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2019 DIGILAW 1180 (JHR)

Bittu Kumar v. State of Jharkhand

2019-06-19

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGEMENT : SHREE CHANDRASHEKHAR, J. 1. The sole appellant has challenged his conviction under section 376(2)(f) and section 324 IPC dated 23.09.2011 and the order of sentence dated 24.09.2011 of R.I for fourteen years for the said offence in Sessions Trial Case No. 143 of 2010 passed by the Sessions Judge-II, at Jamshedpur. 2. He was arrested on 30.12.2009 and after his conviction on 23.09.2011 he is serving the sentence awarded to him in Sessions Trial Case No. 143 of 2010. 3. On the basis of fardbeyan of the informant namely, Krishna Pandit, father of the victim girl, recorded on 30.12.2009 by Sub-Inspector of Police, Brahmdev Prasad Pathak, Bagbera/Jugsalai P.S. Case No. 261 of 2009 was registered against three accused persons under section 323, 324, 376(2)(f) IPC. After the investigation, charge-sheet was submitted and charges under section 323/34, 324/34, 385/34, 387/34, 376, 376(2)(g) IPC were framed against three accused persons. During the trial the prosecution has examined altogether 12 witnesses; the victim girl has been examined as P.W. 3 and her father is P.W.4. The doctor who has examined the victim girl is P.W. 7 and the doctor who has proved the injury report of the appellant and one Mamta Devi is P.W. 6. The prosecution has also produced FSL report of the State Forensic Science Laboratory, Jharkhand, Ranchi to prove the case against the appellant. 4. On the basis of the evidences laid by the prosecution during the trial of Sessions Trial Case No. 143 of 2010, the learned Sessions Judge has recorded a finding that the prosecution has successfully proved the case against the appellant under section 376(2)(f) and section 324 IPC, however, charges against the other two accused persons namely, Dipu Prasad and Santosh Karak were not proved. Accordingly, the aforesaid two accused persons, who were sent-up for trial, were acquitted of the charges framed against them. 5. Assailing the judgment of conviction of the appellant under section 376(2)(f) IPC and section 324 IPC and sentence awarded to him for the aforesaid offence, Mr. Accordingly, the aforesaid two accused persons, who were sent-up for trial, were acquitted of the charges framed against them. 5. Assailing the judgment of conviction of the appellant under section 376(2)(f) IPC and section 324 IPC and sentence awarded to him for the aforesaid offence, Mr. Pankaj Verma, the learned counsel for the appellant has made the following submissions; (i) the victim girl has admitted that she was not knowing the appellant on the date of occurrence and she was allegedly taken away by the appellant when her father had gone to call the villagers and, therefore, the appellant could not have been named as accused in the First Information Report and (ii) the inconclusive FSL Report does not establish complicity of the appellant in the incident and while so, the prosecution has failed to establish that it was the appellant who has sexually assaulted the victim girl. 6. On the other hand, the learned APP submits that by now it is well-settled that testimony of the victim girl is sufficient to record conviction of the accused under section 376 IPC and in this case not only the victim girl has remained unshaken during her cross- examination, the prosecution has brought on record FSL report to establish that it was the appellant who has sexually ravished the victim girl. 7. Section 375 IPC defines rape. Before the amendment of 2013, section 376 IPC was couched in the following language: Section 376 - Punishment for rape: (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever: (a) being a police officer commits rape: (i) within the limits of the police station to which he is appointed; (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; (iii) on a woman in his custody or in the custody of a police officer subordinate to him; (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; (e) commits rape on a woman knowing her to be pregnant; (f) commits rape on a woman when she is under twelve years of age; (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1 – Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2 – “Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widows’ home or by any other name, which is established and maintained for the reception and care of women or children. Explanation 3 – “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation. 8. Explanation 3 – “Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation. 8. By now it is well-accepted that normally a women would not falsely implicate someone for the offence of rape; the incident brings stigma to the women. The victim girl before her statement was recorded was tested by the learned Judge and after being satisfied with her maturity, the learned Sessions Judge has recorded her statement. It is also well-settled that absence of spermotozoa is not a conclusive factor and penetration is not sine qua non to complete the offence under section 376 IPC. In his statement the informant, father of the victim girl, has stated that in the mid-night of 29/30.12.2009 at about 1:00 a.m. the appellant came to his house and demanded money for permitting him to construct a hut in the open field at Ganghi Nagar Maidan and when he expressed his inability to pay the appellant assaulted him. The informant has asserted that at this juncture he went to call the villagers and when he came back he did not find his daughter in the house. He started searching for his daughter and in the meantime after about half an hour his daughter came back. She informed him that the appellant has taken away her to a nearby school where other two accused persons namely, Santosh Karak and Dipu Prasad were present and the appellant has sexually assaulted her. The victim girl has deposed that the appellant took her to a school where the accused persons namely, Santosh Karak and Dipu Prasad were present. These two accused persons held her hand and feet when the appellant sexually assaulted her and whenever she raised cry the appellant used to slap her. She has identified all the three accused persons in the dock and asserted that she has made the aforesaid statement to the police. She has remained largely unshaken during her cross-examination by the defence and except minor inconsistency in her evidence nothing material can be elicited from her by the defence. In State (Govt. of NCT of Delhi) vs. Pankaj Chaudhary, 2018 SCC Online SC 2256, the Supreme Court has observed thus: “26. She has remained largely unshaken during her cross-examination by the defence and except minor inconsistency in her evidence nothing material can be elicited from her by the defence. In State (Govt. of NCT of Delhi) vs. Pankaj Chaudhary, 2018 SCC Online SC 2256, the Supreme Court has observed thus: “26. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. Vishnu alias Undrya vs. State of Maharashtra, (2006) 1 SCC 283 . It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. State vs. N.K. The accused, (2000) 5 SCC 30 . 9. In view of the evidence of the prosecutrix, we are not inclined to interfere with the finding recorded by the learned Sessions Judge that the appellant has sexually assaulted the victim girl. 10. The prosecution has, however, failed to establish the charge under section 324 IPC. 11. It has come on record that the victim girl was below the age of 12 years and, therefore, the appellant is liable to be convicted under section 376 (2)(f) IPC for which the minimum punishment prescribed is not less than ten years. The learned Sessions Judge has recorded a finding that the appellant deserves severe punishment and, therefore, he has sentenced him to undergo R.I for Fourteen years. 12. The maximum punishment provided under section 376 (2)(f) IPC is R.I for life. We find that on the question of sentence the learned Sessions Judge has recorded contradictory findings and, in fact, failed to consider the mitigating circumstances as well as the prejudice caused to the appellant. 13. During her cross-examination, the victim girl has admitted that when the appellant took her to a nearby school she was not knowing his name. We find that on the question of sentence the learned Sessions Judge has recorded contradictory findings and, in fact, failed to consider the mitigating circumstances as well as the prejudice caused to the appellant. 13. During her cross-examination, the victim girl has admitted that when the appellant took her to a nearby school she was not knowing his name. In the above facts, allegation against the appellant of taking away the daughter of the informant and sexually assaulting her become doubtful. The report of the State Forensic Science Laboratory, Jharkhand, Ranchi reads as under: (1) Semen has been detected in each of the exhibits marked-A and C. (2) As a result of microscopic and immunochromatographic test semen could not be detected in the exhibit marked-B. (3) Serological report on origin and group of semen would follow. Results of the Serological Examination: S. No. Exhibits marked Nature of Stains/tissue Origin Grouping Remarks Species of origin Results ABO Grouping Results Others Particularly when origin/ Grouping not determined 1 A Semen HUMAN A&B Antigen present 2 C Semen HUMAN Group-A 14. It has come on record in the evidence of the investigating officer that frock and undergarment of the victim girl were handed over to the investigating officer by her neighbours namely, Raj Kumar Pandit and Parmeshwar Sahu. It has also come on record that statement of the victim girl was recorded for the first time on 03.01.2010 and the record produced by the prosecution would disclose that on 31.12.2009 the appellant was taken to M.G.M Hospital for taking his semen, however, no report has been produced by the prosecution in this regard. A sample memo was not prepared on 31.12.2009 and on the basis of the requisition-slip dated 10.01.2010, vide exhibit-10, it cannot be conclusively established that it was the sample of semen of the appellant which was sent for forensic examination. The doctor, who has examined the victim girl, has stated that definite opinion on commission of rape cannot be given, however, she found violence on the private part of the victim, but then, in her cross-examination she says that such injury can be caused by fall on hard and pointed substance. She has also deposed that she did not find any sign of penetration. She has also deposed that she did not find any sign of penetration. The doctor who has proved the injury report of the appellant has found the following injuries on his body: (1) Bruise on the left temporal scalp behind the left eye measuring 2 cm x 2 cm. (2) Superficial abrasion 1 cm x 1 cm on the left knee-cap. (3) Bruise on the back 8 cm x 1.5 two in nos lying parallel to each other and are across the back, upper end is on the right side. Nature – All are simple in nature. Age – has occurred within 4 hours caused by hard blunt object. 15. It is the case of the prosecution that the appellant was assaulted by the villagers but none of the prosecution witnesses who have been examined during the trial has supported this part of the prosecution's case. The appellant has raised a defence that the informant is a land grabber and due to some dispute he has falsely implicated him setting up his daughter as a victim. It is also pertinent to record that one part of the prosecution's story that two other accused persons namely, Santosh Karak and Dipu Prasad were also involved in the crime and they were sent-up for trial has been found not true by the learned Judge. 16. In view of the aforesaid facts and circumstances in the case, we are of the opinion that the appellant's sentence shall be lesser than the fixed-minimum under section 376(2) IPC and, accordingly, exercising the powers under proviso to section 376(2) IPC we sentence him to undergo R.I for Seven years. 17. In the result, the judgment of conviction dated 23.09.2011 under section 376 (2)(f) IPC and section 324 IPC and the order of sentence dated 24.09.2011 for the said offences passed against the appellant in Sessions Trial Case No. 143 of 2010 are set-aside. The appellant stands convicted under section 376 (2)(f) IPC and sentenced to R.I for Seven years. 18. Criminal Appeal (D.B.) No. 580 of 2011 is partly allowed. 19. The appellant-Bittu Kumar shall be released forthwith, if not required in connection to any other case. 20. Let the lower-court records be transmitted to the court concerned, forthwith. Appeal partly allowed.