Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Jhk) 855

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Rongon Mukhopadhyay, Sanjay Prasad, JJ.
The State of Jharkhand - Appellant
Versus
Durga Soren @ Bhota - Respondent
Death Reference No. 3 of 2016 with Criminal Appeal (D.B.) No. 1191 of 2016
Decided On : 06-05-2022

Advocates Appeared:
For the Appellant : Mr. A. K. Kashyap, Amicus Curiae, Mr. Akshay Kumar Mahto.
For the Respondent: Mr. Saket Kumar.

The main legal point established in the judgment is the requirement for corroborative evidence in circumstantial cases, the scrutiny of child witness testimony, and the application of the 'last seen theory' in determining guilt.

Headnote:
Criminal Appeal - Conviction under Section 376/302 I.P.C. - Summary of Acts and Sections: Section 302 I.P.C., Section 376 I.P.C. - The court discussed the evidence presented, including the testimonies of witnesses, the confessional statement of the accused, and the recovery of undergarments. The court highlighted the inconsistencies in the prosecution's case, the lack of corroborative evidence, and the lapses in the investigation. The court emphasized the importance of scrutinizing the testimony of child witnesses and the application of the 'last seen theory' in circumstantial evidence.
Fact of the Case:

The appellant was convicted for the offences under Section 376/302 I.P.C. based on the allegation of rape and murder of a child. The prosecution's case relied on circumstantial evidence and witness testimonies, including that of child witnesses.
Finding of the Court:

The court found that the evidence presented was fraught with disparities and contradictions, and the prosecution's case suffered due to non-examination of material witnesses. The court highlighted the inconsistencies in the testimonies of witnesses and the lack of corroborative evidence, leading to the conclusion that no inference could be drawn towards the guilt of the appellant.
Issues: The issues included the reliability of witness testimonies, the application of the 'last seen theory' in circumstantial evidence, and the lapses in the investigation.
Ratio Decidendi: The court emphasized the need for close scrutiny of the testimony of child witnesses and the importance of corroborative evidence in circumstantial cases. The court also highlighted the significance of the 'last seen theory' and the requirement for a thorough investigation.
Final Decision: The judgment and order of conviction and sentence were set aside, and the appellant was ordered to be released immediately and forthwith.

JUDGMENT :

1. Heard Mr. A. K. Kashyap, learned Amicus Curiae in Criminal Appeal (DB) No. 1191 of 2016 for the appellant assisted by Mr. Akshay Kumar Mahto, learned counsel and opposed by Mr. Saket Kumar, learned A.P.P.

2. This appeal is directed against the judgment dated 22.09.2016 passed by Sri Manoj Srivastava, learned Principal District & Sessions Judge, Seraikella-Kharsawan in S. T. No. 90 of 2012 whereby and whereunder the appellant has been convicted for the offences under Section 376/302 I.P.C. and has been imposed capital punishment for the offence under Section 302 I.P.C. along with a fine of Rs. 50,000/- and has further been sentenced to undergo imprisonment for life and fine of Rs. 50,000/- for the offence under Section 376 I.P.C.

3. The FIR was lodged by Chandu Soren which reveals that on 08.11.2011 at around 4:00 P.M. when the informant was passing through the Chowk at Barakudar village, he had seen Durga Soren @ Bhota (Appellant) taking away his daughter Puspa Soren (Deceased) on the pretext of playing and along with them two other children namely, Mansa Soren and Nikita were also going. When even at 7:00 P.M., his six year old daughter did not return home, he had gone to the house of Durga Soren and enquired about his daughter, but Durga Soren had given an evasive reply. The informant started searching for his daughter along with the villagers and the matter was also informed to Gram Pradhan. It has further been alleged that on 10.11.2011, the informant could learn from the villagers that his daughter has been raped and murdered and her body was lying in the field at Rakha Dungri. He was of the belief that Durga Soren had allured his daughter to the field and had committed her rape and murder.

Based on the aforesaid allegation, Rajnagar Police Station Case No. 42 of 2011 was instituted against the accused for the offences punishable under Sections 302/376 I.P.C. On conclusion of investigation, chargesheet was submitted under Section 302/376 I.P.C. against the accused and after cognizance was taken, the case was committed to the Court of Sessions where it was numbered as S. T. No. 90 of 2012. Charge was framed under Section 302/376 I.P.C. and 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.

4. The prosecution has examined as many as 13 witnesses in support of its case.

5. P.W. 1 – Bholanath Mahato has deposed that on 08.11.2011, Chita Soren had informed that her daughter is missing. All of them started searching, but no trace could be found. On 10.11.2011, the dead body of the girl was recovered from a field. The Fard Beyan was given by Chandu, the father of the deceased – girl and he has put his thumb impression on the same. He has proved his thumb impression on the Fard Beyan which has been marked as Exhibit 1. Chandu Soren had disclosed that his daughter was playing with Nikita and Mansa Soren, but they had not disclosed about the whereabouts of Puspa Soren. Chandu has stated that Nikita and Mansa had disclosed that Puspa Soren had gone with the appellant. The appellant had confessed in his presence before the police of committing rape and murder of Puspa Soren. He had confessed to have strangulated her to death.

In cross-examination, he has stated that on 08.11.2011, the appellant was working in his field and the work of bundling of paddy continued till 3-4 P.M. The informant Chandu Soren and the appellant Durga Soren both belong to the same family.

6. P.W. 2 – Chandra Soren has identified his signature in the inquest report which has been marked as Exhibit 2. He has denied of having any knowledge about the person committing the murder of Puspa Soren. This witness has been declared hostile.

7. P.W. 3 – Nil Kamal Mahto has identified his signature in the inquest report which has been marked as Exhibit 2/1. He has denied of having any knowledge about how she died and by whom such act was committed. This witness was declared hostil