) Chandra Tudu … v. The State of Jharkhand --------- For the
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 24 of 2002 (Arising out of judgment and order of sentence dated 05.01.2002 and 08.01.2002 respectively, passed by learned Sessions Judge, Seraikella- Kharsawan in Sessions Trial No.155 of 1996 arising out of Gamharia P.S. Case No.23 of 1996 corresponding to G.R. Case No.164 of 1996) Chandra Tudu …… Appellant Versus The State of Jharkhand --------- For the Appellant : Mr. Nagmani Tiwari, Advocate For the State : Mr. S.P. Jha, A.P.P. …… Opposite Party ------------ PRESENT
Legal Reasoning
HON'BLE MR. JUSTICE D.N. UPADHYAY J U D G M E N T By Court: This criminal appeal has been directed against judgment and order of sentence dated 05.01.2002 and 08.01.2002 respectively, passed by learned Sessions Judge, Seraikella-Kharsawan in Sessions Trial No.155 of 1996 arising out of Gamharia P.S. Case No.23 of 1996 corresponding to G.R. Case No.164 of 1996 whereby and whereunder the sole appellant Chandra Tudu has been held guilty for the offences punishable under Section 376 and 366 of the Indian Penal Code and sentenced to R.I. for 10 years and R.I. for 5 years under Section 376 and 366 of the Indian Penal Code respectively. However, both the sentences were directed to run concurrently. 2. The prosecution case, as it appears from the F.I.R. lodged by Dhani Ram Mardi, is that his daughter Singo Mardi along with her friend Jusmi Murmu had gone go answer the call of nature towards river side at 5.30 p.m. on 17.03.1996. It is alleged that accused-appellant Chandra Tudu, who is resident of the same village, forcibly took the victim with him. The informant made a search and he could learn that the girl has been kept confined in the house of Chandra Tudu and then written report was lodged. On the basis of said written report Gamharia P.S. Case No.23 of 1996 dated 20.03.1996 was registered. After registration of the case the victim girl was recovered from the house of appellant and she was examined by 2 the doctor and her statement u/s 164 Cr.P.C. was also recorded. After investigation chargesheet was submitted. 3. The case was committed to the Court of Sessions and accused stood charged for the offences punishable u/s 366, 366-A and 376 of the Indian Penal Code. The prosecution has examined altogether 9 witnesses including the victim and the doctor. Following documents have been proved and marked as exhibit: First Information Report has been marked as exhibit-1, formal F.I.R. has been marked as exhibit-2, the medical report has been marked as exhibit-3 and signature on the statement u/s 164 Cr.P.C. has been marked as exhibit-4. 4. Learned Sessions Judge, at the conclusion of the trial, held accused- appellant guilty for the offences punishable under Section 366 and 376 of the Indian Penal Code and accordingly sentenced him, as aforesaid. 5. Learned counsel appearing for the appellant has assailed the impugned judgment on the ground that the victim, who has been examined as PW-6, had never raised alarm when she was forcibly taken by the accused. She has admitted in her deposition that the accused was in visiting term to her house. She had spent 3 days in the house of accused- appellant and in course of that she had been cooking which indicates that she was comfortable with the accused in his house. The evidence of the victim is sufficient to suggest that she was a consenting party. PW-8 is Dr. Radhika Kumari Gupta who has examined the victim girl. She did not find any external injury on the person of the victim and she has suggested age of the victim, on the date of her medical examination, between 17-19 years. In cross-examination she accepted that the age of the victim may be between 18-20 years. The most important witness Jusmi Murmu, who was accompanying the victim at the time of incident, has been examined as PW-1 and stated that she had reported the matter to the family members of the victim on the day of incident itself. There is delay of three days in lodging the F.I.R., though it was known to the informant that his daughter was kidnapped by the appellant on 17.03.1996. 6. Learned counsel appearing for the State opposed the argument and submitted that the victim has clearly stated in her deposition that she was forcibly taken by the accused to his house and she was kept confined and 3 during her stay in the house of accused she was subjected to rape. She was recovered only after arrival of the police. He has further submitted that the doctor has found sign of intercourse and dead spermatozoa where present in the swab taken by the doctor. PW-1 Jusmi Murmu has also corroborated the prosecution case. Learned Sessions Judge has rightly held the appellant guilty and there is no merit in this appeal. 7. I have gone through the First Information Report, deposition of witnesses and the documents proved and marked as exhibit. The victim PW-6 has supported the occurrence and she has stated that she was forcibly taken by the appellant to his house where she was subjected to rape. She admits that she was examined by the doctor and she had also given her statement before the Magistrate. It appears that she was cross-examined in which she did not accept that she had given tutored statement before the Magistrate. Learned counsel has raised a point that the accused-appellant was in visiting term in the house of victim and there is custom in the tribals that if a boy takes a girl to his house and keep her confined in the house, a marriage can be solemnized between them. I do not find that any such case has been made out either by the prosecution or by the defence that after the incident the victim was married with the appellant. The only ground that the appellant was in visiting term in the house of victim is not sufficient to discard her statement. It is admitted case of the prosecution as well as the defence that the appellant is also resident of same village and they were well acquainted with each other. PW-1 Jusmi Murmu has supported the fact that she along with victim had gone to answer the call of nature but on the way accused-appellant appeared and forcibly took the victim with him. She made protest but she was threatened. I do not find that the defence has taken any material contradiction in her statement. In all nine witnesses have been examined. PW-2 Bano Murmu happens to be mother of the victim. She has been declared hostile but supported that the victim was recovered from the house of accused-appellant. In her cross- examination she has accepted that she had given statement before the police. PW-3 Kailash Murmu, PW-4 Putu Marandi and PW-5 Shanti Ram Marandi are hearsay witnesses and they have supported the incident. PW-7 happens to be the Investigating Officer. He has proved the formal F.I.R. 4 and supported the investigation done by him. He has clearly stated that the victim was recovered from the house of appellant and the appellant was arrested from there. PW-8 R.K. Sinha happens to be the doctor who had examined the victim and she has found spermatozoa at the time of medical examination. She has proved the medical report as exhibit-3 and corroborated that the victim was subjected to sexual intercourse. I find that learned Sessions Judge has discussed the evidence of the witnesses and also considered the plea taken by the appellant during trial. 8. In view of the discussions made above, I do not find any merit in this appeal. In course of argument it was contended that the appellant has remained in custody for more than nine years and this appeal has been taken after a lapse of 11 years. The incident took place in the year 1996. The appellant remained in custody till the month of April, 2005. Since the appellant has already remained in custody for more than nine years, I feel
Decision
inclined to modify the sentence. In the result, this appeal stands dismissed with the modification in sentence and the sentence is modified to the extent of period already undergone. 9. Accordingly, this appeal stands dismissed with modification in the sentence. (D. N. Upadhyay, J.) Jharkhand High Court, Ranchi Dated : 21.06.2013 NKC / N.A.F.R.