The High Court of Jharkhand dismissed a criminal appeal filed by a convicted appellant. Upholding the trial court's decision, the Court affirmed convictions for kidnapping and rape, reaffirming the judgment of conviction and sentence.
Criminal Appeal dismissed; bail bonds cancelled; appellant directed to surrender to serve remainder of sentence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.154 of 2004
(Against the Judgment of conviction and order of sentence, both dated 12.12.2003, passed by the learned 6th Additional District and Sessions Judge, (F.T.C.), Dumka, in Sessions Case No.96 /94, 126/95, and 151/03).
Upendra Tudu, S/o Khepa Tudu, resident of Village- Jagdishpur, P.S.Raneshwar (Tongra) District- Dumka. . . . . . Appellant
Versus
State of Jharkhand. ….. . . . . . Respondent P R E S E N T
HON’BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant : Mr. Indu Shekhar Gupta, Advocate For the State : Mr. P. K. Appu, Additional Public Prosecutor
By Court:- Heard, Mr. Indu Shekhar Gupta, learned counsel appearing for the appellant and Mr. P. K. Appu, learned Additional Public Prosecutor appearing for the State.
2. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 12.12.2003, passed by the learned 6th Additional District and Sessions Judge, (F.T.C.), Dumka, in Sessions Case No.96 /94, 126/95, and 151/03, whereby the appellant, Upendra Tudu has been convicted for the offence committed and punishable under Sections 366, 376 and 368 of the Indian Penal Code and awarded rigorous imprisonment for seven years for the offence committed and punishable under Section 376 I.P.C., rigorous imprisonment for four years for the offence committed and punishable under Section 366 I.P.C. and rigorous imprisonment for three years for the offence committed and punishable under Sections 368 I.P.C. All the sentences are directed to run concurrently. By the same impugned judgment, the learned trial court has acquitted the accused /appellant, Upendra Tudu of the charge under Section 323 I.P.C. and also acquitted the other accused persons namely, Khepa Tudu and Randhan Tudu of the charge under Sections 366A and 368 I.P.C.
3. The prosecution case is based upon, written report submitted by the informant, Sibu Hembrom (P.W.2), before the Officer-in-Charge, Tongra Police Station, wherein, the informant has alleged that on 04.12.1993 in the evening, his daughter, Pan Muni Hembram, aged about 14 years was missing. On 05.12.1993, the informant came to know that his daughter has been confined by the son of Khepa Tudu, namely, Upendra Tudu (appellant) in his house. The wife of the informant, Patimuni Hansda, son of the informant, Vinod Hembram, Sumi Tudu and Smt. Pata Rani Hembram went to the house of Khepa Tudu, a
Chowkidar, where Khepa Tudu and his wife made a protest in handing-over the daughter of the informant and abused them in filthy language and also forced them to go out of the house by saying that his daughter will be returned tomorrow in presence of 'Punch'. On the second day, the daughter of the informant was taken to some other place by Upendra Tudu (appellant) in connivance with Khepa Tudu and his wife, as such, the informant has prayed to take legal action against them.
4 . On the basis of the aforesaid written report of the informant, Sibu Hembram, the Police has instituted First Information Report bearing Raneshwar (Tongra) P.S. Case No. 45 of 1993, dated 10.12.1993 corresponding to G.R. No.1019 of 1993, under Sections 365 and 366(A) of the Indian Penal Code against accused, Khepa Tudu, Upendra Tudu and wife of Khepa Tudu.
5 . After investigation, the Police submitted charge-sheet against accused/appellant, Upendra Tudu vide Charge-sheet No.12 of 1994 dated 08.03.1994 and further submitted a separate charge-sheet against other accused persons, namely, Khepa Tudu and his wife, Randhan Murmu vide charge-sheet No.14 of 1995 dated 17.04.1995.
6 . The cognizance of the offence has been taken against accused/appellant, Upendra Tudu on 09.03.1994 and against other accused persons namely, Khepa Tudu and his wife, Randhan Murmu on 18.04.1995 and case has been committed to the Court of Sessions against accused/appellant, Upendra Tudu on 05.05.1994 and against other accused persons, namely, Khepa Tudu and his wife Randhan Tudu on 20.06.1995. 7 . The charge has been framed against Upendra Tudu under Sections 366/ 368 /376/ 323 I.P.C. on 01.10.1996, in Sessions Case No.96 /94 and against Khepa Tudu and Ramdhan Murmu under Sections 368/ 366A I.P.C. on 01.10.1996 Sessions Case No.126 /95 and both Sessions Cases have been amalgamated vide order dated 26.07.1997, as charge has been framed in both Sessions Case arising out of Raneshwar (Tongra) P.S. Case No. 45 of 1993, but till date no witnesses have been examined.
8 . The prosecution has examined altogether ten prosecution witnesses apart from exhibiting written report which has been proved and marked as Exhibit-1 and injury report which has been proved and marked as Exhibit-2 in support of prosecution case.
Patimuni Hansda, mother of the victim, has been examined as P.W.1, Shibu Hembram, informant and father of the victim, has been examined as P.W.2, Randhan Marandi, has been examined as P.W.3, Panmuni Hembram,
victim of the case, has been examined as P.W.4, Vishwnath Rai, a Chowkidar has been examined as P.W.5, Jairam Dhakaro, another Chowkidar has been examined as P.W.6, Binod Hembram, brother of the victim has been examined as P.W.7, Dr. Mridula Bibhakar, Medical officer, has been examined as P.W.8, Brihaspati Murmu has been examined as P.W.9 and Jamil Ahmad Ansari, Investigating officer of the case has been examined as P.W.10.
9 . After closure of the prosecution evidence, the accused persons have been examined under Section 313 Cr.P.C. on 15.09.2003, wherein they have denied about any evidence against them.
But no defence witness or documentary evidence has been adduced on behalf of the accused.
10 . The learned trial court, after hearing learned counsel for the parties and perusing the records, has passed the impugned judgment of conviction and order of sentence, as stated above, which has been assailed by the appellants in the present Criminal Appeal.
Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the accused/appellant has preferred the present Criminal Appeal before this Hon'ble Court which was admitted on 22.04.2004 and the appellant was released on bail after suspension of his sentence vide order dated 05.01.2007 and since then, the matter is pending before this Court.
11 . Heard, Mr. Indu Shekhar Gupta, learned counsel appearing for the appellant. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law.
Learned counsel for the appellant has further submitted, that the victim and the appellant are relatives and they have gone to the house of their common relative.
Learned counsel for the appellant has further submitted, that the Doctor in his medical report, which has been proved and marked as Exhibit-2, has categorically stated that no definite opinion can be given as to whether the victim was raped or not and the First Information Report has been lodged by the informant after delay of five days as the occurrence was committed on 04.12.1993, but the 'fardbeyan' has been given on 09.12.1993 at 6.00 p.m.
Learned counsel for the appellant has further submitted, that the prosecution has mostly examined relative witnesses such as, Patimuni Hansda (P.W.1), mother of the victim, Shibu Hembram (P.W.2), informant and father of the victim and Binod Hembram (P.W.7), brother of the victim.
On the above premises, learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence be set aside by acquitting the
[Cr. Appeal (SJ) No.154 of 2004]
appellant of charge and conviction under Sections 376, 366 and 368 I.P.C..
12 . Heard, Mr. P. K. Appu, learned Additional Public Prosecutor appearing for the State.
Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial court on the basis of the material available on record, as such, the learned trial court has rightly convicted the appellants.
Learned counsel for the State has vehemently argued this case and submitted that daughter of the informant was kidnapped by the appellant, who took her to the house of his relative and from the house of the relative, Brihaspati Murmu (P.W.9), both the appellant as well as the victim were recovered by the Police in presence of the father of the victim, who is informant of this case.
Learned counsel for the State has further submitted that as per the Medical report which has been proved and marked as Exhibit-2, it appears that the victim is aged about 14-16 years and she was minor at the time of alleged occurrence.
Learned counsel for the State has further submitted that that the Doctor (P.W.8) has opined that no definite opinion can be given whether the victim has been raped or not, but the victim (P.W.4) in her evidence, has categorically stated in Para-11 that she was forcibly raped by the appellant.
Learned counsel for the State has further submitted that Patimuni Hansda (P.W.1) is the wife of the informant and mother of the victim, Shibu Hembram (P.W.2) is the informant and father of the victim, Randhan Marandi (P.W.3), a co-villager has stated that Upendra Tudu (appellant) has brought victim (Panmuni Hembram) to his house. The victim has been examined as P.W.4 and she has categorically stated that in the evening, she went to purchase potato from the shop and while returning, Upendra Tudu (appellant) gagged her mouth with the help of cloth and dragged her to his house and closed the door. When the victim raised brawl, she was threatened by means of knife with dire consequences and also caught-hold of her tuft and committed rape for the whole night. Whenever victim was raising voice, she was given threatening of dire consequences. On the next morning, she was taken to house of witness, Randhan Marandi (P.W.3) where they remained for half an hour and thereafter she was again taken to the house of Upendra Tudu (appellant) and subsequently, she was taken to Village- Rajpara, where she was kept for two days in the house of Brihaspati Murmu (P.W.9) and she was also raped there for two to three times and from there she has been recovered by the Police. Thereafter she was brought to Dumka for her medical treatment. The victim has categorically stated that she is aged about 14 years. During cross-examination, victim (P.W.4) has categorically stated that while she was returning after purchasing potato, no one was present in the way, when the appellant has
[Cr. Appeal (SJ) No.154 of 2004]
kidnapped her by gagging her mouth. She has further stated that she tried to rescue herself by throwing her hands and leg, but she was not allowed to raise voice. She has categorically stated that no body has witnessed the occurrence of kidnapping committed by Upendra Tuddu (appellant). She was taken to his own house by appellant, where she was forcibly raped. Upendra Tuddu took her to the house of Randhan Marandi (P.W.3), who has also supported the prosecution case and later on she was taken to VillageRajpara where, she has disclosed to the persons present there that she has been forcibly caught.
Vishwanath Rai, another Chowkidar of the village has been examined as P.W.5. This witness is a member of Police party who recovered the victim along with Upendra Tudu (appellant) from the house of Brihaspati Murmu (P.W.9). Jairam Dhakaro (P.W.6), another Chowkidar, has reiterated the version made by witness, Vishwanath Rai (P.W.5) that victim was recovered along with Upendra Tudu (appellant) from the house of Brihaspati (P.W.9). Further, Binod Hembram, brother of the victim and son of the informant has been examined as P.W.7. This witness has supported the prosecution case to the extent that he went to the house of Khepa Tudu, where Khepa Tudu and his wife have not allowed him to enter into the house where his sister, Panmuni Hembram was kept by the appellant/ accused, Upendra Tudu after kidnapping her.
Dr. Mridula Bibhakar, Medical Officer, has been examined as P.W.8 and she has examined victim (P.W.4) on 10.12.1993 at Sadar Hospital, Dumka, and opined her age to be 14 to 16 years, but the Doctor has not given any definite opinion as to whether the victim was raped or not.
Brihaspati Murmu, relative of the appellant and from whose house victim (Panmuni Hembram) has been recovered, has been examined as P.W.9. This witness has supported the prosecution case. This witness (P.W.9) has categorically stated that Upendra Tudu (appellant) is his brother-in-law ('sala') and Upendra came to his house along with a girl and both were taken by the Police. The father's name of the boy is Khepa Tudu. This witness has categorically stated that the girl who was brought by his brother-in-law, is not his relative. Khepa Tudu is his uncle-in-law.
Jamil Ahmad Ansari, Investigating officer of the case, has been examined as P.W.10. This witness has supported the prosecution case to the extent that father of the Upendra (appellant) is a chowkidar and the girl was recovered from the Village- Rajpara from the house of one Brihaspati Murmu (P.W.9), at the instance of Lekha Tudu, where he was also present, as such, this witness has also supported the prosecution case.
13 . Heard, Mr. Indu Shekhar Gupta, learned counsel for the appellant and Mr. P. K. Appu, learned Additional Public Prosecutor appearing for the State.
This Court has also perused the records including the First Information Report, framing of charge, evidence of ten prosecution witnesses, exhibits up to Exhibit-2 on behalf of prosecution and statement of accused/appellant recorded under Section 313
[Cr. Appeal (SJ) No.154 of 2004]
Cr.P.C. as well as impugned judgment.
This Court has scrutinized the evidence of prosecution witnesses. From perusal of the evidence, it appears that there is consistency in the evidence of the prosecution witnesses to the effect that victim (Panmuni Hembram), aged about 14 years was kidnapped by Upendra Tudu, while she was returning from the shop and initially she was taken to the house of Upendra (appellant) where she was raped by the appellant and subsequently the victim was taken to the house of Randhan Marandi (P.W.3), who has also supported the prosecution case. Later on, the appellant took the victim to Village- Rajpara at the house of cousin brother-in-law (Brihaspati Murmu- P.W.9), where the victim was again subjected to rape by the appellant. Doctor (P.W.8) has opined the age of the victim to be 14 –16 years, but she is not clear as to whether the victim has been raped or not. The statement of victim regarding rape committed by the appellant, cannot be disbelieved. The Investigating officer (P.W.10) has also been examined in this case and has also supported the prosecution case.
14 . Under the circumstances, this Court is of the opinion that the learned trial court has rightly convicted the appellant under Sections 376, 366 and 368 I.P.C. and accordingly, the Judgment of conviction and order of sentence, both dated 12.12.2003, passed by the learned 6th Additional District & Sessions Judge, (F.T.C.), Dumka, in Sessions Case No.96 /94, 126/95, and 151/03 is upheld and affirmed.
15 . In the result, this Criminal Appeal stands dismissed.
16 . The bail bonds of the appellant are hereby cancelled and directed to surrender before the court below to serve rest of the sentence.
17 . Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.
(Kailash P r asad Deo, J.)
Jharkhand High Court, Ranchi Dated 5th September, 2018. sandeep/
3 issues framed by the court
Whether the High Court should uphold the conviction and sentence awarded by the trial court for offences of abduction, kidnapping, and rape.
Whether the evidence of the victim and prosecution witnesses is sufficient to sustain the conviction despite the medical officer's inability to give a definite opinion on rape.
Whether the High Court should dismiss the appeal and cancel the appellant's bail.
1 provisions across 1 enactments
Upendra Tudu
State of Jharkhand
Kailash Prasad Deo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
