Jharkhand High Court
Sangi Hambram And Ors. vs State Of Bihar (Now Jharkhand) on 10 March, 2004
Equivalent citations: 2004(2)BLJR1057, 2004CRILJ3375, [2005(2)JCR427(JHR)], 2004 CRI. L. J. 3375, 2004 AIR - JHAR. H. C. R. 1848, 2004 (2) BLJR 1057, (2005) 2 JCR 427 (JHA), (2004) 1 JCJR 272 (JHA), 2004 BLJR 2 1057
Author: Lakshman Uraon
Bench: S.J. Mukhopadhaya, Lakshman Uraon
JUDGMENT Lakshman Uraon, J.
1. The appellants have preferred this appeal against the judgment and order of conviction and sentence dated 31.5.1997, passed by Sri J.K. Narayan, learned Additional Sessions Judge, Seraikella, in Sessions Trial No. 179 of 1993 (G.R. No. 545 of 1992), whereby and whereunder, all the three appellants have been convicted under Section 376(2)(g) of the Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each and in default, to undergo rigorous imprisonment for six months. They have further been convicted under Section 452 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years. However, the sentences in respect of all the appellants have been ordered to run concurrently.
2. The prosecution case is based on the First Information Report, lodged by Duni Purty (PW 8), recorded on 16.9.1992 at 18.30 hours regarding an occurrence, which took place in the night of 15/16th September, 1992 in between 9.00 p.m. of 15th September, 1992 till 3.00 a.m., the early morning of 16th September, 1992. The informant Duni Purty (PW 8) has alleged that in the night of 15.9.1992 she was sleeping in the house of her Bari Maa (aunt) along with Guruwari Bankira (PW 2), Bari Maa, Bhabhi Mansuri Bankira (PW 4), cousin sister Burhi Bankira (PW 5), where a dhibri was burning. At about 9.00 p.m. all of a sudden, appellant Sangi Hambram, Dusa Bankira and Mangal Singh Bankira along with two others, namely, Lukun Bankira and Jadav Bankira (both acquitted), entered into her room, Appellant Mangal Singh Bankira threatened her at the point of country made pistol and appellant Sangi Hambram and Dusa Bankira caught hold of her, threatening to cause her murder and lifted her by force and took out of the village at a distance of 1 km in a lonely place. All the three appellants Sangi Hambram, Dusa Bankira and Mangal Singh Bankira at the point of pistol by force committed rape upon her one after another, twice each repeatedly. Thereafter, she was taken near a pond where also she was ravished by appellant Sangi Hambram and Dusa Bankira, The other two co- accused, who have been acquitted, namely, Lukun and Jadav Bankira were guarding them from a nearby distance. As she was unable to stand up and walk, the appellants put her dresses on and they took her to her house and left her, threatening that if the matter is reported to the police, the entire family will be murdered. She narrated the entire incident to her mother and other family members, including brother, father and uncle, She became senseless off and on due to excessive rape on her. Next day she went to the police station along with her mother Mini Kui (PW 9), maternal uncle Lalji Bana and cousin brother Rajendra Purty (PW 7), where her statement was recorded and First Information Report was drawn for the offence under Sections 452 and 376 of the Indian Penal Code.
3. The learned Court below framed charges under Section 452 and 376/34 of the Indian Penal Code, which was denied by these appellants. The prosecution in order to substantiate the charges, produced eleven witnesses. Out of them, PW 2 Gurubari Bankira, PW 3 Nagi Bankira, PW 4 Masuri Bankira, PW 5 Burhi Bankira, who were sleeping in the eventful night along with the informant Kumari Duni (PW 8) have not supported the prosecution case, as narrated by the informant in her First Information Report. They are either hostile or tendered witnesses. PW 6 Patar Hembram and PW 7 Rajendra Purty, who have signed on the First Information Report of the informant (Exts. 2 and 2/1 respectively) have not supported the case and are either hostile or tendered witnesses. PW 9 Mini Kui, mother of the informant, saw these appellants taking away her daughter, threatening her at the point of country made revolver, who was also bolted inside the room. PW 10 Saiyad Gulam, A.S.I., has simply submitted charge sheet whereas PW 11 Chandra Kishore Choudhary is the Investigating Officer of this case. PW 1 Dr. Radhika Kumari Sinha, who examined the victim girl Duni Purty (Informant) on 16.9.1992, has found that the girl was ravished and issued injury report (Ext. 1) on 18.9.1992. The learned Sessions Judge, Seraikella having relied the evidence of the victim Duni Purty (PW 8), which finds corroborated by the evidence of Dr. Radhika Kumari Sinha (PW 1) and was seen taking away by force at the point of country made pistol by PW 9 Mini Kui (mother of the victim), convicted these appellants and sentenced the thereunder while acquitted the other two, who were simply guarding.
4. The learned counsel for the appellants has submitted that prosecution case cannot be relied as the evidence of PW 8 Duni Purty could not be corroborated by the witnesses, who are interested and closely related to her. She voluntarily left her home whose character itself is questionable, which gets supported by the evidence of her mother Mini Kui (PW 9), who has deposed in paragraph No. 17 that 5 to 6 years ago her daughter Kumari Duni Purty (informant) was taken by Pustam Banra with an intention to marry her with consent. Kumari Duni Purty lived in his house as wife for about 15 days but PW 9, mother of the informant Mini Kui, did not allow her to remain there and brought her to her home with an intention to get her marry with another boy. It has been further argued that PW 2 Gurubari Bankira, PW 3 Nagi Bankira, PW 4 Masuri Bankira, PW 5 Burhi Bankira, who were sleeping at night along with Kumari Duni Purty (PW 8), know nothing about the occurrence and hence they have been declared hostile and are tendered witnesses. PW 6 Patar Hambram and PW 7 Rajan Purty, who went to the police station along with the victim PW 8 Duni Purty and her mother PW 9 Mini Kui and signed on the statement of the informant Duni Purty recorded at the police station, are also tendered witnesses and hostile witnesses, although they have signed on the FIR (Exts. 2 and 2/1), as they have not supported the prosecution case. It has been submitted that the learned Court below failed to appreciate the evidence of the interested and closely related witnesses. These witnesses, who are none else but victim's mother, sister, Bari Maa, Bhabhi and uncle, were sleeping in the same house but they did not raise any alarm in the village. The informant (PW 8) and her mother (PW 9) have not deposed before the I.O. (PW 11) that they identified the assailants in the light of burning diya. The I.O has not seized the source of identification i.e. diya, which creates doubt regarding the identification of the appellants at night. PW 9, mother of the victim, came to know from the informant (PW 8) in the next morning that she was dragged and taken away by the appellants and was ravished. PW 9 claims that she was bolted inside the house from outside but she has deposed that she came out after two hours from the other door. Even then she did not raise any alarm, hue and cry or informed any villager at night. Even then the learned Court below instead of relying the evidence of PW 2, PW 3, PW 4, PW 5, PW 6 and PW 7, erroneously relied the evidence of PWs 8 and 9 and opined that the doctor (PW 1) found the sign of rape on the victim. The victim if ravished repeatedly in a single night from 9.00 p.m. to 3.00 a.m. she might have sustained some bleeding injuries on her private part but the clothes having blood spot or semen were not either seized or produced by the prosecution to corroborate the gang rape committed upon PW 8 by these appellants. PW 11 (I.O.) has deposed that he did not prepare any seizure list in respect of any objective materials found on the person of the victim or at the place of occurrence where she was ravished. The victim while being dragged forcibly might have raised alarm but none of the villagers has come up for her rescue. PW 8, the victim, claims that she was unable to stand or wear her clothes. The appellants put the clothes on her persons and carried her up to her house but she has not made this statement before the I.O. (PW 11) in course of investigation. On these grounds it was urged that the evidence of PW 8 and PW 9 are not reliable, who have falsely implicated these appellants in a heinous crime of gang rape.
5. The learned APP refuting the argument advanced on behalf of the appellants has submitted that the evidence of PW 8 victim gets supported by the evidence of PW 1 Dr. Radhika Kumari Sinha that the victim was ravished by these appellants, as deposed by PW 8, PW 9, mother of the victim, saw these appellants lifting her daughter by force at the point of country made revolver threatening her to be murdered, is sufficient evidence, which was rightly relied by the learned Court below, who convicted these appellants thereunder i.e. 376(2)(g) and Section 452 of the Indian Penal Code, as they had tresspassed at night in the house of the informant with an intention to forcibly lift her out of the home to commit rape.
6. The informant and the appellants are of the same village Sona Pusi. The alleged occurrence took place at night on 15.9.1992. The-informant (PW 8) was sleeping in the house of her Ban Maa along with her sisters. The appellants were armed with country made pistol and at the point of revolver threatened to kill all the inmates of the family by force lifted the informant Duni Purty and took her away at a distance of 1 km away and ravished her by making her completely naked. These appellant committed rape twice repeatedly and again thereafter she was taken to a pond where also she was ravished by appellant Mangal Singh and Dusa. Thereafter, these appellants in the morning at about 3.00 a.m. took her and left her in her house as she was even unable to wear her clothes or to walk. These appellants are so harden criminals that the villagers or the inmates of the house of the informant did not raise any hue and cry while Duni Purty was being taken away or even when she was brought back to her home. This highhandedness of these appellants has been deposed by the informant Duni Purty, the victim girl aged below 20 years. It is immaterial that once she had gone to the house of Pustam Banra and lived as his wife in his house for about 15 days but her mother (PW 9) did not allow her to remain there and brought her back to her home. This seems a cause to take revenge to commit gang rape by these appellants. PW 9, mother of the victim, saw taking away her daughter Duni Purty by these appellants at night. She was also threatened to be killed and was bolted inside the room. None of the villagers came to help the victim. Even out of fear her close relatives, who are sisters, Bhabhi, Bari Maa i.e. PWs 2, 3, 4, 5, 6 and 7, have no courage to depose the truth in Court and are hostile witnesses and tendered witnesses. PW 9 mother of the victim, saw her daughter being taken away by these appellants by force, PW 8 Duni Purty has deposed that these appellants committed repeated rape, on her and she was brought back to her home, threatening her that if she discloses the matter to anyone else, the entire family will be done to death. On the following day she was examined by PW 1 Dr. Radhika Kumari Sinha at 10.30 a.m., who found the following injuries :
(i) Scratch on right shoulder region 1/2" x 1/4" x skin deep.
(ii) Scratch of the face left side three in number 1/4" x 1/4" x skin deep, 1/4" x 1/8" x skin deep and 1/4" x 1/8" x skin deep.
(iii) Scratch below right knee 1/2" x 1/2" x skin deep.
(iv) Burise on right side of the waist 2" x 1".
The doctor opined that the presumed age of the victim was in between 16 and 17 years. She found hymen torn. Majora and Minora shows inflamed and tender to touch. On microscopic examination lot of the head and tale of the spermatozoa were seen dead. On physical and miscroscopic examination the doctor found that the victim Duni Purty was raped. Ext. 1 is the injury report.
7. The I.O. Chandra Kishore Choudhary (PW 11) having received the First Information Report, re-examined the victim informant Duni Purty and went to the place of occurrence. He found the P.O. village Sona Pusi, the house of the informant. He was informed that at night the victim along with Bari Maa, Nagi Bankira, sister, Gurubari Bankira, Burhi Bankira, Bhabhi Masuri Bankira were sleeping in a room. She had narrated the entire story regarding the manner of the alleged occurrence that these appellants by force took her threatening at the point of revolver. The 1st place of occurrence is 1-1/4" km. away from the village, which is a lonely place, where she was ravished first at the point of pistol. At the 2nd place of occurrence, the I.O. found the grass scrambled. The 3rd place of occurrence is near the pond. Although salwar samiz worn by the victim at the time of the alleged occurrence was produced before him but he did not prepare any production list although he had found semen stains on her clothes. He had sent those material Exhibits for expert's examination to Forensic Science Laboratory but the report could not be received (Pr. 15).
8. When the evidence of PW 8, victim girl, is considered I find that she has corroborated the earlier statement, made before the I.O. under Section 161, CrPC in course of her evidence in Court. She has given detailed manner of occurrence, as to how she was lifted and ravished by the appellants repeatedly; total eight time at two places. PW 9, mother of the victim, Mini Kui saw her daughter being taken away by these appellants at the point of pistol, threatening her and the entire family to be murdered if anyone is informed. Out of fear the closely related sisters, Bhabhi, Bari Maa and uncle, who were sleeping in the house, did not dare to depose against these appellants, who are either hostile or tendered or formal witnesses. The evidence of PW 8 and PW 9 gets corroborated by the evidence of PW 11, who has inspected the place of occurrence and has also found objective findings and has sent the blood stained and semen stained salwar and samiz to Forensic Science Laboratory for expert's opinion. He has found semen stains on her clothes. PW 1 Radhika Kumari Sinha has found three scratches, Skin deep on right shoulder, left side of face-three in number, one scratch on the right knee, abrasions on the right side of waist. She also found the private part inflamed and tendered to touch. Hymen were found torn. Vagina wall was inflamed. She found dead. spermatozoa on her private part on physical and microscopic examination and found that the victim was raped. Ext. 1 is the injury report in her pen and signature.
9. When all the pros and cons of the prosecution case is considered, I find that the victim (PW 8), being an unmarried girl, within 20 years of age, has boldly given a detailed description how she was lifted by force at the point of country made pistol and taken away at a distance of 1 km. away from the village in a lonely place and was subjected to gang rape by these appellants one after another at two places. She was so much ravished after stripping all her clothes making her completely naked that she was unable to wear those clothes and to walk. The appellants are so hardened criminals that due to fear even the interested witnesses, who were sleeping with her at night have not dared to depose against them. But the evidence of PW 1 fully corroborates that how PW 8 was ravished by force as there was scratch marks on her body and her private part was also inflamed and tenderness hymen were found ruptured. Moreover the spermatozoa was found on microscopic and physical examination by the doctor (PW 1). All these evidence go to prove that the informant was subjected to gang rape. There is no animosity as alleged by the appellants regarding their false implication. There is no reason why they have falsely been implicated in a heinous crime of gang rape on an unmarried girl (PW 8), much below 20 years of age, taking all the risk of her future matrimonial life.
10. The learned Court below has meticulously considered all these aspects and has rightly convicted these appellants under Section 376(2)(g) and 452 of the Indian Penal Code. As such, I do not find any valid reason to discard the evidence of PW 8, the informant, PW 9 her mother, PW 1, the doctor, and also the evidence of the I.O. PW 11, I do not find any legal infirmity in the impugned judgment and order of conviction and sentence, passed by the learned Court below.
11. However, in course a argument, learned counsel for the appellants has argued that these appellants are in custody since the month of September, 1992 i.e. just after the alleged occurrence and have remained in custody for more than eleven years, who are in the age group of 22 to 29 years. The prosecution has not brought on record that these appellants are habitual offenders, to commit similar type of gang rape.
12. Considering this fact that when the minimum sentence is seven years and against minimum the appellants have remained in custody for more than eleven years but the sentence awarded by the learned Court below is to undergo rigorous imprisonment for life, I think that if the period of more than eleven years; already undergone by these appellants, is awarded, that will meet out the ends of justice in the present case, considering their age, as there is no criminal antecedent brought on record against them. Viewed thus, I find that there is no merit in this Criminal Appeal, which accordingly, fails and is hereby dismissed. However, the conviction passed against these appellants under Section 376(2)(g) of the Indian Penal Code is hereby confirmed but so far as the sentence awarded by the learned Court below to undergo rigorous imprisonment for life under Section 376(2)(g) of the Indian Penal Code and to undergo rigorous imprisonment for three years under Section 452 of the Indian Penal Code, which have been ordered to run concurrently, is concerned, the sentence passed under Section 376(2)(g) of the Indian Penal Code is modified to the period, already undergone by these appellants. With this modification in sentence, this criminal appeal is dismissed. As the appellants are in custody and their sentence have been modified to the period, already undergone, they are-ordered to be released forthwith from the custody, if not wanted in any other case.
S.J. Mukhopadhaya, J.
13. I agree.