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2010 DIGILAW 322 (JHR)

Anup Tigga v. State of Jharkhand

2010-03-12

PRADEEP KUMAR

body2010
JUDGMENT By Court: Heard learned counsel for the appellants and learned counsel for the State. 2. Since, these three appeals have been preferred from the same judgment of conviction dated 16.04.2002 and order of sentence dated 16.05.2002 passed in S.T. No. 447 of 1988 by Shri Hara Prasad Chakraborty, Special Judge Cum Additional Judicial Commissioner VI, Ranchi, by which judgment he found all four appellants guilty under Sections 452/34, 366/34 and 376 of the Indian Penal Code and learned trial Court passed the sentence of R. I. for five years only under Section 376 of the Indian Penal Code and passed no separate sentence under Section 452/34 and 366/34 of the Indian Penal Code. 3. It is submitted by learned counsel for the appellants that it will appear from the evidence of the prosecutirx Sudhan Mahli as given in the F.I.R. and as given in the Court, are contradictory to each other. Moreover, the Doctor, who examined the victim girl on the next day of occurrence i.e. 04.08.1982, found no sign of rape although victim has alleged that four persons committed rape upon her. In that view of the matter, considering the fact that the defence witnesses have stated that she is a loose character lady, therefore, the conviction of the appellants under Section 376 of the Indian Penal Code is bad in law and fit to be set aside. 4. On the other hand learned counsel for the State has opposed the prayer and submitted that from the evidence of the prosecution witnesses, it is clear that the four accused persons entered the house of the victim and took her by force at a distance, thereafter they committed rape upon her .Therefore, they have rightly been convicted. 5. After hearing both the parties and going through the records, I find that the prosecution case was started on the basis of fardbeyan given by the victim, P 1, Sudhan Mahli, aged about 20 years on 04.08.1987, stating therein that her elder sister Budhan Mahli worked in It a Bhatta and her sister was living with her husband. Since, her husband went to village for some time, for this reason she told Sudhan Mahli to live there. Since, her husband went to village for some time, for this reason she told Sudhan Mahli to live there. On 03.08.1987 she was sleeping with her sister, at 9.00 P. M. four persons entered her sister hut, when she asked them reason then they indicated towards sudhan Mahli and they dragged Sudhan Mahli outside the hut, when she and her sister made objection then Anjan Munda along with two others showed knife and told that if you made hulla then they will kill you. Anjan Munda along with four others dragged her and took her at a distance of 800 yard north and towards the crusher of Royji. When they took her to the tand then Anjan Munda alonwith others put knife on her neck and asked her to strip the cloth, when she was not ready to open the cloth then they stripped her saya and sari thereafter they fell her down on the ground and committed rape upon her one by one and threatened her that if she told about the occurrence to anyone then they will kill her. However, she returned to her house and told about the occurrence to her father and he brought her to police station and recorded her statement. 6. On the basis of the said written report, police registered a case under Sections 452/34, 366/34 and 376 of the Indian Penal Code against the accused and after investigation, police submitted chargesheet in the case against the accused under Sections 452/34, 366/34 and 376 of the Indian Penal Code. Since, the case was exclusively triable by the court of Sessions, after taking cognizance learned Chief Judicial Magistrate committed the case to the court of Sessions and subsequently, the case was tried by learned Special Judge Cum Additional Judicial Commissioner VI, Ranchi, who found the appellant guilty under Sections 376 of the I. P C. and sentenced him as aforesaid. 7. It appears that in the course of the trial, the prosecution has examined as many as five witnesses. P.W.1, Sudhan Mahli P.W.2, Budhan Mahli P.W.3, Bhinam Mahli P.W.4, Md. Samim P.W.5, Dr. Manju Kumari P.W.1, Sudhan Mahli, informant, stated in the Court that about 13 to 14 years back in the night about 8 to 9 P. M. she alongwith her sister had gone to pandeys bhatta and she was making vegetables. P.W.1, Sudhan Mahli P.W.2, Budhan Mahli P.W.3, Bhinam Mahli P.W.4, Md. Samim P.W.5, Dr. Manju Kumari P.W.1, Sudhan Mahli, informant, stated in the Court that about 13 to 14 years back in the night about 8 to 9 P. M. she alongwith her sister had gone to pandeys bhatta and she was making vegetables. At that time threemen entered in the house and two men outside the house. They band her mouth by clother and took her by force ahead of the crusher and told her to open the cloth when she refused then on the point of knife they removed her cloth thereafter, committed rape upon her one by one. She identified all the accused in the Court. In her cross examination she stated that she and her sister lived there in the hut of pandeyji, the door was made by tin. There was also another hut and in this hut one tulku lived with his wife. Her father lived two miles from the hut. Cursher was at the distance of one kilometre from the hut of Budhan, she made no hulla, no chokidar was there. Anjan, Robert and Anup entered the house and one person was standing outside the hut. She did not remember his name. She was raped by them at the open place. When they were carrying her, her sister Budhan was at the home. She told about the occurrence firstly to her sister Budhan. On the next day her father came there and he brought her to the police station then to the hospital. P.W.2, Budhan Mahli, sister of the informant/victim girl stated that 1012 years ago in the night three persons caught hold of her sister from her house. When her sister returned then told her that Anup, Robert, Amjan and Rajan raped her and she identified the four accused in the T.I. Parade and in the Court. She called her father thereafter, her father went to the police station along with Sudhan Mahali and lodged the F.I.R. In her cross examination, she stated that what happened with her sister, she has not seen. She did not go behind her sister and in the night did not inform about the occurrence to anyone. Tusku and his wife had not come. She lived at bhatta, bhatta belongs to L. K. Pandey, subsequently police examined her at house. She did not go behind her sister and in the night did not inform about the occurrence to anyone. Tusku and his wife had not come. She lived at bhatta, bhatta belongs to L. K. Pandey, subsequently police examined her at house. P.W.3, Bhinam Mahli, father of the victim girl, stated that 1012 years back on monday, his daughter told him that Anup, Amjan, Ranjan and Robert raped upon her. He went to police station along with Sudhan and lodged F.I.R. In his cross-examination he stated that he has not seen the occurrence. P.W.4, Md. Samim, an advocate clerk, is a formal witness, proved his signature on F.I.R. and seizure list as Ext. 1 and 2. P.W.5, Dr. Manju Kumari, is a doctor, who has examined the victim girl on the next of occurrence i.e. on 04.08.1987, she stated that as per the X ray report, victim is aged about 18 to 23 years and she found no external or internal injury on her both or her private parts. As per vaginal finding sold rapture of hymen. No foreign hair found on her private parts. No spermatozoa was found. In that view of the matter, in her opinion no positive sign of rape was present. 8. After going through the aforesaid evidences, it is clear that with intention to commit rape accused persons had taken away the victim girl from her hut, where she stayed with her sister and thereafter she was taken at a distance. As per the informant P.W. 1 Sudhan Mahli she was raped, other witnesses have not seen the commission of rape upon her. Moreover, even the doctor has found no sign of rape on her private parts. It is not acceptable that if the victim was raped by four accused persons and the next day in her medical examination no sign of rape was found. In that view of the matter, it appears that all the appellants had taken away the victim girl with intention to commit rape but, they only succeeded in outraging her modesty. Learned counsel for the appellants has placed reliance in the Judgment of 2008 (10) Supreme Court Cases page 81 Premiya @ Prem Prakash Vs. In that view of the matter, it appears that all the appellants had taken away the victim girl with intention to commit rape but, they only succeeded in outraging her modesty. Learned counsel for the appellants has placed reliance in the Judgment of 2008 (10) Supreme Court Cases page 81 Premiya @ Prem Prakash Vs. State of Rajasthan, in which judgment Hon'ble Supreme Court has opined that accused charged under Section 376 of the Indian Penal Code, in the absence of any injury on the victim girl the medical report shows that no rape was committed, then offence under Section 354 of the Indian Penal Code will be made out. In para10 of the judgment of the Hon'ble Supreme Court opined as follows: "10. "9. In order to constitute the offence under Section 354 [IPC] mere knowledge that the modesty of a woman is likely to be outraged is sufficient without any deliberate intention of having such outrage alone for its object. There is no abstract conception of modesty that can apply to all case. (See State of Punjab V. Major Singh.) A careful approach has to be adopted by the Court while dealing with a case alleging outrage of modesty. The essential ingredients of the offence under Section 354 of the IPC are as under: (i) that the person assaulted must be a woman; (ii) that the accused must have used criminal force on her; (iii) that the criminal force must have been used on the woman intending thereby to outrage her modesty. 10. Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected. Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight." 9. The existence of intention or knowledge has to be culled out from various circumstances in which and upon whom the alleged offence is alleged to have been committed. A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight." 9. In view of the above judgment of the Hon'ble Supreme Court, it appears that all the ingredient stated above has been covered in this case, where the victim girl was taken by force with intention to outrage her modesty. In that view of the matter the conviction of the appellants under Section 376 of the Indian Penal Code is altered to Section 354 of the Indian Penal Code and the appellants are sentenced to undergo R.I. for two years and also to pay fine of Rs. 1000/ each and in default further S.I. For six month each. Fine amount of Rs.3000/ will be given to the victim girl. 10. With the aforesaid alteration in the conviction and sentence, these appeals are dismissed.