FREDRICK TIRKEY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) These appeals are arising out of Sessions Trial No. 329 of 1994, wherein the Sessions Judge, Sahibganj vide judgment and order of conviction dated 7th September, 2001 and sentence dated 10th September, 2001 convicted both the appellant accused for the offences punishable under Section 302 r/w 34 I.P.C. as well as for the offence under section 376 I.P.C. r/w 34 I.P.C. and sentenced them to undergo life imprisonment. The sentences were awarded for both the sections separately. However, these sentences have been ordered to run concurrently. Against this judgment and order of conviction and sentences the present appeals are preferred. It is the case of the prosecution that on 23rd March, 1994, at about 3.30 p.m., when deceased namely Sangita Kumari was returning to school after recess hours from her house along with one Bela Kumari (P.W. 13) both the appellant accused were at the gate of the school on a bicycle and they asked Sangita Kumari (deceased) to go with them and that they will purchase a school dress for her. Sangita Kumari (deceased) had gone on bicycle with both the appellant accused. As she had not returned to her home, parents of Sangita Kumari, who are P.W. 10 (father) and P.W. 14 (mother), became worried about the well being of their daughter. At that time Bela Kumari (P.W. 13) informed them that when they were returning from home to school after recess hours both the appellant accused had taken away Sangita Kumari with them on a bicycle on the pretext of purchasing a school dress for her. It is further case of the prosecution that father of Sangita Kumari, who is P.W. 10 had gone to the shop of one of the appellant accused, namely Kailash Rajak (appellant in Cr. Appeal No. 119 of 2002). There he was conveyed that he (P.W. 10) should wait till night hours and thereafter only he can come to his place and thereafter, P.W. 10, who is father of the informant, approached the police station. His Fardbayan was recorded on the same day, i.e. on 23rd March. 1994 at about 8 p.m. F.I.R. was lodged on the same day and investigation started. Kailash Rajak was arrested, who had also informed during course of investigation to the police that he and another co-accused, namely Prakash Rajak had committed rape upon Sangita Kumari (deceased) one after another and thereafter they had murdered her and had hidden her dead body at Dhobia Jharna. Thereafter, the police as well as P.W. 10 and other prosecution witnesses went to the house of Prakash Rajak and he was also arrested on the same day, i.e. on 23rd March, at about 9 p.m. from his residence and all had gone along with both the accused in police jeep to Dhobia Jharna where the dead body of Sangita Kumari was traced out. The weapon, i.e. a stone, which was used for committing murder of Sangita Kumari was also seized. Statement of several witnesses have been recorded. Thereafter, charge-sheet was filed and the case was committed to the court of the sessions in Sessions Trial No. 329 of 1994 and on the basis of prosecution witnesses both the appellant accused were convicted for the offences under section 376 I.P.C. to be read with 34 I.P.C. as well as for the offences under section 302 I.P.C. to be read with 34 I.P.C. for life imprisonment. Sentences have been awarded separately for both the offences, but they have been ordered to run concurrently. Against this judgment and order of conviction and sentences, present appeals have been preferred by both the appellants.

(2.) We have heard the counsels for both the appellants and they have submitted that prosecution has failed to prove the offences against the appellants beyond reasonable doubt. There are material omissions and contradictions in the deposition of prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and hence the judgment and order of conviction and sentences passed by the learned trial court deserves to be set aside. It is also submitted by the counsel for the appellants that the seizure list witnesses P.W. 5 and P.W. 9 have turned hostile and they have not supported the case of the prosecution and thus, seizure list has not been proved at all which includes the stone which was used for committing murder of the deceased and the slipper, which has been recovered, did not belonged to Kailash Rajak, who is appellant of Criminal Appeal (DB) No. 119 of 2002.

(3.) Counsel for the appellants had also contended that confessional statement made before the police is not admissible in the evidence nor the statement made by the appellant accused in the police custody is admissible under the Indian Evidence Act. Similarly, there is no recovery of dead body at the behest of the appellant accused. This aspect of the matter has not been properly appreciated by the learned trial court. It is also contended by the counsel for the appellants that P.W. 13, who is aged about 9 years is a tutored witness. She had no knowledge about the seriousness of the oath. No questions have been asked by the learned trial court to this minor witness about the seriousness of the matter of taking oath before giving deposition. It is also contented by the counsel for the appellants that the medical evidence is also not supportive of the case of the prosecution. Neither the presence of dead spermatozoa can connect the appellants with the offences of rape nor the so called recovery of slipper, alleged to be of Kailash Rarak, because the slippers did not fit him as per prosecution witness 18. The seizure list witnesses also have not supported the prosecution case. Thus, prosecution has failed to prove the offences of rape as well as murder of the deceased.