Murari Yadav vs State Of Jharkhand

Pradeep Kumar Srivastava, J

The present appeal has been preferred against the judgment of conviction and order of sentence dated 28.06.2006 passed by learned Sessions Judge, Seraikella-Kharsawana in S.T. No.74 of 2005 whereby and whereunder, the appellant has been held guilty and convicted for the offences under Sections 366, 376 r/w 511 of Indian Penal Code and sentenced to undergo R.I. of 5 years.

FACTUAL MATRIX

Factual matrix giving rise to this appeal is that on 11.02.2005 at about 1:30 PM, the informant Anjana Jha (P.W.) sent her five year old daughter to the shop of one Subhash Yadav for bringing two packets of shampoo. The informant’s daughter brought one packet of shampoo, then the informant again sent her to the shop for bringing one more packet of shampoo. The daughter of the informant could not return till considerable time and she was getting too late, then the informant went to upstairs and from her roof, she loudly called her daughter. Thereafter, the daughter of the informant came to house under suspicious circumstances along with servant of Subhash Yadav namely Murari Yadav(appellant). The informant asked her daughter as to what happened with her then she told that present accused after putting off her pant has done some dirty thing with her private part. The informant noticed near vagina some red rashes. It is further alleged that the informant immediately reported the matter to the owner of shop Subhash Yadav, who assured that he will take necessary action against his servant but he did nothing, hence, this case was lodged.

On the basis of above information, Adityapur P.S. Case No.39 of 2005 dated 12.02.2005 was lodged for the offence under section 376 of IPC. After conclusion of the investigation, charge-sheet was submitted against the sole appellant for the offences under sections 376/511 of IPC. The case was committed to the court of Sessions where S.T. case No. 74 of 2006 was registered and charge for the offence under sections 376/511 of IPC was framed against the accused/appellant, to which he did not plead guilty and claimed to be tried. After conclusion of the trial, the impugned judgment and order has been passed, which has been assailed in this appeal.

Learned counsel for the appellant has submitted that the appellant has falsely been implicated in this case with ulterior motive of the informant. The informant was always taking domestic articles on credit without payment of cost and on the date of occurrence, one pouch of shampoo was given to the victim girl but she again returned and asked for one more shampoo then the shop owner scolded her and asked to send her mother for taking goods on credit. The informant being annoyed of the above incident has falsely lodged this case. It is further submitted that the medical examination report of the victim girl, who happens to be only 5 years old, no mark of violence on her person or private part or any part of body was found. There is specific finding of the doctor that nothing untowards has happened with the victim girl. The informant being in the habit of taking goods from the shop of Subhash Yadav and she was not in a position to revolt with the shop owner then she has implicated the appellant, who was working as a labour. Learned trial court has miserably failed to appreciate that how a victim girl of such a tender age will be able to know the nature and quality of the act imputed against the appellant, which has been tutored by her mother and no such incident ever happened with her. As such, learned trial court has not recorded any objective findings of the case in the factual background and circumstances of the case and acted upon tutored testimony of the victim and inimical testimony of her mother. Therefore, the impugned judgment and order is liable to be set aside, allowing this appeal.

On the other hand, learned Additional Public Prosecutor appearing for the State has vehemently opposed the aforesaid contentions raised on behalf of the learned counsel for the appellant and submitted that learned trial court has very wisely and aptly acted upon the testimony of the victim girl and her mother. It is further submitted that the medical report is not so much relevant in such type of offences., hence, there is no reason to disbelieve the statement of the victim girl and her mother. Therefore, there is no reason to interfere with the impugned judgment and order, this appeal has no merit and fit to be dismissed.

I have gone through to the entire record of the case along with impugned judgment and order in the light of the contentions raised on behalf of both side. It appears that altogether 7 witnesses have been examined by the prosecution, out of them P.W.1 Ashutosh Choubey, who is neighbour of the informant has been declared hostile and expressed his no knowledge about occurrence.

P.W.6 Seema Singh is also neighbour of the informant but she expressed no knowledge about the alleged occurrence and declared hostile by the prosecution.

P.W.4 Subhash Yadav is the shop owner. According to his evidence, on 11.02.2005 at about 1:30 PM, the victim girl came to his shop for purchasing shampoo, which was given to her, thereafter he went to bring his wife from MGM, Hospital where she was taking training of A.N.M. and returned at about 2:30 PM to 3:00 PM along with his wife but no complaint was made to him by the informant in respect of victim girl. This witness also admits that in his shop, a STD booth is also running where calls for the informant usually come and Murari Yadav used to go to the house of the informant to call her to attend the phone call but due to constant calls in a day, his servant namely Murari Yadav avoid to call the informant, due to which she was annoyed with him and threatened him to give a lesson. The aforesaid testimony of this witness has remained intact and there is no further cross examination.

P.W.5 Dr. Manorama Siddesh has examined the victim girl on 14.02.2005 at 12:45 PM, on requisition of police and found that her body was not developed. There was no internal or external injury on the body near private part and there is no complain of pain of any kind. Then, she drawn conclusion that no attempt of rape or no other offence has been made against the victim girl and proved her medical report as Ext.2.

P.W.2 ‘X’ is the victim girl aged about 6 years on the date of her medical examination. She has specifically stated that when she went to the shop second time, the present appellant was washing utensils. She went into the shop and started counting the coins kept on the bed laying in the shop, then she was scolded by the accused/appellant. Thereafter, he started touching her private part, and when this witness told that she would complain to her mother, then she was given a toffee along with shampoo. This witness returned to her home and told the above incident to her mother, then this case was lodged by her mother and the police have asked from her nothing.

In her cross-examination, this witness has admitted that her mother had told that touching toilet (private part) is a bad habit, hence, she disclosed to her mother that the accused had committed bad thing (ganda kaam) with her. She has denied the suggestion of the defence that when she was scolded by the accused, while she was touching the money box from the shop and complained to her mother then this false case was lodged.

P.W.3 Smt. Anjana Jha is the informant. According to her evidence, at first her daughter brought only one pouch of shampoo, thereafter she was again send to the shop of Subhash Yadav but she returned after considerable delay when this witness asked her daughter, then she told that present accused has committed some dirty thing by opening her paint. Hearing this, this witness got enraged and went to the shop of Subhash Yadav where he was not found then she assaulted the accused Murari Yadav by slipper and in the night she complained the act of the accused to the employer Subhash Yadav. On the next day, no action was taken by the shop owner against the accused, she lodged the FIR.

The informant has denied the suggestion of defence that she has lodged this false case due to scolding of her daughter by the accused when she was touching money box and coins.

P.W.7 S.I. Manoj Kumar Verma is the Investigating Officer of this case. No attention of this witness has been drawn towards the depositions of the shop owner Subhash Yadav to elicit any contradiction.

He has denied the suggestion of the defence that his investigation is defective and he has not considered the medical report of the victim and submitted charge-sheet without evidence against the appellant.

From the aforesaid discussion of testimony of the witnesses, it is crystal clear that the present appellant was a servant in the shop of one Subhash Yadav. It is also admitted fact that the victim girl went twice to the shop for purchasing shampoo and on second occasion, the present appellant was washing utensils and there was some delay then the victim girl started taking coins into her hands kept in the shop and due to this reason, she was scolded by the accused. It is also revealed that the victim girl was again given a pouch of shampoo but after returning to her home, she complained to her mother about scolding and misbehave committed by the accused. The story of misbehave committed with a tender year girl aged about 5 years appears to be creation of the informant from her own mind because the victim girl was not interrogated by the Investigating Officer, which has been admitted by her in her testimony and she has also stated that her mother alone went inside the police station and told something to the police then she was sent for medical examination. Therefore, the informant herself has concocted the story of touching private part of the victim girl by the accused to take revenge from the accused. It is also admitted that the informant came to the shop and scolded the appellant and assaulted him with slipper. The informant has also requested to the shop owner to remove the accused from the service. As against it, the shop owner has categorically deposed that no complaint was made by the informant about the said occurrence and he has stated that he runs a STD booth and calls of the informant was usually communicated by the accused/appellant to the informant but sometimes he used to avoid to inform about receipt of call for informant, hence, she was annoyed with the accused. The medical report of the victim girl also does not corroborate the story projected by the informant. In view of the aforesaid discussions and reasons, I find that learned trial court has miserably failed to appreciate the testimony of the witnesses in totality and arrived at wrong conclusion about the guilt of the appellant.

I find substance in the points of argument raised on behalf of learned counsel for the appellant and merit in this appeal. Accordingly, this appeal is allowed and impugned judgment and order of conviction and sentence of the appellant is set aside.

The appellant is on bail, hence he is discharged from bail bond. The sureties are also discharged.

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

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