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Jharkhand High Court · body

2007 DIGILAW 689 (JHR)

Budhram Gope v. State of Jharkhand

2007-08-28

D.K.SINHA, D.P.SINGH

body2007
JUDGMENT By Court.-The appellants have preferred this appeal against the judgment of conviction under section 376(2)(g) of the Indian, Penal Code and order of sentence whereby and whereunder both of them were sentenced life imprisonment by the order of the 1st Additional Sessions Judge, Singhbhum (West) at Chaibasa in S.T. No. 295 of 1997 arising out of Majhgaon (Kumardungi) PS. ,Case No. 14 of 1997. 2. The prosecution story, as it stands narrated in the Fardbeyan (Ext. 3) of the informant Maki Sirka (P.W. 4), was that on 11.5.1997 while she was returning to her village home Tangar in the evening on foot from village market, Andhari, she came across co-villagers Lal Chand Gope and Budh Ram Gope (appellants) on the way who were on their bicycles. On lift offered by Lal Chand Gope she sat on the carrier of his bicycle. It was further narrated that her other co-villagers Somen Gope son of Lalmohan Gope and Disu Sirka son of Henso Sirka were sitting on the J bicycle of Budh Ram Gope and in this manner all the five accused proceeded towards river side. The prosecutrix further narrated that at the river side the appellants directed Somen Gope and Disu Sirka to proceed to their village taking their bicycles and accordingly both proceeded on the bicycles of the appellants and thereafter the appellants and the prosecutrix proceeded on foot. She further narrated that when they arrived near village Tanger at about 7 p.m. the appellants suddenly caught hold, gagged her mouth and forcibly removed her near a big stone boulder where she was gang raped by Lal Chand Gope and Budh Ram Gope one after another. Yet, on hearing the voice and recognizing that it belonged to the uncle of the prosecutrix, the appellants escaped from the scene of occurrence. She returned back to her home and narrated the occurrence to her mother (P.W. 5) and uncle (P.W. 3). Yet, on hearing the voice and recognizing that it belonged to the uncle of the prosecutrix, the appellants escaped from the scene of occurrence. She returned back to her home and narrated the occurrence to her mother (P.W. 5) and uncle (P.W. 3). The matter was brought to the notice of village Munda (P.W. 1) who made enquiry into the allegation and thereafter the prosecutrix came Kumardungi police station on 15.5.1997 alongwith the said village Munda, her father Bajay Sirka (P.W. 2) and mother Biren Kui (P.W. 5) where her statement was recorded at 9 a.m. Her statement was forwarded to Majhgaon police station where case was lodged for the offence under sections 376/ 34 of the Indian Penal Code as also under section 3(xii) of S.T and S.C. (Prevention of Atrocities) Act, 1989 but the chargesheet was submitted only under sections 376/34 of the Indian Penal Code after investigation. 3. Charge against the appellant Lal Chand Gope and Budh Ram Gope was framed by the trial court under section 376(2)(g) of the Indian Penal Code which was read over and explained to them in Hindi but they pleaded not guilty and claimed to be tried. Yet, when the appellant Lal Chand Gope was confronted with the incriminating materials collected in course of trial his defence was that father of the prosecutrix namely Bajay Sirka had borrowed 30 Kandi Paddy grains from him. Since he could not return back the paddy which was lent to him, the appellant Lal Chand Gope retained his bicycle and for such reason he was falsely implicated in the instant case. On the other hand. the appellant Budh Ram Gope did not place his defence on record in the statement recordec under section 313 of Cr. PC. except denial of his guilt. 4. Altogether seven witnesses were produced and examined on behalf of the prosecution. Besides, the prosecution proved signature of the village Munda (P.W. 1) Yogesh Chandra Pingua on the Fardbeyan of the prosecutrix (Ext. 1), Medical Examination Report (Ext. 2), Fardbeyan of the Prosecutrix (Ext. 3), Formal FIR (Ext. 4) and seizure list of piece of broken bangles from the place of occurrence (Ext. 5). 5. Besides, the prosecution proved signature of the village Munda (P.W. 1) Yogesh Chandra Pingua on the Fardbeyan of the prosecutrix (Ext. 1), Medical Examination Report (Ext. 2), Fardbeyan of the Prosecutrix (Ext. 3), Formal FIR (Ext. 4) and seizure list of piece of broken bangles from the place of occurrence (Ext. 5). 5. The, learned counsel for the appellants assailed the impugned judgment of conviction and order of sentence on the ground that the allegation of gang rape could not be substantiated by the medical evidence as no spermatozoa dead or alive could be found in the vaginal swab of the prosecutrix in Pathological test and there was no injury on her private part which was probable in case of gang rape. The second point, which was raised on behalf of the appellants, was that the trial court failed to take into consideration the previous enmity that it was the false case which was brought about by the prosecutrix on the instance of her father whose cycle was retained by the appellant Lal Chand Gope as his paddy was not returned by her father. Finally, the learned counsel submitted that punishment awarded to the appellants was extreme in nature, disproportionate to the nature of allegation against them which called for interference of this court in appeal. 6. We have meticulously examined the entire evidence on record including the statement of the prosecutrix (P.W. 4), who has categorically corroborated her earlier statement recorded before the police, first point in time as to how she was ganged rape by the appellants Lal Chand Gope and Budh Ram Gape one after another, gagging her mouth and escaped. She claimed to have identified the appellants in the dock by their names and faces and she further corroborated by testifying that she narrated the occurrence before her mother (P.W. 5) in presence of her father (P.W. 2) and uncle (P.W. 3). She testified that the village Munda (P.W. 1) was informed by her father about the occurrence and she visited Kumardungi police station but police officer was not P available on that date. However, she came across the police officer on her subsequent visit on Thursday and her Fardbeyan was recorded. She admitted having delivered her statement in "Ho" language which was interpreted by Mundaji (P.W. 1) to the police officer in Hindi which was reduced in writing. However, she came across the police officer on her subsequent visit on Thursday and her Fardbeyan was recorded. She admitted having delivered her statement in "Ho" language which was interpreted by Mundaji (P.W. 1) to the police officer in Hindi which was reduced in writing. The contents of her statement was explained to her in her own language and upon being satisfied she put her thumb impression. She was taken to Chaibasa Sadar Hospital where she was medically examined. She admitted by testifying that though her house was at the short distance from the place of occurrence but she could not raise alarm as her mouth was gagged by the appellants. She identified the appellants on dock with specific attribution against each of them. 7. We further find that the mother of the prosecutrix Biren Kui (P.W. 5), father of the victim Bajay Sirka (P.W. 2), uncle of the victim Raghunath Sirka (P.W. 3) and village Munda Yogesh Chandra Pingua (P.W. 1) have consistently corroborated the evidence of the prosecutrix as the hearsay witnesses. As regards delay in lodging the FIR, P.W. 1 Yogesh Chandra Pingua explained that he along-with Bajay Sirka (father) his wife (mother of the prosecutrix) and his daughter (prosecutrix) went to the police station on' 15.5.1997 and prior to that he had also visited the police station on 12-13-14th May, 1997 but since the police officer was not available at the police station they returned back and they met the police officer at Kumardungi police station only on 15.5.1997 where Fardbeyan of Maki Kui was recorded having been interpreted by him. P.W. 1 Yagesh Chandra Pinguafurther testified that he explained the contents of her. fardbeyan by interpreting it in "Ho" and upon being satisfied Maki Kui (prosecutrix) put her thumb impress10n. The witness in his cross-examination consistently narrated that he was informed by the father of the prosecutrix in the morning hours of 12.5.1997 about the occurrence of gang rape on Maki Kui and upon such information he asked his Dakua Chowdari Pingua to call the appellants but he after short while returned and informed that the appellants had already escaped. The witness in his cross-examination consistently narrated that he was informed by the father of the prosecutrix in the morning hours of 12.5.1997 about the occurrence of gang rape on Maki Kui and upon such information he asked his Dakua Chowdari Pingua to call the appellants but he after short while returned and informed that the appellants had already escaped. We find that the statement of P.W. 1 Yogesh Chandra Pingua, i.e. the village Munda stands corroborated in the statement of P.W. 7 Rambabu Sharma, Investigating Officer of the case in so far as it relates -, to interpretation of the statement of the prosecutrix from "Ho" to Hindi and vice versa by P.W. 1 Yogesh Chandra Pingua was concerned. The Investigating Officer visited the place of occurrence, as pointed out, from where he collected pieces of broken bangles from the ground near big stone of Tungri village. He admitted that there was lonely place and the house of the prosecutrix was situated at the distance of only about 200 feet whereas houses of the appellants were found situated at the distance of about 800 yards from the place of the occurrence. He seized the pieces of broken bangles in presence of P.W. 1 and P.W. 3 and prepared the seizure list (Ext. 5). We find and observe that recovery of broken bangles from the place of occurrence as pointed out by the prosecutrix is the corroborative piece of evidence. 8. We further find that the victim Maki Kui was examined by P.W. 6 Dr. C.S.J. Surin, Medical officer on 15.5.1997 at about 4 p.m. and the expert witness found the following: Teeth:-14/14 Breast-Developed Pubic and Auxiliary hair were present No external injury was found on her person. Hymen of Maki Kui was found ruptured and it was in healing process. Small granular tags of tissue were found in ruptured hymen and her interrites admitted two fingers. ' Her age was assessed between 14-17 years and the Doctor was of the define opinion that she was subjected to sexual, intercourse. 9. Hymen of Maki Kui was found ruptured and it was in healing process. Small granular tags of tissue were found in ruptured hymen and her interrites admitted two fingers. ' Her age was assessed between 14-17 years and the Doctor was of the define opinion that she was subjected to sexual, intercourse. 9. Having regard to the facts and circumstances of the case, material evidence on record and perusal of the impugned judgment of conviction recorded against the appellants we find that the trial Judge justified in observing that the medical examination of the victim was performed after five days of the occurrence and there was little chance for the presence of spermatozoa either dead or alive in the vargina so as to be' collected in vaginal swab. Absence of spermatozoa from the viginal swab cannot be conclusive to negative the allegation of rape and penetration is sufficient to constitute such offence. The statement of P.W.3 Raghunath Sirka is relevant who corroborated by testifying that in the fateful night at about 9.30 O'clock after tieing his cattles with the peg when he went near the Neem tree, he found Disu Sirka and Suman Gope standing there and after short while the appellants Lan Chand Gope and Budh Ram Gope arrived there and after collecting their respective bicycles from Disu Sirka and Suman Gape they proceeded. The witness stood to the test of cross-examination and his testimony inspires confidence. 10. We find that the judgment of the conviction recorded by the trial court is well discussed which is based upon the facts of the case and relevant laws. But in so far as the sentencing part of the judgment against the appellants is concerned, we find substance in the arguments advanced on behalf of the appellants that it was disproportionate to the nature of the allegation made as no extreme form of brutality or violence was displayed by the appellants on the person of the prosecutrix so as to call for extreme punishment. We find that sentence of life term imprisonment to each of the appellants is extreme in nature in the facts and circumstances for the charge under section 376(2)(g) of the IPC. Mr. Khatri, the learned counsel attracted our attention that the appellants are in judicial custody since 21.5.1997 for more than ten years, hence their sentence of imprisonment may be modified appropriately. 11. Mr. Khatri, the learned counsel attracted our attention that the appellants are in judicial custody since 21.5.1997 for more than ten years, hence their sentence of imprisonment may be modified appropriately. 11. Having regard to the facts and circumstances of the case, we find that the present appeal has got no merit and deserves to be dismissed. However, the appellants Budh Ram Gape and Lal Chand Gape are in custody since 21.5.1997 and in this manner both have served out their sentence for more than ten and quarter years. Such period is sufficient, in our view, for the remorse of guilt. In view of that, upholding the conviction of the appellants under section 376(2)(g) of the Indian Penal Code, their sentence is modified and reduced to the period already undergone by them in judicial custody. With the modification of sentence in the manner indicated above, this appeal is dismissed with the direction that the appellants (Budh Ram Gape and Lal Chand Gape) be released forthwith, if not wanted in any other case.