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2018 DIGILAW 1277 (JHR)

Sabuj Murmu @ Subuj Murmu v. State of Jharkhand

2018-06-20

KAILASH PRASAD DEO

body2018
JUDGMENT : 1. The instant Criminal Appeal has been preferred against the judgment of conviction dated 18.12.2003 and order of sentence dated 19.12.2003 passed by learned Additional Sessions Judge-IV, Fast Track Court, Jamtara, in Sessions Case No. 63/2001, whereby the sole appellant has been convicted by the learned Trial Court for offence punishable under Section 376 I.P.C. and awarded rigorous imprisonment for seven years and fine of Rs. 1000/- and in case of default of payment of fine to undergo further three months of simple imprisonment. The present Criminal appeal has been preferred on 07.01.2004 and the appellant has been enlarged on bail by suspending his sentence, on 04.03.2004, since then the matter is pending before this Court. 2. The prosecution case is based upon written report submitted by the victim, before the officer-in-charge, Kundahit police station, on 15.03.2001, alleging therein that, while the informant (victim) was returning from a marriage along with her friend Hemabati Hembrom, appellant caught hold of her, torn her cloth, which was in two pieces and has committed rape. The appellant has also threatened her friend, not to raise alarm and fled away from the place of occurrence. After commission of the rape, the victim went to her house, informed her parents. Subsequently, a panchayati was convened and later on police was informed. 3. On the basis of the written report of the victim, the police has registered Kundahit P.S. Case No. 18/2001, dated 15.03.2001 under Section 376 I.P.C. and after investigation submitted charge-sheet vide no. 25 of 2001 dated 30.04.2001 under Section 376 I.P.C. The cognizance of the offence has been taken vide order dated 16.06.2001 and the case has been committed to the Court of Sessions vide order dated 01.08.2001. The charge has been framed against the appellant on 04.01.2002 under Section 376 I.P.C. The appellant pleaded his innocence and thus he was put under trial. 4. The prosecution to prove its case has examined eight witnesses apart from the exhibits. The charge has been framed against the appellant on 04.01.2002 under Section 376 I.P.C. The appellant pleaded his innocence and thus he was put under trial. 4. The prosecution to prove its case has examined eight witnesses apart from the exhibits. The victim-cum-informant of the case has been examined as PW-1, Babusar Soren, father of the victim has been examined as PW-2, Meloni Soren, mother of the victim has been examined as PW-3, Prabhanand Soren, brother of the victim has been examined as PW-4, Mukesh Chandra Kunwar, Investigating Officer of the case has been examined as PW-5, Hemabati Hembrom, friend of the victim has been examined as PW-6, Hema Murmu @ Hemadhan Murmu (a co-villager and hearsay witness) has been examined as PW-7, Dr. Kiran Jaiswal, who has examined the victim, has been examined as PW-8. 5. The torn cloth of the victim has been marked as Exhibit-X, the signature of Babusar Soren (father of the victim), on the fardbeyan has been marked as Exhibit-1 and the medical report of the victim has been marked as Exhibit-2. 6. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C. on 21.11.2003. 7. The victim-cum-informant of this has been examined as PW-1. She has supported her case that appellant has committed rape against her without her consent. 8. The defence has cross-examined her but nothing has been elucidated to disbelieve the case of prosecution. 9. Babusar Soren (father of the victim) and Melani Soren (mother of the victim) have been examined as PW-2 and PW-3 respectively. They are the hearsay witnesses and supported the prosecution case. 10. The defence has cross-examined PW-2 and PW-3 at length but nothing have been elucidated to disbelieve the prosecution case. 11. Prabhanand Soren (brother of the victim) has been examined as PW-4. He is also a hearsay witness and on the basis of the narration by the victim, this witness got knowledge that Sabuj Murmu has committed rape upon the victim. This witness has categorically stated that there was no dispute between the families of the victim and Sabuj Murmu. 12. Defence has also cross-examined this witness, but nothing has been elucidated to disbelieve the prosecution case. 13. Mukesh Chandra Kunwar (Investigating Officer) of the case has been examined as PW-5. This witness has proved the place of occurrence in paragraph-3 of his examination- in-chief. 12. Defence has also cross-examined this witness, but nothing has been elucidated to disbelieve the prosecution case. 13. Mukesh Chandra Kunwar (Investigating Officer) of the case has been examined as PW-5. This witness has proved the place of occurrence in paragraph-3 of his examination- in-chief. The place of occurrence is situated in a ‘parti’ land, in village Kusma, at a distance of 200 yards from the tola Kusma and the same is a lonely place, which is situated at a distance of half k.m. from the house of the victim. This witness has further stated, that after institution of the First Information Report, Investigating Officer went to the village, for investigation, where he has found that villagers have assembled, but Investigating Officer has not recorded the name of those persons, who have assembled there. 14. The defence has cross-examined this witness, but neither the place of occurrence nor the manner of occurrence has been disturbed or challenged. 15. Hembati Hembrom (friend of the victim), who was present at the time of occurrence, has been examined as PW-6 and she has been declared hostile by the prosecution, on the request of the Public Prosecutor. The learned Trial Court during cross-examination by the prosecution has recorded the demeanour of this witness, as this witness has put her head down and she appears to be disturbed. 16. Hema Murmu @ Hemadhan Murmu (PW-7) is a hearsay witness and has been declared hostile by the prosecution. 17. Dr. Kiran Jaiswal (Medical Officer) has been examined as PW-8. She has proved the medical report of the victim as Exhibit-2 and has opined that the rape cannot be ruled out. She has further stated that the age of the victim is around 16-17 years. 18. Learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law as the First Information Report has been lodged after a good delay of two days, as the occurrence took place on 13.03.2001 but the First Information Report has been lodged on 15.03.2001. The explanation with respect to delay in the F.I.R. is not acceptable, as the father of the victim has not supported about the panchayati, which was the cause for delay, in the institution of the case. Learned counsel for the appellant has submitted that the place of occurrence has not been proved. The explanation with respect to delay in the F.I.R. is not acceptable, as the father of the victim has not supported about the panchayati, which was the cause for delay, in the institution of the case. Learned counsel for the appellant has submitted that the place of occurrence has not been proved. Learned counsel for the appellant has submitted that medical report is not a conclusive evidence to prove that the rape has been committed. The learned counsel has prayed that the appellant may be acquitted by giving benefit of doubt. 19. Learned counsel for the State, Mrs. Lily Sahay, Additional Public Prosecutor has vehemently argued the case in support of the impugned judgment. She has drawn the attention of this court towards the First Information Report which has been marked Exhibit 1, where it has been categorically stated that appellant Sabuj Murmu has committed rape upon the victim, in presence of her friend Hembati Hembrom. Learned counsel for the State has drawn attention towards evidence of PW-1, who is the victim of the case. The victim has categorically stated in paragraph 1 and 2 of her examination-in-chief, that Sabuj Murmu has committed rape upon her. At that time, her friend was also present. Sabuj Murmu has torned her cloth and committed rape. 20. Learned counsel for the State has drawn the attention of the court towards cross-examination of PW-1. From perusal of the cross-examination of PW-1, nothing has been elucidated by the defence to disbelieve the prosecution case, rather nothing has been asked to disbelieve that the victim has not been raped and as such the evidence adduced by PW-1 remains intact and the learned Trial Court was justified in relying upon her statement for convicting the appellant under Section 376 I.P.C. 21. Learned counsel for the State has further submitted that, father of the victim, Babusar Soren has put his signature on the fardbeyan, which has already been marked as Exhibit-1. Learned counsel for the State has submitted that Babusar Soren being the father of the victim is a hearsay witness, who was also informed about the occurrence by the victim herself and has put his signature on the fardbeyan. The submission of the learned counsel that no such statement is on record, which cannot be accepted. Learned counsel for the State has submitted that Babusar Soren being the father of the victim is a hearsay witness, who was also informed about the occurrence by the victim herself and has put his signature on the fardbeyan. The submission of the learned counsel that no such statement is on record, which cannot be accepted. The right thumb impression made by the victim, on the fardbeyan, in which she has categorically stated that delay was caused because of panchayati and as such, submission of holding panchayati or not, is not fatal for the prosecution case and not a decisive factor, with respect to delay in lodging the F.I.R. 22. 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.” 23. 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 also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance.” 24. 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.” 24. 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 that: “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.” 25. 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.” 26. Learned counsel for the State, on the basis of the above facts has submitted, that learned Trial Court was justified in convicting the appellant, as there is a consistent evidence of the victim girl, supported by the medical report and the same are sufficient for conviction of the appellant. 27. Heard, learned counsel for the appellant, Mr. Mukesh Kumar Dubey assisted by Mr. Kaushal Kumar Mishra, Advocates and learned counsel appearing for the State, Mrs. 27. Heard, learned counsel for the appellant, Mr. Mukesh Kumar Dubey assisted by Mr. Kaushal Kumar Mishra, Advocates and learned counsel appearing for the State, Mrs. Lily Sahay, Additional Public Prosecutor and on perusal of the First Information Report, deposition of the witnesses and the exhibits and also from perusal of the impugned judgment of conviction and order of sentence, this court is of the opinion that the statement of the victim is sufficient to prove the present case of rape against the appellant who has committed rape. The defence could not elucidate anything, during cross-examination, either from the victim (PW-1) or from any of the witnesses to disbelieve the prosecution case. The defence has not explained that, why the victim has falsely implicated him. Only mere saying that there was an old enmity between the families is not sufficient to say that the appellant has been falsely implicated in such case. The statement of the victim cannot be disbelieved without having any cogent material. Defence has not been able to create any doubt about the genesis of the occurrence and as such, the statement of the victim is fully reliable, as her credential is not under the clouds. Further, the victim has categorically stated that, while she was returning from marriage along with her friend, Hembati Hembrom, she was caught by the accused (appellant), gagged her mouth, torned her two piece cloth and committed rape. Appellant has also threatened her friend, Hembati Hembrom not to raise alarm and after commission of rape, the appellant has fled away. The entire cross-examination of the PW-1 by the defence, could not create any suspicion about the false implication of the appellant, on the hands of the victim. Hembati Hembrom, who has been examined in this case as PW-6 has been declared hostile but her demeanour has been recorded by the learned Trial Court, which amply proves the conduct of the witness. The learned Trial Court has to examine the evidence of hostile witnesses with care and caution. The demeanour of the witness is sufficient to prove that a lady, who has turned hostile, because of the several reasons, is disturbed in the court and this demeanour simply proves that this witness has been forced to be declared hostile. The learned Trial Court has to examine the evidence of hostile witnesses with care and caution. The demeanour of the witness is sufficient to prove that a lady, who has turned hostile, because of the several reasons, is disturbed in the court and this demeanour simply proves that this witness has been forced to be declared hostile. Kiran Jaiswal (the doctor PW-8) has categorically stated that victim is aged around 16-17 years and her opinion is that rape cannot be ruled out, are sufficient to held that appellant has committed rape against her will and thus, committed offence under Section 376 of the Indian Penal Code. 28. It is a case, where a minor girl has been raped by the appellant and as such, this court is of the opinion that the learned Trial Court is justified in convicting the appellant. Thus, the impugned judgment of conviction dated 18.12.2003 and order of sentence dated 19.12.2003, passed by learned Additional Sessions Judge- IV, Fast Track Court, Jamtara, in Sessions Case No. 63/2001 is hereby affirmed. The sentence awarded by the learned Trial Court is justified, as the sentence prescribed under the act is minimum of seven years and as such, this Court is not interfering in the sentence also. 29. In the result, the judgment of conviction is hereby upheld. The criminal Appeal preferred by the appellant is dismissed. 30. The appellant is directed to surrender before the learned court below within six weeks from today to serve out the sentence as awarded by the lower Court and affirmed by this court, and if, the appellant does not surrender, the learned Trial Court is directed to take all methods for apprehending the appellant to serve out his sentence. 31. In the result the criminal appeal is dismissed. 32. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.