Harman Toppo vs State

Kalyan Jyoti Sengupta, J.—The appellant above named was arraigned with the charges under sections 376, 323, 506 IPC. The reason of the aforesaid trial was the complaint made by the victim herself before the Officer-in-Charge. Tushnabad Police Station. The sum and substance of the complaint in short was as follows:

The complainant at the relevant time was residing at the house of her maternal grandmother Sent. Tarsila Tirkey, wife of Silvanus Tirkey at Habdipur from her childhood and she was studying in Class VII at G.S.S. Tushnabad. Her parents were residing elsewhere. Everyday after returning from school she used to feed the pet animals with grass and drench water. As usual on 29th November, 2006 after returning from school she had a lunch, and then went to the field along with her aunt, Rosaliya Tirkey to drench water to the pet cows, and cut grass. While she was drenching water to them who were tied up at different places, her aunt went to another place to drench water to the pet dogs. After drenching water to the cows over there, she began to cut grass. At about 3 o'clock in the afternoon the appellant above named who was resident of the same village, wearing pink banyan and black knicker came near to her. While she was absorbed in cutting grass he asked her to bring ghuniya (aram) leaves. She did not oblige him so he pushed her on the ground and removed her undergarment as well as his knicker and inserted his male organ into her private part and had sexual intercourse. Though it was very painful but she could not shout because he pressingly closed her mouth tightly. After sometimes having seen her aunt he left her and then he dressed up his clothes and started walking towards his house. In the meantime, her aunt came near to her and asked the appellant what was happening. He, however, did not give any reply and left. Then she told everything to her aunt and returned to her house along with her aunt and narrated everything to her maternal grandmother. Thereafter, her maternal grandmother took her to the Tusnabad Police Chowke.

Pursuant to the said complaint the FIR was drawn up and then 10 started investigation. After completion of investigation charge sheet was filed by the 10 under the aforesaid sections and then learned Sessions Judge framed the charge.

It appears from the records that the said victim and de facto complainant Alka Bara also made a statement u/s 164 Cr. PC. before the learned Magistrate stating as aforesaid. Apart from making statement u/s 164 Cr. PC. it appears that on 21st December, 2006 the said de facto complainant also made a statement which was recorded in fardbayan before the police.

It also further appears that her aunt Rosaliya Tirkey also made a statement u/s 164 Cr. PC. before the learned Magistrate.

Before above statement was recorded the victim was examined by the doctor. The doctor collected her wearing apparels, her vaginal swab and the same were sent for medical examination. From the record it appears that the maternal grandmother, namely, the one Smt. Tarsiia Tirkey was also made statement u/s 164 Cr. PC, before the learned Magistrate. It further appears from the records that the wearing apparels worn by the appellant on the date of incident were also seized by the 10 and the same were sent for medical examination.

The sickle, which she was used to cut the grass at the time of occurrence, was also seized.

It appears that the prosecution in order to prove the case, examined as many as sixteen witnesses, but the appellant did none. It could be found from the trend of cross-examination as well as the answer to the question u/s 313 Cr. PC the defence was not only of innocence but also plea of alibi was taken that the girl was found to be in a compromising position with another boy and when the same was detected she falsely implicated the appellant.

The learned Trial Judge disbelieved the plea of alibi taken, and accepted and believed the evidence adduced by the prosecution and found that the appellant was guilty of committing rape u/s 376. Therefore, the learned trial judge sentenced him to suffer rigorous imprisonment for six years and also to pay a fine of Rs. 50,000/-, in default of paying the said amount the appellant is to undergo four years imprisonment in addition thereto and the appellant was also sentenced to undergo imprisonment for another two years and to pay a fine of Rs. 5000/- u/s 506 (1st Part) and to suffer further imprisonment for six months. This sentence was however subject to setting off the period of detention of the appellant during the period of trial in connection with this case. The aforesaid sentence shaft run concurrently. The learned Trial Judge also directed that in the event of payment of fine by the appellant out of the same 40,000/- shall be paid to victim of the case namely Alka Bara, daughter of Lalith Bara as and by way of consolable compensation.

Mr. Tabraiz, learned Advocate appearing for the appellant submits that the learned Trial Judge without having legally acceptable evidence has held the appellant guilty and sentenced him to suffer rigorous imprisonment on two sections 376 and 506(Part-1). He submits that as far as section 376 is concerned the learned Trial Judge committed error in relying evidence of the victim who is interested in her own cause. There'' was no independent evidence to corroborate the testimony of the de facto complainant P.W. 1. Admittedly, at the place of occurrence there was none except the said girl. P.W. 2 Rosaliya Tirkey, the aunt of the P.W. 1 was not present at the place of occurrence. Her testimony is absolutely hearsay as far as the commission of the offence is concerned. It will appear from the evidence of P.W. 2 that she has heard from P.W. 1. The evidence of P.W. 3, P.W. 4, P.W. 5 and P.W. 6 are also hearsay evidence and nothing has been proved.

As far as the evidence of P.W. 1 is concerned apart from being interested witness, it does not establish the commission of offence rather her statement in the facts and circumstances rendered her testimony unbelievable. According to her statement, the appellant is alleged to have committed offence on the ground in the paddy field and admittedly she was wearing frock and other garments. If the alleged offence has been committed in the situation there should have been an injury on the back of the P.W. 1 and then the frock and other garments worn by her at that date should have been smeared or stained with dust or mud. Admittedly, in the field there had been a growing paddy about 5 ft. high. Therefore, the paddy field must be swampy muddy if not slushy. Naturally in the garments the marks of mud or dust should have been there. In the evidence it would appear and also from the said frock and wearing apparels that there is no indication of mud or dust. Therefore, her evidence has become absolutely unbelievable. If her evidence goes nothing remains to prove.

Even the doctor who examined her has specifically said that there has been no mark of injury either on the body of the girl or on the female organ. Only there was a swelling and that could be possible because of the girl's hectic activity as she was going to school and grazing cattle, feeding or drenching the cattle in the paddy field. Even those swellings on the private parts are not the result of any rape, nothing could be found from the wearing apparels of the accused. Hence the charges u/s 376 have not been proved at all.

As far as the charge u/s 506 (Part-1) is concerned, in the FIR there has been no mention of such offence nor there has been any proof of the charges u/s 506., Hence the conviction u/s 506 is rendered without having any evidence.

Lastly, if the investigation is not done by the appropriate official, the initiation of the case is bad in law.

Mr. Mandal, learned Public Prosecutor appearing for the respondents submits that it would appear from the testimony of the victim girl who was a minor at that time that the evidence u/s 376 as well as u/s 506(Part-1) has been proved beyond any doubt. P.W. 1 has vividly testified how and in which manner she was ravished and raped. The undergarment and the wearing apparels of the victim girl were also chemically examined. The vaginal swab and sperm also collected. Pubic hair of the victim and that of the accused were collected and the same were examined. He has drawn our attention to the medical test report and submits that Ext. 5., a result of the examination clearly shows presence of human semen. From the vaginal blood stain being the Ext. 8 human blood could be detected. It was found that the blood group AB could be detected from Ext. 8 and blood group A could be detected from Ext. 5. On examination of pubic hair being Ext. 6 and Ext. 9 it was found that all the characteristic of them were consisted with human origin. This report was prepared by Dr. P.K. Mishra and this was proved and no cross-examination as to the genuineness and correctness of the contents of the report was to be found.

From the evidence of P.W. 1 it would appear that there was nobody except the accused at the time of occurrence and she has also said that he removed her panti and he embraced her by pulling off the frocks and other wearing apparels. Thereafter, he pulled down his drawer (Jangia), last undergarment. By the report of the chemical examination it is clearly found that her evidence is corroborated.

Immediately after occurrence she told everything to her aunt P.W. 2 who had also testified that she has heard from the victim, thereafter she told her grandmother who also made statement u/s 164 before the learned Judicial Magistrate who also'' proved such statement giving evidence in this matter.

Therefore, everything has been proved beyond reasonable doubt that he was guilty u/s 376. It is immaterial whether there was injury on the body of the victim or for that matter any mark of resistance. No girl will tell a lie before the Court about her chastity and modesty unless she was truly ravished. He drawing our attention to a judgment of the Supreme Court in the case of Dinesh vs. State of Rajasthan, reported in 2006(3) Supreme Court Cases 771, particularly Paragraph 11 submits that if the Court asks for a corroboration in the case of commission of offence of the evidence of the victim then it would be injustice to the victim for such course of action of the Court would be an insult to injury. He submits that the testimony of the victim girl is a complete proof for the offence. He further contends that the learned Trial Judge has awarded lesser punishment and greater punishment should be awarded as the learned trial judge has totally ignored the mandate of the Legislature u/s 376 in case of a rape of minor girl where punishment should not have been less than 10 years. Therefore, he submits that this court will refrain itself from not only interfering with the judgment and conviction of sentence rather impose a greater punishment.

Having heard the respective contention of the learned Counsel and having gone through the entire records namely the evidence of the witnesses and the plea of alibi as welt as the answer given to the questions put u/s 313 of Cr. PC this Court has to consider two points:-(1) Whether the learned Judge has proof beyond reasonable doubt to record conviction u/s 376, and also u/s 506 (Part-1) or not?, and (2) whether the plea of alibi should have been accepted by the learned trial judge or not?

We have gone through the evidence once again and we found that P.W. 1, the victim herself, has been able to prove which she has stated in her evidence that on 29.11.2006 at about 3 p.m. when she was engaged in cutting grass in the field for feeding the cattle the accused all of a sudden came to her and initially asked her to bring aram leaves. When She refused he caught hold of her and thereafter compelled her to he down, on the ground and after removing her undergarments he committed rape on her. While doing intercourse for half an hour, she has specifically stated that her mouth was closed by the accused tightly that is why she could not raise any alarm or shout for help. When she was released by the accused she got up while she was dressing up herself she noticed some water like substance coming out-from her vagina, She felt terrible pain in her private part and inside the vagina. Thereafter she told everything to her aunt P.W. 2. Then both of them went back to the house of maternal uncle and thereafter went to the police, then to hospital and she was examined thereat.

P.W. 2 has testified that at the relevant point of time the accused could be found and he was coming out from the paddy field while pulling up undergarment and without responding to the questions he just simply left the place. Thereafter she took the victim to their house and then they went to the police and then to the hospital. The evidence of P.W. 3 (Tarsila Tirkey) is relevant to the extent that she took the victim girl to the police station and then to the hospital and the victim had to remain admitted in the hospital for two days. P.W. 4 is the seizure witness and he accompanied the victim girl, P.W. 2 and P.W. 3 to the police station to the hospital. P.W. 5 was also one of the seizure witnesses and went to the hospital. In evidence, he stated that the accused was arrested in his presence and on interrogation by the police he handed over the wearing apparels namely T-shirt and his garments (undergarments) he worn at the time of the incident. It appears that except the doctor's evidence the other witnesses except PW 16 being 10 are formal in nature. Those are not very material here. The doctor who examined the victim has also deposed but his testimony is of no help. PW 16 being the 10 proved that he started investigation as per verbal order of SP concerned, he collected all material exhibits. He prepared seizure list, he arrested the appellant seized his wearing apparels which he worn at the time of occurrence of incident. He interrogated appellant (accused). He recorded statements of all the relevant witnesses u/s 161 of Cr. PC and also that of accused. He collected vaginal swab, vaginal blood, pubic hair in sealed condition handed over by Medical Officer. However, the Forensic examination report being Exbt. 13 is one of the vital pieces of evidence. This report proves presence of human semen in the vaginal swab (Exbt. 5) and the vaginal blood (Exbt. 5) collected by the IO was found to be human blood and pubic hair also of the human nature. When report clinches the issue, vergue oral testimony of the doctor should be ignored except the portion she treated. This medical report clearly suggests that there has been an injury inside the vagina and there was insertion of male organ inside the vagina as the presence of semen could be detected. It has to be examined whether any person other than appellant could do such act or not. In the cross-examination to various witnesses particularly P.W. 1, P.W. 2 and P.W. 3 by, the defence it was suggested that some other boy was involved in this matter, and as the girl was seen to be in a compromising position with him, to cover of her wrong being done, he has been falsely implicated. This alibi or this question emerges ? two things:-first thing, unless the appellant/accused was present he could not see at that place, another hence must have been present at the place of occurrence. Next aspect is apart from him who else could be present with compromising position with P.W. 1. No name has been mentioned nor suggested who was there, These suggestion are of course denied by PW 1, PW 2 and PW 3 compromising at the time of occurrence. Even no one could come forward to prove the alibi taken by the accused/appellant. Rather evidence of P.W. 2 clearly shows that the accused was the only person who was present and he was emerging from paddy field while redressing his clothes by pulling up his undergarment. P.W. 2 has seen by herself, he alone was there at the place of occurrence and he was leaving without responding to her call and talks. It is therefore beyond doubt established that there was no person with the victim girl other than the accused. Hence when the medical report clearly shows the presence of semen and presence of blood in the vagina and the oral testimony of P.W. 1 that there has been an insertion of the male organ inside the vagina, irresistible conclusion is that it was by the accused and accused alone. It is immaterial whether any sign of rapture of hymen inside vagina. Under the definition of rape it not necessary full penetration of male organ resulting in rapture of hymen. The girl was very tender aged girl as such the passage of the vagina would not be smooth rather tightness would be the normal feature. Hence complete penetration of male organ would not be possible. She (PW 1) has deposed that there is a terrible pain inside vagina and doctors found swelling on the private parts. Hence the insertion of the penis inside the vagina was done, otherwise semen would not have come out from the vagina which was ultimately collected as a material exhibit as per the medical report.

Taking evidence in totality we think that learned Trial Judge has correctly found him guilty u/s 376. We respectfully accept the Supreme Court observation in the case of Dinesh vs. State of Rajasthan (supra) that seeking corroboration of the evidence of the victim would be a travesty of justice. In other words disbelief of the testimony of the victim in absence of corroboration would be the effect of adding insult to the injury in the mind of the victim. In this context, the Supreme Court has observed in Paragraph 11 of the report as under:

In the Indian setting, refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sexual is entitled to great weight, notwithstanding the absence of corroboration. A woman or a girl who is raped is not an accomplice. Corroboration, is not the sine qua non for conviction in a rape case.

It is unbelievable a victim of a rape would commit any mistake to identify the real offender and particularly a tender aged girl and who had no enmity with the accused/appellant herein. The Indian women by nature are shy to divulge anything about her modesty and chastity, as these are most valuable assets and they will preserve at any costs. If for any reason such assets are sought to be taken away then certainly they will not spare the real culprit who has done it at all costs. This is the normal nature of the women in all situations and events.

Accordingly, the learned trial judge has rightly believed the testimony of P.W. 1, of course, we like to add that there has been ample corroboration by the medical report as discussed above. Hence we uphold the conviction but while accepting the argument of Mr. Tabraiz we do not find that any case has been made out u/s 506 either in the fardbayan or FIR or any evidence has been adduced. We, therefore of the view that the conviction u/s 506(Part-1) and sentence there under is unsustainable. We therefore set aside the conviction and we think that conviction and sentence u/s 376 is just and proper.

It appears that learned Trial Judge has imposed punishment lesser than statutorily mandated. When there has been proof it was his duty to impose such punishment. Under this circumstances we issue a show cause as to why the punishment greater than that imposed by the learned Trial Judge u/s 376 should not be imposed. Hence the matter is fixed for hearing on day after tomorrow on this point. If no cause or sufficient cause is shown then this Court may enhance the sentence. In terms of our order dated 30.11.2010, Mr. Arul Prasanth appears on behalf of the accused convict and he made submission on the question of enhancement of sentence u/s 376. He submits that, since the State has not preferred any appeal, question of enhancement of sentence by the Court on suto motto does not and can not arise. He has also drawn our attention to the last but one paragraph of the judgment of the learned Trial Judge and submits that this point was adjudicated before the learned Trial Judge and relying on the Supreme Court decision mentioned therein, the learned Trial Judge has reduced the punishment to six years. In this circumstance, this Court should not enhance the punishment in any way.

We have considered the judgment of the Supreme Court as referred to by Mr. Arul Prasanth. In paragraph 17 it has been observed by the Apex Court that both in cases of sub-section (1) and (2) the Court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for adequate and special reasons. The learned Judge has recorded the reason that the victim girl has been married and has been rehabilitated honourably in the society. The said offence is not reflected in her life in any manner. Therefore, according to us, these are special reason and circumstances, accordingly, we do not want to enhance the punishment, and, therefore we uphold punishment and sentence awarded by the learned Sessions Judge.

Kanchan Chakraborty, J.

I agree.