Rajeev Kumar Tiwari @ Bhola Tiwari … v. The State of Jharkhand
Case Details
1 Criminal Appeal (DB) No. 258 of 2013 Against the judgment of conviction dated 23.03.2013 and order of sentence dated 06.04.2013 passed by Md. Zafar Imam, Special Judge SC/ST (POA) Act, Palamau at Daltonganj in SC/ST Case No. 09 of 2008. Rajeev Kumar Tiwari @ Bhola Tiwari … … Appellant --- Versus The State of Jharkhand ... … Respondent --- For the Appellant : M/s. A. K. Kashyap, Senior Advocate & For the Respondent --- Present Lina Shakti, Advocate : Mr. Amresh Kumar, A.P.P. HON'BLE MR. JUSTICE D. N. PATEL HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR --- S. Chandrashekhar, J:
Legal Reasoning
The sole appellant has challenged the judgment and order dated 23.03.2013/06.04.2013 convicting the appellant for offences under Sections 341, 452, 376 (2) (g) of I.P.C. and u/s 3 (i) (xii) of SC/ST (POA) Act and sentencing him for the said offences. 2. By order dated 14.05.2013, the present criminal appeal was admitted and record and proceedings of SC/ST Case No. 9 of 2008 were called for from the trial court. In view of the evidences on record and with the consent of counsels appearing for both sides, by order dated 24.06.2013, the present criminal appeal was directed to be listed for “Final Hearing” on 27.06.2013. 3. The prosecution case in short is that, the informant namely, Mostt. Panwa Bhuiyan gave her statement to the police on 06.03.2013 alleging that on 05.03.2013 when she was returning home from Daltonganj town and when she reached the bridge near Rastriya Navin Mail Press, the accused Dheeraj Tiwari threw stone on her to which she protested. The accused Dheeraj Tiwari threatened her to teach her a lesson. In the night when she was sleeping with her old mother, at about 11:00 P.M. the accused 2 Dheeraj Tiwari, Gorakh Tiwari and an unknown another person entered in the house and caught her. Dheeraj Tiwari threatened her with pistol and forcibly dragged her to a nearby canal and forcibly committed rape on her. Accused Dheeraj Tiwari further threatened her not to disclose the incident to anyone otherwise, she would be killed and thereafter, she returned home and the accused persons followed her. She further alleged that the accused persons dismantled the roof of her house and on protest by her mother and neighbour Jhingur Bhuiyan, the accused persons assaulted them also with slaps and fists and left threatening her with dire consequences. First Information Report being Sadar (Town) P. S. Case No. 53 of 2003 dated 06.03.2003 under Section 452, 376, 427/34 of I.P.C. and Section 3/4 of SC/ST (POA) Act was registered and after completion of investigation charge-sheet was filed on 20.06.2003 against accused Dheeraj Tiwari and Gorakh Tiwari keeping the investigation pending against the unknown accused. Subsequently, charge-sheet dated 31.06.2008 was submitted against the present appellant under Section 341, 323, 452 427, 376/34 of I.P.C. and u/s 3 (i) (x) of SC/ST (POA) Act. 4. In support of its case, the prosecution examined four witnesses namely, Jhingur Bhuiyan as P.W. 1, Manju Devi as P.W. 2, the Investigating Officer namely, Ashwini Kumar Sinha as P.W. 3 and the prosecutrix as P.W. 4. It appears that by judgment and order dated 24.04.2004 passed in SC/ST Case No. 11 of 2003, the accused Dheeraj Tiwari and Gorakh Tiwari were acquitted from the charges levelled against them and therefore, the certified copies of the depositions of P.W. 1 to P.W. 5 recorded in SC/ST Case No. 11 of 2003 were marked as Exhibit 3 to 3/4 and certified copy of judgment dated 24.04.2004 passed in the said case was marked as exhibit 4. The statement of the present appellant- 3 accused under Section 313 Cr.P.C. was recorded on 12.02.2013 wherein the accused denied the charges against him. 5. The prosecution witnesses namely, Jhingur Bhuiyan (P.W. 1) and Manju Devi (P.W. 2) were declared hostile by the prosecution. The prosecutrix namely, Panwa Bhuiyan deposed in the Court that about nine years ago the occurrence took place at about 10:00 P.M., however, nothing had happened to her and her statement was not recorded by the police. She was also declared hostile by the prosecution. During cross-examination she denied that the police had read out the fard-beyan to her and she had ever seen the present appellant. The investigating officer deposed in the Court that the witnesses who were examined by him had supported the case against the present accused. 6. The learned trial court convicted the accused-appellant for offences under Section 341, 452, 376 (2) (g) of I.P.C. and for offences u/s 3 (i) (xii) SC/ST (POA) Act and acquitted him of the charges under Section 323 & 427 of I.P.C. The accused was sentenced to undergo R. I. for a period of ten years u/s 376 (2)(g) of I.P.C. and also sentenced to pay a fine of Rs. 4,000/- and in default of payment of fine to undergo R.I. for a period of three months in addition to the substantive sentence as awarded above. He is sentenced to undergo R.I. for a period of two months u/s 341 of I.P.C. and to undergo R.I. for a period of four months u/s 452 of I.P.C. He is also sentenced to undergo R.I. for a period of six months u/s 3(i)(xii) SC/ST (POA) Act and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo R.I. for a period of one month in addition to the substantive sentence as awarded above. All the aforesaid sentences were ordered to run concurrently. 7. Heard learned counsel appearing for the parties and perused the documents on record. 4 8. The learned counsel appearing for the appellant has contended that the learned trial court committed serious error in law in convicting the present appellant as there is no legal evidence against the present appellant. The learned trial court has erroneously ignored the judgment of acquittal dated 24.04.2004 passed in SC/ST Case No. 11 of 2003 which is a relevant fact and the entire depositions as well as the judgment in SC/ST Case No. 11 of 2003 were marked by the prosecution itself during the trial of the present Sessions case. He has further contended that though no charge for offence under Section 376 (2)(g) of I.P.C. was framed against the petitioner, however, the petitioner has been convicted by the trial court for the said offence, and therefore, the judgment and order dated 23.03.2013 convicting the appellant for offence under Section 376 (2)(g) of I.P.C. also is liable to be set aside by this Court. 9. On the other hand, learned A.P.P. appearing for the State has contended that it has come on record that the petitioner was earlier also involved in another case of gang rape and he remained in jail in connection with the said case. Before the investigating officer, all the prosecution witnesses have supported the case against the present appellant, and therefore, the learned trial court has not committed any error in convicting the present appellant. He has further contended that the present case against the appellant was required to be decided on the basis of the evidences given by the prosecution witnesses in the present case and therefore, the learned trial court has rightly ignored the record of SC/ST Case No. 11 of 2003. 10. On a perusal of the document on record, it is clear that the case against the appellant is based on the prosecution witnesses P.W. 1, P.W. 2 and P.W. 4. The investigating officer of the case who submitted the charge-sheet against the present appellant has been examined as P.W. 3. In the present case, even 5 the prosecutrix has disowned the prosecution case. She has specifically stated in the Court that nothing had happened to her and she has never seen the present appellant before. 11. The learned trial court fell in error in relying on the statement given by the father of the present appellant before the police wherein he informed the police that his elder son namley, Bhola Tiwari was in jail in connection with Sadar (Town) P. S. Case No. 306 of 2006 u/s 376 (2)(g) of I.P.C. The learned trial court further fell in error in placing reliance on the fard-beyan of the prosecutrix. The learned trial court relying on the report of the Medical Board and the F.S.L. Report recorded as under:
Decision
“The report of Medical Board as well as the F.S.L. Report are corroborative evidence on record, which proves that the said victim girl was made victim of rape. The evidence on record substantiate the fact that the said victim girl was raped at the relevant date, time, night and place. The informant Panwa Bhuiyan – P.W. 4 stated that the occurrence took place before 8-9 years in the night at 10:00 P.M. and it had taken place at her home but subsequently she stated that nothing happened with her and she had not given her statement before the police. The prosecution has declared her hostile. She further stated in her cross examination that the police had not read out to her the Fardbeyan but the police had recorded her statement. She declined to identify the present accused in the dock. She did not deny to have put her R.T.I. on her Fardbeyan. She admitted that her Fardbeyan was recorded by the police but she simply denied in the Court that it was not read over to her. The defence did not draw her attention towards the content of her Fardbeyan dated 06.03.2003. Hence, the said denial of the informant is evasive in nature and in the result it would be considered that she had given her fardbeyan to the police on which she had put her RTI.” 12. It further appears from the impugned judgment and order that the learned trial court convicted the appellant recording as under: 6 12. “Since the case of the other two accused persons had already been disposed of as stated above this court is concerned absolutely to examine the matter in hand only in respect of the present accused. The present accused is not the main accused in this case rather he was in company with the other accused persons. This is a case of gang rape and in a gang rape all the accused involved may not take part in have sexual intercourse with the victim lady. It is not required that each accused must take part in raping the victim turn by turn. The legal position is quite clear that section 376 (2)(g) IPC contemplates gang rape which is a specie of rape and when a woman is raped by one or more in a group of person acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of Section 376(2)(g) of IPC. In the present case the present accused was all along with the other accused persons and he acted in concert with others and entered the house of the victim, lifted her and took her to a nearby lonely and safe place and one of them is said to have violently committed sexual intercourse with the prosecutrix. The present accused is not named in the F.I.R. and not said to have committed rape on the victim rather he had assisted in the alleged heinous crime of gang rape in view of the facts and circumstances of the case and materials available on record. Hence, he was a member of the gang rape and in furtherance of common intention of them all the prosecutrix was made victim of rape and one of them ravished her. The present accused is equally liable in the alleged crime under law.” 13. From the aforesaid, it is abundantly clear that the learned trial court committed serious error in law in placing reliance on the fard-beyan of the prosecutrix even though the prosecutrix had refused to identify the appellant in the Court and she had specifically deposed in the Court that nothing had happened to her. The learned trial court also committed serious error in law and convicted the present appellant for offence under Section 376 (2)(g) of I.P.C. It is settled principle of law that an accused is entitled to know the charge against him and the 7 accused is required to answer only the charge levelled against him. Since, in the present case no charge under Section 376 (2)(g) I.P.C. was framed against the petitioner, the petitioner could not have been convicted for the said offence. We further find that the main accused namely, Dheeraj Tiwari against whom specific allegation of the rape has been levelled by the prosecutrix, has been acquitted by the trial court in SC/ST Case No. 11 of 2003 and though this fact has been noticed by the learned trial court, it was erroneously ignored by the trial court. Merely because there was report of the Medical Board and F.S.L. which would indicate commission of rape upon prosecutrix, the charge against the appellant cannot be said to have been proved. The prosecution was required to prove that the rape upon the prosecutrix was committed by the accused person/persons which is not the case in hand. 14. In view of the aforesaid discussion, we are of a considered opinion that the prosecution has miserably failed to establish the charges levelled against the appellant beyond reasonable doubt. 15. In the result, this appeal succeeds and judgment and order dated 23.03.2013/06.04.2013 of conviction and sentence of the appellant is set aside. The appellant is directed to be released forthwith from the judicial custody, if his presence is not required in any other offence. (D. N. Patel, J.) (Shree Chandrashekhar, J.) Jharkhand High Court at Ranchi The 31st day of July, 2013 R.Shekhar/NAFR/Cp.2