SATISH THAKUR Vs. STATE OF BIHAR (NOW JHARKHAND)

JUDGEMENT

(1.) AII the aforesaid six Criminal Appeals arise out the judgment and order of conviction and sentence dated 19th March, 1999 and 26th March, 1999 respectively, passed by Sri Sudarshan Upadhyay, learned 1st Additional Sessions Judge, Chatra, in Sessions Trial No. 461 of 1997, whereby and whereunder, all the appellants have been found guilty for the offences under Sections 148 and 376(2)(g) of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life under Section 376(2)(g) read with Section 149 of the Indian Penal Code. However, no separate sentence was passed under Section 148 of the Indian Penal Code. As all aforesaid Cr. Appeals arise out of the coil1mon judgment and order of conviction and sentence, they have been heard together and are being disposed of by this common judgment. 2. The case of the prosecution is based on the written information (Ext. 1) of the informant Faiyaz Ansari (PW 3) to the Officer -in -charge, Tandwa Police Station, on 21.4.1997, wherein the informant has alleged that in the night of 19.4.1997 while he along with other members of the family was sleeping in his house at Village -Saradhu, at about mid night 20 to 25 persons, armed with Lathi, Bhala and Farsa, surrounded his house and by force got the door opened. They caught the informant, his sister Muneja Khatoon (PW 1), mother Nemuna Khatoon (PW 2) and took them to the Jungal and reached Purnapani Jungal. Appellant Laxman Singh (appellant in Cr. Appeal No. 163 of 1999R) and others assaulted them first and then took his sister and mother in a nearby bush and they, namely, Laxman Singh (appellant in Cr. Appeal No. 163 of 1999R), Rameshwar Thakur, Ramsundar Thakur and Jageshwar Thakur (appellants in Cr. Appeal No. 145 of 1999R), Ram Lal Pahan (appellant in Cr. Appeal No. 202 of 2001), Satish Thakur (appellant in Cr. Appeal No. 95 of 1999R), Ashok Mahto and Manoj Mahto (appellants in Cr. Appeal No. 112 of 1999R) and Suresh Sao and Jagarnath Sao (appellants in Cr. Appeal No. 100 of 1999), all of Village Saradhu, Police Station -Tandwa, District -Chatra, committed rape on Muneja Khatoon and Nemuna Khatoon, one by one for a pretty long time. In the following night they reached to their home. His sister and mother, due to rape, resulting injuries on their private parts, were unable to walk. The informant carried them to his home one by one. On the same day i.e. 21.4.1997 on the basis of written information, Tandwa P.S. Case No. 17 of 1997 under Sections 147, 148, 149, 323, 364 and 376 of the Indian Penal Code was registered and after investigation, the Investigating Officer submitted charge -sheet against all the ten appellants of the abovementioned six Cr. Appeals under Sections 147, 148, 149, 364, 366 and 376(2)(f) and (g) of the Indian Penal Code. The learned 1st Additional Sessions Judge, Chatra, framed charges against all the appellants under Sections 148, 376 (2)(f) and (g) read with Section 149 of the Indian Penal Code. 3. The prosecution, in order to substantiate the charges against the appellants, has examined eleven witnesses, out of whom PW 4 Bichchu Mian, PW 5 Kariman Mian, PW 6 Shaukat Ali, PW 7 Wahid Mian and PW 9 Md. Islam, having no knowledge about the alleged occurrence, have been declared hostile by the prosecution. However, PW 7 Wahid Mian, in his cross -examination has deposed that Mohammad Mian, father of the informant, was in custody for the allegation that he had committed rape and murder of Rubia Devi, although he has no knowledge as to whether there was any communal tension in the village regarding that occurrence. 4. PW 1 Muneja Khatoon and PW 2 Nemuna Khatoon are the victim ladies, who have been ravished by the appellants, having been taken by them at Purnapani Kurlonga and Oza Jungals. PW 3 Abdul Faiyaz Mian is the brother of PW 1 and son of PW 2. He is the eye witness of the alleged occurrence. PW 8 Md. Hafiz Mian cousin brother of the informant (PW 3) is also eye witness, who had gone up to the first place of occurrence at Purnapani Jungal. PW 10 Dr. Nand Kishore Prasad Jaiswal, one of the members of the Medical Board in examining both the victims, has signed (Exts. 4 and 4/1 respectively) on the injury reports of the victims (PW 1 and PW 2). He has also proved the injury reports of the appellants, which are in the pen and signature of Dr. Shyam Nandan Singh (Exts. 5 to 5/9). PW 11 Dr. (Mrs) Neelam Choudhary has examined the victims Muneja Khatoon and Nemuna Khatoon on 21.4.1997, being one of the members of the Medical Board. 5. The defence has taken the plea that all these appellants are innocent and have falsely been implicated in this case, only to pressurize them in a rape and murder case, pending against the father of the informant. The defence has examined DW 1 Rameshwar Ram, DW 2 Raman Sao and DW 3 Bishun Baitha, who have denied that these appellants have ever committed the alleged occurrence in the village. DW 4 Masidas Horo, a formal witness, has proved the Fard -beyan recorded in the pen and signature of Shankar Prasad Jha, Officer -in -charge, Tandwa Police Station and endorsement thereon '(Ext. E) as also the chargesheet (Ext. B) submitted in the case against the father of the informant. 6. The learned 1st Additional Sessions Judge, Chatra, considered the evidences of both the victim ladies i.e. PWs 1 and 2 as also the informant (PW 3) and Md. Hafiz Mian (PW 8), supported by medical evidences of PWs 10 and 11, convicted the appellants and sentenced them to undergo rigorous imprisonment for life for the offence under Section 376 (2)(g) of read with Section 149 of the Indian Penal Code. 7. The learned counsel for the appellants has assailed the judgment and order of conviction and sentence, passed by the court below, on the ground that Village -Saradhu is a big village, consisting of about 1000 houses. Both the communities i.e. Hindu and Muslim reside in the village. The prosecution has not examined any independent witness. On the other hand, the independent witnesses i.e. PWs. 4, 5, 6, 7 and 9 have not supported the prosecution case, as alleged by the informant. The informant has not mentioned the second and third place of occurrence, which are alleged to be Village Kurlonga and Oza Basti. The written information (Ext. 1) does not disclose as to whether PW 8 Md. Hafiz is also an eye witness. Md. Nayeem, brother of the informant; was also present in his house at that night, who has not been examined by the prosecution. The judgment of the learned court below was also assailed on the ground that the I.O. has not been examined in this case, which has caused great prejudice to the appellants, as they could not take contradictions regarding the blood smeared Saries and clothes of both the victims and also the occurrence, which took place at three places in a night. It was also argued that all these appellants were examined by the doctor, who did not find any injury on their private parts to support any rape committed by them on the victim ladies. 8. Learned A.P.P., supporting the judgment and order of conviction and sentence of the learned 1st Additional Sessions Judge, has submitted that there is ample evidence on the record, as adduced by the witnesses i.e. PW 1, PW 2 and PW 3, to support the prosecution case. PWs 1 and 2, who were ravished by the appellants and the Medical evidences of PW 11 corroborates the rape, committed on both the victim ladies i.e. PWs 1 and 2. It was submitted that when Board of Doctors examined them on 21.4.1997, non -examination of the I.O. in this case has not caused any prejudice to the appellants, as they have not taken any contradiction in the evidences of the eye witnesses i.e. PWs 1, 2, 3 and 8. 9. The alleged occurrence took place in the mid night of 19.4.1997 at Village -Saradhu. The informant (PW 3) was sleeping along with his wife in a room whereas his sister Muneja Khatoon (PW 1) and mother Nemuna Khatoon (PW 2) were sleeping in a room along with his another brother Nayeem. In the mid -night, PW 8 Md. Hafiz, cousin brother of the informant, who was sleeping in his house, get awakened and when he came out of his house, saw 10/15 persons, who took him to the house of the informant Md. Faiyaz and asked him to get the door opened. When the gate of the door was not opened b the informant, then with the help of Tangi, they cut the door, having armed with Tangi, sword and gun. PW 3 Abdul Faiyaz Mian when opened the door, then all the appellants entered into his house, caught hold of the informant Faiyaz Mian, his brother Nayeem Ansari, mother Nemuna Khatoon and sister Muneja Khatoon and took them outside their home. This witness (PW 8) was also taken along with them in the Jungal. He identified Laxman Singh, Rameshwar Thakur, Ramsundar Thakur, Ashok Mahto, Jageshwar Thakur, Manoj Mahto, Jagarnath Sao, Suresh Sao, Ram Lal Pahan, Pintu Mahto, Puran Baitha, Jagdish Baitha, Khirodhar Ram, Sarju Pahan, Mahadeo Pahan and Ramdeo Mahto. The assailants took them to Purnapani Jungal. On their way, Laxman Singh asked him and his cousin brother Md. Hafiz Mian (the informant) to commit rape on his mother and sister, namely, Muneja Khatoon and Nemuna Khatoon, which they refused, saying that they would not commit sexual intercourse with their sister and mother, even though their necks are chopped off. This evidence stands corroborated by the evidence of the informant (PW 3). In Purnapani Jungal the mother and sister or the informant Abdul Faiyaz Mian were made completely naked and were raped one by one in their presence. This witness thereafter managed to escape and went to his home. These appellants committed rape for about an hour one by one on both the victim ladies i.e. PW 1 and PW 2. PW 1 Muneja Khatoon was taken to the Purnapani Jungal along with her mother Nemuna Khatoon (PW 2) and brother Abdul Faiyaz (PW 3), who were together all along till they returned their home in the night of 21.4.1997. All these three eye witnesses have deposed that while they were sleeping in their home, at about mid night appellant Laxman Singh and others came to their home and started abusing them and ordered to open the door. Laxman Singh and Rameshwar Thakur broke opened the door by giving Tangi blows and entered into their home. PW 1 Muneja Khatoon identified Laxman Singh, Rameshwar Thakur, Jagarnath Sao, Ram Sundar Thakur, Ashok Mahto, Jageshwar Thakur, Manoj Mahto, Satish Thakur, Ram Lal Pahan, Suresh Sahu, Puran Baitha, Sarju Pahan, Jagdish Baitha, Pintu Mahto, Khirodhar Mahto, Budhan Mahto and Mahadeo Pahan amongst them. Both the hands of her brother (PW 3) were tied from behind. She saw about 100 persons outside her home, who took all of them to the Purnapani Jungal. She and her mother (PW 3) were made completely naked. As per deposition of PW 1, Laxman Singh committed rape upon her first and thereafter Rameshwar Thakur, Jagarnath Sahu, Ram Sundar Thakur, Ashok Mahto, Jageshwar Mahto, Manoj Mahto, Satish Thakur, Ram Lal Pahan, Suresh Sahu, Puran Baith, Sarju Pahan, Jagdish Baitha, Pintu Mahto, Khirodhar Mehra, Budhan Mahto and Mahadeo Pahan also committed rape on both of them one by one. Both her brothers, namely, PW 3 and PW 8 were also present there, to whom the appellants were forcing to commit rape upon them, which they refused. Nayeem, brother of the informant, when refused to commit rape, then he was assaulted and thereafter, he managed to escape. 10. PW 2 Nemuna Khatoon, mother of the informant, was also ravished by these appellants and in course of committing rape, PW 2 Nemuna Khatoon was given Tangi blow on her head by appellant Laxman Singh. She was also raped by Rameshwar Thakur, Ram Lal Pahan and others. On being injured by Tangi blow on her head, she became unconscious. Thereafter, she does not know as to who committed rape on her and whenever she regained her consciousness and demanded water to drink, she was again ravished repeatedly by the appellants. PW 1 Muneja Khatoon, in course of rape at Purnapani, Kurlonga and Oza Basti, sustained teeth bite injuries on her cheek, chin, breast etc., which were still visible on the day when she deposed in court on 17.6.1998. Out of sentiment, she was likely to remove the clothes to show the marks of injuries, sustained by her but on the orders of the court, she was not allowed to show her body. However, the court saw the marks of teeth bites on the upper portion of the breast and cheek. As deposed by PW 1 and PW 2, due to repeated rape on them throughout the night, they sustained bleeding injuries in their private parts. They were so much exhausted that they were unable even to walk. When it became morning, then they were taken to Village -Oza where a meeting was likely to be called. When the villagers came, the ladies of Village Oza saw both the victims naked and hence they rushed to assault the appellants. The appellants managed to flee away. The ladies of Oza Basti gave them Saries to wear and also offered them juice to drink. As per their deposition, the blood was oozing out from their private parts. But when they were taken for examination before the Board of doctors, they had gone there by wearing another Series. PW 1 also admits that her father Md. Mian is in custody for the charge of committing rape and murder of Rubia Devi. PW 2 has not named all the appellants, who committed rape on her only because she was first given Tangi blows by Laxman Singh and was committed rape by Laxman Singh, Rameshwar Thakur and Ram Lal Pahan and thereafter, she became unconscious and, therefore, she could not see as to who committed rape but these appellants were seen in the Purnapani, Kurlonga and Oza Basti and hence she identified them in the dock, in course of her evidence in court. She has deposed that there was communal tension in between the Hindu and Muslim communities of Village Saradhu. After their medical examination as there was communal tension in the village, both the victims were shifted to Indira Gandhi Institute of Medical Science, Patna for treatment. The informant Abdul Faiyaz (PW 3) was all along with his sister PW 1 and mother PW 2. His brother PW 8 Md. Hafiz Mian was also with them up to Purnapani Jungal and when he was assaulted there, on refusal to commit rape on PW 1 and PW 2, he managed to flee away. This witness has fully corroborated his written information that in the mid night of the alleged date of occurrence, appellant Laxman Singh knocked the door and thereafter, by force the door was opened and the informant saw 20/25 persons outside his home. The appellants could not know the presence of the wife of this witness in his home. When out of fear informant PW 3 opened the door, then Laxman Singh, Rameshwar Thakur, Satish Thakur, Jagarnath Sao and Jaleshwar Mahto caught hold of him, his mother and his sister as also his brother Nayeem. Laxman Singh tied both his hands from behind with the help of Gamchha and took all of them out of their home. When they tried to cry then Laxman Singh and Rameshwar Thakur made them silent by giving threat to kill them. On the way in the Jungal, Laxman Singh and Rameshwar Thakur torn the clothes of his mother and his sister and threw them, making them completely naked. At Purnapani this witness and his brother PW 8 Hafiz were asked to commit rape on his sister and mother on which they replied that they would not commit rape on their mother and sister, even if their heads as severed. Thereafter, all the appellants started ravishing both the ladies. He saw appellant Laxman Singh, Rameshwar, Satish and Jageshwar Mahto committing rape on Muneja. The other had surrounded Muneja while she was being ravished. The other appellants Jageshwar Sao, Suresh Sao, Ram Lal Pahan, Ashok Mahto, Manoj Mahto, Pintu Mahto, Sarju Ghatwal, Puran Baitha, Jagdish Baith, Mahadeo Pahan, Ramdeo Mahto and Khirodhar Ram were also there. He could not name the others who had also surrounded his mother and sister when they were ravished by them one after another. He saw his mother PW 2 being ravished by Rameshwar, Laxman Singh and Ram Lal Pahan for about an hour. Thereafter, they took them to Kurlonga Jungal where the appellants took Ganja and thereafter, again they ravished his sister and his mother. There he saw Pintu Mahto, Suraj, Puran, Khirodhar and Jagdish committing rape on the ladies. He saw the appellants Sarju and Pintu committing rape on his mother and the others committing rape on his sister. Thereafter, they took both the victims and the informant to another village Oza. There a meeting was likely to be called. 10/12 females and 5/6 males of Village -Oza reached there and saw PW 1 and PW 2 in naked condition. Then they rushed to assault the appellants, armed with Lathies. The appellants when saw the situation aggravated, then they fled away. Both the victims were offered juice to drink as the victims were mercilessly ravished, who were unable to walk. They were also given clothes to wear by the females of village -Oza. Informant carried both the victims one after another and took them to his home in the night of 20.4.1997 and on the next day i.e. on 21.4.1997 he informed the Officer -in -charge in writing (Ext. 1). 12. PW 3 Abdul Faiyaz Mian alias Faiyaz Ahmad alias Faiyaz Ansari had gone to the police at 10.00 a.m. along with 8 to 10 villagers, prior to submitting his written information (Ext. 1) to the Officer -in -Charge on 21.4.1997. On that he did not inform the Officer -in -Charge in writing rather on the next day, he gave information about the alleged occurrence in writing. PW 8, cousin brother of the informant, namely, Md. Hafiz Mian, had gone along with the informant and the victim ladies till Purnapani Jungal. Thereafter, he managed to escape when he was likely to be assaulted by the appellant on refusal to commit rape on Muneza Khatoon (PW 1) and Nemuna Khatoon. He went to his village but did not inform either the Mukhiya or Sarpanch regarding the alleged occurrence, which took place in the night of Saturday. On the next Monday at about 10.00 a.m. he had gone to the police station. He informed the grand -mother of the informant as also the villagers and relatives of Faiyaz. The grand -mother of Faiyaz had gone to the Police Station and informed about the alleged occurrence. But when this witness PW 8 Md. Hafiz went to the Police Station, he did not see the grandmother of Faiyaz, namely, Batulan Khatoon. The statement of this witness were recorded by the police officer and all the 8 to 10 villagers, who had gone there and gave their L.T.ls. 13. In the present case, the I.O. has not been examined. The informant had gone to the Police Station 20.4.1997 at about 10.00 a.m. when he did not inform the police in writing. The defence has not drawn attention about any statement, given by the informant on 20.4.1997. On the other hand, at about 10.00 a.m. on 20.4.1997 PW 8 along with 8 to 10 villagers had gone to the police station and gave information in writing on which they gave their L.T.ls. The said document is also not brought on record. The defence has also not procured that document to show the statement, given by PW 8 Md. Hafiz Mian. In view of these facts, when there is no definite statement, as stated by PW 3 on 20.4.1997 and also by PW 8 along with 8 to 10 villagers, it does not discredit the written information (Ext. 1) given by PW 3 on 21.4.1997. 14. Both the victims were examined by the Board of doctors and Dr. Nand Kishore Prasad Jaiswal (PW 10) was also one of the members of the Board. PW 11 Dr. (Mrs.) Neelam Choudhary was also one of the members of the Board and examined victim Muneja Khatoon, daughter of Md. Mian on 21.4.1997 at about 4.00 p.m. and found the following injuries.

(2.) TEETH marks, 4 in number arranged in elliptical manner over right cheek near angle of mouth measuring 2.5" greater diameter and 1.5" lesser diameter. Upper part showed four teeth marks while in lower part there was lineal abrasion. Both were red brown in colour.

(3.) LINEAL oblique over left side of anterior abdominal wall above umbilicus 7 cm was present -red brown in colour.