Dukru Soy @ Chokro Soy vs The State Of Jharkhand
2024 Latest Caselaw 9965 Jhar

Jharkhand High Court

Dukru Soy @ Chokro Soy vs The State Of Jharkhand on 16 October, 2024

Author: Ananda Sen

Bench: Ananda Sen

                           Criminal Appeal (D.B.) No. 2222 of 2017
            Dukru Soy @ Chokro Soy, S/o Durga Soy, R/o Village Diliamircha, PO
            Chaibasa, PS Muffasil, Distt. West Singhbhum at Chaibasa
                                            ...                 ...      Appellant
                                            -Versus-
            The State of Jharkhand          ...                 ...      Respondent

             (Arising out of Judgment of Conviction dated 15.09.2017 and Order of
              Sentence dated 16.09.2017 passed by the Additional Sessions Judge-I,
              West Singhbhum at Chaibasa in G.R. (POCSO) Case No. 54 of 2015)
                                           ----
            For the Appellant : Mr. Anjani Kumar, Advocate
            For the Respondent : Mr. Vishwanath Roy, Spl. P.P.
                                           ----

            PRESENT:              SRI ANANDA SEN, J.
                            SRI GAUTAM KUMAR CHOUDHARY, J.
                                         ----

                                      JUDGMENT

Dated : 16.10.2024

By Court:

Heard the parties.

1. The appellant has preferred this appeal against the judgment of conviction dated 15.09.2017 and order of sentence dated 16.09.2017 passed by the Additional Sessions Judge-I, West Singhbhum at Chaibasa in G.R. (POCSO) Case No. 54 of 2015, whereby the appellant has been held guilty and convicted for the offence punishable under Sections 363, 376(2)(i) and 379 of Indian Penal Code and Section 4 of POCSO Act and he has been sentenced to undergo rigorous imprisonment for fifteen years and a fine of Rs.10,000/- under Section 376(2)(i) of IPC and has been further sentenced to undergo rigorous imprisonment for five years and a fine of Rs.5,000/- under Section 363 of IPC and two years and a fine of Rs. 1000/- under Section 379 of IPC. All the sentences were ordered to run concurrently.

2. Mr. Anjani Kumar, learned counsel for the appellant, submits that there is no independent witness to support the prosecution case. As per the prosecution case, at the time of occurrence the victim had accompanied one Jema Soy but said Jema Soy has been declared hostile. As per the prosecution case, one Motu Biruli was also present with Jema Soy but the prosecution has not produced said Motu Biruli as a witness. He submits that non production of these two persons as witness is a fatal blow to the prosecution case. He also submits that there is an allegation of

commission of rape upon the victim by this appellant but surprisingly the doctor did not found any mark of assault on the body of the victim. He lastly submits that there was dispute between the family for which this appellant has been falsely implicated in this case.

3. Mr. Vishwanath Roy, learned counsel for the State, has defended the impugned judgment of conviction and order of sentence and submitted that the victim has supported the prosecution case. Her statement is consistent. After the occurrence had taken place, the victim was examined by the doctor and the doctor found that sexual intercourse had taken place. He further submits that the statement of the victim under Section 164 Cr.P.C. was also recorded and the said statement was exhibited which corroborates the testimony of PW1. He lastly submits that it is not the quantity of the witness rather the quality of the witness which matters and there is nothing to suggest that there was an enmity between the parties for which the appellant has been falsely implicated in this case.

4. After hearing the parties, we have gone through the judgment, documents and exhibits.

5. The FIR is at the instance of the victim-P.W1. She states that she and one Jema Soy had gone to attend the natural call when one Motu Biruli came and met Jema and they started talking. Motu Biruli gave his mobile to the victim who sat and played with the mobile phone. Suddenly, this appellant chased the victim and caught hold of her and took her near the well and forcibly committed rape upon her.

6. On the aforesaid fardbeyan, Sadar Muffasil P.S. Case No. 143 of 2015 was registered under Sections 376(2)(i) and 379 of Indian Penal Code and Sections 4/6 of POCSO Act. Police after investigation filed charge sheet against the appellant under Sections 376(2)(i) and 379 of Indian Penal Code and Sections 4/6 of POCSO Act and he was put on trial.

7. After the charge was framed, the prosecution, in order to prove the case has examined 7 witnesses. Relevant documents were also exhibited. Statement of the accused under Section 313 of Cr.P.C. has been recorded. Defence is of innocence.

8. Trial Court found the appellant to be guilty for offence Sections 363, 376(2)(i) and 379 of Indian Penal Code and Section 4 of POCSO Act and sentenced him to undergo rigorous imprisonment for fifteen years and a fine of Rs.10,000/- under Section 376(2)(i) of IPC, five years and a fine of Rs.5,000/- under Section 363 of IPC and two years and a fine of Rs. 1000/- under Section 379 of IPC.

9. We have gone through the oral and documentary evidence led by the prosecution. PW-6 is the doctor who examined the victim. The doctor found the victim to be aged about 12 to 14 years. The girl also declared her age to be 12 years in her statement made under Section 164 Cr.P.C. There is nothing on record to suggest that the victim was major. It is also not the case of the appellant that the victim is major.

10. The doctor on examining the victim found that there was old rupture of hymen and opined that sexual intercourse had taken place, though there was no mark of violence. The medical report was exhibited as Ext.-4. From the evidence of the doctor, it can safely be concluded that sexual intercourse had taken place with the girl who is the victim, aged about 12 to 14 years.

11. Jema Soy has been declared hostile and non-examination of Motu Biruli will have no bearing as law is settled that in cases under Section 376 of IPC on the basis of sole testimony of the victim, the conviction can be sustained, provided the testimony of the victim inspires confidence. The Hon‟ble Supreme Court in the case of Phool Singh v. State of M.P. (2022) 2 SCC 74 has held as follows :

"8. In Ganesan v. State, (2020) 10 SCC 573 : (2021) 1 SCC (Cri) 76, this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paras 10.1 to 10.3, it is observed and held as under : (Ganesan case [Ganesan v. State, (2020) 10 SCC 573 : (2021) 1 SCC (Cri) 76] , SCC pp. 578-82) "10.1. Whether, in the case involving sexual harassment, molestation, etc. can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191 : (2010) 3 SCC (Cri) 639] , it is observed in paras 9 to 14 as under : (SCC pp. 195-98) „9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 : 1990 SCC (Cri) 210] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under : (SCC p. 559, para 16) "16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence

of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594 : 2005 SCC (Cri) 780] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under :

(SCC p. 597, para 12) "12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime.

There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do."

11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : 1996 SCC (Cri) 316] , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty- bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly

explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under : (SCC pp. 394-96 & 403, paras 8 & 21) "8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances.

21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86 : 2003 SCC (Cri) 1080] , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 : 1993 SCC (Cri) 674] , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence

inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9 : (2010) 1 SCC (Cri) 1208] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, 1951 SCC 1213 : AIR 1952 SC 54 : 1952 SCR 377] .

14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.‟ 10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130 : (2011) 3 SCC (Cri) 61] , it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.

10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21 : (2012) 3 SCC (Cri) 750] . In para 22, it is observed and held as under : (SCC p. 29) „22. [Ed. : Para 22 corrected vide Official Corrigendum No. F.3/Ed.B.J./48/2012 dated 18-8-2012.] In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to

rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.‟ "

(emphasis in original)

9. In Pankaj Chaudhary [State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575], it is observed and held that as a general rule, if credible, conviction of the accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of the prosecutrix should not be doubted by the court merely on basis of assumptions and surmises. In para 29, it is observed and held as under : (SCC p. 587)

"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 [Vishnu v. State of Maharashtra, (2006) 1 SCC 283 : (2006) 1 SCC (Cri) 217 ]. 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. (State of Rajasthan v. N.K., (2000) 5 SCC 30 : 2000 SCC (Cri) 898)]."

12. Victim (PW1) has stated that in the evening she went to ease herself when this appellant came and committed rape upon her after taking her near the well. She was also threatened. She admits that Jema Soy had gone with her and Motu Biruli was also there and Motu Biruli had given the mobile. In fact, what she has stated as a witness is exactly the same what she had stated in her fardbeyan. Her testimony is corroborated by her earlier statement before the Magistrate recorded under Section 164 Cr.P.C. which is Ext. 3 in terms of Section 157 of the Evidence Act.

13. From the evidence of this witness, we could not find any material to suggest that she is falsely implicating the appellant. Though the learned counsel has taken the plea that there was land dispute between the parties by referring to the evidence of mother and father of the victim i.e. PWs 2 and 3 but going through the same evidence, we find that bold suggestion was given to them by the appellant that there was some dispute, to which both these witnesses have categorically examined. Thus, we find that the ground of dispute taken by the appellant has got no leg to stand. In the examination under Section 313 of Cr.P.C. all the circumstances were put to the appellant but in stereotype manner he only denied

the same by saying "No Sir". Thus, we do not find any material to disbelieve or doubt the character of PW-1, who is the informant.

14. Thus, from the evidence of the doctor coupled with the evidence of PW1, we find that the prosecution has proved the charge against the appellant beyond reasonable doubts, that he has committed rape upon the minor girl aged about 12 to 14 years. Hence, the judgment of conviction passed by the Trial Court is affirmed.

15. Now on the point of sentence, we find that the appellant on the date of occurrence was 25 years. He has already remained in custody for eight years, three months and two days on the date of occurrence, the minimum sentence for commission of rape was 10 years under Section 376(2)(i) of IPC and also under Section 4 of the POCSO Act.

16. Considering the age of the appellant, we modify the sentence and sentenced him to undergo rigorous imprisonment for a period of 10 years with a fine of Rs.5,000/- under Section 376(2)(i) of IPC. In the event, the fine is not paid, the appellant will further serve simple imprisonment for a period of one month.

With the aforesaid modification in sentence, this criminal appeal stands dismissed.

Pending I.A., if any, stands disposed of.

Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.

(Ananda Sen, J.)

(Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 16th October, 2024 AKT/Satendra