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2018 DIGILAW 1261 (JHR)

Dilip Mirdha v. State of Jharkhand

2018-06-19

KAILASH PRASAD DEO

body2018
JUDGMENT : 1. The instant Criminal Appeal has been preferred against the judgment of conviction and order of sentence, both dated 06.06.2003 passed by learned 3rd Additional District and Sessions Judge, Dumka, in Sessions Case No. 251/2001, whereby the sole appellant has been convicted by the learned Trial Court for offence punishable under Sections 376 I.P.C. and 366-A I.P.C. and awarded rigorous imprisonment for five years for each of the offences punishable under Sections 376 I.P.C. and 366-A I.P.C. The present Criminal appeal has been preferred on 04.08.2003 and has been admitted on 05.08.2003 and the suspension of sentence by granting bail has been refused vide order dated 19.02.2004 and thus the appellant remained in custody to serve out the sentence. 2. The prosecution case is based upon written report submitted by one Ranjeet Das (PW-5), informant of the case and father of the victim before the Officer-in-Charge, Masaliya Police Station, Dumka, alleging therein that, on 21.04.2001, at around 8.30 p.m. he was taking meal, his second minor daughter (aged about 16-17 years), went to watch television at the house of her elder uncle but when she did not returned after 30 minutes, the informant began to search her, and during the course of searching one Prashant disclosed that the girl has returned 15 minutes ago, from his house. Thereafter, being worried, the informant continue to search out and he was told by his brother Sadanand Das and son, Kanchan Das, that Dilip Mirdha son of Pushan Mirdha, Kajal Mirdha and Goutam Ram were roaming in the gali alongwith Dilip Mirdha son of Amulya Mirdha and Sanjeev Mirdha. On getting some suspicion, the informant went to the house of Amulya Mirdha but none were present there and wife of Amulya Mirdha told, that they were not in the house since 7 p.m. Thereafter the informant has confirmed himself that the accused persons had induced her daughter for marriage because of old enmity. The informant further came to knew in course of searching, that Dilip Mirdha son of Pushan Mirdha and Goutam Ram had come in the village at 5.00 p.m. on a green Hero Honda motor cycle. The informant further came to knew in course of searching, that Dilip Mirdha son of Pushan Mirdha and Goutam Ram had come in the village at 5.00 p.m. on a green Hero Honda motor cycle. Thereafter, an F.I.R. was lodged regarding missing of the girl showing some suspicion over Dilip Mirdha S/o Amulya Mirdha, Dilip Mirdha S/o Pushan Mirdha, Kajal Mirdha, Amulya Mirdha, Sanjeev Mirdha and Raj Kumar Goutam @ Goutam Ram, as they were found roaming around the place of occurrence, prior to the occurrence. 3. On the basis of the written report, police registered Masaliya P.S. Case no. 26/2001 dated 22.04.2001 under Section 366-A/120-B I.P.C. and after investigation police submitted charge-sheet against Dilip Mirdha S/o Amulya Mirdha, Dilip Mirdha S/o Pushan Mirdha, Sanjeev Mirdha, Kajal Mirdha, Raj Kumar Goutam @ Goutam Ram, Amulya Mirdha vide no. 35/2001 dated 21.06.2001 under Sections 366-A/ 376-G/ 120-B I.P.C. During investigation, the statement of the victim (PW-8) was recorded under Section 164 Cr.P.C. which has been proved and marked as Exhibit-3 by the prosecution. After submission of the charge-sheet, the learned Trial Court has taken cognizance of the offence on 21.06.2001 and committed the case to the court of sessions on 23.08.2001, where charges has been framed on 04.10.2007, under Sections 376-G/ 366-A and 120-B I.P.C. against Dilip Mirdha son of Amulya Mirdha, Dilip Mirdha S/o Pushan Mirdha, Kajal Mirdha, Sanjeev Mirdha, Amulya Mirdha and Rajkumar Goutam @ Goutam Ram to which they pleaded their innocence and thus they were put under trial. 4. The learned Trial Court has acquitted the other accused persons of the charges, while found Dilip Mirdha S/o Amulya Mirdha, guilty for the offence and was convicted by the impugned judgment of conviction and order of sentence, to which, the present appellant preferred the instant criminal appeal. 5. The prosecution has examined altogether ten witnesses and also exhibited a number of documents to prove its case. 5. The prosecution has examined altogether ten witnesses and also exhibited a number of documents to prove its case. Prashant Kumar Das (cousin of the victim) has been examined as PW-1, Sada Nand Das (uncle of the victim) has been examined as PW-2, Kanchan Kumar Das (brother of the victim) has been examined as PW-3, Chaina Das (mother of the victim) has been examined as PW-4, Ranjit Das (informant of the case and father of the victim) has been examined as PW-5, Dhruv Kant Jha (Circle sardar) has been examined as PW-6, Jiya Ram Mahto (chowkidar) has been examined as PW-7, victim Victim has been examined as PW-8, Maheshwar Singh (Investigating officer) of the case has been examined as PW-9 and Doctor Aruna Chatterjee has been examined as PW-10. 6. Apart from these witnesses, a number of documentary evidences have also been brought on record. Signature of Ranjit Das on fardbeyan has been proved and marked as Exhibit-1, signature of Dhruv Kant Jha, on seizure list has been proved and marked as Exhibit-2, signature of Jia Ram Mahto, on seizure list has been proved and marked as Exhibit-2/1, signature of Dhruv Kant Jha, on seizure list has been proved and marked as Exhibit 2/2, signature of Jia Ram Mahto, on seizure list has been proved and marked as Exhibit-2/3, signature of victim, on statement under Section 164 Cr.P.C. has been proved and marked as Exhibit-3, endorsement of Maheshwar Singh on fardbeyan has been proved and marked as Exhibit-4, seizure list of Hero Honda Motor Cycle has been proved and marked as Exhibit-5, seizure list of chaku and ganja has been proved and marked as Exhibit-5/1, F.I.R. has been proved and marked as Exhibit- 6 and injury report of Victim by the medical board has been proved and marked as Exhibit-7. 7. That the prosecution has brought evidence, that victim was kidnapped by two persons, who had lifted her on motor cycle and two other accused persons came on foot into forest and on the point of knife, all four persons had committed rape, against her will. Victim could only identify one person, who is the appellant namely Dilip Mirdha S/o Amulya Mirdha, as the appellant was a co-villager. Victim could only identify one person, who is the appellant namely Dilip Mirdha S/o Amulya Mirdha, as the appellant was a co-villager. After commission of rape, she was taken by Dilip Mirdha to the house of his ‘mausi’ on the point of knife and further took the victim to the house of his other relatives, where the police on the pointing out by the father of victim recovered/arrested the appellant along with victim. The Trial Court on the basis of material, convicted the appellant for the charge under Section 366A and 376G with 120B of the Indian Penal Code. Against impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred. 8. Learned counsel for the appellant, Mr. Rajeeva Sharma assisted by his junior counsel, Mr. Manoj Kumar, Advocate has submitted that appellant has been wrongly convicted by the learned Trial Court, as the learned Trial Court has not taken judicial notice regarding the story of kidnapping, which has not been proved by the prosecution. He has further submitted, that kidnapping and rape in forest for an hour by four accused persons have not been proved nor the same has been corroborated by the medical evidence. Learned counsel for the appellant has further submitted, that neither a single scratch was found on the persons of the victim, nor any injury was found on the private part of the victim. Learned counsel for the appellant has submitted that the entire story of taking away and living in some houses of the relatives of the appellant, is unbelievable and it appears that, if the girl has been taken by the appellant, it was taken with her consent. Learned counsel for the appellant has further submitted, that the girl has never made any protest, while she was residing in the house of the relatives of Dilip Mirdha nor made any complain to any person. Thus, learned counsel for the appellant has submitted, that considering the above facts and circumstances, the appellant may be acquitted of the charges, as the learned Trial Court has convicted him without having any material. 9. Learned counsel for the State, Mrs. Thus, learned counsel for the appellant has submitted, that considering the above facts and circumstances, the appellant may be acquitted of the charges, as the learned Trial Court has convicted him without having any material. 9. Learned counsel for the State, Mrs. Lily Sahay, Additional Public Prosecutor has submitted, that from perusal of the evidence of PW-8, it appears that the girl being a minor, has been sexually exploited by the accused persons and the appellant was one of the person, who has been identified by the victim. Learned counsel for the State has drawn attention of this Court towards Section 375 I.P.C. (sub-condition) which are reproduced hereunder:- “375. Rape – A man is said to commit “rape” if he: (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of a woman or makes her to do so with him or any other person. (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person. (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person. (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- First Against her will. Secondly Without her consent. Thirdly With her consent when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Fifthly With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly With or without her consent, when she is under eighteen years of age. Seventhly When she is unable to communicate consent.” Learned counsel has further argued that, from the evidence of PW-8, it appears that, she has been raped by the accused persons, including the present appellant, on the point of knife and as such, the submission made by the learned counsel for the appellant is not sustainable in the eyes of law, as the rape has been committed on the point of a knife, on a minor girl. Learned counsel for the State has further argued, that a minor girl has been taken away by the accused persons to seduce for the illicit relations, with others. From the evidence of PW-8, it appears that Dilip Mirdha along with his friends have kidnapped Victim, for the purpose of seducing illicit intercourse with other persons and that person (Dilip Mirdha) has been identified and that is the reason Victim has categorically stated that she has been raped by four persons and as such offence under Section 376G I.P.C. is made out and the learned Trial Court has rightly convicted the appellant under Sections 376 and 366-A and 120B of I.P.C. Learned counsel for the State has further submitted, that from the exhibits, which have been proved and brought on record, the seizure of Hero Honda motorcycle, which was used for kidnapping has been proved and marked as Exhibit-5, the seizure of knife along with ganja has been proved and marked as Exhibit-5/1 and these articles have been recovered, while the victim was recovered along with the appellant, Dilip Mirdha after pointing out by the father of the victim, Ranjit Das in presence of the police officer, who has arrested him and as such, there is nothing inconsistence in the prosecution evidence and the learned Trial Court has rightly convicted the appellant. Learned counsel for the State has further argued, that Dilip Mirdha is not relative of Victim and he has no right to kidnap a girl or keep a girl in captivity, on the point of knife. Learned counsel for the State has further argued, that Dilip Mirdha is not relative of Victim and he has no right to kidnap a girl or keep a girl in captivity, on the point of knife. Not only this, Dilip Mirdha has kept this girl for 5 days. Victim has categorically stated, that she was threatened, on the point of knife and thus, she could not raise her voice to disclose anyone about the occurrence, as she was residing in the house of Dilip Mirdha itself. Learned counsel for the State has fairly submitted that the argument placed on behalf of the appellant is non-sustainable in the eyes of law, as the victim has not raised the voice, rather she was not allowed to raise her voice, on the point of knife and as such, the prosecution has able to prove the case beyond all reasonable doubts against Dilip Mirdha. Learned counsel for the State has placed reliance upon the judgment of the Hon’ble Supreme Court as reported in 2006 (2) JLJR SC 52 in the case of State of Himachal Pradesh vs. Asha Ram where the Hon’ble Supreme Court has held that:- “Conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable.” In the instant case the Hon’ble Supreme Court has depicted the stand taken by the High Court, while acquitting the accused persons, as quoted in paragraph 5:- “We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much-less by the father. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much-less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance.” Learned counsel has further relied on the judgment of 2006 (2) JLJR SC 251 in case of Dinesh @ Buddha vs. State of Rajasthan at para-12 held: “The evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding- a woman or a girl who is raped is not an accomplice- corroboration is not the sine qua non for conviction in a rape case.” The Hon’ble Supreme Court has also held that:- “Rape is not only a crime against the person of a woman, it is a crime against the entire society - it destroys the entire psychology of a woman and pushes her into deep emotional crisis- it is a crime against basic human rights, and is also violative of Article 21 of the Constitution of India- such cases need to be dealt with sternly and severely.” The Hon’ble Supreme Court has further held that : Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female - it is a serious blow to her supreme honour and offends her self-esteem and dignity-it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience - a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity.” Thus, the learned counsel for the State has argued, that this court may not interfere with the judgment of conviction and order of sentence passed by the learned Trial Court. Although, the learned counsel for the State has fairly submitted, that the learned Trail Court has awarded lesser punishment than what has been prescribed in the Act, which the learned Trial Court has also not empowered. 10. This court is of the opinion that Judicial Officer must award the punishment as prescribed under the law. Although, the learned counsel for the State has fairly submitted, that the learned Trail Court has awarded lesser punishment than what has been prescribed in the Act, which the learned Trial Court has also not empowered. 10. This court is of the opinion that Judicial Officer must award the punishment as prescribed under the law. Punishment as prescribed under Section 376 is quoted hereunder:- “Punishment for rape - whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life and shall also be liable to fine.” On the basis of the above, it is clear that Penology is not the discretionary power of the Judicial Officer, it has to be exercised with proper judicial appreciation with the reasonable circumstances and sentence should be awarded on the basis of the facts available on the record. This court deprecates the act of the Judicial Officer, who has awarded less punishment to the appellant. 11. After hearing the learned counsel for the appellant Mr. Rajeeva Sharma assisted by Mr. Manoj Kumar, Advocate, and learned Additional Public Prosecutor, Mrs. Lily Sahay, for the State and on perusal of records, this court is of the opinion that prosecution has been able to prove its case beyond all reasonable doubts on the material available on record. There is no inconsistency in the evidence of the prosecution witnesses nor the evidence of PW-8 is unreliable, rather as per the prosecution case, the victim was kidnapped and raped, she could identify Dilip Mirdha (appellant), who has committed rape along with others, on the point of knife and subsequently Dilip Mirdha kept her in captivity at different places, at the house of his relatives for five days and was caught by the police along with the victim. Knife, motor cycle and ganja were also recovered from the possession of Dilip Mirdha, which has been brought on record, as Exhibit-5 series. The appellant has no right to kidnap a minor girl and committed rape against her will, on the point of knife and as, such the learned Trial Court has rightly convicted him under Sections 366-A and 376-G I.P.C. and this Court upheld the same without interfering in the judgment of conviction. The appellant has no right to kidnap a minor girl and committed rape against her will, on the point of knife and as, such the learned Trial Court has rightly convicted him under Sections 366-A and 376-G I.P.C. and this Court upheld the same without interfering in the judgment of conviction. Also, the judgments cited by the learned counsel for the State is fully applicable in the present case. At this juncture, learned counsel for the appellant submits that since appellant’s prayer for bail was refused on 19.02.2004 and thereafter the appellant has never prayed for suspension of his sentence and as such, the sentence of rigorous imprisonment for five years under Sections 376 and 366-A, I.P.C. has already been served by the appellant. 12. Be that as it may, if the appellant has already served the sentence, there is no further order and if the sentence is not served, the appellant is directed to surrender before the court below forthwith and serve out the rest of the sentence. The learned Trial Court is directed to take a judicial notice of the same that as the appellant has served out the sentence or not. The learned Trial Court will take all the steps for apprehending the appellant, so that he may serve out his rest of the sentence, if not already served. 13. The present criminal appeal is dismissed. 14. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.