Hari Ram Gope Vs State of Jharkhand

Criminal Appeal (S.J.) No. 1115 of 2012

[ Against the judgment of conviction dated 10.09.2012 and order of sentence dated 14.09.2012 passed by learned Additional Sessions Judge-III, East Singhbhum, Jamshedpur in Sessions Trial No.165 of 2009]

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Hari Ram Gope .... --Versus-The State of Jharkhand ….

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.... .... …. Appellant

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…. …. …. Respondent

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For the Appellant : Mr. Ravi Prakash, Advocate For the State : Ms. Nehala Sharmin, Special P.P.

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----- PRESENT

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HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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By Court

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1. This criminal appeal is directed against the judgment of conviction dated 10.09.2012 and order of sentence dated 14.09.2012 passed by learned Additional Sessions Judge-III, East Singhbhum, Jamshedpur in Sessions Trial No.165 of 2009 by which the appellant has been convicted under Section 306 of the Indian Penal Code and has been acquitted of the charges under Section 376(2)(g) of the IPC.

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2. Fardbeyan of the victim aged about 20 years recorded in MGM Hospital, Emergency Ward, Jamshedpur is the basis on which Sonari P.S. Case No.135 of 2008 registered under Sections 306/511/34 of the IPC on 12.12.2008.

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3. As per the prosecution case, the victim girl could not overcome the trauma of gang rape and subsequent teasing and stalking committed by this appellant along with another co-accused, and consequently, she took the fatal step and immolated herself.

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4. As per the statement of the informant on 11.12.2008, she was unable to sleep because of past memory of incidence that took place with her five months ago. Gang rape was committed by two boys namely Hari and Babu which she had not disclosed on the account of social ignominy. Both of them used to stalk her while she used to go to attend her tuition class. When being constantly suffering from sleeplessness due to the said incidence, she immolated herself by dousing Kerosene Oil. FIR was lodged against both the accused persons.

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5. After investigation, charge sheet was submitted under Sections 376, 306/34 of the IPC and the accused was put on trial for the offence under Sections 376(2)(g)/306 of the IPC. Altogether six witnesses were examined on behalf of prosecution and one witness was examined as court witness. Apart from the prosecution evidence, FIR, the injury report and the other relevant documents have been proved and marked as exhibit.

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1

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6. It is submitted by learned counsel on behalf of the appellant that two independent witnesses P.W. 1 and P.W. 2 have not at all supported the prosecution case and were declared hostile. Prosecution case rests on the testimony of FIR which has been treated as dying declaration of the victim and the testimony of her mother and father, who were examined as P.Ws. 4 and 5.

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7. It is submitted by learned counsel on behalf appellant that contusion was found on the left temporal area and Doctor has opined that such injury may be caused by hard and blunt substance. It is submitted that the alleged incidence took place five months ago regarding which no complaint was made and the charge of rape has not been proved and the accused has been acquitted of the charges.

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8. On the point of sentence, it is submitted that the appellant has already undergone imprisonment for four years and thereafter, he was enlarged on bail by this Court and therefore, the prayer is made to reduce the sentence.

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9. It is submitted by the learned A.P.P. that the statement of the deceased victim was recorded in the hospital where she has been narrated the incidence the said statement being her last statement regarding as to the cause of her death and circumstances which resulted her death will squarely within the meaning of dying declaration under Section 32(1) of the Evidence Act. Illustration (a) to Section 32(1) is as under:

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“The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or the question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow. Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant fact.”

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10. It is further argued that dying declaration being substantive evidence, is sufficient to prove the charge of abetment to commit suicide.

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11. Having considered the submissions advanced on behalf of both sides and materials on record, there cannot be any doubt that the self-statement of the victim (Exhibit 2) can be treated as dying declaration. In the said statement, the deceased has stated that not only gang rape was committed with her by both the accused persons, but also she continued to be sexually harassed by them when she left her home and used to go outside. The cumulative effect of the acts on the part of the accused persons resulted in her depression and insomnia. This was the psychological atmosphere which drove her fatal step.

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12. In order to prove charge under Section 306 of IPC, the prosecution has to establish; (i) that a person committed suicide, and (ii) that such suicide is abetted by 2

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the accused. Suicide is not a shred of doubt in view of the objective found in the post mortem examination report (Exhibit 1) has proved by the Doctor. The Doctor has opined that death was due to burn injuries and its complications, in the crossexamination that such types of burn injuries may not be caused accidently.

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13. Now the question is whether the appellant abetted the offence?

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I do not find any reason to differ with the findings recorded by the learned trial Court. Merely because the earlier sexual assault was not reported by the victim out of shame, that cannot by itself be a circumstance to disbelieve the dying declaration as well as the testimony of her parents. As discussed above that the unfortunate victim was subjected to sexual harassment which made her life unbearable resulting in the incidence. Against the consistent prosecution case of rape and sexual harassment resulting in suicide by deceased, no alternative hypothesis has been put forward on behalf of the defence to remotely suggest that the suicide was caused by some other reasons. Neither in the suggestions given to the witnesses, nor in the statement under Section 313 Cr.P.C. anything has come to suggest false implication of the appellant. Thus, the charge or under Section 306 of the IPC is proved beyond the shadow of all reasonable doubts.

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14. Considering the nature of offence, sentence imposed by the trial Court needs no interference.

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Criminal Appeal Stands dismissed.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, 27^th June, 2024 AFR/Anit

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Hari Ram Gope v. State of Jharkhand

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Hari Ram Gope v. State of Jharkhand

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