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2018 DIGILAW 2039 (JHR)

Rambali Sao @ Rambali Teli v. State of Jharkhand

2018-09-11

RATNAKER BHENGRA

body2018
JUDGMENT : RATNAKER BHENGRA, J. 1. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 12.3.2003 passed by Additional Sessions Judge, Fast Track Court, No. 1 Chatra in connection with S.T. Case No. 45 of 1989 arising out of Basisthanagar P.S. Case No. 27 of 1988 whereby and whereunder appellant has been convicted for the offence under Section 376, IPC and has been sentenced to undergo R.I. for seven years. 2. The case of the prosecution as per fardbeyan of PW 5 informant/victim is that on 16.8.1988 at 6 a.m. in the morning the victim was going to call the labourer for transplanting the paddy crop. When she reached near the forest of Junki village accused Ram Bali Teli came from the bushes and caught her hand and tried to open her sari. The accused threatened and committed rape with the victim. She was feeling pain and started weeping. The accused committed rape up to 2-3 minutes with the victim. Then accused threatened the victim that she will be killed if she opened her mouth. While the victim was weeping Mahavir Bhuiyan PW 7, who had come for grazing goats came there. The victim narrated the entire story and told him that accused Ram Bali Teli committed rape with her. Mahavir Bhuiyan found Ram Bali Teli going to his house. It is further alleged that she came to her house and narrated the entire occurrence to her mother. It was raining then after the rains ceased the victim came with her mother to the Police Station and gave her statement to the police. She also handed over the sari in which the semen was found. 3. On the basis of the fardbeyan of informant, Bashisth Nagar P.S. case No. 27 of 1988 was registered. Investigation was conducted and charge-sheet was submitted against the accused. Cognizance was taken and the case was committed to the Court of Sessions. Charge was framed against the sole accused under Section 376 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution in order to establish its case has examined altogether ten witnesses and on the conclusion of trial the accused was convicted and sentenced as aforesaid. Hence, this appeal. 4. PW 5 the victim/informant deposed that on the day of occurrence she was going to call. the labourer. She was unmarried at that time. The prosecution in order to establish its case has examined altogether ten witnesses and on the conclusion of trial the accused was convicted and sentenced as aforesaid. Hence, this appeal. 4. PW 5 the victim/informant deposed that on the day of occurrence she was going to call. the labourer. She was unmarried at that time. On the way near the 'putus' bushes near Jhunki, the accused caught her from behind and dragged her and opening her sari, committed rape with her up to three minutes. There was bleeding from her private part. She was, feeling pain in her abdomen. She raised hulla. Accused fled away after committing rape. While she was coming to her house, Mahavir Bhuiyan met her she was weeping and narrated the entire occurrence to Mahavir Bhuiyan. She informed her mother about the incident after returning to the house. She went to police station with her mother and a case was registered. She was medically examined. Sari was produced before police. Inspector recorded her statement and she had put her thumb impression on the same. She identified the accused present in the dock. She stated in her cross-examination that the accused caught her from behind and committed rape. 5. PW 7 Mahavir Bhuiyan, is a witness who arrived at the place of occurrence after the incidence. He deposed that on the day of occurrence he had gone to Jhunki village for grazing she goat. He saw that the victim informant was weeping. Accused Rambali was also there. Seeing him he fled away. The informant told him that accused Rambali Sao committed rape with her. Thereafter informant went to her house. This witness identified the accused present in the dock. In his cross-examination he stated that the accused took him to Hazaribag and a document was prepared by the advocate and he was told to put his thumb impression. He put his LTI. But the said document was not read over to him. He had not stated to the advocate that the victim had not told him that Ram Bali committed rape with her. He had no knowledge of what was written in the affidavit. The said affidavit has been marked as Ext.-X. But this witness had falsified about the contents written in the affidavit. He has also stated in his cross-examination that when he reached near the place of occurrence, he found Rambali was fleeing away. 6. He had no knowledge of what was written in the affidavit. The said affidavit has been marked as Ext.-X. But this witness had falsified about the contents written in the affidavit. He has also stated in his cross-examination that when he reached near the place of occurrence, he found Rambali was fleeing away. 6. PW 2 Mahesh Chaudhari deposed that the occurrence is of 5-6 years back. His sister, the victim had gone to call the labourer. When she reached near forest of Jhunki village accused Rambali Teli committed rape with her and threatened that if the matter will be reported to anyone she will be killed. His sister came and informed him about the occurrence. At the time of occurrence she was of 15, years old. The matter was reported to the police and she was examined by the doctor. This witness identified the accused present in the dock. 7. PW 3 Sunaina Devi deposed that her nannd the victim had gone to village Jhunki to call the labourer. In Jhunki forest Rambali Sao found her alone, dragged her and committed rape-with her. Her nanad came weeping and narrated the entire incident. She also narrated the incident to her mother. When her mother asked Rambali why he had committed rape with her daughter, Rambali assaulted her mother-in-law and nanad with fists. This witnesses has also identified the accused present in the dock. 8. PW 6 Ramdhani Chaudhari, the father of the victim, deposed that on the day of occurrence he was ploughing the field for plantation of paddy crop. His victim daughter had gone to Jhunki village to call the labourer. In the way Rambali Sao committed rape with her. His daughter was weeping and she came with her mother to the paddy field. His daughter told him that the accused Rambali Sao committed rape with her. They went to police station. This witness has also identified the accused present in the Court. 9. PW 8 Dr. Shambhu Nath Singh has proved the signature and writing of Dr. Shanti Kumari on the medical report, which has been marked Ext.-3 Dr. Shanti Kumari had examined the victim. The Ext.-3 shows that no medical injury mark was detected on the body. The doctor also did not found any injury mark present on private part. 9. PW 8 Dr. Shambhu Nath Singh has proved the signature and writing of Dr. Shanti Kumari on the medical report, which has been marked Ext.-3 Dr. Shanti Kumari had examined the victim. The Ext.-3 shows that no medical injury mark was detected on the body. The doctor also did not found any injury mark present on private part. The doctor has also found the vagina to admit two fingers easily and there is old tear (rupture) of hymen. This indicates that the lady is habituated to sexual intercourse. No sperm was detected in vaginal swab. The doctor has opined that there is no medical evidence in favour of rape. Regarding age of the victim the opinion was reserved till X-ray report comes. 10. PW 1 Bandhan Uraon is a formal witness who has proved the formal FIR marked as Ext.-1. PW 10 Bhuneshwar Paswan is also a formal witness who proved the production list marked as Ext.-4. ARGUMENTS ON BEHALF OF APPELLANT: 11. Learned counsel for the appellant Mr. B.K. Dubey had argued that appellant is an aged man of more than 45 years and is living with his own wife and children and that both the families, family of the informant and the family of the appellant live side by side. Due to domestic quarrel the appellant has been implicated in this case. Continuing he argued that in the monsoon or rainy season there was no occasion whatsoever for the alleged victim to go out at 6 a.m. in the morning especially when there were other family members of the house were available such as father of the victim, mother of the victim and the brother of the victim who could all have gone to call the labourers for the purpose of working in the field. So this reason for calling out the labourers is merely a ruse. Counsel has also argued that the alleged occurrence is alleged to have taken place in the bush but if that is the case then they would have been some scratch marks over the body of the victim but there has been no such scratch marks over the body of the victim hence, there was no external injury on the victim and therefore, this proves that no such alleged incident of rape occurred on the ground or near the bush can be accepted. Counsel also argued that there are no eye-witness to the alleged occurrence even though in the village so many persons were living and being rainy season all the working people, i.e., women and men included would be ploughing their fields early in morning but it is very strange that none of these have seen the alleged occurrence. 12. Learned counsel for the appellant has submitted that the prosecutrix was examined' on following day by the doctor who did not find any sign of rape. No spermatozoon was found in the private part of the victim which goes to indicate that the story narrated by the informant is merely a concoction and it is a fully fabricated story. Counsel further said that the concoction is made out by the fact that the alleged occurrence is said to have taken place at 6 a.m. in the morning however, the FIR was lodged at 5 p.m. in the evening and therefore the intervening time was only taken to concoct the case against the accused-appellant and this is more so because the police station is hardly at a distance of two kilometers from the place of occurrence. The allegation has been manufactured because of having dispute and domestic quarrel over land and the intervening period from the morning till evening when the FIR was lodged was only to concoct the case against the appellant. 13. Learned counsel for the appellant has further argued that this is a case where there is no independent witness to the alleged occurrence. Further, those who have supported the allegation are not independent witness. Moreover he has argued and submitted that in the FIR itself neither the name of any witness is mentioned nor name of any persons has been mentioned who have seen the appellant committing the offence and Mahavir Bhuia only comes in the scene subsequently and as such he has not supported whether he had actually seen the alleged occurrence of rape taking place and therefore he is only a hearsay witness. Regarding Ext.-3, the medical report counsel has again reiterated that doctor has found no injury or any mark on the private part of the victim and the doctor has found that two fingers were admitted into the vagina rather easily and it was an old tear in the hymen. Regarding Ext.-3, the medical report counsel has again reiterated that doctor has found no injury or any mark on the private part of the victim and the doctor has found that two fingers were admitted into the vagina rather easily and it was an old tear in the hymen. Counsel said that this indicates that the lady was habituated to sexual intercourse and no spermatozoa was found in the vagina and therefore the doctor has not found any medical evidence in support of rape. Counsel has argued that she is an adult woman fully habituated to sex and therefore in such circumstances the allegations against the appellant is most doubtful. 14. Counsel for the appellant further argued that the Investigating Officer has not been examined in this case and therefore, the circumstances have highly prejudiced the case of the defence and the place of occurrence was not proved by the Investigating Officer and neither could the evidences of other witnesses be compared against what the Investigating Officer would have otherwise testified in evidence. Further no incriminating articles was found at the place of occurrence such as bloodstained soil, any piece of cloth or any semen stained cloth which only goes to show that no such occurrence ever took place and entire prosecution case has been fabricated by the informant. 15. Learned counsel for the appellant also cited certain cases in support of his case. On the point of lack of injuries on the private parts of the prosecutrix counsel has relied upon the case of Premiya @ Prem Prakash v. State of Rajasthan, reported in (2008) 10 SCC 81 and also in the case of Lalli Ram and another v. State of Madhya Pradesh, reported in (2008) 10 SCC 69 . Learned counsel further submitted that if there is no dear cut case made out regarding rape then rather it is a case of outraging the modesty or the medical evidence does not indicate rape then the allegation of Section 376,- IPC cannot be sustained. 16. He has then referred to the case of Geta Gorai @ Geeta Gorai v. The State of Bihar, reported in 2008 (4) JLJR 345 and argued that this ruling supports the circumstance in which there is nonexamination of La. and doctor and therefore the case against the appellant is prejudiced and in these cited case conviction was set aside. 16. He has then referred to the case of Geta Gorai @ Geeta Gorai v. The State of Bihar, reported in 2008 (4) JLJR 345 and argued that this ruling supports the circumstance in which there is nonexamination of La. and doctor and therefore the case against the appellant is prejudiced and in these cited case conviction was set aside. Therefore, counsel for the appellant argued that the case against the appellant here should also be set aside. 17. Finally he has also cited the case of Bishundeo Thakur v. State of Bihar, reported in 2001 (3) EastCrC 39 (Pat) and argued that this is a case of similar circumstance however, in this cited case the offence of Section 376, IPC was setaside and the conviction was sustained under Sections 323 and 354, IPC, and since the case of the appellant is similar and therefore at the most any conviction is to be sustained then it should be modified from Section 376, IPC to Section 354, IPC. ARGUMENTS ON BEHALF OF STATE: 18. Learned counsel for the State learned APP Mr. Mukesh Kumar has however argued that this case rests on the very strong and reliable testimony of the victim/prosecutrix herself and there is no need of any corroboration. However, in spite of that there is also the added evidence of another witness, i.e., one Mahavir Bhuiya who found Rambali fleeing from the spot so it was immediately after the incidence and he had also seen the victim crying and on asking her why she is crying she revealed the same. So the evidence of Mahavir Bhuiya who came soon after the occurrence cannot be omitted and therefore on the basis of these two witnesses a very strong case against the appellant is made out. Prosecutrix has also supported the statement given in fardbeyan and there is consistency in what she has stated in the fardbeyan and what she has deposed in her evidence. Moreover, other witnesses, PW 2, PW 3 and PW 6 have also supported the prosecution case as narrated in the fardbeyan. Learned counsel for the State submitted that argument of delay is an absurd argument because the FIR was lodged on the same day. The offence occurred in the morning at 6 a.m. and the FIR was lodged at 5 p.m. within sufficient time. Learned counsel for the State submitted that argument of delay is an absurd argument because the FIR was lodged on the same day. The offence occurred in the morning at 6 a.m. and the FIR was lodged at 5 p.m. within sufficient time. It is not expected that a woman or a very young girl who was raped in this incident immediately rushes to the police station which was at least some distance away from her village and in a village situation and after the shock the first thing she would have done is to go home and to get over the shock and to settle her mind would take considerable time and after doing so then only the case would be lodged against the accused so there is no delay whatsoever in lodging the case. Counsel further argued that in a country like India no woman would like to lower her dignity and bring unnecessary shame upon herself and her family by making a false allegation against accused. It i s very well known that after such incidents girls from conservative backgrounds, and the country still being largely conservative in nature, it would be difficult for the girl to even develop social relationships and may even find it difficult to get married and therefore, under such circumstances there is no reason why she would ever allege false allegations against the appellant. 19. Learned counsel for the State has also cited certain cases in his support. The first is State of Punjab v. Gurmit Singh and others, reported in (1996) 2 SCC 384 and argued that minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out the otherwise reliable prosecution case. He has also argued that conviction can be formed on the sole testimony of the prosecutrix itself unless there is compelling reasons for seeking corroboration. Further counsel says that in this case there is no major contradictions between the testimony of the prosecutrix and fardbeyan and there is no reason why she would make a false allegations as there is nothing in the evidence that seems absurd and totally contradictory so that the victim cannot be believed and conviction should be sustained. Further counsel says that in this case there is no major contradictions between the testimony of the prosecutrix and fardbeyan and there is no reason why she would make a false allegations as there is nothing in the evidence that seems absurd and totally contradictory so that the victim cannot be believed and conviction should be sustained. He has also cited a case of Narayanamma (KUM) v. State of Karnataka and others, reported in (1994) 5 SCC 728 and argued that even in a situation that hymen of the prosecutrix is ruptured and admitted two fingers this cannot be viewed as if the prosecutrix was habitual to sexual intercourse. Counsel has argued that this is the finding in Narayanamma (supra) and findings in the cited case is also that the absence of spermatozoa in vaginal swab does not falsify the version of the prosecutrix and for the reasons given in the cited case a parallel can be drawn in the present case and therefore merely because there was no spermatozoa in the vaginal swab and two lingers entered easily it does not mean that rape did not take place. Counsel also argued that for the sake of argument even if the woman was said to be of easy virtue no unconsented and unwilling sex can be committed upon a body of person. Learned counsel also cited the case of Leela Ram (Dead) through Dull Chand v. State of Haryana and another, reported in (1999) 9 SCC 525 and said that minor embellishments and discrepancies by themselves will not invalidate the evidence of eye-witnesses. He has quoted from the said judgment and said corroboration of evidence with mathematical niceties cannot be expected in criminal cases and argued that the evidence should be considered from the point of view of trustworthiness and said that in this case there is no element of doubt regarding the trustworthiness of the victim and therefore minor discrepancies even the non-examination of the I.O in this case in the light of the trustworthiness of the victim along with the supporting evidence of Mahavir Bhuiya and the .other witnesses fully establishes the guilt of the appellant and thus conviction under Section 376, IPC is fully sustainable and worthy to be upheld. FINDINGS: 20. FINDINGS: 20. Having gone through the arguments of the counsel and records of the case and the evidence I find that this is a case of alleged rape and in cases of such allegations normally it is not done in the open or in the glare of public scrutiny. Offences of sexual nature are done in dark of night or in the quietness of remote areas where one cannot be seen and apparently this also seems to be the case. Though it is said to be the monsoon or rainy season nevertheless it was alleged to have taken place at 6 a.m. in the morning and at considerable distance from the house and therefore it seems the appellant taking advantage of the situation is alleged to have forced himself upon the victim. The victim is apparently a girl of 15 years old but the age has not been made an issue apparently in the judgment impugned. However, if we go through the records of the case we see that there is no reason why we should totally disbelieve her testimony. Counsel for the appellant has alleged that there was a dispute regarding land or some domestic dispute but it seems to have been made more in terms of argument there is not much evidentiary value regarding such dispute. Moreover, there is no reason why a girl of tender age would herself make any false allegations against the appellant to only drag herself into disrepute and also to face the long and rigorous process of police investigation and trial merely to take some kind of vengeance on some land dispute or domestic quarrels which can otherwise be addressed in other manners any way. Normally such cases do not have an eye-witness but in this case soon after the occurrence the girl was met by one Mahavir Bhuiya who saw the appellant fleeing away so on questioning of the girl the reason was revealed and therefore it is not too difficult to surmise that the perpetrator of the offence could only be the person fleeing from the place of occurrence. However, from the evidence of Mahavir Bhuiya, a little discrepancy is also there, because in his evidence it has come that he used to go for grazing goats at around 10:00 a.m. and the incidence had taken place around 6:00 a.m. But does this totally nullify the victim's evidence. However, from the evidence of Mahavir Bhuiya, a little discrepancy is also there, because in his evidence it has come that he used to go for grazing goats at around 10:00 a.m. and the incidence had taken place around 6:00 a.m. But does this totally nullify the victim's evidence. There is the finding of the doctor who has said there is no sign of rape, but it is also not expected that the victim will make an allegation of rape simply, for the sake of making a false case. The appellant's sexual advances towards the informant victim cannot be ruled out. 21. Taking the totality of facts and circumstances in this case this Court is of the view that though offence of rape against the appellant is not proved but informant/victim in her deposition said that appellant caught her from behind, pushed her down and opened her saree. This act of appellant amounts to using of criminal force intending to outrage the modesty of informant/victim. Hence, on the basis of aforesaid reasonings and on the facts and circumstances, the appellant is convicted of the offence under Section 354, IPC instead of Section 376, IPC. Accordingly his sentence, is also modified to two years rigorous imprisonment, any period already spent in custody to be adjusted or subtracted from the modified sentence. 22. Accordingly, the judgment of conviction under Section 376, IPC dated 12.3.2003 passed in S.T. No. 45 of 1989 arising out of the Basisthnagar P.S. case No. 27 of 1988 is altered to one under Section 354, IPC. Further the order of modified sentence imposed by this Court is directed to be carried out by procuring the arrest of the appellant. He is directed to serve out remaining sentence. Bail bond of appellant is cancelled. Learned concerned Court below is directed to take appropriate steps to enforce the same. 23. Accordingly, the appeal is dismissed with alteration in conviction as well as in sentence. Appeal dismissed.