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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (S.J.) No. 825 of 2012 [Against the judgment of conviction and order of sentence dated 07.07.2012 passed by learned Additional Judicial Commissioner-I, Ranchi in Sessions Trial No.20 of 2008] Chintu Kumar Verma --Versus-- The State of Jharkhand .... .... …. Appellant …. …. …. Respondent For the Appellant For the State : Mr. Ranjan Kumar, Advocate Mr. Kaustav Panda, Advocate Mr. Nagmani Tiwari, Advocate : Mr. Bishambhar Shastri, A.P.P. ----- PRESENT HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY By Court 1. Judgment of conviction and sentence under Sections 363, 366 and 354/34 of the Indian Penal Code is under challenge in this appeal. 2. The prosecution case, in brief, as set out in the fardbeyan of the victim girl aged 18 years recorded on 30.06.2007 at 22.00 hours, is that she along with her sister Sheela Kumar aged 16 years, were working in a stone factory at Kokar, Ranchi. On the said day, they came to Ranchi by bus from her village in District Latehar. At 4 O’Clock in the afternoon, they were dropped near Hubsy Camp. After getting down from the bus, they took Tempo No.2537 for proceeding to Kokar. Five passengers were in the said tempo, who got down from it at Kanta Toli, and thereafter, the driver of Tempo instead of taking them to Kokar, started driving towards Khunti. When she asked where they were being taken, by the driver, he assured that they will be taken to the destination at Kokar. When they were taken far too long, she started raising alarm, on which the Tempo was taken towards the direction of the jungle area, where he caught hold of her younger sister and started dragging her. When both of them raised Hulla, the Tempo driver fled away with the Tempo leaving behind the cleaner. Nearby villagers apprehended the cleaner, who disclosed his name to be Santosh Kumar Vishwakarma and that of the driver to be Chintu Verma. The villagers took them to police station. 3. On the basis of the statement of the victim, Ranchi (Kotwali) P.S. Case No.457 of 2007 was registered under Sections 363, 365, 366, 354/34 of the Indian Penal Code. Police, on investigation, found the case true and submitted charge sheet against both the accused persons, who were put on trial for offence under Sections 363, 366, 354/34 of the IPC. Altogether three 2 witnesses were examined and thereafter, the statement of the accused persons were recorded under Section 313 of the Cr.P.C. 4. Judgment of conviction and sentence is assailed on the ground that no independent witness has come forward to support the prosecution case. Although the statement of the prosecutrix was recorded under Section 164 of the Cr.P.C., but the statement has not been proved and has been withheld. The witness has deposed that TIP was held, but the same has not been proved. 5. Law is settled that in sexual assault, molestation cases, victim’s testimony is to be treated at par with that of an injured witness so much that no corroboration is necessary. Evidence of the witnesses is to be appreciated considering the attending circumstances. In the present case, both the victims of the offence are poor tribal girls, who had come by bus in the afternoon from their village to join their workplace at Ranchi. 6. Age of the prosecutrix is stated to be 18 years and that of her sister to be
Legal Reasoning
16 years. FIR was lodged immediately after the incidence on the very same night, which rules out any possibility of afterthought or interpolations. The prosecution case rests on the testimony of the two victims, who have given consistent account of the incidence. It has come in their evidence that after they boarded the tempo, whereafter instead of taking them to Kokar, they were driven towards a jungle area, by the accused persons. PW1 in para 2 states that when the driver caught hold the hand of Sheela, they started raising alarm. At this some local persons, who were playing football came there. Police was called, by that time driver had fled away from there. In para-8, she has deposed that both of them got down near Khunti jungle, where they demanded a fare of Rs.500/-. She has denied the suggestion that they had to go to Khunti. 7. PW-2 cousin sister of PW-1 has deposed that she was working in the factory of Tinku Babu at Kokar. After they got down from the bus, they took the tempo for proceeding to Kokar. Instead of taking them to Kokar, they were driven towards Khunti jungle area. She has further deposed that they jumped from the tempo, on which both of them were caught by the driver and the cleaner. Thereafter, they raised alarm. On Hulla, those who were playing football came there, at which they started fleeing away, but one of them was caught by them. 8. P.W. 3, is the I.O. She has deposed that the place of occurrence is the Hubsi Camp bas stand where the victims left the bus. In para 4, she has deposed that after the said incidence, accused Chintu absconded from the 3 house. The statement of the Sheela Kumari was recorded under Section 164 of the Cr.P.C. Except for the statement of the victims, evidence of no other witness was recorded. 9. The argument that on account of dispute over fare, the accused persons have been framed in the case, does not appear to be logical. In the normal course of human conduct, dispute over fare, do not result in the driver fleeing away with the vehicle after such dispute and absconding during investigation. 10. There is lacuna on the part of prosecution in not proving the statement of the victim under Section 164 of the Cr.P.C which has corroborative value under Section 157 of the Evidence Act. This, however, cannot be of any help to the defence, as none of the victim have been confronted by their previous statement, either made to the police or that to the Magistrate, so as to elicit any contradiction in their account in terms of Section 145 of the Evidence Act. 11. In the absence of any contradiction in the account of the victim girls, there is no ground to disbelieve their account. Testimony of the rustic victim girls has remained undemolished. As part of the modus operandi, instead of taking them to the destined place, they were taken to a desolate place and when they raised alarm, and people of the locality gathered there, a faint plea of dispute over fare was raised and at the same time, driver fled away with the vehicle and absconded during investigation. As discussed above, in normal course of human conduct squabbles over fare between the drivers and passengers do occur on almost on daily basis, but neither driver flee or abscond thereafter. These conducts are relevant under Section 8 of the Evidence Act. There is a ring of truth in the account of the victims and there is no difficulty in placing reliance on their account. 12. It has been argued that Section 366 of the IPC shall not be made out on the facts of the present case. Under Section 362 of the IPC, whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. In the present case, on the pretext of taking both the girls to their destination at Kokar, they were taken to a jungle area in Khunti. Taking of the victims to the desolate against their will constituted the offence of abduction. It has come in the evidence of the victims that object of such taking was to seduce them, and to that end, hand of the victim girl was also caught by the accused. These acts of the accused persons brought them within the mischief of these Sections 366, 354/34 of the IPC. The judgment of conviction is affirmed under these Sections. 4 13. In order to make out an offence under Section 363 of the Indian Penal Code, victim should be a minor under 16 years of age, and the taking should have been from the lawful guardianship. Both these elements, are absent in the present case therefore, Section 363 of the IPC will not apply, therefore, conviction under this Section, is not sustainable and is accordingly, set aside. 14. On the point of sentence, the principles to be followed while sentencing an accused in sexual assault cases has been settled by a long line of judicial precedents. The ratio, as laid down, is that there should be proportionality of sentence, and it should not be diluted to the extent that it loses its deterrent effect. It has been held in State of Karnataka v. Krishnappa, (2000) 4 SCC 75 “15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity — it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. Dealing with the offence of rape and its traumatic effect on a rape victim, this Court in State of Punjab v. Gurmit Singh [(1996) 2 SCC 384 : 1996 SCC (Cri) 316] observed: (SCC p. 403, para 21)” “21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault — it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity.” (emphasis supplied) State of M.P. v. Bablu, (2014) 9 SCC 281 10. It is well-settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. One should keep in mind the social interest and consciousness of the society while considering the determinative factor of sentence commensurate with the gravity and nature of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers. Ravinder Singh v. State of Haryana, (2015) 11 SCC 588 11. The question of sentence is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. The law courts have been consistent in the approach that a reasonable 5 proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that a sentence disproportionately severe should not be passed that does not clothe the court with an option to award the sentence manifestly inadequate. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. In the present case, the lustful eyes of the Appellants fell on the tribal girls who had come to Ranchi to join their workplace. Taking advantage of their being alone, both the accused persons took them in a desolate place and committed the offence by using criminal force to outrage their modesty. Under the circumstance, the judgement of conviction and sentence under Sections 366 and 354 of the IPC is affirmed. Bail is cancelled and the Appellants are directed to surrender before the learned trial Court to serve their remaining part of sentence. With modification in finding, appeal stands dismissed. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, 28th February, 2024 NAFR/Anit