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Judgment
Per- Pradeep Kumar Srivastava, J.
We have heard the argument of learned counsel for the appellants and learned counsel for the State in both cases.
All the above appeals are arising out of common judgment, hence are heard together and are being disposed of by common judgment.
Instant appeals are preferred by the above named appellants for setting aside their conviction and sentence dated 23.08.2018 and 29.08.2018 respectively passed in S.T. No.211 of 2014 by learned Additional Sessions Judge-X-cum-FTC, Jamshedpur, East Singhbhum, whereby and whereunder the appellants have been held guilty and sentenced for the offence under section 376(D) of IPC corresponding to Section 70 of the Bharatiya Nyaya Sanhita (BNS) and directed to undergo R.I. for 20 years along with fine of Rs.40,000/-(Rs. Forty Thousand) each with default stipulation.
Factual Matrix:-
Factual matrix giving rise to these appeals in a narrow campus is that on 05.11.2013, the prosecutrix (P.W.4) was going to her parental home from her matrimonial home and reached near APO Tola-Jerka-Amda Pahari in Lapit Chhencha Forest at about 3:00 pm. In the meantime, all the above named appellants resident of village Jerka lifted her from the way and brought her to nearby drain in the forest and committed rape upon her one by one. Upon hearing the scream of the prosecutrix, nearby persons, who were cutting firewood in the forest, arrived there but all the accused persons managed to flee away from the place of occurrence. It is further alleged that in connection with above incident, the village Panchyati was convened but the accused persons were absconding. Therefore, the delay was caused in lodging the First Information Report (Ext.3) at police station.
On the basis of written report (Ext.2) of the prosecutrix dated 08.11.2013, FIR being Patamda P.S. Case No.75 of 2013 was registered against the accused persons for the offence under section 376(D) of IPC.
The charge of investigation was handed over to S.I. Makru Ram Ashur(P.W.9), who recorded the restatement of the prosecutrix on the same day and inspected the place of occurrence, which is situated at a distance of 15 kms from the police station.
The Investigating Officer(P.W.9) interrogated with other witnesses and also got recorded the statement of the victim/prosecutrix under section 164 of Cr.P.C (Ext.5). He arrested the accused persons and prepared their arrest memos (Ext.4 to 4/3) and also obtained the medical report of the victim. After finding sufficient evidence against the appellants for the commission of gang rape with the prosecutrix, he submitted charge-sheet against them.
After taking cognizance by learned Judicial Magistrate, the case was committed to the court of Sessions, where S.T. No.211 of 2014 was registered.
The accused persons did not plead guilty and claimed to be tried. Accordingly, trial commenced.
In course of trial, altogether 9 witnesses were examined by the prosecution, namely:-
P.W.1-Prakash Hembaram
P.W.2-Haradhan Soren
P.W.3-Arod Soren
P.W.4- Victim-cum-Informant
P.W.5-Narendra Nath Soren
P.W.6-Sutik Soren
P.W.7-Lagu Hansda
P.W.8-Dr. Puja Priya
P.W.9-S.I. Mukru Ram Ashur (I.O.)
Apart from oral testimony of the witnesses, following documentary evidences have been adduced by the prosecution:-
Ext.1-Medical Examination Report of prosecutrix;
Ext.2-Endorsement of I.O. on written report for registration of FIR;
Ext.3-Formal FIR;
Ext.4 to 4/2-Four arrest memos of all the accused persons;
Ext.5-Statement of victim recorded under section 164 of Cr.P.C.
On the other hand, the case of defence is denial from the occurrence and plea of innocence. However, no oral or documentary evidence has been adduced by the defence.
Learned trial court after evaluating the evidence available on record and hearing the arguments of the respective parties recorded definite findings that the prosecution has been able to prove the charge leveled against all the accused persons, who have committed rape with the prosecutrix constituting a group, acting in furtherance of common intention of all accused persons on the relevant date and time of occurrence. Accordingly, held them guilty for commission of offence under section 376(D) of IPC and sentenced them as stated above, which has been assailed in above appeals.
Submission on behalf of appellants:-
Mr. Jitendra Nath Upadhyay, learned counsel for the appellant in Cr. Appeal (DB) No.1283 of 2018 has challenged the conviction and sentence of the present appellant on following grounds:-
There is no iota of evidence showing the involvement and participation of the present appellant in the alleged occurrence.
There are material contradictions in the evidence of the prosecutrix and other independent witnesses examined by the prosecution.
It is a case of commission of gang rape but surprisingly the factum of rape does not find corroboration from the medical examination report of the prosecutrix (Ext.1).
The wearing clothes of the prosecutrix at the time of occurrence, which may be stained with semen, were not seized and sent for chemical examination to generate DNA profile.
The appellant was also not put under medical examination and no blood sample was collected by the Investigating Officer or any sample of semen etc, for arriving at truth of allegations.
The Investigating Officer has failed to explain the aforesaid serious latches while conducting the investigation of such a serious and heinous offence.
The learned trial court has simply opined that irregularity in investigation is not sufficient to disbelieve the evidence of prosecutrix and ignored the above vital aspects of the case, which are sufficient to disbelieve the prosecution story.
Learned trial court has also failed to consider that no Panchyat was ever held and not a single witness claiming to be the member of the Panchyat has been examined to corroborate the factum of Panchyat, which is major cause of delay in institution of the FIR.
Learned trial court has also ignored that the prosecutrix was a widow lady aged about 50 years having 10 to 15 years old child.
Admittedly, she stayed in the house of one Prakash Hembram (P.W.1) at night brought by one Lagu Hansda(P.W.7) from the place of occurrence. But, he has been declared hostile by the prosecution and not supported the prosecution case regarding the commission of rape with the prosecutrix by the preset appellant.
Mr. Dilip Kumar Karmakar, learned counsel for the appellants has also relied upon the aforesaid grounds taken in the hearing of Criminal Appeal (DB) No.1337 of 2018 and further pointed out following grounds:-
The prosecutrix was subjected to rape by four accused persons but no spermatozoa whether dead or alive found and also the medical report negates the commission of rape with her.
The injuries found on the body of prosecutrix were also opined by doctor (P.W.8) to be superficial in nature and may be self inflicted.
The medical report of the victim also reveals no sign of injuries on private part.
The prosecutrix was not known to the appellants by their name rather claimed to identify them by their face and also came to know their name in Panchyati. Under such circumstances, Test Identification Parade must have been conducted.
The identification of the appellants for the first time in the court was also wrong and the prosecutrix has failed to tell the name of each of the appellant rightly.
The appellants have falsely been implicated in this case at the instance of one Prakash Hembram (P.W.1), where she stayed in the night at the house of Prakash Hembram(P.W.1) on the relevant date of occurrence.
In the premises of aforesaid grounds, the impugned judgment of conviction and sentence of the appellants is liable to be set aside and the appellants are entitled for acquittal from the charge leveled against them and these appeals may be allowed.
In the alternative, it is submitted that learned trial court has not properly heard the appellants on the quantum of sentence and sentence has been passed very harsh and disproportionate to the guilt of the appellants. The appellants are all along in custody throughout the trial and pendency of these appeals and have sufficiently been punished. As such, the imprisonment already undergone by the appellants for the offence under section 376(D) of IPC is sufficient punishment for their guilt. Therefore, the sentence awarded to the appellants is also fit to be reduced to the extent of imprisonment already undergone by them.
Submission on behalf of State and Informant:-
On the other hand, learned counsel for the State assisted with learned counsel for the informant has opposed the aforesaid points of argument raised on behalf of the appellants in both the appeals and submitted that learned trial court has very wisely and aptly considered all the aspects of the case in a threadbare manner and arrived at right conclusion. Therefore, there is no illegality or infirmity in the impugned judgment and order of conviction and sentence of the appellants, calling for any interference by way of these appeals, which are fit to be dismissed.
We have gone through the record of the case along with the impugned judgment and order in the light of contentions raised on behalf of the both side.
The only point for determination in this appeal is that “as to whether the impugned judgment and order of conviction and sentence of the appellants passed by learned trial court suffers from any error of law calling for any interference in these appeals?”
Analysis, Reasons and Decision:-
Before delving into adjudication of above point, we have to take brief resume of ocular testimony of witnesses examined during trial.
The sterling witness of this case is the prosecutrix herself, who has been examined as P.W.4. According to her evidence, about 3 years ago, the prosecutrix proceeded from her matrimonial home to her parental home at village Amdapahari and as she reached near APO Tola-Jerka-Amda Pahari in Lapit Chhencha Forest, all of a sudden, she was surrounded by all the four accused persons, who caught hold of her and brought towards drainage (nala) situated in the dense forest area and committed rape with her one by one. Her mouth was gagged and she was threatened to be killed by drowning in the ditch, if she raised alarm. She has further deposed that at the time of commission of rape, all the accused persons completely pulled out her clothes and she became naked and they jointly committed rape upon her. In course of commission of rape, some sounds of movement were heard, then accused persons fled away from the place of occurrence. Thereafter, she raised hulla and one Lagu Hansda(P.W.7), who was also going to village APO Tola-Jerka-Amda Pahari, brought her to the house of Prakash Hembram (P.W.1). In the next day morning, the village Panchyat was convened at village Jerka, the residential place of the accused persons and members of both villagers were called upon but the accused persons were absconding and did not attend the Panchyati. Thereafter, she lodged this case. She also stated that she was medically examined at the instance of police and her statement was recorded by the Magistrate. She has identified all the accused persons behind the dock.
In her cross-examination, she admits that her husband died three years prior to this occurrence and she has a son aged about 10 to 15 years. She has sustained injuries on her back and leg. She was thrashed on the ground by pulling with her hairs. She also admits that at the time of occurrence, the accused persons removed her all the clothes except the petticoat. It is also stated that hearing some sounds of movement, the accused persons left her and fled away. In the meantime, Lagu Hansda (P.W.7), who was going on Amda Pahari in Lapit Chhanchi Forest, met her and brought her at the house of Prakash Hembram, where she stayed in the night. She has been suggested by the defence that since in the night of the date of occurrence, she stayed in the house of Prakash Hembram (P.W.1) and indulged in physical relationship with him, which was seen by accused persons. Hence, in order to save her honour, she has falsely implicated the accused persons in a false rape case. It is here noteworthy that the identification of the accused persons by the prosecutrix has not been questioned by the defence rather a court question was asked to her to tell the name of accused persons standing behind the bar from left to right. She has stated some wrong name of accused persons but in subsequent question, she reiterates that she might have disclosed the wrong name of any accused but by face, she identified all of them, who have committed rape upon her. She has also denied the suggestion of defence that at the instance of Prakash Hembram (P.W.1), she has given the name of the accused persons.
There is nothing else to cast any doubt in the testimony of the prosecutrix.
The evidence of the prosecutrix further finds corroboration from the evidence of P.W.8, Dr. Puja Priya, who has medically examined the prosecutrix on 08.11.2013 at about 3:55 pm and following marks of violence were found:-
Multiple abrasions over right and left both side of back linear in shape and red brown in colour. Appears to be caused by sharp object. The age of injury has been opined to be 3 to 4 days.
Multiple abrasions over right and left both breasts, upper quadrant red brown in colour linear in shape appear to be cause by sharp object within 3 to 4 days.
Hymen was found old ruptured. No injuries were found on the private part inside or outside the vagina.
No semen, blood or any other foreign materials were found over vulva, vagina, thighs or public hair.
No signs of injury over labia majora, labia minor, thighs or inside or outside the vagina.
This witness has opined that no spermatozoa were found after chemical examination. But it is definitely opined that sexual intercourse took place. Therefore, physical injuries sustained by the prosecutrix at the time of occurrence on her back, leg and breast etc. also corroborates the occurrence happened with her. She has proved the medical report as Ext.1.
P.W.1- Prakash Hembram is own brother of the prosecutrix. Admittedly, the incident was disclosed to him by the prosecutrix, who returned to his house along with Lagu Hansda (P.W.7) and told that while she was coming to her parental home and reached in the dense forest area of Lapit Chhencha Forest, the accused persons, namely, Hemant Singh, Ramnath Singh, Bivhishan Singh and Fagu Hansda have committed rape with her.
In his cross-examination, this witness categorically admits that the prosecutrix was married lady aged about 45 years having 10 years old child. Her husband has been died but she is still residing at her matrimonial home and she usually came to her parental home. He did not find any mark of injuries on her cheeks, lips, neck and arms. He also states that after the occurrence, his sister became so much depressed, hence, there was a delay in lodging the FIR. He also admits in clear terms that the name of the accused persons was disclosed to him by the prosecutrix and he was not acquainted with the accused persons with names. His village is at a distance of 3 kms from the matrimonial village of the prosecutrix. He has denied the suggestion of defence that due to village politics, his sister (prosecutrix) has lodged this false case against the accused persons and he has taken money to give evidence.
P.W.2-Haradhan Soren came to know about the occurrence, when he was called upon by the father and brother of the prosecutrix. He further states that after the occurrence, when the prosecutrix reached at her parental home, he interrogated with her about the incident then, she disclosed that four accused persons have committed rape with her in the forest area of Lapit Chhencha Forest near a drain(nala). He also states that in the next day morning, a Panchyati was convened in the village Jerka and the accused persons were also informed but they did not attend the Panchyati. Hence, no decision could be taken and the police case was instituted.
In his cross-examination, this witness admits that the parental home of the prosecutrix is at a distance of 1 ½ kms from the village Jerka. He has also noticed that there were some bruises in wrist and hands of the victim. He is also acquainted with Lagu Hansda, who belongs to his caste but he is not relative. This witness has denied the suggestion of defence that he used to establish physical relationship with the victim, which was seen by Fagu Hansda and objected along with his three friends (co-accused persons). Then, at the instance of the prosecutrix and in connivance with her mother and brother, she lodged this false case.
P.W.3- Arod Soren is also cousin of the prosecutrix. He came to know about the occurrence of gang rape committed by the accused persons on disclosure of the prosecutrix, when she arrived at her parental home. He also reiterates that a village Panchyati was convened and the accused persons were also informed but they did not attend the Panchyat rather they fled away. He has also identified all the accused persons behind the dock.
There is nothing in his cross-examination to rebut his above testimony. He has denied the suggestion of defence that after death of her husband, the prosecutrix was physically exploited by Prakash Hembram (P.W.1) rather he has further explained that Prakash Hembram is full blood brother of the prosecutrix. He has also denied the suggestion of defence that on the date of occurrence, the prosecutrix has gone to see fair. He has also denied the suggestion of defence that on the date of alleged occurrence, the prosecutrix stayed in the house of Prakash Hembram, who committed rape upon her and seen by the accused persons. Hence, she lodged this false case.
P.W.5-Narendra Nath Soren is also a hearsay witness of the occurrence from the prosecutrix. It was disclosed by the victim lady that the accused persons, namely, Hemanto, Fuchu, Bhuda and Fagu have committed rape with her at Lapit Chhencha Forest while she was in the way to her parental home. He also states that a Panchyat was convened in the village Jerka but the accused persons did not attend the Panchyati. Hence, this case was lodged. He identified the accused persons behind the dock.
In his cross-examination, he admits that no document of Panchyat was prepared because no accused persons attended the Panchyat. He further states that village Mukhiya Khogendra Nath Singh and village Pradhan Nandlal Soren were present. He also went to the police station with the victim at the time of lodging FIR. He also admits that on the date of occurrence at about 6:30 pm, he came to know about the occurrence from the brother of the victim, namely, Prakash Hembram (P.W.1) but denied the suggestion of defence that at the instance of Prakash Hembram, the accused persons have falsely implicated in this case.
P.W.6-Sutik Soren is also a hearsay witness and came to know about the occurrence of rape committed with the prosecutrix by the accused persons at Lapit Chhencha Forest at the time of village Panchyati, when it was disclosed by the prosecutrix herself.
In his cross-examination, he has stated before the police that the villagers told that at first Panchyati will be convened and the accused persons will be punished by the Panchyat but the accused persons did not attend the Panchyati. Then, this case was lodged.
P.W.7-Lagu Hansda has stated in his examination-in-chief that he knows the prosecutrix, who resides at village Amda Pahari. It was a season of Kalipuja when he met with the prosecutrix in the way when she was wearing only blouse and petticoat. He stated nothing else and denied the disclosure of incident to him by the victim and hence, declared hostile by the prosecution. The attention of this witness has been drawn towards his statement before the police under section 161 of Cr.P.C, wherein he has stated that the occurrence of rape was disclosed by the prosecutrix at the place of occurrence itself, then he brought her to her parental house.
In his cross-examination, he admits that police from Patamada Police Station came to his home and told him to give false evidence in this case.
P.W.9-S.I. Makru Ram Asur has proved the endorsement on written report for registration of FIR as Ext.2 and Formal FIR Ext.3. He undertook the charge the investigation of this case on 08.11.2013. He recorded the restatement of the victim and proceeded to the place of occurrence and inspected the same, which is situated at a distance of 15 kms from the police station, known as Lapit Chhencha Forest area, where all the accused persons committed rape with the victim one by one. He has sent the victim for medical examination and also got her statement recorded under section 164 of Cr.P.C. and after finding sufficient evidence, submitted charge-sheet.
In his cross-examination, this witness admits that he has not noticed any mark of injuries on the body of the prosecutrix. He has stated that the witness, Lagu Hansda (P.W.7) had not told him that police had told him to give false evidence. He has also not interrogated about the character of the victim. He has not inspected that there was any love affair of the victim with her co-villager, Prakash Hembram (P.W.1). He has also denied the suggestion of defence that in the tribal community due to poverty, the people are dependent upon forest and also live in a half-naked condition. He has also denied the suggestion of defence that the prosecutrix was seen under objectionable condition with Prakash Hembram by the accused persons, hence she lodged this false case. He has also denied that his investigation is defective inasmuch as he has not recorded the statement of independent witnesses and seized nothing incriminating showing the involvement of the accused persons in the alleged occurrence and submitted charge-sheet without sufficient evidence.
The accused persons (appellants) in their statement recorded under section 313 of Cr.P.C. have absolutely denied the occurrence and simply pleaded their innocence. The trend of cross-examination of the witnesses of facts and by way of suggestions given to the witnesses, further plea of defence is that the prosecutrix was seen by the accused persons under objectionable condition with Prakas Hembram (P.W.1). It is also pleaded that the victim was usually indulged in sexual activity with other persons due to death of her husband. However, no oral or documentary evidence has been adduced by the defence.
Before embarking upon scrutinizing the evidence as discussed above, it is pertinent hereto extract the relevant provisions of law for constituting the offence of gang rape:-
“376D. Gang rape.- “Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
The Hon’ble Apex Court, in the case of “Krishan Kumar Malik vs. State of Haryan (2011) 7 SCC 130, has held that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
Now, we have to proceed with evaluation of evidence in relation to the charge leveled against the appellants keeping in mind the aforesaid provisions of law for constituting the offence of rape, which is relevant to this case. In the instant case, the prosecutrix (P.W.4) is the sterling witness and has supported the prosecution case that on the date of occurrence at about 2:30 to 3:00 pm, while she proceeded for her parental home from her matrimonial home and as she reached near Lapit Chhencha Forest area, four accused persons caught hold of her and brought her to a drain and committed rape with her one by one. When the prosecutrix tried to raise hulla, she was threatened to kill by drowning in the nearby ditch. Upon hearing the movement of someone near the place of occurrence, all the accused persons fled away from there. Then, she met with one Lagu Hansda (P.W.7) and she was taken to the house of Prakash Hembram P.W.1 (her own brother) and stayed at his house over the night. On the next day, a Panchyati was convened, but the accused did not attend the Panchyati. Thereafter, this case has been lodged. The prosecutrix has properly explained the three days’ delay in lodging this case that the victim lady is a widow and illiterate lady belonging to the village and there was a concept of meeting in the village area prior to reporting the matter to the police, hence, as a result of which, the delay has occurred. It further appears that the prosecutrix has for the first time come to know about the names of all the accused persons in the Panchyati. It is admitted fact that there was a forest area in between her parental house and matrimonial house and the accused persons taking the advantage of lonely place and the prosecutrix being alone, they committed gang rape with her one by one and as a result of which, she sustained injury in her back, breast, wrist and over her leg, which has been corroborated by the medical examination report conducted by Dr. Puja Priya (P.W.8) and found mark of violence over person of the prosecutrix. It further transpires that in her cross-examination, the prosecutrix admits that she has put her thumb impression on the blank paper but this will also not affect the merit of the prosecution case as the contents of written report, her evidence before the court, her statement before judicial magistrate under section 164 of Cr.P.C. and her medical examination report, all consistently support the incident of gang rape with her by all the accused persons. It further appears that the prosecutrix is an illiterate widow lady and she used to put her thumb impression. Therefore, minor contradictions and discrepancies are always bound to occur. Hence, the minor discrepancies or contradictions, if they are not shattering the very substance of the prosecution case, should be ignored. P.W.3- Arod Soren and P.W.5-Narendra Nath Soren, who have deposed in clear terms that Prakash Hembram is full blood brother of the prosecutrix and there cannot be physical relationship in between the prosecutrix and Prakash Hembram as suggested by defence. Further defence of the appellants is that due to village politics, the appellants have falsely been implicated in this case, has no leg to stand, because no oral or documentary evidence has been brought on record to substantiate the same. It further transpires that the prosecutrix could not have identified all the accused persons by their names but behind the dock, she has identified them by their faces, who were involved in commission of gang rape with her, so only due to fact that she could not identify the accused persons by their names, her evidence cannot be doubted. It further appears that the prosecutrix is a widow lady aged about 50 years and there was a gap of 72 hours in between the incident of rape and medical examination, hence, non-detection of sperm is natural phenomena. However, the presence of marks of violence on other parts of her body especially the breast, lower back are very important corroborative piece of evidence to establish the occurrence of rape. In the instant case, there is no reason for the prosecutrix to falsely implicate the accused persons in such a heinous offence like gang rape with her. Prosecutrix appears to be absolutely reliable and trustworthy witness.
In view of the aforesaid discussion and reasons, we find that learned trial court has committed no error of law in convicting the appellants for the offence under section 376(D) of IPC, which is, hereby, upheld and confirmed. We do not find any merits in these appeals, which stands dismissed.
Pending I.A(s), if any, is also disposed of, accordingly.
The appellant, Hemento Singh @ Hemant Singh @ Hato Singh of Cr. Appeal (DB) No.1283 of 2018 is in custody. Let a copy of this judgment be furnished forthwith to the appellant through learned A.P.P.
The appellants, namely, Ramnath Singh @ Munda Singh, Vibhishan Singh @ Pnchu Singh and Fagu Hansda @ Sufal Hansda of Cr. Appeal (DB) No.1337 of 2018 are on bail by way of an order passed by the Co-ordinate Bench of this Court in I.A. No.2120 of 2024, thus their bail bonds are cancelled and sureties are discharged from their respective liability of bail bonds. They are further directed to surrender before the concerned trial court within two months from the date of the judgment to suffer the sentence awarded to them, failing which, learned trial court shall take all coercive steps for taking them into custody and sending them to jail for sustaining the remaining period of sentence awarded to them.
Let a copy of this judgment be sent back to the court concerned for information and needful.
Per Ananda Sen, J. : I agree