1. Heard the parties.
2. The appellant Shivdhan Soren has filed this appeal against the judgment of conviction and order of sentence dated 21.01.2016 (sentence passed on
25.01.2016) passed by Sri Om Prakash Srivastava, learned Additional Sessions Judge-I, Pakur in connection with Sessions Trial Case No.67/2013,
arising out of Hiranpur P.S. Case No.24/2012, corresponding to G.R. Case No.117/2012, holding the appellant guilty of offences under Sections 452,
460, 341, 376/34, 302/34 and 323 of the Indian Penal Code and thereby, sentencing him to undergo imprisonment for seven years alongwith a fine of
Rs.1,000/- and in default of payment of fine, he was further directed to undergo additional imprisonment for three months for the offence under
Section 452 of the Indian Penal Code. He was further sentenced to undergo imprisonment for ten years alongwith a fine of Rs.2,000/- and in default
of payment of fine, he was further directed to undergo additional imprisonment for three months for the offence under Section 460 of the Indian Penal
Code. The appellant was further sentenced to undergo S.I for one month for the offence under Section 341 of the Indian Penal Code. He was also
sentenced to undergo R.I for ten years alongwith a fine of Rs. 5,000/- and in default of payment of fine, he was further directed to undergo additional
imprisonment for three months for the offence under Section 376 of the Indian Penal Code. The appellant was also directed to undergo imprisonment
for life alongwith a fine of Rs.50,000/- for the offence under Section 302 of the Indian Penal Code and in default of payment of fine, he was directed
to undergo additional imprisonment for two years and finally, he was further directed to undergo S.I for one year for the offence under Section 323 of
the Indian Penal Code. All the sentences were ordered to run concurrently.
3. The prosecution case was instituted on the basis of written report of the prosecutrix alleging therein that on 05.02.2012 at about 7:00 P.M, she was
alone in her house and her husband had gone to Burdaman, when the appellant Shivdhan Soren and his brother Hopna Soren entered into her house
and attempted to rape her and started physically assaulting her. It is also alleged that Hopna Soren had caught hold of her and gagged her mouth and
his brother Shivdhan Soren raped her. After the occurrence, she raised alarm on which the accused persons fled away. She died during the course of
investigation.
4. After investigation, the police found the occurrence to be true and submitted the chargesheet against the appellant Shivdhan Soren under Sections
452, 341, 376/34, 302 and 323 of the Indian Penal Code. Learned Chief Judicial Magistrate took cognizance of the case under the aforesaid Sections.
5. The case was committed to the court of Sessions by Sri P. Jha, learned Judicial Magistrate, First Class, Pakur on 06.02.2013 as the same was
exclusively triable by the Court of Sessions.
6. The charge was framed against the appellant Shivdhan Soren on 05.08.2013. The contents of the charge was read over and explained to him in
Hindi, to which, he pleaded not guilty and claim to be tried.
7. In order to prove its case, the prosecution has adduced both oral and documentary evidence.
The prosecution has examined Mandal Hembrom P.W.1, Kamni Murmu P.W.2, Lilu Baski P.W.3, Dr. Sanjay Kumar Jha P.W.4, Dr. Satish Chandra
Singh P.W.5, Dr. Navina Barla P.W.6 and Ashok Kumar Singh I.O of the case P.W.7. The prosecution has also adduced documentary evidence in
support of this case. The postmortem report is Exhibit-1. The injury report of the victim when she was examined by Dr. Satish Chandra Singh is
Exhibit-2 and her injury report was examined by Dr. Navina Barla is Exhibit-3. Formal FIR is Exhibit-5.
Defence has also adduced oral evidence in support of its case. Chotka Hansda has been examined as D.W.1.
8. The statement of the appellant was recorded under Section 313 of the Cr.P.C. The defence is general denial of the occurrence and false
implication.
9. On the basis of the evidence available on record, learned Trial Court held the appellant guilty and sentenced him accordingly.
10. Being aggrieved by the judgment of the learned Trial Court, the appellant has filed this appeal.
11. It was submitted on behalf of the appellant that there is no eyewitness to the occurrence. The victim, later on, had died and her statement could
not be recorded during trial. It was further submitted that the doctor had performed the postmortem but did not find any injury on her person. It was
finally submitted that the brother of the deceased/ victim has clearly stated that the husband of the victim had committed her murder and the appellant
has been falsely implicated in this case. On these grounds, it was prayed that this appeal be allowed and the judgment of conviction and order of
sentence passed by the learned Trial Court be set aside.
12. Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts.
In order to come to the aforesaid finding, it has to be further ascertained as follows:
i) Whether the deceased Barki Hansda died an unnatural death?
ii) Whether the appellant had caused her homicidal death?
iii) Whether the appellant had committed gang rape of Barki Hansda?
13. The case of the prosecution is that on 05.02.2012 at about 7:00 P.M, when the prosecutrix was alone in her house, the appellant Shivdhan Soren
and his brother Hopna Soren entered her house. Hopna Soren caught hold of her and gagged her mouth and the appellant Shivdhan Soren raped her.
14. It appears that the prosecutrix Barki Hansda died during the course of treatment. She could not be examined during the trial. Mandal Hembrom
P.W.1 is the husband of the prosecutrix. He has stated that on the date and time of occurrence, when he returned home, his wife told him that the
appellant Shivdhan Soren and his brother Hopna Soren had raped her. The matter was reported to the Police and the prosecutrix was admitted in
hospital for treatment. After which, she was discharged and while on the way home, she died.
15. In his cross-examination, he has stated that his wife was sent to hospital on the next day of occurrence.
Kamni Murmu P.W.2 is the mother-in-law of the deceased. She has stated that the occurrence took place about three years ago. She came to know
that the appellant Shivdhan Soren had raped her daughter-in-law. She has stated that her daughter-in-law told her about the occurrence. She only
stated her that she was raped by the appellant Shivdhan Soren. She has further stated that her daughter-in-law died on the next day of the occurrence.
In her cross-examination, she has further stated that her son had brought another lady after two to three years of the occurrence.
16. Ashok Kumar Singh P.W.7 is the Investigating Officer of the case. He has proved the endorsement of the Officer Incharge on the written report,
which is Exhibit-4. He has also proved the formal F.I.R, which is Exhibit-5. He has stated that he had recorded the restatement of the victim and he
has also visited the place of occurrence. According to this witness, the place of occurrence is the house of the victim. He has described the
description of the place of occurrence.
17. It appears that the prosecution has not adduced the inquest report of the deceased in evidence.
Dr. Sanjay Kumar Jha P.W.4 had performed the postmortem of the deceased and had found the following injuries on her person:
Rigour mortis present in all four limbs. There was no laceration and abrasion. No external injuries were noted over the body. On internal examination,
stomach was found to be ruptured and content spread throughout the abdominal cavity. According to this witness, cause of death of the deceased was
shock due to rupture of vital organ i.e. stomach which was caused by hard and blunt substance. He has proved the postmortem report which is
Exhibit-1.
Dr. Satish Chandra Singh P.W.5 had examined the victim on 05.02.2012 at about 11:00 PM at Primary Health Centre, Hiranpur and found the
following injuries on her person:
1. Pain and tenderness in the lower abdomen.
2. An abrasion wound of size 4x1 inch over the interior surface of the left wrist joint.
Both the injuries were simple caused by some hard and blunt objects within three hours. He has proved the injury report which is Exhibit-2.
From perusal of the postmortem report, Exhibit-1, it transpires that the injury found on the person of the deceased as stated in the postmortem report
fully corroborates the oral testimony of Dr. Sanjay Kumar Jha P.W.4, recorded during the trial.
Dr. Navina Barla P.W.6 has stated that on 06.02.2012, he was posted as Medical Officer at Sadar Hospital, Pakur and examined the deceased.
According to this witness, abrasion was found on the left hand above the wrist joint. There was no mark of violence over external genital. According
to this witness, no definite opinion could be given regarding the allegation of rape. She has proved the injury report which is Exhibit-3.
18. From the findings of the postmortem report, it is apparent that the deceased died due to rupture in the stomach and the content of the stomach was
spread throughout the abdominal cavity. Doctor has stated in the cross-examination that the stomach may be ruptured due to gastric ulcer also. The
occurrence is alleged to have taken place on 05.02.2012. Deceased died on 06.02.2012 as per the oral testimonies of the prosecution witnesses. As
per the postmortem report, deceased died between 12-24 hours before the postmortem examination, i.e., the deceased died in between 3 o'clock on
07.02.2012 and 3 o'clock on 08.02.2012. The postmortem examination suggests that the deceased died after two days from the date of occurrence.
The victim had put R.T.I on her written statement but her written statement has not been adduced in evidence. The prosecutrix died just after the
occurrence and as such, her statement could not be recorded during the trial. As the written report has not been adduced in evidence, it cannot be
read in evidence against the accused persons.
19. The appellant Shivdhan Soren has examined the brother of the deceased namely Chotka Hansda as D.W.1. He had stated that two days prior to
the occurrence, her sister had told him that her husband used to assault her. She also told him that her husband had brought another lady. When she
opposed, her husband assaulted her, due to which, she died. He had denied the suggestion that he was giving false evidence at the instance of the
appellant.
It is alleged that the appellant had raped the deceased. The deceased died soon after the occurrence and as such, her statement could not be
recorded. The written report, on which the deceased had put her left thumb impression, was also not adduced in evidence. Had this written report
been adduced in evidence, the entire written report could have been read against the appellant as the deceased died soon after the occurrence. Dr.
Navina Barla, P.W. 6 had stated that she had examined the deceased and no definite opinion could be given regarding the rape and in such case, the
fact that the deceased was raped by the appellant, cannot be proved.
20. As far as the homicidal death of the deceased Barki Hansda is concerned, there are contradictions in the oral testimony of the prosecution
witnesses and the postmortem report regarding the time when she died. The statement of the brother of the deceased Chotka Hansda who was
examined as D.W.1 also casts doubt on the prosecution case. The brother of the deceased Chotka Hansda D.W.1 has categorically stated that the
deceased had told him that her husband assaulted her when she opposed his second marriage and thereafter, she died.
Furthermore, from the postmortem report, it is apparent that the doctor who had performed the postmortem of the deceased has stated that the
abdominal rupture can take place due to gastric ulcer.
21. From the aforesaid facts and circumstances, we are of the opinion that the prosecution has not been able to prove that the deceased died a
homicidal death and prior to her death after she was raped by the accused persons.
22. Accordingly, the judgement of conviction and order of sentence passed by the learned Court below, holding the appellant guilty of offences under
sections 452, 460, 341, 376/34, 302/34 and 323 of the Indian Penal Code is hereby, set aside.
23. This appeal is allowed. The appellant is acquitted of the charge. Pending I.A if any also stands disposed of.
24. It appears that the appellant is in custody and the learned Court below is directed to release the appellant at once, if he is not wanted in any other
case.
