.
55. The defence has taken the plea that victim had issued
love letters to the appellant which were marked as Exhibit-A and
Exhibit-A/1 respectively. However, the same is not relevant
because the victim is minor girl and aged about 14 years and she
might have sent some certain letters prior to the occurrence to
the appellant and merely showing the letters will not impeach the
evidence of rape committed upon the victim girl by the appellant
and which is also proved and supported by the evidence of
Doctor i.e. PW-8 namely Asha Ekka.
56. Although, the defence wants to discredit the evidence
of PW-5 i.e. the victim girl and PW-6 i.e. the father of the victim
girl only on the ground that Ranjit Oraon i.e. PW-1 had gone to
jail in the case instituted by said Kalavati Devi, daughter of
Jhuno Oraon by showing the connection between the father of
the victim girl as well as Jhunu Oraon but the defence version
cannot be believed, in view of the evidence of PW-8 i.e. the Dr.
Asha Ekka who had found sign of recent sexual activity on the
victim girl.
57. The prosecution case cannot be disbelieved merely on
the ground that Jhunno Oraon is uncle of appellant Dharmesh
Oraon and his daughter had instituted a case against the Ranjit
Oraon, who is uncle of victim girl PW-5 because there is direct
evidence against he appellant Dharmesh Oraon for committing
rape upon the victim girl which is fully corroborated from the
evidence by Dr. Asha Ekka.
Thus, this is not a case in which no sign of rape was
found, rather this is one of those cases in which the victim was
examined just after the occurrence on 23.04.2013 after
instituting the FIR on 22.04.2013 and the Dr. Asha Ekka i.e.
PW-8 had found recent sign of sexual activity and she also found
recent tear in hymen and abrasion on posterior part of hymen.
58. Thus, this Court finds that the conviction of the
appellant under Section 364 of IPC is fully proved from the
evidence of the victim girl PW-5and which is also corroborated
by the evidence of PW-8 i.e. the Doctor Asha Ekka. Even the
prosecution case is also supported and corroborated from the
evidence on PW-1, PW-2, PW-3, PW-4 PW-6 and PW-7 namely
Ranjit Oraon, Gonda Devi, Nadiya Devi, Ajit Oraon, Balmohan
Oraon and Sundari Devi Bara respectively.
59. Thus, in view of the discussion made above, the
conviction of appellant Dharmesh Oraon under Section 376 and
346 of IPC is upheld.
60. So far as the sentence is concerned and it reveals that
the appellant is in custody since 27.04.2013 i.e. more than 12
years and the appellant was of young age on the date of
judgment passed by the learned Court below and accordingly the
period undergone by the appellant is in jail custody shall bethe
period of sentence.
61. Thus, the impugned judgment of conviction dated
01.09.2018 passed Sri Lolark Dubey, learned Additional
Sessions Judge-I, Gumla in S.T. Case No.260 of 2013 is upheld
but the sentence dated 06.09.2018 passed for R.I for life is
modified to the extent indicated above.
62. In view of the discussion made above, the sentence of
R.I. for life of the appellant is reduced and modified to the extent
that the period undergone by the appellant in jail custody shall be
the period of sentence.
63. Accordingly, the appellant namely, Dharmeshwar
Oraon shall be set at free forthwith, if not wanted in any other
case(s).
64. Thus, this Criminal Appeal (DB) No.1169 of 2018 is
dismissed with modification in sentence as mentioned above.
(Sanjay Prasad, J.)
Nishant
Later on
06.05.2025 Since there is a difference of opinion in this case, let this matter be
placed before Hon'ble the Chief Justice for assigning the matter to
another Bench in terms of Section 392 Cr.P.C.
(Rongon Mukhopadhyay, J.)
(Sanjay Prasad, J.)
R. Shekhar Cp 1
