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Judgment
Jaya Roy, J.—All these three appeals have been filed against the same judgment dated 11.9.2006 and order dated 11.9.2006 passed by Shri A.K. Choudhary, 1st Additional Judicial Commissioner, Ranchi in S.T. No. 192 of 2005 by the aforesaid three appellants. The said three appellants are convicted u/s 376(2)(g) of the I.P.C. and are sentenced to under go R.I. for ten years and fine of rupees 25000-/ and default of the payment of fine to under go S.I. for six months and acquitted from the charge u/s 3(1)(xii) of SC/ST (Prwvention of Atrocities) Act.
As the aforesaid three appeals arise out of a same judgment and order to they have been heard together and are being disposed of by this common judgment.
The prosecution case in brief is that in the intervening night of 13/14th October. 2004 at about 10 P.M. the accused Ashok Sao, Tunua Sao and Tidu @ Fagu came to the victim''s house-situated in village Bargai and forcibly took away the prosecutrix,a minor girl of aged 13 years belong to the scheduled tribe to the nearby orchard and in turns committed rape on the prosecutrix. At this, the prosecutrix raised hue and cry at which the parents and other persons of their village came to spot and seeing them, the accused persons fled away from the orchard. Police recorded the fardbeyan of the prosecutrix on the next day at about 15 hours and took up investigation of the case. After completion of investigation police has submitted charge sheet against the three accused persons for having committed the offence punishable u/s 376 I.P.C. and Section 3(1)(xii) of SC and ST Prevention of Atrocities Act. 1989.
The defence of the accused is total denial of the occurrence and false implication.
In order to prove its case the prosecution has examined nine witnesses while two witnesses have also been examined on behalf of the defence. Amongst them P.W.1 is father of the victim, P.W.2 is mother of the victim, P.W.3 prosecutrix (victim girl), P.Ws.4, 5 and 6 were declared hostile. P.W.7 is Doctor who examined the victim girl on 14.10.2004, P.W.8 is the I.O. and P.W.9 is Judicial Magistrate who recorded the statements of the victim girl u/s 164 Cr.P.C.
Mr. B.M. Tripathy, learned Sr. counsel appearing for all the three appellants, submits that the doctor has not found the definite sign of rape and on this score alone, the appellants ought to have given at least benefit of doubt and acquitted in this case.
But fine from the evidence of the Doctor P.W.7 who examined the viction and found tenderness and redness in the private part of her body. She has stated in her evidence:
(i) On pelvic examination I found tenderness am| redness present, vaginal swab was taken sent to pathology for microscopic examination to see the presence of spermatozoa.
(ii) According to the pathologist''s report dead spermatozoa was found in the microscopic field pf the prepared slide.
(iii) I opined that there is evidence of sexual intercourse present at the time of examination.
The Doctor (P.W.7) has very specifically stated that she found internal in wry with the patient. Thus, the evidence of the Doctor corroborates the statement of the prosecutrix fully. I he medical report shows the age of the victim is about 12-15 years.
Mr. B.M. Thripathy learned Sr. Counsel has submitted that there are discrepancies in the evidence of the prosecutrix with her parents. It is further submitted that there was no source of light and the fateful night was darknight. Therefore, it is difficult for prosecutrix to identify the appellant accused persons.
On scrutinizing the evidence of P.W.3 the prosecutrix, I find she has sited that the occurrence took place in the night when she was staying with his parents in her village house. At about 10 P.M. throe accused appellants of the aforesaid three appeals, namely Fagu Mahto @ Tudu, Ashok Sao and Tunua Sao camo near her house and resorted to brick batting. Thereafter, the accused persons pushed the Door of the house of die prosecutrix as the door was of Tin Door on a wooden frame, it was broke open. The said accused persons forcibly entered into the house and dragged the victim girl out from the house and took heir to nearby orchard. Tudu and Fagu tied her by rope in the orchard and at first Ashok Sao committed rape on her, thereafter, Tunua and Tudu committed rape on her one by one. She raised hue and cry. One Mushlim man of the locality came to rescue her. After committing rape, the accused persons fled away and the prosecutrix came back to her house and narrated the entire occurrence to her mother. She remains in her house in the night and ill the next morning went to the police station along with her father and narrated the entire incident to the police. After recording the fardbeyan, the police sent her to the Doctor (P.W.7) who examined her on the same day. On being proved by the Doctor, her medical report has been marked air Exhibit-1.
P.W.1 who is father of the victim, has stated in his evidence that the aforesaid three appellants came to her house and resorted brick batting and asked him to come out from his house and threatened him to kill him. Out of fear he came out from his house and these three accused persons took away his daughter from the house. Her daughter returned at midnight and on the next day, he took her daughter to the police station and lodged the instant case. He has fully supported the prosecution case and there is nothing to disbelieve his evidence. P.W.2 the mother of the victim has also corroborated the prosecution case. P.W.8 the I.O. who took charge of investigation of the case on 14.10.2004, he has also supported the prosecution case. In cross-examination he further stated that he got statement of the victim girl recorded u/s 164 Cr.P.C. by P.W.9 the Judicial Magistrate. P.W.9 has also stated that he recorded the statement of the victim girl u/s 164 Cr P.C. and on being proved by him the said statement has been marked Exhibit-4. P.W.9 further stated that he also assessed the age of the victim girl as 14 years.
The submission of Mr. Tripathy, regarding identification in the dark night, I do not agree with his submission as the P.W.3 the victim girl very specifically stated at para-7 of her evidence that she knew the accused persons, by their name as they worked in the Brick Kiln of Mantu Sao for twp years. Therefore, even in the dark night it is pot at all difficult for one to identify any person if he is known from before to him.
No doubt, there are minor discrepancies in the evidence of the witness JS but in my opinion it does not weigh much. It is very normal that near y after two years of the occurrence, one can not explain the every minute description of the occurrence. Merely because there have been discrepancies and contradictions in the evidence of some or all of I ho witnesses, does not mean that the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care, and sifting the evidence to separate the truth from un truth, exaggeration, embellishments and improvement, the court should consider that what can be accepted against the accused and on the basis of the same, court should pass its order. After scrutinizing the evidence of the prosecution witnesses, I find on the whole the P.Ws. 1, 2, 3 mid 7 have fully corroborated and supported the prosecution case.
The defence has examined two witnesses D.W.1 is Satrughan Oraon and D.W.2 is Sayud Ansari. The P.W.1 has stated that the prosecutrix is his niece in village relationship. She told him that no occurrence took place with her on 13.10.2004. She has further told him that she works in brick-kiln of Mantu Sahu. These accused persons have enmity with the father of the Mantu Sahu and for this, Mantu Sahu got the case instituted by pressurising her against these appellants. But in his cross-examination he has stated that he does not know what kind of enmity to Mantu Sahu is having with the accused persons and he has never gone to the Brick Kiln of Mantu Sahu. D.W. 1 further stated that he has no idea that what occurrence took place with the prosecutrix on 13.10.2004 and the victim gill went to her village after 5-6 days of the occurrence. Thereafter, he has stated that he came to the court on behalf of the accused persons on the date of his examination as they called him. Next defence witness is D.W.2 Sayub Ansari who has stated that he knows the prosecutrix and 5-6 days after the occurrence, the prosecutrix went to the village and stated that no occurrence took place and she was not raped. The prosecutrix further told him that she works at night in the Brick Kiln and there was a Hungama with her but she did not tell him what type of Hungama it was. In cross-examination the D.W. 2 stated that the prosecutrix did not go to her village on 13.10.2004 and she did not disclosed what occurrence took place on 13.10.1004. He has further stated he did even not know the appellants.
I do not find any material in the evidence of the D.W.1 and 2 which proves the innocence of the accused persons or belies the prosecution case. Practically, the testimony of the defence witness is not at all trust worthy. Now in the nutshell, I find the prosecutrix and her parents P.W.1 and 2 as well as the evidence of the Doctor P.W.7 and the documents proved by the prosecution, established the aforesaid charge u/s 376(2)(g) of the I.P.C. against all the three accused appellants beyond all reasonable doubts. Therefore, I do not find any reason to interfere with the conviction awarded by the trial court.
Mr. Tripathy further submits that the appellants have been seriously prejudice as the circumstances which, have been taken into considerations in convicting them, hive not been put to them u/s 313 of the Cr.P.C and this ground they are entitled to be acquitted in this case. ,
The object of Section 313 Cr.P.C, is to establish a direct dialogue between the court and the accused. If a point in evidence is important against the accused, and conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter arid, be given an opportunity of explaining it. The Section does not required that every piece of evidence shall be put the accused. Perusing the question and reply made by the accused-appellants u/s 313 of Cr.P.C., I find no illegality and irregularity in the same and the trial court has complied the provision fully according to law.
Lastly Mr. Tripathy has argued on question of sentence. But considering the seriousness of the offence and the daring action of the three appellants as they went to the house of the victim girl in the night and after threatening her father, taken away the victim girl (minor) from her house and dragged her into a lonely place, tied her by rope and committed rape upon her one by one, I feel the sentence imposed by the court should have deterrent effect on the wrong doer and it is needless to say that passing proper sentence on the wrong doer is also necessary to create confidence and faith of the public in the criminal justice system. Thus in my opinion the sentences imposed upon the appellant by the court below require no interference.
The physical scar may heal up but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep tense of some deathless shame, further more when the victim is a young minor girl.
On behalf of the State Mr. M.B. Lal has submitted that there is no infirmity in the prosecution evidence and the court below rightly accepted the prosecution case for the conviction of all the three appellants.
Taking over all view of the matter and after hearing both the parties, find that the prosecution has proved its case against all the three appellants beyond all reasonable doubt and they have been rightly held guilty by the court below. I do not find any reason t interfere with the finding of the court below as to conviction and sentences of all the true appellants.
In the result all the above three appeals are dismissed. The judgment and order aforesaid of the court below convicting and sentencing all the three appellants a e upheld.