Vishwanath Kharia vs State Of Jharkhand

Heard the parties.

This appeal is directed against the judgment of conviction and order of sentence dated 04.06.2022 (sentence passed on 14.06.2022) passed by Sri Anjanee Anuj, learned Additional Sessions Judge-IV, Gumla in Special Session Trial Case No. 26/2021, arising out of Sursang P.S. Case No. 09/2021, holding the appellant Vishwanath Kharia guilty of offences under Section 376(3) of the Indian Penal Code and Section 4(2) of the POCSO Act and thereby, sentencing him to undergo rigorous imprisonment (R.I.) for twenty years alongwith a fine of Rs.25,000/- for the offence under Section 4(2) of the POCSO Act and in default of payment of fine, he was further directed to undergo S.I for one year. No separate sentence was passed under Section 376(3) of the Indian Penal Code.

The prosecution case was instituted on the basis of the Fardbeyan of the informant, a 13 years old girl at the time of occurrence, alleging therein that on 10.04.2021, she had gone to attend the marriage of daughter of Jalsu Kharia. While she was present there, the appellant Vishwanath Kharia came there and asked her to accompany him. He took her to nearby forest, disrobed her and raped her.

After investigation, police found the occurrence to be true and submitted the charge-sheet against the appellant under Section 376(3) of the Indian Penal Code and Sections 4 & 6 of the POCSO Act. The cognizance of the case was taken by Sri S.B. Ojha, learned District & Additional Sessions Judge-I-cum-Special Judge, Gumla under the aforesaid Sections on 09.06.2021.

The charge was framed against the appellant under Section 376(3) of the Indian Penal Code and Sections 4 & 6 of the POCSO Act on 24.09.2021. The contents of the charge was read over and explained to the appellant in Hindi to which he pleaded not guilty and claimed to be tried.

In order to prove its case, the prosecution has adduced both oral and documentary evidence.

The victim has been examined as P.W.1. Ashrita Kindo the aunt of the victim is P.W.2. Kunti Devi P.W.3 is the mother of the victim. Jagdish Singh P.W.4 is the father of the victim. Sumanti Kindo P.W.5 is the friend of the victim. Divya Kiro P.W.6 is another friend of the victim. All the aforesaid witnesses have not supported the prosecution case and as such, they have been declared hostile.

Aakash Kumar Pandey P.W.7 is the Investigating Officer of the case. He has proved the fardbeyan of the victim which is Exhibits-1/2. He has further proved the formal F.I.R which is Exhibit-4. He has proved the place of occurrence.

Anup Kumar P.W.8 is another Investigating Officer of the case who had obtained blood sample of the victim and sent it for forensic examination.

Dr. Shakuntala Murmu P.W.9 has medically examined the victim.

She has proved the medical report which is Exhibit-9.

Alia Kindo P.W.10 is another friend of the victim and she has been declared hostile.

Dr. Brajesh Kumar Yadav P.W.11 is the Assistant Director, Foresic Science Laboratory, Ranchi. He has proved the foresic report which has been marked Exhibit-10.

The statement of the appellant was recorded under Section 313 Cr.P.C, the defence is general denial of the occurrence and false implication.

9.On the basis of the evidence, both oral and documentary available on record, learned Trial Court held the appellant guilty and sentenced him accordingly.

Mr. A. K. Chaturvedy, learned counsel for the appellant has submitted that in the present case, all the witnesses have been declared hostile. Learned Trial Court found the appellant guilty only on the basis of finding of the Forensic Science Laboratory, Ranchi. On this ground, it was prayed that this appeal be allowed and the appellant be acquitted of the charge.

Mr. Shiv Shankar Kumar, learned A.P.P on behalf of the State has submitted that the forensic report conclusively proved that the appellant had sexually assaulted the victim, who was aged about 13 years old and the conviction of the appellant can solely be based on forensic report and accordingly, it was prayed that this appeal be dismissed.

Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts ?

The victim who has been examined as P.W.1 has been declared hostile as she has stated that no occurrence as alleged had taken place. The family members of the victim namely Ashrita Kindo P.W.2, Kunti Devi P.W.3 and Jagdish Singh P.W.4 have also stated that no occurrence as alleged has taken place. Sumanti Kindo P.W.5, Divya Kiro P.W.6 and Alia Kindo P.W.10 are the friends of the victim. They have also not supported the prosecution case and as such, they have been declared hostile.

Dr. Shakuntala Murmu P.W.9 has medially examined the victim and she has stated that there was no sign of rape on the person of the victim. She has also stated that in the vaginal swab, no spermatozoa was found. She has further stated that she had obtained navy blue panty and maroon skirt of the victim alongwith finger clippings. She has vulval swab and vaginal swab.

Dr. Brajesh Kumar Yadav P.W.11 who is the Assistant Director of Foresic Science Laboratory, Ranchi has proved the report of FSL, which is Exhibit-10. He has stated that whitish stain was found on the navy blue color panty, which was forwarded for chemical examination. The examination was found to be semen and DNA Profile generated from the blood of the appellant matched with the semen found in the undergarments of the victim.

Now the question is whether the conviction of the appellant can be held on the basis of the findings of forensic examination report ?

The forensic science report is the opinion of an expert. The admissibility of its report depends on number of factors depending upon various variables and accuracy of such tests. No scientific opinion can be hundred percent correct and as such will be nothing more than corroborative in nature.

The evidence of an expert is corroborative in nature. In the present case, none of the public witnesses have supported the prosecution case. The forensic science report being corroborative in nature cannot be made basis of conviction of the appellant.

From the aforesaid discussions, it is evident that the findings of the forensic science report as Exhibit-10 cannot be solely ground for the conviction of the appellant in absence of any corroborative evidence.

Accordingly, this appeal is allowed. The judgment of conviction and order of sentence passed by the learned Trial Court is hereby, set aside.

Pending I.A, if any, also stands disposed of.