MOTU MURMU @ MAJHI Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is against the judgment of conviction and order of sentence dated 26.08.2002 passed by Shri B.N. Pandey, Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial No. 68 of 1999, by which judgment, the learned Sessions Judge found the appellants guilty for the offence under Section 376 (g) of the Indian Penal Code and convicted them to undergo rigorous imprisonment for ten years.

(2.) IT is submitted by learned counsel for the appellants that all the three appellants have remained in jail custody for approximately five and a half years. The appellants namely Motu Murmu @ Majhi and Loko Majhi were taken into custody on 14.04.1998 and both the appellants have been released on bail by the order of this Court dated 29.08.2003. The appellant namely Parma Tanty was taken into custody on 15.04.1998 and he was released on bail by the order of this Court dated 05.09.2003. It is further submitted that the prosecution case, as disclosed by the informant, Achma Gagrai has not be corroborated by the evidence of doctor P.W.2, Dr. P. Kujur, who examined her just after one day of the occurrence and found neither injury on the body of the victim girl nor any injury on her private part and has opined that no rape was committed upon her. Moreover, the witnesses P.W.4 and mother, P.W.5, who have stated that they were informed about the occurrence by their daughter. All the other witnesses have turned hostile and no one has supported the prosecution case. In that view of the matter, learned counsel for the appellants has relied in a decision reported in 2008 (10) Supreme Court Cases page 81 in the case of Premiya @ Prem Prakash V/s. State of Rajasthan, where it was held by the Hon'ble Supreme Court that in a case where doctor found that no rape was committed and there is evidence that the victim girl was dragged by the accused persons by force, the offence committed comes under Section 354 of the Indian Penal Code, and as such, it has been submitted that the conviction of the appellants under Section 376 (g) of the Indian Penal Code is bad in law and fit to be set aside.

(3.) AFTER hearing both the parties and after going through the records, I find that the prosecution was started on the basis of F.I.R. given by the informant, Achma Gagrai on 11.04.1998 at 20.00 Hrs. stating therein that she stayed in the house of Raison Manjhi, P.W.9 on rent in village Potka at Chakradharpur Police Station along with her younger brother and sister and all of them are the students of Carmel school and she is the student of Class -X. She stated that on 10.04.1998 in the mid night at 12 night the three accused persons i.e. Motu Murmu @ Majhi, Loko Majhi and Parma Tanty entered into her room by breaking upon the 'Chhitkini' lock. Thereafter, they started searching for her when she went inside the bed. In the light of 'lantern', which was burning in the room, she identified the three accused persons. They got hold of her and started dragging her towards a deserted place. When they were dragging her, she was shouting for help, then the mother of the landloard namely Deola Manjhi, P.W.7 came out and her sister also came out and they asked the accused persons as to why they are dragging her. Then, the accused persons threatened them, then she started weeping, then, they closed her mouth and the accused, Parma Tanty put a 'Gupti' on her back. Then, they took her to a deserted 'maidan' where all the three accused persons committed rape upon her and thereafter she became unconscious. In the next morning, she came to her room and told the occurrence to the family members of the landlord. Then, police was informed, who came on her room and recorded the statement given by her.