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2002 DIGILAW 1037 (JHR)

BISHNU MAHLI KISHUN MAHLI v. STATE OF JHARKHAND

2002-09-16

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
Judgment : LAKSHMAN URAON, J. ( 1 ) APPELLANTS in all these five criminal appeals have challenged the judgment and order of conviction and sentence, passed by the learned 8th Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 428 of 1995, whereby he was convicted appellants Pushuwa Mahli and Bishun Mahto (Cri. Appeal No. 193 of 1998-R) under Section 376 (2) (g) of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years each, whereas rest appellants, namely, Budhram Mahto (Cri. Appeal No. 390 of 2000-R), Malu Mahto (Cri. appeal No. No 117 of 200-R), Asharam Thakur (Cri. Appeal No. 223 of 1998-R) and Babulal Mahli alias Babulal Mahto (Cri. Appeal No. 197 of 1998-R), have also been convicted under Section 376 (2) (g) of the Indian Penal Code and each of them have been sentenced to undergo rigorous imprisonment for life. ( 2 ) THE victim girl Resham Kumari, the informant (PW 4), Surdhani Kumari (PW 5) and Pairo (PW 6) along with two other girls of the village, namely, Nanki Kumari and Karmi Kumari (both of them have not been examined in this case) had gone to Tanti Silvey Bazar on 10-2-1995 to sell woods. After selling the woods. they were returning to their homes, situated at Village-Ulatu Kapil Tola Police Station Tanti Silvey, District Ranchi, and at about 6. 00 p. m. in the evening they reached Chorpokha. At that place appellants Malu Mahto, Babulal Mahli, Bishun Mahli, Asharam Thakur, Budhram Mahli and Pushuwa Mahli, all of Village-Chatra, who had concealed themselves in a nearby bush, came out running and caught hold of the informant and two other girls. When they raised hulla, then at the point of pistol and chhura (dagger), the appellants threatened them to keep silent. They caught their arms and pressed the mouths and thereafter molested them only with an intention to commit rape upon them. The informant Resham Kumari (PW 4) stated that appellant Malu Mahto and Budhram Mahli committed rape one by one upon her by force, laying her down on the ground. There was semen and blood spot on her sari and petticoat. She sustained injures on her private part. Appellant Babulal Mahli, and Ashram Thakur committed rape on Surdhani Kumari (PW 5), Pairo (PW 6) was raped by appellant Bishun Mahli and Pushuwa Mahli by force, laying her down on the ground. There was semen and blood spot on her sari and petticoat. She sustained injures on her private part. Appellant Babulal Mahli, and Ashram Thakur committed rape on Surdhani Kumari (PW 5), Pairo (PW 6) was raped by appellant Bishun Mahli and Pushuwa Mahli by force, laying her down on the ground. The other two girls namely, Nanki and Karmi managed to escape and fled away towards the village, raising hulla On hulla, the nearby villagers rushed to the place of occurrence and then all the appellants fled away, after committing rape on the above three victim girls. The villagers chased the accused persons and apprehended Malu Mahto (appellant in Cri. appeal No. 117 of 2000-R ). On the fardbeyan recorded on 10-21995 at 8. 30 p. m. (Ext. 2) all the three victim girls gave their L. T. Is. ( 3 ) THE alleged occurrence took place only due to common intention of all the appellants to commit rape, who are of the nearby villages within Tanti Silvey Police station. They were knowing that the victim girls due to poverty used to go to Tanti Silvey Bazar to sell woods. It was their usual feature of going to Tanti Silvey and returning to their homes in the evening. All these six appellants in the above mentioned five criminal appeals, in furtherance of their common intention to commit rape, hatched up a plan and thereby concealed themselves In a nearby bush near Chorpokha, which is a lonely place. They were waiting the return of the victim girls. As the nearby village is adjacent to the village of these victim girls, they were knowing them. Some of them were known by face and names and the others were known by face. At about 6. 00 p. m. while they were returning and reached Chorpokha, all the six appellants chased the victim girls. The victim girl Pairo Kumari was caught by Pushuwa Mahli and Bishun Mahli (appellant in Cri. Appeal No. 193 of 1998-R) and committed rape on her whereas Resham Kumari was caught hold of and raped upon by Budhram Mahli (appellant in Cri. Appeal No. 390-R) and Malu Mahto (appellant in Cri. Appeal No. 117 of 2000-R) and victim girl Surdhani Kumari was caught hold of and raped upon by Asharam Thakur (appellant in Cri. Appeal No. 223 of 1998-R) and Babulal Mahli (in Cri. Appeal No. 197 of 1998-R ). Appeal No. 390-R) and Malu Mahto (appellant in Cri. Appeal No. 117 of 2000-R) and victim girl Surdhani Kumari was caught hold of and raped upon by Asharam Thakur (appellant in Cri. Appeal No. 223 of 1998-R) and Babulal Mahli (in Cri. Appeal No. 197 of 1998-R ). ( 4 ) DR. Usha Sinha (PW 8) examined the victim girls on 11-2-1995, on the very next day of the alleged misfortune evening, at about 1. 20 p. m. On examination on the person of Surdhani Kumari, no mark of injury on her private part or on her body was found. There was no stain on her private parts or on her clothes. On examination of vaginal smear no dead or alive spermatozoa was seen. There was no foreign hair on the private part. Her age was assessed in between 19 and 20 years. The doctor gave her opinion that she could not find any positive evidence of rape on her. She prepared injury report in her pen and signature (Ext. 5 ). On the same day she examined Resham Kumari (PW 4) and found her hymen ruptures fresh. There was laceration around hymen. The vagina admitted one finger loose. Vaginal smear was taken examined by Pathologist. Occasional dead spermatozoa were seen. Large number of R. B. C. were seen. Her age was assessed to be 19 years. The doctor found commission of rape on her within 24 hours and prepared injury report in her pen and signature (Ext. 6 ). On the same day the doctor also examined victim Pairo (PW 6) and found her hymen ruptures fresh. There was laceration around hymen. Vagina admitted one finger. On examination of vaginal smear, the Pathologist found ooccasional dead spermatozoa. Large number of R. B. C. were present. Her age was assessed above 15 years and below 17 years. The doctor opined that rape was committed upon her within 24 hours and she prepared injury report in her pen and signature (Ext. 7 ). ( 5 ) AS the doctor did not find any evidence of rape on Surdhani Kumari (PW 5), the learned counsel for the appellants, Asharam Thakur and Babulal Mahli (Cri. Appeal No. 223 of 1998-R and 197 of 1998-R) has argued that these appellants can not be convicted for the alleged gang rape on Surdhani Kumari. 7 ). ( 5 ) AS the doctor did not find any evidence of rape on Surdhani Kumari (PW 5), the learned counsel for the appellants, Asharam Thakur and Babulal Mahli (Cri. Appeal No. 223 of 1998-R and 197 of 1998-R) has argued that these appellants can not be convicted for the alleged gang rape on Surdhani Kumari. ( 6 ) ON this point, the evidence of Surdhani Kumari (PW 5) has to be considered by me as to whether she was raped or not by these appellants. She has deposed that while she was returning home after selling woods in Tanti Silvey Bazar along with Karmi, Nanki, Pairo and Resham and reached near Chorpokha at about 6. 00 p. m. , these appellants surrounded them. She knew appellants Babulal Mahli and Asharam Thakur by face and name, who closed her mouth. she was lifted to a nearby bush and was raped. On hulla the nearby villagers came. They chased the accusedpersons and another appellant Malu Mahto was caught. Thereafter, all the victim girls and others went to the Police Station where their statements were recorded, on which they gave their L. T. Is. Thereafter, they were sent to Ranchi for medical examination. She identified both the appellants Asharam Thakur and Babulal Mahli in course of her evidence in court by name. She pointed out the other four appellants that she does not know their names but they were the persons, who committed rape on the other two victim girls, namely, Resham Kumari and Pairo. Pairo (PW 6) and the informant (PW 4 ). Other two victim girls, have stated that while they were returning homes after selling woods and reached at about 6. 00 p. m. near Chorpokha place, along with two other girls, namely, Nanki and Karmi, who managed to escape, the appellants caught hold of three victim girls. They have named all these appellants as Budhram Mahli, Malu Mahto, Babulal Mahli, Asharam Thakur, Pushuwa Mahli and Bishnu Mahli. They have deposed that at the point of pistol they committed gang rape on them. Appellant Budhram Mahli and Malu Mahli (appellant in Cri. Appeal Nos. 390 of 2000-R and 117 of 2000-R) committed rape on Resham Kumari (the informant) whereas Surdhani Kumari was raped by Asharam Thakur and Babulal Mahli, as deposed by Surdhani herself (PW 5 ). They have deposed that at the point of pistol they committed gang rape on them. Appellant Budhram Mahli and Malu Mahli (appellant in Cri. Appeal Nos. 390 of 2000-R and 117 of 2000-R) committed rape on Resham Kumari (the informant) whereas Surdhani Kumari was raped by Asharam Thakur and Babulal Mahli, as deposed by Surdhani herself (PW 5 ). They have also stated that Pushuwa Mahli and Babulal Mahli (appellants in Cri. Appeal No. 193 of 1988-R) committed rape on Pairo Kumari. All the victims were examined by the doctor. All the victim girls have deposed that they were knowing all the appellants by face. Their statements were recorded under Section 164 of the Code of Criminal Procedure. ( 7 ) PW 1 (Krishna Mahto) on hulla went to Chorpokja and saw Asharam and Babulal, who had caught a girl and when the villagers objected then they were threatened. Thereafter they went to their home and when other villagers came then they chased them and caught appellant Malu Mahto. The other appellants managed to flee away. This witness identified Asharam and Babulal in court. similar is the statement of PW 2 (Gurucharan Munda), who has also stated that he could identify Babulal Asharam and Malu. PW 3 (Sudarshan Mahto), who also went on hulla to the place of occurrence, has made the similar statement that the appellants were fleeing away. He also claimed to have identified only Babulal Mahli, Asharam Thakur and Malu Mahto. He has deposed that when he along with others went there, found Resham weeping nearby a ridge. At that time Babulal was committing rape on Surdhani. Resham Kumari (PW 4) has corroborated her fardbeyan and identified appellant Malu Mahto and Budhram Mahli in the court. Regarding other four appellants, who were represented on that date, she claimed to identify if they would have been present. She has very specifically stated that she was raped by appellants Budhram Mahli and Malu Mahto. Pairo Kumari was raped Pushuwa Mahli and Bishun Mahli whereas Surdhani Kumari was raped by Asharam Thakur and Babulal Mahli. ( 8 ) RAM Naresh Prasad Yadav (PW 7), 1. 0. of this case, has recorded the fardbeyan of the informant (Ext. 2), on which all the victim girls gave their L. T. Is. Pairo Kumari was raped Pushuwa Mahli and Bishun Mahli whereas Surdhani Kumari was raped by Asharam Thakur and Babulal Mahli. ( 8 ) RAM Naresh Prasad Yadav (PW 7), 1. 0. of this case, has recorded the fardbeyan of the informant (Ext. 2), on which all the victim girls gave their L. T. Is. He (PW 7) thereafter, recorded the statements of victim girls and went to the place of occurrence, where he found marks of footsteps. He also found pieces of bangles, pieces of bra, one chappal, pen and one earring. He found objective findings of struggle (uthapathak) at the place of occurrence, which is at a distance of 1 km. from the Railway Line and there are villages at a distance of 2-1/2 kms. from the place. He seized the articles, found at the place of occurrence, i. e. , bangle pieces, pieces of bra, chappal, pen, earring etc. in presence of the witnesses and prepared seizure list (Ext 4) on which the witnesses signed. He also prepared another seizure list in respect of dot pen, bangles, safety pin, red colour bra and one Chappal of sky blue colour in presence of the witnesses and prepared seizure list (Ext. 4/1 ). Thereafter he referred all the three victim girls for medical examination. ( 9 ) LEARNED counsel for the appellants has argued that it was night and in the month of September at about 6. 00 p. m. when it was lonely place and there were bushes, having no source of identification, the identification of all these appellants by the victim girls is doubtful, as the witness Krishna Mahto (PW 1) could identify only Asharam and Babulal, Gurucharan Munda (PW 2) also claimed to have identified Babulal, Asharam and Malu Mahto. These witnesses did not identify the other accused, who fled away. In view of this fact, it is doubtful that the victim girls identified the accused persons and named them. Learned counsel for the appellants Asharam and Babulal (Cri. Appeal Nos. 223 of 1998-R and 197 of 1998-R) has submitted that there is only oral evidence by the victim girls against them to have committed rape on Surdhani Kumari. But the doctor did not find any sign of rape on her. Hence they can not be alleged to have committed gang rape on her. Appeal Nos. 223 of 1998-R and 197 of 1998-R) has submitted that there is only oral evidence by the victim girls against them to have committed rape on Surdhani Kumari. But the doctor did not find any sign of rape on her. Hence they can not be alleged to have committed gang rape on her. ( 10 ) ON behalf of other appellants, it was argued that the conviction and sentence, passed by the court below, is contrary to the facts and circumstances of this case, because the age of the appellants was not considered by the learned court below. Two of the appellants are the students and the others are in the age group of 20 to 25 years. Hence it was urged that in view of the case, Prem Chand and another v. State of Haryana, and Pramod Mahto and others v. State of Bihar, the sentence should be reduced from 10 years to five years in respect to appellants Pushuwa Mahh Bishun Mahli (Cri. Appeal No. 193 of 1998-R) and so far as the rest four appellants are concerned, their sentence be reduced from life imprisonment to ten years. ( 11 ) IN the present case the oral evidence of the victim girls is that Asharam Thakur and Babulal Mahli (appellants in Cri. Appeal Nos. 223 of 1998-R and 197 of 1998-R) also committed rape on Surdhani Kumari. All the three girls in a nearby bush at Chorpokha, at different places, were forcibly raped, resulting breakage of bangles, bras, earring and other objects, having been found by the Investigating Officer. There was also sign of footsteps and scrambling at the place of occurrence. The appellants had gone there after planning to commit gang rape. There they all participated actively by chasing all the five girls, out of whom Nanki and Karmi managed to escape whereas three girls Pairo, Resham and Surdhani were caught. They were taken to different nearby bushes and were raped after threatening with pistol and chhura. The oral evidence of the victim girls and the other witnesses were corroborated by the Investigating Officer as also by the doctor. ( 12 ) THE learned court below taking into consideration that appellants Pushuwa Mahli and Bishun Mahli are students of M. A. , sentenced them to undergo rigorous imprisonment for ten years. The oral evidence of the victim girls and the other witnesses were corroborated by the Investigating Officer as also by the doctor. ( 12 ) THE learned court below taking into consideration that appellants Pushuwa Mahli and Bishun Mahli are students of M. A. , sentenced them to undergo rigorous imprisonment for ten years. ( 13 ) NO doubt for the offence of gang rape, as prescribed under Section 376 (2) (g) of the Indian Penal Code, the minimum sentence is ten years, which may extend up to imprisonment for life. In the present case, I find that the appellants in a preplanned way were watching the girls who used to return in the evening after selling the woods in Tanti Silvey Market. They had concealed themselves in a nearby bush at the place of occurrence and as soon as the girls reached there, they chased them caught three of them and on the point of pistol and chhura, committed gang rape on by one on all the three victim girls. In the present case I find that Section 376 (2) (g) of the Indian Penal Code is attracted. Having considered the facts and circumstances of this case, evidence and the findings of the Investigating Officer at the place of occurrence, I think that the sentence passed by the learned court below attracts Explanation (1) of the said section, which provides that where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this section. ( 14 ) IN view of this fact, I find that appellants Asharam Thakur and Babulal Mahli, who have been alleged by the victim girls to have committed rape on Surdhani Kumari although the doctor (PW 8) did not find any sign of rape on her, can not be acquitted as their intention and action, as stated above by me, is very clear to commit a gang rape. The witnesses have also stated that both the appellants caught hold Surdhani Kumari, took her in a nearby bush and committed rape on her, which includes the statement of the victim girl (PW 5), as deposed by her in court. The witnesses have also stated that both the appellants caught hold Surdhani Kumari, took her in a nearby bush and committed rape on her, which includes the statement of the victim girl (PW 5), as deposed by her in court. Hence the evidences, adduced of these appellants by the victim girl Surdhani Kumari and other two victim girls, including the village witnesses can not be disbelieved. ( 15 ) SO far as the identification of the appellants is concerned, although PW5. 1, 2 and 3 have tried to save the other three appellants, regarding whom they did not claim to identify, it is only because of hulla that two girls namely, Nanki and Karmi, who managed to escape, rushed to the village, raising hulla On their Hulla, the villagers came and saw commission of rape on the victim girls Surdhani, Resham and Pairo. Resham Kumari was weeping after commission of rape on her. The witnesses saw that at a close distance Surdhani Kumari was also being reaped by Asharam Thakur and Babulal Mahli whereas Pairo Kumari was raped by Pushuwa Mahli and Bishun Mahli. When the villagers went there, all the appellants fled away but on chase, appellants Malu Mahto (Cri. Appeal No. 117 of 2000-R) was caught by them. ( 16 ) IN view of the fact that all the victim girls during course of their evidence in court have identified all these appellants, who are the residents of a nearby village and who used to meet in the market or on their way, while going to jungal or returning home or working in the field, there remains no doubt regarding identification of the all the appellants by the victim girls. ( 17 ) IN view of the above considered facts, evidence of the victim girls and the doctor (PW 5) as also the Investigating Officer (PW 7), I find that it is a well proved case of gang rape, committed in furtherance of common intention of all the six appellants in the above five criminal appeals. All the appellants, as I have discussed above, in a preplanned way had gone at the place of occurrence, namely, Chorpokha, which is a lonely place, covered by the bushes. The nearby villages are at a distance of 2-1/2 kms. away from the place of occurrence on all the sides. All the appellants, as I have discussed above, in a preplanned way had gone at the place of occurrence, namely, Chorpokha, which is a lonely place, covered by the bushes. The nearby villages are at a distance of 2-1/2 kms. away from the place of occurrence on all the sides. Hence the appellants had chosen this place, which was quite safe for them to commit rape and flee away. thus, I find that there is no merit in all these five criminal appeals. As I have stated above that the evidence in the facts and circumstances of this case shows that the poor girls who used to sell woods in the market and return home were raped by all these appellants one by one, hence I do not think that sentences awarded by the learned court below requires to be reduced. ( 18 ) IN the result, I no merit in all the five criminal appeals. Accordingly, all these five appeals are hereby dismissed and the judgment and order of conviction and sentences, passed against all the appellants by the learned court below is hereby confirmed. Appeals dismissed. --- *** --- .