Jharkhand High Court
Sushil Toppo & Ors. vs State Of Bihar on 18 April, 2011
Author: Jaya Roy
Bench: Jaya Roy
Criminal Appeal No. 269 of 2000
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(Against the judgment of conviction and order of sentence dated
26.07.2000and 27.07.2000 passed by the VIth Additional Judicial Commissioner, Ranchi, in S.T No. 812 of 1991)
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1. Sushil Toppo
2. Subodh Toppo
3. Pradip Minz
4. Balasius Lakra ..... Appellants
--Versus--
The State of Bihar ..... Respondent
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For the Appellants : Mr. A.S.Dayal, Advocate
For the Respondent : Mr. T.N.Verma, (A.P.P.)
PRESENT
HON'BLE MRS. JUSTICE JAYA ROY
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JUDGMENT
20/ 18.04.2011 Heard the learned counsel for the appellant and learned counsel
for the Respondent.
2. The appellant has filed this appeal against the Judgment dated 26.07.2000 and sentenced dated 27.07.2000 passed by the VIth Additional Judicial Commissioner, Ranchi passed in S.T. No. 812 of 1991 arising out Mandar P.S. Case No. 36 of 1988 Corresponding to G.R. Case No. 1558 of 1988 whereby the appellants have been convicted for an offence under Section 323, 376/34 of the Indian Penal Code and sentenced them to undergo R.I. for 10 years for the offence under Section 376/34 of the I.P.C. and R.I. for 6 months for the offence under Section 323 of the I.P.C.
3. The prosecution case in brief is that the informant Jasinta Bakhla who was a teacher in John High School Nawa Tanr, where she was living in a rented house just near the compound of John High School has submitted a Written Report stating therein that on 13.5.88 about
9.P.M. while she was at her rented house and was to sleep, she heard the sound of knocking the door of her house. On being asked, the person knocking the door, told that they are Subodh Toppo, Sushil Toppo, Balasish Lakhra and Pradeep Minz and they have come for drinking water. When she denied to open the door, they started breaking the door. Thereafter, she opened the door and on opening the door, the aforesaid persons entered into in her house with Lathi and wire rope in their hands. All of them caught the informant and assaulting her and dragged her to a lonely place. She made alarm whereupon Mangal came to save her but the aforesaid persons assaulted him. On her Alarm Basir Kullu a Clerk of his School came out of his house but the aforesaid persons also attempted to assault him. Thereafter, all the four aforesaid persons along with few unknown persons, dragged her by assaulting her in way to an orchard. Thereafter, all of them committed rape upon her one after another. They threatened her and forced her to write her confession on a piece of paper that she along with Mangal were caught red handed. All the aforesaid persons also threatened her that if she would disclose the incident of the rape to any one, she would be killed. As some of the villagers by that time arrived at the place of the occurrence, the aforesaid persons fled away. Thereafter, she came to her house and narrated the incident to Kamal Minz, Pius Toppo and to her landlord John Minz and others. She noticed that from her house one Philips Radio and some clothes were also missing. On the basis of the aforesaid Written statements a formal F.I.R. was drawn under Sections 452,341,342,376/34 I.P.C. against the aforesaid four appellants and three other unknown persons. After completion of the investigation, the charge sheet was submitted for the offence under Section 452,342,376,380,323/34 I.P.C. and cognizance was taken and the case was committed to the Court of Sessions.
4. The prosecution has examined seven witnesses to prove its case. Amongst them P.W.1.Kamal Minz, P.W.5 Basil Kujur, P.W.6 Pius Toppo have been declared hostile as they have not supported the prosecution case. P.W.2 the victim lady (the informant) P.W.3 Mangal Kholkho, P.W.4 Barnal Lakhar Nephew of the informant, P.W.7 is the Doctor who examined the Victim lady (the informant). The I.O. of this case has not been examined. The defence has examined three witnesses D.W.1 Thomas Kispotta, D.W.2 Johan Minz landlord of the informant, D.W.3 is also co-villagers of the accused persons.
5. Mr. A.S.Dayal the learned counsel appearing for the appellants, has submitted that the accused persons are innocent and have falsely been implicated in this false case. The victim girl, P.W.2 Jasinta Bakhla was never raped by them. The fact is that P.W.2 Jasinta Bakhla, while working as a teacher in St.John High School, was exploiting the students sexually by keeping them in her house in the night, which was protested by the villagers under the leadership of the accused persons. So, the accused persons have falsely been implicated in this case.
6. Mr. Dayal has contended that P.W.1 Kamal Minz, P.W.5 Basil Kujur and P.W.6 Piyus Toppo have not supported the prosecution case and they have been declared hostile by the prosecution. The P.W.7 the doctor who examined the victim lady, did not find any positive sign of rape on her body. She found only old raptured hymen admitting two fingers easily and no injury on her private part. But I find from the records of this case that according to the allegation the victim lady was raped on 13.5.88 but she was examined by the doctor on 29.5.88. Therefore, after fifteen days of the alleged Sexual inter course, nothing can be found to prove the same.
7. Mr. Dayal has further contended that though the doctor P.W.7 has stated about certain injuries i.e. two lineal scar mark from the right wrist, one small lineal scar on her nose, one small scar on her back of the left elbow but the doctor could not explain the nature of weapon for causing the injury and the age of the injury. Therefore, P.W.7 the doctor has also not supported the prosecution case.
8. Mr. Dayal has pointed out that the victim lady was dragged by more than four persons towards the orchard having serious injury and even raped by so many persons, she went to Ranchi and stayed there for two weeks without lodging any F.I.R. Even she has not examined any of the person whom she stated about the alleged occurrence though she has stated in her evidence that on the advice of the authority of Ranchi, she filed the instant case.
9. Mr. Dayal has further pointed out that all the defence witnesses are practically independcent witnesses as the D.W.1, D.W.3 are co- villagers and D.W.2 is the landlord of the victim lady. All of them have very specifically stated that the victim lady was keeping a boy i.e. P.W.3 Mangal Xalxo with her in the night who was her student and ten years younger than her. It has also come in the evidence of P.W.3 Mangal Xalxo that he married the victim lady in 1994 after few years of the alleged occurrence. Furthermore, the Investigating officer has not been examined by the prosecution without assigning any reason for the same.
10. Mr. T.N. Verma A.P.P. Appearing for the State has submitted that the victim lady has narrated the alleged occurrence in her evidence and only on the basis of her evidence, conviction can be made.
11. No doubt, the person can be convicted only on the basis of the evidence of the victim lady but if her evidence is completely trust worthy. But in this case, the victim lady who was a teacher, lodged the first information report after fifteen days. Not only that, she has not examined the persons whom she narrated the entire occurrence at Ranchi or who had advised her to lodge the F.I.R. Furthermore, the doctor has not supported the prosecution case. On the other hand, the doctor has opined that she may be habituated to sexual intercourse. Further, I find from the evidence of the defence witnesses that she was keeping her students in the night in her house and exploiting them sexually as such the villagers specially the accused appellants used to object her such conduct as such there is every reason for false implication of the appellants in this case.
12. Considering all these aspects and taking over all view of the matter,in my opinion, the appellants are entitled for benefit of doubt. I, therefore, allow the appeal and set aside the judgment of conviction and order of sentence recorded by the trial court. As the appellants are on bail, the appellants are discharged from their liabilities of the bail bonds.
(Jaya Roy, J) SI/