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Ramesh Kumar vs The State Of Jharkhand on 6 March, 2019

1

Criminal (Jail) Appeal (DB) No. 71 of 2014
Against the judgment of conviction dated 18.03.2008 and order of sentence dated
19.03.2008 passed by Shri Rajesh Kumar Dubey, District Sessions Judge, Latehar
in Sessions Trial Case No. 09 of 2006.

Ramesh Kumar — Appellant

Versus
The State of Jharkhand — Respondent

…….

For the Appellant : Mr. Mukesh Kumar Dubey, Amicus Curiae
For the State : Mr. Pankaj Kumar, Additional Public Prosecutor

PRESENT
HON’BLE MR. JUSTICE APARESH KUMAR SINGH
HON’BLE MR. JUSTICE KAILASH PRASAD DEO

By Court: Heard learned Amicus Curiae Mr. Mukesh Kumar Dubey and Learned
counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor.

2. This appellant faced trial along with co-accused Rajdeo Oraon for the
charge under section 376(2)(g) and 304/34 of the I.P.C for committing gang
rape of Victim ‘X’ (name withheld) in furtherance of their common intention
and also for commission of culpable homicide not amounting to murder as their
act led to the death of the victim ‘X’.

3. It needs to be mentioned at the outset that the above two accused persons
were held guilty under Section 376(2)(g) and 304/34 of the I.P.C. This appellant
was sentenced to undergo R.I. for life for his conviction under Section
376(2)(g) of the I.P.C and further to undergo R.I. for 10 years for his conviction
under Section 304 Part II/34 of the I.P.C. The accused Rajdeo Oraon was
sentenced to undergo R.I. for 10 years for his conviction under Section
376(2)(g) of the I.P.C and R.I. for 7 years for his conviction under Section 304
Part II/34 of the I.P.C. Beside the above, this appellant was imposed with a fine
Rs.5000/- under Section 376(2)(g) of the I.P.C and in default whereof to further
undergo R.I for 6 months. Similar fine was imposed upon the co-convict Rajdeo
Oraon. This appellant has remained in custody since his arrest on 09.08.2005.
The co-convict Rajdeo oraon also preferred a criminal appeal before this Court
being Criminal Appeal (SJ) No. 1019 of 2008. Learned Single Judge by
judgment dated 14.03.2011 has been pleased to set aside the judgment of
conviction and order of sentence recorded against the appellant Rajdeo Oraon
2 Criminal (Jail) Appeal (DB) No. 71 of 2014

by the learned Sessions Judge in Sessions Trial Case No. 09 of 2006 arising out
of Manika P.S. Case No. 17 of 2005. The present appellant, the co-convict is
before us assailing the same impugned judgment of conviction dated
18.03.2008 passed in same Sessions Trial Case No. 09 of 2006 and the order of
sentence dated 19.03.2008.

4. The prosecution case has unfolded on the basis of the fardbeyan of
Neema Oraon, husband of victim ‘X’ and is the basis for institution of the
formal F.I.R being Manika P.S. Case No. 17 of 2005 dated 08.08.2005 under
Section 376/304/34 of the I.P.C against the two named accused persons. The
informant Neema Oraon (P.W.4) whose fardbeyan was recorded at 7.30 hrs. on
08.08.2005 at Persani Village by the Sub Inspector of Police Awadh Kumar
Yadav, Officer-in-charge of Manika Police Station (Latehar) inter alia alleged
as follows:

On the previous night his whole family had gone to sleep after taking
meal when at 10 P.M. brother-in-law of his son, Prabhu Oraon came to their
house and requested the wife of the Informant, Victim ‘X’ to come along with
him in search of country made liquor. He returned after one hour and told that
victim ‘X’ is trembling and asked them to bring her. Thereupon the Informant,
his daughter Prabha and the accused Rajdeo Oraon went to the place pointed
out by Rajdeo Oraon where other villagers Siban Oraon and Sugan Oraon had
also reached on hearing brawl and all these persons were questioning Rajdeo
Oraon. As soon as they came on the road they heard a scream from behind the
bush “Ayo Dada Mua Dele”( complaining that she is being killed ). Informant
and others went towards the bush and saw one person committing rape upon
victim ‘X’ who on seeing them started fleeing away. They chased him and
caught hold of him. He disclosed his name as Ramesh Kumar of village Khijri
Nawatoli, District Simdega (appellant herein). Victim ‘X’ was in a stage of
unconscious and her under garments were exposed. They picked her up and
brought to the house. She was vomiting and at 5.00 A.M. she died. This
incidence was seen by Akhilesh Oraon, Jagtar Oraon, Khiru Oraon, Sukan
Oraon by their own eyes. On these allegations, Informant asserted that accused
Ramesh Kumar and Rajdeo Oraon have together committed rape upon the
victim ‘X’ after intoxicating her, which has resulted in her death.

5. Upon completion of the investigation, charge-sheet was submitted by the
3 Criminal (Jail) Appeal (DB) No. 71 of 2014

Police bearing no. 31 of 2005 dated 31.08.2005 under Section 376/304/34 of the
I.P.C against the two accused persons. Thereafter cognizance was taken and the
case was committed to the Court of Sessions. Charge was framed under Section
376 and 304/34 of the I.P.C on 03.04.2006 by the learned Sessions Judge. The
charge was amended on 18.03.2008 to one under Section 376 (2)(g) against
both the accused persons. Charges were read over to the accused persons and
explained in Hindi to which they pleaded not guilty and claimed to be tried.

6. During course of trial, prosecution had examined 7 witnesses as under:

1.P.W.1 Siban Uraon

2.P.W.2 Sugan Oraon

3.P.W.3 Akhilesh Oraon

4.P.W.4 Neema Oraon

5.P.W.5 Prabha Devi

6.P.W.6 Awadh Kumar Yadav

7.P.W.7 Manoj Kumar Gupta

8. C.W.1 Dr. Ravindra Narain was examined as Court Witness.

P.W.1 Siban Uraon, has deposed as an eye witness. He has stated that he
had gone to search the wife of the informant and upon hearing her scream, he
saw the appellant Ramesh Kumar committing rape upon her. He was chased and
caught. He had also stated that the fardbeyan was recorded in his presence. He
has proved and identified his signature on the fardbeyan marked as Ext.1. In his
cross examination he has stated that the deceased was his aunt who had 8
children and she was aged about 55 years. When the appellant was being
chased, he was naked. Accused Rajdeo Oraon was brother-in-law of the son of
the victim and used to work as a driver. According to this witness, Informant
Neema Oraon(P.W.4), his daughter Prabha Devi (P.W.5), Sugan Oraon (P.W.2)
and Rajdeo Oraon (accused) along with Akhilesh Oraon (P.W.3) had gone to
search the victim. He had no enmity with the family of accused Rajdeo Oraon.

P.W.2 Sugan Oraon has also deposed as an eye witness. He had also gone
to search the victim ‘X’ apart from the Informant Neema Oraon (P.W.4), his
daughter Prabha Devi (P.W.5), Siban Oraon (P.W.1). He has supported the
statements of the informant and also corroborated the statement of P.W.1. In his
cross examination, he has further stated that distance of the place of occurrence
was at about 150 yards and that the victim ‘X’ was vomiting after the incidence.

P.W.3 is Akhilesh Oraon. According to this witness, he had also
accompanied the informant Neema, Siban , Sugan , Sukhdar Oraon and Prabha
4 Criminal (Jail) Appeal (DB) No. 71 of 2014

Devi, daughter of the informant along with accused Rajdeo Oraon to search the
victim lady. He has also stated that he heard the sound of “Ayo Dada Mua Dele”
and when he reached the place he saw accused Ramesh Kumar committing rape
upon the victim lady. Accused Ramesh Kumar was chased and apprehended.
The victim ‘X’ was unconscious and her under garments and clothes were
removed. She was vomiting in the night and died at 5.00 A.M. in the morning.
In his cross examination he has also stated that they had gone to search on the
information of accused Rajdeo Oraon. He has stated that his statement was
recorded by the Police.

P.W.4 Neema Oraon is the informant of the case who in his deposition
has supported the prosecution story as made out in his own fardbeyan. He has
stated that on being told by Rajdeo Oraon, he along with his daughter Prabha
Devi had proceeded to search for the victim ‘X’ and on the way Sugan and
Siban also joined. When they reach near the bush by the side of the road, they
heard scream of the victim lady and on going there, they saw this accused
Ramesh Kumar / appellant committing rape upon his wife. He tried to flee away
but was apprehended after chase. His wife, victim ‘X’ had fallen unconscious
and brought to the house. She died at 5.00 A.M. in the morning. In his cross
examination, he has stated that the accused Rajdeo Oraon is the brother-in-law
of his son. He has also stated that when these persons had reached the place of
occurrence, the victim had been rendered unconscious and had stopped
speaking.

P.W.5 Prabha Devi is the daughter of the Informant and wife of Gandu
Oraon. She has supported the prosecution case as made out in the fardbeyan and
also corroborated the statements made by prosecution witness no. 1,2,3 and
4(informant). The defence has not been able to discredit the testimony of any of
these witnesses in cross examination.

P.W.6 Awadh Kumar Yadav is the Investigating Officer of the case who
has proved the fardbeyan written in his handwriting and signature thereupon
marked as Ext.2 and 1/2. He has also proved the endorsement on the fardbeyan
marked as Ext.3. He has also proved and identified the signature of the
Investigating Officer on the fardbeyan marked as Ext. 1/3 and formal F.I.R
marked as Ext. 4 and signature of the writer Constable on the formal F.I.R
marked as Ext. 1/4. Inquest report has been proved and marked as Ext. 5 and
5 Criminal (Jail) Appeal (DB) No. 71 of 2014

signature of the Medical Officer on the post mortem report has been proved and
marked as Ext.1/5.

P.W.7 Manoj Kumar Gupta is an Advocate Clerk who has proved the post
mortem report of the Victim ‘X’ marked as Ext. 6 in the handwriting of the
Medical Officer Dr. Ravindra Narain.

Dr. Ravindra Narain, Medical Office has been examined as Court
Witness No.1 who had undertaken the post mortem examination of the victim
‘X’ on 08.08.2005 and he found the following injuries:

“Rigor Mortis was present on both upper and lower limb. Ante
mortem injury:- Face was swollen, multiple bruises were present, face
blackish in colour. Vagina was full of seminal fluids.

Flowing visceras were preserved for chemical analysis: 1.a
piece of heart; 2. a piece of lung; 3. stomach and its contents; 4.a loop
of intestine; 5. a piece of liver; 6. A piece of spleen; 7. Left kidney; 8.
Uterus”.

He has reserved his opinion about the cause of death. In his cross
examination he has stated that he did not microscopically examined the fluid
present in the vagina of the deceased. It may be leucorrhoea discharge. Death
cannot be due to injury found on the body.

7. After conclusion of the prosecution evidence, the accused persons were
examined under Section 313 Cr.P.C to which they denied their involvement in
the crime and claimed themselves to be innocent.

8. Based on these material evidence on record and upon consideration of
the submissions of learned counsel for the parties, the judgment of conviction
and order of sentence was recorded against the two accused persons.

9. Learned Amicus Curiae has assailed the conviction of the present
appellant on the ground that charge of gang rape under Section 376(2)(g) of the
I.P.C. does not stand established since the co-accused Rajdeo Oraon has been
acquitted of the charge and conviction by the learned Single Judge of this Court
in Criminal Appeal (SJ) No. 1019 of 2008 dated 14.03.201. He has drawn
support from a judgment rendered by the Apex Court in the case of Rajesh Vrs.
State of Goa reported in (2003) 11 SCC 736. Learned Amicus Curiae has
further submitted that the appellant has remained in custody for 14 years by
now, that means, he has served entire sentence under Section 304 Part-II/34 of
the I.P.C. However, he at the same time submits that the charge under Section
304 Part II/34 I.P.C are not fully established as the medical evidence does not
support the cause of death attributed to the appellant. As such, even if the
6 Criminal (Jail) Appeal (DB) No. 71 of 2014

conviction of the appellant under Section 376(2)(g) of the I.P.C is modified to
one under Section 376 of the I.P.C, appellant has served custody for a period
much more than 10 years. This Court may accordingly set aside the conviction
under Section 304 Part-II/34 of the I.P.C and suitably modify the conviction
under Section 376(2)(g) of the I.P.C as it would meet the ends of justice.

10. Learned Additional Public Prosecutor has supported the findings of the
learned Trial Court. He however is not in a position to dispute the argument
raised by learned Amicus Curiae that the charge and conviction under Section
376(2)(g) of the I.P.C as against this appellant cannot survive in the light of the
acquittal of the co-convict Rajdeo Oraon under Section 376(2)(g) of the I.P.C
by the learned Single Judge. However, learned Additional Public Prosecutor has
submitted that evidence of the prosecution witness no.1,2,3,4 and 5, all of
whom are eye witness, completely establish the charge and conviction under
Section 376 of the I.P.C, though Medical Officer has not given any opinion as to
the presence of fluid found in the vagina of the victim. However, medical
evidence is not such, which completely rules out the ocular testimony of the
witnesses. Victim ‘X’ aged about 55 years died due to brutal sexual assault by
the appellant and as such conviction under Section 304 Part-II/34 of the I.P.C is
proper in the eyes of law and needs no interference.

11. We have considered the submission of the learned Amicus Curiae on
behalf of the appellant and learned Additional Public Prosecutor for the State;
gone through the material evidence on record including the F.I.R; framing of the
charge; evidence of prosecution witnesses and court witness Dr. Ravindra
Narain; prosecution exhibits ; statement of the accused under Section 313 Cr.
P.C and impugned judgment of conviction and order of sentence. The judgment
of acquittal of the co-convict Rajdeo Oraon passed in Criminal Appeal(SJ) No.
1019 of 2008 has also been placed before us. We have scanned the material
evidence on record in entirety. We find that the prosecution story based upon
the F.I.R. / Fardbeyan of the Informant Neema Oraon(P.W.4), husband of the
victim ‘X’ stands corroborated by other eye witnesses namely Siban Uraon
(P.W.1), Sukan Oraon(P.W.2), Akhilesh Oraon (P.W.3) and Prabha Devi (P.W.5),
daughter of the Informant. All of them had consistently deposed having gone to
the place of occurrence accompanied with the accused Rajdeo Oraon and seen
the accused Ramesh Kumar / Appellant herein, committing rape upon the
7 Criminal (Jail) Appeal (DB) No. 71 of 2014

victim ‘X’. Appellant tried to escape on seeing them where after he was chased
and apprehended. Victim lady had by that time fallen unconscious. All these
witnesses have consistently deposed that the victim was vomiting thereafter
throughout the night and died at 5.00 A.M. in the morning. The evidence of
C.W.1 Dr. Ravindra Narain shows ante mortem injuries in the nature of swollen
face, multiple bruises, face blackish in colour and vagina full of seminal fluids.
Though viscera report had not been produced to substantiate the presence of
spermatozoa in the fluid found in the vagina of the deceased but the medical
evidence is not such, which completely rules out the ocular testimony of the
prosecution witnesses who are eye witness to the act of rape on the victim ‘X’.

12. It is also not in dispute that the victim who was about 55 years of age and
mother of 8 children died within 6 hours of the assault at 5.00 A.M. in the
morning. As such, we are in a position to hold that the charge under Section 376
of the I.P.C were established on the basis of the prosecution evidence brought
on record beyond shadow of all reasonable doubt. The victim ‘X’ suffered death
as a consequence of brutal sexual assault upon her. As such, conviction of the
appellant under Section 304 Part-II/34 of the I.P.C also does not deserve
interference in appeal. However, since the co-convict Rajdeo Oraon stands
acquitted of the charge under Section 376(2)(g) of the I.P.C by the learned
Single Judge vide judgment dated 14.03.2011 passed in Criminal Appeal (SJ)
No. 1019 of 2008, the conviction of this appellant under Section 376 (2)(g) of
the I.P.C cannot be sustained. As observed herein above, though the appellant
cannot be convicted for the charge of gang rape under Section 376(2)(g) of the
I.P.C but the charge under Section 376 I.P.C simplicitor stands proved beyond
shadow of all reasonable doubts.

13. Considered thus, the impugned judgment of conviction under Section
376(2)(g) of the I.P.C stands modified to Section 376 of the I.P.C.
Consequently, the sentence of R.I. for life imposed on this appellant on his
conviction under Section 376(2)(g) of the I.P.C also deserves to be modified by
sentencing him to undergo R.I for 10 years as it would be proportionate to the
proved charge and would meet the ends of justice. Since the appellant has
remained under incarceration since his arrest on 09.08.2005, he has already
served the sentence of more than 13 ½ years by now. As such the appellant
should be released, if not wanted in any other case.

8 Criminal (Jail) Appeal (DB) No. 71 of 2014

14. In the result, appeal is partly allowed in the aforesaid terms. Let the
Lower Court Records be sent to the Court below forthwith along with the copy
of the judgment.

15. Before parting, we record our appreciation for the valuable assistance
accorded by the learned Amicus Curiae in this case. The Secretary, High Court
Legal Services Committee would ensure that the legal remuneration of the
learned Amicus Curiae are duly paid within a period of 4 weeks from the date
of receipt of an application along with a certified copy of this judgment.

(Aparesh Kumar Singh, J.)

(Kailash Prasad Deo, J.)
Jharkhand High Court, Ranchi
Date 6th March, 2019
A.Mohanty/

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