Jharkhand High Court
Balram Mirdha vs State Of Bihar. Learned Senior Counsel on 3 May, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Against the Judgment of conviction dated 28.10.2003 and order of
sentence dated 29.10.2003, in Sessions Case No.227 of 2002/133 of
2002, passed by the 6th Additional Sessions Judge, F.T.C. No.3,
Godda.)
Cr. Appeal (SJ) No.08 of 2004
Balram Mirdha, S/o Late Sukhchand, Resident of Bargachha,
Hariyari, P.S.:- Poraiyahat, District Gooda. Appellant
With
Cr. Appeal (SJ) No.1594 of 2003
1. Pradeep Kumar Mirdha @ Pradeep Lal Mirdha, S/o Ram Kisun
Mirdha, Resident of Village :- Nathnagar, Tulsiya Mishra Lane,
P.S.:- Nathnagar, District :- Bhagalpur (Bihar).
2. Dasrath Mirdha, S/o Late Sukhchand Mirdha, Resident of
Village :- Bargachha Hariyari, P.S.:- Poraiyahat, District :- Goda.
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For the Appellant(s) :- Mr. Rajeeva Sharma, Sr. Advocate Ms. Nitu Singh, Advocate (Crl. Appeal (SJ) 08/04) :- Mr. Rajesh Kumar, Advocate (Crl. Appeal (SJ) 1594/03) For the State :- Mr. Mukesh Kumar, Addl. Public Prosecutor
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PRESENT HON'BLE MR. JUSTICE KAILASH PRASAD DEO .....
By Court:- Since both the aforesaid Criminal Appeals are being heard together, as they are arising out of a common judgment and being disposed of, by this common judgment.
2. Heard Mr. Rajeeva Sharma, learned Senior Counsel, assisted by his Junior counsel, Ms. Nitu Singh [in Crl. Appeal (SJ) No.08 of 2004] for the appellant, Mr. Rajesh Kumar, learned counsel for the appellants [in Crl. Appeal (SJ) No.1594 of 2003] and Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State.
3. The instant Criminal appeal is directed against the Judgment of conviction dated 28.10.2003 and order of sentence dated 29.10.2003, in Sessions Case No.227 of 2002/133 of 2002, passed by the 6 th Additional Sessions Judge, F.T.C. No.3, Godda, whereby the learned Judge has convicted the appellants, Balram Mirdha, Dasrath Mirdha and Pradeep Mirdha under Sections 452, 380, 366/34 of the Indian Penal Code and also found Balram Mirdha guilty for the charge under Section 376 of the Indian Penal Code and awarded rigorous imprisonment for seven years and a fine of Rs.3,000/-, in case of default in payment of fine, the convict shall undergo simple imprisonment for one year. Rigorous imprisonment for two years separately for each of offence punishable under Sections 452, 380 read
-2- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] with Section 34 of the Indian Penal Code against the appellants/accused, Pradeep Mirdha, Balram Mirdha and Dasrath Mirdha and rigorous imprisonment of five years and a fine amount of Rs.2,000/- for the offence punishable under Section 366/34 of the Indian Penal Code against Balram Mirdha, Dasrath Mirdha and Pradeep Mirdha and in case of default in payment of fine, the appellants/convicts shall undergo simple imprisonment for six months. All the sentences are directed to run concurrently.
Being aggrieved with and dissatisfied by the impugned judgment of conviction and order of sentence, the appellant/convict, Balram Mirdha has preferred Criminal Appeal (SJ) No.08 of 2004 and the appellants/convicts, Pradeep Kumar Mirdha @ Pradeep Lal Mirdha and Dasrath Mirdha have preferred Criminal Appeal (SJ) No.1594 of 2003 before this Hon'ble Court.
4. The brief facts, as stated in the prosecution case, based upon the complaint petition filed by Nand Kishore Thakur (P.W.6) before the learned Chief Judicial Magistrate, Godda on 14.06.2002, which was registered as P.C.R. Case No.329 of 2002, for an occurrence committed on 09.06.2002 at 12.00 at mid-night, in the village. The complainant in the complaint petition has stated, that on the alleged date of occurrence, his wife with two children were sleeping at home and he has gone to work at Himachal Pradesh and thus, he was not present in the house. It is alleged that the appellants/accused persons came with weapon and damaged the door of the house and took away his wife by dragging and gagging her mouth, which was done by accused, Balram Mirdha and two other persons were standing there with revolver. It is further alleged, that Kaushalya Devi, wife of the complainant was tied with rope and entire articles of the house including cloth, food materials, jewellery and cash were filled in a shack, worth Rs.30,000/-, took in a jeep, which was standing near the door along with his wife, Kaushalaya Devi. It is further stated, that when both children, Sita Kumari and Umesh Thakur raised brawl, the villagers and other persons came and thereafter the appellants/accused persons fled away towards Hansdiha, in a speeding jeep, as the children and the witnesses have seen this occurrence.
-3- [Cr. Appeal (SJ) No.08 of 2004]
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[Cr. Appeal (SJ) No.1594 of 2003]
It is further stated, that the informant-cum-complainant resides at Himachal Pradesh, thereafter he had returned on 12.06.2002 and learnt about the occurrence, from the witnesses and the co-villagers, who have disclosed that while appellants/accused, Balram and Dasrath were fleeing away, they have threatened to the villagers, including the informant to the effect, that if any body goes to the Police Station, they will face the dire consequences. That is the reason, the informant has filed this complaint case in the Court. The delay has been explained, since he was residing in Himachal Pradesh and after his return, he has filed this case and prayed for action to be taken under Sections 366, 380 and 452 of the Indian Penal Code.
The aforesaid complaint petition was forwarded to the Officer-in- Charge, Poraiyahat Police Station under Section 156(3) Cr.P.C., by the learned Chief Judicial Magistrate, Godda, vide order dated 15.06.2002. On the basis of the complaint petition filed by the complainant and forwarded, the Police has registered Poraiyahat P.S. Case No.83 of 2002 (dated 09.07.2002) under Sections 366, 380, 452 of the Indian Penal Code.
5. After investigation, the Police has submitted charge-sheet vide Charge-sheet No.92 of 2002 dated 31.07.2002 under Sections 452, 366, 380/34 of the Indian Penal Code, against all the three accused persons/appellants, namely, Balram Mirdha, Pradeep Kumar Mirdha and Dasrath Mirdha.
6. Cognizance of the offence has been taken vide order dated 20.08.2002 and the case has been committed to the Court of Sessions vide order dated 30.08.2002.
7. The charge has been framed against the appellants under Sections 452/34, 380/34, 366/34 I.P.C. on 21.09.2002 and Balram Mirdha has separately been charged under Section 376 of the Indian Penal Code on 21.09.2002, to which the appellants pleaded their innocence and thus, they were put under trial.
8. The prosecution in order to prove its case, has examined as many as ten witnesses. Mahadeo Thakur has been examined as P.W.1, Ganga Ram Thakur has been examined as P.W.2, Narain Thakur has been examined as P.W.3, Shyam Sundar Thakur has been examined as P.W.4, Nandu Thakur has been examined as P.W.5, Nand Kishore
-4- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] Thakur has been examined as P.W.6, Kaushalya Devi has been examined as P.W.7, Bir Bahadur Singh, Investigating officer of the case has been examined as P.W.8, Sita Kumari has been examined as P.W.9 and Dr. Prabha Rani Prasad has been examined as P.W.10 and also exhibited formal First Information Report as Exhibit-1 and the medical report of the victim, Kaushalya Devi (P.W.7) as Exhibit-2.
9. After closure of the prosecution case, the statement of the appellants have been recorded under Section 313 Cr.P.C. The appellants have also filed written Informatory Petition No.246 of 2002 on 12.06.2002, before the Court of Sub Divisional Officer, Godda and has been marked as Exhibit-A, on behalf of the defence.
10. Mr. Rajeeva Sharma, learned Senior Counsel assisted by Junior counsel Ms. Nitu Singh, for the appellant has submitted, that the prosecution case is based upon a complaint petition, which was filed with unexplained delay. The reason, that has been assigned in the complaint petition, is not supported during the evidence. In the complaint petition, it has categorically been stated, that the complaint petition is being filed, as the accused, Balram Mirdha and Dasrath Mirdha while fleeing away, have given threatening to the villagers including the informant that they should not file a case, but during evidence, the prosecution witnesses, who are agnates and of the same caste of the informant-complainant has alleged, that while the informant/complainant was going to the Police Station, threatening was given by the persons but the name of such persons have not been disclosed by the prosecution. Learned Senior Counsel has further submitted, that from perusal of the evidence of P.Ws.1 to 5, it seems that they are hearsay witnesses, but from the perusal of the complaint petition, it appears that the complainant/informant has categorically stated, that the villagers and the witnesses have seen the accused persons fleeing away with his wife (P.W.7), along with articles, but none of the villagers, who have been examined in this case, claims themselves to be eye-witnesses, to the occurrence. The daughter of the informant, namely, Sita Kumari, aged about 8 years has been examined as P.W.9, but curiously enough, statement of the child witness, Sita Kumari has not been recorded during investigation, under Section 161 Cr.P.C.
-5- [Cr. Appeal (SJ) No.08 of 2004]
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[Cr. Appeal (SJ) No.1594 of 2003
The Investigating officer (P.W.8) has categorically stated, that the children of the victim have not been produced before him rather, they have been shifted to the house of their relatives and the superior officer has also not directed him to record the statements of the minor children and as such, he has not recorded the statement of those persons and as such, learned Senior Counsel for the appellant, Mr. Rajeeva Sharma has submitted, that the evidence adduced in the Court by the witness, P.W.9 (Sita Kumari) is fit to be expunged, as her statement has not been recorded under Section 161 Cr.P.C. nor she is charge-sheet witness in this case. Relying upon the aforesaid statements, learned Senior Counsel has submitted, that in absence of any material, the appellants cannot be convicted under Sections 452, 380 or 366 of the Indian Penal Code.
11. Learned Senior counsel for the appellant in support of his submission, placed reliance in a decision passed by the Hon'ble Supreme Court as reported in 1998(6) SCC 420, in the case of Kuldeep Kumar Mahto Vs. State of Bihar. Learned Senior Counsel for the appellants has submitted, that for convicting the appellants under Section 366 of the Indian Penal Code, there must be evidence to indicate that the appellants have kidnapped with an intention to marry her against her will or in order that she may be forced with illicit intercourse. These two vital ingredients for upholding the conviction under Section 366 I.P.C. are not proved and, therefore, the conviction of the appellants under Section 366 I.P.C., cannot sustain in the eyes of law. Learned Senior Counsel has further submitted, that in the present case injury report (Exhibit-2) suggests that the victim was examined by the Doctor and the medical report has been brought as Exhibit-2, wherein the Doctor has not found any sign of rape or any injury on the person of the victim.
12. Learned Senior Counsel has further submitted, that from perusal of the evidence brought on record, particularly the evidence of P.W.7 (Kaushalya Devi), there is vital contradiction in her evidence. In her statement recorded by the Judicial Magistrate under Section 164 Cr.P.C. on 19.07.2002, whose reference has been found in the deposition, but has not been exhibited by the prosecution, as the same
-6- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] will show that a false case has been instituted and as such, the statement of Kaushalya Devi is different in her statement recorded under Section 164 Cr.P.C., than her deposition in the Court.
13. Learned Senior Counsel has further submitted, that Kaushalya Devi has stated during her statement recorded under Section 164 Cr.P.C., that when the accused persons entered into her house in the night, they asked her to come with them, by giving threatening and thereafter the victim- Kaushalya Devi went on foot along with the accused persons to the house of elder sister of appellant/accused, Balram Mirdha at Baunshi and remained there for 15 days, but when this witness, Kaushalya Devi (P.W.7) was examined in the Court as P.W.7, she has stated that while, she was sleeping in the house along with her children, there was a knock in the door, but she did not open the door, rather door was removed by the accused persons. Thereafter the accused, Balram Mirdha entered inside the house and asked her to come with them by threatening her. Subsequently, it is alleged that Balram and Pradeep caught-hold her along with articles and jewellery and Dasrath Mirdha shifted the articles. She has further stated, that after going on foot for some distance, they have taken her on a vehicle, for Baunshi. She has further stated, that her statement has been recorded under Section 164 Cr.P.C. and she has proved her thumb- impression over the same, but curiously enough, the same has not been exhibited by the prosecution during evidence.
Learned Senior Counsel for the appellant has relied on the aforesaid statements and has submitted, that it was a deliberate attempt by the prosecution to suppress the statement of the victim, recorded under Section 164 Cr.P.C., the same would have been fatal to the prosecution, as such, the prosecution has not exhibited the documents even though, the same has been identified in the Court.
14. Learned Senior Counsel has further submitted, that in Para-6 of her cross-examination, of Kaushalya Devi (P.W.7) has categorically stated that, while she (P.W.7) was residing at the house of elder sister of accused, Balram Mirdha at Baunshi, the villagers came there, but the victim (P.W.7) never raised any alarm or disclosed, that she has been kidnapped by the accused, Balram Mirdha, Pradeep Mirdha and
-7- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] Dasrath Mirdha and they have wrongly confined her. Learned Senior Counsel has further drawn attention of this Court towards Para-8 of cross-examination, of victim (P.W.7) where, she has stated that after taking out from the house, she walked for half an hour without raising alarm. This fact has not been stated by any of the witnesses nor the victim (P.W.7) during her examination under Section 164 Cr.P.C. rather, as per the case of the victim, as deposed in the Court, she was taken on a public bus from Baunshi to Godda Bus Stand. Godda Police Station is situated in-front of Godda Bus Stand. She never raised any alarm, rather she was kept near Civil Court, Godda and on the pointing out by her husband, she was taken into custody and appellants/accused, Balram Mirdha and Pradeep Mirdha were also arrested.
15. Learned Senior Counsel for the appellants has further submitted, that conduct of the victim shows that she has not been kidnapped by the appellants. Learned Senior Counsel has submitted, that if it had been a case of kidnapping, then the villagers/Chowkidar or some persons might have informed the Police Station about a cognizable offence, but this case which has been instituted after a great delay, on the basis of a complaint petition and as such, the conduct of the victim (P.W.7), who resided with accused, Balram Mirdha in the house of his elder sister, for 15 days without raising any hulla and came to Godda Bus-Stand from Baunshi, on a public bus without informing any passenger of the bus and subsequently without going to Godda Police Station, which is situated in-front of the Godda Bus-Stand, victim (P.W.7) along with appellants, Balram Mirdha and Pradeep Mirdha were roaming near Godda Civil Court, on the pointing out by her husband, Nand Kishore Thakur (P.W.6), Police has arrested them, that is the reason, a suggestion has been given to this witness that she left her house alone as, she was not satisfied to live with her husband and for that reason, her entire hair on the head was removed.
Learned Senior Counsel has further submitted, that on perusal of the evidence of P.Ws.1 to 5, who are agnates of the informant, none of them are eye-witnesses, but from perusal of the deposition of P.W.1 (Mahadeo Thakur), it would be apparent in Para-3 of his cross-examination, that the house of Balram Mirdha is situated
-8- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] towards west of the house of Nand Kishore. Further-more, Pradeep Mirdha used to visit the house of Nand Kishore as stated in Para-5 during the cross-examination, of P.W.1 (Mahadeo Thakur). P.W.2 (Ganga Ram Thakur), another agnate has said in Para-5 of his cross- examination, to the effect, that he did not find any remarkable thing in the room. Further-more, this witness (P.W.2) has stated in Para-11 of his cross-examination, that after Kaushalya Devi went away, they did not try to search her.
Learned Senior Counsel has stated, that it is peculiar case that, a theft has been committed in the house and the victim has been taken forcibly by the appellants, removing the door of the room, then the witnesses, who came subsequent to the place of occurrence, one of them, namely, Ganga Ram Thakur (P.W.2), he has not noticed any thing remarkable in the room. This suggest that these witnesses cannot be relied upon for convicting the appellants as they have admitted in the Court, that they are agnates to the informant, being Gotiya, as such, conviction of the appellants on the testimony of such witnesses is perverse.
16. Learned Senior Counsel for the appellants has further submitted, that Narain Thakur has been examined as P.W.3, he has categorically stated in Para-1 of his examination-in-chief, that the children disclosed that their mother along with Balram Mirdha, Pradeep Mirdha and Dasrath Mirdha fled away with box of their mother. This shows that mother, Kaushalya Devi was a consenting party to the alleged occurrence of accused, Pradeep Mirdha, Balram Mirdha and Dasrath Mirdha.
During cross-examination in Para-9, this witness has further sated that he has not found any room disturbed nor he has found any cot in the room, on which the children were sleeping and as such, learned Senior counsel has submitted, that deposition of P.W.3 clarifies the entire prosecution case, which has been brought wrongly against the appellants with oblique motive, who are 'Mirdhas' and the prosecution parties are 'Thakurs'. The village comprises of different castes, as stated by the other witnesses, but it is peculiar that only 'thakurs' have been examined on behalf of the prosecution.
None of the independent witnesses have been examined. Even though, the witnesses have said that 40-50 persons were present, soon
-9- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] after the occurrence, but none of the persons have been examined from different castes, who are independent. Further-more none of the witnesses have seen the vehicle, on which the victim, Kaushlaya Devi and articles have been taken away.
Learned Senior counsel has submitted, that no article has been seized from the house of the appellants, as such, the conviction of the appellant under Section 452 I.P.C. is bad in law. Shyam Sundar Thakur has been examined as P.W.4. This witness has also stated at Para-1 during examination-in-chief, that children have disclosed, that all the three accused persons have taken their mother as well as articles and fled away. Learned Senior Counsel has submitted, that P.W.3 and P.W.4 have only stated before the Court, that the accused persons have taken the lady along with her articles not the articles of house-hold. This suggest that something, which has not been explained by the prosecution and as such, the evidence of P.W.3 and P.W.4 is some thing different, what the prosecution has brought before the Court. Non-examination of the minor children and the independent witnesses are fatal for the prosecution.
The witness (P.W.5) has stated during cross-examination, in Para-14 to the effect, that after return of Nand Kishore (P.W.6), they went to the Police Station to lodge the case. The statement of Nand Kishore(P.W.6) was recorded at Police Station and thereafter statement of witness, Nandu Thakur (P.W.5) was also recorded. Nand Kishore has given a written report to the Police, but the said report given to the Police has not been brought by the prosecution before the Court rather, the present case is based upon the complaint petition filed after a great delay, which was referred to the Police Station and thus, the First Information Report has been lodged and basis of the present First Information Report is subsequent thought. The statement made by P.W.5 (Nandu Thakur) in Para-14 during his cross-examination, that a written report was given to the Police, has not been brought on record and as such, the First Information Report with respect to cognizable offence has been suppressed from the Court, which goes to the root of the prosecution case.
-10- [Cr. Appeal (SJ) No.08 of 2004]
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[Cr. Appeal (SJ) No.1594 of 2003
Nandkishore Thakur, the complainant/informant has been examined as P.W.6., who has stated in Para-3 during his cross- examination, that after returning from Himachal Pradesh, on the next day, he went to the Police Station to lodge a case. Subsequently, this witness has stated that, while he was going, he was threatened and as such, he could not go to Police Station and subsequently, he filed a case in the Court. Thus, the credential of this witness is highly doubtful. In para-4 of his cross-examination, when this witness (P.W.6) has stated that he could not say, from where the Police has recovered his wife, although the Investigating officer P.W.8 (Bir Bahadur Singh) has categorically stated, in Para-6 of his cross-examination, that on pointing out by the husband of the victim (P.W.7), the Police has arrested both the persons, who are roaming on the road, as the information has been given by the Dy.S.P. to the Police patrolling party and as such, the credential of the informant/complainant, Nandkishore Thakur (P.W.6) is highly doubtful. His (P.W.6- Nand Kishore Thakur) thumb-impression is also present on the arrest memo and as such, the learned trial court ought to have scrutinized the evidence before putting reliance upon the evidence of P.W.6 (Nandkishore Thakur), for convicting the appellants.
17. Bir Bahadur Singh, investigating officer of the case has been examined as P.W.8. This witness has proved the formal First Information Report as Exhibit-1 and also admitted that during examination-in-chief, in Para-3 to the effect that the statement of the victim, Kaushalya Devi was recorded under Section 164 Cr.P.C. and she was also medically examined and after investigation, he has submitted charge-sheet against the accused persons.
During cross-examination in Para-4, he has admitted, that he has not found any sign of damage or removal of the door, from the house of Kaushalya Devi neither he has found any sign or mark of firing nor any sign of motor-vehicle at the place of occurrence.
In Para-5 of his cross-examination, this witness has categorically stated, that the statement of both children of the informant was not recorded, as they were minor nor they have been produced before him, as they have been sent to the house of their relative. This witness
-11- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] (P.W.8) has stated during cross-examination in Para-6 to the effect that the appellants/accused, Balram Mirdha, Pradeep Mirdha and victim, Kaushalya Devi were arrested on 18.07.2002 at 2.30 p.m., in-front of the road, situated at Godda Civil Court. This witness has further stated, that he was not known to the appellants/accused or the victim (P.W.7), rather on the pointing out by the husband of the victim (P.W.7), those persons have been arrested. This witness has stated, during cross-examination, in Para-8 that victim -Kaushalya Devi has never stated before him, that the accused persons were knocking victim's (Kaushalya Devi) door and she has not opened the door nor the victim has stated, that the accused, Dasrath Mirdha has taken away all the house-hold articles nor victim has stated that, the appellants/ accused persons took victim, on foot for some distance and thereafter appellants/accused have taken victim on a vehicle for Baunshi nor the victim has stated before the Police, that victim was not allowed to go out of the house nor victim has given such statement, as the appellants/accused persons were roaming along with her, near Civil Court, Godda, where victim and appellants/accused persons (Balram Mirdha and Pradeep Mirdha) were arrested.
18. Learned Senior Counsel for the appellants has submitted, that from the evidence of the victim, it would be apparent, that the victim is a consenting party and as such, she has not raised any alarm, while she was going nor she has raised any alarm to the villagers in the house of the elder sister of accused, Balram Mirdha at Baunshi nor the victim has raised any alarm as to why, she was brought to Baunshi or Godda Bus-Stand, which is situated in-front of the Godda Police Station nor she has raised alarm even after seeing the Police Patrolling party, when she was arrested with the appellant/accused, Balram Mirdha and Pradeep Mirdha on the pointing out, by her husband. She was taken to Police custody and as such, the conduct of the victim suggests, something other than, what has been alleged by the prosecution and as such, benefit of doubt may be granted in favour of the appellants.
19. Sita Kumari, daughter of the victim has been examined as P.W.9. She is not a charge-sheet witness nor she was examined by the Police, during investigation of the case, rather she seems to be a
-12- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] tutored witness and her testimony is also not worth acceptable. During examination-in-chief, this witness has stated that when she was sleeping along with her mother and brother, some persons knocked the door and thereafter, they removed the door and after removal of the door, Pradeep Mirdha, Balram Mirdha and Dasrath Mirdha entered inside the house and pressed the neck of her mother by asking her (P.W.7) to come with them, otherwise they will kill her (P.W.7) and Dasrath Mirdha removed all the house-hold articles, such as, plate, golden articles and other thing.
She has further stated, in Para-9 of her cross-examination that her two other brothers, who are presently residing at Tata for the last 2-3 months, have not been examined, whose names are Pramod and Subal and they are elder to her.
20. Learned Senior Counsel relying upon the aforesaid evidence of P.W.9, has submitted, that the evidence of Sita Kumari (P.W.9) is contradictory to the evidence of other prosecution witnesses. Sita Kumari (P.W.9) has categorically stated about the presence of her two elder brothers, namely, Pramod and Subal, who are also sons of the informant/complainant, from his first wife, but they have not been examined either by the Police or the Court. If the prosecution can examined Sita Kumari (P.W.9), who has not been examined by the Police under Section 161 Cr.P.C., then the prosecution ought to have examined her two elder brothers, Pramod and Subal, but the prosecution has deliberately not examined them nor any of the witnesses of the prosecution, who has been examined in this case, have said about the presence of Pramod and Subal, at the time of occurrence in the house. Thus, this might have been done by the prosecution to suppress the material fact and bring a concocted story before the Court, so as to convict the appellants, who have some animosity with the prosecution party. The prosecution party are 'thakurs', whereas the appellants are 'mirdhas'. Members of different castes also resides in the Village, but they have not been examined in this case.
21. Learned Senior Counsel has further submitted, that the evidence of witness, Sita Kumari (P.W.9) is not worth to be considered as this witness (P.W.9) has stated during examination-in-chief, that she
-13- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] (P.W.9) has stated before the Police, when the appellants/accused persons entered inside the house, they were having arms, as Pradeep was having pistol, Dasrath was having something and Balram was having knife and she has disclosed this fact to the villagers, but from the evidence of P.Ws.1 to 5, none of the witnesses have said, that the appellants were carrying weapon and as such, this witness seems to be a tutored witness and the learned trial court might have scrutinized the evidence before accepting the testimony of P.W.9.
22. Dr. Prabha Rani Prasad, Medical Officer has been examined as P.W.10. She has examined the victim (Kaushalya Devi). She has not found any injury, on any part of the body nor any internal injury, on the private part of the body. The Doctor (P.W.10) could not gave any definite opinion regarding recent sexual intercourse and proved the medical report of the victim written and signed by her as Exhibit-2.
During cross-examination, this witness has categorically stated that at final conclusion, she has not given definite opinion regarding recent sexual intercourse.
23. Learned Senior Counsel has submitted, that from perusal of the evidence and statements made on behalf of the appellants, it is a case, where the appellants have wrongly been convicted by the learned trial court, on the basis of the perverse finding, as the learned trial court has not examined the evidence judiciously, rather the conviction of the appellants, on the basis of the concocted material without properly scrutinizing the same, as such, benefit of doubt may be granted in favour of the appellants.
24. Learned Senior Counsel for the appellant has further submitted, that neither the First Information Report has been lodged under Section 376 of the Indian Penal code nor the charge-sheet has been submitted under Section 376 I.P.C., but only on the basis of the statements of the victim, recorded under Section 164 Cr.P.C., the learned Chief Judicial Magistrate, Godda, has taken cognizance under Section 376 I.P.C. also, since no evidence was found by the Doctor nor the credential of the victim, Kaushalya Devi (P.W.7) is worth acceptable and as such, conviction of the appellant, Balram Mirdha under Section 376 I.P.C., is bad in law.
-14- [Cr. Appeal (SJ) No.08 of 2004]
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[Cr. Appeal (SJ) No.1594 of 2003]
25. Mr. Rajesh Kumar (in Criminal Appeal (SJ) No.1594 of 2003), learned counsel for the appellants (Pradeep Kumar Mirdha and Dasrath Mirdha) has adopted the entire arguments placed by learned Senior Counsel, Mr. Rajeeva Sharma and has also prayed that as there is no evidence with regards to the appellants, Pradeep Kumar Mirdha and Dasrath Mirdha, which warrants the conviction, as passed by the learned trial court.
26. Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State, has vehemently argued and submitted, that the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court, but has not satisfied this Court on the query made on the basis of the submission made by the learned counsel for the appellants. Learned State counsel has submitted, that such inconsistency in the evidence has crept up and Sita Kumari has not been examined by the Investigating officer which shows presence of her two elder brothers at the place of occurrence, namely, Pramod and Subal, they have not been examined in this case. Further-more, the testimony of the informant (P.W.6) is also contradictory to the statements made by the Investigating officer (P.W.8), so far as arrest of accused persons are concerned, but even then the learned Additional Public Prosecutor has stated, that such evidence are not so vital that warrants interference by this Hon'ble Court against the impugned judgment of conviction and order of sentence.
27. Heard Mr. Rajeeva Sharma, learned Senior counsel assisted by his Junior counsel, Ms. Nitu Singh, for the appellants, Mr. Rajesh Kumar, learned counsel for the appellants (Crl. Appeal (SJ) No.1594 of 2003) and also after hearing Mr. Mukesh Kumar, learned Additional Public Prosecutor for the State and from the perusal of the records i.e. First Information Report, depositions, exhibits as well as the statement of the victim recorded under Section 164 Cr.P.C., this Court is of the opinion that a frivolous case has been filed by the informant with a great delay with oblique motive and that is the reason, there is vital contradictions in the deposition of the prosecution witnesses to the extent that the victim statement is also not consistent with the
-15- [Cr. Appeal (SJ) No.08 of 2004] with [Cr. Appeal (SJ) No.1594 of 2003] prosecution case. The prosecution has suppressed the written report filed before the Police. The witnesses and Police officer have not found any remarkable change in the room nor door was found to be removed. This Court is of the opinion that the submissions made by the learned counsel for the appellants gets some force, as such, this Court is of the opinion that the impugned judgment of conviction and order of sentence warrants interference.
28. Accordingly, the impugned Judgment of conviction dated 28.10.2003 and order of sentence dated 29.10.2003, passed in Sessions Case No.227 of 2002/133 of 2002 passed by the 6 th Additional Sessions Judge, F.T.C. No.3, Godda, is hereby set aside.
29. In the result, this Criminal Appeal stands allowed.
30. The appellants, who are on bail, are discharged from the liability of their bail bonds.
31. Let the L.C.R. Along with a copy of this judgment be sent to the court concerned at once.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi.
Dated 3rd May, 2018 sandeep/