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Judgment
Pradeep Kumar, J.—Heard learned Counsels for the appellants and learned Counsels for the State.
Since Cr. Appeal No. 447 of 2001 was filed by Charo Oraon, Cr. Appeal No. 776 of 2003 was filed by Sandeep Oraon and Cr. Appeal No. 385 of 2003 was filed by Santosh Oraon, these criminal appeals are arising out of the same judgment of conviction and order of sentence dated 10.05.2001 passed by Shri Prabhat Kumar Sinha No. II, learned 6th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 185 of 1999, by which judgment, he found all the three appellants guilty for the offence u/s 376(2-G) of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years and he also found them guilty for the offence u/s 366 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years. However both the sentences are directed to run concurrently.
It is submitted by learned Counsels for the appellants that the prosecution case is totally false and fabricated, since, it will appear from the evidences of the prosecutrix, P.W.1, Injeren Lakra that after the occurrence, which took place on 13.01.1998, the victim girl was roaming in the village and no information was given to the police station, and her written report was lodged after a long delay of one month and four days i.e. on 17.02.1998 and the prosecution has failed to give any satisfactory explanation for the long delay. Moreover, even the doctor has found that the victim girl had no injury on her body and she was carrying a pregnancy of twenty weeks, which goes back to the date of occurrence i.e. 13.01.1998, and her pregnancy of about sixteen week at the time of occurrence must have been damaged. In that view of the matter, the prosecution case is not probable and the appellants are entitled to get an order of acquittal and their conviction is bad in law and fit to be set aside.
On the other hand, learned Counsel for the State has opposed the prayer and supported the prosecution case and submitted that all the prosecution witnesses have supported the prosecution case and proved beyond reasonable doubts that the victim girl, Injeren Lakra was raped by all the three appellants and they have rightly been convicted. However, he says that the delay has been explained by the victim girl in her written report that since all the three accused persons were giving threat of killing, she could not inform the police in time.
After hearing both the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of written report filed by the victim girl on 17.02.1990 at 11.45 A.M. stating therein that one month before in the evening of 13.01.1998 at about 6 P.M. she had gone out for easing herself in the eastern side field of her house and while she was coming back to her house, then the accused persons Santosh Oraon, Sandeep Oraon and Charo Oraon caught hold of her and they dragged her to the eastern side. She made hulla, but all the three accused closed her mouth and asked her not to make hulla, otherwise, she will be killed. Then, they took her to the ''Baas bari'' of Teju Oraon, where they threw her on the ground and after opening her salwar, committed rape upon her one by one. After committing rape, they caught hold of her and took her towards the ''Bajpur Don'' and there they put her under a jack fruit tree, where they again committed rape upon her one by one. Thereafter, they took her to the house of Santosh Oraon, where the wife of Santosh Oraon and his sister-in-law were present. Then, they brought her to her house. Nobody was present in her house at that time. The victim girl went to her house and slept without informing anybody about the occurrence. In the next morning, she stated about the occurrence to her mother. She stated that the three accused persons came to her house and gave threats not to file any case in the police station, due to which, she could not inform about the occurrence to the police earlier. She had file this written report only after one month.
On the basis of said fardbeyan, police registered a case for the offence u/s 376/34 of the Indian Penal Code and after investigation submitted charge sheet against all the accused persons in the case.
Since, the case was exclusively triable by the court of Sessions, the learned C.J.M., after taking cognizance committed the same to the Court of Sessions and lastly learned 6th Additional Judicial Commissioner, Ranchi, who found the appellants guilty in the aforesaid section.
It appears that in course of trial, the prosecution has examined seven witnesses.
P.W.1 is Injeren Lakra, who is the informant in tin case.
P.W.2 is Eslin Lakra, who is the mother of the informant.
P.W.3 is Seema Lakra, who is the younger sister of the informant.
P.W.4 is Polus Toppo, who is the uncle of the informant.
P.W.5 is Ashok Kumar Mandal, who is the I.O. of the case.
P.W.6 is Dr. Minoo Mukherjee, who has examined the victim girl.
P.W.7 is Shukla Kumar Verma, Judicial Magistrate, who recorded the statement of the informant.
It appeals that the prosecutrix, P.W.1, Injeren Lakra has supported her case as given by her in the written report and stated that on the date of occurrence i.e. on 13.01.1998 at about 6 P.M., when she had gone out for easing herself in the eastern side field of her house, and while, she was coming back to her house, then the accused Santosh Oraon. Sandeep Oraon and Charo Oraon caught hold of her and they dragged her to the eastern side. When she wanted to make hulla, they showed a ''Chhura'' and asked her to keep quite, otherwise, she will be killed. Then, they took her to the ''Baas bari'', where they committed rape upon her one by one. After committing rape, they caught hold of her and took her about half kilometre away under a jack fruit tree, where they again committed rape upon her one by one. Thereafter, they brought her to the house of Santosh Oraon, where the wife of Santosh Oraon and his sister-in-law were present. Then, they took her to the house. Since, nobody was present there, in the next morning, she stated about the occurrence to her mother. She stated that the accused persons were giving threat and keeping watch on her, hence, she could not file written report earlier. On 17.02.1998, she filed a written report in the police station and she put her signature and identified her signature. The written report of the prosecutrix was marked as Ext.1.
From the police station; she went to the hospital along with her mother. She had also given her statement before the Judicial Magistrate u/s 164 of Cr.P.C., which is marked as Ext. 1/1. In let cross examination, she stated that she was a student of Intermediate-1st year in Marwari College, Ranchi. She passed her matriculation examination from a school of Tata and she passed in 2nd Division. She stated that Polus Toppo is a tenant in his house. In her cross examination, she has also admitted that ''Baas bari'' is at a distance of about 200 Yards away from her house. Although there is electricity in the village, but there is no electricity in the Baas Bari. At para 15, she admitted that before the occurrence, nobody has any sexual relationship with her. She also admitted that except her mother and sister, she had not told about the occurrence to anybody, not even to choukidar and mukhia of the village. At para 23, she admitted that in between 13.01.1998 and 18.02.1998, police had came to her village, but they have not came to her ''tola''. At para 24, she admitted that in between 13.01.1998 and 18.02.1998, she was roaming about in the village, but had not gone to the police station.
P.W.2, Eslin Lakra, the mother of the prosecutrix has also supported the prosecution case and stated that on 13.01.1998 at about 6 P.M., her daughter went out for easing herself near the house, but when she did not return, then, they went out in search of her daughter along with her younger daughter, Seema Lakra and tenant Polus Lakra. They returned to their house in the night at 9 P.M., but she had not come. After one hour, the wife of Santosh Oraon brought her daughter to the house. Her daughter said nothing and in the next morning she stated about the occurrence to the mother. Since Santosh Oraon, Sandeep Oraon and Charo Oraon used to come and threatened them not to report the occurrence to the police station and since, they were keeping vigil, hence the matter was not reported earlier. She stated that her husband is working in Army and presently he is posted in Kashmir. At para 15, she admitted that there is a panchayat in her village, but she gave no information to the panchayat. She also admitted at para 16 that the houses of the accused persons are situated in front of her house and previously they used to visit he house.
P.W.3, Seema Lakra, the younger sister of the victim girl has also supported the prosecution case and stated that in the next morning of 13.01.1998, her sister told about the occurrence that when she had gone out for easing, three accused caught hold of her and committed rape upon her. Since, the three accused persons were giving threat of committing murder, the occurrence was reported only on 17.02.1998. She stated that Aata Chakki is running in her house for the last five years, which is run by Polus Toppo, who is said to be her uncle.
P.W.4, Polus Toppo, the tenant, who runs the Aata chakki stated that he knows the victim girl, in whose house, he is running Aata chakki since last 5-6 years. He stated that Injeren Lakra and her mother Eslin Lakra both told about the occurrence. The occurrence took place on 13.01.1998 and he was informed on 14.01.1998. She told that the three accused persons committed rape upon her and she was sent back to her house at about 9 P.M. with the wife of Santosh Uraon.
P.W.5, Ashok Kumar Mandal, the investigating officer has proved the written report as also the medical report of the victim girl after getting the victim examined u/s 164 of Cr.P.C. and supervision of the case. He submitted charge sheet.
P.W.6, Dr. Minoo Mukherjee has examined the victim girl after one month on 18.02.1998 and found no sign of injury on the person of the victim girl. However, she stated that she found that the victim girl was carrying a pregnancy of twenty weeks. She was also X-Rayed by the doctor and old ruptured hymen was found in her vaginal swab, no dead spermatozoa was seen. However, the X-Ray confirmed her age to be twenty years and also she was carrying a pregnancy of twenty weeks. The X-Ray plate showed foetal head and foetal spin shown in palvic region. She opined that there is no sign of rape in the victim girl.
Although the prosecution has examined two defence witnesses, but they have not been able to create any defence for the accused persons.
D.W.1, Krishna Jiwan Mishra stated that he had some fight with Polus Toppo with regard to grinding to his wheat, for which he must be falsely implicated in the case and D.W.2, Munni Devi stated that she had taken Injeren Lakra to her house and when she came to the house in the date of occurrence i.e. 13.01.1998. Both these witnesses created no defence for the accused persons with regard to any fight between Polus Toppo and D.W.1. No question was asked in defence during the cross examination of Polus Toppo nor any suggestion was given to the informant or her mother.
Thus, after going through the prosecution witnesses, two things have come to light. Firstly that the occurrence took place on 13.01.1998, but the matter was not reported immediately about the occurrence to the police station or even to the mukhia or serpanch or choukidar. P.W.1 and P.W.2 both have admitted that there is a panchayat in the village, but none of them informed about the matter. The matter was reported to the police after about one month, but before that no information was given to the police either by P.W.4, who was not given any threat from the accused persons or by the informant or her mother.
The informant, P.W.1 has admitted at para 25 of her cross examination that between the date of occurrence i.e. 13.01.1993 to the date of report i.e. 17.02.1998, police came to her village. Also, at para 23, it is admitted that the matter was not reported to the police. At para 29, she also admitted that she has not confined to her house in between the period and she was roaming about in the village. She has already admitted at para 7 that she is an educated girl and she was a student of Intemiediate-1st year in Marwari College, Ranchi. She passed her matriculation examination from a school at Tata and she passed in 2nd Division. In that view of the matter, it is expected that when she is moving freely in the village, why she has not reported the matter to the police or in the panchayat or even to the choukidar and even P.W.4, after come to know about the occurrence on the very next day of occurrence, will not inform the matter to the police. Thus, the delay of one month has not been explained by the prosecution and this creates doubt. Moreover, the doctor has also found foeticide of about twenty weeks that the victim girl was carrying and even she was raped on 13.01.1993 and on that time the foeticide must be of sixteen weeks and there is a chance of receiving injury and there is a chance of abortion during rape, since she was taken from first place of occurrence, Baas Bari to the second place of occurrence, Bajpur Don under jack fruit tree and she was repeatedly rape that also creates doubt. Moreover, she herself stated in her cross examination at para 15 that prior to this occurrence, no sexual intercourse was made to her and she is not a married girl. Her entire statement is doubtful, since, she was carrying a pregnancy of twenty weeks.
In that view of the matter, the prosecution case is not free from doubts and the learned trial court, also failed to consider the delay in filing the written report, as also giving any weight to the finding of the doctor, P.W.6, who found no sign of rape, but found twenty weeks foeticide present in the victim girl.
In that view of the matter, in my opinion, the prosecution has failed to prove the charge beyond reasonable doubts. Accordingly, all the three appellants are acquitted from the charges levelled against them and judgment of conviction and order of sentence dated 10.05.2001 passed by Shri Prabhat Kumar Sinha No. II, learned 6th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 185 of 1999 is set aside.
It appears that all the appellants are on bail. So, they are released from the bondage of their bail bonds.