Allowed

Shibu Francis Marandi Alias Shibu Alias Francis Marandi v. the State of Jharkhand

Jharkhand HC8 Sept 2020Cr.Rev./105/2020

Case brief

AI extract

What is this about?

Single judge revisited juvenile conviction for rape under IPC 376 and POCSO. Found prosecution failed to explain non-examination of eyewitness and cited medical evidence. Held sole testimony unreliable; acquitted petitioner.

What did the court decide?

Impugned judgments and orders set aside; petitioner directed to be released from observation home forthwith.

Shibu Francis Marandi Alias Shibu Alias Francis… — Criminal Trial and Appeal | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 105 of 2020

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Shibu Francis Marandi @ Shibu @ Francis Marandi

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.... Petitioner

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Versus

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The State of Jharkhand ….. Opposite Party

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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA

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For the Petitioner :Mr. Shashi Kumar Verma, Advocate For the State :Ms. Ruby Pandey, A.P.P

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06/Dated: 08.09.2020

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1. This revision is directed against the judgment dated 05.12.2019 passed by the learned Additional Sessions Judge-I, Pakur in Criminal (Juvenile) Appeal No.25 of 2018, affirming the order dated 26.06.2018, passed by the learned Principal Magistrate, Juvenile Justice Board, Pakur in Trial (Inquiry) No.13 of 2018, arising out of Amrapara P.S. Case No.12 of 2015, corresponding to G.R. No.223 of 2015, whereby the petitioner was found guilty for the offence under Section 376 of the Indian Penal Code and section 4/8 of POCSO Act, and ordered to be detained for three years in the Special Home.

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2 . The case of the prosecution as unfolded in the fardbeyan of Birdhan Tudu-(P.W.-2), the father of the victim, is that on 24.02.2015 his daughter (the victim) ,aged 15 years, alongwith her friend Talamay Tudu had gone for bathing to the river. While they were bathing then the petitioner Shibu Francis Marandi came there and after forcibly felling his daughter on the ground, committed rape on her. On witnessing the incident Talamay Tudu ran away and came and informed his wife whereupon he reached the place of occurrence but, by then, the accused had fled. They went to Hopna Hansda, the Jog Manjhi of the village, and told him about the incident, whereafter the panchayati was convened but the accused did not participate in the panchayati, consequent thereto, he was told to go and lodge the complaint with the police.

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3 . On the basis of the written report Amrapara P.S. Case No.12 of 2015 was registered under Section 376 of Indian Penal Code and section 4/8 of POCSO Act. After investigation the charge-sheet was submitted and the petitioner faced the eqnuiry before the Juvenile Justice Board, Pakur. On the basis of the evidence led in the enquiry the Board found him guilty and passed the order/judgment affirmed by the impugned judgment.

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4 . During enquiry the prosecution examined altogether six witnesses. P.W.-1- Hopanmay Soren, P.W.-2-Birdhan Tudu- the informant and P.W.-3- Suresh Tudu are the mother, father and brother respectively, of the victim-girl. P.W.-4- the victim-girl, P.W.-5

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Nawal Kishor Prasad the Investigating Officer, and P.W.-6-Dr. Anita Sinha who conducted medical examination of the victim.

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Prosecution has proved Ext.-1- the signature of the victim on the medical report prepared by P.W.-6, Ext.-2- the signature of the prosecutrix on the statement recorded under Section 164 Cr.P.C; Ext.-3 the signature of the prosecutrix on the written report. Ext.-4 the formal- F.I.R,; Ext. 5/1 the report of the Medical Board with respect to assessment of age of the victim and Ext.-5 the medical report prepared by P.W.-6.

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5 . Learned counsel for the petitioner has contended that the medical cum injury report and the testimony of Doctor does not support the allegation of commission of rape. It is submitted that the victim has made improvement and embellishment in her testimony. It is argued that there is no explanation by the prosecution for non-examination of any independent witness. That the court below has failed to appreciate and consider, the fact, that P.Ws. 1, 2 and 3 are highly interested witnesses as they are the mother, father and brother of the victim. It is submitted that suggestions were given to the victim that she had lodged the case because the petitioner's family had refused to solemnize the marriage of the petitioner with the victim. It is argued that the testimony of the victim is not corroborated by the medical evidence and this casts a grave doubt on the case of the prosecution. It is submitted that the prosecution has not been able to prove the charge under Section 376 of the Indian Penal Code and Section 4 and 8 of the POCSO Act against the accused beyond all reasonable doubt, consequently the petitioner is entitled to be acquitted of the charges by giving him the benefit of doubt.

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6 . Per contra, learned A.P.P has contended that the settled proposition of law is that the conviction in a rape case can be based on the sole testimony of the victim and P.W.-4 the victim-girl has deposed that the petitioner had committed rape on her which is supported and corroborated by P.Ws.1, 2 and 3 the mother, father and brother of the victim. It is submitted that the testimony of the victim has not been dented in cross-examination and contradictions, if any, are minor. It is argued that the medical examination of P.W.-4 was done by P.W.-6 after three days of occurrence, therefore no injury was found on her private part or on the body. It is argued that the court below on meticulous examination and discussion of the evidence has found the petitioner guilty of the aforesaid offence and the impugned judgment does not suffer from any perversity in findings warranting any interference by this Court.

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7 . Heard the rival submissions. On perusal of the evidence on record it appears from the testimony of P.W.-4 the victim and her statement recorded under Section 164 Cr.P.C., that she has categorically stated that she and her friend Talamay Tudu had gone for bathing to the river and at that time the accused/petitioner had

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come and after forcibly felling her on the ground committed rape on her. She has stated that Talamay Tudu ran away and informed her parents who came to the place of occurrence but by that time the accused had fled. It is evident from the testimony of P.W.-4 and the recital in F.I.R that Talamay Tudu had witnessed the incident and it was on her on information that P.W.-1, P.W.-2 and P.W.-3 had come to the place of occurrence. No doubt the settled proposition of law in rape cases is that conviction can be based on the sole testimony of the victim of sexual assault provided the testimony of the victim is credible and inspires confidence and is found to be of sterling quality as observed by Supreme Court in catena of decisions.

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In Raju v. State of Madhya Pradesh: (2008) 15 SCC

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133 the Supreme Court, on elaborate discussions of several decision has observed as under;-

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“…... 10. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should not be suspected and should be believed, more so as her statement has to be evaluated on a par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which comes before the court.”

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8 . It is evident from the aforesaid decision that the proposition of law, that sole testimony of the victim can be relied upon for conviction of an accused, cannot be applied in a mechanical manner. In case the testimony of the prosecutrix fails to inspires confidence or is not worthy of credence then it cannot be relied upon for convicting the accused. In Sadashiv RamraoHadbe v. State of Maharashtra (2006) 10 SCC 1992, the Supreme Court has observed at para 9 as under;-

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“ 9. It is true that in a rape case the accused could be

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convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surrounding circumstances are highly improbable and belie the case set up by the prosecutrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.”

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9 . In view of the proposition of law as propounded by the Apex Court, now the question which falls for determination is whether, in the case at hand, the prosecution has been able to adduce credible evidence to prove the charges against the petitioner and whether the evidence of the victim i.e., P.W.-4 and P.W.-1, 2 and 3 inspires confidence and appears, to be absolutely trustworthy, unblemished and reliable for convicting the petitioner ?

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10 . On going through the the testimony of P.W.-4 it appears that in her cross-examination she has stated that when the petitioner felled her to the ground she received bleeding injury and there were blood stains on her blouse. She has stated that she had handed over her blouse to the police and the police had prepared the seizure list and she had signed on the seizure list. She has stated that she had shown the injury to the Doctor i.e., P.W.-6, but P.W.-6 the Doctor has categorically stated that she did not find any sign or mark of injury on the body of the victim. P.W.-5 the Investigating Officer in cross-examination has stated that P.W.-4 the victim-girl, had not produced any clothes before him and he did not find any mark of struggle at the place of occurrence. P.W.-5 has stated that he had not seen any injury on the body of the victim. P.W.-6 the Doctor has deposed that she did not find any mark of violence on the body or on the genitalia of the victim. She has stated that no spermatozoa were found and she did not find any sign of sexual assault. In cross-examination P.W.-6 has admitted that if a person is felled to the ground then injury is likely to occur on the back or body of such a person. The defence has given suggestion to P.W.-1 and P.W.-2 that they wanted to solemnize the marriage of P.W.-4 with accused/petitioner and suggestion has been given to P.W.-4 that she has falsely implicated the petitioner since the family of the petitioner refused to solemnize the marriage of petitioner with the victim.

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11 . At this juncture it is pertinent to take notice that the prosecution has not offered any plausible explanation as to why Talmay Tudu, who had witnessed the occurrence and informed P.Ws. 1 and 2, was not examined. As per the FIR, P.W.-2 has stated that he had informed the Jog Manjhi of the village, i.e., Hopna Hansda, about the incident and a Panchayati was convened in the matter. It appears that neither the Jog Manjhi, i.e., Hopna Hansda nor any members of the panchayati have been examined nor the prosecution has offered any explanation for non-examination of independent witnesses.

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12 . As noticed the medical evidence does not corroborate the manner of occurrence as narrated by P.W.-4.

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In this context it is relevant to refer to the judgment rendered in Ramanand Yadav v. Prabhu Nath Jha and Ors. (2003) 12 SCC 606 , wherein it has been observed by the Supreme Court that so far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per oral testimony, then only in a given case the court has to draw adverse inference.

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13 . In the backdrop of the settled legal proposition and on examination and consideration of the evidence adduced by the

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prosecution it is abundantly clear that the prosecution has not offered any explanation for non-examination of independent witness and it has withheld material witness. Resultantly a doubt is created regarding the veracity of the case of the prosecution. The creditworthiness of P.W.-1, 2, 3 and 4 is also doubtful.

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At this juncture it is necessary to emphasize that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. However, the aforesaid principle is to be applied, considering the facts and circumstances of the case and the thumb rule is whether the prosecution has proved its case beyond reasonable doubt and the paramount consideration for the court is to ensure that miscarriage of justice is prevented.

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14 . In view of the discussion made hereinabove and the inherent contradictions in the testimony of the prosecutrix and the emergent broad features of the case, in my robust opinion the testimony of the prosecutrix does not inspire confidence and is not of a sterling quality to be relied upon. As discussed there is no explanation by the prosecution for non-examination of Talamay Tudu, the eye witness to the occurrence and the members of the panchayat or the Jog Manjhi, consequently an adverse inference is drawn against the prosecution. In view of the exposited facts a shadow of doubt is cast on the credibility of the prosecution case, resultantly the benefit of doubt accures in favour of the petitioner, and he is acquitted of the charges.

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15 . As a result the judgment dated 05.12.2019 passed by the learned Additional Sessions Judge-I, Pakur in Criminal (Juvenile) Appeal No.25 of 2018, and the judgment/order dated 26.06.2018, passed by the learned Principal Magistrate, Juvenile Justice Board, Pakur in Trial (Inquiry) No.13 of 2018, arising out of Amrapara P.S. Case No.12 of 2015, corresponding to G.R. No.223 of 2015, are hereby, set aside and the petitioner is directed to be released forthwith from the observation home.

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16 . The revision stands allowed consequently I.A. Nos. 1509 of 2020 and 3476 of 2020 are, hereby, disposed off.

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(AMITAV K. GUPTA, J.)

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Rohit / -

Shibu Francis Marandi Alias Shibu Alias Francis Marandi v. the State of Jharkhand

Case brief

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Shibu Francis Marandi Alias Shibu Alias Francis Marandi v. the State of Jharkhand

Case brief

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