Surendra Sah vs State of Jharkhand

Ravi Nath Verma, J.—Challenge in this appeal is to the judgment of conviction and order of sentence dated 17.1.2003 passed by the learned Additional Sessions Judge, FTC-IV, Bokaro, in Sessions Trial No. 47 of 2002 whereby and whereunder the appellant has been convicted under Sections 366-A and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years on each count. The prosecution case which is based on the fardbeyan of the informant Rubi Kumari, in short, is that on 12.5.2001 she had gone to the house of her Phupha Deolal Sah at Ritudih, PS-Marafari to attend the marriage function and on the night of 21.5.2001 at about 10.30 p.m. when she went out to attend the call of nature, the present appellant Surendra Sah @ Dablu along with one of his companion came there and forcibly kidnapped her by gagging her mouth and brought her to Jodhadih More in a tempo and kept her in a house and both of them had committed rape upon her. It is also alleged that in the next morning they wanted to take her to Jamshedpur by bus, but at the bus stand she saw her grandfather, who was a "sattu" vendor and raised alarm whereafter her grandfather came and rescued her and took her to the house.

On the basis of the said fardbeyan, Marafari P.S. Case No. 26 of 2001 was instituted under Sections 366-A/376/379 of the Indian Penal Code against the appellant and one unknown person. After completion of the investigation, the Police submitted the charge-sheet against the appellant only under Sections 366-A/376/379 IPC. Whereafter cognizance of offence was taken and the case was committed to the Court of Sessions. The charge against the appellant was framed under Sections 376/366-A/341 of the Indian Penal Code.

The prosecution examined altogether six witnesses; out of them, PW-1 is Dr. Roji Shankar, PW-2 Deolal Sah, PW-3 is Sheela Devi, who is the wife of PW-2, PW-4 is Rubi Kumari, the victim girl; PW-5 is father of the victim girl and PW-6 is Bhagwan Saw, the grandfather of the victim girl.

The trial court after going through the evidence on record convicted the appellant in the manner as stated above. Hence this appeal.

Mr. Jaiswal, learned counsel appearing on behalf of the appellant while assailing the findings of the trial court as perverse and bad in law seriously contended that the trial court merely relying upon the evidence of the Doctor PW-1 convicted the appellant as the victim girl was declared hostile. It was also submitted that the victim girl PW-4 in her evidence had denied the fact that the appellant committed rape upon her and also denied to identify the appellant in court. Mr. Jaiswal further contended that when the victim girl herself has denied the role of the appellant in committing rape and also refused to identify him in court, there was no legal evidence before the court below to convict the appellant. It was also submitted that even the grandfather of the victim girl, at whose instance she was recovered from the bus, has denied that the appellant was present near the bus. Hence, the conviction of the appellant in absence of any legal evidence is fit to be set aside.

Contrary to the aforesaid submission, the learned counsel representing the State submitted that the court below relying upon the evidence of the doctor (PW-1) has rightly convicted the appellant even if the victim girl was declared hostile.

I have gone through the evidence of all the prosecution witnesses and I find that the victim girl in her evidence has nowhere testified that the appellant had committed rape upon her. Even in her examination-in-chief, she has denied to identify the appellant in court; rather, she has stated that the appellant was not among the persons who had kidnapped her. It further appears from the injury report of the victim girl (Ext.-1) that the doctor (PW-1) had found tenderness in her private part but in my opinion, that is not sufficient to convict the appellant in view of the fact that the victim girl herself has denied the factum of commission of rape by the appellant.

In the facts and circumstances of the case as discussed above, I have no hesitation in holding that the court below has wrongly appreciated the evidence and merely relying upon conjecture and surmises that the victim girl has suppressed the name of the accused, has convicted the appellant. For the reasons aforesaid, this appeal is thus allowed. The judgment of conviction and order of sentence against the appellant are, hereby, set aside and he is acquitted of the charges. Since the appellant is on bail, he is discharged from the liability of his bail bonds.