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2006 DIGILAW 1382 (JHR)

Jai Krishna Mandal v. State of Jharkhand

2006-12-01

D.K.SINHA

body2006
JUDGMENT D.K. Sinha, J - The appellants have preferred this Cr. Appeal against the judgment of conviction under Sections 366 and 376 I.PC. and order of sentence passed against them awarding rigorous imprisonment for 7 years and 10 years respectively on each count by Shri S. Prasad, learned Sessions Judge, Godda in Sessions Case No. 36/1999. Both the sentences were directed to run concurrently. 2. The prosecution story is in narrow compass. The informant Anti Mandai (P.W.5) delivered his statement before the Pathargama Police Station on 14.2.99 with respect to the occurrence that on 7.2.1999 at about 4 p.m. his daughter-in-law Rita Devi P.W. 6, had been to the grazing grounds with the she-goats but she did not return in the night and could not be traced. The informant presumed that his daughter-in-law might have' gone to her parental home. It was conspicuous that the appellants were also absent from the village since then. On 11.2.99 the appellants returned back to their village and on interrogation the informant gathered that the appellant Jai Krishna Mandai and one Shankar Singh of Village Gangta had kidnapped Rita Devi and she was confined in the village Maheshadih within the District of Banka. The appellants Jai Krishna Mandai and Munna Das appellants then were apprehended and confined in a school and thereafter the informant filed a written report giving rise to Godda (M) P.S. Case No. 65/99 for the offence under Section 366A/34 I.P.C. against three accused persons including the appellants. The police after investigation submitted charge-sheet against the appellants showing the another accused Shankar Singh absconder. The informant Rita Devi was rescued in course of investigation and on the basis of her statement recorded under Section 164 Cr.P.C. the offence under Section 376 I.P.C. was introduced besides under Section 366 I.P.C. 3. Mr. Jai Prakash Jha, learned Senior Counsel appearing on behalf of the appellants submitted that in the instant case the Investigating Officer was not examined on behalf of the prosecution and non-examination of I.O. has deprived the appellants to cross-examine him on the factum of recovery of Rita Devi and in this manner the appellants have been highly prejudiced. Mr. Jai Prakash Jha, learned Senior Counsel appearing on behalf of the appellants submitted that in the instant case the Investigating Officer was not examined on behalf of the prosecution and non-examination of I.O. has deprived the appellants to cross-examine him on the factum of recovery of Rita Devi and in this manner the appellants have been highly prejudiced. He further pointed out that the statements of the witnesses produced on behalf of the prosecution suffered from inherent contradiction and certain developments were made by them against what they had stated before the police in course of investigation under Section 161 Cr.P.C. The important witness such as one Dipu in whose house it was alleged that the victim Rita Devi took shelter at Pathargama was not produced in the witness box on behalf of prosecution. It was an admitted fact, as accepted by the witnesses that there was enmity prevailing between the parties much prior to the alleged occurrence. Mr. Jha further submitted that the learned Sessions Judge perhaps lost sight of the narration of the fact by the victim that she was taken from one village to another within the view of the public at large but at no point of time she ever tried to attract the attention of the by-passers or the villagers for her rescue or she did not try to run away from the clutches of the appellants. Mr. Jha pointed out that the victim P.W. 6 admitted that she was within the control of the accused Shankar Singh till 14.2.1999 •and in this manner though she had given clean chit to the appellants but the latter have been convicted and sentenced she admitted that she was wearing the same dress i.e. in the same blouse, petticoat & sari for 5 days and in spite of the allegation of commission of rape on her no stain of semen on her garment was found, in the backdrop of the allegation that she was gang raped by three persons including the appellants for 5 consecutive days. The Doctor ruled out the possibility of forced sex with her and in this manner the conviction and sentence passed against the appellants is illegal and bad in law which is fit to beset aside. 4. Finally Mr. The Doctor ruled out the possibility of forced sex with her and in this manner the conviction and sentence passed against the appellants is illegal and bad in law which is fit to beset aside. 4. Finally Mr. Jha submitted that the witnesses produced on behalf of the prosecution said to be the material witnesses are none but the near relatives of the informant who are highly interested and inimical to the appellants and therefore, the evidence of such witnesses were no scrutinized by the trial court in its right perspective. 5. The medical evidence does not suggest that the victim was put under the influence of sleeping pills or that she was throughout under the influence of intoxication. Her wearing apparels in respect of the period of her confinement when she was subjected to gang rape was not seized for its transmission to the forensic science laboratory for the test and report so as to produce the corroborative evidence and in this manner it can safely be argued that the investigation of the case was not held properly. 6. The prosecution has examined altogether 8 witnesses in the trial court below. Besides, the statement of the victim Rita Devi was recorded under Section 164 Cr.P.C. on 16.2.1999 and in her statement she categorically stated that it was Sunday and while she was going towards the field with the she-goats and as soon as she arrived near a 'Siris' tree, outside the village she was apprehended by the appellants and one Shankar Singh who lifted, put pills in her mouth and by gagging her mouth she was removed to different places in a different villages. She was under influence of such pills for which she could not raise alarm. She was gang raped in another village by all the three accused persons in the first night of her confinement and when she protested the acts of the accused, she was assaulted by them. On the next date she was taken to another village and on every night she was subjected to sexual assault. She was confined in such manner that she was not allowed to raise alarm and in this manner the accused persons including the appellants committed gang rape on her for consecutive 5 nights. Finally she was deserted in the evening. On the next date she was taken to another village and on every night she was subjected to sexual assault. She was confined in such manner that she was not allowed to raise alarm and in this manner the accused persons including the appellants committed gang rape on her for consecutive 5 nights. Finally she was deserted in the evening. She spent her night in the house of one Dipu and in the next morning she went to the house of one Budhu Sah, her maternal granduncle and from their she was brought to her matrimonial home by Budhu Sah. She admitted that the accused Jai Krishna Mandai had land dispute with her husband and father-in-law. 7. The victim was examined by the lady Doctor on 16.2.99 at about 11.30 a.m. but no mark of violence was found on her person and similarly no spermatozoa dead or alive was found in her veginal swab but the lady Doctor was of the opinion that the possibility of sexual intercourse with Rita Devi could not be ruled out. She was produced and examined as P.W. 6 and she corroborated her earlier statement as recorded under Section 164 Cr.P.C. In the cross-examination she admitted that the appellant Jai Krishna Mandai was the cousin of her husband in distant relation and was his agnate and that she was not on talking terms with him. The appellant Raj Kishore @ Munna Dass was aman of hard hearing and that the accused Shankar Singh was an "Ojha" but she had no occasion to go to Shankar Singh for her treatment. She was administered sleeping pills for two days as such she could not be able to speak as to in how many villages she was taken away by the accused persons. She admitted that the accused persons had been taking her away forcibly from one village to another and whenever she tried to raise alarm she was assaulted. She came across the by-passers but none of them came to rescue her and in this manner she was brought to a village and confined in a room in the evening and from there she was taken to another village. In the morning and from there she was taken by Shankar Singh to Pathargama where she was deserted. She came across the by-passers but none of them came to rescue her and in this manner she was brought to a village and confined in a room in the evening and from there she was taken to another village. In the morning and from there she was taken by Shankar Singh to Pathargama where she was deserted. She admitted that she could not convey to other about her confinement whenever she was allowed to go to answer the call of nature even by raising alarm. She admitted that her husband as well as father-in-law had land dispute with the appellants much prior to the occurrence but she denied that on the instance of her father-in-law and husband she implicated the appellants in the false case on account of land dispute. 8. From the statement of the victim Rita Devi recorded under Section 164 Cr.P.C. as well as in the trial court below on interval of about one year four months I find that she is consistent on all the points including her kidnapping by three accused persons including the appellants, commission of gang rape and that she was removed from one village to another village and all the accused persons had committed rape on her for consecutive 5 nights. She was further consistent that she was let-off at Pathargama road and she was taken away by one Dipu 'to his home where she was kept properly and from there she went to the house of her maternal granduncle Budhu Sah who took to her matrimonial village. The victim was bearing pregnancy for about 1 & 1/2 months during the occurrence and she delivered a male child after 8 months thereafter. In the test of veginal smear there was presence of Epicells ++. The lady Doctor deposed that the victim was in the same sari and petticoat which she had wearing during the period of sexual intercourse as she gathered the fact from Rita Devi. 9. P.W. 1 Pradeep Mandai is the husband of the victim Rita Devi. He deposed that on 7.2.1990 his wife Rita Devi had taken away the she-goats to the grazing ground but when she did not return in the evening he made extensive search. 9. P.W. 1 Pradeep Mandai is the husband of the victim Rita Devi. He deposed that on 7.2.1990 his wife Rita Devi had taken away the she-goats to the grazing ground but when she did not return in the evening he made extensive search. He further deposed that since the very day of her missing Jai Krishna Mandai and Raj Kishore @ Munna Dass were also not in their house and on 11.2.99 when both returned back and were interrogated, the appellant Munna Dass confessed that Jai Krishna Mandai and Shankar Singh had kidnapped his wife. The appellants were apprehended by the villagers and the police was informed. The police came in the village and took them away. His wife was let-off on 15.2.99 by the accused Shankar Singh at Pathargama and the father-in-law of his uncle informed about the recovery of his wife and he took her to her matrimonial home. Her statement was recorded in the Court on 16.2.99. She admitted that the occurrence was narrated to her by her wife and the witness stood to the test of cross-examination. 10. P.W. 2 Ashok Mandai and P.W. 3 Sarju Mandai are the co-villagers who derived information from Rita Devi about the commission of rape on her by the appellants. P.W. 3 Sarju Mandai stated that conspicuously the appellants were not in their houses since the day of missing of Rita Devi and for such reason her in-laws suspected their complicity. He corroborated that Munna Dass on interrogation confessed that Jai Krishna Mandai and Shankar Singh kidnapped Rita Devi. Both were apprehended. On information the police came and took them away to the police station. He admitted having not seen the appellants taking away or kidnapping Rita Devi. 11. P.W. 4 Utama Devi has corroborated the evidence of the other witnesses as well as the absence of the appellants from the village since the day of the missing her daughter-in-law Rita Devi. She further corroborated that the appellants confessed that her daughter-in-law Rita Devi was kidnapped by Shankar Singh and Jai Krishna Mandal. P.W. 5 Anti Mandai is the father-in-law who also corroborated about the missing of her daughter-in-law Rita Devi since 7.2.99 while she had been with the she-goats to the grazing ground. She further corroborated that the appellants confessed that her daughter-in-law Rita Devi was kidnapped by Shankar Singh and Jai Krishna Mandal. P.W. 5 Anti Mandai is the father-in-law who also corroborated about the missing of her daughter-in-law Rita Devi since 7.2.99 while she had been with the she-goats to the grazing ground. When she did not return back in the evening he as well as his wife came out in search of Rita Devi to the field but she was not there and the she-goats were found grazing there. He made extensive search at different places including the parental home of Rita Devi but she could not be located and he came to learn in the village that the appellants were also not there in the village since the missing of his daughter-in-law. When both the appellants returned back in the village on 11.2.99, on interrogation Munna Dass confessed before the villagers that she was taken away by Jai Krishna Mandal. Both the appellants were apprehended by the villagers and confined in a school. He went to the police station, presented a written report by putting his signature and the same was proved as Ext. 1. On recovery of Rita Devi on 14.2.99 she apprised him about her kidnapping by the appellants and Shankar Singh who had put her at different places and that all the three had committed gang rape on her. The witness P.W. 7 Anandi Mandai has also corroborated the statements of other witnesses who derived information about the missing of Rita Devi from her in-laws and also corroborated the confessional statement of Raj Kishore @ Munna Dass before the villagers. 12. I find that P.W.1 Pradeep Mandai, P.W. 3 Sarju Mandai, PW 4 Uttama Devi, P.W.5 Anti Mandai, P.W.7 Anandi Mandai are consistent about the extra-judicial confession of the appellant Raj Kishore @ Munna Dass before the villagers which was made without inducement, threat or promise which is relevant under Section 24 of the Evidence Act. It is settled law that extra-judicial confession by itself is a very weak type of evidence and when the Court, taking into consideration of the surrounding circumstances, entertains doubt about its voluntary nature, it would not be safe to rely upon it but at the same time when the extra-judicial confession is corroborated by circumstantial evidence and is proved to be voluntary, it is reliable. The witnesses are consistent that when the appellants were found conspicuously absent from the village since the day of missing of Rita Devi, the informant suspected their complicity in kidnapping of Rita Devi and when both the appellants returned back on 11.2.99 both were interrogated by the villagers and the appellant Munna Das in his exculpatory statement stated that it were Jai Krishna Mandai and Shankar Singh who kidnapped Rita Devi and only thereafter both the appellants were apprehended and confined in a school building. Their confinement in the school building was only after the confession of Raj Kishore @ Munna Dass and therefore, it can safely be said that the statement of the appellant Raj Kishore @ Munna Das was free from inducement and threat. 13. The victim Rita Devi has categorically narrated in her statement under Section 164 Cr.P.C. as well as before the trial court below as to how she was kidnapped by the appellants and Shankar Singh (absconder) who administered sleeping pills and moved from village to village and was gang raped by them for 5 consecutive nights. Her statements are consistent which inspire confidence. 14. Criminal Law (Amendment) Act, 1983 (43/1983) inserted Section 114A in the Evidence Act which provides that in a prosecution for rape under Section (2) of Section 376 I.P.C. where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. 15. It has been observed in Parikh's Text Book of Medical Jurisprudence and Toxicology defining sexual intercourse that it is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible that Rita Devi was ravished without any injury on her private parts or person. 16. Having regard to the facts and circumstances of the case and materials on the record, I find that though the charge against the appellants was not framed in the appropriate Section of 376(2)(g) of committing gang rape but under Section 376/366 I.PC. 16. Having regard to the facts and circumstances of the case and materials on the record, I find that though the charge against the appellants was not framed in the appropriate Section of 376(2)(g) of committing gang rape but under Section 376/366 I.PC. and that the prosecution did not prefer modification of charge and that no separate notice has been given to the appellants for the modification in the charge as well as for the enhancement of sentence, the conviction as well as sentence of the appellant cannot be modified. I have gone through the judgments delivered in Sessions Trial Case No. 36/1999 by Shri S. Prasad, Sessions Judge, Godda which is well discussed and it does not call for interference in appeal. The conviction of the appellant under Sections 366 and 376 I.P.C. and the respective sentence awarded to the appellants is upheld and maintained. This appeal is dismissed. The bail granted to the appellants stands vacated and they are directed to serve out the remaining period of sentence. The Trial Court is directed to take effective steps.