Jharkhand High Court
Mukesh Mahto Son Of Bodhram Mahto vs The State Of Jharkhand on 7 February, 2020
Equivalent citations: AIRONLINE 2020 JHA 41, 2020 (1) AJR 815
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 284 of 2003
(Against the judgment of conviction dated 18.01.2003 and order
of sentence dated 20.01.2003, passed by the learned 5th
Additional Sessions Judge, Bermo at Tenughat in Sessions Trial
No. 74/2001)
---
Mukesh Mahto son of Bodhram Mahto, resident of village-Juramna, PS-
Nawadih, District-Bokaro.
.... Appellant
--Versus--
The State of Jharkhand ..... Respondent
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PRESENT : THE HON'BLE MR. JUSTICE RATNAKER BHENGRA
--
For the Appellant : Mr. Sumit Prakash, Advocate;
Mr. Santosh Kumar, Advocate.
For the State : Mr. Azeemuddin, A.P.P.
--
Reserved on: 22/02/2019 Pronounced on: 7 / 2 /2020
...
RatnakerBhengra, J.:
Heard the parties.
2. This criminal appeal is directed against the judgment of conviction dated 18.01.2003 and order of sentence dated 20.01.2003,passed by the learned 5th Additional Sessions Judge, Bermo at Tenughat in Sessions Trial No. 74/2001, whereby and whereunder, the appellant was held guilty for the offence under section 376 of the Indian Penal Code and sentenced to undergo RI for a period of 7 years and the appellant was acquitted from the charges under sections 395,397 and 412 of the Indian Penal Code.It was further ordered that time period spent in custody to be set off from the sentence.
3. The prosecution case in brief as per fardbeyan of the informant PW-9 Sister Patras Mary is that in the night of 1st / 2nd December, 2000 at about 2:00 a.m., 14/15 miscreants broke open the lock of grill of the residential block of St. Anna Girls High School, Kurpania, PS-Gandhi Nagar (BTPS), District- Bokaro and entered inside. Thereafter accused persons threatened 2 with pistol, knife, crowbar, stick and bombs and forced to open the grill of the residence and entered inside the room and started looting. In the course of looting, the culprits slapped the teachers present in the room and were also demanding money. When teachers told that they have no money, the miscreants assaulted them. During the course of looting, one of the accused person who was tall and was wearing a cream colored shawal, which was snatched from a sister, took away the lady cook(the victim) of the school in a room and committed rape on her.The further case of the prosecution is that the miscreants continued looting for about one hour and they looted shawl, torch of double cell, table clock, wrist watch, scissors, soap, paste, one cartoon Surf, one Konark colour T.V. The worth of entire looted articles were about Rs.10,000/- and miscreants also looted cash about Rs.3,000/- totaling Rs.13,000/- The miscreants were talking in Hindi and were threatening the staff during the course of looting. After looting all the miscreants fled with the looted articles towards the forest from the back side of the school.
4. On the basis of the fardbeyan of the informant BTPS Case No. 95/2000 dated 02.12.2000 was registered under section 395,397and 376 of IPC against 14/15 unknown accused persons. After completion of the investigation police submitted charge-sheet and cognizance of the offences were taken and the case was committed to the Court of Sessions. Charges were framed against the accused Mukesh Mahto under section 395,376 and 397 of IPC. Accused pleaded not guilty and claimed to be tried. Accordingly, trial was held and on the conclusion trial the accused or appellant herein was convicted and sentenced as aforesaid.Hence this appeal.
5. PW-21 is the victim. She has stated in her evidence that occurrence took place on 01.12.2000 at 2:00 a.m. At that time she was working as a cook in St. Anna Girls School,Kurparni. She was sleeping.She woke up on hearing the sound of the bell. 6-7 miscreants entered into the verandah of the school breaking the gate. The miscreants were beating the sisters and they also demanded money from them. The miscreants were holding bomb. Out of fear she hid herself behind stitching machine. One of the miscreants pulled her inside a room and bolted the door of the room from inside and committed rape on her in spite of her resistance. The miscreant after committing rape on her, pushed her inside the bathroom and told that 3 nobody will come to rescue her and ordered her to wash herself. She remained inside the bathroom for about an hour. After that she came outside. Sisters were in the verandah. She narrated the occurrence of commission of rape on her to the sisters. She identified the accused Mukesh Mahto in Court and said that he is the person, who committed rape on her. In her cross-examination, she deposed that sister Snehlata and sister Patras Mary(PW-9) were present at the time of occurrence. She does not remember what police asked her.She also stated that blood came out from her private part and after commission of rape her petticoat and saree both were stained with blood. She further stated that she was examined by the doctor.
6. PW-10 is Sister Bona. She deposed in para-4 of her evidence that she saw a miscreant forcibly taking the victim to her room and victim was shouting "bachao bachao". In para-5, PW-10 further deposed that as she went to save the victim she saw one miscreant committing rape of the victim by holding her two hand and making her lie on the floor. Victim was thumping her legs to save herself. Another miscreant told this witness to go away from there and gave a lathi blow to her back. Further PW-10 amongst the miscreants identified the accused Mukesh Mahato.
7. PW-12 is Prema Ekka. She deposed in para-5 of her evidence that one of the miscreants committed rape on the victim and thereafter locking them in a room the miscreants went away. This witness amongst two others also identified Mukesh Mahto as being present during the occurrence.
8. PW-3 is Sister Xaberia. She deposed in para-5 & 6 of her evidence that one of the accused persons took the cook(victim ) towards the kitchen by pulling her right hand. Thereafter the victim came back and told us that she was raped.
9. PW-4 is BeenaTete. She deposed in para-7 & 8 of her evidence that one of the accused persons took the cook(the victim) to another room while the victim was raising hulla telling "bachao bachao". When they were in the verandahthe victim came back and told them one accused person who was wearing a yellow coloured shawl committed rape on her.
10. PW-5 is Sister Kiran. She had deposed in para-8 of her evidence that at that time the accused was also pulling the victim towards the kitchen and told us "paisa bada ki izzat bada". In para-10, she deposed that the accused persons also told the sisters whether you will be delighted to see 4 the other sisters being raped. In para-11, she further deposed that victim came back to the verandah and Sister Bona told us that the victim was raped.
11. PW-9 Sister Patras Mary is the informant of this case. She deposed in para-2 of her evidence that the miscreants said that unless we pay them money they will commit rape on the young sisters and teachers.when they told that they have no money the miscreants started beating them. One of the miscreants forcibly took away their cook(victim) to a room in front of the kitchen and the rest of the miscreants looted total Rs.3,000/- from them and a Konark colour T.V. which was kept in their dining room, a pair of scissors, a knife, a blanket, one shawl, soap and detergent from their residence. The total articles looted was worth Rs.13,000/- including the cash of Rs.3,000/- In para-3 she further deposed the miscreants thereafter left by locking the door from outside with the looted articles. After that they found the victim locked in a room and on asking she told her that she was raped.
12. PW-18 is Dr. Nilima Sinha who examined the victim.She deposed that on laboratory examination no sperm was detected in her vaginal swab.She has proved the medical report of the victim and her signature on it as Ext-5 and Ext-5/1 respectively.She opined that rape was not established was confirmed by the Board of Medical Experts consisting of five doctors.
13. PW-22, Raj Bali Choudhary is the investigating officer of this case.In his evidence he stated that on telephonic message of the offences having taken place in St. Anna School Kurpania he registered sanha no. 25 dated 2-12-2000 and proceeded to St. Anna School. There he recorded the fardbeyan of the informant Sister Patras Mary(PW-9). He further stated in para-4 of his evidence that he had seized the lathi, crowbar and petticoat and prepared seizure list of it which was marked Ext-19 and Sister Bona and Sister Anita had signed on the seizure list.
Arguments of the learned counsel for the appellant:
14. Counsel for the appellant has argued that in this case apart from the allegation of rape that has been made and the conviction of the appellant under Section 376 of IPC, there was allegation against around eight accused persons including this appellant specifically for the offence under section 395 IPC and all the eight accused were acquitted for this section on the ground of insufficient light at the place of occurrence and non-
5identification of the accused persons. In this regard learned counsel refers to para-18 and para-26 of the impugned judgment. Therefore,learned counsel submitted that for allegation of rape also no identification could have been made or was possible because of insufficient light or non- identification of the appellant and hence the appellant could not have been identified for rape. The victim has identified the accused for the first time only before the court. Victim had apparently seen the accused or the appellant in handcuff outside the Court and this is indicated so in para-49 of the evidence or deposition of the victim. Counsel has also submitted that victim seems to be an unreliable witness because she has said in her evidence that she forgot about the occurrence after one year of the occurrence and only today she has been able to recollect it after getting notice. Counsel for the appellant has said that there is inconsistencies in the evidence of the prosecution witness on significant points and pointed out that while on the one hand the victim says that after she had come out of a room then she had informed the others. PW-9 on the other hand says that she found the victim locked in the room on asking she informed her of rape. Counsel for the appellant has then referred to the evidence of PW-18 who is Dr. Nilima Sinha who examined the victim girl and pointed out that doctor opined that no rape was committed on her and that is apparent from Ext.-5 which is the medical report of the victim. The Doctor's opinion that rape was not established and the same was confirmed by the Board of Medical Expert consisting five Doctors. Counsel submitted that when the Medical Board consisting of so many Doctors have not confirmed rape then it has been a great error on the part of the learned court below to convict the appellant.
15. Learned counsel for the appellant further submitted that test identification parade of the accused appellant was not held and this makes the entire prosecution case doubtful. In this regard learned counsel has relied on the judgment of the Hon'ble Supreme Court in the case of Dana Yadav @ Dahu& others v. State of Bihar, reported in (2002) 7 SCC 295. Para-38 of the said judgment reads as under:
"38. In view of the law analysed above, we conclude thus:
"X X X X X X X X X X X X X X XX X X X
(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same 6 being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above."
16. Further learned Counsel for the appellant submitted that at the place of occurrence there was insufficient light and hence it raises doubt as to proper identification of the accused appellant. Learned counsel has also relied on judgment of Devinder Singh and others v. State of Himachal Pradesh, reported in (2003) 11 SCC 488. Para-21 & 22 of the said judgment reads as under :
"21. In the course of her deposition though the prosecutrix stated that she had seen their faces in the torchlight after they had raped her, and had narrated the manner in which they discovered the torch and the battery cells, more or less in the same manner as in the first information report, from her deposition it appears that the torch was lighted only for a short duration. In the course of her cross-examination she admitted that for want of light she could not give particulars of the persons who put her on the cot or the person who raped her first. Reading of the deposition of this witness leaves no room for doubt that while the appellants committed the offence, there was no light in the room. In view of these circumstances even if it is accepted that the prosecutrix had a fleeting glimpse of the appellants when they lighted the torch in her room, in the absence of any other evidence to show that the prosecutrix had occasion to see the appellants earlier, or to know them, it was incumbent on the prosecution to hold a test identification parade. This is not a case where an occurrence took place in broad daylight and the prosecutrix had ample opportunity of noticing the features of the appellants. This apart, her naming some of the accused persons in the first information report and not naming them in the course of deposition casts a serious doubt on the veracity of this witness. Further, she named two other persons, and not two of the accused, in her report, and failed to name the accused whom she claimed to know from before as stated in her deposition.
22. Even the recovery of torch at the instance of Jai Kumar is not free from doubt. PW 3 denies the fact that a torch was recovered pursuant to a disclosure statement made by appellant Jai Kumar. He asserted that the torch was recovered from the room of the prosecutrix. Moreover, the prosecutrix herself admitted that such torches are sold in the market. In the absence of any identifying mark on the torch, it is difficult to place much reliance on the recovery of the torch, which is said to have been produced by appellant Jai Kumar. Moreover, as noticed earlier, though the prosecutrix claimed to know Jai Kumar, he had not been named in the first information report by her, even though she named four of the culprits, two of whom are admittedly not accused in the case."7
17. Learned Counsel then submitted that accused appellant has been wrongly convicted by the learned court below without his proper identification and hence impugned judgment of conviction and order of sentence passed by the court below cannot sustain and be set aside. Arguments of learned counsel for the State:
18. Learned counsel for the State has on the other hand argued that the occurrence is fully proved and even though there was acquittal of the accused appellant for the offence under section 395 IPC but it does not mean that offence under section 376 IPC did not occur. The evidence of PW-21, who is the victim of rape herself, including the evidence of PW-10, PW-12, PW-3, PW-4, PW-5 and PW-9 are sufficient to establish the offence of rape against the appellant. Counsel says that in a case of rape the testimony of the victim itself is sufficient to convict the accused particularly her evidenceis found otherwise unreliable or untrustworthy and full of minor discrepancies which is not the case in the case on hand.
19. Learned Counsel further argued that the victim has fully corroborated the prosecution story and being the victim she has in her evidence as PW- 21 adequately described what happened which is a categorical assertion of rape. Counsel has stressed that no woman will make a false allegation of rape to bring ignominy, shame and the consequent harassment of trial and appeal upon herself. Moreover, why would she name a person as the perpetrator unless he was actually the perpetrator and she has also identified him as such in Court. Her evidence in Court is fully reliable, true and sustainable. Counsel says apart from that PW-10 also deposed that she saw the victim being raped. Therefore, the fact of rape of the victim cannot be denied. The identity of the victim is thus provided by the victim herself.Counsel the appellant also says that the PW-22 who is investigating officer had seized lathi, crowbar and petticoat. The petticoat was of the victim. Counsel for the State lastly submitted that based on the evidence of aforesaid witnesses conviction for offence of rape and sentence imposed by the learned trial court be fully sustainable and upheld.
FINDINGS
20. This is a case in which the conviction for rape of the appellant is under challenge. From the impugned judgment of the learned Court below I find that -
8(i) Total eight accused persons were put on trial including the appellant.
Originally charges were framed against eight accused persons on 16-10- 2001 under section 395,376 and 397 of IPC and for one accused ,Naresh Mahto, charge was framed under section 412 on the same very date.
(ii) From the record it appears that accused or appellant herein Mukesh Mahto was charge sheeted as an absconder and this fact has also been taken note of by the learned court below in its order sheet dated 18-2-2002. Hence, later on, on 26-2-2002 charges were framed against accused or appellant herein Mukesh Mahto under section 395,376 and 397 of IPC.
(iii) Learned Court below in its impugned judgment at para-18 gave the finding that prosecution failed prove the identification of accused persons and viz para-26 accepted the submission of the defense that prosecution has failed to mention that there was some source of light and hence acquitted the accused persons including the appellant herein of the charges under section 395,397 and 412 of IPC.
(iv) But, the learned court below convicted the accused appellant Mukesh Mahto under section 376 of IPC but acquitted the other accused persons of the charges under section 376 of IPC. Hence, accused appellant Mukesh Mahto has challenged his conviction under section Section 376 of IPC in this appeal.
21. Learned counsel for the appellant has challenged the conviction of the accused appellant mainly on the ground of (i) non-identification of the appellant Mukesh Mahto,(ii) insufficient light at the place of occurrence and
(iii) medical report (EXt-5) of the victim in which doctor PW-18 opined that alleged rape was not established.The learned counsel for the appellant has relied on judgment of the apex Court delivered in case of Dana Yadav @ Dahu(supra) on the point of not holding of the test identification and Devinder Singh (Supra) on the point that victim did not identify the accused appellant due to insufficient light and victim identified the appellant for the first time in the court without holding TI parade.
22.(i) Regarding first ground, non-identification of the appellant Mukesh Mahto,I find that in this case, the main allegation is that many miscreants numbering 14-15 were involved in breaking into the Girls High School, Kurpania in Bokaro. During the incident one of the miscreants had taken the lady cook of the school to a room and committed rape on her. victim PW-21 has in her examination-in-chief stated that during the incident 9 the miscreants were beating the sisters and also beat her. They were demanding money from them and out fear she hid behind the stitching machine. One of the miscreants pulled her from there and took her inside the room and bolted the door from inside and committed rape on her in spite of her resistance. After committing rape she was pushed inside the bathroom by the miscreants and directed to wash herself. She stated in her cross-examination that blood oozed out from her private part and that her petticoat and saree were stained with blood.In court victim PW-21 identified the accused Mukesh Mahto and stated at para-8 that he is the person who has committed rape on her.
(ii) PW-10 who is Sister Bona has deposed in her examination-in-chief that she had seen one of the miscreant forcibly taking the victim to a room and she was shouting "bachao-bachao". She went to save the victim and had seen the miscreant committing the rape of the victim by holding her two hands and making her lie on the floor. She was thumping her legs to save herself. She has identified accused appellant Mukesh Mahto in the court being amongst the miscreants.
(iii) There is apparently other eye-witness to the rape.Further,PW- 12,Prema Ekka had deposed that one of the miscreants committed rape of the victim and she has also identified Mukesh Mahto(appellant herein) in the court.PW-3,Sister Xaberia has also deposed that one of the accused persons had taken the victim by holding her hands. Thereafter, the victim came back and told that she was raped. PW-4,Beena Tete has also deposed that one of the accused persons had taken the victim to another room and the victim was then crying out "bachao-bachao". Thereafter the victim had come to the verandah and said them that the person who was wearing a yellow colored shawl had committed rape on her. This reference of the yellow coloured shawl is in conformity with the reference to the cream coloured shawl indicated in the fardbeyan of the informant. PW-5, Sister Kiran had deposed that at the time the accused was pulling the victim of rape towards the kitchen and told them "paisa bada ki izzat bada"
(money is more important or respect is more important).PW-5 further deposed that the victim had come in the verandah and then Sister Bona had told that the victim was raped.PW-9 Sister Patras Mary, who is the informant, has essentially corroborated her fardbeyan in her evidence which is also inclusive of rape that one of the miscreants having forcibly 10 dragged the victim to a room in front of the kitchen, thereafter they were informed by the victim that she had been raped.
(iv) Hence, I find that there is a definite and direct accusation of rape by the victim against the accused appellant Mukesh Mahto and victim has unerringly identified Mukesh Mahto in Court which victim has stated in para-8 of her examination-in-chief.Further,PW-10 and PW-12 have also identified the accused appellant Mukesh Mahto before the court. From the evidence of PW-3, PW-4, PW-5 and PW-9 also leads to the conclusion that appellant Mukesh Mahto was present at the place of occurrence.Hence,victim has identified the accused appellant Mukesh Mahto before the court unambiguously.
23. Regarding second ground i.e. insufficient light at the place of occurrence, I find from the evidence of the victim that victim was not cross- examined on the point of insufficient light at the place of occurrence. The other witnesses who were present at the place of occurrence i.e informant PW-9, PW-3, PW-4, PW-5, PW-9, PW-10 and PW-12 were also not cross- examined on the point of insufficient light at the place of occurrence. Hence, defense of the appellant on the point insufficient light at the place of occurrence is not acceptable.
24. Regarding medical report (EXt-5) of the victim in which doctor PW-18 opined that alleged rape was not established is not tenable in the facts of the present case. Here, it would be pertinent to note the judgment of Apex court delivered in case of Om Prakash v. State of U.P., (2006) 9 SCC 787 wherein Apex court has held that in a given case even if the doctor who examined the victim does not find sign of rape then it is not a ground to disbelieve the sole testimony of the prosecutrix.In The relevant part of the aforesaid judgment is reproduced herein below-
"13. It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as prestige of her family.---"11
In the case in hand victim is fully trustworthy witness and hence her evidence does not require corroboration from any other evidence including the evidence of doctor and that has been laid down in Om Prakash(Supra) also .
25. Judgment of Dana Yadav @ Dahu(supra) relied on by the counsel for appellant will not help the appellant as in this case victim had identified the appellant in Court and Para-38(c) of the said judgment in fact helps the case of the prosecution or victim. Para-38(c) of the said judgment reads as under:
"(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of the accused by a witness in court."
26. The judgment of Devinder Singh (Supra) relied on by the learned counsel for the appellant that appellant was not identified by the victim due to insufficient light is not applicable in the facts and circumstances of the present case as in the preceding paragraphs, I have come to the conclusion that victim was not cross-examined on the point of insufficient light at the place of occurrence.
27. Summing up, in this case, victim is a fully reliable witness who has made accusations of rape against the appellant Mukesh Mahto and there is no reason why the victim's evidence should not be believed. Even in his cross-examination under section 313 of Cr.p.c accused appellant has said nothing about circumstances appearing against him regarding the rape. Further the victim PW-21 and witnesses PW-10 and PW-12 have identified the accused appellant Mukesh Mahto before the court.The presence of the appellant at the place of occurrence is also corroborated by the evidence of prosecution witnesses PW-9, PW-3, PW-4, PW-5 and PW-5. Only the appellant has been singled out and identified amongst the other accused persons present before the court. Hence, prosecution has been able to prove the charges against the appellant Mukesh Mahto under section 376 of IPC beyond reasonable doubt.
28. Therefore, the judgment of conviction dated 18.01.2003 and order of sentence dated 20.01.2003, passed by the learned 5th Additional Sessions 12 Judge, Bermo at Tenughat in Sessions Trial No. 74/2001, is sustained and upheld. The bail bonds of the appellant Mukesh Mahto is cancelled.
29. Accordingly, this appeal is dismissed.
(RatnakerBhengra, J.) S.B.-NAFR