Jharkhand High Court
Silas Bhuian Son Of Late Naiman Bhuian vs The State Of Jharkhand on 21 October, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 632 of 2017
[Arising out of judgment of conviction dated 22.02.2017 and order of sentence
dated 02.03.2017 passed by learned Additional Sessions Judge cum-Special Judge,
POCSO Act, Simdega in Special POCSO Case No. 17 of 2014]
1. Silas Bhuian son of Late Naiman Bhuian
2. Telesfore Lugun son of Piyus Lugun
Both resident of Village- Samdega, Patratoli, P.S.- Bano, District- Simdega
.... .... .... Appellants
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellants: Mr. Kripa Shankar Nanda, Advocate
Mr. Joreng Jedan Sanga, Advocate
For the State : Ms. Bhola Nath Ojha, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on: 15.10.2024 Pronounced On: 21.10.2024 Per Gautam Kumar Choudhary, J. Appellants are before this Court in appeal against the judgment of conviction and sentence passed under Section 376D of the Indian Penal Code and Section 5(J)/6 of Prevention of Children from Sexual Offence Act, 2012 (hereinafter referred in short 'POCSO Act').
2. As per the F.I.R. on 30.04.2014 in the evening, informant/victim aged about 15 years went to the house of friend to attend some religious function. At around 7.30 pm, while she was standing on the road in front of her friend's house, Silas Bhuian, Telesfore Lugun, Prem Bhuian and Johan Lugun assaulted her by grabbing her hair, after this Silas Bhuian dragged her towards the river and committed rape with her. It is alleged that thereafter, Telesfore Lugun had also committed rape with her. She somehow managed to escape and came to her friend's place and narrated the incidence to her friend and to one Sapna Devi.
3. On the basis of the written report, Bano P.S. Case No. 20/14 was registered under Section 376D of the IPC and 5(J)(2) of POCSO Act against the appellants and two other accused persons. After investigation, charge sheet was submitted against the accused persons. Trial of Prem Bhuian and Johan Lugun was separated as they were declared juvenile and sent to Juvenile Justice Board. Appellants were put on trial under Section 376D of the IPC and Section 5(J)/6 of POCSO Act.
4. Altogether nine witnesses have been examined in this case on behalf of prosecution and one court witness was also examined and relevant documents 1 medical report, seizure list and FSL report were adduced into evidence and marked as Exhibits-1-9.
5. After closure of the prosecution evidence, statement of both the appellants was recorded under Section 313 of Cr.P.C wherein they pleaded not guilty. Defence has also examined five witnesses as D.W. 1 to D.W. 5.
6. Judgment of conviction and sentence has been assailed by the learned counsel on behalf of Silas Bhuian that out of six independent prosecution witnesses, the girl Devanti Kumari (P.W. 3), in whose house the victim had gone to attend the function, has not supported the prosecution case and was declared hostile. P.W. 1- Rupa Devi (Chowkidar of the village) and P.W. 4 did not support the prosecution case and were also declared hostile. The appellant has been falsely implicated in the case on account of land dispute. D.W. 1, D.W. 2 and D.W. 3, who had also attended the said function, have deposed that no such incidence took place with the victim. It is further argued that medical report does not corroborate the oral evidence of the victim as no spermatozoa was found and there was no injury seen over any part of the body.
7. It is argued on behalf of Telesfore Lugun that victim (P.W. 2) in her deposition has specifically stated that rape was committed by Silas Bhuian and thereafter, she fled away to the house of her friend. No allegation of rape has been made against appellant- Telesfore Lugun.
8. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that the victim (P.W. 2) has stated that rape was committed with her which is corroborated by the medical evidence wherein the Doctor has opined that there was clinical evidence of recent sexual intercourse. Once the sexual intercourse with a minor is established, the offence of rape is made out, as plea of consent cannot be taken in case of a minor.
9. Informant/Victim P.W. 2 has supported her statement in the F.I.R. and stated that Silas had raped her. In her cross-examination, she stated that accused persons had raped her one after another. She further stated in para 3 that there was a land dispute between the accused persons and her family. There was no sign of injury on her body.
10. Doctor P.W. 5 had examined the victim on 02.05.2014 and found her hymen ruptured, mild laceration present in vagina. Doctor opined that the age of the victim was 15 to 16 years and there was clinical evidence of recent sexual intercourse. He proved the medical examination report Exhibit-3 and Exhibit-3/1 respectively.
The offence of rape by its very nature, is a species of crime which is not committed in public and therefore, law is settled that the judgment of conviction and 2 sentence can rest on the solitary account of the prosecutrix. Prosecutrix is treated as an injured witness and if her account is cogent, reliable and trustworthy, there is no reason to seek corroboration either oral or medical. [See Santosh Prasad v. State of Bihar, (2020) 3 SCC 443]. Physical injury is not sine qua non for the proof of rape. Absence of physical injury, cannot be the sole ground to approach the testimony of the prosecutrix with distrust. [See Mukesh v. State of Chhattisgarh, (2014) 10 SCC 327]
11. There is no delay in lodging the FIR as the incidence took place on 30.04.2014 and the FIR has been lodged on the next morning at 10.30 on 01.05.2014. Prosecutrix (P.W. 2) is a village girl aged 15 years and in her deposition, she stated that she was assaulted by these appellants and two others and was dragged towards the river. She resisted, but rape was committed by Silas and after that he started calling his other accomplice, then she fled away to her friend's house. In her cross-examination, she has stated that two accused persons had committed rape with her, but has not named the second one who was involved in the crime. In cases of gang rape, it is not necessary that each should have physical intercourse with the victim. Once it is established, the accused persons had acted in concert in commission of the offence, it is inconsequential whether the sexual intercourse was committed by one or more than one.
12. Testimony of the victim that after Silas committed rape with her, he started calling others, goes to show that at the time of the occurrence no one else including appellant- Telesfore Lugun was present there. Although in her cross-examination, she has stated that two persons had committed rape with her, but in the entire deposition, she has not named Telesfore Lugun to have committed rape or to be present there when the rape was being committed by Silas. It is not that she was not knowing his name as he has been named both in the written report as well as in the statement under Section 164 of the Cr.P.C. Neither FIR nor the statement under Section 164 of the Cr.P.C. is a substantive piece of evidence and in view of the fact that appellant- Telesfore Lugun has not been named in the deposition by the victim, he is entitled to benefit of doubt.
13. As far as appellant- Silas Bhuian is concerned, he is named in the FIR and also in the statement under Section 164 of the Cr.PC. This testimony of prosecutrix is corroborated by P.W. 1, who is an independent witness and has stated that victim after the incidence had told her about the offence having been committed with her. Doctor has opined that there was clinical evidence on record of sexual intercourse. In the vaginal examination, hymen was found ruptured and mild laceration and mild tenderness was present there. Under the circumstance, there is no reason to 3 disbelieve the testimony of prosecutrix regarding commission of rape by the appellant- Silas Bhuian with her.
14. In view of the fact, the charge of rape against other co-accused has persons has failed, it cannot be concluded that there were more than one persons involved in the offence to sustain the charge of gang rape and therefore appellant Silas Bhuiyan is guilty of offence under Section 376 of the IPC. Incidence took place on 30.04.2014 when the minimum sentence of rape was 10 years under Section 376 of the IPC.
15. Under the circumstance, considering the overall facts and circumstance of the case, age and antecedent, appellant- Silas Bhuiyan is convicted and sentenced for ten years RI and a fine of Rs.5000/- under Section 376 of the IPC. In default of payment of fine he shall undergo SI for one month.
16. Under the circumstance, judgment of conviction and sentence passed against appellant- Telesfore Lugun is set aside and criminal appeal on his behalf, is allowed.
With this modification in finding and sentence, Criminal Appeal is partly allowed.
Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.
(Gautam Kumar Choudhary, J.) Ananda Sen, J. I agree.
(Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 21st September, 2024 AFR/Anit 4