Madhya Pradesh High Court
Bhurji And Ors. vs State Of Madhya Pradesh on 15 February, 2007
Equivalent citations: 2007CRILJ2645
JUDGMENT S.L. Kochar, J.
1. The appellants named above being dissatisfied by the judgment dated 28-4-2001 rendered by the learned Sessions Judge. Jhabua in Sessions Trial No. 518/98 thereby finding the appellants guilty of the offences under Sections 376(2)(g)(1), 376(2)(g)(1) read with Sections 511, 450 and 395 of the Indian Penal Code and sentenced them as under:
(a) Appellant No. 1 Bhurji, No. 2 Pidiya, No. 8 Badra, alias Bahadra, No. 9 Chamna and No. 10 Ramesh to suffer Life Imprisonment with fine of Rs. 1,000/- under Section 376(2)(g) and 376(2)(g), r.w. Section 511, IPC on three counts, in default of payment of fine to suffer two years' R.I. and to suffer Five years' R.I. and fine of Rs. 1,000/- under Section 376(2)(g) (Expl. 1) read with Section 511, IPC, in default of payment of fine to suffer six months' R.I. and two years' R.I. and fine of Rs. 1,000/- under Section 450, IPC, in default of payment of fine to suffer six months' R.I. and ten years' R.I. and fine of Rs. 1,000/- under Section 395, IPC and in default of payment of fine to suffer six months' R.I.
(b) Appellant Nos. 3 Kamji and 4 Khemraj to suffer Life Imprisonment and fine of Rs. 1,000/- under Section 376(2)(g)(1) (Expl. 1), IPC on three counts and in default of payment of fine to suffer two years' R.I. and five years' R.I. respectively and fine of Rs. 1,000/- under Section 376(2)(g) read with Section 511, IPC, in default of payment of fine to suffer R.I. for six months and R.I. for two years and fine of Rs. 1,000/- under Section 450, IPC, in default of payment of fine to suffer six months' R.I. and ten years' R.I. and fine of Rs. 1,000/- under Section 395, IPC, in default of payment of fine to suffer six months' R.I.
(c) Appellant No. 6 Mesrlya and No. 7 Jhitra to undergo imprisonment for life and fine of Rs. 1,000/- under Section 376(2)(g)(1), IPC on three counts and in default of payment of fine to suffer two years' R.I. and five years R.I. and fine of Rs. 1,000/- under Section 376(2)(g) read with Section 511, IPC and two years' R.I. and fine of Rs. 1,000/- under Section 450, IPC and appellant No. 6 Mesriya also to suffer ten years' R.I. and fine of Rs. 1,000/- under Section 395, IPC, in default of payment of fine to suffer six months' R.I. on each count.
(d) Appellant No. 5 Daru s/o Mansingh to suffer life imprisonment and fine of Rs. 1,000/- under Section 376(2)(g) (Expln. 1), IPC on three counts and in default of payment of fine to suffer R.I. for two years and to undergo R.I. for five years and fine of Rs. 1,000/- under Section 376(2)(g) read with Section 511, I.P.C. and two years' R.I. and fine of Rs. 1,000/- under Section 450, I.P.C. and in default of payment of fine of Rs. 1,000/- to suffer six months' R.I.
2. Here it may be stated that in this case in all 23 accused persons were prosecuted. Three accused persons have been reported to have absconded. In total 23 accused persons have been tried, convicted and sentenced for various offences, bat out of those 23 accused persons the present appellants have preferred this appeal.
3. Briefly stated, the facts of the prosecution case as unfolded before the trial Court are that on 22-9-98 PW-2 Dolorese, PW-4 Roseline, PW-5 Metilda and PW-8 Teressa were lodging in Navapada-Bhandariya Convent Mission. In the night at 10.00 p.m. they all were sleeping. At that time call bell of the building rang upon which PW-4 Roseline woke up and went up to the gate and saw that some people were chitchatting outside the building. PW-2 Dolorese also went near PW-4. She saw that the people standing outside were asking for the medicine. They also heard the cry of a child. These witnesses saw that out of those people some had wrapped their shawls around their waist and some of them were in turban and they were having lathis, sticks bow and arrows in their hands and were insisting to open the gate. On this, these two witnesses asked them to get a permission chit from father whereupon they stated that father was not available. Thereafter these witnesses asked those people to come with sister Boronika. After this a man started to break open the grill of the room. By that time these witnesses went upon the roof of the building and started blowing whistle, but none came to help them and the persons standing outside the building started pelting stones on the roof, whereupon Roseline and Dolorese came down in the room. PW-5 Metilda along with PW-8 Theressa went to the Prayer-Room and bolted the door from inside. Thereafter those people broke open the gate by means of hammer-type instrument and entered inside the building whereupon these witnesses asked those people to take away the articles which they desire and not to disturb them. One of the miscreants told that they would not cause any harm to them and only asked for the cash upon which the four witnesses opened the door. On opening the door about 8 to 10 miscreants entered inside the room out of whom five miscreants committed forcible sexual act with PW-2, two persons attempted to commit rape on PW-4, two other persons also committed rape forcibly on PW-5 and four other miscreants had committed forcible sexual intercourse with PW-8 against their will and consent. These miscreants were identified by the four prosecutrix in the mercury tube light. The miscreants looted cash amount of Rs. 22,000/-, tailoring machine, wrist watch, camera, type writer and other domestic articles.
4. At about 4.00 a.m. villagers of Barod came there and through them Chowkidar was called to send him to call Father from Gopalpura. Father, on receiving information went to the Police Station and gave written report Ex. P/12 to the Police at 6.00 a.m. to the effect that in the last night some miscreants had attacked on the sisters and looted some articles description whereof could be given by the prosecution, on the spot itself. On this information PW-62 registered the FIR on 23-9-98 at 7.30 a.m. at Police Station Kalyanpura for the offences under Sections 395 and 397, I.P.C. After registration of the FIR, PW-62 reached at the spot and prepared spot map Ex. P/37 at the instance of PW-2 and collected details about the incident that took place with the four prosecutrix and two fathers of the church. He prepared the list of the looted articles and seized the clothes of the prosecutrix and sent them for medical examination. The accused persons were arrested thereafter and after completion of due investigation, the accused persons were charge-sheeted for the aforementioned offences. The appellants pleaded not guilty and took the plea of false implication. After recording evidence and hearing the parties, the learned trial Court finding the appellants guilty of the offences charged, convicted and sentenced them as stated hereinabove.
5. We have heard Shri Jaisingh, learned Senior Advocate assisted by Shri Nitin Vyas, Advocate for the appellants and Shri Girish Desai, learned Dy. Advocate General appearing for the State.
6. Learned Counsel for the appellants has vehemently argued that in the written FIR of the incident lodged by PW-1 Father John Sunny on the basis of which crime was registered vide Ex. P/178 under Sections 395 and 397 of the I.P.C. In the FIR there is absolutely no whisper regarding commission of rape by the miscreants with the prosecutrix and this story had been concocted and improved later on, to make the incident graver so that the complainant party may continue their mission in tribal area, the place of incident and all surrounding villages smoothly without any objection and obstruction, and that the versions of all the four prosecutrix are not corroborated by the medical evidence though they have been medically examined twice. He has also submitted that the appellant No. 9 Chamna was already known by name, but his name has not been mentioned by any of the prosecutrix in her police statement and that PW-4 - has specifically admitted in para 49 of her deposition that up to 25-9-98, the case was for commission of rape with four prosecutrix including herself, but after receiving the second medical report of the doctors from Indore, the case of commission of rape was made with three prosecutrix and on the basis of her negative medical report, the case was made for attempt to commit rape or indecent assault. She has also failed to identify those seven accused persons who were identified in the second test identification parade and 15 persons identified in the first test identification parade and that all the four prosecutrix did not give specific mark or feature of identification of the miscreants or description of personality and test identification parade of person and property was held after undue delay and it was nothing but a farce. According to the learned Counsel there is absolutely no legal evidence available on record to uphold the conviction and sentences of the appellants. In the alternative, he has also submitted on the question of sentence that the nature of the case is not such in which maximum punishment of life imprisonment can be awarded. Learned Counsel has placed reliance on Judgments, reported in AIR 1981 SC 765 : 1981 Cri LJ 325 and AIR 1989 SC 1475 : 1989 Cri LJ 1479.
7. In oppugnation, the learned Dy. Advocate General Shri Girish Desai, has fully supported the judgment impugned and finding arrived at by the learned trial Court. According to him, there is no reason available in the record to implicate the appellants falsely who are illiterate tribals and the prosecutrix, four in number were nuns residing together in a convent doing social service and that the statements of the four prosecutrix are duly corroborated by the Forensic Science Laboratory Report vide Ex. P/190 and the incident of dacoity has also been proved on the basis of the evidence of the eye witnesses/prosecutrix and recovery of looted property from the exclusive possession of the appellants. The learned State counsel also submitted that for constitution of offence punishable under Section 376, I.P.C. a partial penetration of male organ into female is sufficient. To bolster his submission he cited the judgments of the Supreme Court passed in the case of Amankumar and Anr. v. State of Haryana and Malkhansingh and Ors. v. State of M.P. .
8. To consider the rival contentions we have perused the FIR Ex. P/178 lodged immediately on 23-9-98 at 7.30 a.m. by Father John Sunny (PW-1). PW-1 Father John Sunny residing in Gopalpura Church of different place. He was informed by two watchmen of the Convent Mission where the incident took place in the intervening night of 22nd and 23rd Sept., 1998. He was not the eye-witness of the incident. He submitted the report being in charge and also sent telephonic message to Father Thomas P. T. who was in charge Father residing in Catholic Church who also reported the incident on telephone to the Superintendent of Police, Jhabua. In the report, he had mentioned specifically that details of the incident could be known and collected after going on the spot. This is true that in the report nothing is mentioned about commission of rape with four prosecutrix, but omission of this fact in the FIR would not corrode the prosecution case, because the report was not lodged by eye-witness or witness who was present on the scene of occurrence. The report is containing the brief description that at Bhandariya Mission, thieves made an attack on the residence of sisters and looted their properties. It is also mentioned specifically in the report that the details would be available on the place of incident, and when police party reached on the spot, all the four prosecutrix i.e. PW-2, PW-4, PW-5 and PW-8 disclosed before the police about commission of dacoity as well as rape with them by the miscreants.
9. Now we proceed to examine the statement of all the four prosecutrix (Their names are not being mentioned herein as per the directives of the Supreme Court). PW-2 Prosecutrix was aged about 28 years. According to the prosecution, all the four prosecutrix were knowing English language properly and could not give statement in Hindi. Therefore, the Court provided facility of Translator and with the consent of both the parties Professor R.A. Khan, M. A. in English, Ph.D. and Head of the Department of English Literature of Government College, Jhabua was appointed. The say of this prosecutrix is that she hails from Tamil Nadu and done graduation in Arts subject as well as did Diploma in Nursing course. She along with three other prosecutrix were doing the job of education and health awareness amongst the villagers residing in village Navapada Bhandariya and surrounding areas. They were also distributing medicines for general and minor ailments.
10. PW-5 and PW-8 were learning Hindi and they were also knowing Tamil language. According to this witness on 22-9-98 in the night all the four sisters (prosecutrix) were in their respective rooms in the Convent. At about 2.00 in the night some one switched on to the call bell fixed at the main gate. In response thereto she (PW-4) woke up and both reached in the Parlour room where they were distributing the medicines. This room was situated adjacent to the main entrance gate. They saw through the window that some persons were standing outside. In the meanwhile, the prosecutrix PW-2 and PW-8 also joined them and they all saw through window of the room of prosecutrix PW-8 that eight to ten persons were standing outside the building. At the main gate near porch, bulb of 40 watts was on. The persons were having knife-fixed with long sticks and other weapons and probably those weapons were Dharia and Falia. Sisters asked about their intention and cause for arrival upon which they disclosed regarding purchasing medicines for their sick child. The further say of this witness is that all those persons standing outside the Convent were tribals. They had the shawls wrapped around their waist and some of them were having turbans on their heads. In the meantime the prosecutrix overheard the cry of a child and asked about their mother. Upon this the miscreant tribals made indication towards road. They were having conversation with them for more than half an hour and felt that the tribals did not come for taking medicines but were having some other intention. The miscreants broke open the door and PWs (prosecutrix) heard the sound of breaking of the articles. After some time, the miscreants asked them to open the Chapel room on which the prosecutrix told them to take away the articles whatever they liked and they should not disturb them. The prosecutrix repeated this request several times. During this period, the miscreants were trying to open the door of Chapel Room and the prosecutrix were trying their level best by pushing the door but the door was about to break. Therefore, they considered it proper to open the same. There was sufficient light in the Chapel Room in which ten to fifteen persons entered. They were searching something near the books and two/three persons caught hold of the four prosecutrix. On their asking, this witness gave them her wrist watch and silver ring. They were also asking for money. Thereafter, she was taken out by five to six persons along with other sisters. She raised cry. Though they were having weapons in their hands, but did not use the same and beaten them by hands and caused slaps on their faces. She was taken at a distance of 15 feet from the Channel Gate and was thrown down on the grass. She was making resistance by her hands and legs. Two persons had caught hold her hands and two caught hold of her legs. They also put knife on her head. They were having bow and arrow, knife and guns. Her mouth was gagged and after removal of underwear, she was ravished by four to five persons. At that time, her maxi was lifted upside and underwear was removed. In the-Court, this witness pointed out five appellants namely Ramesh, Chamna, Bhurji, Badra alias Bahadra and Pidiya and also stated that all the accused persons committed loot who were present in the Court. They were in total 23 in number. This witness has also stated that she was not knowing all the miscreants who committed loot and rape from before the incident except appellant Chamna. In para 22 this prosecutrix has specifically stated in her examination-in-chief (sic) from prior to the date of incident who committed rape on her. In para 23, the say of this witness is that after the incident, she felt pain for about a week in her private part and was feeling problem in passing urine. The rapist bit her cheeks and she also sustained bruise on her back portion/scapula region. She was dragged inside the house touching her both legs with the earth. They were asking about cash amount and were also searching some thing. After making search all the miscreants went away. The further say of this witness is that they all sat together in a room and were weeping as well as disclosing to each other about happening and rape with them.
11. At 4.45 a.m. some persons reached at the Convent, but they did not think it proper to disclose about the incident to them because at the time of incident, none came to rescue though they were crying because of which, they were annoyed and frightened. They asked about watchmen Dita and Nagu {PW-6). Both the watchmen after arrival observed in the room as to how loot was committed and she asked them to go and inform the Father about the facts which they had seen. There in charge Father was not present, therefore, they sent intimation to the Father residing in the neighbouring village Gopalpura. After changing the clothes, they sat inside the house and kept on weeping. At 8.00 a.m. Father John Sunny (PW-1) came to them. They disclosed the incident of rape to him and PW-1 made consolation to them. According to her, the police also reached after half an hour and inspected all the place of incident. The Father (PW-1) also disclosed about the incident. The miscreants took away the type-writer, sewing machine window curtain, wrist-watches five in number, one wall clock, freeze stabilizer, one camera. 20 to 30 sarees, 2 to 3 shawls, alarm watch, electric press, medicines, scissor towels, mirror and 22,000/ cash amount. The police made seizure of their clothes which were worn by them at the time of commission of rape. The police prepared Panchnama vide Ex. P/3 on which she put her signature at portion marked B to B. She also proved the list of articles Ex. P/20. Their statements were also recorded by the Sub-Divisional Magistrate apart from their interrogation by police in Navapada Bhandariya village.
12. In the evening at 7.00 p.m. all the four prosecutrix were sent at Government District Hospital, Jhabua along with Father Varghese, where they were medically examined by two lady doctors. On 17-10-98, they went to District Jail Jhabua to identify the miscreants in test identification parade held by the Sub-Divisional Magistrate. Out of 45 persons, she identified 15 persons. Out of them, five persons committed rape on her and remaining were involved in the loot, She proved her signatures on identification memo Ex. P/8 at portion marked C to C. Again, in November, 1998, she went to the District Jail, Jhabua to identify seven persons out of 22 to 25 persons in presence of the Sub-Divisional Magistrate. The memo is Ex. P/12 bearing her signature at portion marked B to B. The next day, she was also called for identification of looted property in Collectorate, Jhabua where she identified several articles i.e. sewing machine (Article 1), type-writer (Article 2), three blue sarees (Article 3), Biscuit colour saree (Article 4), and blue blouse (Article 5). Several other articles Were also identified as mentioned in para 37 of her statement, total 32 in number. She has also stated about her second medical examination after 2/3 days from 23-9-98 in Indore by lady doctor in presence of one gents doctor. In cross-examination, para 42 she has again stated that she disclosed on 23-9-98 before the Sub-Divisional Magistrate while recording her statement that she was knowing the appellant Chamna from before the date of incident, but she failed to give any explanation about omission of this fact in her police statements Exs. D/3 and D/4. In para 43, the say of this witness is that the appellant-Chamna was residing in village Navapada and she mentioned specifically this fact on 23-9-98 to the police as well as Sub-Divisional Magistrate that she was knowing Chamna resident of village Navapada. Again in para 55 she has deposed that on 23-9-98, she disclosed the name of Chamna to Father John and other Father whose name she did not remember. She also disclosed the name of Chamna to police in Police Station Kalyanpura and prior to that to both Fathers and three Sisters i.e. prosecutrix PW-4, PW-5 and PW-8. In para 44 she has deposed that she could not identify those seven persons out of 22 accused persons present in the Court who were identified in the test identification parade held in November, 1998. She also disclosed her inability to identify fifteen accused persons who were identified in the first test identification parade out of 22 accused persons in the Court. But, she was very assertive on the point of commission of rape on her by five persons.
13. In view of the aforesaid positive statement of prosecutrix PW-2 that she mentioned the name of appellant-Chamna in her police statements recorded twice, but the same is missing. Therefore, this appellant-Chamna is entitled to get benefit of doubt, because he was well known by name to the prosecutrix, but his name does not find mention in the case-diary statements of the prosecutrix. It is not the case of the prosecution that though she was knowing the appellant-Chamna by name and face, but because of some reason, she failed to disclose his name to the police in her statements. The inevitable inference would be that though the witness was knowing Chamna by name and failed to give his name as a participant in the incident to the police, it shows that he was not present on or near the scene of occurrence and was added later on. If the prosecutrix would have mentioned the name of Chamna to the police, there was no reason for both the police officials not to write his name in the case-diary statements of the witness. Both the police officials have stated that the name of Chamna was not disclosed to them by the prosecutrix.
14. In para 47, according to her, she was carrying third day of menses in the night of incident and she had disclosed this fact to the doctor at the time of medical examination. The learned Counsel has highlighted the fact that all the four Sisters were knowing Hindi language, but at the time of giving statement in the Court, the prosecution has deliberately submitted that they were not knowing Hindi language and they sought for appointment of a translator so that the accused persons could not hear and understand their statements. This argument of the learned Counsel is based on admission of this witness in para 49 that these witnesses were educating the villagers in Hindi and two Sisters were, also learning Hindi. They were prescribing Hindi newspaper and sometime also they were reading Hindi newspapers. On consideration, we do not find any substance in this argument because the statement given by all the four prosecutrix in English language was immediately in presence of the accused persons translated in Hindi by the translator and that could very well hear and understand by the accused persons and the translation was done in the Court in presence of the counsel for the parties. Learned Counsel pointed out certain omissions and contradictions in the statement of this witness. We have perused the same and according to us, none of the contradictions and omissions are of substantive and material in nature which may attach vulnerability to the testimony of this witness.
15. In para 66, the defence suggestion was denied by this witness that just to get fame and sympathy they concocted a false case of loot. This witness was medically examined by PW-14 Dr. N. Gupta, of Government District Hospital, Jhabua on 23-9-98. Her medical report is Ex. P/24 A. She was examined in presence of one more Dr. Smita Tiwari. The medical evidence is as under:
Her breasts and pubic hair were fully developed, she was having regular menses and last menses was on 21-9 98. On the date of her medical examination, it was third day of her menses and there was a bruise on thoracic region of back portion (near scapula region). Her clothes were not containing any spot and because of which the same were not sealed.
On internal examination, it was found that:
There was no injury on her private part. Two slides of vaginal swab were prepared. Along with them pubic hair were also sealed and handed over to the constable. Her hymen was absent and vagina was admitting one finger easily. Uterus was normal in size. The Doctor did not give any definite opinion about commission of rape with her. She was referred to Radiologist.
16. Prosecutrix PW-2 was again examined by Dr. Laxmi Maru (PW 15), Professor of MGM Medical College, MY Hospital, Indore on 25-9-1998. A team of doctors named Dr. Laxmi Maru, Gynaecologist and Dr. Nilesh Dalai, Dr. Vijay Yadav (both Surgeon), Dr. N. M. Unda, Specialist in forensic Medicine and Dr. Vishnu Datt, Radiologist visited Jhabua. This team of the doctors also examined the four prosecutrix. The medical report of the prosecutrix PW-2 is as follows:
History regarding commission of rape with her by four persons in the night intervening 22nd and 23rd September, 1998 was given by the prosecutrix PW-2. She had menses on 2-9-1998 (see para 5 of PW-15) and was having menses in cycle of 30 days which continued three days. She had bath twice and also changed the cloth twice. She also had shave. On examination, it was found that she was a woman of average built having properly developed breasts, pubic hair and libia majora, minora clitoris. Below hymen posterior fourchette at left side. There was laceration ad measuring 1 cm. x 1 cm. The same was not bleeding. Hymen was torn and also not bleeding. On internal examination - her uterus was found normal. Inside the vagina there was small sign of two injuries having mixed colour of black and blue, blue and light black. PR examination was normal. They prepared slides of smear and one slide of vaginal swab. The same were sent for examination.
On examination, they found abrasion with contusion on back portion on outer side of seventh vertebra at distance of one cm. Size of abrasion 1.5 x 0.5 cm. and contusion was 5 cm. x 2 cm. up to skin deep having brown colour layer. It was painful. These injuries could be caused within two to five days by hard and blunt object. A sub-conjectival haemorrhage was present in right eye which was red. The result of remaining examination was normal. Internal examination was done by one finger. The clothes of the prosecutrix PW-2 were not seized because she had already changed them which were worn at the time of incident. Her report Ex. P. 23 was written by Dr. Nilesh Dalai. This witness Dr. Maru proved the signature of Dr. Dalai at portion marked E to E and her signature were at portion D to D. She also proved signature of other Doctors as mentioned hereinabove. This Doctor has not given any opinion of rape with prosecutrix PW 2.
17. The second prosecutrix PW-4 has deposed, more or less the same story about the total incident as disclosed by PW-2. In para 12, she disclosed about 20-25 persons having weapons in their hands loitering on the outer ground. She was dragged by one person on grass and one more person joined him. She resisted them for about 10-15 minutes. They tried to lay her down on the grass. She did not allow them to separate her legs and she put her both the legs closed to her stomach. One accused tried to pull her leg and another tried to remove her clothes with intent to commit some mischief. She cried and put resistance. During this time, she also heard cry of Sister PW-8. She could not see Sister PW-8. But she told to the accused persons not to do anything with her she being a new girl. On this, one person slapped her on her left ear with force as a result of which she was not able to hear properly even upto the date of recording of her statement in Court (19-8-1999). The further say of this witness is that the said accused was trying to remove her clothes and was also beating her on her back portion. When she pulled herself towards backside, her hair spread all over her face and because of which she could not breathed properly. Lastly that man sat on her and she kicked him and thereafter stood up. He again fell her. At this moment some persons reached over there and the said accused went away. Thereafter all the accused persons went away with property, weapons and their shawls. She saw Sister PW-8 crying lying on the ground and at a distance of 10-15 feet PW-2 was also lying like a dead person. She called her twice or thrice. But with no response.
18. At that juncture, one person came there from their house and lifted PW-2 and thereafter put her on his shoulder and this witness took her inside the house/Convent. At that time in the portico some people were also present and were collecting articles. Sister PW-8 had hidden herself behind the store room. In para 15 of examination-in-chief she identified two persons in the Court who committed loot and mischief with her. They are appellants Daru and Dhanna. According to her, the accused persons also participated in the loot. In para 16, she stated that the accused persons took away sarees, blouse, wrist watches, shawls, wall clock, sewing machine, type writer, camera, bed sheets, iron press, freeze stabilizer, table clock, five wrist watches of all Sisters and Rs. 22,000/-. A specific question was put to her regarding what kind of mischief was committed by the two accused persons, she replied that they wanted to commit rape with her. She proved her signatures in the test identification memo Ex. P/10 of the accused persons. According to her she identified 15 persons in Jhabua jail out of 40 to 45 persons and out of these 15 persons, two persons were doing mischief with her and remaining 13 were engaged themselves in the loot. Identification Parade was held by the Sub-Divisional Magistrate, Jhabua. She also proved her signature on the second Test Identification Parade memo Ex. P/15 in which out of 20 to 25 persons she identified seven persons and on the next day, in Collectorate Jhabua, she identified the looted property which was missing from their house. Its memo Ex. P/16 was prepared and she proved her signature at portion marked B to B. In the Court also, she identified several articles as mentioned in para 20 of her deposition.
19. The further say of this witness is that her pink colour nighty was seized by the police through seizure memo Ex. P/5 which she was wearing at the time of incident. She identified this nighty, article 50 in the Court. In para 24 of her cross-examination, she admitted that her statement was recorded by the police between 8 and 9 a.m. on 23-9-98 and on that day, she was interrogated and her statement was recorded by several police officials, but she could not name those police officials.
20. The learned Counsel invited our attention towards para 31, 32, 35, 43, 49 and 53 of her deposition in her cross-examination. In these paragraphs, the say of this witness is that on the date of the incident or prior to that, no person had any sexual contact with her. The aforementioned two accused persons attempted to commit rape on her, but they were not naked and wearing underwears at the time of incident. She admitted that at the time of her medical examination on 23-9-98, she did not disclose this fact to the doctor and she was again medically examined after two/three days. This examination was done by the doctors from Indore. All the four Sisters had gone jointly to Jhabua Hospital for their first medical examination. She denied the defence suggestion that because of her negative medical report, the case of attempt to commit rape has been concocted and her statement was modulated to suit the medical evidence. Her nighty was seized along with the clothes of four Sisters at 9.00 to 9.30 a.m. on 23-9-98. This witness has further deposed that in the night of incident, watchmen Dita and Nagu came to them in the morning between 4.30 and 5.00 a.m. and they were told to go and convey the message about the entire incident to Father John Sunny (PW-1). She had no talk in the night with one Gopal (not examined as a witness in Court, by either side). Both the watchmen were not knowing Tamil and were belonging to Bheel community. They had a talk with them in Hindi and the details of the incident were not told to them. They were only asked to go and inform Father John Sunny about the incident as they noted and seen. The whole conversation took place in Hindi. She denied the defence suggestion that at the initial stage, there was no case of rape and the same was concocted after the evening of 23rd September, 1998. At the same time, she had admitted that up to the evening of 25-9-98 the case was for commission of rape with four Sisters and after the medical reports issued by the doctors from Indore, the case was made for commission of rape with three Sisters and with one (herself) a case was made for indecent assault as her medical report was negative. She expressed her inability to identify seven persons who were identified in second Identification Parade and also 15 persons identified in First Identification Parade. The further say of this witness as pointed out by the defence is that she changed her clothes on 23rd, 24th and also on 25th and also had bath. She admitted that up to the second medical examination, she changed her clothes five times. She has also deposed that there was no specific mark for identification on the face of two accused persons identified in the Court.
21. From the above evidence in cross-examination, the defence wanted to point out that the prosecutrix were knowing Hindi language properly and before medical examination, this witness had bath and also changed her clothes. There was no intercourse with her or even attempt to commit rape, but in the Chemical Examiner's Report on her nighty/gown, human semen was found present. To appreciate this argument; it would be apt to mention the medical evidence and report of this witness. She was first medically examined by PW-14 Dr. N. Gupta who proved her medical report Ex. P/63-A. According to this medical report -
PW-14 Dr. Gupta did not find any external injury on her body. She was aged 39 years. Her pubic hair and breasts were fully developed. She was having regular menses and last menses was on 5-9-98. The doctor preserved vaginal swab and pubic hair. The slides and pubic hair were sealed and handed over to the Constable. On internal examination no injury was found on her private part. There was no spot on her clothes. Her hymen was present intact because of which P. V. test was not done. According to the doctor, definite opinion about rape could not be given and she was referred to the Radiologist for determination of age.
22. This doctor (PW-14) has also stated that at the time of examination of all the four prosecutrix, Dr. Smita Tiwari was also present and both of them signed on the medical reports (Ex. P/63-A). In cross-examination, he has also admitted that on examination of all the four prosecutrix, there was no inflammation, infection ailment or pain. There was no swelling and all the four prosecutrix did not complain about any pain, swelling or infection. (See : para 5 of cross-examination). In para 17, the say of this witness Dr. Gupta is that the bruise found on the scapula region/back portion of the prosecutrix PW-2 was not because of any injury, but it could be caused by itching or scratching etc. The vagina of the prosecutrix PW-2, PW-5 and PW-8 were admitting one index finger. Therefore, they could be habitual to sexual intercourse.
23. The second medical examination of the prosecutrix PW-4 by PW-15 Dr. Laxmi Maru was done in presence of a Panel of Doctors from Indore as mentioned hereinabove, who proved her medical report Ex. P/21 as under:
On 25-9-98, in the evening at 7.10 p.m. PW-4, aged 39 years was examined in the District Hospital, Jhabua. She did not give any history of sexual assault, but, she disclosed about removal of her panty only. She had menses on 5-9-98 and having regular menses for three days in every month within 30 days. Her built was average, breasts were well developed, axillary hair were present. On internal examination, her hymen was intact, no bleeding or discharge. Labia majora, minora, clitoris were well developed. Pubic hair were present. No P. V. was done. Her vaginal swab and pubic hair were sealed. In the opinion of Dr. Maru, no sexual intercourse was done with her. The history disclosed by her was found correct by the doctors. Even then for chemical examination her slides of vaginal swab and pubic hair were preserved and sent.
24. In view of the aforesaid statement of PW-4 prosecutrix and her medical evidence, no case is made out within the four corners of Section 376/511 of the Indian Penal Code as she herself has admitted that her clothes were not removed and both the accused also did not become naked and were wearing underwears at the time of the incident. Though she has stated about putting resistance against both the accused persons, but her this version is not at all supported by the medical evidence. The medical expert did not find even a smallest scratch on her person. She has also admitted that till her second medical examination, the case was of commission of rape with all the four prosecutrix (inclusive of herself). But, after second medical report, the case was made only for attempt to commit rape with her. In the facts and circumstances of the case in hand the offence at the most would be made out against appellant No. 5 Daru who was identified in the Court by the prosecutrix. The appellant No. 1 Bhurji and No. 6 Mesriya have not been identified by the prosecutrix in Court and another accused Dhanna, was identified in Court by this prosecutrix, has not been found guilty of the offence under Section 376/511 of the Indian Penal Code. This accused has been convicted only under Section 412 of the Indian Penal Code and has been sentenced to the period already undergone (more than (sic) years) and has not preferred any appeal against his conviction and sentence. The prosecution has also not filed any appeal against his acquittal from other charges.
25. The Supreme Court, in the case of Aman Kumar (2004 Cri LJ 1399, para 7) (supra) exhaustively explained the meaning of rape and outraging the modesty of a woman. Under Section 376, I.P.C. rape is defined and in its explanation penetration is sufficient to constitute the sexual intercourse and necessary to the offence of rape. The Supreme Court has held that:
Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. To constitute the offence of rape merely requires evidence of penetration and this may occur with the hymen remaining intact. The actus reus is complete with penetration.
In paras 10 and 11, the Supreme Court has observed about attempt to commit rape as under:
On attempt to commit an offence is an act, or series of facts, which leads inevitably to the commission of offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of its actual commission. It may consequently, be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
26. In the light of the aforesaid Supreme Court observation, there is no material available on record go to show that the accused persons were determined to have sexual intercourse in all events with the prosecutrix PW-4. She has specifically stated that her under-garments were not removed and the appellants were also wearing underwears. They had not exposed their genitals. According to the prosecutrix PW-4, accused persons were having deadly weapons, but, they did not cause any injury or even forced to the prosecutrix to surrender herself. As mentioned hereinabove, the evidence of this prosecutrix regarding putting resistance, we find exaggeration in her version which is clear from her medical report (supra). Therefore, in the facts and the circumstances of the present case, the offence cannot be said to be of attempt to commit rape to attract culpability under Section 376/511, I.P.C. with the prosecutrix PW-4. The prosecutrix PW-4 in the Court, has not identified the appellant No. 1 Bhurji and No. 6 Mesriya who took her to the grass land. She has only identified the appellant No. 5 Daru. The act of pulling prosecutrix PW-4 and trying to remove her dress for sexual intercourse would amount to outrage the modesty of PW-4. As held by the Supreme Court in the. case of Aman Kumar (2004 Cri LJ 1399) (supra) the word "modesty" is not defined in I.P.C. The shorter Oxford Dictionary (3rd Edn.) defines the word "modesty" in relation to a woman as follows:
Decorous in manner and conduct; not forward or lewd; Shamefast; Scrupulously chaste. Modesty can be described as the quality of being modest; and in relation to a woman," womanly propriety of behaviour, scrupulous chastity of thought speech and conduct.
27. The above-mentioned marshalling and appreciation of statement of prosecutrix PW-4, and difference between an attempt to commit rape and to commit indecent assault, we are of the view that the offence punishable under Section 376/511 of the I.P.C., attempt to commit rape is not made out against appellant No. 5 Daru. At the most he would be liable for outraging the modesty of prosecutrix PW-4 punishable under Section 354 of the I.P.C.
28. The third prosecutrix PW 5 has also narrated almost the same story as deposed by PW-2 and PW-4 with regard to arrival of the unknown so many tribals in portico of Convent where they were residing in the fateful night. There was sufficient light of mercury tube lights and they were having stones, knife, crowbar (sabbal), bow and arrow and gun. They were talking with PW-4 and PW-2 and were demanding medicines. She has also stated about forceful entry of 10 to 15 persons inside the Chapel room. Some miscreants were searching things and some caught hold of her and other three Sisters. Out of them one person caught hold of and took her up to the parlour. She and other Sisters were putting resistance, but they were very strong. She was taken outside the house on the grass. There also she put resistance to stop them but they threw her down on the ground. At that time, she was wearing only a nighty. Her legs were caught hold of and she tried her level best to get rid of from their clutches, but her all efforts proved to be futile. She was throwing her legs and hands. They uplifted her nighty up to her breast and one person committed sexual intercourse on her. She had unbearable pain in her private part and the same was bleeding. She was ravished by two persons and others were standing surrounding her. Alter commission of rape, those two persons and others went away with looted property and their weapons.
29. According to her, at the time of commission of rape, she was weeping with other Sisters. They assembled in the portico and thereafter inside the room of PW-4 prosecutrix where they disclosed the suffering to each other. After 10-15 minutes some persons reached over there to whom PW-4 and PW-2 asked to call watchman. This witness has also described almost all the same properties and cash amounts looted by the miscreants. In the morning at about 8.30 a.m. Father John Sunny PW-1 reached there to whom she and other prosecutrix disclosed about commission of rape with them. At 9.00 a.m. police also reached there and seized her nighty through seizure memo Ex. P. 4. She proved her signature on portion marked "A to A" on Ex. P. 4 and according to her, blood-stains were there in the nighty. In the noon at about 1.00 p.m. she and other prosecutrix along with police and Father reached at Kalyanpura Police Station where their statements were recorded and in the evening at 7.00 p.m. they were taken to District Hospital, Jhabua for medical examination. After 2-3 days again in the District Hospital, Jhabua, she and other prosecutrix were medically examined by a team of Doctors came from Medical College, Indore.
30. The further say of this witness is that she identified in the Test Identification Parade held on 17-10-1998 conducted by SDM, 15 persons out of 40-45 persons and signed the identification memo (Ex. P.9). Again in the Test Identification Parade held on 30-11-1998 in Jhabua District Jail, she identified six persons out of 15-20 persons and out of six persons two (accused) committed rape on her. She admitted her signature at portion marked "B to B" of identification memo (Ex. P. 13). The prosecutrix, in the Court, identified the appellant No. 3 Kamji and No. 4 Khemraj who committed rape on her. (See : para 18 of her deposition). This witness also identified the property of dacoity recovered from the accused persons in identification parade held by the Sub-Divisional Magistrate in Collectorate, Jhabua. In para 19, she has mentioned the description of the property identified by her in the Test Identification Parade as well as in Court. She identified the nighty (Article 51) which was worn by her at the time of incident. She proved her signature at portion marked B to B on identification memo Ex. P/17.
31. In cross-examination, she has denied the defence suggestion in para 23 that she did not give consent for medical examination of her private part and her private part was not examined by the team of the doctors of Medical College, Indore. At this stage, the learned Counsel for the defence invited attention of the trial Court to the medical report of which three pages have been filed by the prosecution along with the charge-sheet and in this report there is no report of medical examination of private parts of this prosecutrix by the team of doctors of Medical College, Indore. The learned Special Public Prosecutor also submitted that apart from the report Ex. P./62 and P/25 filed along with the charge-sheet, there is no other part available relating to this prosecutrix in the Police case diary.
32. In para 27, this witness has been confronted with her case diary statement Ex. D/6 wherein at portion marked B to B, it is mentioned that when she was pulled down on the ground by one man, and the said man went away, thereafter, another man came to her. At that moment she closed her eyes with the thinking that if she would raise cry, the said man would cause more harm to her. She laid down silently with closed eyes and did not put any resistance. This prosecutrix PW-5 denied giving of such statement to the police. In her case-diary statement, the loot of Rs. 22,000/- is also not mentioned. In the statement, only taking of 3000 rupees is mentioned, but she denied disclosure of this amount and according to her, the miscreants looted 22,000 rupees. In her case diary statements Exs. D/5 and D/6, the presence of blood-stains on her nighty is also not mentioned. In her case diary statements Exs. D/5 and D/6, it is also not mentioned that she could be able to identify the miscreants if shown to her in future.
33. PW-5 Prosecutrix was medically examined first by Dr. PW-14, N. Gupta in the District Hospital, Jhabua the same day along with other prosecutrix. Her medical report is Ex. P/62/A. According to the evidence of Dr. Gupta, this prosecutrix was aged about 30 years. She was having regular menses and had last menses on 25-8-98. There was no external injury on her body. Her breasts and pubic hair were fully developed. Pubic hair were shaved. On internal examination at the mouth of vagina there was cut of 3'o clock position and there was a small cut and it was bleeding slightly, The vaginal swab was preserved and sealed. Her hymen was absent and uterus was of normal size. Dr. Gupta did not give any definite opinion about commission of rape and referred the prosecutrix for radiological test. He examined her in the presence of Dr. Smita Tiwari. In cross-examination para 16 Dr. Gupta admitted that inside the canal, there was no bruise or cut injury. The cut was present at the mouth of vagina which could be because of shaving and oozing of blood was due to getting the same cleaned at the time of medical examination. Dr. Gupta has also admitted that on examination of four prosecutrix, he did not find any inflammation, infection, disease or sign of pain. There was no swelling and they were not complaining about pain, swelling and infection. The vagina of prosecutrix PW-2, PW-5 and PW-8 were admitting one index finger easily. They could be habitual to sexual intercourse.
34. Dr. Laxmi Maru also medically examined the prosecutrix PW-5 on 25-9-98 in presence of a panel of Doctors of Medical College, Indore.
According to the evidence of Dr. Maru, the prosecutrix PW-5 disclosed before her that two persons made sexual assault on her after delivering threats by showing weapons. The prosecutrix had the last menses on 25-8-98. She was having menses in every 30th day and the same continued for three/four days. She changed her clothes twice before her examination and also took bath twice. She also shaved hair of private part on 20-9-98. Her breasts were fully developed and were normal. On local examination one contused abrasion was found 0.7 cm. x 0.2 cm. on left side of back portion from midline. This was semi circular on right side as well as also running downwards. Dr. Maru prepared two slides of vaginal smear and swab for the purposes of chemical examination.
35. The fourth prosecutrix is PW 8. She has also described the incident more or less in the similar way. According to her, in the night at about 2'o clock the miscreants pushed the switch of call bell and 8-10 persons having weapons in their hand were standing outside the building. They were having guns, knife, stones, bow and arrow. There was sufficient mercury tube light and bulbs and the sisters PW 4 and PW 2 were talking with them. PW 4 told them that the miscreants had come with some ulterior motive and not for taking medicines. The miscreants broke open the channel gate and wooden door. They entered the parlour and tried to open the Chapel room by applying force. They thought that if the door would not be unbolted, they would break the same and also create more nuisance. The entire door had trembled and was about to fall. Therefore, the prosecutrix PW 4 unbolted the same. Thereafter 10-12 persons entered inside the chapel room. They were making search and took sister PW 5 and PW 2. This witness, because of fear, forcibly caught the hands of prosecutrix PW 4, but 3-4 persons took her and prosecutrix PW 4 outside the convent. They separated both of them. The prosecutrix was taken at some distance from the building by four persons. She was thrown on the ground. At that time, she was wearing petticoat and long shirt (Kurti). They torn her skirt and she was made partially nude. One person pressed her both hands by Chappal and another caught hold of her legs. At that juncture, she was crying but none came to rescue her. She was ravished/ raped one after the other by four persons. She was feeling severe pain. After commission of rape, all the four persons went away. She was brought by prosecutrix PW 4 inside the convent. At that time, her petticoat was separated from her body. However she covered her private party by the same petticoat. When she entered inside the room she felt that some body was there inside the room. Therefore, because of fear she hidden herself in the dog room. After some time, sisters raised alarm and they all assembled in the room of sister (PW 4). They all were weeping. Some persons reached in the convent at 5.00 a.m. but she was knowing them. The other sisters were knowing them. They were asked to call the watchman. At about 5.10 a.m. watchman came to them and they were sent to convey the information to father. At about 6.00 a.m. they changed their clothes and found their household utensils and articles lying on the ground and miscreants looted several articles. Out of them, tape recorder, sewing machine, iron press, stabilizer, wrist watch, chain, sarees, blouse, shawl, muffler, cassettes, bedsheets, alarm piece and wall clock etc. where taken away by the accused. At 8.00 a.m. after reaching of Father Sunny (PW 1) in convent, they all disclosed about the incident and after half an hour police party also reached there. Police inspected the spot and recorded their statements separately. At that time, Father Laurence was also present there. They were sent to District Hospital, Jhabua and were examined by the lady doctor. They were also medically examined second time by a panel of doctors of Medical College, Indore on 17-10-1998. She identified 15 persons amongst 40-45 persons in Jhabua jail who committed loot. Identification memo is Ex. P. 11. She also identified seven miscreants out of 20 in test identification parade held on 30-11-1998. Out of those seven persons, four persons committed rape on her and other three were involved in loot. She proved her signature on identification memo (Ex. P. 14) at portion marked "B to B".
36. In Court, she identified Mesriya, appellant No. 6, Pedia, appellant No. 2, Jitra, appellant No. 7, Chittu s/o. Humma. According to this witness, all other accused persons were present and involved in committing loot. She also identified several articles, property of dacoity as mentioned in para 21 of her deposition and also proved her signature at portion marked "B to B" on test identification parade memo regarding identification of clothes worn by her in the fateful night of incident. She also admitted her signature on identification memo of the property Ex. P. 19 and deposed that in the test identification parade of articles, she identified the articles as mentioned in para 21. In cross-examination, she admitted that she did not describe height, age, colour, moustaches and beard or any other significant identification marks of above mentioned four persons in her statement recorded by the SMD as well as in the police statement vide Ex. D. 12 and D. 10 respectively.
37. In para 31 (cross examination) she asserted that she was ravished by four persons and not less than four and denied her statement recorded by the SDM (Ex. P. 12) wherein it is mentioned that she was raped by 3 to 4 persons. In her statement recorded by SDM (Ex. P. 12) the fact of possessing weapons like gun, knife and arrow etc. by the miscreants also was not mentioned and she failed to account for this omission. There are some more omissions and contradictions put to this witness, but we do not feel it necessary to mention each and every omission and contradictions herein which are bound to occur in the statement of witnesses looking to the nature of offence and number of several participants. It would not be possible for a witness to narrate the incident in the same sequence as narrated before the police or other agency and fully tallying with other witnesses of occurrence. We have to consider the substratum of the evidence and not each and every minute details.
38. This witness was medically examined first by Dr. M. Gupta (PW 14) who proved the medical report (Ex. P. 38).
This doctor found this prosecutrix to be aged 25 years. At the time of her medical examination, this prosecutrix disclosed about having menses on 1-9-1998. On external examination of body and private part, no injuries were found. Her axillary and pubic hair were fully developed. There was no spot available on her clothes. The same were sealed. Her breasts were fully developed. On internal examination, Dr. Gupta did not find any mark of injury. He prepared slides of vaginal swab and also sealed the pubic hair and nails. All these articles were handed over to the Constable. Hymen of this prosecutrix was absent and her vagina was admitting one finger easily. Uterus was normal in size. He proved her medical report Ex. P/38A. He also referred the prosecutrix to Radiologist for determination of her age. No definite opinion was given about commission of rape.
39. She was also medically examined by PW 15 Dr. Laxmi Maru in the presence of a panel of doctors of Medical College, Indore on 25-9-98. Dr. Maru (PW-15) noted as under:
The prosecutrix PW-8 disclosed before this doctor that forcible sexual assault was made on her at the point of weapons in the night of 22-9-98 by three or four persons - she fell unconscious and because of which, she could not remember the further events and 25-9-98 was her fifth day of menses. She also disclosed about change of clothes and taking bath twice before her medical examination. She also got the hair of private parts shaved on 15-9-98. This Dr. Maru on examination of this prosecutrix found as follows : Her breasts were fully developed. On her back portion at vertebra 12 there were two contused abrasions of size 0.7 x 0.2 cm. in semicircle. The colour of the injury was dermis brown and the same could be caused within 2 to 5 days from the date of her medical examination. The injury could be caused by hard and pointed object. On local examination the libia minora, majora and clitoris were fully developed and there was laceration from left side of lower part of vagina 2 mm. in size having slight bleeding. There was presence of echymosis means blood injury. Its colour was purple and red mixed. Her hymen was torn and it was not bleeding. Uterus was normal and PR examination was also normal. Two slides of vaginal smear and vaginal swab were prepared, sealed and signed and 4th same were sent for chemical examination. Her medical examination report is Ex. P./39.
40. In cross-examination of Dr. PW-15 Laxmi Maru, she admitted that at the time of medical examination of all the four prosecutrix she did not find any infection, inflammation on vagina or hymen. She could not opined as to after how much time the hymen of the prosecutrix PW-2, PW-5 and PW-8 were ruptured. This witness has denied the defence suggestion about sustaining of the injury by PW-2 on her private part at the time of internal examination. According to this doctor, the examination was done after wearing gloves. Therefore, the injury could not be caused. She admitted that the injury could be self inflicted by insertion of finger and injury found on the back portion of PW-2 could be caused by hard and blunt object. The same could be sustained by fall or dash against any object. The injury found on the back portion of the prosecutrix PW-5 could be self inflicted if the person is lefthander. The same opinion is given for the injury of PW-8 prosecutrix and laceration and bleeding from lower portion of vagina of PW-8 could be because of menses "and the same was very slight.
41. We have given our anxious consideration to the submission of the learned Counsel for the appellants that the story of rape was concocted later on and that is why there is absolutely no mention in the First Information Report Ex. P/178 lodged by PW-1 Father John Sunny and do not find any strength in this argument, because all the four victims of sexual assault have in unequivocal terms stated that they sent intimation to father PW-1 John Sunny through Chowkidar regarding commission of dacoity and beating. They had also instructed the watchman to inform about the incident which they had witnessed and in the written complaint Ex. P/1 on the basis of which the First Information Report Ex. P/178 was registered it is mentioned that details of the incident would be clear on the spot. Before making a written complaint by PW-1 John Sunny he had no meeting with the prosecutrix. On the same day on arrival of father and police, all the prosecutrix disclosed about commission of rape with them by unknown persons. The First Information Report was not lodged by any of the prosecutrix. Looking to the nature of incident, it could not be expected from them to give all details to the watchmen. Without any delay they sent intimation to Father PW-1 and ii is trite law that the First Information Report is not an encyclopedia of the incident: The prosecutrix and the Father need not to level false charges of commission of gang rape against the poor tribals. The incident of armed dacoity was already a serious incident punishable under Section 395 of the Indian Penal Code wherein maximum sentence of life imprisonment is prescribed. Therefore, the arguments and logic put forth from the side of the defence that the case of gang rape was concocted to make the incident graver, is not conceivable.
42. The Supreme Court, in the case of Aman Kumar (2004 Cri LJ 1399) (supra), in para 5 has observed thus:
It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would suffice.
43. In the case in hand, the evidence of all the four prosecutrix can be acted upon without any corroboration. At the same time, the version of the prosecutrix PW-2, PW-5 and PW-8 are corroborated by the Forensic Science Laboratory Report vide Ex. P/190. In their vaginal swab and clothes semen and spermatozoa were found. They are unmarried women and medically examined by the doctors twice. PW-2 identified the appellants No. l Bhurji, No. 2 Pidiya, No. 8 Badra alias Bahadra, No. 9 Chamma and No. 10 Ramesh in the Test Identification Parade Ex. P/8 held by PW-3 Omprakash Shukla Sub-Divisional Officer, Jhabua on 17-10-98. This witness has also identified other seven appellants on 30-11-98 vide Identification Memo Ex.P/12. PW-3 has deposed that the prosecutrix PW-4 identified these appellants showing that they committed rape with her and rest of the appellants were identified by her for their involvement in the commission of dacoity. The prosecutrix PW-5 identified in Court the appellant No. 3 Kaamji and No. 4 Khemraj for commission of rape with her. She also identified both the appellants in the Test Identification Parade held by PW-3 Omprakash Shukla on 30-11 -98. He proved identification memo Ex.P/13 dated 30-11-98. The prosecutrix PW-4 identified the appellant No. 5 Daru in the Court and also identified him in the Test Identification Parade vide memo Ex. P/15 and memo Ex. P/10 for other accused persons proved by PW-3 Omprakash Shukla. PW-8 prosecutrix identified in Court the appellant No. 6 Mesriya and No. 7 Jhitra. She also identified both the appellants in the Test Identification Parade vide memo Ex. P/14 dated 30-11-98. The appellants were identified in Court as well as in the Test Identification Parade Ex. P/11 for other accused persons dated 17-10-98 for their involvement in commission of dacoity. The identification parade was held without any delay after the arrest of the appellants.
44. Learned Counsel for the appellants has argued that the witnesses have not given description of personality of the miscreants, therefore, could not be able to identify the appellants. We do not find any substance in this argument because in the instant case, the prosecutrix had sufficient time and opportunity and also light to see the appellants and have their enprints in their mind. Mere non disclosure of the, details of specific sign of identification would not corrode the evidentiary value in this regard of the prosecutrix.
45. In the case of Malkhan Singh v. State of M.P. the prosecutrix was subjected to gang rape and the First Information Report was lodged after ten days during investigation Test Identification Parade was not held. In this case, the Supreme Court has held that "Prosecutrix had abundant opportunity to notice the features of the accused persons and on account of traumatic and tragic experience, the faces of the appellants must have not enprinted in her memory." In the case in hand all the four prosecutrix had occasion to see the appellants for a pretty long duration on different-different places at their Convent. Their merely non mentioning of features in their statements would not be sufficient to discard their testimony in regard to the identification of the appellants by them.
46. Learned Counsel for the appellants placed reliance on the Supreme Court case in Shankarlal (1981 Cri LJ 325) (supra) on the count that if appellants are not able to point out as to why they would be falsely implicated by the four prosecutrix, would not be a ground to accept the version of the prosecutrix. There is no dispute on this principle. The burden is on the prosecution to prove its case beyond all reasonable doubt. In the case of Shankarlal (supra), the conviction was based on circumstantial evidence. There was no eye-witness and the prosecutrix was murdered after commission of rape. The facts and circumstances of the present case are entirely different. The prosecutrix have appeared in the Court and gave statements. Their version is fully corroborated by the Forensic Science Laboratory report. The evidence of the prosecutrix has not been relied upon only on the ground that the appellants failed to adduce evidence or show the reason as to why they will be implicated by the prosecutrix.
47. The appellants were medically examined by Dr. PW-9 Faiyaz Hussain, PW-10 Dr. Vikram Verma, PW-11 Dr. B.S. Waghela, and PW-13 Dr. O. P. Agrawal and were found capable of performing sexual intercourse. This question was not challenged before the learned trial Court as also before this Court.
48. The learned trial Court has convicted all the appellants for commission of gang rape with three prosecutrix and attempt to commit rape with Prosecutrix PW-4. On consideration, we are of the view that there is no evidence on record that all the appellants had common intention and in furtherance of the same, committed rape and attempted to commit rape with the 4 prosecutrix. All the four prosecutrix have given statement regarding their sexual assault to them by different/different appellants. PW-2 has stated, as mentioned hereinabove, against five appellants. She did not speak against the other appellants taking part directly or indirectly, in commission of rape with her. Therefore, for commission of gang rape with prosecutrix PW-2 only five appellants would be responsible. Same is the situation with PW-5 who stated against two appellants, PW-8 against two appellants and PW-4 only against one appellant. The gang rape is defined under Section 376, Sub-section (2)(g) (Explanation) of the Indian Penal Code as under:
376. Punishment for rape....
(2) Whoever.-
(a) ...
(i) to (iii) ...
(b) to (f) ...
(g) commits gang rape 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.
49. In view of the aforesaid definition of gang rape, PW-2 prosecutrix was ravished by five appellants and all the five were present near her. There is no evidence that other appellants were present on or near the place were the rape was being committed with PW-2 by five appellants. It is well established legal position that common intention to commit crime by the accused persons can be developed on the spot. The way in which accused persons acted with the prosecutrix would be sufficient to draw inference that they acted in furtherance of their common intention. Therefore, the appellants who committed rape with three prosecutrix would be liable for commission of gang rape with different prosecutrix by them and their associates. The three groups of the appellants independently committed gang rape with different prosecutrix. There is no evidence available on record that all the three groups had pre-meeting of mind, pre-meditation and pre-plan to commit gang rape and committed rape with three prosecutrix in furtherance of their common intention. Therefore each group would be responsible for commission of gang rape for a particular prosecutrix and not for commission of gang rape committed by other groups. Therefore, we are of the considered view that the conviction of the appellants for commission of gang rape on three counts is not sustainable. As discussed hereinabove the appellants No. 5 Daru would be responsible only under Section 354 and not under Section 376 read with Section 511, IPC attempt to commit rape with the prosecutrix.
50. Now we deal with the commission of dacoity by the appellants. In this regard all the four prosecutrix have given clear statements that so many miscreants having stones, knifes, bow and arrow, Falia and lathis in their hands, broke open the door and thereafter taken away their properties. The appellants were identified in the Test Identification Parade as well as in the Court. From their possession, properties were seized and the same were also identified by the four prosecutrix in the T.I. Parade held on 1-12-98 vide memo Ex. P/15, P/16, P/17, P/18 and P/19 proved by PW-3 Omprakash Shukla.
51. From appellant Bhoorji (appellant No. 1), one radio (two in one) Phillips (Art. 30), one Falia and 400 rupees cash (50 rupees denomination) were seized vide Ex.P/ 163 by Kiranlata (PW-63) in presence of PW-27 Vijaysingh and PW-57 Maniya. However, both these witnesses turned hostile. From appellant No. 2 Pidiya one Lathi (Article 68), two sarees, one bundle of blouse and Rs. 200- cash were seized vide Ex/P117 by SDOP Kiranlata Kirkit (PW-63) in presence of PW-23 Mohan and PW-38 Tejiya out of whom Mohan turned hostile. From appellant No. 3 Kamji, Stabilizer (Art. 37), Falia (Art. 73), one Dhariy a, 2,500/- cash and some electrical goods relating to Refrigerator were seized by PW-62 Kiranlata Kirkit vide Ex.P/113 in presence of PW-21 Prakash and one Micheal (PW-37). From appellant No. 4 Khemraj one sewing machine of Singer company (Article 1) was seized by Omprakash Dwivedi S.I. (PW-62) vide Ex. P/167 before PW-56 Raman who turned hostile. From, appellant No. 5 Daru Article-38 Walkman, 4 Strips of tablets (Art. 10), Tablets (Article 11) and one lathi (Article 71), one scissor of red handle, one Liv-452 bottle were seized by Kiranlata Kirkit SDOP (PW-63) vide seizure memo Ex. P/177 in presence of PW-61 Vinay Meda. From appellant No. 6 Mesriya. three bowls (Article 14), one pillow cover and one bow and arrow (Article 72) were seized by PW-62 Kiranlata SDOP vide Ex.P/142 in presence of PW-33 Naniya and PW-37 Michael out of whom Naniya turned hostile. From appellant No. 7 Jhitra, one Shawl, 1,000/- cash and one Falia were seized vide Ex. P/142 by PW-63 Kiranlata Kirkit in presence of Naniya and PW-37 Michael. Amongst these two witnesses Naniya turned hostile. From appellant No. 8 Badra alias Bahadra Article 29 radio Phillips, Article 12 key ring, Article 13 Holy-cross with broken necklace and cash amount (Article 59) were seized vide Ex. P/67 by PW-63 Kiranlata Kirkit in presence of PW-57 Maniya who turned hostile. From appellant No. 9 Chamna Sarees (Articles 48 and 39), Maxi (Article 41), Dhariya (Article 69) and cassette (Article 6) and cash amount of Rs. 500/- were seized vide Ex. P/111 by SDOP Kiranlata Kirkit in presence of PW-20 Prakash, PW-26 Dheeraj and PW-43 Bhuru alias Suresh. However, Dheeraj and Bhuru turned hostile and from appellant No. 10 Ramesh, two sarees (Article 65) Gown and Falia (Article 66) were seized by Kiranlata Kirkit (PW-63) SDOP in presence of PW-31 Kahji, PW-32 Ranji and PW-43 Bhuru alias Suresh and PW-30 Guddu alias Govind. Except PW-63, the four witnesses turned hostile.
52. In the wake of the aforesaid screening of the prosecution evidence and the legal position, we are of the firm view that the prosecution has proved its case beyond all reasonable doubt against the appellants Nos. 1, 2, 8 and 10 i.e. Bhurji, Pidiya, Badra alias Bahadra, and Ramesh respectively but they are liable for conviction only for commission of gang rape with prosecutrix No. 2, appellant No. 5 Daru under Section 354, IPC for molesting the modesty of prosecutrix (PW-4), appellants No. 3 Kaamji and No. 4 Khemji for commission of gang rape with Prosecutrix (PW-5) and appellant No. 6 Mesriya and No. 7 Jhitra for commission of gang rape with prosecutrix PW-8. They all are also convicted under Sections 450 and 395 of the IPC.
53. The conviction and sentence of appellant No. 9 Chamna for the offences under Sections 376(2)(g) (Explanation 1) read with Section 511 as also under Sections 450 and 395, IPC are set aside. Instead thereof he is convicted under Section 412 of the IPC for knowingly and dishonestly receiving the property of dacoity and is sentenced to the period already undergone (about nine years).
54. As regards the sentence, learned Counsel for the appellants submitted that the appellants are illiterate poor tribals and the act of commission of rape with the prosecutrix was not preplanned, but it appears to be their spontaneous act. All the prosecutrix were major and looking to their medical report and at the time of commission of rape, the appellants did not cause any in-Jury to any of the prosecutrix and the medical evidence is also not disclosing the presence of any external or internal injury on their persons. The appellants are first offenders having responsibility of their families. Therefore, according to the learned Counsel, it is not an exceptional case in which, the accused persons may be punished with imprisonment for life which is the maximum punishment. It has also been submitted that during investigation and in Court, the manipulation and exaggerations have also been done by the Investigating Agency, which is clear from the admission of the prosecutrix PW-2 that she was knowing the appellant No. 9 Chamna by name prior to the date of incident and she also mentioned his name in her case-diary statement, but his name is not mentioned in her case-diary statement and this appellant was also placed for identification in Test Identification Parade by prosecutrix PW-2 and that in Forensic Science Laboratory Report Ex. P/190 on the gown/Maxi of prosecutrix PW-4 human semen was detected though this prosecutrix has specifically stated that she was not subjected to sexual intercourse and appellants No. 5 Daru and one another did not remove her and their own garments. Learned Counsel, therefore, prayed for imposition of less than minimum sentence prescribed under Section 376(2)(g) (Proviso) for commission of gang rape to the appellants.
55. In criminal cases sentencing part is a very crucial aspect and the Courts must deal with this aspect with circumspection. The Supreme Court in the case of Sushil Murmu v. State of Jharkhand has pointed out relevant considerations for determination of sentence "that the personality of the offender as revealed by his age, character, antecedents and other circumstances and traceability of the offender to reform must necessarily play the most prominent role in determining the sentence. A judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed". Again in the case of Devnarayan Mandal v. State of U.P. , the Supreme Court has held that the sentence awarded should be neither excessively harsh nor ridiculously low. The Court has to bear in mind the principle of proportionality. The gravity of the offence, manner of commission of crime, age and' sex of the accused should be taken into account. Thus, the discretion given by the statute to the Court for awarding the sentence cannot be exercised arbitrarily. (Also see : Surjitsingh v. Nahraram . We may also usefully refer the judgment rendered by the Supreme Court in the case of Pramod Mahto v. State of Bihar . In this case 16 accused persons were prosecuted for commission of gang rape with unmarried girl aged about 15 or 16 years and another two married major prosecutrix, in all three prosecutrix, theft, house trespass and other offences. Out of them 11 were acquitted by the trial Court and five stood convicted under Section 376/149, IPC and sentenced to R.I. for life and fine for commission of rape. They preferred appeal before the High Court and the High Court confirmed the conviction and sentence of four appellants and reduced the sentence of appellant No. 5 from imprisonment for life to two years. The four appellants approached the Supreme Court in SLP and the Supreme Court reduced the jail sentence of imprisonment for life to ten years and maintained the life sentence of only one appellant who was doctor and played a leading role. In the case at hand, all the appellants are rustic, poor tribals and there is no evidence available on record to hold any body as leader of the appellants/accused persons,
56. Keeping in mind the aforesaid principles of penology and on consideration of the arguments advanced on behalf of the appellants, contrary to which nothing is available on record, therefore, we are of the view that the ends of justice would be served to impose minimum punishment prescribed under Section 376(2)(g) of the Indian Penal Code. In the case at hand, we do not consider it to be a fit case for imposing less than minimum sentence and there are no special circumstances available to impose maximum sentence of imprisonment for life. It would be apposite to mention here that even after 58 years of independence people of our country like the appellants are living in the era of bow and arrow and illiterate from so many generations and we feel that even now no proper and effective facilities to educate them have been provided by the concerned Constitutional and other functionaries. We have seen and also observing that majority of the crimes against human body are being committed by illiterate poor, unemployed people and persons coming from down-trodden i.e. agriculturists and labourers and to meet this situation only way out is to provide proper and effective educational facilities to these persons.
57. Ex-consequent, this appeal is allowed in part. The appellants Nos. 1 to 4, 6 to 8 and 10 are convicted under Section 376(2)(g) (Explanation 1) of the IPC and each is sentenced to rigorous imprisonment for ten years and appellant No. 5 Daru is convicted under Section 354 of the Indian Penal Code and is sentenced to R.I. for two years. The conviction and jail sentence of the appellant Nos. 1 to 8 and 10 under Sections 450 and 395, Indian Penal Code i.e. of TEN years on each count are affirmed, but their sentences of fine on both counts are hereby set aside. All the jail sentences are directed to run concurrently.