Asim Toppo vs The State Of Jharkhand

Heard Mrs. J. Mazumdar, learned counsel for the appellant and learned A.P.P.

Instant criminal appeal is directed against the judgment and order of conviction and sentence dated 17/18.01.2008 passed by learned Additional Judicial Commissioner, Ranchi in Sessions Trial No.456 of 2001 arising out of Bero PS. Case No.19 of 2001 corresponding to G.R. No.360 of 2001, whereby and whereunder the appellant has been held guilty for the offence under section 376 of IPC and sentenced to undergo R.I. for 7 years.

Factual matrix giving rise to this appeal is that on 03.02.2001 at about 7:00 pm, the prosecutrix along with Asim Toppo (appellant, who is cousin mausera brother of the prosecutrix) proceeded to village Pakalmeri to attend the marriage party of the co-villager, Sukhdeo Oraon and when the prosecutrix after covering 2 kms distance reached beside the Basic School, a lonely place surrounded by bushes and forest, the accused Ashim Toppo forcibly committed rape upon her. The prosecutrix raised alarm but due to lonely place, no one could arrive there. The prosecutrix requested the accused to drop her off at village Pakalmeri in the said marriage party, then she was brought by the accused to attend marriage party at about 11:00 pm in the night. It is further alleged that the prosecutrix was threatened not to disclose the incident to anyone, otherwise, she will be killed. It is further alleged that due to fear, the prosecutrix did not disclose the matter to any of the villagers in the marriage party but when she returned back to her home, she narrated the above incident to her brother, John Toppo and lodged this case.

On the basis of above information, Bero P.S. Case No.19 of 2001 was registered for the offence under section 376 of IPC. After completion of investigation, charge-sheet was submitted against present appellant and after taking cognizance, the case was committed to the court of Sessions where S.T. No.456 of 2001 was registered. The present appellant has denied the charge leveled against him and claimed to be tried.

In course of trial, altogether 8 witnesses were examined by the prosecution, namely:

-P.W.1-Masidhanu Toppo

P.W.2-Sushma Toppo

P.W.3- ‘X’ (Victim)

P.W.4-Somari Tigga

P.W.5-Berdo Minz

P.W.6-Ashrafi Paswan

P.W.7-Bisundeo Ram (I.O.)

P.W.8-Dr. Rita Lal

Apart from oral testimony of the witnesses, following documentary evidences have been adduced by the prosecution.

Ext.1-Signature of victim on fardbeyan.

1/1-Signature of witness, AnupToppo on fardbeyan

Ext1/2-Formal FIR

Ext.2-(wrongly mentioned)

Ext.2-Medical examination report of the victim

Ext.3-School Leaving Certificate of the victim showing the date of birth i.e. 01.07.1986.

On the other hand, the defence has examined one defence witness, namely, Ashok Ishak Kumar Toppo (father of the appellant), who has proved the baptism certificate, showing the date of birth of the victim is 21.04.1979 and other two documentary evidences i.e. Ext.A-C.C. FIR of Bero P.S. Case No.18 of 2001 (S.T. No.411 of 2001) and Ext.A/1-C.C. of charge sheet in Bero P.S. Case No.18 of 2001 (S.T. No.411 of 2001).

The case of defence is denial from the occurrence and false implication due to previous enmity. Further defence of the appellant is that on 06.02.2001, John Alfred Toppo and Anup Martin Toppo, who happen to be mausera brothers of the prosecutrix and another have committed murder of the appellant’s mother namely, Manonit Minz and they were convicted and sentenced in connection with Bero P.S. Case No.18 of 2001(S.T. No.411 of 2001). Further defence of the appellant is that since the brothers of the prosecutrix were implicated in the murder case by the father of the present appellant, hence she under the influence of her mausera brothers has concocted a false story of rape allegedly happened on 03.02.2001 and lodged the FIR on 07.02.2001 just as a counter blast case to defend the skin of her brothers from the murder case. No such occurrence has ever happened with the prosecutrix as alleged.

Learned trial court, after appreciating the oral as well as documentary evidences adduced by the parties, believed the version of prosecutrix (P.W.3) regarding the commission of rape with her by the present appellant and after evaluating the evidence held the appellant guilty for the offence under section 376 of IPC and sentenced as stated above, which has been assailed in this appeal.

Learned counsel for the appellant has assailed the impugned judgment mainly on the following grounds:-

Learned counsel for the State refuting the aforesaid points of argument raised on behalf of the appellant has submitted that the prosecutrix has offered reasonable explanation about inordinate delay in lodging the FIR that due to shame and reputation, she did not disclose the incident of rape to anyone and as her mausera brothers heard about the said occurrence, she, subsequently, lodged this case. It is further submitted that the road towards the village Pakalmeri was lonely and in the night, presence of anyone at the place of occurrence may not be possible. Hence, despite the prosecutrix raising hulla, no one came to help her. It is also submitted that it is practically impossible to find corroborative evidence of struggle at the scene of the occurrence after an extended delay. None examination of independent witnesses like Sukhdeo Oraon and other co-villagers does not affect the core of prosecution case, which has been proved during trial by cogent and reliable evidence. It is admitted fact that the rape has been committed on 03.02.2001 before the murder of the appellant’s mother i.e. on 06.02.2001 and the prosecutrix has also reasonably explained about the delay in lodging the case, hence, this argument raised by the appellant does not hold much water and fails to affect the validity of the conviction or sentence of the appellant. Learned trial court has very wisely and aptly considered all the aspects of the case in a threadbare manner and arrived at right conclusion. Therefore, there is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellant, calling for any interference by way of this appeal, which is fit to be dismissed.

I have gone through the record of the case along with the impugned judgment and order in the light of the contentions raised on behalf of both side.

The only point for determination in this appeal is that “as to whether the impugned judgment and order of conviction and sentence of the appellant passed by learned trial court suffers from any error of law calling for any interference in this appeal?”

Before adjudicating the above point, it is necessary to take brief resume of oral as well as documentary evidence adduced by the prosecution to substantiate the charge leveled against the appellant.

It appears that altogether 8 witnesses have been examined by the prosecution.

The star witness of this case is the victim girl, who has been examined as P.W.3. According to her evidence, on 03.02.2001 at about 8:30 pm, she along with accused, Asim Toppo proceeded to village Pakalmeri Dhadhutoli to attend the marriage ceremony of one co-villager, Sukhdeo Oraon. She further deposed that “हम दोनɉ बांडीह बेͧ सक èकूल के पास पहुंचे तो मुझे असीम टोÜपो धर पकड़ कर ͬगरा Ǒदया और बला×कार ͩकया। बला×कार के बाद हम वहाँ पर दो घंटा तक सोये रहे.” She further states that she requested the accused to take her to village Pakalmeri in the marriage party and the accused also brought her to village Pakalmeri to attend the marriage ceremony, but on the way, the accused threatened her not to disclose the incident to anyone, otherwise, he will kill her. She has not disclosed the incident to anyone in the marriage ceremony due to shame. She further states that upon reaching the house, she disclosed the incident to her elder mausera brother, John Toppo after five days. She has proved the fardbeyan marked Ext.1 and also identified the signature of Anup Toppo on fardeyan as Ext.1/1.

In her cross-examination, she admits that she has disclosed her age about 14 ½ years to the Investigating Officer. She admits that due to reputation and dignity, she did not disclose the alleged incident of rape to anyone for five days. She further admits that her father, Prakash Kujur, mother Bakamdina Kujur and her two brothers Arvind Kujur and Manoj Kujur and sisters, Manohari Kujur and Roshni Kujur are not witnesses in this case. She resides at the house of John Toppo, who was bringing up her since childhood. She has expressed her ignorance about the murder of the mother of the accused and has also expressed no knowledge about the land dispute between her own Mausa Shanti Prakash Toppo and Ashok Ishak Toppo. After this incident, there were no visiting terms in between both the parties. She further admits that in her cast, marriage with cousin is not permitted. She further admits that the alleged incident has taken two hours and during that period, she raised alarm, but no one was passing nearby. During struggle, no physical mark was left on the earth. However, she admits that her clothes stained in the said struggle were washed by her. After commission of rape, the accused slept there for two hours and she remained sitting beside him. She further admits that she did not disclose the said incident to anyone, who was present in the marriage party. No one has been examined as a prosecution witness from the family members of Sukhdeo Oraon. After returning from the marriage ceremony, she did not disclose the alleged incident of rape to her Mausera brother, Anup Toppo and his wife. She further admits that after five days of the occurrence, she disclosed the incident of rape to her another Mausera bother, John Toppo. Thereafter, she along with Anup Toppo went to police station to lodge the case. She has denied the suggestion of defence that at the instance of Anup Toppo and John Toppo, she has instituted this false case against the appellant.

P.W.1-Masidhani Toppo is the Bhabhi of the prosecutrix. According to her evidence, she has stated that when the prosecutrix returned from the marriage party, she noticed her face upset, then she asked her what has happened with her. Thereafter, she narrated the entire incident of rape forcibly committed by the appellant. The prosecutrix along with Anup Toppo went to police station and lodged this case.

In her cross-examination, she has pleaded her ignorance that in the murder case of the appellants’ mother, her husband, Anup Toppo is named accused. She has denied the suggestion of defence that this case has been lodged against the appellant after commission of murder of appellant’s mother in which her husband, Anup Toppo and John Toppo (bhaisur) are named accused, with a view to save their skin from the murder case.

P.W.2-Sushma Toppo is a hearsay witness and Bhabhi of the prosecutrix. She has also reiterated the same prosecution story as alleged in the FIR. She states that her husband, John Toppo is in custody due to murder case of the appellant’s mother.

In her cross-examination, she admits that there were no speaking and visiting terms in between her own father-in-law and Chachera Sasur, (appellant’s father) due to a longstanding land dispute. She further admits that the prosecutrix disclosed the incident of rape to her after returning from the marriage party on 04.02.2001. Thereafter, she disclosed the said incident to her husband, John Toppo on 06.02.2001. Thereafter, on the instruction of her husband, the prosecutrix along Anup Toppo (Devar) went to police station to lodge this case. She further admits that the family members of the prosecutrix were not called upon and they were also not the witnesses in this case. In her relation, the mother of the appellant is Chahia Saas and she was handicapped and a teacher by profession. She further admits that the mother of the appellant was murdered one day prior to the lodging of rape case i.e. on 06.02.2001 and in this regard, a case bearing Bero P.S. Case No.18 of 2001 was registered against her husband, John Toppo and Anup Toppo (devar) for the alleged offence of murder of the appellant’s mother under sections 341, 323, 302/34 of IPC, which is still pending before the court. In the case of murder, her husband, John Toppo and Anup Toppo (devar) are named accused and in this case, the appellant is an eye-witness of the murder. She has denied the suggestion of defence that the present case has been instituted against the appellant as a counter blast case to save the skin of her husband, John Toppo and Devar, Anup Toppo.

P.W.4-Sumari Tigga and P.W.5 Berdo Minz have been declared hostile and they have expressed no knowledge about the occurrence.

P.W.6- S.I. Ashrafi Paswan is the Investigating Officer of this case and on 25.02.2001, he received the charge of investigation of this case and recorded the statement of Jhari Orain and Bero Minz. After finding sufficient evidence, he has submitted charge-sheet against the appellant and proved the formal FIR as Ext.2.

P.W.7-Bishundeo Ram is the first Investigating Officer of this case. He has recorded the fardbayan of the prosecutrix Ext.1/2 and on the basis of fardbayan, the Formal FIR was registered. He recorded the re-statement of the prosecutrix and Anup Toppo. He has visited the place of occurrence, which is situated 1 ½ km from the village Bandi and the exact place of occurrence is about 500 yards away in the western side of the Basic School. He sent the prosecutrix for medical examination. Thereafter, he was transferred from the police station. This witness has been cross-examined at length and he has not found any broken bangles or torn clothes from the place of occurrence. He admits that he was also the Investigating Officer of Bero P.S. Case No.18 of 2001 but he cannot say anything about the said case without verifying the records.

P.W.8-Dr. Rita Lal has examined the prosecutrix and found following:-

This witness has opined that as per X-ray report, epiphysis of radius and ulna are not completely fused but fusion has been in advance stage. The epiphysis of iliac and ischium bones are not fused. The age of prosecutrix has been assessed to be 16 to 18 years. She has proved the medical report as Ext.2.

The defence has also examined one witness D.W.1 Ashok Ishak Toppo, who is father of the accused. According to him, on 06.02.2001, John Alfred Toppo, Anup Martin Toppo and Akshay Mishra came to his house and asked him to open the lock of his old house and assaulted him and his wife. Her wife died due to assault of them. Thereafter, he lodged an FIR against them. He has further deposed that since his son was an eye-witness of murder of his wife, therefore, he has been falsely implicated in this case as counter blast to save the skin of them. This witness has also proved the baptism certificate showing the date of birth of the victim i.e. 21.04.1979.

From the aforesaid discussion of the ocular testimony of the witnesses, it is crystal clear that except the prosecutrix (P.W.3), there is no eye-witness of the occurrence and there is no impediment in basing conviction on solitary evidence of prosecutrix, who happens to be the victim of this case.

The Hon’ble Apex Court, in the case of “Krishan Kumar Malik vs. State of Haryan (2011) 7 SCC 130, has held that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

In the case of State of H.P. v. Manga Singh (2019) 16 SCC 759, the Hon’ble Apex Court has held at paras 10 & 11 as under:-

In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, the Hon’ble Apex Court has held at para 6 as under:-

In the instant case, the specific case of the prosecutrix is that on the date of occurrence in the evening, she along with the present appellant went to attend the marriage ceremony of co-villager, Sukhdeo Oraon at village Pakalmeri on cycle and when they reached near Basic School, Bandih, the appellant has thrashed the prosecutrix down on earth and forcibly committed rape upon her despite she struggled two hours with the appellant to resist from the commission of rape and due to which, she became unconscious and slept there about two hours. The appellant was also present all along with her. Thereafter, she again requested to the appellant to take her village, Pakalmeri in the said marriage party, where both reached at about 11:00 hours in the night and she stayed there overnight and next day returned to her Mausa’s house at village Chachkopi. In her cross-examination, she has improved her earlier version and stated that after the commission of rape, she was sitting at the place of occurrence about two hours and the accused slept there for two hours. Thereafter, they again proceeded to attend the marriage ceremony. It is admitted fact that the victim participated in the marriage ceremony and did not disclose about the incident to anyone. There is also no evidence showing presence of prosecutrix at village Pakalmeri at the house of Sukhdeo Oraon, who has also not been examined by prosecution. For the first time, she disclosed the incident to her elder Mausera’s brother John Toppo after 5 days and this case was lodged at police station. It is also surprising that although, she was living from her childhood at her Mausa’s house but the above incident was not communicated to her parents and they have not been examined in this case. It further appears that the Bhabhi of the prosecutrix, namely, Masidhanu Toppo (P.W.1) has also not disclosed as to when the victim disclosed about the commission of rape with her. She simply states that after returning from the marriage party, the prosecutrix disclosed about the incident which she communicated to her husband, Anup Toppo and lodged this case. Similarly, another Bhabhi of the prosecutrix, namely, Sushma Toppo (P.W.2) states that the victim disclosed about the commission of rape with her on 04.02.2001 but she informed to her husband John Toppo on 06.02.2001. She also admits that the mother of the appellant was murdered on 06.02.2001 wherein her husband, John Toppo and Devar, Anup Toppo are in custody in connection with Bero P.S. Case No.18 of 2001 under section 302 of IPC. She also admits that the prosecutrix has lodged this case after institution of the murder case against her husband and Devar. She further states that Mausera brothers of the victim, John Toppo and Anup Toppo have not been examined in this case. She admits that there is a longstanding land dispute between her father-in-law and Chachera Sasur (appellant’s father) and they were not under talking terms. It further appears that the Medical Officer, Rita Lal (P.W.8) has found no mark of internal or external injuries on the body of the prosecutrix and she has categorically opined that no definite evidence of rape was found. The first Investigating Officer of this case, Bishundeo Ram (P.W.7), who has visited the place of occurrence, could not be able to exactly locate the same and no mark of struggle or any incriminating things were recovered from the place of occurrence. The prosecutrix has also not produced her wearing clothes, which were washed away.

It is also admitted fact that on the date of occurrence till the lodging of the FIR, Masurea brothers of prosecutrix, John Toppo and Anup Toppo were also present in the home. Admittedly, the present rape case was instituted after murder of the appellant’s mother on 06.02.2001, wherein John Toppo and Anupo Toppo were named accused, who have been convicted in that murder case. In the aforesaid factual aspects of the case, the testimony of the prosecutrix cannot be treated as that of an absolutely reliable witness of sterling quality. The very genesis, manner and place of occurrence have not been proved by the prosecution through cogent and reliable evidence. It appears that the prosecutrix has been projected after thought by her Masuera’ brothers to lodge this rape case against the present appellant after commission of murder of his mother, for which, FIR vide Bero P.S. Case No.18 of 2001 was lodged against them under section 302 of IPC and they were charge-sheeted vide Ext.A/1 relied upon by the defence. The present rape case was instituted as Bero P.S. Case No.19 of 2001 under section 376 of IPC, just after the institution of murder case by the father of the appellant, which clearly suggests that antedated occurrence of rape has been concocted and FIR was lodged after 5 days of the occurrence, for which no valid explanation was offered.

In view of the above discussion and reasons, I find that the entire prosecution story is shrouded with doubt, hence benefit of doubt goes in favour of the appellant. Therefore, the impugned judgment and order of conviction and sentence dated 17/18.01.2008 passed by learned Additional Judicial Commissioner, Ranchi in Sessions Trial No.456 of 2001 arising out of Bero PS. Case No.19 of 2001 corresponding to G.R. No.360 of 2001 is, hereby, set aside and the appellant is acquitted from the charge leveled against him. Accordingly, this appeal is allowed.

The appellant is on bail. He is discharged from liability of his bail bonds and sureties are also discharged.

Pending I.A(s), if any, is also disposed of accordingly.

Let a copy of this judgment along with Trial Court Records be sent to the court concerned for information and needful.