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Ramlal Hembrom Son Of Late Munsi … vs The State Of Jharkhand on 9 January, 2020


(Criminal Appellate Jurisdiction)

Criminal Appeal (D.B.) No.1132 of 2009

(Against the judgment of conviction dated 20.03.2009 and the order of sentence
dated 21.03.2009 passed by the learned 5th Addl. Sessions Judge, (F.T.C.), Dumka
in Sessions Case No.102 of 2008)
Ramlal Hembrom son of Late Munsi Hembrom, resident of village-Kheribari,
P.S-Gopikandar, District-Dumka. Jharkhand ……. Appellant
The State of Jharkhand …… Respondent


For the Appellants : Mrs. Jasvinder Mazumdar, Advocate
For the State : Mr. Arun Kr. Pandey, A.P.P

Per, Shree Chandrashekhar, J. Dated:9th January, 2020
Oral Order

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.

2. 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.

3. 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.

4. 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.

5. 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.

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

External examination:

(i) Old healed abrasion of 1″ x ½” 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 1″ x ½” x mucosa deep over left middle
of intestines.


(ii) Lacerated wound of ½” x ¼” 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

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

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.

7. 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 Chaudhary” 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

8. 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.

9. 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.

10. 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 “comma”. 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.


11. 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.

12. 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.

13. 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

14. Ordered accordingly.

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

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

17. 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.

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


19. Let a copy of the judgment be transmitted to the court
concerned through ‘Fax’.

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

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.)

Jharkhand High Court, Ranchi

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