Jharkhand High Court
Bir Singh Hembrom vs The State Of Jharkhand on 27 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (DB) No. 804 of 2014
(Against the judgment of conviction dated 22.03.2013 and the order of sentence dated
23.03.2013 passed by the learned Sessions Judge, West Singhbhum at Chaibasa in Sessions
Trial Case No. 156 of 2010)
--------
Bir Singh Hembrom, son of Putkar Hembrom @ Putkar Hansda, resident of
village: Sanmriglindi, Chaibasa, PO: Tonto, PS: Tonto, District West
Singhbhum (Jharkhand) ..... Appellant
Versus
The State of Jharkhand ...... Respondent
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
-------
For the Appellant : Mr. Bhola Nath Rajak, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
-------
Oral Order
th
27 March 2023
Per, Shree Chandrashekhar,J.
In Sessions Trial Case No. 156 of 2010, Bir Singh Hembrom
was put on trial for committing the offence under sections 341, 323, 504 and
376 of the Indian Penal Code.
2. At the outset, Mrs. Vandana Bharti, the learned APP informs
the Court that through a letter dated 20th March 2023 the Jail
Superintendent, Central Jail Ghagidih, Jamshedpur has sent an information
that on completing the sentence and depositing the fine amount of
Rs. 10,000/- the appellant has been released on 10th July 2018.
3. The sole appellant has been convicted and sentenced to RI for
10 years and a fine of Rs. 10,000/- under section 376 of the Indian Penal
Code with a default stipulation to undergo further SI for 6 months. The
appellant has further been convicted under sections 341 and 323 of the
Indian Penal Code but no separate sentence has been awarded for the
aforesaid offences.
4. The learned Sessions Judge, West Singhbhum at Chaibasa has
come to a conclusion that the appellant is the person who has sexually
2 Cr. Appeal (DB) No. 804 of 2014
ravished the prosecutrix in the evening of 7 th July 2010. The learned trial
Judge has referred to the ocular evidence of the prosecutrix and the medical
evidence proved through PW6 and PW7, to convict the appellant for the
following reasons:
"18. In cases of defective investigation, the prosecution case can
not be thrown out because the Investigating Officer is not under
the control of the prosecurix.
19. Even if there is delay in lodging of the FIR, that can be
ignored if the evidence of prosecutrix and the other witnesses,
inspire confidence that it is true and believable. If evidence of the
prosecutrix inspires confidence,conviction can be warranted on
her statement alone.
20. Absence of spermatozoa on vaginal smear does not
necessarily falsify the version of the prosecutrix. Penetration does
not necessary lead to the discovery of spermatozoa. Spermatozoa
can be found if the woman is examined within 12 hours after
intercourse, thereafter they may be found between 48 hours and
72 hours, but in dead form. If the presecutrix washes herself by
then the spermatozoa may not be found.
21. The rupture of the hymen and bruise around the hymen, is
sufficient to prove the act of rape.
22. Absence of injury or mark of violence on the private parts or
elsewhere on the person of the prosecutrix is of no consequence
when the prosecutrix is minor and would merely suggest one of
violent resistance on the part of the prosecutrix. The absence of
mark of injury on the person of the prosecutrix is not fatal in each
case. Absence of semen on cloths does not disprove rape when
there are material to prove the charge.
23. It is a fact that a rapist not only violates the victim's privacy
and personal integrity, but inevitably causes serious
psychological and physical harm in the process. Rape is not
merely a physical assault. The commission of rape upon a woman
is much heinous offene than murder. By committing murder, one
takes life of another forever, but committing rape, one takes soul
of the victim for whole life. It destroys the mental equilibrium of a
woman to live in the society peacefully.
24.In the present case, the victim, i.e. prosecutrix has fully
supported the case of the prosecution that when she was returning
with her husband to her house, the accused restrained them, not
only assaulted her husband, but also committed rape upon her
knowing fully well that she is carrying pregnancy of four months.
The accused not only committed rape upon her private part, but
he also committed crime against the child in the womb. It is an
inhuman act of the accused. Her husband was also present just
before the occurrence or after the occurrence. Therefore, both the
witnesses, i.e. PW-1 and PW-2 are corroborating to each other
and their evidences are clinching and only inference can be drawn
that the accused was not a man, rather his act is like a 'Monster'.
The matter was reported to the Munda and others and as per the
evidence of Doctor, there was injury on both forearms. Abrasion
present also on left leg below the knee joint. All are small in size,
blackish in colour. Since the victim was examined after three days,
therefore, spermatozoa was not found and as per the Doctor,
sexual intercourse took place. Therefore, the evidence of PW-1
has fully been corroborated by PW-2 coupled with the evidence of
PW-6. There is no any reason or motive on false implication
appear to be present in this record."
3 Cr. Appeal (DB) No. 804 of 2014
5. The prosecutrix who tendered the evidence as PW2 has deposed
in the Court that in the evening of 7 th July 2010 the appellant attacked her
husband and when he became senseless the appellant dragged her towards
the nearby bushes where he thrashed her on the ground and sexually
assaulted her. On the basis of the statement of the prosecutrix, Tonto PS
Case No. 07 of 2010 was lodged on 9th July 2010 against the appellant
under sections 341, 323, 504 and 376 of the Indian Penal Code
6. Altogether eight witnesses were examined by the prosecution to
establish the charge of assault upon the prosecutrix and her husband Dilka
Hembrom, and for committing rape upon the prosecutrix.
7. PW3 and PW4 who are the co-villagers of the prosecutrix were
declared hostile, and PW8 is the Judicial Magistrate, 1st Class who has
recorded the statement of the prosecutrix under section 164 of the Code of
Criminal Procedure.
8. PW1 who is the husband of the prosecutrix has deposed in the
Court that in the evening of 7th July 2010 when he was returning home with
his wife after visiting his maternal uncle Joseph Sinku the appellant attacked
him. PW1 has clearly stated that when they reached village Londaikir the
appellant suddenly appeared and started assaulting him on account of which
he became senseless. According to PW1, the matter was reported to the
village Munda and a panchayati was convened in the village.
9. PW6-Dr. Neeru Jha who has clinically examined the prosecutrix
on 10th July 2010 did not find any internal injury, tenderness or bleeding.
The FSL report of the vaginal swab did not reveal presence of any
spermatozoa dead or alive. However, PW6 has rendered an opinion that
sexual intercourse has taken place.
10. PW7-Dr. Ranju Shree who proved the injury report of Dilka
Hembrom vide ext. 5/1 has rendered an opinion that the injuries found on
the person of Dilka Hembrom were simple in nature and caused by blunt
object.
11. PW7 has found the following injuries on the person of Dilka
Hembrom:
"(i.) Swelling and ecchymosis on right lateral side of
eyebrows,size 3"x 1/2".
(ii) Abrasion on left side of chest below the areola 3"x1".
(iii) Abrasion on bridge of the nose, size 2"x1"
4 Cr. Appeal (DB) No. 804 of 2014
(iv) Swelling and haematoma below left eye, size 3"x2"."
12. From the aforesaid evidence of PW6 and PW7 the testimony of
PW2 gets ample corroboration. The case projected by the prosecution that
the appellant assaulted Dilka Hembrom has been proved through the
medical evidence of PW7. Furthermore, PW6 has also found marks of
violence over the person of the prosecutrix, such as, multiple abrasions on
her both arms and forearms. PW6 has also seen abrasion over left leg and
below knee joint of the prosecutrix which were blackish in colour and 4 to 5
days old.
13. The learned trial Judge has held that the mistakes committed
during the investigation or delay in lodging the First Information Report are
not the grounds to brush aside the testimony of PW2, PW6 and PW7. In our
opinion, the learned trial Judge has rightly held that conviction of the
accused can be recorded on the basis of the testimony of the prosecutrix
alone, unless there is compelling reason for seeking corroboration.
14. No doubt the testimony of a victim of sexual crime is
scrutinized with the same yardstick with which the evidence of any other
witness is examined. However, the victim of a sexual crime is such a witness
who lends assurance to the Court that being the sufferer she would not
depose falsely and implicate an innocent person in the crime.
15. In "State (NCT of Delhi) v. Pankaj Chaudhary" (2019) 11 SCC
575 the Hon'ble Supreme Court has held as under:
"29. 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 v. State of Maharashtra]. 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 of Rajasthan v. N.K.]"
16. Having thus examined the materials on record, we do not find
any reason to interfere with the judgment of conviction dated 22 nd March
2013 and the order of sentence dated 23 rd March 2013 passed by the learned
Sessions Judge, West Singhbhum at Chaibasa in Sessions Trial Case
5 Cr. Appeal (DB) No. 804 of 2014
No. 156 of 2010 and, accordingly, Cr. Appeal (DB) No. 804 of 2014 is
dismissed.
17. Let the lower Court records be sent to the Court concerned
forthwith.
18. Let a copy of the judgment be transmitted to the Court
concerned through 'FAX'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 27th March, 2023
S.B./Nibha-N.A.F.R
