Ramlal Hembrom vs State Of Jharkhand

Shree Chandrashekhar, J

The sole appellant has faced the trial on the charge under section 376 and section 307 of the Indian Penal Code. In Sessions Case No.102 of 2008,

the appellant has been convicted and sentenced of R.I for life under section 376 of the Indian Penal Code and R.I for seven years under section 307

of the Indian Penal Code and fine of Rs.10,000/- under section 307 of the Indian Penal Code. He was directed to pay fine of Rs.8,000/- to the victim

as compensation under section 357 of the Code of Criminal Procedure.

The informant of this case is the victim lady. At the time of the occurrence she was aged about 25 years. On the basis of her fard-beyan which

was recorded on 22.12.2007 at about 14:15 hrs. at village Kheribari, Gopikandar P.S Case No.30 of 2007 has been lodged against the appellant under

sections 376 and 307 of the Indian Penal Code. During the trial, the prosecution has examined 9 witnesses; the victim lady is P.W 8. The prosecution

witnesses Subhasni Murmu-P.W 1, Khato Hembrom-P.W 3, Sri Ram Hembrom-P.W 4 and Samual Hansda-P.W 6 are co-villagers and Sanjay

Murmu-P.W 5 is husband of the victim lady; Lakhan Tudu-P.W 7 is her brother.

In her fard-beyan, the informant has stated that in the morning of 16.12.2007 she had liquor with her husband in the house of Khato Hembrom and

thereafter her husband had gone for a bath towards river. She was drunk and in that condition she slept on the ground behind the house of Matla

Murmu. At about 7:00 p.m.-8:00 p.m., the accused came there and dragged her towards eastern bari. She was drunk and, therefore, could not resist.

The accused took him near Jujube tree (Ber) and sexually assaulted her. Thereafter she felt that the accused had inserted wooden stick like object in

her private parts due to which she felt severe pain and became unconscious. When she regained conscious her husband and sister-in-law told her that

she was found in naked condition in the field of Dewa Murmu from where they have brought her home.

The victim lady has been examined in the court as P.W 8. She has deposed that in the house of Khato Murmu she had taken liquor with her

husband, her husband had gone for a bath towards river and she went to sleep in the house of Matla Murmu. She has stated that the accused took her

near Jujube tree (Ber) in the orchard of Vimal Murmu where the appellant did wrong with her. Her husband has been examined as P.W 5. He has

also stated that he had taken liquor with his wife in the house of Khato Hembrom and thereafter he had gone towards river for a bath. When he came

back home he did not find his wife. She was found sleeping near a guava tree behind the house of Matla Murmu. He has stated that at about 7:00-7:30

p.m. in the night his wife was taken away by the accused in the field of Dewa Murmu and committed rape upon her. He has stated that the incident

has been narrated to him by his wife on Tuesday. P.W 1, P.W 4 and P.W 6 are not the eye-witnesses, however, they have stated that they were told

by the victim lady and her husband that the accused had sexually assaulted her. The prosecution witness, namely, Khato Hembrom-P.W 3 has stated

that the informant and her husband had liquor in his house. P.W 7 who is brother of the victim lady has come to the court to depose that his sister was

found lying naked in the field from where she was brought back home.

From the prosecution's evidence, we observe that there is no eye-witness to the occurrence except the victim lady herself. The testimony of the

prosecutrix in a case under section 376 of the Indian Penal Code if unshaken is sufficient to record conviction of an accused. Unless there is serious

inconsistency or embellishment or exaggeration in the evidence of the prosecutrix it is not tested with a suspicious eye, however, evidence of the

prosecutrix is not like a gospel truth. It is not necessary that her evidence must be corroborated by medical evidence, but then, testimony of a

prosecutrix must inspire confidence. The learned Sessions Judge has held that the minor inconsistency in testimony of the prosecutrix has appeared

because she is a rustic village lady. She was drunk and she regained conscious only after two days, but on identification of the appellant as the one

who has sexually ravished her, during her cross-examination she has remained firm. The appellant has set-up a defence that on account of some

dispute regarding payment of bills he has been falsely implicated in this case, but in view of the evidences led by the prosecution it must be concluded

that his complicity in the crime has been established. The medical evidence also corroborates the ocular evidence inasmuch as the doctor has opined

that it seems to be a case of rape.

Dr. Puspalata Tudu-P.W 2 who has examined the victim lady has opined thus:

External examination:

(i) Old healed abrasion of 1â€​ x ½â€​ over left side of face. Close to left eye.

(ii) Old healed abrasion over both breasts in upper parts. Age of injury within one week from time of examination. Injuries simple in nature

caused by hard and blunt substance.

Internal examination:

(i) Lacerated wound of 1â€​ x ½â€​ x mucosa deep over left middle of intestines.

(ii) Lacerated wound of ½â€​ x ¼â€​ x mucosa deep over left side of libia majora.

Age of injury within one week from time of examination. Injury simple in nature caused by hard and blunt substance. Hyman shows old

rupture. No foreign heirs present. Vaginal swab was taken and sent to pathology for microscopic examination for spermatozoa.

Spermatozoa was not found dead or alive.

Report given by Dr. R.P. Verma, incharge, Pathologist, Sadar Hospital, Dumka.

X-ray of both wrist joint, both knee joints and both illiac crest were advised.

X-ray knee joint shows upper epiphysis of both tibia and fibula united.

X-ray writ joint shows lower epiphysis of both radius and ulna united.

X-ray both hip bones shows crest of both illium bones united. X-ray given by Dr. S.N. Jha, Orthopedic Surgeon, Sadar Hospital, Dumka.

According to above findings in the opinion it seems to be a case of rape.

Mrs. Jasvinder Mazumdar, the learned counsel for the appellant, has contended that the doctor himself seems to be not confident whether it was a

case of rape or not, but we are not inclined to accept this submission. In the context of the medical evidence, it needs to be kept in mind that the victim

lady was examined by the doctor after about 5 days and by that time specific sign of sexual assault may not be found. By now it is well-settled that

absence of spermatozoa or rupture of hymen etc. are not determinative factors. Normally a women would not falsely implicate someone for the

offence of rape; the incident brings stigma to the women. It is also well-settled that penetration is not sine qua non to complete the offence under

section 376 IPC. Section 375 of the Indian Penal Code defines rape. Clause (a) to section 375 provides that mere penetration and, that too, to any

extent in to the vagina, mouth urethra or anus of a woman is sufficient to constitute the offence of rape. In “State (Govt. of NCT of Delhi) Vs.

Pankaj Chaudharyâ€​ reported in 2018 SCC OnLine SC 2256, the Supreme Court has observed thus:

“26. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires

confidence. [Vishnu alias Undrya v. State of Maharashtra, (2006) 1 SCC 283]. It is well-settled by a catena of decisions of this Court that

there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been

laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic

infirmity and the 'probabilities factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on

corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be

forthcoming. [State v. N.K. The accused (2000) 5 SCC 30].

In view of the evidences led by the prosecution to prove the charge against the appellant, we find that the charge under section 376 of the Indian

Penal Code has been proved by the prosecution against the appellant.

Mrs. Jasvinder Mazumdar, the learned counsel for the appellant, has next contended that infliction of maximum punishment of imprisonment for life

to the appellant is not just and proper.

Under section 376 of the Indian Penal Code the minimum punishment provided is 7 years but maximum punishment can be imprisonment for life

and also fine. The expression, “ but which may extend to imprisonment for life†occurs under section 376 of the Indian Penal Code after a

“commaâ€. It, therefore, has to be held that this expression is disjunctive and while so, while awarding punishment and, that too, the maximum

punishment the learned judge is required to pause, weigh the aggravating as well as the mitigating circumstances, think and then impose punishment.

By now it is well-settled that maximum punishment should not be awarded as a matter of course. In view of wide discretion vested in the courts,

through judicial decisions it has been held that punishment should be imposed on an accused after weighing mitigating as well as aggravating

circumstances.

In the order of sentence dated 21.03.2009, the learned Sessions Judge has recorded the plea raised on behalf of the accused for taking a lenient

view in the matter. The learned Sessions Judge has observed that the appellant is a middle-aged person and he has no criminal antecedent and the

victim was under influence of liquor, but since the offence committed by the appellant would leave permanent scar in the mind of the woman,

therefore, no leniency should be shown in favour of the accused. In our opinion, the learned Sessions Judge has failed to weigh the mitigating

circumstances which are leaning towards the appellant and has imposed maximum punishment of R.I for life upon him in a routine manner.

While upholding conviction of the appellant under section 376 of the Indian Penal Code we are inclined to interfere with a part of the order of

sentence, that is, R.I for life under section 376 of the Indian Penal Code and, accordingly, the order of sentence of R.I for life under section 376 of the

Indian Penal Code awarded to the appellant is set-aside.

In view of the mitigating circumstances appearing in this case, in our opinion, it will serve the interest of justice if the appellant is inflicted with

punishment of R.I for ten years and fine of Rs.10,000/-.

Ordered accordingly.

However, the conviction and sentence under section 307 of the Indian Penal Code is affirmed.

Mr. Arun Kumar Pandey, the learned A.P.P states that the appellant has remained in custody for more than 12 years.

Accordingly, on payment of fine of Rs.10,000/-, the appellant, namely, Ramlal Hembrom, shall be released forthwith, if not required in connection

to any other criminal case. In default of payment of fine, he shall undergo further imprisonment of R.I for six months, as ordered by the learned

Sessions Judge.

In the result, Criminal Appeal (D.B) No.1132 of 2009 is partly allowed, in the above terms.

Let a copy of the judgment be transmitted to the court concerned through 'Fax'.

Let lower-court records be sent to the court concerned forthwith.