Jharkhand High Court
Prakash Rajak vs State Of Jharkhand on 13 December, 2012
Author: D.N.Patel
Bench: D.N.Patel, Prashant Kumar
Cr.Appeal No. 503 of 2001 (D.B.)
with
Cr.Appeal No. 119 of 2002 (D.B)
Against the judgment and order of conviction dated 7th September, 2001 and
sentence dated 10th August, 2001 passed by Sessions Judge, Sabihganj in
Sessions Trial No. 329 of 1994, arising out of Sahibganj P.S. Case No. 35 of
1994
Prakash Rajak ... ... Appellant
(in Cr. Appeal No.
503 of 2001(D.B,.)
Kailash Rajak ... ... Appellant
(in Cr. Appeal No.
119 of 2002 (D.B.)
Versus
State of Jharkhand ... ...Respondent
(In both cases)
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CORAM: HON'BLE MR. JUSTICE D.N.PATEL
HON'BLE MR. JUSTICE PRASHANT KUMAR
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For the Appellants: Mr. A.K. Kashyap
For the Respondent: A.P.P.
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Per D.N. Patel, J. Dated 13th December, 2012
1. These appeals are arising out of Sessions Trial No. 329 of 1994, wherein the Sessions Judge, Sahibganj vide judgment and order of conviction dated 7th September, 2001 and sentence dated 10th September, 2001 convicted both the appellant accused for the offences punishable under Section 302 r/w 34 I.P.C. as well as for the offence under section 376 I.P.C. r/w 34 I.P.C. and sentenced them to undergo life imprisonment. The sentences were awarded for both the sections separately. However, these sentences have been ordered to run concurrently. Against this judgment and order of conviction and sentences the present appeals are preferred.
2. It is the case of the prosecution that on 23rd March, 1994, at about 3.30 p.m., when deceased namely Sangita Kumari was returning to school after recess hours from her house along with one Bela Kumari (P.W. 13) both the appellant accused were at the gate of the school on a bicycle and they asked Sangita Kumari (decesed) to go with them and that they will -2- purchase a school dress for her. Sangita Kumari (deceased) had gone on bicycle with both the appellant accused. As she had not returned to her home, parents of Sangita Kumari, who are P.W. 10 (father) and P.W. 14 (mother), became worried about the well being of their daughter. At that time Bela Kumari (P.W. 13) informed them that when they were returning from home to school after recess hours both the appellant accused had taken away Sangita Kumari with them on a bicycle on the pretext of purchasing a school dress for her. It is further case of the prosecution that father of Sangita Kumari, who is P.W. 10 had gone to the shop of one of the appellant accused, namely Kailash Rajak (appellant in Cr. Appeal No.119 of 2002 . There he was conveyed that he (P.W. 10) should wait till night hours and thereafter only he can come to his place and thereafter, P.W. 10, who is father of the informant, approached the police station. His Fardbayan was recorded on the same day, i.e. on 23rd March, 1994 at about 8 p.m. F.I.R. was lodged on the same day and investigation started. Kailash Rajak was arrested, who had also informed during course of investigation to the police that he and another co-accused, namely Prakash Rajak had committed rape upon Sangita Kumari (deceased) one after another and thereafter they had murdered her and had hidden her dead body at Dhobia Jharna. Thereafter, the police as well as P.W. 10 and other prosecution witnesses went to the house of Prakash Rajak and he was also arrested on the same day, i.e. on 23rd March, at about 9 p.m. from his residence and all had gone along with both the accused in police jeep to Dhobia Jharna where the dead body of Sangita Kumari was traced out. The weapon, i.e. a stone, which was used for committing murder of Sangita Kumari was also seized. Statement of several witnesses have been recorded. Thereafter, chargesheet was filed and the case was committed to the court of the sessions in Sessions Trial No. 329 of 1994 and on the basis of prosecution witnesses both the appellant accused were convicted for the offences under section 376 I.P.C. to be read with 34 I.P.C. as well as for the offences under section 302 I.P.C. to be read with 34 I.P.C. for life imprisonment. Sentences have been awarded separately for both the offences, but they have been ordered to run concurrently. Against this judgment and order of conviction and sentences, present appeals have been preferred by both the appellants.
3. We have heard the counsels for both the appellants and they have submitted that prosecution has failed to prove the offences against the appellants beyond reasonable doubt. There are material omissions and contradictions in the deposition of prosecution witnesses. This aspect of the -3- matter has not been properly appreciated by the learned trial court and hence the judgment and order of conviction and sentences passed by the learned trial court deserves to be set aside. It is also submitted by the counsel for the appellants that the seizure list witnesses P.W. 5 and P.W.9 have turned hostile and they have not supported the case of the prosecution and thus, seizure list has not been proved at all which includes the stone which was used for committing murder of the deceased and the slipper, which has been recovered, did not belonged to Kailash Rajak, who is appellant of Criminal Appeal (DB) No. 119 of 2002.
4. Counsel for the appellants had also contended that confessional statement made before the police is not admissible in the evidence nor the statement made by the appellant accused in the police custody is admissible under the Indian Evidence Act. Similarly, there is no recovery of dead body at the behest of the appellant accused. This aspect of the matter has not been properly appreciated by the learned trial court. It is also contended by the counsel for the appellants that P.W.13, who is aged about 9 years is a tutored witness. She had no knowledge about the seriousness of the oath. No questions have been asked by the learned trial court to this minor witness about the seriousness of the matter of taking oath before giving deposition. It is also contented by the counsel for the appellants that the medical evidence is also not supportive of the case of the prosecution. Neither the presence of dead spermatozoa can connect the appellants with the offences of rape nor the so called recovery of slipper, alleged to be of Kailash Rarak, because the slippers did not fit him as per prosecution witness 18. The seizure list witnesses also have not supported the prosecution case. Thus, prosecution has failed to prove the offences of rape as well as murder of the deceased.
6. Counsel for the appellant accused Prakash Rajak, who is appellant in Criminal Appeal no. 503 of 2001, has specifically submitted that Prakash Rajak was never named in the F.I.R. and the dead body was never recovered at his behest, even from the evidence of P.W.10 and P.W.11 and therefore, judgment and order of conviction and sentence passed by the learned trial court against Prakash Rajak deserve to be quashed and set aside.
7. We have heard the counsel for the State A.P.P., who has vehemently submitted that no error has been committed by the learned trial court in appreciating the evidences given by the prosecution witnesses and right conclusion has been arrived at by the learned trial court about the guilt -4- of the appellant accused. The A.P.P. submitted that both the appellant accused had lured the minor girl Sangita Kumari (deceased) on the pretext of buying a school dress for her. These facts have been clearly narrated by Bela Kumari (P.W. 13), because she was along with Sangita Kumari while returning from home to school after recess hours, that all the three had gone in one bicycle at about 3.30 p.m. on 23rd March, 1994. Thereafter, Sangita never returned to her house. These facts were stated by Bela Kumari to the parents of Sangita Kumari, who are P.W.10 and P.W. 14, at home. Immediately P.W. 10, who is father of the deceased had gone in search of his daughter. Firstly, to the shop of Kailash Rajak and looking to the reply given by Kailash Rajak, he took appellant accused to the police station and his Fardbayan was recorded at about 8 p.m. on the very same day, i.e. 23rd March, 1994. It is also submitted by the A.P.P. that Kailash had stated before the police that he and one Prakash Rajak had one by one committed rape upon Sangita Kumari and then they have committed murder. Thereafter, they came to the residence of Prakash Rajak and he was also arrested at 9 p.m. on the very same day, i.e. on 23rd March, 1994 and they made statement that they had hidden the dead body of Sangita Kumari at Dhobia jharna after committing murder and therefore, both the appellant accused, police and other prosecution witnesses had gone in a police jeep at Dhobia Jharna. The A.P.P. has taken this court to the depositions of prosecution witnesses, especially P.W.10, P.W.11, P.W. 12, P.W.13 as well as P.W. 16 for this aspect of the matter. The dead body was recovered and the stone used for committing murder of the deceased as well as the Chappal of Kailash Rajak were also recovered. Seizure list is at Ext. 3. The A.P.P. has further submitted that looking to the cross-examination of these witnesses, nothing is coming out in favour of the appellant accused. Counsel for the State has also pointed out in detail about the deposition given by P.W.15 (Dr. Mahesh Prasad), who has examined Kailash Rajak and Prakash Rajak, both the appellants and has in detail narrated that there are injuries on knees of both the appellant accused. The A.P.P. has also in detail submitted the deposition of P.W.17 (Dr. Shambhu Prasad Singh), who has conducted post mortem examination of the body of the deceased. Several injuries were found on the body of the deceased. There are as many as ten injuries upon the body of the deceased. There are injuries on the private parts of the minor girl Sangita Kumari-deceased. The A.P.P. has submitted that looking to the evidences of both the doctors and looking to the depositions of -P.W.10, P.W. 11, P.W. 12, P.W. 13 and P.W.16, both the -5- appellants lured the minor girl Sangita Kumari. They had taken away this girl, committed rape one after another. She became unconscious and as she was coming to consciousness slowly they were frightened and therefore, they committed murder of the deceased. They hidden the dead body at Dhobia Jharna, which was recovered at the behest of the appellant accused and looking to the medical evidences also, these facts are getting enough corroboration. Thus, no error has been committed by the learned trial court in appreciating these evidences on record and accordingly, learned trial court has arrived at a conclusion that prosecution has proved the offences committed by the appellants of rape and murder of Sangita Kumari and there is no error committed by the trial court, hence this appeal may not be entertained by this Court.
8. Having heard counsel for both sides and looking to the facts and circumstances of the case, it appears that on 23rd March, 1994 when Bela Kumari (P.W. 13) and Sangita Kumari (deceased) were returning to school from home after recess hours, both the appellants were at the school gate. Looking to the deposition of P.W.13 (Bela Kumari), appellants lured this minor girl by saying that they are going to purchase a school dress for her and they had taken away this girl on a bicycle at about 3.30 p.m. Looking to the deposition of Bela Kumari (P.W. 13), Sangita Kumari (deceased) had not returned to her home even after school hours, parents of Sangita Kumari, who are P.W. 10 and P.W. 14 were much worried. At that time P.W.13 narrated this aspect before both these witnesses and from her deposition nothing is coming out in favour of the appellants. Though Bela Kumari is a minor girl, a student of 5th standard, she has given clear account of the facts as she has narrated the incident in her own words and she has stated that both the appellants had taken away this girl on a bicycle at about 3.30 p.m. On 23rd March, 1994. There is no exaggeration at all in her version and we see no reason to disbelieve this witness (P.W. 13). It is contended by the counsel for the appellants that the court should have asked this witnesses about the seriousness of the oath and about her understanding, but, looking to her cross-examination, it appears that not a single question has been asked regarding her power of understanding. Therefore, looking to the fact that she had been studying in 5th standard at the relevant time and no question was asked regarding her understanding in her cross-examination, it appears that she, being a student of 5th standard, correctly understood the seriousness of the matter and the oath taken before her deposition in the court. She appears to be a natural witness and we found her trustworthy and -6- reliable and she has proved the facts that both these appellants were at the school gate and they had taken Sangita Kumari on a bicycle at abut 3.30 p.m. on the date of the incident.
9. Looking to the deposition of Ram Nath Tanti (P.W. 10), who is the informant and father of deceased Sangita Kumari, it appears that when Sangita Kumari had not returned home after school hours and after her parents came to know about the facts narrated by Bela Kumari (P.W. 13), this witness had gone to the shop of Kailash Rajak (appellant in Criminal Appeal (D.B.) No. 119 of 2002) where the appellant accused gave confusing reply about Sangita Kumari that P.W. 10 should wait till night hours and thereafter only he can come to his shop and therefore, Kailash was taken to Police station by P.W.10. He has also narrated that appellant Kailash was trying to run away from rickshaw but anyhow father of the deceased took him to the police station. There he had narrated that he and one Prakash Rajak had committed rape upon Sangeita Kumari one after another and thereafter, they have committed murder and hidden the dead body at Dhobia Jharna. Fardbayan was recorded at 8 p.m. on the same date. F.I.R. was lodged by the police at Sahibganj Nagar police station, being P.S. Case No. 35 of 1994. Thereafter, appellant accused Kailash Rajak, police and P.W.10 had gone to the residence of Prakash Rajak. He was arrested from his home and they conveyed that they had hidden the dead body of Sangita Kumari at Dhobia Jharna and therefore, both the appellant accused had gone on a police jeep to Dhobia Jharna where the dead body of Sangita Kumari was recovered and the stone used in committing murder of the deceased was also recovered and a slipper of Kailash was also recovered. Seizure list was drawn, which is Ext. 3. Necessary Panchnamas were drawn by the police. Looking to the cross-examination of this witness, nothing is coming out in favour of these appellant accused. Father of the deceased (P.W. 10) has normally narrated that at the behest of the appellant accused dead body was recovered from Dhobia Jharna. Stone used for committing murder was also recovered. Likewise, the slipper of Kailash Rajak was also recovered. Looking to P.W.10 and his cross-examination, we have no reason to disbelieve this witness. He is also a reliable and trustworthy witness.
10. Looking to the statement recorded under sections 313 Cr.P.C. of Prakash Rajak, i.e. Appellant of Cr. Appeal (D.B.) No. 503 of 2001, it appears that he has stated that he was arrested from his home. He was taken to Dhobia Jharna where the dead body was recovered. This part of the -7- statement supports the statement by P.W. 10.
11. Looking to the deposition of P.W.14, who is mother of the deceased, it appears that she has also stated that Sangita Kumari has not returned from school on the date of offence and Belal Kumari conveyed that both the appellant accused took her on a bicycle. They tried to find out Sangita Kumari but she was not traceable. Thus, deposition of P.W.13 is getting enough corroboration from the deposition of P.W. 14 that at home she had conveyed the father and mother of the deceased the fact that both the appellant accused has taken away the girl on a bicycle after recess hours.
12. Looking to the depositions of P.W. 11, who is Ram Bilas Tanti, it appears that this witness has stated before the trial court that he had accompanied the police in a police jeep along with these two appellants and they went to Dhobia jharna. This witness has further submitted that dead body was recovered at the behest of the appellant accused near Dhobia Jharna and the appellants had pointed out where the dead body was hidden and they took out the dead body out of Dhobia Jharna. Kailash Rajak has confessed before him that he has killed Sangita Kumari. His confession is during the period of police custody and therefore, that part is not admissible but the fact remains that it is deposed that dead body was recovered at the behest of the appellant accused Kailash Rajak. Thus, as per Section 27 of the Indian Evidence Act, 1872, this evidence is admissible and it goes against the appellant accused.
13. Looking to the deposition of Shankar Prasad Jha (P.W. 16), who is the officer in charge of the concerned police station, it appears that he has narrated about the recording of Fardbayan, F.I.R. and arrest of both the accused and recovery of the dead body at the behest of the appellant accused. As also recovery of the stone, which is used in murder, as well as the slipper of Kailash Rajak. Looking to his cross-examination, it appears that his examination-in-chief has remained intact as nothing is coming out in favour of the appellant accused during cross-examination. Moreover, looking to the deposition of seizure list witness, namely Nand Kishore Tanti, though he has been declared hostile, it appears that in part 2 of his deposition, he has normally supported the case of the prosecution about going in a police jeep to Dhobia Jharna. Therefore, the fact of going in a police jeep is getting corroboration and place of recovery has also been corroborated and recovery of dead body was also corroborated from the deposition of these hostile witness.
-8-14. Thus, several circumstances have been proved by these prosecution witnesses about the deceased being taken away by the appellant accused in a bicycle, then hiding the dead body at Dhobia Jharna. Recovery of the dead body at the behest of appellant accused. Recovery of the stone, recovery of the slipper of appellant accused Kailash Rajak. These are factual circumstances of the chain of commission of the offences of rape as well as murder. This version of the prosecution has also been corroborated further from the deposition of Dr. Mahesh Prasad (P.W. 15), who had examined the appellant accused as well as Dr.Alakh Kumar Mandal (P.W. 17), who had carried out the postmortem examination of the dead body of the deceased.
15. Looking to the evidence of Dr. Mahesh Prasad, who has examined both the appellants and has given reports at Ext. 7 and 7/1, it appears that he has observed in his deposition that there was presence of some white stains over the private part of the accused Kailash Rajak, which was sent for pathological examination to detect the presence of spermatozoa. This witness has stated that as per pathological examination report, presence of dead spermatozoa was found on microscopic examination, which is evidence of sexual intercourse. There was also abrasion of ¾ X ½ ' on inner part of the left knee joint, which is simple in nature. He has also narrated the age of abrasion as 6-18 hours. Similarly, this witness has also examined another accused namely Prakash Rajak. There was also presence of some white stain on the private part of this appellant accused, which was sent for pathological examination and pathological examination shows the present of spermatozoa, which is an evidence of sexual intercourse as has been stated by this witness before the trial court. He had also found abrasion of ½ X ¼ ' in the inner part of the right leg below the knee joint.
16. Dr. Shambhu Prasad Singh (P.W. 17), who has conducted postmortem examination of deceased Sangita Kumari, has proved the post mortem report, which is Ext. 10. he has reported regarding following injuries:
" injuries - Ten injuries found on the dead body of deceased Sangita Kumari
(i) Lacerated wound ½ X ½ muscle deep on lower lip on left angle of mouth
(ii) Lacerated wound ½ "X1/2 "X muscle deep on right side of neck.
(iii) Lacerated wound ½" X ½"muscle deep on
right shoulder.
(iv) Red colour bruise 2" X ½" found on neck
just above the hyoid bone
After dissection echymosis found over the sub
cutaneous tissues and vessels were found
9
congested.
(v) Abrasion ½" X ¼" on left thigh
(vi) Lacerated wound ½" X ½" fracture of left
temporal bone and the piece of bone piercing
brain matter.
After dissection of brain, I found membrane
torn, collection of blood present.
(vii) Abrasion just below the left knee 1" X ½".
(viii) Abrasion just below right knee 1" X ½".
(ix) A small scratch found over knee.
(x) Abrasion 1 ½" X ½" on left ankle joint.
(2) Injuries found on external genetaliaLacerated would about
½" X ½" found over the vaginal orifice, hymane was found completely raptured. The blood was oozing from vaginal orifice. No secondary sex character developed.
17. Looking to the deposition of this witness, especially paragraph no. 3, it is opined by this doctor as under:
" It seems to me that it was homicidal injury and before homicide sexual intercourse was done. Injuries on other parts of the body were caused by hard and blunt substance. Injury on the neck was caused due to throttling. The injury on the vaginal orifice probably caused by penetration of penis on vaginal orifice. In other paragraphs, this doctor has stated that in his opinion death is due to haemorrhage, shock and head injury. There was also fracture of left temporal bone piercing the brain matter. After dissection of brain, I found the membrane torn and collection of blood present. He also found hymane completely ruptured. Blood was oozing from vaginal orifice and no secondary sex character developed".
Thus, looking to the medical evidence of both these doctors, i.e. P.W. 15 and P.W.17, to be read with Ext. 13, which is the pathological register, it appears that the appellant accused have committed rape upon Sangita Kumari (deceased). Both the appellant accused had injuries on their knees which suggests that the rape was committed on a rough surface. This aspect of the matter was properly appreciated by the trial court and this evidence are also in corroboration of the deposition of the prosecution witnesses as stated herein above and no error has been committed by the trial court in coming to the conclusion that the prosecution has proved the offences committed by the appellants beyond reasonable doubt.
In view of these facts, judgment and order of conviction dated 7th September, 2001 and sentence dated 10th September, 2001,passed by the Sessions Judge, Sahibganj in Sessions Trial No.329 of 1994, is, hereby upheld.
Both these criminal appeals, i.e. Cr.Appeal No. 503 of 2001 (D.B.) and Cr.Appeal No. 119 of 2002 (D.B) are, hereby, dismissed.
(D.N.Patel, J.)
(Prashant Kumar, J.)
Jharkhand High Court, Ranchi
Dated 13th December, 2012
s.m. N.A.F.R.