Dismissed

Bishu Purty v. State of Jharkhand

Jharkhand HC5 Sept 2018Cr.A(SJ)/520/2004

Case brief

AI extract

What is this about?

In this criminal appeal, the appellant challenged his conviction and sentence for rape under Section 376 IPC, arguing that the absence of spermatozoa in the medical report created a reasonable doubt. The High Court rejected this submission, relying on the consistent testimony of witnesses and the appellant's admission in the Section 313 statement that he took the victim on a bicycle.

What did the court decide?

Criminal appeal dismissed; bail bonds cancelled; appellant directed to surrender to serve the remaining sentence. Leave Certificate of Reference (L.C.R.) directed to be sent to the trial court.

Bishu Purty Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (SJ) No.520 of 2004

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(Against the Judgment of conviction dated 04.03.2004 and order of sentence dated 05.03.2004, passed by learned Additional Sessions Judge, Fast Track Court-II, Chaibasa, in Sessions Trial No. 186 of 2000).

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Bishu Purty son of Shri Sangi Purty

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resident of village- Barbil, P.O.-Chaibasa, P. S.- Muffassil, District – Chaibasa, Singhbhum (W). … Appellant

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Versus

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The State of Jharkhand … Respondent(s)

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P R E S E N T HON’BLE MR. JUSTICE KAILASH PRASAD DEO

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For the Appellants : Mr. Aditya Raman, Advocate

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: Mr. R. P. Gupta, Advocate.

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For the State : Mr. Ram Prakash Singh, Additional Public Prosecutor.

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By Court:- Heard, learned counsels for the appellant, Mr. Aditya Raman assisted by Mr. R. P.

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Gupta and Mr. Ram Prakash Singh, learned Additional Public Prosecutor, appearing for the State.

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2. The instant Criminal appeal is directed against the judgment of conviction dated 04.03.2004 and order of sentence dated 05.03.2004, passed by the learned Additional Sessions Judge, Fast Track Court-II, Chaibasa, in Sessions Trial No. 186 of 2000, whereby, the sole appellant has been convicted for the offence committed and punishable under Section 376 of the Indian Penal Code and awarded Rigorous Imprisonment for seven years and a fine of Rs.5,000/- out of 5,000/-, the fine amount of Rs.4,000/- shall be paid to the victim Kadmavati Sundi by way of compensation and Rs.1,000/- shall be deposited in the Treasury, in default of payment of fine the appellant shall undergo further Rigorous Imprisonment for six months.

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3. The prosecution case, is based upon, fardbeyan of Kadmavati Sundi (P.W.3) before the officer in-charge, Muffasil(Chaibasa) Police Station, on 23.08.1999 (Monday), at around 6.30 A.M., wherein the informant has stated, that on 21.08.1999, the informant came to Chaibasa from her village karketta at about 12.00 Hrs. She went to village Kaida to meet her sister Sukumati Haiburu. On 22.08.1999, she came to Chaibasa Bus-Stand at about 3.00 P.M. and went to Meena Bazar, Chaibasa. She met Bishu

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Purty(Appellant) and his two friends at Meena Bazar. After sometime Bishu Purty along with his two friends took the informant in a Hotel where they had snacks. After

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that Bishu Purty and his friend asked the informant to accompany them for village Barbil which was refused by informant but under pressure accompanied them. when they reached near Roro Bridge, informant was forcibly instructed to sit on the bicycle from where she was taken to village Barbil, where the informant changed her dress and wore Salwar Suit. After that Bishu Purty forcibly thrashed her on a cot and opened her apparels and forcibly committed rape. Bishu Purty after committing rape went out from the house and after sometime she was carried to village school by two boys. Where she was subjected to sexual assault by 7-8 persons forcibly and this act of sexual assault continued till 4.00 A.M. next day. In the morning, two persons brought her to Badi Bazar, Chaibasa and left her. The informant has sustained pain over her body and breast.

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4. On the basis of written report of the informant, Police instituted First Information Report bearing Sadar P.S. Case No. 47 of 1999, dated 23.08.1999, under Section 366/ 376(J) of the Indian Penal Code, which subsequently, converted into Muffasil P.S. Case no. 77 of 1999, dated 08.09.1999, under Section 376 (2J) of the Indian Penal Code.

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5. After investigation, the police submitted charge sheet vide charge sheet no. 124 of 1999, dated 30.11.1999, under Section 376 (2J) of the Indian Penal Code against the accused person.

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6. The cognizance of the offence has been taken vide order dated 07.12.1999 and the case has been committed to the Court of Sessions vide order dated 05.02.2000.

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7. The learned trial Court has framed charge against the appellant on 11.12.2000, under Section 376 of the Indian Penal Code, to which the appellant/accused pleaded his innocence and thus, he was put under trial.

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8. The prosecution, in order to prove its case, has examined altogether five witnesses and also exhibited documentary evidence up to exhibit six(6).

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Dr. B. B. Topno (Assistant Civil Surgeon) has been examined as P.W.1, Birendra Kumar Sundi (brother of the victim) has been examined as P.W.2, Kadmavati Sundi (victim) has been examined as P.W.3, B. K. Rajbanshi has been examined as P.W.4 and Kashi Kujur has been examined as P.W.5.

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Medical report has been proved and marked as exhibit 1, signature of Kadmavati Sundi on the fardbeyan has been proved and marked as exhibit 2, signature of Kadmavati Sundi in statement recorded under Section164 Cr.P.C has been proved and marked as exhibit 3, fardbeyan has been proved and marked as exhibit 4, forwading endorsement has been proved and marked as exhibit 4/1, F.I.R. of Sadar P.S. Case No.47 of 1999 dated 23.08.1999 has been proved and marked as exhibit 5 and F.I.R. of Muffasil P.S. Case No.77 of 1999 dated 08.09.1999 has been proved and marked as exhibit 6.

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9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 13.02.2004, wherein the appellant has admitted that, he has taken the victim on bicycle, but he has not committed rape. The appellant has further stated that, he has affair with victim Kadmavati Sundi, who wanted to solemnize court marriage with him, which was not acceptable to the appellant as such, he has been falsely implicated in the present case.

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Defence has also examined Sri B. R. Pandey, advocate as D.W.1, in support of his contention and has also adduced documentary evidence. The statement of the victim recorded under Section 164 Cr.P.C. has been marked as exhibit D.

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10. After hearing learned counsel for the parties and on the basis of material available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellant before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence.

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11. Heard, learned counsels for the appellant, Mr. Aditya Raman assisted by Mr. R. P. Gupta.

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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.

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Learned counsel for the appellant has further submitted, that the doctor,

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Dr. B. B. Topno(P.W.1) who has examined the victim, has not found any spermotozoa dead or alive and as such, the learned counsel for the appellant has submitted, that in absence of any sign of rape, as found by the doctor, and the said report has been proved and marked as exhibit 1, the appellant cannot be convicted under Section 376 of the Indian Penal Code.

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Learned counsel for the appellant has further submitted, that the statement of the victim has been recorded under Section 164 Cr.P.C. during investigation before learned Sub Judicial Divisional Magistrate, which has been marked as exhibit ‘D’, completely belies the prosecution case and as such, the appellant may be acquitted of the charge, by extending benefit of doubt in favour of the appellant, as the victim has categorically stated, during her statement recorded under Section 164 Cr.P.C. that appellant, after the occurrence, has solemnized marriage and nothing has been done forcefully upon her. On the basis of aforesaid material, learned counsel for the appellant has submitted that, appellant may be acquitted by giving benefit of doubt.

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12. Heard, Mr. Ram Prakash Singh, learned Additional Public Prosecutor appearing for the State.

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Learned counsel for the State has submitted, that impugned judgment of conviction and order of sentence is well founded and is based on the material available on record. The victim has supported her fardbeyan in her deposition as P.W.3.

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Learned counsel for the State has further submitted, that the appellant has admitted, during his statement recorded under Section 313 Cr.P.C., that the victim was with him and has taken her on bicycle, but he has not committed rape. If the victim has alleged against him of committing rape then, it is onus upon the defence to prove that no such offence has been committed by the appellant.

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Under the aforesaid circumstances, it is established that at least victim was with appellant at Barbil and in the evening and she was raped by this appellant. Victim has informed the police and her medical examination was held, which has been proved and marked as exhibit-2 and as such, the learned trial Court has rightly passed the judgment of conviction and order of sentence against the appellant.

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Learned counsel for the State has further submitted, that the statement of the victim, recorded under Section 164 Cr.P.C., is not a substantive piece of evidence, rather a material of investigation. During cross-examination, the victim (P.W.3) has categorically stated that her statement was recorded under Section164 Cr.P.C. under duress and as such, the statement of victim recorded under Section 164 Cr.P.C. cannot be relied upon.

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13. Heard, learned counsels for the appellant, Mr. Aditya Raman assisted by Mr. R. P. Gupta and learned counsel for the State, Mr. Ram Prakash Singh, Additional Public Prosecutor and perused the records, i.e First Informant Report, framing of the charge, evidence of five prosecution witnesses, three exhibits of the prosecution side and the statement of the appellant recorded under Section 313 Cr.P.C. and defence witness and documents up to exhibit D.

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This Court has scrutinized the evidence of the informant P.W.3, from which it appears that the informant-cum-victim of the case has fully supported her fardbeyan, which has been proved and marked as exhibit 4, during her deposition in the Court as P.W.3. The doctor has also examined the victim and the medical report has been proved and marked as exhibit-1. It appears that doctor has not found any spermotozoa dead or alive nor the doctor has given opinion about commission of rape, but from perusal of the injury report which has been proved and marked as exhibit 1, it appears that doctor has categorically stated that, after washing herself(victim) , it is not expected to get spermotozoa either dead or alive in her private part or semen is expected to be found. Presence of epithelial cells means that, there may be penetration of male organ in her private part.

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This Court has also perused the case diary exercising power under Section 172 Cr.P.C. from which, it appears that on 23.10.1999, victim has engaged private lawyer, who filed an application for recording her statement under Section 164 Cr.P.C., which was allowed by the Chief Judicial Magistrate, authorized learned S.D.J.M. Chaibasa to record the statement of the victim under Section 164 Cr.P.C. It is surprising to this Court that on the basis of the application filed by private lawyer, such statement of the victim has been recorded under Section164 Cr.P.C. The Hon’ble Supreme Court has held in plethora of decisions that statement of a victim

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should be recorded on requisition or application filed by the investigating officer, who can identify the victim and a private lawyer cannot satisfy the court with respect to the identification of the victim, whose statement has been recorded under Section 164 Cr.P.C. and as such, the statement of the victim recorded under Section 164 Cr.P.C. which has been proved and marked as exhibit D, is not a substantive piece of evidence upon which Court can put reliance. Furthermore, this Court has scrutinized the evidence of Birendra Kumar Sundi (P.W.2), who his brother of informant/victim. The evidence of P.W.3, Kadmavati Sundi(victim) and the evidence of B. K. Rajbanshi, investigating officer of the case, who has been examined as P.W.4. The evidence of P.W.2, P.W.3 and P.W.4 are consistent to each other and defence has also crossexamined them but nothing has been elucidated to disbelieve their testimony.

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Under the aforesaid circumstance this Court is of the opinion that, the prosecution has proved the case against the appellant, who has admitted during his statement under Section 313 Cr.P.C. that in the evening of the alleged date of occurrence, appellant has taken the victim on bicycle and as such, there is a sufficient corroborative material to prove that the appellant is guilty of an offence committed and punishable under Section 376 of the Indian Penal Code and the learned trial Court has rightly convicted the appellant under Section 376 of the Indian Penal Code.

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14. In the result, the instant criminal appeal stands dismissed.

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15. The appellant, who is on bail, his bail bonds is hereby cancelled and directed to surrender before the learned trial Court forthwith to serve out rest of the sentence. The learned trial Court is directed to take all methods under law for procurement of his attendance to serve out rest of the sentence, if appellant is not surrendering in the Court below.

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16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Dated 05.09.2018 Jay/-

Bishu Purty v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Bishu Purty v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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