Abhimanyu Kashyap @ Gobardhan Ram vs State of Jharkhand

Vishnudeo Narayan, J.—This appeal at the instance of the appellant named above is directed against the impugned judgment and order dated 21.4.2001 and 23.4.2001 respectively passed in Sessions Trial No. 157 of 2000 T.R. No. 5 of 2000 by Shri Asit Baran Shekhar, 1st Additional Judicial Commissioner-cam-Special Judge, S.C. and S.T. (Prevention of Atrocities) Act, Ranchi whereby and whereunder the appellant was found guilty for the offence punishable u/s 376 of the Indian Penal Code and Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act and he was convicted and sentenced to undergo rigorous imprisonment for the offence u/s 376 of the Indian Penal Code and to pay a fine of Rs. 5.000/- and in default thereof to undergo rigorous imprisonment for two years and he was further convicted and sentenced to undergo rigorous imprisonment for seven years for the offence u/s 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act, 1989. However, both the sentences were ordered to run concurrently. It has also been directed in the impugned judgment that the amount of fine aforesaid shall be paid to the victim. However, co-accused Awadesh was not found guilty and he was, accordingly, acquitted.

The prosecution case has arisen on the basis of the written report (Ext. 2) of informant (PW 2), Deoki Tuti, the victim of the alleged ravishment lodged before Khunti Police Station on 15.9.1998 at 15.30 hours regarding the occurrence which is said to have taken place on 14.9.1998 between 20.30 hours and 21.00 hours on a ''Parti'' land, 50 yards north of Bhadra Chitore Kachchi road, P.S, Khunti, District-Ranchi and the appellant was also produced by the informant and her companions after apprehending him from his motorcycle repair shop along with the recovered dagger. The case was instituted against the appellant by drawing of the formal FIR (Ext. 5) on the basis of the said written report which was received on 16.9.1998 in the Court empowered to take cognizance. PW 4 Karmi Sanga and PW 9 Ram Dayal Munda, who were the parents of the informant figured as witness on the written report (Ext. 2).

The prosecution case, in brief, is that the informant is the resident of village-Marangdih, P.S. Khunti, District-Ranchi and her mother PW 4 Karmi Sanga works as ANM in Takara Primary Health Centre and she resides in village-Tarosheeladon. The informant had gone to Ranchi in the morning on 14,9.1998 by Trecker from Khunti for submitting her application form for appointment as Constable and also for making enquiry for submission of the form for her Inter examination. It is alleged that she returned Khunti in the evening when it has become dark and she went to the appellant, who is known to her from before, and who is a mechanic and has his shop for repairing scooter and motorcycle by the side of Khunti main road and she requested him to take her to village-Tarosheeladon and at this, the appellant told her that there is no fuel in his scooter and if she will provide money for fuel, he will take her to village-Tarosheeladon and at this the informant gave him rupees fifty for the fuel and the appellant went to the petrol pump with his scooter for getting fuel and he asked her to proceed towards the petrol pump. It is alleged that after sometime, the appellant came with his scooter and she sat on it as a pillion rider, and the appellant proceeded for village, Tarosheeladon. It is also alleged that appellant in course of journey, after covering some distance, turned the scooter on the road which goes to village Chikore via Pipratoli, ahead of Tajna river which was not the route for going Tarosheeladon and inspite of her protest he proceeded on the said road and after going for some distance on the said road he stopped the scooter near a fallow land and he caught her and removed her Saiwar after intimidating her to be done to death by dagger. It is also alleged that one boy, perhaps, acquainted with the appellant also came there by a motorcycle and by then, it was round about 20.30 hours and they ravished her one by one. It is also alleged that the informant fled away from there after her ravishment finding an opportunity leaving her sandal and bag at the place of occurrence and came to the house of PW 5, Satuwa Munda in village-Bhdara, who is her cousin brother and narrated the incident to him and he in turn informed her parents. It is also alleged that the informant in the company of PW 5 Satuwa Munda and others went to the place of occurrence for her sandal and bag but these articles were not found there and thereafter she along with others came to Khunti at the repair shop of the appellant where he was caught and dagger was also recovered and from there she came to the police station along with them with apprehended appellant and the recovered dagger. It is alleged that it has transpired to her in course of talk between the appellant and the said boy that the name of the said boy is Awadesh and she may identify him.

In course of investigation, the statement of the informant u/s 164 of the Code of Criminal Procedure was recorded by PW 3, Shri Raj Kumar Turi, Judicial Magistrate, Khunti and the said statement is Ext. 3 in this case. Produc-tion-cum-seizure lists (Ext. 6 and 6/1) were prepared by PW 10 Narayani Choudhary, the IO of this case in respect of dagger recovered from the appellant and blood stained underwear and Samiz of the informant respectively which was witnesses by PW 6 Ratan Pahan and PW 5 Satuwa Munda as well as PW 6 Ratan Pahan and PW 7 Jhirga Munda respectively and their signatures thereon are Ext. 4 series. The informant was also sent for medical examination to Sub-Divisional, Hospital, Khunti on that very day where she was examined at 16.15 hours.

The appellant has pleaded not guilty to the charges levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case at the instance of a person of village, Bhadra i.e., of PW 5 Satuwa Munna and the said man was assaulted by him for causing damage to his drain and from him a sum of Rs. 300/- was realized.

The learned Court below found the evidence of PW 2 Deoki Tuti trustworthy and reliable materially corroborated by the medical evidence read with the objective finding of the IO regarding the place of occurrence and found the appellant guilty and convicted and sentenced him as stated above.

Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that as per the prosecution case two persons are said to have ravished the informant but the learned Court below acquitted co-accused Awadesh and in this view of the matter, the conviction of the appellant on the basis of the same set of evidence suffers with illegality and the evidence of PW 2, the informant is not wholly reliable and for that corrobora-tion is required by some legal, reliable and unimpeachable evidence of natural, competent and independent witness of the occurrence. It has also been submitted that the learned Court below did not meticulously consider the evidence on the record and has erred in coming to the finding of the guilt of the appellant. It has further been submitted in the alternative that the sentence awarded to this appellant is very severe and he has already undergone imprisonment for a period of about five years and in this view of the matter, this appeal may be disposed of reducing his sentence to the period already undergone by him in custody. It has also been submitted that in -a years and shall also be liable to fine and in view of the mandate of the legislature, the ratio of the aforesaid cases is of no help to the appellant in this case.

(Sic).

PW 2 Deoki Tuti, the alleged victim of ravishment, belongs to scheduled tribe and the name of her father is Ram Dayal Munda and her mother is Karmi Sanga. PW 2 has described herself to be a member of scheduled tribe in the cause title of her deposition. PW 4 Karmi Sanga and PW 8 Ram Dayal Munda have also described themselves as the member of scheduled tribe. From the statement of the appellant as well as acquitted co-accused Awadesh recorded u/s 313 of the Code of Criminal Procedure it appears that they do not claim themselves to be the members of either scheduled tribe or scheduled caste. The learned Court below in para 25 of the impugned judgment has recorded a finding in respect thereof for the applicability of the offence u/s 3(2)(v) of the said Act. I see no reason to disagree with the finding of the learned Court below in respect thereof.

PW 2 Deoki Tuti, is an eighteen years old unmarried nubile virgin girl prosecuting her studies in the college and she was to appear in her Inter examination. She has deposed that on the day of the occurrence she had gone to Ranchi by a tracker to submit her application for her selection for being appointed as Constable and also to make enquiiy regarding submission of form for appearing in the Inter examination and she came back to Khunti in the evening when it has become dark. She has deposed that she was acquainted with the appellant from before and the appellant was introduced to her by her mausi.'' She has also deposed that she nad been at the house of the appellant with her mausi and she has also met the appellant three or four times prior to the occurrence and she had also talk with him in the company of her mausi. It, therefore, appears from the evidence of PW 2, the informant that she was well acquainted with the appellant prior to the occurrence and she had confidence in him regarding her welfare. She has further deposed that she made a request to the appellant to take to her village, Tarosheeladon where her mother resides and she gave Rs. 50/- to the appellant to purchase fuel for his scooter to carry her to the said village on his demand on the ground that there is no fuel in his scooter and the appellant purchased fuel from the petrol pump and she proceeded with him on the said scooter for village, Tarosheeladon. Her evidence is further to the effect that while proceeding for village, Tarosheeladon the appellant changed the route and proceeded towards village, Chitore, ahead of Tajana river and she protested to him in respect thereof and at this, the appellant intimidated her to be done to death if she makes further protest. She has also deposed that he stopped the scooter near a fallow land on Bhadra-Chitore Kachchi road and he caught her and started removing her Salwar suit and felled her on the ground and pinned her there and ravished her inspite of her protest and resistance and in course of her ravishment by the appellant, one boy also came there and the said boy also attempted to seize her for the said purpose but she rebuked him. She has further deposed that-finding an opportunity she escaped away from there leaving her sandal and bag at the place of occurrence and reached to the house of her cousin brother, PW 5 Satuwa Munda in village Bhadra where she has narrated the incident to him and his wife PW 8 Dibbu Hansda. In para 3 of her cross-examination she has deposed that she has sustained injuries in course of her ravishment on her elbow, leg and back and whenever she attempted to raise alarms, the appellant used to stuff her mouth. She has also deposed that in the following morning she had come to motorcycle repair shop of the appellant in the company of PW 5 Satuwa Munda where the appellant was apprehended and a dagger was recovered from his possession and the appellant was brought to the police station where she has submitted her written report regarding the occurrence in question and the said dagger was also produced there. She has also deposed that she had narrated the incident to her mother, PW 4 Karmi Sanga. PW 1 Dr. Umeshwari Kumari has deposed to have examined the informant on 15.9.1998 at 16.15 hours and she has found the following external and internal injuries on the person of the informant :--

"(i) multiple abrasion on the left elbow;

(ii) multiple abrasion on the front of left leg and left knee;

(iii) abrasion on the right big toe;

(iv) anterior tear of hymen with bleeding;

(v) left lateral tear with bleeding on the hymen."

The medical witness has also deposed to have found the presence of mobile spermatozoa in her vaginal swab. The medical witness has further deposed that there were blood-stains found on her skirt and underwear, which was handed over to the police. In view of her objective findings aforesaid, the medical witness has opined that there was sign of recent sexual intercourse with the informant. She has also opined that the informant is about eighteen years old. In her cross-examination, she has specifically deposed that if sexual intercourse is committed with consent abrasions on different parts of body would not be found but there may be injuries of tear of the hymen. According to the medical witness recent sign of sexual intercourse means that there has been cohabitation done within 48.00 hours. From the medical evidence it appears that the informant was a nubile virgin girl and she was sexually assaulted by the appellant forcibly felling her on the ground, which has caused internal injuries in her private part as well as external injuries on her body. The medical evidence, therefore, materially corroborates the testimony of PW 2, the informant regarding her ravishment in the manner as deposed by her as well as averred in her written report (Ext. 2). PW 10 Narayahi Choudhary, the IO has deposed to have inspected the place of occurrence, which is a fallow land, 50 yards away from. Bhadra Chitore Kach-chi road and the said place of occurrence is situated at a lonely place and the adjoining villages in all the four directions are at a distance of two kilometers to four kilometers. The IO has deposed in the most clear and unequivocal terms that he has found trampling marks at the place of occurrence and earth at the place of occurrence was found crushed. He has further deposed that he has seized the clothes of the informant containing blood and semen as per Ext. 6/1 and has also sent the same to the Forensic Science Laboratory for their chemical examination. It appears that the report of the Forensic Science Laboratory has not been received so far in this case. The medical witness has also deposed to have found blood- stains on the undergarment of the informant. It is, therefore, established from the evidence of the informant read with objective finding of the IO coupled with the medical evidence as deposed by PW 1 that the informant was ravished against her will and without her consent by the appellant to the point of dagger after felling her on the fallow land, 50 yards away from Bhadra Chitore Kachchi road and the said place of occurrence is a lonely place. The presence of any ocular witness of the alleged ravishment is totally ruled out in the facts and circumstances of this case. The evidence of PW 2, the informant is reliable and trustworthy and in the facts and circumstances of the case no cor-roboration of her evidence is at all required in view of the fact that she has been ravished on the sly. PW 5, PW 8, PW 4 and PW 9 besides PW 6 and PW 7 are all hearsay witnesses of the ravishment of the informant by the appellant and they have come to know regarding the incident either by the informant or from PW 5, Satuwa Munda and they deposed regarding the factum of ravishment of the informant as hearsay witnesses.

According to the prosecution case the appellant as well as acquitted co-accused Awadesh are said to have ravished the informant at the place of occurrence. There is averment in the written report of the informant that she came to know the name of other boy as Awadesh from talk between the appellant and him and on that basis she has disclosed the name of acquitted co-accused Awadesh also as participant in the occurrence and she also claims to identify him. It is pertinent to mention here that the said acquitted co-accused Awadesh was never put on test identification parade for his identification by the informant. In her statement u/s 164 of the Code of Criminal Procedure she has stated in the same tune as averred in her written statement. The informant in course of her evidence has categorically deposed that the acquitted co-accused Awadesh is not the person who has ravished her and she has failed to Identify him in the dock as her rapist. Therefore, the learned Court below has rightly acquitted co-accused Awadesh in the facts and circumstances of the case. Appellant in this case can never derive any benefit in his favour due to the acquittal cf co-accused Awadesh as per evidence on the record directly implicating him as the ravisher of the informant. Therefore, it cannot be said that the evidence of PW 2, the informant, is not reliable and trustworthy and her evidence, therefore, cannot be termed as partly reliable and partly unreliable requiring any corroboration in respect thereof by any other independent, natural and competent witness. It is pertinent to mention here that the medical witness has found external injury on her person as well as internal injury on her private part including tear of her hymen and the IO has also found trampling marks at the place of occurrence. What more corroboration is required in the facts and circumstances of the case regarding the evidence of the informant. Therefore, there is no force in the contention of the learned counsel for the appellant in respect thereof. And to crown all, there is consistent evidence on the record that the informant and others came to the repair, shop of the appellant and apprehended the appellant and also recovered a dagger from his possession and produced him before the police. There is no animus on the part of the informant to falsely rope of appellant in this case. There is no enmity between the appellant and the informant prior to the occurrence in question. On the contrary, the informant has reposed confidence in him and she sought his benign protection for taking her to her house at village Tarosheeladon but the appellant has proved himself to be a vulture shattering the confidence and faith reposed in him by the informant by ravishing her in a lonely place where none can come to rescue her. The learned Court below has meticulously considered the evidence on the record in proper perspective and has rightly come to the finding of the guilt of the appellant. I see no reason to disagree with the finding of the learned Court below in respect thereof.

The appellant has been remanded to custody on 16.9.1998 and he remained in custody as under trial prisoner till 21.4.2001. He was convicted vide impugned judgment dated 21.4.2001 and thereafter he has remained in custody as convict. It, therefore, appears that the appellant has remained in custody for a period about five years. He has been sentenced to undergo rigorous imprisonment for ten years for the offence u/s 376 of the Indian Penal Code and rigorous imprisonment for seven years for the offence u/s 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act. He was also sentenced to pay a fine of Rs. 5,000/-for the offence u/s 376 of the Indian Penal Code and in default thereof to undergo rigorous imprisonment for two years. The. contention of the learned counsel for the appellant is �hat the sentence imposed upon the appellant is severe and considering the fact that he has remained in custody for a period about five years, a lenient view in the matter be taken and he should be released modifying the sentence to the period already undergone by him in custody. It does not appear from perusal of the record that the appellant has deposited the amount of fine imposed on him for the offence u/s 376 of the Indian Penal Code. Section 376 of the Indian Penal Code is relevant which runs thus :--

"376. Punishment for rape.--(1) Whoever, except in the cases provided for by Sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) x x x x x x x x

It, therefore, appears that the legislature has mandated that a person who commits rape shall be punished with imprisonment for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and also be liable to fine. However, a liberty has given to the Court that for adequate and special reasons the sentence of imprisonment may be imposed for a term less than seven years. It has been observed by the Apex Court in the case of Ramashraya Chakravarti Vs. State of Madhya Pradesh, that to adjust the duration of imprisonment to the gravity of a particular offence is not always an easy task. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular Court with inevitable differences arising in the context of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum prescribed by law and in judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by the Court. Here in this case, the informant who is the victim of ravishment, is a nubile virgin girl under her teens, prosecuting her studies and under duress she came to the appellant for help since the appellant was known to her from before . and she had reposed faith in him for her safe arrival to her house. The appellant intentionally with criminal intent and predetermination deliberately changed the course of journey and took her on a different route while proceeding to her house and at a lonely place ravished her at the point of dagger after felling her on the fallow land which has resulted internal as well as external injury on her person including tear of her hymen. The appellant has behaved in the most shockingly indecent manner. The magnitude of his offence cannot be over emphasized in the context of the fact that he misused his position as a helper of the informant in distress. Having misused his position as a good Samaritan and having tricked taking her inside a lonely place and taking advantage of the situation he subjected the informant to sexual assault and it is a crime of which a serious view must be taken. The crime on the woman in respect of her molestation and sexual assault is increasing day-by-day and in this view of the matter, the sentence imposed on the culprit should be deterrent. In this case, there is also no mitigating circumstance on the record for reduction of the sentence imposed upon the appellant. Therefore, there is no adequate and special reasons for reducing the sentence awarded to the appellant in this case. The ratio of the case of Phul Singh (supra) State of Maharashtra (supra) and Goapl Chandra Das (supra) as well as of Shafi (supra) and Bhan Singh (supra) relied upon by the appellant for reducing the sentence imposed on him in this case is of on help to him. In the case of Phul Singh (supra) the victim and her parents had forgiven the accused who is the first cousin and there were sign of repentance on him and in view of the special circumstances of the case, the sentence in the said case was reduced. In the case of State of Maharashtra (supra) a sentence of five years was imposed by the trial Court and which was maintained by the Apex Court and it was observed therein that there is no room for sympathy or pity in a serious crime of rape on a young girl in her late teens and the punishment must in such cases be exemplary. In the case of Gopal Chandra Das (supra), the sentence of five years imposed by the trial Court was reduced to three years by the High Court merely for the reason of lapse of time due to pendency of proceeding at various stages. The Apex Court has observed that in the facts and circumstances of the matter under consideration when the offence charge is a serious one against a helpless woman by committing a social evil, the question of showing any further leniency to the accused does not and cannot arise and sentence of five years imprisonment imposed by the trial Court was restored. The ratio of the case of Shafi (supra) in which the sentence has been reduced cannot be taken into consideration in this case for the reasons that no adequate and special reasons were assigned therein for reducing the sentence. In the case of Bhan Singh (supra), the trial Court awarded five years term of imprisonment which was maintained by the High Court and in view of the aggravating circumstances of the case, the sentence was not reduced. Therefore, the ratio of the aforesaid cases are of no help to the appellant in this case for making out a case of reduction of the sentence imposed on him. And last but not the least, I see no adequate and special reasons in the facts and circumstances of this case to reduce the sentence imposed upon the appellant by the trial Court. Therefore, there is no substance in the contention of the learned counsel for the appellant in respect thereof.

There is no merit in this appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is hereby dismissed.