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2019 DIGILAW 194 (JHR)

Roya Bobanga v. State Of Jharkhand

2019-01-18

RATNAKER BHENGRA

body2019
JUDGMENT Ratnaker Bhengra, J. - This criminal appeal is directed against the judgment of conviction and order of sentence dated 16.01.2003 passed in S.T. No. 81 of 2002 by learned 2nd Additional Sessions Judge, West Singhbhum at Chaibasa whereby and whereunder the appellant has been found guilty and convicted for offence punishable under section 376 of the Indian Penal Code and sentenced to undergo R.I. for 7 years and to pay fine of Rs. 2000/-.In default of payment of fine appellant was to further undergo R.I. for six months. 2. The case of the prosecution, in brief, as per the feardbeyan of the informant or victim P.W.-1(name concealed) is that on 12.2.2002 at about 7.00 p.m. informant had gone in her neighborhood to participate in the death ceremony of deceased Robro Kairam.There Robro Kairam''s son-in-law Roya Bobanga (accused or appellant herein) and daughter Pundi Kairam told the informant to fetch water where feast was going on. Then informant fetched water from her house and carried to the house of the deceased Roboro. Thereafter when informant was coming back to her house, the accused Roya Bobanga forcibly lifted her in his lap. Informant raised alarm but no one reached there. The accused pressed her mouth and took her in bushes near her house, thrashed her on the ground and took out her pant and forcibly committed rape upon her twice. She raised alarm but no villager came there to save her. After the occurrence the accused Roya Bobanga ran away to his sasural leaving her behind. The informant went weeping to the house of her uncle Subedar Kairam and told about the occurrence to her aunt Muni Kairam and in the night she slept with her aunt. In the next morning her mother and father came searching her then she told about the occurrence to them and to villagers. Informant further stated that the pant, which she wore at the time of occurrence, was washed by her on that day but there was still some blood stain on the said pant. 3. On the basis of the fardbeyan of the informant Noamundi P.S. Case No. 6 of 2002 dated 13.2.2002 under section 376 of the IPC was registered against the accused. After investigation police charge sheet was submitted against the accused and cognizance of the offence was taken and the case was committed to the court of sessions. 3. On the basis of the fardbeyan of the informant Noamundi P.S. Case No. 6 of 2002 dated 13.2.2002 under section 376 of the IPC was registered against the accused. After investigation police charge sheet was submitted against the accused and cognizance of the offence was taken and the case was committed to the court of sessions. Trial was held and at the conclusion of trial the accused or appellant herein was convicted and sentenced as aforesaid. Hence, this appeal. 4. Prosecution examined altogether eight witnesses in support of its case.PW-1 is the informant and victim herself.PW-2 Heera Kairam and PW-3 Gura Kairam are the mother and father of the informant respectively.PW-4 Munni Kairam and PW-5 Sumi Kairam are the aunt of the informant. PW-6 is Bhagat Chatamba,PW-7 is the investigating officer of the case and PW-8 is Dr. Vinod Kumar Pandit who was a member of medical Board which examined the victim girl. 5. P.W-1 is the informant or victim of the case. She stated in her evidence that on the date of occurrence Pundi Kairam and her husband Roya Bobanga came to her house and asked her to fetch water to their house. A person had died in their house and on this occasion feast was arranged in their house. At para-3 of her examination -in-chief she stated that on that day at about 7.00 p.m. she was returning to her house then on the way accused Roya Bobanga caught her waist with one hand and pressed her mouth with other hand and carried her in bushes at some distance. At para-4 informant stated that there accused thrashed her on the ground and took out her pant and committed rape upon her twice and then accused fled away. She further stated that she raised alarm but no one came there. Then she went weeping to the house of her uncle Subedar Kairam and told about the occurrence to her aunt. On the next day her parent and aunt took her to the police station, where she gave her statement. Informant further stated that her pant and frock were seized by the police for document was made on which she and her father put their thumb impression. She further stated that she was sent to hospital for medical examination where she was examined. Informant further stated that her pant and frock were seized by the police for document was made on which she and her father put their thumb impression. She further stated that she was sent to hospital for medical examination where she was examined. She had sustained injury on the knee of her both legs and there was also bleeding in her private part. In para 16 of her cross-examination informant stated that when the accused had caught and lifted her from way she did not raise alarm but she was weeping and at that time it was dark. She further stated that she always used to visit the house of Roboro, who had died, so she was knew the accused Roya from before. 6. Pw-2 and PW-3 who are mother and father of the victim girl, both have stated in their evidence that accused Roya Bobanga came to their house and told their victim daughter to fetch water to his house. Victim carried water to the house of the accused but she did not return in the night. 7. P.W. 4 is Munni Kairam, is the aunt of the informant. She stated in her examination-in-chief that on the alleged night of occurrence informant came to her house but did not say anything to her about the occurrence.PW-4 further stated that on the alleged night sharadh of Roboro was held in the village and she had attended the sharadh. At para-5 she stated that accused Roya Bobanga was also present in the sharadh. She was declared hostile. 8. P.W. 5 is also aunt of the informant. In her cross examination she has denied to have any personal knowledge about the occurrence. 9. P.W. 6 is Bhagat Chatamba. He stated in his examination -in -chief that on the alleged night of occurrence sharadh of Roboro Kairam was organised in the village. On the next day there was a meeting in the village in which he was also present. In the said meeting the informant and her parents told that accused Roya Bobanga had committed rape upon the informant twice, when informant was returning to her house after keeping water in the shradh house. 10. P.W. 7 is the I.O. of this case. He stated in his evidence that on 13-2-2012 he was posted as officer-in - charge of Noamundi police station and recorded the statement of the informant. 10. P.W. 7 is the I.O. of this case. He stated in his evidence that on 13-2-2012 he was posted as officer-in - charge of Noamundi police station and recorded the statement of the informant. He has proved the statement of the informant which was marked as Ext.-1.He further stated that he took up the investigation of this case and again recorded the statement of the informant and inspected the place of occurrence. The place of occurrence is situated at a distance of about 500 yards from Kairam Sai towards south which was a field like place in villageKatikora, Tola- Kairamsai. He also proved the production-cumseizure list of the pant and frock of the informant which was marked as Ext.-2. He sent the prosecutrix for medical examination on 14.2.2002 and also got her statement recorded under section 164 Cr.P.C.. 11. P.W. 8 is Dr. V.K. Pandit. He stated in his evidence that on 14.2.2002 a Medical Board was constituted by the Deputy Superintendent, Sadar Hospital, Chaibasa consisting of him and Dr. Bela Rose Ekka. They examined the victim girl. He has further stated that hymen was ruptured, Posterior laterally. Regarding high vaginal swab pathological report he has stated that no spermatozoa either alive or dead found. He opinioned that according to clinical, radiological and pathological examination : I. There was no marks of violence on private part. ii. There was no foreign hair found on the private part. Iii. She is approximately 12 to 13 years of age and iv. There was no swelling, redness and bleeding point. In his cross-examination, he has stated that no ossification test was conducted to ascertain the age of the victim . He has further stated that the basis of ascertaining the age of the girl was x-ray examination report , which was conducted from outside, as there was no x-ray plant in the hospital. He has proved the medical report of the victim which was in the writing and signature of doctor Bela Rose Ekka which was marked Ext.-3. ARGUMENTS OF THE APPELLANT 12. Learned counsel for the appellant Ms. He has proved the medical report of the victim which was in the writing and signature of doctor Bela Rose Ekka which was marked Ext.-3. ARGUMENTS OF THE APPELLANT 12. Learned counsel for the appellant Ms. Madhulika Das Gupta, who has been appointed as Amicus Curiae submitted that- i. The informant in her fardbeyan had stated that she had gone to the house where shradh ceremony was taking place and there she was asked by the accused and his wife to fetch water while in her deposition she has deposed that they came to her house and asked her to fetch water. ii. In her fardbeyan the informant stated that she had screamed but in her deposition she herself has stated that when she was picked up by the appellant, she did not scream. In her statement under section 164 of Cr.P.C victim stated that after rape when she was returning she was silent. Counsel says this is not the conduct expected of a person who is sought to be raped or is being raped. iii. Informant deposed that after the incident of rape she went to the house of uncle and there she informed about the incident to her aunt or PW-4 but PW-4 in her evidence deposed that on the alleged night of occurrence victim came to her house but said nothing about the incident.PW-4 was declared hostile by the prosecution. iv. P.W. 5 Sumi Kairam, who is another aunty of the victim, is a hearsay witness. v. The examination of the victim was done on the next day of the alleged incident of rape, however, PW-8 Dr. V.K. Pandit, has deposed that injury was 3 to 4 days old and hence raises doubt about the incident of rape as alleged by the prosecution. vi. X-ray report was sought for or conducted for ascertaining the age of the victim, however, the X-ray report has not been produced or exhibited in the court and neither any opinion was taken from the expert .So, the age of the victim had not been determined properly. vii. In his examination under section 313 of Cr.P.C accused had stated that on the day of occurrence he was not in the village, rather he had gone to Noamundi for doing work but the learned court below did not consider his statement . 13. vii. In his examination under section 313 of Cr.P.C accused had stated that on the day of occurrence he was not in the village, rather he had gone to Noamundi for doing work but the learned court below did not consider his statement . 13. Learned Counsel then referred to the judgment reported in State of M.P. Vs. Keshar Singh, (2015) 9 SCC 91 para 10 and pointed out from this paragraph on the point of injury and also on the point of inconsistency of prosecution witnesses and submitted that in the case in hand also injuries on the knee has been claimed by the victim but doctor or PW-8 did not find any such external injuries. Hence, convictions and accompanying sentence of the appellant cannot be upheld and sustained. ARGUMENTS OF THE APP 14. Learned counsel for the State, learned APP has argued on the point of age and pointed out that P.W. 2 who is the mother of the victim has deposed that age of her daughter was 12 years. PW-8 doctor has also opined the age of the victim to be 12 to 13 years approx. Therefore, the offence of the appellant gets aggravated because victim is a minor. The informant or victim has unambiguously and consistently stated in her fardbeyan as well as in her evidence before the court below about the occurrence of rape committed by the appellant . Counsel for the State has also referred to the evidence of P.W. 6 and pointed out that he is co-villager and an independent witness and he had gone along with the victim girl to lodge the FIR and he was also witness to fardbeyan. Referring to the evidence of investigating officer P.W. 7, counsel for the State has argued that the I.O. has fully described the place of occurrence where the incident of rape as alleged took place. Counsel for the State further argued that in offence of rape, even if the medical examination does not support the rape, the law is that the sole testimony of a rape victim can be fully relied upon if the victim is reliable and trustworthy witness. He has further submitted it is to be noted that the victim was a young girl and she had given this testimony and moreover it has come in the doctor''s medical report that the hymen of the girl was ruptured. He has further submitted it is to be noted that the victim was a young girl and she had given this testimony and moreover it has come in the doctor''s medical report that the hymen of the girl was ruptured. Further the scheming nature of the accused can be made out which proves his guilt because appellant had in his statement under section 313 of Cr.P.C stated that he was not at the place of occurrence but was rather in Noamundi. This is simply not true because it was the time of shradh or death rituals being conducted and it is not expected that he being a member of family specifically son-in -law and would be anywhere else.Even,PW-4,who is the aunt of the victim, though she was declared hostile, but she stated in her evidence that accused Roya Bobanga was present in the shradh. Lastly learned counsel for the state submitted that judgment of conviction and order of sentence passed by the court below is based on evidence and needs to be upheld and requires no interference by this court. CONCLUSIONS 15. I Have heard learned counsel for both the sides, gone through the case records and considered the facts and circumstances of the case. I find from the evidence of the prosecution witnesses that on the alleged night of occurrence of rape on 12-02-2002, shradh and related feast of father-in-law of the appellant was going on in the village- Kati Kora, Police Station-Noamundi, District-West Singhbhum during which appellant had lifted the informant or victim and committed rape on her. But, in his statement under section 313 of Cr.P.C appellant stated that he had gone to Noamundi for doing work. So, question arises whether on the alleged night of occurrence appellant was in the village- Kati Kora attending shradh of his father-in- law or appellant was at Noamundi. In their evidences PW-1, PW-2, PW-3, PW-4, PW5, and PW-6 all have unequivocally deposed that on the alleged night of occurrence, shradh of appellant''s father-in-law was held. PW4,though she was declared hostile, in paragraph-5 of her examinationin-chief stated that appellant was present in shradh of his father-inlaw. The prosecution case is also that appellant had told the victim to fetch water to the house of his father-in-law as shradh of his fatherin-law was held in the village on the day of occurrence. PW4,though she was declared hostile, in paragraph-5 of her examinationin-chief stated that appellant was present in shradh of his father-inlaw. The prosecution case is also that appellant had told the victim to fetch water to the house of his father-in-law as shradh of his fatherin-law was held in the village on the day of occurrence. So, the own statement of appellant given under section 313 of Cr.P.C is falsified that appellant was not present in the village on the alleged date of occurrence. Hence, on the alleged night of occurrence of rape, appellant attended the shradh of his father-in- law in the village- Kati Kora where the alleged incident of rape took place. 16. Informant has also in her fardbeyan and in her deposition reiterated consistently how the appellant had lifted her on the night of occurrence and committed rape on her on that very night twice. Here, it is pertinent to note that PW-2 mother of the victim, stated in her examination-in-chief that age of her victim daughter was 12 years. Even, PW-8 doctor who was member of medical Board and had examined the victim girl had stated in his evidence regarding menstrual history that menstruation of the victim did not start. Medical Board on the basis of X-ray examination report opined that age of the victim girl was approx 12 or 13 years. So, it can be safely inferred that victim girl was 12 or 13 years of age at the time of occurrence of rape that was committed on her. 17. So, keeping in mind the aforesaid background that victim girl was only 12 or 13 years of age at the time of occurrence and own statement of the accused under section 313 of Cr.P.C is falsified, hence appellant was present in the village Kati Kora on the night of alleged occurrence of rape and attended the shradh of his father-inlaw, question can be answered whether the victim who is alleged to have been raped by the appellant is a trustworthy and reliable witness or not . 18. The victim and her parents are close relatives of the accused. A woman or a young girl along with her parents will not make false allegations of rape against any person unless it is true. Let alone a close relative unless there was substance to the allegations. 18. The victim and her parents are close relatives of the accused. A woman or a young girl along with her parents will not make false allegations of rape against any person unless it is true. Let alone a close relative unless there was substance to the allegations. There is no mention of any enmity between the parties, or even the parents of the victim and the accused or his family. Even if, there was enmity, it is not expected that the parents of victim would put a young girl to such unnecessary allegations, test and shame. Therefore, considering the age of the girl also, who was 12 or 13 years of age at the time of incident of rape, it is difficult to believe that she would be put to such stress and trial regarding a false allegation or she would even support or corroborate a false allegation. Hence, in the facts and circumstances and evidence of victim and other prosecution witnesses this court is of the view that informant or victim is a trustworthy and reliable witness. Though there are inconsistencies pointed out from the FIR or from the evidences of the prosecution witnesses, including the victim girl, I do not find it of such a nature that would shake the very allegations that have been made against the accused. Hence, the prosecution has been able to prove the charge under section under 376 of IPC against the appellant beyond reasonable doubt. 19. Accordingly, judgment of conviction and order of sentence dated 16.01.2003 passed in S.T. No. 81 of 2002 by learned 2nd Additional Sessions Judge, West Singhbhum at Chaibasa is sustained and upheld. The bail bonds of the appellant is cancelled. The concerned or successor court below is directed to stake steps for his arrest to carry out the remaining sentence. 20. This Court appreciates the assistance rendered by Ms. Madhulika Das Gupta,amicus curiae, appointed by this court. The Secretary JHALSA is directed to pay remuneration to the learned Ms. Madhulika Das Gupta, Amicus curiae, as per rules. 21. Accordingly, this appeal is dismissed.