Britius Dungdung  Brisius Dungdung Vs State of Jharkhand

2025:JHHC:10473

Cr. Appeal (S.J.) No. 1488 of 2006

[Against the judgment and order of conviction and sentence dated 31.03.2006 passed by Additional Sessions Judge, Simdega in S.T. No. 13 of 2005 arising out of Thethaitangar P.S. Case No. 47 of 2005 (G.R.) Case No. 335 of 2004]

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Britius Dungdung @ Brisius Dungdung aged about 25 years, Son of Pitrush Dungdung, Resident of Village:- Taraboga, Deepatoli, P.S.:- Thethaitangar, District-Simdega.

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…. Appellant

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Versus

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The State of Jharkhand ….. Respondent

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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-------- For the Appellant : Mr. Parth Jalan, Amicus Curiae. For the Respondent : Mr. Shiv Shankar Kumar, A.P.P.

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JUDGMENT

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C.A.V. On 07.01.2025 Pronounced On: 03/04/2025

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Per- Pradeep Kumar Srivastava, J.

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Heard learned counsel for appellant Mr. Parth Jalan, Amicus Curiae as well as learned Additional Public Prosecutor appearing for the State Mr. Shiv Shankar Kumar.

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2. Present appeal is directed against the judgment and order of conviction and sentence of the appellant dated 31^st March, 2006 passed by Additional Sessions Judge, Simdega in Sessions Trial No. 13 of 2005 whereby and where under the appellant has been held guilty and sentenced for the offence under Section 376 of the I.P.C. and directed to undergo R.I. for seven years.

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FACTUAL MATRIX

3. Factual matrix giving rise to this appeal is that on 03.11.2004, on the occasion of Sohrai festival, a dance programme was organized in village Tarawoga, Deepatoli where informant’s daughter aged about 11 years along with her brother-in-law had gone to participate in the programme. It is further alleged that at about 10:00 PM, appellant Britush Dundung forcibly lifted the daughter of the informant and carried towards a dilapidated house surrounded with bushes and forcibly committed rape upon her. It is further alleged that when victim girl raised alarm, then several villagers attracted and went towards the place of occurrence, but the accused managed to flee away.

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On the basis of above information, F.I.R. being Thethai Tanger P.S. Case No. 47 of 2004 was registered for the offence under Section 366A/376 of the I.P.C. and after the conclusion of investigation, charge-sheet was submitted for the aforesaid offences against the sole appellant and accordingly charges were framed. Appellant denied from charges levelled against him and claimed to be tried and after conclusion of trial, impugned judgment and order has been passed which has been assailed in this appeal.

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4. Learned counsel for the appellant has submitted that learned trail court has skipped the mandatory provision of Section 235 (2) of the Cr.P.C. and without hearing the argument of accused, arrived at the conclusion of guilt and pronounced the judgment. The learned trial court has whispered not a single word that as to what was argued on behalf of the appellant in his defence. The learned trial court has simply translated the evidence of witnesses and without appreciating, analysing and evaluating their intrinsic

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value has been swayed upon the general testimony of the witnesses and held the appellant the guilty for the offence under Section 376 of the I.P.C. It is further submitted that the genesis, occasion, place and manner of occurrence as stated by the prosecution finds no corroboration from any other evidence. The most vital thing is that the victim girl is alleged to have only aged about 11 years proceeded from her house with her brother-in-law, but she has failed to mention the name of her brother-in-law upon court question during cross-examination. She has stated in her statement before the police that she was talking with her brother-in-law at the time of occurrence. She has also admitted that she did not disclose about the occurrence to anyone and later on she told to her parents. The witnesses examined by prosecution have given complete go bye to the statement of victim.

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5. It is further submitted that on the occurrence of Sohrai festival admittedly, there was crowd of 100 to 150 people and according to victim girl, it was dark night and she was talking with her brother-in-law, then how it was possible that the appellant would lift the victim girl from behind and dragged her to more than 200 to 250 yards by gagging her mouth. The victim girl has also given a contradictory statement regarding manner of occurrence and specifically stated that when the accused took her towards the dilapidated house, tore her undergarments and forcibly laid her down in a ditch, then she raised a loud alarm and after hearing commotion, several persons assembled at the place of occurrence and she was brought to her house in naked position, but none of the local villagers have corroborated the aforesaid testimony of the victim. It is further submitted that the victim girl has stated that her wearing garments were not seized by the police. She

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has also stated that she was dropped from the height of 3 to 4 feet in the ditch on hard surface and fell down on back side, due to which she sustained some scratches. Thereafter, rape was committed upon her about 5 to 10 minutes. She cannot identify any of the witnesses due to darkness of night. It is further submitted that no external or internal injury has been found on the body of the victim girl during her medical examination and hymen was also found intact. There was no clinical or medical evidence establishing commission of rape on the victim girl. It is clear that it is an out and out a false case lodged by the father of the victim girl due to previous enmity and village politics. The learned trial court has failed to properly appreciate the evidence of victim as a whole considering the materials elicited during cross-examination in the light of testimony of other witnesses of facts. Therefore, conviction and sentence of the appellant is absolutely unwarranted under law and beyond the weight of evidence available on record which is fit to be set aside.

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6. On the other hand, learned A.P.P. appearing for the State has defended the impugned judgment and order of conviction and sentence of the appellant and submitted that the learned trial court has meticulously considered overall evidence available on record and finding no reason to disbelieve the prosecution story and the testimony of the victim girl. Therefore, conviction and sentence of the appellant, does not require any interference. Hence, this appeal is fit to be dismissed.

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7. For better appreciation of the case, I have to take brief resume of the prosecution evidence.

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The most important witness is the victim girl, who has been examined as P.W.4 is the victim girl who has disclosed her date of birth as 06.06.1993. According to her evidence on 03.11.2004 at about 09:10 PM she along with her brother-in-law was present in the village arena on the occasion of Sohrai for singing and dancing and was also talking with her brother-in-law meanwhile, the present appellant came there and lifted her in his lap and took her towards a ditch and laid her down with force then, she raised alarm, but the accused brought her in a house where no one was residing, tore her clothes. It is further alleged that her mouth was gagged by one hand, but when he lifted his hand, then she raised a loud alarm, but the accused committed rape upon her and when the persons assembled in the dance party arrived, the accused fled away. The members of dance party brought her to her home in naked condition.

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In her cross-examination, she admits that on the occasion of dance party about 150 people were assembled and it was dark night. The accused caught hold of her from behind and lifted after gagging her mouth by putting hand on her eyes. She was forcibly laid down and dropped from 3-4 feet height in the ditch and she fell on back side portion which was injured. She also admits that near the ditch no villager came to rescue her. She brought to the house of Jasinta Bilung where she was raped about 5-10 minutes. She further clarified that she has sustained injuries on back and scratches on her right hand. She also states that Serophina Kullu (P.W.2) and Jasinta Bilung had also reached at the place of occurrence, but she could not identify them. The accused was wearing white colour full shirt and a full pant. She also states that her undergarments and upper clothes were also torn which were thrown

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by the persons who had come for inquiry. She further states that she cannot tell the name of her brother-in-law, but in her statement before police, she has stated that at the time of occurrence, she was talking to her brother-in-law. She also admits that as regards above incident, she told none else, but to her parents. She denied the suggestion of defence about any land dispute between the father of this witness and family members of the accused due to which she has falsely implicated the accused in this case.

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P.W.3 Fedarik Dungdung is the father of the victim and also informant of this case. According to his evidence at about 09:00 PM on 03/11/2004, he was present in his house and taking rest, meanwhile Serophina Kullu (P.W.2) along with her mother Magreat Kullu (P.W.1) and asked about his daughter, then he disclosed that she had gone to attend dance party. He further deposed that in the meantime, he heard some noise of his minor daughter aged about 11 years, coming from a dilapidated house. He did not go there, but some members of dance party and his wife went there and brought his daughter to home then, she (victim) disclosed that the accused (Brituish Dungdung) has committed rape with her. There was no clothes on her body except a blouse. This witness has further deposed that prior to the occurrence, his daughter went to the house of Magreat Kullu (P.W.1), thereafter, in the night this witness along with other villagers went to the house of accused (Brituish Dungdung) who was at his home, but did not open the door. When this witness and other villagers attempted to broke open the door, then he came out. The accused was caught and interrogated strictly, but he denied from his guilt and started pelting stones. He has further stated that his daughter also disclosed before the accused about the commission of rape with her, but he

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paid no heed. Then, in the next day morning, case was lodged. He has proved the written report in his writing and signature and also signed by his wife and victim daughter.

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In his cross-examination, he admits that he has only one daughter and two sons who were not present at the time of incident. He came to know about the occurrence from his daughter and denied the suggestion of defence about false implication due to land dispute with the appellant.

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P.W.1 Magreat Kullu is a hearsay witness and she came to know about the occurrence next day morning through victim girl. Therefore, the evidence of this witness is also not helpful to the prosecution. P.W.2 Serophina Kullu is also the member of dancing party and she also not an eye-witness of the occurrence rather clearly states that she came to know in the same night from the victim girl that the accused (Brituish Dungdung) has committed rape with her.

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In her cross-examination, she clearly states that on the occasion of dancing, she could not have noticed that the victim girl was present there or not and the place of occurrence was also not disclosed to her.

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P.W.5 Jai Singh Kerketta is private watchman. According to his evidence, on 03.11.2004 at about 08:00 PM he was blowing band and others villagers were dancing, thereafter, he returned to his home for taking dinner. At about 02:00 AM, in the night the informant told him that the accused (Brituish Dungdung) has committed rape on his daughter. Therefore, this witness is hearsay witness and having no personal knowledge of the occurrence.

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P.W.6 Sebastin Dungdung is also a hearsay witness who came to know about the occurrence on the next day morning through rumour in the village.

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P.W.7 Kapil Dev Prasad Keshri is the partial Investigating Officer of this

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case who has been simply submitted charge-sheet after finding sufficient evidence from the previous investigation.

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P.W.8 Ratan Kumar Singh is the first Investigating Officer of this case who has proved the formal F.I.R. which is marked as Exhibit-2. He recorded the restatement of informant and also recorded the statement of the victim girl and sent the victim for medical examination at Tanger hospital. He has visited the place of occurrence which is dilapidated house of Silvanas Kerketta surrounded with bushes. He has also recorded the statement of Serofina Kullu, Magreat Kullu, Jai Singh Kerketta, Sabestian Dungdung, Lutami Dungdung etc. arrested the accused and also recorded his statement and obtained the medical report of the victim girl. Thereafter, he was transferred and further charge of investigation was handed over to the then Officer-In-Charge.

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In his cross-examination, he admits that he has not recorded the statement of mother and sister of the victim girl and he has also not seized the clothes of victim girl during the investigation.

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P.W.9 Dr. Veena Murmu who has examined the victim girl on 04.11.2004 and found following:-

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(i) No external or internal injuries found on the body of victim girl.

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(ii) Hymen intact

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(iii) Tenderness of the Mucosa at the introituses.

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(iv) No foreign hairs found in pelvic area.

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8. On the other hand the case of defence is denial from occurrence and false implication due to previous land dispute with the informant.

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9. From the aforesaid discussion, it is clear from the evidence that the victim girl as well as the informant have suppressed the facts and implicated the appellant due to previous enmity. Material facts from disclosure and the witnesses alleged to be eye-witness of the occurrence namely, P.W.1 Magreat Kullu, P.W.2 Serofina Kullu, P.W.5 Jai Singh Kerketta, P.W.6 Sebestian Dungdung materially affected the prosecution story, claiming them to be hearsay witness of the occurrence therefore, the claim of the prosecution that victim was brought to her house by the local villagers in naked condition is absolutely false story. The victim herself admits that her wearing clothes were seized by the police which do not find corroboration from the evidence of first Investigating Officer. Victim has no sister at all, but she disclosed that she was talking with her brother-in-law at the time of the occurrence and in her cross-examination also denied to tell the name of her brother-in-law then, who was the real person talking with the victim girl has not been made a witness in this case. The informant has also taken a contradictory stand that after hearing hulla of his victim daughter, he went to place of occurrence, but immediately resile from that statement and stated that mother of the victim along with co-villager went to place of occurrence. It is highly surprising that the mother of the victim who might be an eye-witness of the occurrence has not been examined by the prosecution. I further find that not only on the factual aspects of the matter, but also on account of medical examination of the victim, the story of commission of rape appears to be false and fabricated one. The age of the victim has been stated as eleven years old. No external or internal injury on her body was found. Although, the victim herself has claimed that she was dropped from the height of 3-4 feet in a ditch by the

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accused. She also sustained injuries on her back side. Her medical examination was also promptly conducted, but even any bruise or abrasions have not been found on her body. She has also stated about the commission of forcible sexual intercourse by the accused who is a grown up boy and the victim is tender year girl. In spite of that hymen was found intact also belies the prosecution story. Not only this there was no injury on vagina or private part which is also not possible if the victim’s evidence is taken to be gospel truth.

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10. It appears that the learned trial court has inadvertently escaped from the considering the aforesaid material inconsistencies appearing in the prosecution evidence which falsify the prosecution story as alleged in the F.I.R and also deposed by the victim under the influence of her father. The charge of rape levelled against the appellant does not appear to be proved conclusively by the prosecution. The aforesaid glaring inconsistencies/discrepancies and material suppression of real facts by the prosecution makes the prosecution story absolutely doubtful.

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11. In view of above discussion and reasons, I find substance in the points of arguments raised on behalf of the appellant and merit in this appeal. Therefore, impugned judgment and order of conviction and sentence is hereby set aside and this appeal is allowed.

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12. Considering the proper assistance of learned Amicus Curiae in disposal of this case, we direct the Jharkhand High Court Legal Services Committee to pay remuneration of Rs.2,500/- to Mr. Parth Jalan, the learned Amicus Curiae.

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13. Appellant is on bail, hence, he is discharged from the liability of bail bond and sureties are also be discharged.

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14. Let a copy of this judgment along with trial court records be sent back to the court concerned for information and needful.

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15. Pending I.As, if any stands disposed of.