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Jhoni Sinku vs The State Of Jharkhand on 24 January, 2019

1

Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

Against the judgment of conviction dated 29.01.2013 and order of sentence dated
30.01.2013 passed by Shri Om Prakash Srivastava, Additional Sessions Judge-II,
West Singhbhum at Chaibasa in Sessions Trial No. 165 of 2010.

1.Jhoni Sinku …… Appellant ( in Cr. Apl. No. 212/2013)
2.Murli Kumhar ……. Appellant (in Cr. Apl. No. 145 /2013)

Versus
The State of Jharkhand — Respondent

…….

For the Appellant : Mrs. Alpana Verma, Amicus Curiae ( in Cr. Apl. No. 212/2013)
: M/s Amit Kr. Das, Shivam Sahay, Advocate
( in Cr. Apl. No. 145/2013)
For the Respondent : Mr. S.K. Srivastava, Additional Public Prosecutor
(in both cases)

PRESENT
HON’BLE MR. JUSTICE APARESH KUMAR SINGH
HON’BLE MR. JUSTICE KAILASH PRASAD DEO

By Court: Heard learned Amicus Curiae Mrs. Alpana Verma in Criminal Appeal
No. 212 of 2013 and learned counsel for the appellant Mr. Shivam Sahay
appearing on behalf of the appellant in Criminal Appeal No. 145 of 2013 and
Learned counsel for the State Mr. S.K.Srivastava, Additional Public
Prosecutor in both the appeals.

2. These two appellants stand convicted for the offence under Section
376(2)(g) of the Indian Penal Code by the impugned judgment dated
29.01.2013 passed in Sessions Trial No. 165 of 2010 by the learned
Additional Sessions Judge-II, West Singhbhum at Chaibasa and have been
sentenced to undergo R.I for 10 years with a fine of Rs.10,000/- and in default
of payment of fine, to further undergo S.I. for 3 months by the order of
sentence dated 30.01.2013.

3. The First Information Report being Gua (Bara Jamda) P.S. case No.
21/2010 was registered on 18.04.2010 under Section 376(2)(g) of the I.P.C on
the basis of fardbeyan of the victim woman aged 40 years ‘X’ (name
withheld) recorded by Assistant Sub Inspector of Police Nalin Mohan Jha at
05.00 Hrs on 18.04.2010 at the Primary Health Centre, Barajamda. The
fardbeyan was recorded in the presence of the daughter of the Informant
2 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

Sanju Gope,P.W.1. Informant alleged that she is a widow having three
daughters and a son. She is engaged as a sweeper at MGM Crusher,
Barajamda on a weekly wage of Rs.300. She had a habit of taking country
made liquor like ‘Haria’ / ‘Mahua’ regularly. On the previous day i.e.,
Saturday 17.04.2010 she had gone to Barajamda to the house of Jogen for
having ‘Haria’ liquor. Since, ‘Haria’ was not there, she consumed ‘Mahua’
liquor. At the same time at the shop, accused Murli Kumhar aged about 40
years, Jhoni Tribal aged about 35 years and another person, all of Barajamda
came to the shop and Murli Kumhar sat very close to her. She asked him to
move away a bit. She had two glasses of ‘Mahua’ liquor for which Rs.20 was
paid by Murli Kumhar. She felt intoxicated and at 7.00 in the evening started
to go back to her home. She was followed by Murli Kumhar, Jhoni and
another accused who insisted upon escorting her to her home. While she was
passing through the field at around 7.30 in the evening when it was dark,
behind the Central Hospital, Barajamda, accused Murli Kumhar and Jhoni
pushed her towards the field. She raised a hulla but they did not heed to it.
Thereafter Murli fell her down and committed rape upon her. The other
accused was standing there who did not do any act. She was shaking with
pain and trying to rescue herself but all three did not leave her. Murli and
Jhoni committed rape upon her one after the other. Thereafter she fell
unconscious and regained consciousness at about 12.00 in the night when she
found herself in Barajamda Hospital. The fardbeyan was given in Oriya
language in full consciousness and translated by her daughter Sanju Gope
P.W.1. On the basis of these assertions, she alleged that Murli, Jhoni and one
another accused whose name she does not know but who she can identify on
seeing, have on the previous evening at around 7.30 in the dark on the pretext
of leaving her to her home, took her behind the Central Hospital, Barajamda
in a field and Murli and Jhoni committed rate upon her one after the other and
the third accused cooperated with them.

4. On the basis of fardbeyan of the victim, F.I.R was instituted and
investigation commenced. All the 3 accused were arrested during
investigation and were charge-sheeted under Section 376(2) (g) of the I.P.C
vide Charge No. 30/2010 dated 31.05.2010. Thereafter cognizance for the
aforesaid offence was taken and the case was committed to the Court of
3 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

Sessions. Charges under Section 376(2)(g) of the I.P.C were framed against
all the three accused persons by the learned Additional Sessions Judge, FTC-
V, Chaibasa on 11.02.2011, which was read over and explained to them in
Hindi to which they pleaded not guilty and preferred to be tried. The case was
thus, put up for trial.

5. During course of trial, prosecution had examined 10 witnesses in order
to prove the case, which are as under:

1.P.W.1 SanjuGope

2.P.W.2 Victim woman ‘X’

3.P.W.3 Daymanti Gope

4.P.W.4 Dablu Verma

5.P.W.5 Subhash Gope

6.P.W.6 Dr. Ranju Shree

7.P.W.7 Suku Gope

8.P.W.8 Chandrashekher Singh

9.P.W.9 Birju Gope

10.P.W.10 Nalin Mohan Jha

Documentary evidences were also adduced on behalf of the
prosecution up to Ext. 4 as under:

1.Ext.1-Medical report of the victim

2.Ext.2-Fardbeyan

3.Ext.3-Formal F.I.R

4.Ext.4-Seizure List

6. P.W.1 Sanju Gope is the daughter of the victim who claimed to be an
eye witness to the occurrence. P.W.2 is the victim woman ‘X’. P.W.3
Daymanti Gope is the sister-in-law of the victim. P.W.4 Dablu Verma is a
hearsay witness. P.W.5 Subhash Gope is also a hearsay witness who was
declared hostile by the prosecution. P.W.6 Dr. Ranju Shree is the Medical
Officer who has examined the victim woman and proved the medical report
as Ext.1. P.W.7 Suku Gope is son of the victim who was also declared hostile
by the prosecution. P.W.8 Chandrashekher Singh is a hearsay witness, as per
whom, P.W.3 Daymanti Gope, sister-in-law of the victim woman told him
about the commission of rape by these three accused and thereafter he
informed the Police on his mobile phone. He had not gone to the place of
occurrence. Thereafter police had come and taken him to the hospital where
he found the victim unconscious. P.W.9 Birju Gope is the husband of P.W.3
4 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

Daymanti Gope. According to him when he returned at 7-8 in the evening his
wife told him about the rape on the wife of Shyam Sundar Gope but had not
named who had committed the rape. P.W.10 Nalin Mohan Jha, Assistant Sub
Inspector of Police is the Investigating Officer of the case. He has proved the
fardbeyan Ext.2, Formal FIR Ext.3 and the seizure list Ext.4

7. Upon conclusion of the evidence, material evidence was put to the
accused persons while recording their statement under Section 313 Cr.P.C on
28.08.2012. All the accused persons denied the occurrence and pleaded to be
innocent.

8. Learned Trial Court on the basis of the material evidences on record
was satisfied that prosecution has been able to prove the charges against the
two accused / appellants herein beyond shadow of all reasonable doubt.
However it was of the opinion that the third accused Rajesh Uraon was
entitled to benefit of doubt. The Informant had also not taken his name in the
fardbeyan nor wasthere any material to connect him to the crime. Thus, the
two appellants are before this Court in the present appeals being aggrieved by
the impugned judgment of conviction dated 29.01.2013 and order of sentence
dated 30.01.2013 passed by the learned Trial Court.

9. Learned Amicus Curiae and learned counsel for the appellant, both
have assailed the impugned judgment inter alia on the following grounds:

i. The prosecutrix is a middle aged lady about 35-45 years of age as
also opined by the Medical Expert. She is the mother of 3 daughters
and a son. As such, though she was a widow, she was habituated to
sexual intercourse.

ii. As per her statement in the fardbeyan and also during trial, the
prosecutrix had fallen unconscious at the time of rape. However,
the other witness such as P.W.1, 3 and 7 as also P.W.8 have stated
in a manner as if they had seen the act or heard it, though the
informant prosecutrix herself became unconscious just after the
incidence of rape and regained consciousness in the hospital at
around 12.00 in the night.

iii. The testimony of P.W.1 as an eye witness having seen the place
of occurrence is doubtful in view of her own statements made at
para 3 of her cross examination, wherein she has stated that at
5 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

around 6-7 she had gone to the house of Jogen, the liquor shop
owner, when these three persons were present along with others
but her mother was not there. The incidence had already
occurred when she had gone to Jogen’s house. But she did not
narrate anything to Jogen. P.W.1 in her chief had also stated that
she had gone to the place of occurrence finding that her mother
had not returned, along with her brother P.W.7 and aunt P.W.3.
However, P.W.3 in her cross examination did not state that the
accused Murli Kumhar, Jhoni or Rajesh Uraon had committed
rape upon her sister-in-law i.e., the victim woman ‘X’. Her
presence at the place of occurrence becomes doubtful and it also
contradicts the statements of P.W.1, daughter of the Informant,
P.W.7 Sukku Gope, son of the Informant has been declared
hostile as he did not support the prosecution story. The statement
of P.W.1as having seen the occurrence is also rendered doubtful
in the absence of any corroboration by this witness P.W.7.
iv. Medical Officer in her deposition as P.W.6 has not found any
external injury on the body of the victim. She had not found any
alive spermatozoa, though examination was done within 24
hours at 3.00 P.M. on 18.04.2010 from the time of occurrence
i.e., 7.30 on 17.04.2010. She has also not found presence of any
foreign hair on the private organ of the victim. According to her
opinion, there is no scratch mark of violence. This, if compared
with the statement of P.W.10 who has described the place of
occurrence comprising horny bushes apart from few trees,creates
a serious doubt regarding the place of occurrence as described by
the informant or P.W.1, her daughter.

v. The accused persons were known to the victim as per the
statement of the prosecution witness. It is quite likely that they
have been falsely implicated in the case on account of any
grudge or previous enmity as all of them were locals.

Based on these submissions, learned Amicus Curiae and learned
counsel for the appellant have endeavoured to create a doubt in the
prosecution story. They have submitted that the testimony of the prosecutrix
6 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

P.W.2 alone also is not trustworthy to hold these accused/ appellants guilty for
the offence. The testimony of other prosecution witnesses like P.W.1, 3, 7
have not able to substantiate themselves to be eye witness and have failed to
corroborate the manner of occurrence or their presence at the time these
accused persons were allegedly committing the offence. Therefore, these
appellants are entitled to benefit of doubt. Appellant in Cr. Appeal No. 212 of
2013 has remained in custody since 18.04.2010, which is going to be 9 years
in April 2019, while the other accused in Cr. Appeal No. 145 of 2013 has also
served custody for 5 years till he was enlarged on bail by this court on
22.06.2015.

10. Learned Additional Public Prosecutor has taken us through the
evidence of each of the prosecution witnesses, more specifically the evidence
of the prosecutrix (P.W.2) and daughter of the informant (P.W.1). He submits
that the prosecutrix has truthfully narrated the prosecution story as made out
in the fardbeyan during trial. Defence has not been able to shake her
credibility in any manner. Statement of the prosecutrix about the sexual
assault upon her by these accused / appellants stands corroborated by the
testimony of the Medical Expert (P.W.8). The prosecutrix has truthfully
conveyed the sequence of events that she had gone to take liquor in the house
of Jogen when these two accused / appellants had also come and sat behind
her; after having consumed liquor and feeling intoxicated, she was on her way
to her home when these accused persons volunteered to escort her to her
house and in the way, taking advantage of darkness and her being alone,
waylaid her and committed sexual assault one after the other. Mere absence of
any external injury on the body of the victim cannot take away the
grievousness of the assault committed by these appellants, as evident from the
opinion of the Medical Expert on examination of her private part. Opinion of
the Medical Expert shows that she had injuries on her private part i.e., deep
scratch mark 4cm x 2cm near the posterior forcitate. Labia minora was found
swollen and congested and there was redness around libia minora. Since the
lady was widow about 35-40 years of age and mother of three daughters and
one son, it is obvious that her hymen had ruptured much earlier, but there was
tenderness present and vulva was red and congested. These injuries could not
have been sustained in a natural sexual intercourse. The prosecutrix had no
7 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

reason to frame these two accused for the sexual assault upon her. The
defence has not been able to suggest or elicit any instance of previous enmity
or grudge between the informant and the accused persons. The offence was
committed in darkness by these appellants with a deliberate intention. The
prosecution has been able to fully substantiate all the ingredients of the
charge. Learned Trial Court has considered the entire material evidence on
record in proper perspective and rightly come to a finding of guilt against
them. The prosecution case does not suffer from any shadow of reasonable
doubt. Therefore, the appeal being without merit, deserves to be dismissed.

11. We have considered the submissions of learned Amicus Curiae in Cr.
(Jail) Appeal (DB) No. 212/2013 and learned counsel for the appellant in Cr.
Appeal (DB) No. 145/2013 and learned Additional Public Prosecutor
representing the State in both the appeals. We have also scanned the entire
material evidence on record and perused the impugned judgment. The
principle of law is well settled thatthe evidence of prosecutrix, in a case of
rape or sexual assault, is sufficient to convict an accused, if otherwise it is
reliable and consistent. A victim of rape is not treated as an accomplice of the
crime and there is no reason why her statement should be treated with a pinch
of doubt or suspicion. The Apex Court has in the case of Lillu v. State of
Haryana reported in (2013) 14 SCC 643 also held that the chastity of a
woman is of little consequence in case she has been subjugated to forceful
sexual assault against her will. Para 10 and 11 thereof is quoted here under:

“10. This Court while dealing with the issue in State of U.P. v. Munshi has
expressed its anguish and held that even if the victim of rape was previously
accustomed to sexual intercourse, it cannot be the determinative question.
On the contrary, the question still remains as to whether the accused
committed rape on the victim on the occasion complained of. Even if the
victim had lost her virginity earlier, it can certainly not give a licence to any
person to rape her. It is the accused who was on trial and not the victim. So
as to whether the victim is of a promiscuous character is totally an irrelevant
issue altogether in a case of rape. Even a woman of easy virtue has a right to
refuse to submit herself to sexual intercourse to anyone and everyone,
because she is not a vulnerable object or prey for being sexually assaulted
by anyone and everyone. A prosecutrix stands on a higher pedestal than an
injured witness for the reason that an injured witness gets the injury on the
physical form, while the prosecutrix suffers psychologically and emotionally.

11. In Narender Kumar v. State (NCT of Delhi) this Court dealt with a case
where the allegation was that the victim of rape herself was an unchaste
woman, and a woman of easy virtue. The Court held that so far as the
prosecutrix is concerned, mere statement of the prosecutrix herself is enough
to record a conviction, when her evidence is read in its totality and found to
8 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

be worth reliance. The incident in itself causes great distress and humiliation
to the victim though, undoubtedly a false allegation of rape can cause equal
distress, humiliation and damage to the accused as well. The Court further
held as under: (SCC p. 179, paras 26 27)
“26. Even in cases where there is some material to show that the
victim was habituated to sexual intercourse, no inference of the victim
being a woman of ‘easy virtues’ or a woman of ‘loose moral
character’ can be drawn. Such a woman has a right to protect her
dignity and cannot be subjected to rape only for that reason. She has
a right to refuse to submit herself to sexual intercourse to anyone and
everyone because she is not a vulnerable object or prey for being
sexually assaulted by anyone and everyone. Merely because a woman
is of easy virtue, her evidence cannot be discarded on that ground
alone rather it is to be cautiously appreciated. (Vide State of
Maharashtra v. Madhukar Narayan Mardikar, State of Punjab v.
Gurmit Singh and State of U.P. v. Pappu.)

27. In view of the provisions of Sections 53 and 54 of the Evidence
Act, 1872, unless the character of the prosecutrix itself is in issue, her
character is not a relevant factor to be taken into consideration at
all.”

In the present case, the victim ‘X’, is a widow aged about 40 years, as
per her own statement and as per the opinion of the medical expert, between
35-40 years of age being mother of three daughters and a son. She in her
fardbeyan has specifically stated that she is in habit of taking liquor and had
gone in the said evening also to the shop of Jogen situate at about 200 meters
from the place of occurrence where these accused had also come to consume
liquor. After having consumed liquor, price of which Rs. 20/- was paid by the
accused Murli, she left in a state of intoxication on her way back to home.
However, the accused persons followed her and offered to escort her to her
house. Her house is situated at about 100 yard from the place of occurrence,
as also described at para-3 by the Investigating Officer. There she was
waylaid and assaulted in the field behind the Central Hospital surrounded by
bushes and few trees, as described by the prosecutrix and the Investigating
Officer also. She was in a state of intoxication and not expected to offer much
resistance, more so when the number of accused were more than one.
Thereafter, she fell unconscious. She regained consciousness at around 12.00
in the night when she found herself in the hospital being brought by the
police. Incident was narrated by her through the mouth of her daughter
(P.W.1), which is the basis for institution of formal FIR. Her narration of the
incident and commission of rape by these accused one after the other also
finds corroboration from the medical evidence adduced through Dr. Ranju
9 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

Shree (P.W.6) who examined her on 18.04.2010, the date of FIR, at about
3.00 pm. The injuries found on her body and private part along with the
opinion of the Medical Expert are extracted herein below:

1. Mental State-Normal

2.Secondary Sexual Character
Breast- Well Developed
Pubic and Axillary Hair-Well Devloped

3.Menstrual History- L.M.P.-07.04.2010

4.Mark of violence-

(a) On general- No scratch mark of violence

(b) On private part-Deep scratch mark of 4 cm x 2cm near posterior
forctiate
Labia Manora-swollen and congested. Redness around LibiaMinora

5.On P/V exam
Bleeding absent
Tenderness-present
Hymen – ruptured
Vulva- red and congested
No foreign hair found. Introits admits two fingers

6.Vaginal Swab report-

Report by the pathologist Dr. B.Kumar on 19.04.2010- No
spermatozoa dead or alive found.

On X-ray Plate-

Sagittal futura close at the age of 38 to 35 years of age.
Coronoid futura also closed-coronoid future starts to closed at 35 to
40 years. Lamboid future not closed.

Person is below 45 years.

Geopoid process unit of the body of sternum at about 40 years.
So patient is age between 35 to 45 yrs.

Opinion
According to physical pathological and radiological exam

(i) Sexual intercourse took place

(ii) Patient is about 35 to 40 yrs of age.

This report is in my pen and signature may be marked as Ext.1
Cross Exam

1.I did not found any external injury on the body of victim. Live
spermatozoa may be found within 24 hrs of rape. I cannot say when
sexual intercourse took place.

2.I have not mentioned case no. which this injury report relates.”

12. The Medical Officer has found deep scratch marked 4 cm x 2 cm near
the posterior forctiate, though no mark of violence was found on the body of
the victim. Labia minora was found swollen and congested and there was
redness around libia minora. No foreign hair was found. Spermatozoa dead or
alive was also not found, as per the report of the pathologist Dr. B.Kumar on
19.4.2010. Introitus admitted two fingers which obviously indicated that the
victim was middle aged lady being the mother of four children and was
habituated to sexual intercourse. The nature of injury found on her private
10 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

part do not indicate that consensual sexual intercourse was committed upon
her, rather it was forceful sexual assault. The statement of P.W.2 as
corroborated with the medical evidence, itself is sufficient to bring home the
charge against the appellant. Much argument have been advanced by the
learned Amicus Curie and learned counsel representing the appellant in Cr.
Appeal (DB) No. 145/2013 on the statement of P.W.1, Sanju Gope,
informant’s daughter, P.W.3DayamantiGope, sister-in-law of the victim
‘X’and P.W.7,SukuGope, son of the victim who turned hostile.

13. We have considered the statement of P.W.1 and P.W.3 along with the
statement of P.W.8 in entirety. P.W.1 has indicated that she had rushed to the
place of occurrence along with P.W.3 and P.W.7 and had found the accused
indulging in sexual assault. It is further evident from the statement of P.W.8
who had also reached the place on hearing brawl (hulla) that P.W.3 had told
him that these accused persons had committed sexual assault upon the
informant and upon her information, P.W.8 informed the police who reached
there and took the victim to the hospital. The fact that P.W.1 and P.W.3 had
reached the place of occurrence when the prosecutrix had fallen unconscious
as a result of sexual assault, thus stand corroborated from these facts.Police
had arrived at the place of occurrence on telephonic information by P.W.8 and
took the victim to the hospital for treatment. The Investigating Officer in his
statement has also referred to Sanha Entry No. 286/2010 which was recorded
on the basis of telephonic information that a woman had been subjected to
rape behind Badajamda Central Hospital. However, it was only after the
prosecutrix i.e., victim ‘X’ regained consciousness at Primary Health Centre,
Badajamda, that at 5.00 in the morning, her fardbeyan was recorded,
translated by her own daughter (P.W.1). We cannot read any concoction in the
prosecution case, as dealt hereinabove.

14. Considered thus, we are in a position to form a conclusive opinion that
the prosecution had been able to prove the charges against these accused
persons beyond shadow of all reasonable doubt. Learned Trial Court has
considered the evidences on record in entirety and found the involvement of
these two accused persons beyond shadow of all reasonable doubt, though
presence of third accused has been doubted. In these circumstances, we do not
find any reason to interfere in the impugned judgment of conviction and order
11 Criminal (Jail) Appeal (DB) No. 212 of 2013
With
Criminal Appeal (DB) No. 145 of 2013

of sentence. Both these appeals are therefore dismissed. The appellant in Cr.
Appeal (DB) No. 145/2013 is on bail, his bail bonds stand cancelled. He is
directed to surrender before the Court below to serve the remaining part of the
sentence. Let lower court records be sent to the court concerned without any
delay.

15. While parting, we record our appreciation for the valuable assistance
rendered by the learned Amicus Curiae in Cr. (Jail) Appeal (DB) No.
212/2013 during hearing of this case. The Secretary, Jharkhand High Court
Legal Services Committee shall bear the admissible legal remuneration of the
learned Amicus Curiae within a period of four weeks from the date of receipt
of an application accompanied with a certified copy of this judgment.

(Aparesh Kumar Singh, J.)

(Kailash Prasad Deo, J.)

Jharkhand High Court, Ranchi
Date 24thJanuary, 2019
A.Mohanty/

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