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2000 DIGILAW 1172 (PAT)

Ayub Ansari v. State Of Bihar

2000-09-28

A.K.PRASAD

body2000
Judgment A.K.Prasad, J. 1. This appeal at the behest of the appellants (Ayub Ansari, Ahsan Ansari and Ansarul Ansari) is directed against the judgment and orders of conviction and sentence dt. 13th August, 1993, in ST No. 596 of 1992, passed by Sri G. W. Baa, the then Assistant Sessions Judge-Ill, Ranchi, whereby the appellants have been convicted under section 376(2)(g)/34 of the Indian Penal Code on the charge of committing gang rape on Gangi Toppo (the prosecutrix) and each has been sentenced to undergo rigorous imprisonment for ten years thereunder. 2. Briefly stated, the prosecution case, as made out in the fard-beyan of Gangi Toppo (P.W.3) recorded by B. K. Singh (P. W. 7), officer-in-charge Gonda Sub-police station, on 16.4.1992 at 10 A.M. at Bhitta More is as under: On 14.4.1992 at about 10 A.M. Kumari Gangi Toppo (the prosecutrix) had gone to Gandhi Nagar Plant for engagement as daily labour. On that date, she did not get any engagement as the work was not in progress and she was returning home. When she reached Gandhi Nagar Plant, on the return journey, Bablu Ansari, the co-accused, resident of village Bhitta came stealthily hiding by the side of the boundary wall and on pistol point with threat to kill her, he dragged her to nearby river. He threatened her with dire consequences if she ventured to raise alarm and when she made a bid to escape, accused/appellants Ahsan Ansari and Ayub Ansari, both residents of village Bhitta and accused/appellant Ansarul Ansari, a resident of village Chandwa came running and all the accused overpowered, threw her on the ground, undressed her and committed rape on her one by one. She was in great pain and became unconscious. When she regained consciousness, she saw Sita Orain (P.W.2), her co-villager, standing there. She narrated the incident to her and returned home in her company and narrated the incident to her mother P. W. 4 {Birsi Toppo). The father of the prosecutrix was not available at village home, as he had gone to the place of his relative and when in the evening on 15.4.1992, he returned, she narrated the incident to him and she was going along with her father (P.W.1), Abhay Toppo to the police station to report the incident, she happened to meet the police officer P.W.7 at Bhitta More, who recorded her fard-beyan (exhibit 4). On the basis of the fard-beyan, the present case came to be instituted. The police officer/ (P.W.7) assumed and commenced investigation, visited and inspected the place of occurrence, effected seizure of a pink Salwar light green panty from the person of the prosecutrix in presence of Prabhu Munda (P.W.5), which were sent to the Forensic Science Laboratory, Patna, under exhibit 3, for chemical examination and report, and on completion of investigation, chargesheet was laid in court against the accused/appellants and co-accused (Bablu Ansari). The case was, ultimately, committed to the court of Sessions by the then Judicial Magistrate, Ranchi vide order dated 4.8.1998. 3. The main defence is of innocence, bare denial that any sexual assault was committed on the prosecutrix and of false implication. 4. At the trial, the prosecution examined seven witnesses in support of its case. They are: P.W.1 Abhay Toppo, a hear-say witness and father of the prosecutrix, P.W.2 (Sita Urain), P.W. 3 (Gangi Toppo), the prosecutrix, P.W.4 (Birsi Toppo), mother of the prosecutrix, P.W.5 (Prabhu Munda), a seizure list, witness, P.W.6 (Dr. Nirmala Kumari), the doctor who had examined the prosecutrix, and P. W. 7 {Vijoy Kant), the Investigating Officer. The defence, on the other hand, examined one witness, namely, D.W. 1 (Balak Hussain), a truck driver, father of accused/appellant (Ayub Ansari), who has stated that the accused/appellant Ayub Ansari was the Khalasi of the truck and between 13.4.1992 to 16.4.1992, the accused/appellant Ayub Ansari was with him at Jhargram in transportation of the goods, carried by the truck, driven by him. Thus the plea of alibi has been taken on behalf of the Ayub Ansari, which was never suggested to the prosecutrix or any other witness at the time of recording of their evidence. The plea of alibi was taken on behalf of the accused/appellant Ayub Ansari at a belated stage and the prosecution was taken by surprise. 5. On consideration of the materials and evidence on record and mainly relying on the testimony of P.Ws. 1 and 2, as well as the medical evidence, the trial court held the accused/appellants guilty of the charge under section 376(2)(G)/34 of the Indian Penal Code and convicted and sentenced them in the manner, as stated above. 5. On consideration of the materials and evidence on record and mainly relying on the testimony of P.Ws. 1 and 2, as well as the medical evidence, the trial court held the accused/appellants guilty of the charge under section 376(2)(G)/34 of the Indian Penal Code and convicted and sentenced them in the manner, as stated above. Further, the trial court disbelieved the plea of alibi taken on behalf of accused/appellant Ayub Ansari because in the cross-examination, D.W. 1 had admitted that he had returned from village Jhargram on 13.4.1992 by 2 PM itself. 6. Learned counsel for the appellants has urged that on the basis of the evidence and identification of the prosecutrix (P.W.3), the charge of rape against appellant Ayub Ansari is established and he is unable to assail his impugned conviction, He fairly submitted that the defence has miserably failed to prove the plea of alibi taken on behalf of appellant Ayub Ansari. But he presses the appeal of appellant Ayub Ansari on the point of sentence alone and urged that a lenient view awarding the punishment may be taken against him because at the time of the occurrence, Appellant/Ayub Ansari was hardly 18 years of age and there is no material on record to suggest that he had any bad antecedent. Mr. Sahu, learned counsel for the appellants, while assailing the impugned conviction of accused/appellants Ahsan Ansari and Ansarul Ansari has contended that the prosecutrix (P.W.3) has not named nor identified these two appellants as the perpetrators of the crime, while P.W.2 (Sita Urain) has made candid statement in her chief-examination that she did not know the culprits by name, who had dragged the prosecutrix to the river side for committing rape and identified them by face, and there is no material on record to suggest that any Test Identification Parade was held for identification of the suspects/culprits, namely, Ayub Ansari, Ahsan Ansari and Ansarul Ansari, and in court for the first time, she has identified the accused/appellant Ahsan Ansari as one who had threatened her with pistol, which in absence of any corroborative evidence, is a weak type of evidence and no conviction, in the circumstances, of accused/appellant Ahsan Ansari can be based. He further pointed out that no witness has named or identified the accused/appellant Ansarul Ansari the culprit, involved in the crime. 7. Mr. He further pointed out that no witness has named or identified the accused/appellant Ansarul Ansari the culprit, involved in the crime. 7. Mr. I. N. Gupta, learned APP appearing on behalf of the State, on the other hand, has resisted the contentions/submissions made on behalf of the appellants. 8. Now the point which falls for consideration is whether the impugned conviction/sentence can be sustained. 9. It may be stated at this juncture that by now it is well settled that conviction can be based on the testimony of the victim(s) of sexual assault aione, unless the same is shown to be infirm and not trustworthy. The evidence of victim{s) of sexual assault stands on par with the evidence of an injured witness, but where there is reason{s) and suspicious cir- cumstances and it is difficult to place im- plicit reliance on the testimony of the victim(s) of sexual assault, the court may look for independent corroboration of the testimony of such victim(s) for sustaining the conviction of the charge of rape. Even if the factum of rape is established beyond reasonable doubt, the accused persons cannot be convicted unless there is reliable and acceptable evidence that they were the culptits, who committed the rape. Bearing this cardinal principle in mind, one may now discuss and analyse the evidence of P.Ws 3 and 2, who are material witnesses. 10. P.W. 3 Gangi Toppo, the prosecutrix, who was aged 13-14 years at the time of the occurrence, has testified to the effect that on the date of the occur- rence, which was Tuesday, she had been to Gandhi Nagar for engagement as a daily labour, but she could not get any work and was returning home, when accused/appellant Ayub Ansari came hiding by the side of the boundary wall, armed witwith a pistol, and on the pistol point he dragged her to the river side, overpowered her, threw her in the ditch and undressed and ravished her, whereafter three more boys came (who had neither been named nor identified by her in court) who too sexually assaulted her in turns. She has further testified to the effect that she felt great pain and became unconscious and when she regained consciousness, she found P.W.2 (Sita Urain) by her side, to whom she narrated the incident. She has further testified to the effect that she felt great pain and became unconscious and when she regained consciousness, she found P.W.2 (Sita Urain) by her side, to whom she narrated the incident. She has explained that as her father had gone out of the village and had returned home on the next day, the first- information report could not be lodged earlier with the police station. She has reiterated in her cross-examination that she was sexually assaulted in the ditch by the river side. It is true that in the fard-beyan, the prosecutrix alleged that co-accused (Babiu Ansari) was the first cuiprit who had dragged her to the river side on pistol point, while in evidence she states that it was accused/appellant Ayub Ansari. P. W. 3 (the prosecutrix) is a witness of tender age. Her attention was not drawn to her earlier statement in the fard-beyan to give an opportunity to explain. To that as it may in the fard-beyan she has alleged that Ayub Ansari too had sexually assaulted her and she is consistent in her evidence on the active participation of the appelfant/Ayub Ansari in the sexual assault made on her. Moreover, such variations are quite natural, even where a truthful witness comes to depose about the details of the incident, which had taken place more than a year ago. Human memory, as it is well known, weakens with lapse of time. Some may be slow to re-capitulate the sequence of rape, while up-holding the prosecution case. I need not go further on this aspect of the matter because Mr. Sahu has frankly conceded that the allegation of sexual assault as against the accused/appellant Ayub Ansari is well established by the prosecution. 11. P.W. 6 (Dr. Nirmal Kumari), who has examined the prosecutrix on 16.4.1992, though after lapse of two days of the occurrence, had found dead spermotozoa, on the pathological examination of the vaginal swab of the prosecutrix and opined that she/the prosecutrix had been raped. P.W. 3 had complained to her father (P.W. 1) and her mother (P.W. 4) that she had been raped. On consideration of the materials on record, I concur with the finding of the trial court that the accused/appellant Ayub Ansari was one of those who had sexually assaulted the prosecutrix. 12. P.W. 3 had complained to her father (P.W. 1) and her mother (P.W. 4) that she had been raped. On consideration of the materials on record, I concur with the finding of the trial court that the accused/appellant Ayub Ansari was one of those who had sexually assaulted the prosecutrix. 12. Now let us come to the involvement of accused/appellant Ahsan Ansari and Ansarul Ansari in the occurrence/sexual assault on the prosecutrix. P.W. 1 has not named nor identified them in her evidence as the culprits who had perpetrated the crime. No doubt, in the chief-examination, the prosecutrix. (P. W. 3) at one place has stated that she-knew all the accused, but in her cross-examination made on behalf of the set of these appellants, she has made candid statement that she had seen these accused/appellants at the time of the occurrence for the first time and did not know them from before. She has also stated that she did not disclose their names before the police. She is even unable to say to which village these appellants belong. She does not hesitate in admitting that the names of these accused were not disclosed by her to the Investigating Officer and probably for such reason, the names of the accused/appellants Ahsan Anssari and Ansarul Ansari, find place, without parentage, in the fardebeyan. It is quite intriguing how the names of Ahsan Ansari and Ansarul Ansari, even without parentage, came to be mentioned in the fard-beyan. P. W. 2 (Sita Urain) has stated that when on the date of the occurrence, she was descending into Vitta river, she chanced to see four boys crossing it, who had forcibly, on way, taken away the prosecutrix, but she does not know the names of those boys and claimed to identify them when shown/or seeing them. She has further stated that those boys had dishonoured the prosecutrix and she had witnessed the incident from a distance. She did not witness the actual sexual assault. When she ran to the spot, she found that the prosecutrix was lying unconscious on the spot. She has further stated that she has identified the accused/appellant Ahsan Ansari in court as one who had threatened her with a pistol, saying not to raise alarm. She did not witness the actual sexual assault. When she ran to the spot, she found that the prosecutrix was lying unconscious on the spot. She has further stated that she has identified the accused/appellant Ahsan Ansari in court as one who had threatened her with a pistol, saying not to raise alarm. She has made candid statement in the cross-examination that when she went to the ditch, when the prosecutrix was lying unconscious, none else was present there and in fear she had not raised any hue and cry. When according to P. W. 2, the culprits were not known to her and she claimed to identify them by face, it was obligatory on the part of the prosecution to hold Test Identification Parade during investigation of the case, for establishing the identity of accused/appellant Ahsan Ansari or any other culprit (s), whom P.W. 2 claimed to identify by face. Thus, the identification of accused/appellant Ahsan Ansari in court for the first time by P. W. 2 is a weak type of evidence, which is not corroborated by any other, direct or circumstantial, evidence on record. It has been noticed above that the prosecutrix has not named or identified the accused/appellant Ahsan Ansari. Hence, the conviction of accused/appellant Ahsan Ansari, even on the identification of P. W. 2, for the first time in court, in absence of any previous Test Identification Parade, is insufficient to be sustained on the charge of committing rape. Hence, the accused/appellant Ahsan Ansari is entitled to benefit of doubt. Neither the prosecutrix nor P. W. 2 has named or identified the accused/appellant Ansarul Ansari, as one of the culprits, involved in the crime. There is no evidence to connect this appellant with the crime in question. 13. For the reasons aforesaid, the conviction of accused/appellant Ayub Ansari under section 376(2)(G) of the Indian Penal Code is sustained. At the time of the occurrence he was aged about 18 years. There is no material on record to suggest that he has any criminal antecedent to his credit The occurrence took place more than 8 years ago. In the facts and circumstances, stated above, the sentence of rigorous imprisonment for ten years passed on the accused/appellant Ayub Ansari by the trial court is modified to six years. There is no material on record to suggest that he has any criminal antecedent to his credit The occurrence took place more than 8 years ago. In the facts and circumstances, stated above, the sentence of rigorous imprisonment for ten years passed on the accused/appellant Ayub Ansari by the trial court is modified to six years. In my considered view, the modified sentence of imprisonment awarded to appellant Ayub Ansari would serve the ends of justice. Appellant Ayub Ansari is on bail. He is directed to surrender in the court below forthwith to serve out the remaining part of the sentence, failing which the court below shall take all steps for his apprehension. In view of the discussions made above and regard being had to the facts and circumstances of the case the conviction of the accused/appellants Ahsan Ansari and Ansarul Ansari under section 376(2)(G)/34 of the Indian Penal Code cannot be sustained. Hence, their orders of convtion and sentence passed by the trial court are set aside and they are acquitted of the charge. They are on bail, They are discharged from the liability of their bail bonds. 14. In the result, the criminal appeal, so far appellant no. 1 (Ayub Ansari) is concerned, is dismissed with the above observations/directions. So far the criminal appeal of appellant nos. 2 and 3, namely, Ahsan Ansari and Ansarul Ansari, is concerned, it is allowed, as indicated above.