Jharkhand High Court
Ramay Honhaga vs The State Of Jharkhand on 18 August, 2023
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (SJ) No. 644 of 2011
(Against the judgment of conviction dated 24 th September 2011 and the order of sentence
dated 27th September 2011 passed by the learned 1st Assistant Sessions Judge, West
Singhbhum at Chaibasa in S.T. Case No. 72 of 2008)
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Ramay Honhaga, S/o Antu Honhaga, R/o Vill. Kupui, PO & PS Chakdhar,
Dist. Singhbhum West at Chaibasa .... ..... Appellant
Versus
The State of Jharkhand ... .... Respondent
(Heard on 27th July 2023)
PRESENT
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant(s) : Mr. Utkarsh Singh, Advocate
Mr. S.K. Upadhyay, Advocate
For the State : Mrs. Vandana Bharti, APP
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JUDGMENT
CAV on 27th July 2023 Pronounced on 18 August 2023 Per, Subhash Chand, J.
This criminal appeal is preferred on behalf of appellant Ramay Honhaga against the State of Jharkhand under section 374(1) of Criminal Procedure Code, 1973 against the judgment of conviction dated 24.09.2011 and order of sentence dated 27.09.2011 passed by the learned 1st Assistant Sessions Judge, West Singhbhum, Chaibasa whereby the appellant had been convicted and sentenced with regourous imprisonment for 8 years and a fine of Rs.10,000/- (Ten Thousand) and in default of payment of fine he was directed to undergo further additional imprisonment of 6 months for the charge under section 376 of the Indian Penal Code in S.T. Case No. 72 of 2008 arising out of Sonua P.S. Case No. 67 of 2007.
2. The brief facts of prosecution case leading to this criminal 2 Cr. Appeal (SJ) No. 644 of 2011 appeal are that the informant victim lodged the FIR with these allegations that the son-in-law of Birbal Angariya of her village namely, Ramay Honhaga, resident of Kapil Police Station Sonua, District West Singhbhum, on last monday 17.12.2017 around 4:00 pm in the evening, came to her house. At that time, she was alone at her house. Her parents had gone to Raurkella for labour work. Her elder sister Lalita Angariya had gone to reap paddy and she was tying the cow and bullocks in her cow-shade. Ramay Honhaga having seen her alone in a solitude place in the Guhal, he caught hold of her, he closed her mouth with the hand and on the point of the knife, he dropped her on the ground and committed rape. When she wanted to raise alarm he criminally intimidated her to finish her life. She became frightened; thereafter Ramay Honhaga went to his house in village Kapil. After sometime at 5:00 pm in the evening, her elder sister Lalita Angariya had come after having reaped the paddy and she told in regard to the occurrence to her sister. Her sister told in regard to the same to her parents over the phone who were in Raurkela. Her parents came to the house and he went to the house of village munda to tell him in regard to the occurrence. He also told in regard to the occurrence to the in-laws of Ramay Honhaga. The queries were made in regard to the same thereafter village munda and her parents also went to the house of Ramay Honhaga in the village Kapil. Ramay Honhaga fled away from there. There was delay in lodging the FIR because her parents had come from Raurkela after having come to know in regard to the occurrence thereafter he made queries in which the delay had occurred. She had washed her cloth on account of ignorance. From this written information of victim, the case crime no.67 of 2007 was registered with the Police Station Sonua District West Singhbhum against the accused Ramay Honhaga under section 376 of IPC. The investigating officer after having concluded the investigation filed charge-sheet against the accused Ramay Honhaga under section 376 of IPC to the learned Magistrate concerned on 15.02.2008. The Magistrate concerned took cognizance on the charge-sheet and committed the case to the court of the learned Sessions Judge, West Singhbhum because the offence was triable by the court of sessions.
3. The court of Sessions Judge transferred this case to the court of 1st Assistant Sessions Judge, Chaibasa. The charge was framed against the 3 Cr. Appeal (SJ) No. 644 of 2011 accused Ramay Honhaga by the trial court who denied the charge and claimed for trial.
4. On behalf of prosecution to prove the charge against the accused Ramay Honhaga in oral evidence examined PW1- Dr. Sushree Mira Kumari Arun, PW2- Victim prosecutrix, PW3- Lalita Angariya, PW4- Hari Shankar Jonko, PW5- Durga Charan Angariya, PW6- Padiya Deogam, PW7- Ram Chandra Angariya, PW8- Gandhi Angariya and PW9- Sumi Angariya, have been examined.
5. In documentary evidence prosecution adduced medical report of victim exhibit-1, signature of victim on fardbeyan exhibit-2, signature of Durga Charan Angariya on fardbeyan exhibit-2/1.
6. The statement of victim was recorded under section 313 of Cr.PC in which he denied the incriminating circumstances in evidence against him and stated himself to be innocent. No defence evidence was filed on bahalf of accused.
7. The learned trial court after hearing the argument of learned counsel of the accused and the learned public prosecutor on behalf of the State passed the judgment of conviction of the accused Ramay Honhaga under section 376 of IPC on 24.09.2011 and order of sentence on 27.09.2011 with rigorous imprisonment of 8 years and a fine of Rs.10,000/- (Ten Thousand). In default of fine, the convict was directed to undergo further additional imprisonment of 6 months.
8. Aggrieved from the impugned judgment of conviction dated 24.09.2011 and order of sentence dated 27.09.2011 this criminal appeal is preferred on behalf of appellant Ramay Honhaga on the ground that the impugned order passed by the court below is against the fact and law. The learned trial court has not appreciated the evidence on record in a proper perspective. The statement of all the witnesses are heresay and their testimony cannot be relied upon. Keeping in view the place of occurrence, no one of the locality has been examined to corroborate the testimony of prosecutrix. Further it is also stated that the FIR of this case was lodged six days belatedly to which there is no cogent explanation. The investigating officer neither had seized the cloths of prosecutrix nor he was examined on behalf of prosecution. The medical evidence also does not support the statement of prosecutrix. The ocular evidence is in contradiction of medical 4 Cr. Appeal (SJ) No. 644 of 2011 evidence. Indeed the appellant is the brother-in-law of prosecutrix and prosecutrix wanted to marry with her on account of his refusal to marry, this case has been planted against him. There is also contradiction in the statement of all the prosecution witnesses who are examined on behalf of the prosecution. In view of these grounds prayer is made to allow this criminal appeal and to set aside the judgment of conviction and order of sentence and to acquit the appellant from the charge framed against him.
9. Heard the learned counsel for the appellant and learned APP on behalf of the State and perused the material on record.
10. In order to decide the legality and propriety of the impugned judgment of conviction and order of sentence it would be proper to reappreciate and to make the appraisal of the evidence adduced on behalf of the prosecution oral as well as documentary. Therefore this Court advert to the evidence adduced on behalf of the prosecution which is reproduced hereunder:
11. On behalf of prosecution examined nine witnesses.
12. PW1 is the Dr. Sushree Mira Kumari Arun this witness in her examination-in-chief says that on 23.12.2007 she was posted at Sadar Hospital, Chaibasa as a Medical Officer and by the order of the Deputy Superintendent of Sadar Hospital, Chaibasa Dr. Priya Ranjan, she examined Mungri Angariya, daughter of Gandhi Angariya, resident of Bainka, PS Sonua, District West Singhbhum at 3:20 pm and this witness in her examination-in-chief stated in regard to the private examination of victim- P/V Examination:- hymen is ruptured, bleeding-mensuration bleeding present. Tenderness- No. Intriouth admits two finger tight. Swab examination- No spermatozoa present either alive or dead. In X-ray finding:- (i) sexual intercourse took place, (ii) the age of victim 15-16 years and (iii) no any foreign particle present in private part and body of victim. This witness stated that she prepared the medical report which bears her signature marked exhibit-1.
In cross-examination this witness says that hymen may be ruptured due to some other reason also. No mark of violence was present on the body of victim.
13. PW2- victim in her examination-in-chief says that the occurrence was of two months ago, on 17.12.2007 at 4 O'clock of evening 5 Cr. Appeal (SJ) No. 644 of 2011 she was tying her cow and bullocks. No one was at her house. Her father and mother had gone to Raurkela. Her Sister Lalita Angariya had gone to reap the paddy. Ramay Honhaga came there, he threw her on the ground and on the point of knife he committed rape on her and also stated if she cried he would give a stab to her with the knife. With the fear, she could not raise the alarm. Thereafter, the accused left the place of occurrence for his house. When her sister came back after having reaped the paddy to her house she told in regard to the occurrence to her sister. Her sister also apprised to her parents over the phone. Thereafter, her parents came to the village. Her parents and villagers also went to village Kapil to ask into the matter of occurrence by the accused but from there the accused fled away and the delay was caused in reaching the police station because the queries were made by her parents from the accused. Her fardbeyan was recorded by Daroga Ji she put her signature marked as exhibit-2. She alongwith her parents and village munda Durga Charan, all went to the police station. Her medical examination was also conducted at Sadar Hospital, Chaibasa where her parents and police had accompanied her. She identified the accused in the dock. In cross-examination this witness says that she had told the name of accused in the police station. The place of occurrence in north side was pual, in east side was the utensil kept in broken condition. In east side was the tree of tamarind and also banana tree. In west was the house of dubu and in south was the house of Motai. After rape she pushed the accused and he fled away.
14. PW3- Lalita Angariya in her examination-in-chief says victim was her sister and her parents were in Raurkela. She and her sister resided in the village on 17.12.2007. She had gone to reap the paddy. Her sister victim was alone at the house. In the evening at 5 O'clock when she came back to her house, her victim sister told that while she was tying the bullocks, Ramay Honhaga came there and he raped her. After coming to know this occurrence from her sister, she went to Hari Shankar Jonko and Padiya Deogam and told them in regard to the occurrence. She also told to village munda Durga Charan Angariya in regard to the occurrence and also apprised to Ram Chandra Angariya in regard to the occurrence. She had apprised in regard to the occurrence over the phone to her parents. She identified the accused Ramay Honhaga in the dock. In cross-examination this witness says 6 Cr. Appeal (SJ) No. 644 of 2011 she did not see the occurrence from her own eye. Her sister told her in regard to the occurrence. Ramay Honhaga is in their relation he is brother- in-law. The accused Ramay Honhaga used to come to his sasural. She had told to police that she had apprised to village munda and next day she also apprised to her parents over the telephone. The telephone was of the village.
15. PW4- Hari Shankar Jonko in his examination-in-chief says he knows victim. On 17.12.2007, Ramay Honhaga raped her he came to know in regard to the occurrence from Lalita Angariya. Lalita Angariya told him that when she had gone to reap the paddy, Ramay Honhaga raped her sister who was alone at that time. He also went to the house of victim. Victim told her in regard to woe tale. He alongwith parents of victim went to village kapil to the house of Ramay Honhaga. Ramay Honhaga was not at his house. They came back and reached to the police station. He recognized Ramay Honhaga in the dock.
In cross-examination this witness says he had not seen the occurrence from his own eye.
16. PW5- Durga Charan Angariya in examination-in-chief says that the occurrence was on 17.12.2007 Gandhi Angariya came to his house he told that his daughter had been raped by Ramay Honhaga in the Guhal which was adjoining through her house. Thereafter, search was made of Ramay Honhaga but he was not traced out. They also went to in-laws house of Ramay Honhaga, from there he fled away. The victim gave the written information to the police station concerned on which he also put his signature. He verified the same marked exhibit-2/1. This witness identified the accused in the dock.
In cross-examination this witness says Gandhi Angariya came to his house on 22nd prior to the date 22nd he had no knowledge of the occurrence. He asked to the victim in regard to the occurrence who affirmed in regard to rape. He had got Hukumnama of munda.
17. PW6- Padiya Deogam in his examination-in-chief says he is familiar with victim. He had heard that Ramay Honhaga had raped the victim in her Guhal. This witness identified the accused in the dock.
In cross-examination this witness says he has no personal knowledge of the occurrence.
18. PW7- Ram Chandra Angariya in his examination-in-chief 7 Cr. Appeal (SJ) No. 644 of 2011 says he is familiar with victim. His house is in front of the house of victim. The parents of victim resided in Raigarh where he was doing job and at the house was only victim and elder sister Lalita Angariya. He came to know from the villagers that Ramay Honhaga had raped victim. This witness identified the accused in the dock.
In cross-examination this witness says he had heard in regard to the occurrence. He had no personal knowledge of the occurrence.
19. PW8- Gandhi Angariya is the father of victim. He in his examination-in-chief says that the victim was his daughter. She is 14 to 15 years old. He and his wife resided in Raigarh and at the parental house was his daughter Lalita Angariya and victim. His daughter Lalita Angariya had told him over the phone that victim was raped by Ramay Honhaga. He alongwith his wife came to back to his village and went to the village munda and came to know in regard to the occurrence from the victim as well who told that the accused had intruded in the house and while she was tying the bullocks in the Guhal he raped her. She could not raise alarm because the accused had threatened her on the point of knife. This witness identified the accused in the dock.
In cross-examination this witness says that Ramay Honhaga is the son-in-law of his elder brother. He never wanted to that his daughter married with Ramay Honhaga
20. PW9- Summi Angariya is the mother of victim. She in her examination-in-chief says that her daughter Lalita Angariya and victim daughter both resided in the village. She was residing alongwith her husband in Raigarh. Six months ago her daughter had apprised over the phone in regard to commission of rape upon her younger daughter by Ramay Honhaga. Ramay Honhaga is the son-in-law of Birbal Angariya of her village. She came to know from victim in regard to the occurrence. She also went to village munda and told in regard to the occurrence to him and other persons of the village. Thereafter, they went to the police station. This witness identified the accused in the dock.
In cross-examination this witness says that Daroga Ji had not interrogated her.
21. From the very matrix of the prosecution case it is found that on 17.12.2007 at 4 O'clock of evening the victim was all alone at her 8 Cr. Appeal (SJ) No. 644 of 2011 house. Her parents had gone to Raigarh where they were doing job. Her elder sister Lalita Angariya had gone to reap the paddy and she was alone at the house at the time of occurrence. While she was tying the bullocks in the Guhal at the same time accused Ramay Honhaga came there he dropped her on the ground and raped on the point of knife.
22. PW2 victim the prosecutrix in her testimony has stated that on 17.12.2007 in the evening at 4 O' clock she was tying the bullocks and the cow. No one was at her house. Her father and mother had gone to Raurkela and her sister Lalita Angariya had gone to reap paddy. Ramay Honhaga came he dropped her on the ground and on the pointing of knife he raped her. She could not raise alarm on account of fear. In the evening when her sister Lalita Angariya came she told in regard to the occurrence to her sister. Her sister told to her parents over the phone in regard to the occurrence, thereafter, they came back to the village. When her parents came to the village, he went to the house of accused to village Kapil but Ramay Honhaga, the accused fled away from there. Her parents also made queries in which the delay was caused in lodging the FIR. She gave the written information with the police station concerned on which was read over to her she put her signature marked exhibit-2. In the police station her parents village munda were also went with her. She was medically examined.
23. From the testimony of the PW1- prosecutrix it is found that this witness has proved the contents of the fardbeyan exhibit-1. The victim herself is the informant and she has also categorically stated in regard to the occurrence in what way the accused had committed rape upon her. In her cross-examination this witness also stated in regard to the place of occurrence of which in the north side was the pual, in east side was the utensil kept in broken condition and was the tree of tamarind and banana. In west was the house of dubu and in south was the house of Motai.
24. PW1 victim prosecutrix is the sole witness of the rape. After commission of rape upon her when in the evening her sister Lalita Angariya came to her house she told in regard to the occurrence in what way the accused Ramay Honhaga had committed rape upon her. The elder sister of victim Lalita Angariya has been examined as PW3 on behalf of prosecution. This witness PW3 Lalita Angariya says that her parents had gone to Raurkela and in the village she and her victim sister 9 Cr. Appeal (SJ) No. 644 of 2011 reside. On 17.12.2007, she had gone to reap the paddy and her victim sister was alone there. When at 5 O'clock she came back to the house her victim sister told that when she was tying the bullocks in Guhal, Ramay Honhaga dropped her and committed rape upon her. This witness in his examination also stated that she apprised in regard to the occurrence to her parents who were in Raurkela and they came back to the village. She also stated that she had also told in regard to occurrence to Hari Shankar Jonko and Padiya Deogam, village munda Durga Charan Angariya, Ram Chandra Angariya as well.
25. This witness PW3- Lalita Angariya though is not the eye witness of the occurrence, yet soon after one hour of the occurrence when she came back to her house after having reaped the paddy her sister victim told in what way the accused Ramay Honhaga had committed rape upon her. Whatever the victim has narrated to her, this witness deposed her statement before the trial court. Therefore, the testimony of this witness is admissible under section 6 of the Evidence Act as a res- gestae evidence which is an exception wherein the hearsay evidence becomes admissible.
26. The Hon'ble Apex Court in "Krishan Kumar Malik vs. State of Haryana" reported in (2011) 7 SCC 130 has held that purpose of res-gestae under section 6 of the Evidence Act is to complete the missing links in a chain of evidence of a solitary witness. It is an exception to general rule whereunder hearsay evidence becomes admissible. Such evidence must almost be contemporaneous with the Acts and there should not be interval which would allow farbrication.
27. In this case the PW3 Lalita Angariya who came back to her house after one hour of the occurrence at 5 O'clock pm, her victim sister told to her that at 4 O'clock of evening the accused Ramay Honhaga having seen her alone while she was tying the bullocks in the Guhal, dropped her on the ground and on the point of knife had committed rape upon her. The time gape between the occurrence and the time when the victim told in regard to her woe tale to her elder sister is so less that there is no chance of fabrication. The testimony of this witness is trust worthy which transpires confidence in the court.
28. PW4- Hari Shankar Jonko has come to know in regard to the 10 Cr. Appeal (SJ) No. 644 of 2011 occurrence from Lalita Angariya the elder sister of victim. This witness in his statement says that he came to know in regard to the occurrence from Lalita Angariya who told that her younger sister had been raped by Ramay Honhaga on 17.12.2007; while she was alone at the house and Lalita Angariya had gone to reap the paddy, her parents were in Raigarh. This witness also stated he reached to the victim and asked her in regard to the occurrence the victim had also told him how the accused had committed rape upon her. Therefore, the testimony of this witness also becomes admissible in evidence though he has not himself seen the occurrence yet he came to know in regard to the occurrence from the elder sister of victim and also from the victim herself. Herein the victim has been examined as PW2 on behalf of prosecution and the elder sister of victim Lalita Angariya has been examined as PW3, therefore, the testimony of this witness PW4 also becomes admissible in evidence.
29. The Hon'ble Apex Court in "Mukhtiar Singh v. State of Punjab" AIR 2009 SC 1854 has held that the evidence of witness who came at the scene of occurrence immediately after the occurrence. Though he had not seen the accused attacking the deceased, yet he came to know in regard to the occurrence from that eye witness he sent the information to the police, his evidence about such information though was hearsay, but is corroborated with the substantive evidence of an eye witness therefore was admissible.
30. PW8 Gandhi Angariya and PW9 Summi Angariya both are the father and mother respectively of victim. Both these witnesses have stated that their daughter victim was 14 to 15 years old. They were residing in Raigarh and at the house in village their elder daughter Lalita Angariya and younger daughter victim had been residing. They came to know over the phone that their younger daughter had been raped by Ramay Honhaga. They came back to their village and also went to the house of Ramay Honhaga and also to the in-laws house of Ramay Honhaga from where he fled away and was not found. They also went to the village munda who was examined as Durga Charan Angariya to whom they told in regard to the occurrence and thereafter when they alongwith them village munda Durga Charan Angariya also made search of the accused but he was not traced out and on the fardbeyan PW8 Gandhi Angaria and the village munda PW5 also put their signature.
11 Cr. Appeal (SJ) No. 644 of 2011
31. Likewise PW5 Durga Charan Angariya who is the village munda he also deposes in his statement that Gandhi Angariya came to his house on 22.12.2007 and he told that on 17.12.2007 his younger daughter was raped by Ramay Honhaga in her Guhal. Because at that time of occurrence his younger daughter was alone and his elder daughter had gone to reap the paddy and he and his wife both were in Raigarh. This witness also says thereafter they made search of Ramay Honhaga but he was not found and he went to the police station alongwith PW8- Gandhi Angariya and the victim where the fardbeyan of victim was recorded. He also put his signature on the fardbeyan.
32. In testimony of PW5- Durga Charan Angaria the village munda, PW8- Gandhi Angariya and PW9- Summi Angariya there is no contradiction in their testimony they have narrated in regard to the occurrence which is found in consonance of their statement given to the police. The testimony of PW8- Gandhi Angariya who is father of victim, PW9- Summi Angariya who is mother of victim the testimony of both theses witnesses also becomes admissible in evidence reason being they came back to their house from Raigarh to their village having come to know in regard to occurrence from their elder daughter Lalita Angariya and on reaching their house the victim daughter told them in regard to the woe tale. Herein the victim daughter was examined as PW2 and Lalita Angariya has been examined as PW3, therefore, the testimony of PW8- Gandhi Angariya and PW9- Summi Angariya also becomes admissible in evidence.
33. So far as the testimony of PW5- Durga Charan Angariya is concerned the same is also becomes admissible in evidence because he came to know in regard to the occurrence from Gandhi Angariya the father of victim after six days of occurrence. Thereafter, he also reached to house of Gandhi Angariya and asked him in regard to the occurrence from the victim. The victim has told him how in regard to the occurrence that Ramay Honhaga had committed rape upon her while he was tying the bullocks in the Guhal who committed rape upon her on the pointing of knife. Therefore, the testimony of this witness PW5- Durga Charan Angariya also becomes admissible in evidence reason being he came to know in regard to occurrence firstly from PW8- Gandhi Angariya and then 12 Cr. Appeal (SJ) No. 644 of 2011 came to know in regard to occurrence from victim PW2.
34. Therefore, the testimony of all the above witnesses whose evidence has been analyzed hereinabove have a complete chain of evidence which is connected to the solitary testimony of the prosecutrix who is victim in this case.
35. Learned counsel for the appellant has also submitted that there is delay in lodging the FIR and the learned trial court has not considered this delay to be fatal to the prosecution case.
36. From the FIR itself it is found that date of occurrence is 17.12.2007 and this FIR was lodged on 23.12.2007 there is delay of 7 days in lodging the FIR but this delay is well explained from the testimony of the informant PW2 victim herself and also from testimony of PW3- Lalita Angariya, PW8- Gandhi Angariya, PW9- Summi Angariya and also from the testimony of PW5- Durga Charan Angariya the village munda. PW2 victim has told in regard to the occurrence to her elder sister PW3- Lalita Angariya. PW3- Lalita Angariya in her statement has stated that she had apprised to her parents who were in Raigarh over the phone. Her parents came back from the Raigarh to the village on 22.12.2007. Thereafter, he reached to village munda and also house of accused made search of him and the delay was caused in lodging the FIR. The same kind of statement is given by PW2 victim herself.
PW8- Gandhi Angariya and PW9- Summi Angariya have deposed in their statement that when on 22.12.2007 after having come to know the woe tale from the victim herself they went to the house of accused Ramay Honhaga in village Kapil where he was not found and search was also made of him, they also went to village munda and in all these queries the time was taken. Thereafter, with the village munda and victim reached to the police station and lodged the FIR. PW5- Durga Charan Angariya who is village munda also stated that on 22.12.2007 Gandhi Angariya had come to him and told him in regard to the occurrence. He alongwith Gandhi Angariya made search of Ramay Honhaga accused but he was not traced, thereafter, he went to the police station. Gandhi Angariya and victim where they lodged the FIR. Therefore, the delay in lodging the FIR has been well explained and same is not found fatal to the prosecution case.
37. The testimony of the prosecutrix PW2 which is corroborated 13 Cr. Appeal (SJ) No. 644 of 2011 with the testimony of PW3- Lalita Angariya as a resgestae evidence and also corroborated with the testimony of PW4- Hari Shankar Jonko, PW5- Durga Charan Angariya, PW8- Gandhi Angariya, PW9- Summi Angariya is also well corroborated with medical evidence.
38. PW1- Dr. Sushree Mira Kumari Arun has been examined on behalf of prosecution. This witness has stated that she conducted the medical examination of victim and she opined: (i) sexual intercourse took place, (ii) age of victim was 15-16 years, and (iii) no foreign particle present in private part and body of victim. In private examination of victim she stated that hymen was ruptured, no spermatozoa either alive or dead was found in swab examination. She has proved the medical examination of victim as exhibit-1.
From the testimony of this witness PW1, Dr. Sushree Mira Kumari Arun it is found that the age of victim was 15 to 16 years. This medical examination was conducted on 23.12.2007 i.e. after six days from the date of commission of rape which was committed on 17.12.2007. As per opinion of this doctor, the hymen was ruptured and she also opined that the sexual intercourse had taken place. So far as in swab examination neither alive nor dead spermatozoa is found the reason being in the meanwhile the victim had taken bath she had washed her cloths it came in testimony of victim. Therefore, there was no possibility of alive or dead spermatozoa in swab examination of his swab was taken six days from the date of occurrence. Therefore, the testimony of prosecutrix is also found corroborated with medical evidence.
39. In "State of Rajasthan v. Narayan" (1992) 3 SCC 615, the Hon'ble Apex Court has held it is true that the compliant was lodged two days later but as stated earlier that the indian society being what it is the victim of such a crime of rape ordinarily consult relative and are hesitant to approach the police since it involved the question of moralistic and chastity of a woman, woman and her relative have to struggle his several situations before deciding to approach to police.
In "State of Punjab v. Gurmeet Singh" (1996) 2 SCC 384, the Hon'ble Apex Court has held that the Court cannot overlook the fact that in sexual offences delay in lodging of FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to 14 Cr. Appeal (SJ) No. 644 of 2011 the police and complain about the incident which concerns the reputation of prosecutrix and the honour of the family. It is only after giving it a cool thought that complaint of sexual offence is generally lodged.
40. The Hon'ble Apex Court in "S. Ram Krishna v. State represented by PP Andrapradesh Hydrabadh" 2008 (63) SCC 617 SC has held that the testimony of prosecutrix cannot be put at par with an accomplice. Prosecutrix who has full understanding, her testimony should be relied by the Court if she has no strong motive of false implication of the accused.
The Hon'ble Apex Court in "Mukesh vs. State of Chhattisgarh" (2014) 10 SCC 327 has held that the conviction in a rape case can be made on the testimony of prosecutrix if the testimony of victim holds weight it requires no corroboration.
41. The statement of accused was recorded under section 313 of Cr.PC in which though he denied the incriminating circumstances and told himself to be innocent; but no defense evidence has been adduced on behalf of accused in rebuttal of the incriminating circumstances which were explained to him in his statement under section 313 of Cr.PC.
42. Lastly the learned counsel for the appellant has submitted that the occurrence is of 17.12.2007 and it is 2023, 16 years have elapsed, the appellant was convicted on 24.09.2011 and order of sentence on 27.09.2011. He had served out the sentence in jail total 4 years 6 months 5 days. This occurrence of rape is prior to the amendment in IPC of the year 2013. Therefore, in view of the proviso of section 376(1) of IPC for the adequate and special reasons to be recorded the order of sentence which was passed against the appellant may be reduced from the minimum which is 7 years, therefore, submitted that the appellant be sentenced with the imprisonment which he had undergone.
In support of his submission, the learned counsel for the appellant has referred the following case i.e. "Baldev Singh and others v. State of Punjab" (2011) 13 SCC 705, "Raj Kumar @ Raju Yadav @ Raj Kumar Yadav" (2006) 9 SCC 589 and "Sukhwinder Singh v. State of Punjab" (2000) 9 SCC 204.
43. Herein while considering on the quantum of the sentence on which the learned counsel for the appellant has raised the plea to reduce the 15 Cr. Appeal (SJ) No. 644 of 2011 order of sentence. It would be appropriate to reproduce herein the legal propositions of law as laid down by the Hon'ble Apex Court.
The Hon'ble Apex Court in "State of Madhya Pradesh v. Bala @ Balram" AIR 2005 SC 3567 has held that rape is a heinous crime it is crime against the society and also against the dignity which reduces the man to an animal. Such offence once is proved lightly itself and affront to the society. To reduce the order of sentence the reasons must be relevant to exercise their discretions. Long pendency of the trial or offer of the rapists to marry the victim are not the relevant reason. The age of the offender by itself is not adequate reason under guise of the reformation, theory, the court cannot forget the duty to the society and the victim. The Court has to consider the plight of a victim and social stigma that may follow the victim to grave and particularly ruins all prospects of normal life for the victim.
The Hon'ble Apex Court in "State of Karnataka v. Raju"
(2007) 11 SCC 490 has held that physical scar may heal up; but the mental scar always remains. When a woman is ravished, what is inflicted is not merely the physical injury but a deep sense of deathless shame. The judicial response to human rights cannot be blunted by the legal jugglery.
44. Therefore, in view of the above legal proposition of law as laid down by the Hon'ble Apex Court in present case the victim who was 15 to 16 years old and when she was alone, the accused who was major and married person having got the opportunity that she was all alone in the Guhal, committed rape upon her on the point of knife. As such, the order of sentence passed by the court below needs no interference and same cannot be reduced taking into consideration the submissions made by learned counsel for the appellant.
45. In view of the analysis of the evidence hereinabove, I am of considered view that the prosecution has been successful in proving its case beyond reasonable doubt and the impugned judgment of conviction and order of sentence passed by the court below needs no interference and this criminal appeal deserved to be dismissed.
46. This criminal appeal is, hereby, dismissed. The impugned judgment of conviction and order of sentence passed by the court below is, hereby, confirmed.
47. The accused is on bail, his bail bonds are cancelled and the trial 16 Cr. Appeal (SJ) No. 644 of 2011 court is directed to issue the non-bailable warrant of him and ensure to send him to jail to serve out sentence passed by the trial court in S.T. Case No. 72 of 2008 arising out of Sonua P.S. Case No. 67 of 2007.
48. Let the record of learned lower court be sent back alongwith copy of judgment.
(Subhash Chand, J.) Jharkhand High Court, Ranch RKM AFR