Jharkhand High Court
Suresh Choudhary & Anr. vs State Of Bihar on 11 February, 2009
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari, Prashant Kumar
Criminal Appeal (DB) No. 342 of 1999(R)
With
Criminal Appeal (DB) No. 216 of 1999(R)
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[Against the judgment of conviction and order of sentence dated
30.06.1999 passed by learned VIIIth Additional Judicial
Commissioner, Ranchi, in Sessions Trial No. 576 of 1996].
1. Suresh Choudhary[Cr.Appeal no. 342/99(R)]
2. Govind Mahto & Guddu[Cr.Appeal no. 342/99(R)]
Nandu Mahto[Cr.Appeal no. 216/99(R)]
..... ..... Appellants
Versus
The State of Bihar (Now Jharkhand)[in both cases]
..... ..... Respondent
(In both cases)
For the appellants: M/s. G.C.Sahu & Mukul Sahu
For the State : Ms. Anita Sinha, APP
PRESENT
THE HON'BLE MR.JUSTICE NARENDRA NATH TIWARI
THE HON'BLE MR.JUSTICE PRASHANT KUMAR
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By Court: These appeals arise out of the judgment of conviction dated
30.6.1999 passed by the VIII Additional Judicial Commissioner, Ranchi, whereby he has held Suresh Choudhary, Govind Mahto @ Guddu, Nandu Mahto and Manoj Kumar Verma guilty of committing offences punishable under sections 376(2)(g), 458 and 323 of the Indian Penal Code. Appellant-Suresh Choudhary has been sentenced to undergo life imprisonment, Appellant-Govind Mahto @ Guddu has been sentenced to undergo rigorous imprisonment for ten years, Appellant-Nandu Mahto has been also sentenced to undergo rigorous imprisonment for ten years. The co-accused Manoj Kumar Verma has been awarded sentence for imprisonment of life, but he is not the appellant in this appeal.
2. The prosecution was launched on the basis of the fardbeyan of the victim (name is being purposely concealed) (P.W.1) recorded by the Sub- Inspector of Jagarnathpur Police Station near Kali Mandir adjacent to Hatia Railway colony, in a hut. It has been alleged that in the night of 26- 27th December,1995, Manoj Kumar Verma, Nandu Mahto, Binod Singh @ Bangali, Suresh Choudhary and Govind Mahto @ Guddu came and knocked at the door. The informant's husband did not open the door. The accused persons in a bid to break open the door began to put heavy pressure on the door. The informant's husband then opened the door. It is alleged that all the accused persons entered into the house and forcibly 2 [Cr.Appeal(DB) nos. 342/99 & 216/99] took the prosecutrix to a lonely house near Hatia Railway Station and committed rape on her one after the other at the point of knife. It has been further alleged that Suresh Choudhary assaulted the informant by a bottle on her head. When she tried to raise alarm, all the accused persons threatened her with dire conseuence. Manoj Kumar Verma first committed rape on her and thereafter Nandu Mahto, Suresh Choudhdary and Binod Singh @ Bangali ravished and raped her. The informant became unconscious. When she regained her sense, she returned home and narrated the incident to her husband. The informant's husband went to the Railway Colony T.O.P. to call the police. The Police Officer thereafter came and took her statement.
3. The police started investigation. The prosecutrix was medically examined, the next day i.e. on 27th December,1995 at 5.30 P.M. The Police on completing investigation, submitted charge sheet under sections 448, 341, 323, 363, 376(g) and 379/34 I.P.C. against the accused persons. Cognizance of the said offences was taken and the case was committed to the court of sessions for trial.
4. Charges were framed under section 376, 341/34, 450/34 and 324/34 I.P.C. to which the accused-appellant denied and claimed to be tried.
5. The prosecution altogether examined seven witnesses to prove the charges against the accused persons, namely, P.W.1, Sukurmani Devi- informant-prosecutrix, P.W. 2-Birsa Yadav, P.W.3-Mahabir Baraik, P.W.4- Ramchandra Tirkey, P.W.5-Vishwanath Sao, P.W.6- Dr.Minu Mukherjee, who examined the informant medically, P.W.7-Bishundeo Ram and P.W.8- A.K.Singh, Investigating Officer. Out of them, P.W.2-husband, P.W.3- Mahabir Baraik and P.W.4-Ramchandra Tirkey are the hearsay witnesses, P.W.5-Vishwanath Sao was declared hostile, P.W.6 proved the report of medical examination and P.W.7-Bishundeo Ram is a formal witness, who proved the F.I.R.(Exhibit-2).
6. The accused persons-appellants in defence denied the charges. In their examination under section 313 of the Code of Criminal Procedure, they claimed their false implication in the case by the police.
7. In this case, prosecution witnesses have not been cross-examined by the defence. According to the trial court, the accused persons declined to cross-examine the witnesses.
8. Learned trial court on conclusion of the trial, found the testimony of P.W.1, P.W.2 and P.W.8 read with the medical evidence of P.W.6 reliable and on that basis held the accused persons guilty of the charges punishable under sections 376(2)(g) I.P.C., 458 and 323 I.P.C. All the 3 [Cr.Appeal(DB) nos. 342/99 & 216/99] appellants were, thus, convicted for the offences under the said sections and sentenced as aforesaid.
9. Aggrieved by the said conviction and sentence, the appellants have preferred two appeals. Cr.Appeal(DB) no. 342 of 1999(R) has been filed by Suresh Choudhary and Govind Mahto @ Guddu while Nandu Mahto is the appellant in Cr.Appeal(DB) no. 216 of 1999(R).
10. Since the said two appeals have been preferred against the common judgment, both have been heard together and are being disposed of by this common judgment.
11. Mr. G. C.Sahu, learned counsel for the appellants submitted that the conclusion of the trial court is mainly based on the sole testimony of the informant-prosecutrix, which is full of contradictions. There is no other corroborative evidence to support the prosecution case. Even the medical evidence does not corroborate the prosecutrix allegation of rape. Learned counsel submitted that though in the cases of rape even the evidence of prosecutrix can be sufficient to hold the accused guilty, yet credibility of the evidence has to be judged from the quality of evidence of the prosecutrix to base conviction on that solitary evidence. All the relevant aspect have to be continuously scrutinized to test the veracity of the prosecutrix. Learned counsel submitted that though the prosecutrix in her examination-in-chief has supported the allegation made in her fardbeyan regarding commission of rape, she has developed the story of snatching Rs. 2000/- and gold ear ring. In view of the said deliberated addition and twist in the prosecution story, it is not safe to rely on her solitary evidence to conclude conviction of the appellants. Learned counsel further alternatively submitted that though all the accused persons have been found guilty for committing the same offences, there is different order of sentence. There is no distinguishing feature in the case of the appellant Suresh Choudhary to justify sentence of life imprisonment to him. Learned trial court has passed the order of sentence differently in similar circumstance without any justifying reason on record. Learned counsel submitted that in view of medical evidence, charge against the appellant has not been proved beyond shadow of all doubts and learned trial court should have acquitted the appellants of the charges under section 376(g) I.P.C.
12. Learned counsel for the appellants referred to and relied on three decision of this Court. Ramdhan Soy & Ors. Vrs. State of Jharkhand, reported in 2006(4) East Cr.C. 107(Jhr); Khublal Mahto Vrs. State of Bihar(now Jharkhand), reported in 2005(3) JCR 92(Jhr) and 4 [Cr.Appeal(DB) nos. 342/99 & 216/99] Nand Kishore Mahto Vrs. State of Jharkhand, reported in 2006(4) JCR 153 (Jhr).
13. Learned counsel urged that in view of the judicial pronouncement and vital contradiction in the prosecution evidence, the appellants deserved to be acquitted and the judgment/order of the learned court below is liable to be set aside.
14. Learned APP defended the impugned judgment and submitted that in the circumstances appearing on record, except the prosecutrix, no other witness had occasion to be present and witness the incident. The prosecutrix has given vivid account of the occurrence and has proved the charges against the appellants. There is no contradiction in her statement. Convictions based on her sole testimony cannot be said to be unjustified and erroneous. She further submitted that the medical evidence has also corroborated the charge of rape. The doctor has found positive signs of ravishment on her person. She has, in her examination, found multiple bruises on the legs, hands and upper part of chest and right buttock. The age of the injuries in her opinion was within 24 hours. The doctor has independently opined that though there is no positive evidence of rape, yet in cases of rape of married woman, sign of rape may not be clearly visible.
15. The evidence of P.W.2, husband of the prosecutrix also cannot be ruled out as he has come to testify that the appellants had forcibly taken away his wife and she had immediately on return complained that she was made victim of sexual assault by the appellants. Learned trial court has found sufficient evidence and has given valid reason for coming to its conclusion of convicting and sentencing the appellants and no interference with the impugned judgment is warranted.
16. We have heard learned counsel for the appellants and learned APP and scrutinized the evidence on record. P.W.1-prosecutrix in her examination-in-chief in paragraphs-1 to 3 and 5 has given vivid account of the incident and has fully supported her version made in the fardbeyan. The defence was given opportunity, but they declined to cross-examine the witness. There is nothing contrary on record to disbelieve the testimony of the witnesses. P.W. 2 is the husband of the prosecutrix. In paragraphs-1 and 2, he has stated that the accused persons came in the night and forced them to open the door and forcibly took away his wife. He has also stated that in the morning, his wife narrated the commission of rape by the appellants. The other ocular evidence on record may not be of very much relevance, but on going through the evidence of doctor(P.W.6) and the injury report (Exhibit-1), we find the positive 5 [Cr.Appeal(DB) nos. 342/99 & 216/99] evidence corroborating at least some of the part of the prosecutrix version fully and some partially. The doctor has opined that there may not be sign of rape in the case of a married woman.
17. Learned counsel for the appellants submitted that the said opinion of the doctor is general opinion and is contrary to the physical finding of medical examination. He submitted that the victim girl is said to have been ravished by five persons. She was medically examined within a period of 24 hours. Non-availability of dead or alive spermatozoa makes, the story of sexual ravishment by a group of five persons unbelievable.
18. However, after reading the evidence of P.W. 1 and the evidence of doctor, the said submission of the appellants' counsel is not acceptable. Admittedly, the prosecutrix is a married lady. The medical examination was held after about 18 hours. There is every likelihood of washing away of spermatozoa due to urination in the meantime. In view of the consistent evidence of the prosecutrix, the conviction cannot be set aside only on that ground.
19. This is a case in which the prosecutrix has been gang raped by a group of five persons. We do not find any reason for false implication of the accused-appellants. Learned trial court has considered those aspects and has come to the conclusion after thorough discussion of the evidence on record. We do not find any infirmity in the judgment of conviction recorded by the learned court below.
20. In Nand Kishore Mahto (supra), no injury internally or externally was found on the persons of the victim. She did not also raise alarm and there are other facts, which are not similar to the facts of this case.
21. In Khublal Mahto(supra), there was enmity between the parties. There was no resistance in course of ravishment. Medical evidence was completely absent. No injury was found on the person of the victim. Conviction and sentence under section 376 I.P.C. was set aside taking those circumstances.
22. In Ramdhan Soy & Ors.(supra), the prosecutrix herself denied her statement given before the police. On the basis of her statement, prosecution was initiated. She did not identify the rapist. Co-victim denied the allegation of rape on her. It was, thus, held by this Court that the prosecution failed to bring home the charge of rape against the accused persons and allowed the appeal.
23. Those decision are, therefore, rendered in different fact situations and the same are not applicable to the facts of the instant case. In this case, injuries on the legs, hands and upper part of chest of the victim 6 [Cr.Appeal(DB) nos. 342/99 & 216/99] have been found by the doctor. There is no allegation of enmity between the parties. The prosecutrix has fully supported her statement given before the police. The said decisions referred to and relied upon by the learned counsel for the appellants, thus, do not help them. However, we find substance in the second and alternative submission of the learned counsel for the appellants regarding the different quantum of punishment i.e. life imprisonment given to Suresh Choudhary while the other accused- appellants have been awarded rigorous imprisonment for ten years.
24. We find no special circumstance or any distinguishing feature under which the learned court below has differently sentenced the appellant- Suresh Choudhary. In our opinion, the end of justice can be served, if the sentence of life imprisonment of the appellant-Suresh Choudhary is reduced to rigorous imprisonment for ten years at par with the sentence awarded to the other accused viz- appellants- Govind Mahto @ Guddu and Nandu Mahto.
25. We, accordingly, modify the sentence of the appellant-Suresh Choudhary and reduce it to rigorous imprisonment for ten years instead of rigorous imprisonment for life.
26. With the said modification, these appeals are dismissed.
27. The appellant-Nandu Mahto [Cr.Appeal (DB) no. 216 of 1999(R)], who is on bail, his bail bond is hereby cancelled and he is directed to surrender forthwith to serve out the sentence.
(Narendra Nath Tiwari,J.) (Prashant Kumar,J.) Jharkhand High Court, Ranchi Dated: 11th February, 2009 N.A.F.R./S. Bhattacharyya