Jharkhand High Court
Sukhlal Karwa vs The State Of Jharkhand on 16 March, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 660 of 2016
with
Criminal Appeal (D.B.) No. 469 of 2016
(Against the judgment of conviction dated 29.3.2016 and order of sentence
dated 31.3.2016 passed by the Sessions Judge, West Singhbhum, Chaibasa
in Sessions Trial No. 246 of 2009)
--------
Sukhlal Karwa, son of Uday Karwa, Resident of village Chalgi, P.O. and P.S.
Tonto, District- West Singhbhum ... ... Appellant
(In Cr.A.(DB) No. 660 of 2016)
1. Remay Karwa, son of Dhum Karwa Resident of village Chalgi, P.O. and
P.S. Tonto, District- West Singhbhum, Chaibasa.
2. Modga Hessa, son of Sidiu Hessa , Resident of village Chalgi P.O. and P.S.
Tonto, District- West Singhbhum , Chaibasa.
3. Landu Karwa, son of Sahu Karwa, Resident of village Chalgi, P.O. and
P.S. Tonto, District- West Singhbhum , Chaibasa.
... ... Appellants
(In Cr.A.(DB) No. 469 of 2016)
Versus
The State of Jharkhand ... ... Respondent
(In both cases)
-------
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
: HON'BLE MR. JUSTICE RATNAKER BHENGRA
-------
For the Appellant(s) : Mrs. J.Mazumdar, Advocate,
Ms. Apoorva Singh, Amicus
(In Cr.A. (DB) No. 660 of 2016)
Mr. Mahadeo Thakur, Advocate
(In Cr.A.(DB) No. 469 of 2016)
For the State : Mr. Vinay Kumar Tiwary, A.P.P.
(In both cases)
--------
JUDGEMENT
Per, Shree Chandrashekhar,J. Dated: 16th March, 2020 Oral Order Four persons, namely, Modga Hessa, Landu Karwa, Sukhlal Karwa and Remay Karwa were named by the informant in her fardbeyan as the perpetrators of sexual assault upon her. Her fardbeyan was recorded on 13.5.2009 and on that basis Tonto P.S. Case No. 09 of 2009 was lodged against the above-named accused persons under section 376(2)(g) of the Indian Penal Code. For committing gang rape upon the informant, they have been convicted and sentenced to R.I. for life and fine of Rs. 20,000/- under section 376(2)(g) of the Indian Penal Code.
22. During the trial, the prosecution has examined twelve witnesses; the prosecutrix is PW-2.
3. Pachai Hessa-PW-1 is the village Munda, Mecho Hessa-PW-3 is a co-villager and friend of the prosecutrix and Renso Hessa-PW-4 is father of the prosecutrix. The co-villagers, namely, Mata Hessa-PW-6 and Shankar Hessa-PW-7 are hearsay witnesses and Gangadhar Hessa-PW-8, Salay Hessa-PW-9 and Sombari Hessa-PW-10 have not supported the prosecution's case and they have been declared hostile during the trial. The first Investigating Officer of the case is Ram Lal Ram who has been examined as PW-5 but the main Investigating Officer of the case who has subsequently taken charge of the investigation has not been produced during the trial. Nirupam Kumar-PW-12 is the Judicial Magistrate who has recorded statement of the prosecutrix under section 164 Cr.P.C.
4. The prosecution has projected PW-2 and PW-3 as the eye-witnesses.
5. The prosecution's case is disclosed by the prosecutrix in her fardbeyan. She has stated that on 9.5.2009 she had gone to Jorapokhar market at around 9:00 a.m. At that time her friend Mecho Hessa was also with her. In the market she met the accused persons who were known to her. They enjoyed Hadia (drinks) together and then she left the market with Mecho Hessa in the afternoon. At about 7:00 p.m. when they reached near Kundrugutu forest the accused persons apprehended them. They took her towards the bushes and sexually assaulted her. Mecho Hessa however had managed to escape. The statement of the prosecutrix was recorded under section 164 of the Code of Criminal Procedure and she has deposed in the court on the similar lines and narrated the incident that had happened in the evening of 9.5.2009. She has spoken about her acquaintance with the accused persons, enjoying drinks with them in the market and the accused persons apprehending them near Kundrugutu forest. She is very specific about the sexual assault on her by the accused persons. Her evidence is substantially corroborated by PW-3. Though she is not an eye-witness to the actual occurrence, that is, sexual assault on the prosecutrix, her testimony confirms participation of the accused persons in the occurrence. She is friend of the prosecutrix and a co-villager. She was with her in the market on 9.5.2009 and she has deposed in the court 3 that she was with the prosecutrix when they had enjoyed drinks together with the accused persons in the market on 9.5.2009. PW-3 has stated in the cross-examination that it was the prosecutrix who had told her name of the accused persons but nothing much would turn on it because she has identified the accused persons in the dock. Therefore, the identification of the accused persons by PW-3 as the persons who have participated in the occurrence is a substantive piece of evidence (refer, section 60 of the Indian Evidence Act). During cross-examination of PW-2 and PW-3 nothing material could be elicited by the defence and they have remained firm on participation of the appellants in the crime. PW-12 who has recorded statement of the prosecutrix has affirmed the same in the court that he has recorded her statement under section 164 Cr.P.C.
6. Mrs. J.Mazumdar, the learned counsel for Sukhlal Karwa, Ms Apoorva Singh, the learned Amicus and Mr. Mahadeo Thakur, the learned counsel who appears for the other appellants have contended that:
(i) delay of four days in lodging the First Information Report was not explained, (ii) the prosecutrix has stated that she had gone to her maternal uncle's place at village Dububasa the same evening and in the next morn-
ing she had gone to Nimidih to her aunt's place and her father also came there but no report to the police was lodged, (iii) the medical evidence does not corroborate the manner of incident as stated by the prosecutrix and the medical report does not disclose any assault much less any sexual assault upon the prosecutrix.
7. On the above grounds, they have submitted that there is substantial doubt on complicity of the appellants in the crime. Their alternative argument is primarily based on the judgment in "Thongam Tarun Singh Vs. State of Manipur" reported in 2019 SCC OnLine SC 709, to the effect that the appellants who were very young at the time of the occurrence do not deserve maximum punishment under section 376(2)(g) of the Indian Penal Code.
8. In a case under section 376 of the Indian Penal Code, statement of the prosecutrix may alone form the basis for conviction of an accused and many a time absence of injury on the external or internal part of the victim lady may not be decisive. It is common view that normally a 4 women would not falsely implicate someone for the offence of rape, for the incident brings stigma to the women. It has also been held that absence of spermatozoa is not a conclusive factor and full penetration is not sine qua non to complete the offence under section 376 of the Indian Penal Code. In "Raja Vs. State of Karnataka" reported in (2016) 10 SCC 506, the Supreme Court has observed thus:
"34. This Court in Raju, while reiterating that the evidence of the prosecutrix in cases of rape, molestation and other physical outrages is to be construed to be that of an injured witness so much so that no corroboration is necessary, ruled that an accused must also be protected against the possibility of false implication. It was underlined that the testimony of the victim in such cases, though commands great weight but the same, cannot necessarily be universally and mechanically accepted to be free in all circumstances from embellishment and exaggeration. It was ruled that the presumption of absence of consent of the victim, where sexual intercourse by the accused is proved as contemplated in Section 114-A of the Evidence Act, was extremely restricted in its application compared to the sweep and ambit of the presumption under Sections 113-A and 113-B of the Indian Evidence Act. It was exposited that insofar as the allegation of rape is concerned, the evidence of the prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should always without exception, be taken as gospel truth. The essence of this verdict which has stood the test of time proclaims that though generally the testimony of a victim of rape or non-consensual physical assault ought to be accepted as true and unblemished, it would still be subject to judicial scrutiny lest a casual, routine and automatic acceptance thereof results in unwarranted conviction of the person charged."
9. In the present case, testimony of the prosecutrix provides sufficient indication why no sign of sexual assault was found on her clothes. The doctor has found no sign of violence on her but this was also quite natural because four days after the incident minor abrasions which the prosecutrix had suffered in the occurrence would not leave any trace or scar on her body. The appellants were four in number and she has not stated that the accused persons had otherwise also physically assaulted her. She has not spoken about any bite or scratches by the accused persons when they had sexually assaulted her. The cross-examination of the doctor who has clinically examined her is also quite silent on this aspect. According to the prosecution the incident took place in the evening of 09.05.2009 and a medical board was constituted on 13.05.2009 which has examined the prosecutrix. Dr. Meera Kumari Arun was one of the doctors constituting the medical board and conclusion of the medical board is 5 recorded in her deposition, a part of which reads as under:
"(i) Sexual Intercourse took place.
(ii) No any mark of violence or foreign particle present in the private part of the body of victim.
(iii) No tenderness and swelling in breast."
10. In our opinion, observations of the medical board do not completely rule out possibility of rape.
11. The evidence of PW-2 and PW-3 is corroborated in large parts by PW-1 and PW-4; PW-1 is the village Munda and PW-4 is father of the prosecutrix. PW-1 has stated that father of the victim has informed him about the incident. In his examination-in-chief he has stated that the accused persons had approached Mecho Hessa and the prosexutrix and they induced them for drinks. They brought them to the jungle and sexually assaulted the prosecutrix. PW-4 has also stated that the accused persons apprehended his daughter and sexually assaulted her. PW-1 and PW-4 are not the eye-witnesses but their testimony in the court is in line with the manner of occurrence as disclosed by the prosecutrix and Mecho Hessa, her friend. It is well-settled that in every case there may be some inconsistency, exaggeration, embellishment etc. in testimony of the prosecution witnesses and on the basis of minor inconsistency or exaggeration or embellishment in their evidence an accused cannot be extended the benefit of doubt. The inconsistency, embellishment, exaggeration etc. in the evidence of the prosecution witnesses must be such that it strikes at the root of the prosecution's case. No such inconsistency or exaggeration or embellishment in the testimony of PW-2 and PW-3 has been brought out by the defence. From the evidence of PW-1, PW-2, PW-3, PW-4, PW-5 and PW-11, complicity of the appellants in the crime stands proved.
12. In the aforesaid state of evidence even though PW-8, PW-9 and PW-10 who are the co-villagers have turned hostile, testimony of the prosecutrix which is sufficiently corroborated by PW-1, PW-3 and PW-4 is not clouded with any doubt. Her evidence is corroborated to some extent also by the medical evidence. In the above facts, delay of four days in lodging the First Information Report is not fatal for the prosecution. From testimony of PW-2 and PW-3 it is apparent that they are illiterate girls;
6they can speak and understand Ho language only and in the social background in which the prosecutrix was brought up it is not inconceivable that the family would have thought many times before taking a decision whether to lodge a First Information Report or not.
13. In "State of Punjab v. Gurmit Singh" reported in (1996) 2 SCC 384, the Hon'ble Supreme Court has observed as under:
"8. ... The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged."
14. Reiterating the above view, in "Deepak v. State of Haryana"
reported in (2015) 4 SCC 762, the Hon'ble Supreme Court has observed as under:
"15. The courts cannot overlook the fact that in sexual offences and, in particular, the offence of rape and that too on a young illiterate girl, the delay in lodging the FIR can occur due to various reasons. One of the reasons is the reluctance of the prosecutrix or her family members to go to the police station and to make a complaint about the incident, which concerns the reputation of the prosecutrix and the honour of the entire family. In such cases, after giving very cool thought and considering all pros and cons arising out of an unfortunate incident, a complaint of sexual offence is generally lodged either by the victim or by any member of her family. Indeed, this has been the consistent view of this Court as has been held in State of Punjab v. Gurmit Singh."
15. The non-examination of the Investigating Officer has also not caused any prejudice to the accused persons. There was no cross-examination of PW-6 who was the first Investigating Officer and how examination of the second Investigating Officer, maybe he is the main Investigating Officer, was necessary has not been shown by the defence. There is no universal law that in every case in which the Investigating Officer has not been examined ipso facto prejudice would be caused to the accused person. On non-examination of the Investigating Officer, in Behari Prasad v. State of Bihar reported in (1996) 2 SCC 317, the Hon'ble 7 Supreme Court has observed as under:
"23. ............We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. .........."
16. In view of the above discussions, we find that by leading cogent and reliable evidence the prosecution has proved the charge under section 376 (2)(g) of the Indian Penal Code against the appellants and, therefore, their conviction for the said offence is confirmed.
17. Next is the question of sentence.
18. The learned Sessions Judge has recorded the mitigating as well as the aggravating circumstances in the case and while referring to the judgment in "Purushottam Dashrath Borate and Another Vrs. State of Maharashtra" reported in (2015) 6 SCC 652 he seems to be guided by observation of the Hon'ble Supreme Court that the object of sentencing policy should be to see that crime does not go unpunished and victim of the crime as also society has the satisfaction that justice has been done to it.
19. We do not find much error in the approach of the learned Sessions Judge, but for one another aspect of the matter. The prosecutrix has admitted in her evidence that she did not want to marry Sukhlal Karwa and in her cross-examination she has not mentioned name of Landu Karwa and Modga Hessa as the persons who have participated in the occurrence. PW-2 and PW-3 both are Ho-speaking girls and their testimony has been recorded by the help of an interpreter but the interpreter has not been examined in the court. These are the mitigating circumstances, which, we think are also relevant for deciding the quantum of sentence.
20. Section 277 and 278 of the Code of Criminal Procedure are reproduced below:
"Section 277 - Language of record of evidence -- In every case where evidence is taken down under Section 8 275 or Section 276 --
(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language;
(b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and if it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of the witness proceeds, signed by the Magistrate or presiding Judge, and shall form part of the record;
(c) where under clause (b) evidence is taken down in a language other than the language of the Court, a true translation thereof in the language of the Court shall be prepared as soon as practicable, signed by the Magistrate or presiding Judge, and shall form part of the record:
Provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with such translation.
Section 278 - Procedure in regard to such evidence when completed -- (1) As the evidence of each witness taken under Section 275 or Section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands."
21. Section 277 (b) of the Code of Criminal Procedure provides that if a witness gives evidence in a language other than the language of the Court and if practicable it may be taken down in that language, but if it is not practicable to do so a true translation of his evidence in the language of the Court shall be prepared and signed by the Magistrate or the presiding Judge. Sub-section (3) to section 278 of the Code of Criminal Procedure provides that if the evidence of a witness is recorded in a language different from that in which it has been given by him and the witness does not understand that language, the record shall be 9 interpreted to him in the language in which it was given or in a language which he understands.
22. In contradistinction to section 277 and section 278, section 279 of the Code of Criminal Procedure provides a limited right to the accused, inasmuch as, sub-section (1) to section 279 of the Code of Criminal Procedure provides that if the accused is present in the Court in person any evidence given in a language not understood by him shall be interpreted to him in open Court in a language understood by him and sub-section (2) to section 279 of the Code of Criminal Procedure provides that if an accused appears by his pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.
23. Though no argument has been raised on behalf of the appellants that they do not understand the language, that is, Hindi in which testimony of PW-2 and PW-3 was recorded, we find that there is no endorsement to this effect by the counsel who has represented the appellants during the trial on the memorandum of the testimony of PW-2 and PW-3. In our opinion, on such facts the notion of fair trial gets affected whenever the interpreter is not produced for cross-examination. The aforesaid aspects of the matter have not been considered by the learned Sessions Judge while awarding maximum punishment of R.I. for life to the appellants. Though, the judgment in Thongam Tarun Singh (supra) is distinguishable on facts in so much so the victim in the present case has given birth to a child, but in view of the aforesaid discussions, particularly, the other mitigating circumstances which have not been taken note of by the learned Sessions Judge, we are inclined to interfere with the order of sentence dated 31.3.2016.
24. Accordingly, the order of sentence dated 31.3.2016 passed in Sessions Trial No. 246 of 2009 is set-aside.
25. The conviction of the appellants under section 376 (2)(g) of the Indian Penal Code is affirmed and the sentence of life imprisonment is restricted to R.I. for fourteen years. They shall be entitled for remissions earned by them.
26. In the result, Cr. Appeal (DB) No. 660 of 2016 and Cr. Appeal 10 (DB) No. 469 of 2016 are partly allowed.
27. Interlocutory Application No. 2720 of 2020 stands disposed of.
28. The trial court shall prepare a fresh conviction warrant, in terms of this judgment.
29. Let lower court records be transmitted to the court concerned, forthwith.
30. Let a copy of the judgment be transmitted to the court concerned through 'FAX'.
31. We record our appreciation for Mrs. J. Mazumdar and Mr. Mahadeo Thakur, the learned counsels and Ms. Apoorva Singh, the learned Amicus for their able assistance.
32. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s).
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 16th March,2020 S.B./nibha A.F.R