Calcutta High Court
Anil Lakra And Ors. vs State Of West Bengal on 14 July, 2006
Equivalent citations: 2006CRILJ4467, 2006 CRI. L. J. 4467, 2007 (2) AJHAR (NOC) 415 (CAL)
JUDGMENT P.N. Sinha, J.
1. This appeal is directed against the judgment and order of conviction and sentence dated 31st May, 2002 passed by the learned Additional Sessions Judge, 2nd Court, Jalpaiguri in Sessions Case No. 2003 of 2001 thereby sentencing the appellants to suffer Rigorous Imprisonment (in short R.I.) for 10 years each together with a fine of Rs. 3,000/- each in default to suffer R. I. for 3 months each for the offence under Section 376(2)(g) of the Indian Penal Code (hereinafter called I.P.C); R.I. for 2 years each for the offence under Section 324/34 of the I.P.C.; for 2 years each for the offence under Section 379/34 of the I.P.C. Besides that, appellants Anil Lakra and Jit Bahan Uraon were further convicted and sentenced to suffer R.I. for 2 years each for the offence under Section 411 of the I.P.C. It was directed by the learned Additional Sessions Judge that all the sentences would run concurrently.
2. The prosecution story as depicted in the First Information Report (hereinafter called FIR), fn short, is that on 28-7-01 the de facto complainant Lt. P. Sumod (PW 3) along with his girl friend, the victim, daughter of Lt. Col. R.B. Singh of Binnaguri Army Cantonment within P.S. Banarhat, left the said cantonment at about 18.45 hours on a motor cycle and arrived at Telipara Bridge near Ammunition Point. They sat near the bridge at about 19.00 hours and were gossiping amongst themselves. About 5 minutes later, a group of 5/6 youths came and took seat on the other side of the bridge and sometimes after they went away. About 10 minutes thereafter a group of 10/12 youths armed with bhojali', 'dah' and 'iron rods' surrounded the informant and the victim girl and four persons surrounded P.W. 3 while others took away the victim girl. One out of four miscreants, who surrounded the de facto complainant (PW 3), demanded the key of the motor cycle from him and took it away. Others slowly withered out except one who remained there with 'dah' and finally the said man also vanished from the said place. P.W. 3 thereafter ran towards the Ammunition Point and asked for help from the sentry on duty. P.W. 3, thereafter, asked help from the children of M.E.S. employees and they went to call others from their homes while P.W. 3 along with 2 DSC guards went back towards the bridge on the road. Reaching at bridge they found nobody and they noticed" some movement in the nallah below. On enquiry they replied that they were children of M.E.S. employees who had come for help. Thereafter, they searched the area near the bridge and then moved up to enquire in the village. In the first house they said that they did not know anything. The DSC guards went on searching the area behind the house and P.D. 3 remained standing in the front. P.W. 3 thereafter reached near the bridge again and saw torch light in the nallah and started walking towards nallah. Thereafter, P.W. 3 along with DSC guards and children of M.E.S. employees started moving cross country up the nallah. After moving about 40/50 meters they saw the victim girl staggering towards them. On reaching them the victim girl started crying and she had cuts in her left hand and she could not walk or stand and she had to carried back. P.W. 3 along with DSC guards carried her and took her to the Ammunition Point where Captain Amit Kumar (PW 4) of Div. Ord. Unit had come with troops. P.W. 3 along with Capt. Amit Kumar rushed the victim to 164 M.H. for treatment where P.W. 3 learnt in front of other officers that victim girl had been raped. PW 3 mentioned in the FIR that he can recognise the 4 miscreants who had surrounded him if produced in front of him. The typed FIR signed by P.W. 3 was received by officer of Banarhat P.S. on 29-7-01 at 1.15 hours at Binnaguri Army Cantonment and it was forwarded to Banarhat P.S. and the same was received at Banarhat P.S. on 29-7-01 at 2.30 hours and on the basis of it Banarhat P.S. Case No. 59, dated 29-7-01 under Sections 376(2)(g) and 324 of the I.P.C. was started against unknown miscreants.
3. P.W. 15 S.I.S. Haldar, the O.C. Banarhat P.S. himself took up the investigation of the case and took steps for medical examination of the victim and recording her statement under Section 164 of the Code of Criminal Procedure (in short 'Code'). He arrested two accused persons initially namely. Anil Lakra and Jit Bahan Uraon and on the basis of statement of the said two accused persons 2 pieces of gold ear-rings, one ladies wrist watch, one gold finger ring and one big knife of 18 inches in length were recovered from the possession of accused Jit Bahan Uraon and Anil Lakra respectively. He also arrested other accused persons subsequently and they were placed in T.I. Parade and in the T.I. Parade P.W. 1, the victim girl identified 9 miscreants and P.W. 3 identified 8 miscreants. After completing investigation P.W. 15 submitted chargesheet against the 11 accused persons i.e. the present appellants under Sections 376(2)(g), 324, 366, 379, 411 and 506 of the I.P.C. The trial that followed ended in conviction and the learned Additional Sessions Judge imposed sentence on them which has already been mentioned above.
4. The prosecution in order to prove its case examined 15 witnesses in all namely, P.W. 1 the victim girl, P.W. 2 Dr. P. Banerjee, P.W. 3 Lt. P. Sumod (informant), P.W. 4 Capt. Amit Kumar, P.W. 5 Bir Bahadur Thepu, P.W. 6 Indra Kumar Magor, P.W. 7 Smt. Fabiala Tirkey, P.W. 8 Bablu Tirkey, P.W. 9 Lt. Col. S.K. Saha, P.W. 10 LNK, Debapriya Bose, P.W. 11 Lt. Col. D.N. Kanar (Army Medical Officer), P.W. 12 Dr. A.K. Chakarborty (Medical Officer of Government Hospital), P.W. 13 Bhaskar Bhattacharya (Judicial Magistrate), P.W. 14 A.S.I. Urgen Tamang and P.W. 15 S.I.S. Halder, the Investigating Officer (in short I. O.).
5. On behalf of the accused persons one witness was examined namely, D.W. 1 Anil Lakra, one of the accused persons.
6. Out of the aforesaid 15 witnesses evidence of the victim (P.W. 1), the informant (P.W. 3), the Medical Officers (P.W. 11 and P.W. 12) are important. Besides that, evidence of P.W. 4 Capt. Amit Kumar, P: W. 9 Lt. Col. S.K. Saha, P.W. 10 LNK. Debapriya Bose and P.W. 15 S.I.S. Halder, the I.O. are important and the prosecution case rests on the evidence of these witnesses.
7. Evidence of P.W. 2 Dr. P. Banerjee is not important for the prosecution case as he stated about ossification test examination and report of one accused Rakesh Uraon to show his age on the date of such examination. P.W. 5 Bir Bahadur Thepu, P.W. 6 Indra Kumar Magor, P.W. 7 Smt. Fabiala Tirkey, P.W. 8 Bablu Tirkey are the post-occurrence witnesses and out of these four witnesses, P.W. 7 and P.W. 8 are witnesses of seizure and recovery of stolen articles from the possession of accused Anil Lakra and Jit Bahan Uraon. P.W. 7 and P.W. 8 while giving evidence in Court did not fully corroborate their statements made before the I. O. recorded under Section 161 of the Code and they were declared hostile witnesses. P.W. 13 Bhaskar Bhattacharjee is the Judicial Magistrate who held the T.I. Parade of the accused persons. P.W. 14 is an A.S.I. who received the written complaint forwarded by O.C. Banarhat P.S. and started Banarhat P.S. Case No. 59, dated 29-7-01.
8. P.W. 1 is the victim who stated in her evidence that on 28-7-01 she accompanied by her boy friend P. Sumod (P.W. 3) went towards Telipara Bridge on motor cycle. They sat on one side of the bridge and were gossiping amongst themselves. After sometime 6/7 boys came on the other side of the bridge and went away soon and sometimes thereafter again the said boys along with 6/7 more boys totalling 10/12 persons came to them and one of them, the gang leader, assaulted P.W. 3 and placed the knife on her neck. The leader of the miscreants told the other boys to take away her and one of the said miscreants called the main leader as Anil. P.W. 1 shouted for help when she was dragged away by 6/7 persons to the cross country field. Taking away her there, the said boys fell her on ground and tied her mouth by putting a piece of cloth. The miscreants removed her wearing apparels and two boys caught hold of her legs and one (the tallest boy) caught hold of her head and other 2 miscreants caught hold of her hands.
9. P.W. 1 further stated that the tallest person removed her jewelleries namely, one gold chain, bangles, one pair of gold earrings and the boy who caught hold of her hands removed her golden ring from finger. One of the boys put a chemical liquid on her nose to make her unconscious and another boy look away her wrist watch. Other 4 boys caught hold and surrounded P.W. 3 at Telipara Bridge.
10. P.W. 1 also stated that thereafter the gang leader Anil first sexually assaulted her and she tried to resist but Anil assaulted her with a knife on her fingers causing bleeding injuries on her both hands. First of all, the gang leader raped her and thereafter the other miscreants raped her one after another till she became unconscious. The gang leader Anil again raped her last of all. She could not move due to severe pains on her private parts and she was not in a position to speak or to open mouth. The boys were armed with knife, stick, iron rod, chemical liquid etc. in their possession. She was totally naked and could not move due to severe bleeding, pain and suffering. Sometimes thereafter regaining sense she put on her dresses and started moving towards the Telipara Bridge from where she was brought there by the miscreants. After sometime she found P.W. 3 along with other military personnel searching her and she approached towards them. P.W. 3 and other military personnel then took away her to Binnaguri Cantonment Military Hospital.
11. P.W. 1 stated in her evidence that she could not give details of the miscreants or their names at the hospital or to the Medical Officer of Military Hospital due to severe pain and sufferings. She was removed to Sadar Hospital thereafter. On 28-7-01 police of Banarhat P.S. came to Military Cantonment Hospital but due to her serious condition she could not give any statement. On 29-7-01 police again came to the Military Hospital but on that date also she could not give any statement due to severe pain and suffering. She stated that she could tell the police officer only that she was gang raped by 10/12 persons. Police seized her wearing apparels. She was examined by Medical Officer at Jalpaiguri Sadar Hospital. She also attended T.I. Parade at the correctional home at Jalpaiguri and in the T.I. Parade she identified most of the accused persons. She also identified all the 11 accused persons in Court during trial and specially identified Anil Lakra, Balbu Kujur as the person who snatched away her gold earrings and gold chain and James Uraon as the person who put chemical liquid on her nose. She also identified 3 articles which were recovered from the possession of accused persons namely, one pair of gold earring, one gold finger ring and one wrist watch. She also gave statement to the learned Magistrate under Section 164 of the Code. She further stated that she could recognise the miscreants by the halogen light installed near Ammunition Point of the Army Cantonment from where she was taken away or abducted by the miscreants. She also stated that (lie Military Hospital Doctor who first treated her gave 13 stitches on her left hand and 2 stitches on her right finger.
12. Her cross-examination reveals that incident of rape on her occurred on a field covered with grass. It further transpires from her cross-examination that the distance between Telipara Bridge and the place of occurrence of rape is about 500/600 yards. She could not speak about the duration of gang rape on her by the miscreants. But in cross-examination she stated that accused persons removed her garments from her body and after regaining sense she found her garments on the ground. She denied the defence suggestion that she falsely implicated the accused persons in this case as her boy friend P. Sumod had some dispute with those boys.
13. P.W. 3, the informant-cum-friend of P.W. 1 fully corroborated the evidence of P.W. 1 relating to their going to Telipara Bridge on 28-7-01 and subsequent incident of forcibly taking away the victim (PW 1) by the miscreants and surrounding of him by 4/5 miscreants armed with weapons like 'dah', 'bhojali', 'rod' etc. He also stated that the miscreants called one Anil who was the leader of the group. His evidence reveals that one of the miscreants took away keys of his motor cycle and disappeared. Out of the boys who surrounded him, 3/4 boys left him and proceeded towards the direction where P.W. 1 was taken away by other boys. P.W. 3 could manage to run towards Ammunition Point and informed the guards there for help ad for recovery of P.W. 1. He also informed some M.E.S. family members for help. In the meantime one of the DSC personnel carrying rifle also came to them and they started towards the direction where the victim girl was taken away.
14. P.W. 3 thereafter, stated that after searching for 15/20 minutes they saw P.W. 1 coming towards them in a staggering manner and on seeing her they rushed towards her and saw that both of her hands were bleeding and her dresses were stained with blood and P.W. 1 was crying. He enquired from P.W. 1 as to what happened as well as whereabouts of the culprits and she narrated to him than she was gang raped. P.W. 3 stated that she was not in a position to speak because of her severe pain and suffering and told that she was not in a position to move and thereafter they carried away P.W. 1 towards Ammunition Point. On reaching there they came to know that one vehicle was ready for searching and thereafter Capt. Anil Kumar took away the victim girl to 164 Military Hospital for treatment. P.W. 3 reported the matter to his Superior Officer and the D.M.O. on duty. Few hours later Banarhat Police came to the Military Hospital at about 1.00 a.m. (night) and he handed over the written FIR to the police at the said hospital which was a typed complaint and was typed as per his dictation at his office. The written complaint or FIR was marked as Ext. 4.
15. P.W. 3 further stated that he attended the T.I. Parade conducted in jail by the learned Judicial Magistrate and he identified 8 accused persons in the T.I. Parade namely, Anil Lakra, Raju Tirkey, Jit Bahan Uraon, Jagu Lakra, Siu Kumar Bara, Etowa Tirkey, Rakesh Uraon, Bablu Kujur and Ramesh Kujur. He also identified the said 8 accused persons in Court during trial.
16. The cross-examination of P.W. 3 reveals that Ammunition Point is an important point and some guards are posted there for duty 3 gates of the Cantonment are manned by Cantonment authority but there are other gates which are not manned by the authority. He admitted that in the FIR he did not mention that 6/7 persons attacked the victim and he also did not mention that P.W. 1 narrated the incident of gang rape to him. His evidence reveals that around 7.15/7.30 p.m. the victim was taken away by the miscreants from the Telipara Bridge. He did not visit Banarhat P.S. but military police informed the local police. He denied the defence suggestion that at Telipara Market he purchased some articles from the shop of Ajit Uraon in the presence of accused Anil Lakra and as he did not pay the price of the purchased articles there was an altercation between the shop keeper Ajit Uraon and his 'bhagna' Anil Lakra. He also denied the defence suggestion that during altercation he slapped 2 persons of the locality as a result of which the surrounding people became annoyed upon him and thereafter he left shop of Ajit Uraon on his motor cycle and thereafter he accompanied by 2 guards came to teach the tea garden labourers. He also denied the defence suggestion that the surrounding people threatened them and the said people lodged complaint against him for his conduct before his superior authority. He denied the defence suggestion that he falsely implicated the accused person in this case in collusion with P.W. 1.
17. P.W. 4 Capt. Amit Kumar in his evidence stated that on 28-7-01 at about 8.30/ 9.00 p.m. he received a telephonic message at his residence that one Officer came to the Ammunition Point gate for help as a lady who was with him was picked up by civil men. On getting such information he started for Ammunition Point where he enquired about the matter from J.C.O. who told him that 2 DSC personnel with arm were sent with the said Officer for searching. Considering the gravity of the situation he along with 4 armed military personnel in a vehicle moved towards Kalu nallah road where the incident had occurred as reported to him. At kalu nallah bridge he found a motor cycle but no person was there. Thereafter, they proceeded towards cross country village and there also they did not find any person. On the way back to Ammunition Point he ordered 2 military personnel to bring the motor cycle to the Ammunition Point. They found gathering of both civil and military personnel at the Ammunition Point and there he found P.W. 3 and one girl (P.W. 1) who was crying. He found that the said girl was badly injured and he detected blood on her wearing apparels, face and hands.
17. P.W. 4 stated that seeing the condition of the victim girl, he decided to bring the said girl to the Military Hospital for treatment and with the help of P.W. 3 carried the victim girl towards Military Hospital and handed over the victim to the Medical Officer. He could not speak to the victim girl due to her severe condition and moreover as she was not in a position to speak. After reaching the hospital he enquired about the incident from P.W. 3 who narrated about incident of gang rape by the miscreants on the victim girl. His cross-examination reveals that he saw the victim girl first at Ammunition Point and her garments were rubbed with mud. He stated that he was not interrogated by Banarhat P.S. in connection with the case. He denied the defence suggestion that P.W. 3 did not inform him about gang rape on the victim.
18. Evidence of P.W. 5 and P.W. 6 reveals that on 28-7-01 at about 8 p.m. P.W. 3 came to them for help as the victim was taken away by 10/12 tribal boys. They accompanied by P.W. 3 went to the northern side of the bridge when they found that victim was coming towards them and she was injured. The victim was brought to Ammunition Point and in halogen light they saw stains of blood on her dress and there was bleeding from her hands. P.W. 4 brought a military vehicle at that time and the victim girl was taken to the Military Hospital. P.W. 7 and P.W. 8 are witnesses of seizure and we have already mentioned that they were declared hostile witnesses as they did not fully corroborate the prosecution case relating to their statements recorded under Section 161 of the Code by the I.O.
20. P.W. 9 stated that on 28-7-01 at about 10 p.m. he received a telephone from the duty Medical Officer, 164 Medical Hospital to the effect that a girl was raped. Receiving the said information he went to the said Military Hospital and from the duty Medical Officer learnt that the said victim girl went to Telipara Bridge accompanied by P.W. 3 wherefrom the victim was abducted by some miscreants and she was raped. P.W.9 thereafter spoke to P.W. 3 and learnt about the entire incident from P.W. 3 and corroborated the evidence of P.W. 1 and P.W.3 relating to the incident of rape on P.W. 1. His evidence reveals that P.W. 1 at that time could not give details of the incident as she was mentally shocked and perplexed. He informed the matter to Banarhat P.S. through LNK. D.P. Bose (PW 10). Thereafter O.C. Banarhat P.S. with force came to the said Military Hospital and the Police Officer talked with the P.W. 3.
21. P.W. 9 also stated that the victim stated to him that after playing badminton she along with P.W. 3 went to Telipara Bridge side and when they were talking the miscreants appeared and surrounded both of them. Showing a knife they forcibly abducted the victim girl and she was taken to the nallah in the darkness and thereafter she was raped by 11/12 miscreants. This portion of evidence as we find remains uncorroborated as P.W. 1 in her evidence did not state that in the Military Hospital she reported the incident to P.W. 9.
22. P.W. 10 LNK. D.P. Bose in his evidence stated that on 28-7-01 he was attached to Binnaguri Army Cantonment at C/O 99 A. P. O. On that date at about 10.45 p.m. he received a direction from P.W. 9 Lt. Col. S.K. Saha to the effect that daughter of a military personnel of the said Cantonment was raped and P.W. 9 asked him to inform Banarhat P.S. He stated that he informed the Banarhat P.S. and thereafter came back to the Cantonment Hospital along with Banarhat Police Officers. His cross-examination reveals that he gave verbal information at Banarhat P.S. though P.W. 9 asked him to file a written complaint. Evidence of P.W. 15, the I.O., supports this portion of evidence of P.W. 10 as the I.O. in his evidence stated that one D.P. Bose, LNK. called at the P.S. on 28-7-01 at night and verbally reported that an Incident of rape of girl took place in the same evening.
23. P.W. 11 is the doctor of Military Hospital of Binnaguri Army Cantonment. He in his evidence stated that on 28-7-01 at about 9.15 p.m. the victim girl was brought by Capt. Amit Kumar and Lt. Col. P. Sumod to the hospital. The victim was brought before him on the lap of P.W. 4 in a military vehicle and P.W. 3 was following them. He found bleeding injuries on both hands of the victim and her garments were stained with blood. He called lady attendant and started to examine her. He tried to ascertain the history from the victim but she could not speak. P.W. 4 and P.W. 3 told him that the victim was sexually assaulted by some villagers of Telipara general area. On examination of the victim he found the following injuries on her person:
1. Left hand:
a) one lacerated wound 2 cm in index left finger.
b) two lacerated wounds 2 cm in middle finger.
c) two lacerated wounds 2 cm each in the ring fingers.
2. On right hand:
a) one lacerated wound 1 cm on the right finger.
3. On the left arm : Bruise mark 3 cm x 4 cm in mid arm.
4. On the right forearm : small bruises over right forearm.
24. P.W. 11 stated that the victim was looking very depressed. He stated that his diagnosis was multiple injuries with alleged sexual assault with psychological shock. He stated that he did not examine the private parts of the victim girl as it was supposed to be done by Civil Medical Officer. The knife which was seized was shown to P.W. 10 and he stated that the injuries found on the person of the victim may be caused by the said sharp cutting weapon like that knife which was marked material Ext. V.
25. In cross-examination he stated that in his medical report he did not mention that P.W. 4 reported to him that the victim girl was raped by some miscreants. His evidence reveals that police came to the hospital in the same night. In cross-examination he admitted that he did not give his opinion whether the victim girl was raped or not and he only wrote that she was allegedly sexually assaulted.
26. P.W. 12 is the Medical Officer who was attached to the Jalpaiguri Sadar Hospital at the relevant time. His evidence reveals that on 29-7-01 he examined the victim girl and found that there were Injuries over the left thumb, left Index, left middle and left ring fingers. There was also injury over right ring finger. All the Injuries were stitched and bandaged.
27. He also found a bite mark over the anterior aspect of left mid-arm. The area was congested and bruised (1" x 1"). He did not find any external injury over the medial aspect of both thighs, perineum or over the breast and lips.
28. P.W. 12 found hymen of the victim was ruptured, vagina admits one finger easily which is painful. Fuarelulbe and lower part of the posterior vaginal wall is congested. There Is no evidence of recent injury of the hymen.
29. His evidence reveals that the victim stated to him that she was coming back from outside at about 7.30 p.m. when she was attacked and sexually assaulted by 12 persons and the occurrence took place at Telipara at about 7.30 p.m. on 28-7-01. He further stated that the Injuries as found by him on the person of the victim girl may be caused if the hands and legs of a woman are tied and thereafter if penetration is committed. In cross-examination the said doctor stated that vaginal wall and lower part were congested and according to the said doctor these are the evidence of sexual assault though total penetration was not possible, if resistance was offered by the victim. Me stated that there were several marks of violence on the body of the victim and he also stated that injuries found by him on the person of the victim may not be self-inflicted. He further strengthened his evidence on this point in cross-examination by saying that there is no little chance of saying that the injuries were self-inflicted.
30. P.W. 13 is the Judicial Magistrate who recorded statements of victim and P.W. 3 under Section 164 of the Code. The said learned Magistrate also held T.I. Parade of 11 accused persons inside the District Central Correctional Home, Jalpaiguri on 10-8-01. Evidence of the learned Magistrate reveals that the T.I. Parade was conducted in respect of 11 accused persons and 2 witnesses came to identify the suspects namely the victim and P.W. 3. The victim identified 9 suspects out of 11 suspects in the T.I. Parade and they were Etowa Tirkey, Anil Lakra, Rakesh Uraon, Bablu Kujur, Jit Mahan Uraon and Raju Tirkey. It is thus clear that though the learned Magistrate stated that the victim identified 9 suspects out of the 11 suspects placed in the T.I. Parade but in fact, the T.I. Parade report and the evidence of P.W. 13 reveals that victim identified those accused persons as mentioned in the report and evidence of P.W. 13.
31. P.W. 3 P. Sumod in the T.I. Parade identified the accused Raju Tirkey, Jogu Lakra, Anil Lakra, James Uraon, Jit Bahan LJraon, Etowa Tirkey, Rakesh Uraon and Siu Kumar Bara. It appears that P.W. 3 identified 8 accused persons in the T.I. Parade and P.W. 3 in his evidence also stated that he identified 8 suspects or the accused persons in the T.I. Parade.
32. P.W. 15, the I.O. in his evidence stated that on 28-7-01 at about 10.45 p.m. one D.P. Bose, LNK. called at the P.S. and verbally reported that an incident of rape of a girl took place in the same evening. The said LNK did not give name of any suspect. He diarised the matter by recording G.D. Entry at the police station and thereafter accompanied by force left for Binnaguri Army Cantonment Hospital at 11.30 p.m. Coming at the said Military Hospital he found that victim girl was lying in the sick bed. He tried to interrogate the victim but she was unable to make any statement due to her severe pains and sufferings. The victim only gave a short history regarding rape on her and disclosed that Anil Lakra was the gang leader of the offence of rape.
33. His evidence further reveals that he received the written complaint or FIR from P.W. 3 at the Army Hospital and he forwarded the FIR to Banarhat P.S. for starting a case. During investigation, he visited Telipara Bridge, the place of occurrence and he also conducted search of the suspect Anil Lakra and arrested Anil Lakra and Jit Bahan Uraon on 29-7-01. He came to the Army Hospital again later on and forwarded the victim girl to the Sadar Hospital for her medical examination.
34. His evidence reveals that subsequently he arrested 5 more accused persons and submitted a prayer before the learned Magistrate for holding T. I. Parade. He also recorded statement of accused Anil Lakra and Jit Bahan Uraon which are Exts. 23 and 24 respectively. His evidence reveals that as per statement of Anil Lakra one knife of 18 inches in length was recovered from his house which was seized by him preparing a seizure list on 5-8-01. On the same day he seized 2 pieces of gold ear-rings and one ladies wrist watch being produced by accused Jit Bahan Uraon. He also seized the wearing apparels of the victim and the wearing apparels of the accused persons arrested. He sent the wearing apparels, vaginal swab of the victim to FSL for examination and received chemical report.
35. His cross-examination reveals that the place of occurrence where the incident of rape was committed was Telipara garden river bed and it was a dry river. The victim was raped about 500/600 meters from Telipara Bridge culvert towards north direction. His evidence reveals that Binnaguri Cantonment is at a distance of 200 meters away where the victim and P.W. 3 were talking on the Telipara Bridge. He did not seize any article from place of occurrence. The G.D. which was recorded in the G. D. Book on the basis of information of LNK. D.P. Bose was not produced in Court. He submitted that the reference in the G.D. Entry has been mentioned in the case diary and it was Banarhat P.S. G. D. Entry No. 1158, dated 28-7-01 at 10.45 p.m. At place of occurrence he did not notice blood-stained earth. His evidence reveals that the place of occurrence where the rape was committed is popularly known as cross country field. He recorded the statement of the victim girl on 29-7'-0) at about 1 p.m. at Binnaguri Army Cantonment Hospital and victim was semi-unconscious while she gave the statement, to him.
36. Mr. Joymalya Bagchi, the learned Advocate for the appellants submitted that out of the 11 accused persons, 2 accused persons were not identified in the T.I. Parade namely, Ramesh Kujur and Radha Bara. He submitted that these 2 accused persons who were not identified in the T.I. Parade, but identified in Court by the victim, cannot be convicted as these two appellants were not known to the victim earlier, failure to identify the appellants soon after occurrence and subsequent identification in Court about one year later should raise doubt about her identification of these 2 appellants in Court. The learned trial Court did not consider this aspect and accordingly the conviction of Ramesh Kujur and Radha Bara should be set aside.
37. Mr. Bagchi further submitted that the FIR is hit by Section 162 of the Code as before lodging of FIR, information was given at Army Headquarters and the matter was entered there in a general diary. Not only that, by the order of P.W. 9 Lt. Col. S.K. Saha, P.W. 10 LNK. D.P. Bose went to Banarhat P.S. for giving information of the incident and on the basis of information given by P.W. 10 one general diary was recorded at Banarhat P.S. The said general diary was not produced in Court. The general diary of Banarhat P.S. or the information at Army Headquarter is the real FIR and the FIR lodged by P.W. 3 which was marked as Ext. 4 cannot be the real FIR. Mr. Bagchi contended that best evidence was withheld and genesis of the entire prosecution case was withered away due to non-production of general diary and papers of Military Hospital. Adverse presumption under Section 114(g) of the Evidence Act should be drawn against prosecution for non-production of general diary which was the real FIR.
38. We are not at all convinced with the submission of Mr. Bagchi that adverse presumption under Section 114(g) of the Evidence Act should be drawn against the prosecution for withholding the general diary which was the real FIR and which was the best evidence. The submission of Mr. Bagchi relating to non-production of papers of Army Medical Hospital also fails to impress us. We find no foundation in the submission of Mr. Bagchi that genesis of entire prosecution case is withered away and best evidence is withheld due to non-production of flit general diary and papers of hospital of the Army Cantonment.
39. After scrutinising the evidence of P.W. 9, P.W. 10 and P.W. 15 we find that alter receiving information of rape of a girl, P.W. 9 sent Debapriya Bose to give information to the police station. Evidence of P.W. 10 reveals that by the order of P.W. 9 he went to Banarhat P.S. and verbally gave information of rape of a girl of their Cantonment. His evidence reveals that he only gave a preliminary information of rape to Banarhat P.S. Evidence of I.O. (P.W. 15) reveals that on 28-7-2001 at about 10.45 p.m. Debapriya Bose (P.W. 10) came to the police station and verbally reported about an incident of rape of a girl which took place at evening on that date. He recorded the said fact in a general diary and his evidence reveals that D.P. Bose did not give name of any suspect. The evidence thus reveals that only a vague information was given at the police station about rape of a girl of Binnaguri Military Cantonment and in the information no name of accused was mentioned. It reveals also that even name of the victim was not mentioned in the said information and the recording of general diary on the basis of such information was without name of victim. A general diary which is to some extent vague and cryptic and does not disclose either the name of the victim or the name of any accused and details of the incident cannot be regarded as the best evidence or real FIR. Our clear view is that the FIR is not hit by the provisions of Section 162 of the Code nor the prosecution withheld the best evidence, and being so, question of drawing adverse presumption under Section 114(g) of the Evidence Act does not arise.
40. In this connection we place reliance on Thaman Kumar v. State of Union Territory of Chandigarh reported in 2003 AIR SCW 2837 : 2003 Cri LJ 3070. In the said reported case one telephonic message was given by the Constable on night patrol duty to the police station. The Constable only mentioned that three persons assaulted deceased and made request for sending police force. It was held by the Supreme Court that the said information is not an FIR of incident and it was merely an entry made regarding departure of police personnel to place of occurrence. It was further held that non-mention of names of assailants in this entry is not fatal. In Tapinder Singh v. State of Punjab it was held that the question whether information or telephonic message can constitute FIR has to be decided with reference to the facts in each case. In the present matter before us, P.W. 10 just gave an information verbally about rape on a girl and nothing more. Relying on the aforesaid decisions we find that the said information given by P.W. 10 cannot be regarded as FIR and the said information was given for the Police Officers to go to the place of occurrence to work out the information and to start investigation.
41. Mr. Bagchi further submitted that there is serious contradiction relating to narration of incident of rape by P.W. 1 to P.W. 3 and P.W. 4. P.W. 1 in her evidence did not state at all that she reported to P.W. 3 and P.W. 4 that she was raped by the miscreants. But P.W. 3 in his evidence stated that from the victim he learnt that she had been gang raped. P.W. 4 in his evidence stated that on reaching hospital he enquired of the incident from P.W. 3 who narrated about the incident of gang rape by the miscreants on the victim. P.W. 3 in his evidence did not state that he narrated the incident of gang rape of victim by the miscreants to P.W. 4. In FIR lodged by P.W. 3 it was mentioned that after the victim was taken to the Military Hospital he in front of other officers learnt at the hospital that the victim was gang raped. Relying on such contradictions Mr. Bagchi submitted that prosecution story was not established as the contradictions are very vital and material and when evidence of P.W. 1 does not show that she narrated the incident to anybody regarding gang rape on her, the prosecution failed to establish its story and no reliance can be placed on the evidence of main prosecution witnesses namely P.W. 1, P.W. 3 and P.W. 4.
42. We are not at all convinced with the submissions of Mr. Bagchi and in our opinion the aforesaid contradictions pointed by him are not at all vital or material contradictions. We cannot ignore the entire facts and circumstances. Even if P.W. 1 in her evidence did not state specifically that she told P.W. 3 that she was gang raped by 10/ 12 persons, the entire facts and circumstances clearly leads to the irresistible conclusion that she was raped by the miscreants. Had it not been so, why 4 miscreants prevented P.W. 3 from moving to a certain direction when they surrounded him armed with weapon and, why the 7/8 other miscreants took away P.W. 1 against her will towards the cross country field in the darkness and why 30/40 minutes after P.W. 1 was found coming towards Telipara Bridge with injured condition and with bleeding on her hands and stains of blood on her dresses. If nothing was happened on her caused by the miscreants why she would cry. The circumstances clearly point out actually what had happened on that night and the injury of P.W. 1, her cry, her movement slowly with pain clearly establishes that unless she was raped she could not have cried at that time and as she offered resistance the miscreants caused cut injury on her person with big knife. From the entire scenario it can easily be understood that she was raped even if P.W. 1 at that time specifically did not state to P.W. 3 that she was raped. From the facts and circumstances it can easily be sensed, perceived as to what fate P.W. 1 received by the act of those miscreants. The law does not prescribe that a young virgin woman would call everybody and would loudly tell the witnesses and neighbours that she was gang raped by certain persons. Whether P.W. 1 stated to P.W. 3 about gang rape on her or whether she for the first time disclosed about gang rape on her at Military Hospital is of no consequence and in our opinion this discrepancy is not vital or material. Similarly, whether P.W. 4 heard the incident of rape on P.W. 1 from P.W. 3 or from the doctors of the Military Hospital and not from P.W. 1 or from P.W. 3 are not at all vital and serious contradictions.
43. From the evidence of P.W. 1, P.W.3, P.W. 4, P.W. 11 and P.W. 12 it is well established that P.W. 1 was forcibly taken away by the miscreants and thereafter she was raped by the miscreants. In our opinion, the contradictions as pointed out by Mr. Bagchi are not at all vital and serious contradictions and the said contradictions are minor and ignorable and such contradictions have not ruined the prosecution case and have not thrown the prosecution case out of Court. It is well settled that contradictions which are minor and do not affect the prosecution case and fatal to the prosecution case should be ignored. We place our reliance on Krishnan v. State, represented by Inspector of Police State of M.P. v. Dayal Sahu 2005 SCC (Cri) 1988 : 2005 Cri LJ 4375 and Murlidhar v. State of Rajasthan (2006) 1 SCC (Cri) 86 : 2005 Cri LJ 2608 and in these decisions the Supreme Court laid down the law clearly by observing that minor discrepancies are expected from truthful witnesses and discrepancies which are not vital or material should be ignored.
44. Mr. Bagchi also submitted that Army Medical Officer was not examined and no paper of the Army Medical Hospital was produced before the trial Court by the prosecution to establish its case that the victim was first produced at the Army Medical Hospital and there she was treated by Doctor of Army Hospital. We find no substance at all in this submission and perusing the materials on record we find that P.W. 11 Lt. Col. D.N. Kanar is the doctor of the Army Hospital and his evidence reveals that on 28-7-2001 at about 9.15 p.m. the victim was brought to the said hospital by P.W. 3 and P.W. 4. His evidence reveals that at that time the victim could not speak anything to him, but from P.W. 3 and P.W. 4 he learnt that the victim girl was sexually assaulted by some villagers of Telipara general area. He found lacerated injuries on the left hand fingers of P.W. 1 and bruise mark on her left arm and also found lacerated injury on the right ring finger and the small bruise on the right forearm. His evidence reveals that he recorded the history in the Military Hospital papers and also prepared a medico-legal report which is Ext. 15. His evidence reveals that in the Medical Hospital record dated 28-7-2001 at page 187 he mentioned the history of the patient and the injuries which he described as the medico-legal report and he produced a certified xerox copy of the said report in Court as according to military rules the papers of Military Hospital cannot be sent outside. His further evidence reveals that on the left side of page 187 he wrote the medical report and his evidence reveals that it is the common practice in Military Hospital that details of the patient is to be written on the left side and the case history is to be written on the right side of the-register.
45. Mr. Bagchi thereafter submitted that till 1.00 p.m. of 29-7-2001 there was no evidence of rape and P.W. 1 did not speak to anybody about rape and not even to P.W. 3 and P.W. 4. The evidence of doctor of Jalpaiguri Sadar Hospital i.e. P.W. 12 negatives the prosecution case and if his evidence is construed properly it would reveal that prosecution story of gang rape on P.W. 1 is totally baseless. The doctor (P.W. 12) did not find any external injury on the thigh. perineum and over the breasts and lips of the victim. The doctor did not find any evidence of recent injury on the hymen of victim. The doctor stated that hymen of victim was ruptured but his evidence of not finding recent injury of hymen reveals that there was no such story of rape on her and P.W. 1 and P.W. 3 totally exaggerated the matter.
46. After carefully scrutinising the evidence of the doctors as well as the evidence of P.W. 1 and other witnesses we are unable to agree with the submission of Mr. Bagchi. Evidence of P.W. 1 reveals that as she was feeling serious pain and sufferings she could not speak anything to the doctor of Military Hospital. But she stated that she stated to police about gang rape by 10/12 persons. Evidence of P.W. 15, the I.O., reveals that he came to Binnaguri Army Hospital at 11.30 p.m. on 28-7-2001 and the victim only gave a short history of rape on her and also disclosed that Anil Lakra was the gang leader of the incident. The evidence of P.W. 1 thus gets full corroboration by P.W. 15 and, therefore, the submission of Mr. Bagchi that before 1.00 p.m. of 29-7-2001 there was no story of rape is unacceptable to us. We have already indicated that the circumstances cannot be ignored and even if the victim did not speak of rape on her to either P.W. 3 or P.W. 4, the totality of evidence and circumstances clearly lead to the conclusion that after she was forcibly taken away by the miscreants she was raped and after she became unconscious she was left by the miscreants, and thereafter, regaining sense with severe pain on her private part and sufferings due to cut injuries she somehow could move towards the same direction from where she was taken away and there on the way she was rescued by P.W. 3 and other military personnel and was brought to Military Hospital. The miscreants did not forcibly take away P.W. 1 to cross country field to adore her by offering floral tribute.
47. Let us now enter into the discussion whether evidence of P.W. 12 totally ousts the prosecution story of rape on the victim.
48. We have earlier discussed the evidence of P.W. 12 in detail. After examining the private parts of the victim the Medical Officer (P.W. 12) opined that the injuries as he found are the evidence of sexual assault though total penetration was not possible, if resistance was offered by the victim. We cannot ignore the fact that the victim was a daughter of Lt. Col. and she would definitely not submit to the desire of the miscreants and would give strong resistance according to capacity of her body power, and in fact, in the present case that happened. Evidence of P W. 1 reveals that when she resisted, the gang leader struck her on her hands with a big knife. After going through the evidence of P.W. 12 as well as evidence of P.W. 1 we can come to the conclusion that there was no total penetration of the male organ of the miscreants into the female genital of the victim.
49. Rape has been defined in Section 375 of the I.P.C. In Sakshi v. Union of India it was held by the Supreme Court that the definition of 'rape' cannot be enlarged to include all forms of penetration, but is restricted only to cases of penile-vaginal penetration. Only sexual Intercourse, namely, heterosexual intercourse involving penetration of the vagina by penis coupled with the explanation that slightest penetration of the body of female by the sexual organ of the male is sufficient to constitute the element of the crime of rape.
50. In Madan Gopal Kakkad v. Naval Dubey it was held by the Supreme Court that even slightest penetration of penis into vagina without rupturing the hymen would constitute rape. The medical report given by P.W. 12 (Ext. 17) shows admission of one finger Into vagina which is painful, fuarelulbe and congestion of lower part of the posterior vaginal wall and it clearly establishes that there was penetration of male organ of at least one miscreant if not more Into the vagina of the victim and medical evidence coupled with evidence of P.W. 1 clearly establishes rape in the instant case.
51. The Supreme Court in State of M.P. v. Babbu Barkare alias Dalap Singh observed that, "In the crime of rape, 'carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's "Criminal Law" 9th Ed. P. 262). In 'Encyclopaedia of Crime and Justice' (Volume 4, page 1356) 4t is stated "...even slight penetration is sufficient and emission is unnecessary." In Halsbury's Statutes of England and Wales (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private peraon of a woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order."
52. The law is crystal clear that even slightest degree of penetration of the male organ into the female private organ, that is, vagina would constitute rape and emission of semen is not necessary. Considering the nature of evidence of P.W. 1, the evidence of doctor (P.W. 12) and the medical report marked as Ext. 17 we find that from the oral and medical evidence it has clearly been established that there was penetration of male organ into the vagina of the victim. We are clearly of the view that all the 11 accused persons could not commit rape on the victim by fully penetrating their male organs into the vagina of the victim. If all the 11 accused persons were able to complete sexual intercourse on the victim, injury in her private part would have been more vigorous and more violent and there would have been excessive bleeding and her life would have been in danger. In the present case before us injuries of victim in her private part were not so violent and grievous so as to prove rape by all the accused persons on her. It has been established beyond all reasonable doubts that there was penetration of the male organ into her vagina at least by I or 2 accused and, that is why, such injury as mentioned above in Exhibit 17 were found In the private part of the victim. In this connection we cannot ignore Ext. 26, the FSL report regarding vaginal swab of the victim which bears great significance. Ext. 26 establishes that during chemical examination 'spermatozoa' was found in the vaginal swab. The word 'spermatozoa' means the mature motile male sex cell by which the ovum is fertilised. It establishes that there was emission from male organ into the private parts of the victim and for this reason during FSL, examination of the vaginal swab of the victim 'spermatozoa' was found. This piece of evidence further strengthens the prosecution case that the victim was subjected to rape.
53. In a case of rape if the evidence of the victim is reliable and trustworthy absence of medical evidence is not fatal and, if the Court finds that sole evidence of the victim is reliable and trustworthy conviction can be based on such evidence, though such evidence was not corroborated or supported by medical evidence. The Supreme Court in State of M.P. v. Dayal Sahu 2005 Cri LJ 4375 (supra) observed that, "Once the statement of prosecutrix inspires confidence and accepted by the Courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non-production of doctor's report would not cause fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence."
54. The evidence of P.W. 1 clearly proves that the gang leader Anil Lakra first raped her and thereafter other persons committed rape on her one after another till she became unconscious. She further stated that the gang leader Anil again lastly raped her. We have already indicated earlier that injuries found on the vagina of the victim do not prove rape by all 11 accused persons, but it has been established that there was penetration of the male organ into her female private part and there is no doubt at all that leader of the group of accused namely Anil Lakra first raped her. It might be that the victim who never had such tragic experience and who sustained the cut injuries on fingers of her both hands caused by Anil Lakra when she resisted, became faint and unconscious out of shock and that is why she stated that accused-Anil Lakra raped her first and again the said accused raped her last. The totality of evidence including the medical evidence clearly proves that leader of the miscreants namely Anil Lakra raped her and there was penetration of his male organ into the private parts of the victim but due to the resistance given by the victim he could not fully commit sexual intercourse on the victim. For this reason the Medical Officer found only congestion in the lower part of the posterior vaginal wall of the victim.
55. It may be a question whether P.W. 1 is a trustworthy witness as she stated about rape on her by 11 appellants though medical report does not support rape on her by 11 persons. In her statement recorded under Section 164 of the Code (Exts. 2/6) she stated that the leader of the group committed rape on her first and thereafter each and every culprit raped her 2/3 times one by one and the main leader committed rape upon her 4 times. If the appellants committed rape on her in such manner as stated by her in her Section 164 statement the injuries would have been very serious and there would have been excessive bleeding and her chance of survival would have been remote. It appears to us on consideration of the entire evidence that as it was her first such tragic experience she was under tremendous shock and was almost in semi-unconscious stage, and for this reason she could not understood as to how many persons actually raped her. In our opinion the principle "falsus in uno falsus in omnibus" is not applicable in the present matter as the view of the Supreme Court is that this principle does not apply in criminal trials. It is the duty of the Court to separate the grain from the chaff instead of rejecting the prosecution case on general grounds (Bhe Ram v. State of Haryana . If we pick up the essence of evidence from her statement it would make it clear that as she never had the experience of such tragic incident she could not follow and understand during such suffering and semi-unconscious state that how many persons actually raped her. The exaggeration as we find in her statement recorded under Section 164 of the Code and also in her statement to some extent in Court does not make her evidence untrustworthy and unreliable. Her evidence has been fully corroborated by medical evidence and the medical report (Ext. 17) proves that she was raped. Considering the entire evidence and circumstances we are of opinion that evidence of P.W. 1 herself is sufficient to prove the prosecution case and there is no ground to reject her evidence and to throw the prosecution case out of Court.
56. After carefully perusing the evidence of main witnesses for prosecution, that is, P.W. 1, P.W. 3, P.W. 4, P.W. 9, P.W. 10, P.W. 11, P.W. 12 and P.W. 15 we find no defect, incongruity or inconsistency in their evidence which can impair value of their evidence and can made the prosecution unreliable. We find that they are reliable and trustworthy witnesses and there was no serious defect or error in their cross-examination, and accordingly we find no ground at all to discard or reject their evidence. The law is now well settled that sole evidence of prosecutrix, if her evidence found by the Court reliable and trustworthy, can be basis of conviction. In several decisions the Supreme Court has held that in a case of rape evidence of the victim does not require corroboration if the Court finds that evidence of the victim is reliable and trustworthy Bhupinder Sharma v. State of Himachal Pradesh 2003 AIR SCW 5493 : 2004 Cri LJ 1; State of Maharashtra v. Chandra Prakaah Kewalchand Jain ; State of M.P. v. Dayal Sahu 2005 Cri LJ 4375 (supra).
57. The physical injury of the victim might have been cured but the mental scar received by her on such incident will always remain in her mind. When a woman is ravished, it inflicts not only physical injury to her but it also causes a deep sense of shame to her. Why the victim being young unmarried daughter of a Lt. Col. would unnecessarily implicate the appellants when such an Incident would cast a stigma on her. It is inconceivable that an unmarried daughter of a Military Officer would go to the extent of staking her reputation and future in order to falsely set up a case of rape on her for the sake of false accusation at the instance of her boy friend P.W. 3. Considering the entire evidence we are of opinion that evidence of P.W. 1 itself is sufficient to prove the guilt of the appellants.
58. Now the question is whether the other 10 accused persons can be held guilty under Section 376(2)(g) of the I.P.C. In this connection it would be profitable to quote the definition of gang rape' as defined in Section 376(2)(g) of the I.P.C. The said section runs as follows:
376(1)...
(2) Whoever.-
(a) to (f)...
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the Judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.-Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. (Emphasis supplied by us)
59. In order to prove 'gang rape' it is not necessary that the prosecution must establish in Court by adducing evidence that each and every accused of the group committed rape or actual sexual intercourse with the victim. If one or more persons in a group forcibly takes away the victim and thereafter one of them commits rape on the victim, the others who did not actually commit sexual intercourse or rape on the victim would be guilty of 'gang rape.' In State of Rajasthan v. Ram Narajn the prosecution case was that the victim was abducted and raped by four persons, but the victim in Court stated that one accused only committed rape on her. The Supreme Court held that the said accused concerned is guilty under Section 376 and under Sections 366 and 342 all accused persons are liable to suffer imprisonment.
60. In Devendra Das v. State reported in 1999 Cri LJ 4805, the accused persons were alleged to have raped the victim girl of minor age and evidence showed that when one was committing the rape the other accused persons caught hold of her hands and they had kept the girl confined in a house from where she was recovered and accused persons were arrested. The plea of two accused persons that they had not committed the rape was not accepted as in gang rape cases, all are guilty even if some of them did not commit rape at all.
61. In Pramod Mahto v. State of Bihar the prosecution case was that while accused numbers 6 to 16 stood outside the house, accused numbers 1 to 5 entered the house through the roof after dismantling a portion of it and thereafter accused Nos. 1 to 4 committed rape on the victims while accused No. 5 stood guard over them with a gun in his hands in order to overawe them and made them submit to the rape committed on them by accused Nos. 1 to 4. The trial Court convicted the accused Nos. 1 to 5 under Section 376(2)(g) of the I.P.C. which was affirmed in the High Court but the High Court reduced the sentence of accused No. 5. The matter went to the Supreme Court in an appeal preferred by the appellants and it was contended before the Supreme Court that all the accused persons did not commit rape on the victims. In that matter the Supreme Court observed that, "In so far as the last contention Is concerned, we found that the defence has not been able to explain how else P.W. 1 Jaiboon Nisa, an unmarried girl aged about 15 or 16 years, could have come to sustain the tell tale marks and injuries of rape on her persons as were found by P.W. 1 Dr. Abha Singh unless she had been raped by the appellants. Once it is established that the appellants had acted in concert and entered the house of the victims and thereafter raped P.W. 1 Jaiboon Nisa, then all of them would be guilty under Section 376, I.P.C. in terms of Explanation 1 to Clause (g) of Sub-section (2) of Section 376 of I.P.C. irrespective of whether she had been raped by one or more of them.... This explanation has been introduced by the Legislature with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convicted them under Section 376, I.P.C."
62. We like to place another decision in which same principle was laid down by the Supreme Court though factual matrix was to some extent different. In Moi Jullah v. State of Rajasthan there was a sex racekt and 4 accused persons using affluence were luring innocent school/college girls and forcibly raping and sexually exploiting them. It was found that out of the four accused, two accused actually committed rape and the third accused was making overtures to one of the victims and the fourth accused was the driver who was ferrying girls to and from the farm house where they were exploited. A plea was taken in the Supreme Court by the third and fourth accused that they were not guilty of rape as they did not actually commit rape on the victims. The Supreme Court turned down their plea and held that first two accused has to be convicted under Section 376 of the I.P.C. and the third and fourth accused under Sections 376/120-B of the I.P.C. In that case the trial Court convicted the appellants to suffer imprisonment for life but the Supreme Court reduced their sentence to 10 years' imprisonment. In this reported decision also the analogy given by the Supreme Court indicates that when a 'gang rape' is committed on victim/victims by more than one, each one of the accused is guilty under Section 376 read with Explanation 1, to Clause (g) of Sub-section (2) of the said section, even if, all accused actually did not commit rape on victim/victims.
63. The facts, circumstances, the oral evidence and the medical evidence in this case have beyond all reasonable doubts proved that victim was subjected to rape. Evidence of P.W. 1 gives us the picture how she was forcibly taken away to cross country field by 7/8 miscreants when 3/4 others stood at bridge to guard P.W. 3, later on those 3/4 miscreants also joined the group at cross country field where others carried away the victim. Her evidence reveals that 2 accused persons caught hold of her legs and one (tallest boy) caught hold of her head and 2 others caught hold her hands. One accused put chemical liquid on her nose and another accused took away her wrist watch and another accused removed her finger gold ring. The gang leader assaulted her with knife when she was resisting and another accused tied her neck with a cloth and thereafter the gang leader raped her. The evidence and circumstances clearly proves that all the appellants had acted in a concert and the group of the accused persons acted in furtherance of their common Intention to rape the victim. The prosecution has thus been able to prove beyond all reasonable doubt that all the appellants are guilty under Section 376 of I.P.C. in terms of Explanation 1 of Clause (g) of Sub-section (2) of Section 376 of I.P.C.
64. We are unable to accept the submission of Mr. Bagchi that identification of the appellants by P.W. 1 and P.W. 3 in Court cannot be accepted. We have found from evidence that there was a halogen light at Tellpara bridge when first of all 5/6 boys came and took seat on the opposite direction of the bridge where P.W. 1 and P.W. 3 were sitting. Subsequently, thereafter all the appellants came there and they surrounded P.W. 1 and P.W. 3. P.W. 1 and P.W. 3 had sufficient time to recognise the faces as well as physical features of the appellants in the halogen light when the appellants surrounded them. Rape is an act which inflicts not only physical injury to the victim but deep sense of shame on her. The culprit takes away from the victim her most valuable and priceless property which is her dignity and virginity. On account of traumatic and tragic experience of the prosecutrix the faces of the appellants must have been imprinted in her memory and accordingly identification of the appellants by her in Court cannot be looked with doubt. In this connection, we place our reliance on the decisions of Malkhansingh v. State of M.P. and Dastaglr Sab v. State of Karnataka .
65. In Malkhansingh v. State of M.P. (supra) the victim was subjected to gang rape and there was abserice of T.I. Parade. The prosecutrix identified the accused persons in Court. Before the Supreme Court in the appeal preferred by the appellants point of identification was raised. The Supreme Court found that the prosecutrix was a school teacher and she was gang raped by the 3 appellants in broad daylight. The Supreme Court held that, the prosecutrix had abundant opportunity to notice the features of the accused persons, and further held that on account of traumatic and tragic experience of the prosecutrix, the faces of the appellants must have got imprinted in her memory. The Supreme Court found that the evidence of prosecutrix implicitly reliable and chance of mistaken identity was removed. The Supreme Court held that failure to hold T.I. Parade would not make Inadmissible the evidence of identification in Court. It was clearly held by the Apex Court that the substantive evidence is the evidence of identification In Court.
66. In Dastagir Sab v. State of Karnataka AIR 2004 SC 2884 (supra) the Supreme Court dealt with same legal principle and held that non-holding of T.I. Parade is not fatal in all the cases of rape. In that reported case the prosecutrix saw the appellants on three occasions almost immediately prior to the commission of offence and also when they committed sexual assault on her. Accordingly, it was held by the Supreme Court that T.I. Parade Is not necessary In the said case.
67. In the present case before us, the victim (P.W. 1) and P.W. 3 had the opportunity to saw 5/6 appellants in halogen light when they took seat opposite to them at Telipara Bridge for about 5 minutes. Thereafter, they went away and came back with 5/6 more others and in all 10/12 persons surrounded P.W. 1 and P.W. 3 armed with 'dah' 'bhojall' and iron rod etc. and there also there was some conversation between P.W. 1, P.W. 3 and the appellants and during that time in the halogen light these two witnesses had sufficient opportunity to see the faces and other physical features of the appellants. For this reason the victimin in her statement state that at the time of commission of rape on her the tallest boy caught hold of her head and the gang leader Anil Lakra raped her first. The aforesaid decisions of the Supreme Court clearly establishes that substantive evidence is Identification in Court. In this case, P.W. 1 and P.W. 3 identified all the appellants in Court, and not only that, P.W. 1 identified some of the appellants and P.W. 3 Identified 8 appellants in the T.I. Parade. In the present case there was no possibilty of mistaken Identity and identity of all the appellants were well established and it was proved beyond all reasonable doubts that all the appellants in concert of their act forcibly took away the victim from Telipara Bridge and committed offence under Section 376(2)(g) of the I.P.C. The decision in Kanan v. State of Kerala reported in 1979 SCC (Cri) 621 : 1979 Cri LJ 919 cited by Mr. Bagchi for the appellants Is distinguishable and is not applicable in the present case considering the facts and peculiar circumstances of the present case.
68. Mr. Bagchi further submitted that the appellants were not provided legal assistance from State till examination of the witnesses started and it amounted to violation of provisions of Article 21 of the Constitution. He submitted that as a result of it there was no defence lawyer at the time of charge and the appellants had no opportunity to prepare their defence. In support of his contention Mr. Bagchi cited the decision reported in 1980 SCC (Cri) 50 : 1979 Cri LJ 1052 Hussalnara Khatoon v. Home Secretary, State of Bihar, Patna.
69. After going through the said decision and the records of the lower Court concerning this appeal we are not Impressed at all with the submission of Mr. Bagchi and his submissions over this point are not acceptable.
70. In Hussainara Khatoon v. Home Secretary, State of Bihar, Patna 1979 Cri LJ 1052 (supra) it was held by the Supreme Court that, it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a lawyer to such accused person if the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and it is hoped that every State Government would try to avoid such a possible eventuality.
71. In the present appeal after going through the lower Court record we find that the plea of the appellants that they were not properly defended or that they could not prepare their defence are wholly unacceptable. The order sheet of the trial Court reveals that charges were framed on 29th January, 2002 and the order sheet of the trial Court reveals that on that date all the 11 appellants were produced from custody and the learned Public Prosecutor-in-charge of the case and the learned lawyer for the accused persons were present. After framing the charges learned Judge fixed dates of trial and 22-2-2002 was the first date of evidence and on that date petitions were filed by the accused persons praying for supplying them copies of relevant papers including medical papers, 161 statements and 164 statements. The order sheet reveals that though the said papers were supplied to the appellants before commitment still the learned Judge took steps for supplying copies of those papers. On 22-2-2002 an application was filed for Rakesh Uraon for ascertaining his age and on behalf of the said accused his lawyer raised the question that he was a juvenile. The learned trial Judge heard the application on 25-5-2002 and going through the medical report and other papers rejected the plea of Rakesh Uraon that he was a Juvenile.
72. Thereafter, several dates passed and finally on 2-4-2002 a petition was filed on behalf of the 5 appellants for treating them as juveniles which was rejected by the learned trial Court. On that day P.W. 1 was present and the learned trial Court directed the learned defence lawyers to remain present in Court at the time of recording of evidence. Learned trial Judge noticed that 5 accused persons remained undefended and the learned trial Court engaged a senior advocate of the Bar as State defence lawyer to conduct the case on behalf of accused-James Uraon, Radha Bara, Etowa Tirkey, Siu Kumar Bara and Ramesh Kujur, and thereafter, P.W. 1 was examined-in-chief. As the learned senior Advocate for the aforesaid 5 accused persons was appointed on that day he prayed for adjournment for cross-examination which was allowed and the learned trial Judge fixed the 3-4-02 for cross-examination by defence. On 3-4-2002 a petition was filed on behalf of other 6 accused persons praying for adjournment which was rejected by the learned trial Court as a result of which the learned defence lawyer for the other 6 accused persons declined to attend Court and declined to cross-examine P.W. 1. On 3-4-2002 cross-examination was made by the learned State defence lawyer for the 5 accused persons mentioned earlier.
73. Next date was 5-4-2002 and on that date other 6 accused persons, whose adjournment petition was rejected on 3-4-2002, filed a petition before the trial Court praying for engaging a State defence lawyer for them and the learned trial Court accordingly engaged one learned Advocate of the Bar as defence lawyer for remaining 6 accused persons by his order dated 6-4-2002 and fixed 8-4-2002 as date of cross-examination of P.W. 1 by other 6 accused persons. On 8-4-2002 cross-examination was made by the learned State defence lawyer for accused-Anil Lakra, Bablu Kujur, Jit Bahan Uraon, Rakesh Uraon, Jagu Lakra and Raju Tirkey. The order sheet clearly reveals that the accused persons were not undefended and they were given sufficient time to prepare their defence and on their prayer two learned State defence counsel were engaged during trial. At the time of framing charge all the accused persons were properly represented by their own engaged lawyer. It is not a case that the present appellants remained undefended in the trial Court or that there was violation of provisions of Article 21 of the Constitution. The accused persons were not prejudiced at all as they were properly defended and sufficient time was given to prepare their defence.
74. Mr. Bagchi, the learned Advocate for the appellants also submitted that the appellants have already served out the sentence so far as it relates to conviction under Sections 324/34 and 379/34 of I.P.C. and appellant-Anil Lakra and Jit Bahan Uraon have also served out the sentence imposed on them under Section 411 of the I.P.C. The sentence of 10 years imposed on the appellants for the offence under Section 376(2)(g) of the I.P.C. Is rather harsh as it appears from the judgment itself that all the appellants were in the age group of 19/22 years at the time of conviction and were 18 to 21 years at the time of incident. The sentence imposed on the appellants under Section 376(2)(g) should be reduced. Mr. Bagchi further submitted that the appellant-Rakesh Uraon was a Juvenile at the time of incident but the learned Judge failed to appreciate the said matter. One school certificate was also produced showing the age of the appellant-Rakesh Uraon and according to school certificate the date of birth of Rakesh Uraon was 18-8-85 i.e. the said appellants was about 16 years in age at the time of incident and he was a juvenile. Learned Judge only relied upon evidence of P.W. 2, the doctor who held ossification test of appellant-Rakesh Uraon and the said doctor opined that the age of the appellant on the date of examination i.e. 3-10-2001 was between 18 and 20 years. The learned Judge failed to consider that ossification test is a scientific test and it does not show actual age and settled principle of law is that 2 years in either way is permissible in respect of the age reflected in ossification test. If 2 years is deducted from the age as reflected in ossification test the age of appellant-Rakesh Uraon comes to 16 years and he was a juvenile. In support of his contention Mr. Bagchi placed reliance on Gurpreet Singh v. State of Punjab reported in (2006) 1 SCC (Cri) 191 : 2006 Cri LJ 126 and Rajinder Chandra v. State of Chhattisgarh reported in 2002 (1) Supreme 255 : 2002 Cri LJ 1014.
75. After considering the submission of Mr. Bagchi and going through the evidence of P.W. 2 we are of the opinion that the learned trial Judge made error in ascertaining the age of appellant-Rakesh Uraon. The order sheet of the trial Court reveals that on 25-2-2002 the learned trial Judge rejected the prayer of Rakesh Uraon to treat him a Juvenile obseving that the said appellant was above 18 years on the date of occurrence. In coming to such finding the learned Judge placed reliance on medical report i.e. the ossification test and ignored the age as reflected in school certificate produced on behalf of the said accused. The said order sheet reflects that in the school certificate date of birth of accused-Rakesh Uraon was recorded as 14-8-85 i.e. about 16 years 1 month at the time of incident. The learned Judge did not consider that always 2 years in age is permissible in either way in respect of age of a person reflected in the ossification test. In the ossification test the age of this appellant was reflected 18 to 20 years and if 2 years is deducted his age was 16 to 18 years which gets to some extent corroboration from the school certificate which was produced before the learned trial Court. The learned trial Judge did not consider it and did not mark the said school certificate as exhibit and failed to realise the actual value of evidence of P.W. 2. Accordingly, we are of opinion that, if 2 years is deducted from the age as reflected in the ossification test of this appellant he was a juvenile at the time of incident. Now after 4 years at present he is above 20 years and he cannot be directed to be tried as a juvenile. Accordingly, for ends of justice we are of opinion that in the instant matter the conviction of appellant-Rakesh Uraon should be maintained but his sentence should be set aside and he should be released forthwith.
76. Regarding reduction of sentence of other 10 appellants we are not convinced with the submission of Mr. Bagchi. It is true that all the appellants were young in age and they were youths. But we cannot ignore the gravity of offence and the manner in which the offence was committed by the appellants assaulting the victim with knife after forcibly taking away her from Telipara Bridge. The other 10 appellants did not resist their leader Anil Lakra to commit rape on the victim. On the other hand, they helped him in the incident as evidence reveals that two accused persons caught hold of legs of victim, two accused persons caught hold of the hands of the victim, one appellant caught hold of her head, one accused put chemical liquids on her nose, one accused took away her wrist watch, one accused removed her gold ring from finger and another accused tied her neck with a cloth. It further appeared from evidence that the miscreants also tied the mouth of the victim with a cloth. The evidence of the victim clearly reveals involvement as well as overact of all the miscreants in the incident and as such we find no reason to reduce their sentence. The minimum punishment prescribed under Section 376(2)(g) of the I.P.C. is sentence of 10 years and with fine. The learned trial Court rightly Imposed sentence of 10 years and fine on the appellants. We find no special circumstance or special ground for reducing the sentence imposed on the appellants.
77. Considering the evidence and materials on record we find that the prosecution was able to bring home the charges levelled against all the appellants. The learned trial Judge on consideration of evidence and materials on record rightly convicted the appellants and sentenced them to suffer imprisonment for 10 years for the offence under Section 376(2)(g) of the I.P.C. along with other sections. Accordingly, the appeal having no merit fails and is dismissed except the portion of sentence of Rakesh Uraon. In view of our discussion made above the conviction of appellant-Rakesh Uraon is maintained but the sentence imposed upon him is hereby set aside and the appellant-Rakesh Uraon be released from custody forthwith. It is evident that, appellant Nos. 8 and 11 namely, Radha Bara and Ramesh Kujur were enlarged on bail after admission of appeal. Appellant Nos. 8 and 11 are directed to surrender before the trial Court within one month from the date of this order to serve out the sentence and their bail bonds are cancelled. If these two appellants do not appear to serve out the sentence within the time mentioned above the learned trial Court will take appropriate steps in accordance with law for their apprehension and production before him to serve out the sentence.
78. Send a copy of judgment to the Inspector General of Prisons, Government of West Bengal at Writers Building, Calcutta through the Registrar General, High Court for onward communication to the Superintendent of concerned Correctional Home and convict/appellant-Rakesh Uraon in the particular Correctional Home where he is lodged at present for information and necessary action.
79. Criminal section is directed to send down the lower Court record along with copy of Judgment and order to the learned Additional Sessions Judge, 2nd Court, Jalpaiguri for information and necessary action.
P.S. Datta, J.
80. I agree.