Manipur High Court
Khuraijam Bungbung vs The State Of Manipur on 20 May, 2025
Author: A. Guneshwar Sharma
Bench: A. Guneshwar Sharma
reportable
IN THE COURT OF MANIPUR
AT IMPHAL
Cril. Appeal No. 1 of 2018
1. Khuraijam Bungbung, aged about 30 years, S/o (L) Kh. Indrajit Singh
of Lamlongei, P.O. Mantripukhri & P.S. Heingang, Imphal East.
2. Nongthombam Bocha @ Biren Singh, aged about 43 years, S/o N. Bihari
Singh of Lamlongei Mantripukhri Maning Leikai P.0. Mantripukhri & P.S.
Heingang, Imphal East.
3. Khuraijam Khamba Singh, aged about 26 years, S/o Kh. Guno Singh of
Lamlongei Mantripukhri Maning Leikai P.0. Mantripukhri & P.S. Heingang,
Imphal East.
...... Appellants/Accused
-Versus-
The State of Manipur
Represented by Addl. Chief Secretary, Home Manipur.
......Respondent
CRIL. APPEAL NO. 1 OF 2018: KHURAIJAM
BUNGBUNG & 2 ORS V/S STATE OF MANIPUR
BEFORE
HON'BLE THE CHIEF JUSTICE MR.D. KRISHNAKUMAR AND
HON'BLE MR. JUSTICE A. GUNESHWAR SHARMA
For the Appellants : Mr. Khaidem Mani, Sr.Adv., Mr. A. Gautam Sharma,
Ms. Ibemcha Keisham, Advocates
For the Respondent: Mr. Kh. Athouba PP, assisted by Mr. Phungyo
Zingkhai, Dy. GA
Date of Hearing : 06.03.2025
Date of Order : 20.05.2025
JUDGEMENT& ORDER
A. GUNESHWAR SHARMA, (J):
1. The Present Cril. Appeal is filed against the Judgement and Order of
conviction dated 18/12/2017 and Order of Sentence dated 20/12/2017
passed by the Ld. Addl. Sessions Judge (FTC) Crime Against Women,
Manipur in S.T. (CAW) Case No. 3 of 2017 convicting the Appellants under
Section 376 -D of the Indian Penal Code and sentencing the 1st Appellant
to undergo rigorous imprisonment for life with fine of Rs. 10,000/- (Ten
Thousand) only and the rest 2(two) Appellants to undergo rigorous
imprisonment for a period of 20 years and a fine of Rs. 5,000/- (Five
Thousand) each and in default of payment of fine the accused have to
undergo 3(three) months simple imprisonment.
CRIL. APPEAL NO. 1 OF 2018: KHURAIJAM
BUNGBUNG & 2 ORS V/S STATE OF MANIPUR
2. The prosecution story is that on 23/01/2014 at about 1pm, the
complainant namely Ashang Kasar lodged a written complaint stating that
on 22/01/2014 at about 1 or 2 pm, his niece Miss X (name withheld) came
from Mantripukhri Bazaar. When she reached at Lamlongei, the three
persons came and kidnapped his niece and later raped her in Lamlongei
jungle. Accordingly a regular case being F.I.R No. 04(1)2014 HNG-PS,
376/34 IPC was registered and after investigation, charge sheet was
submitted.
3. The charges were framed against the accused persons (the present
Appellants) under Sections 109/354/376/384 & 34 IPC on 24/07/2017.
Later on 08/12/2017, the trial Court altered the charges from Sec 376/34
IPC to 376-D, IPC by invoking the provision u/s 216 CrPC after due
consideration of the materials on record and hearing of the Ld. Spl.P.P. as
well as Ld. Defence counsels.
4. During the course of the trial, the trial court examined 13 prosecution
witnesses and exhibited various documents.
5. Examination of PWs (Extract of few important depositions)
(i) . Md. Allimuddin (Constable No. 10D0688) was examined as
P.W1. He has deposed that on 24-01-2014 at about 2:00 PM he along
with the police personnel of Hng. P.S. led by SI Ksh. Nareshkumar of Hng.
P.S. went to Forensic Medicine science, RIMS. The I.0. of the case SI ksh.
Nareshkumar of Hng. P.S. seized (1 ) One Plastic tube containing vaginal
CRIL. APPEAL NO. 1 OF 2018: KHURAIJAM
BUNGBUNG & 2 ORS V/S STATE OF MANIPUR
Swab (2) One plastic tube containing urethral Swab on production by Dr.
Kh. Pradipkumar of Forensic Medicine, RIMS by preparing a seizure memo
in which he put his signature on the seizure memo as a seizure witness
after knowing the contents fully.
The P.W. No. 1 further deposed that on the same day at about 2 PM SI
Ksh. Nareshkumar of Hng P.S. seized (1) One plastic tube containing penile
swab (2) one plastic tube containing urethral swab (3) one EDTA tube
containing sample of blood on production by Dr. Kh. Pradipkumar of
Forensic Medicine, RIMS by preparing a seizure memo in which he put his
signature on the seizure memo as a seizure witness after knowing the
contents fully. The P.W. no. 1 also identified the seized articles.
The cross examination to the P.W. no. 1 are mere denials.
(ii) . Shri Mutum Hemanta Singh was examined as P.W.no. 2. He
has deposed that in the year 2014 he was posted at Hng. P.S. as a
constable. He knows the accused persons who were sitting in the dock.
On 24-01-2014 at about 2 PM he along with the police personnel of Hng.
P.S. led by SI Nareshkumar Singh went to Forensic Medicine Dept. RIMS
when they reached at FM Dept. RIMS the I.O. of the case SI Naresh Singh
seized (1) one plastic tube containing penile swab (2) one plastic tube
containing Urethral Swab (3) one EDTA tube containing sample of blood
on production by Dr. Kh. Pradipkumar of Forensic Medicine, RIMS by
preparing a seizure memo in which he put his signature on the seizure
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memo as a seizure witness after knowing the contents fully. The P.W. no.
2 also identified the seizure memo and M.Os.
(iii) . Shri Kshetrimayum Nareshkumar Singh was examined as
P.W. no. 5. He is the first I.O. of the case and he deposed that he knows
the accused persons who are now sitting in the dock. The P.w. 5's
deposition is that on 23-01-2014 at about 1 pm complainant (P.W. no. 6)
made a written report to the O.C. Hng: P.S. station stating that on 22-01-
2014 in between 1:00 to 2:00 pm one Miss X who came from Mantripukhri
Bazar, when she reached at Lamlongei the three persons namely
Khuraijam Bungbung, Nongthombam Bocha@Biren and Khuraijam
Khamba came out and kidnapped his niece by the accused persons and
raped her in the jungle.
The P.W. no. 5 also deposed that the case was registered as FIR No.
4(1)2014 Hng. P.S., U/s 376/34 IPC and the same was endorsed to him
for investigation and he started investigation. First of all he examined the
complainant and recorded his statement u/s 161 Cr.P.C.
The accused Khuraijam Bungbung [A-1] was arrested on 23-01-2014 and
made body search. On his body search found the following items:- (1) one
Nokia Mobile phone C2 (MO-6), (2) Lemon Mobile Phone B499 (MO-7), (3)
One black underwear having semen stained (M0-8).
The accused was interrogated. On his interrogation had admitted the
commission of crime which was committed along with two other accused
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persons namely Bocha and Khamba both from Lamlongei, thereafter a
prayer had been made to the court for police custody of Bungbung for 9
days i.e till 31-1-2014.
During police custody, the P.W. no. 5 made attempt to cause arrest of
other two accused persons but at first no arrest could be made, after that,
hectic efforts were made to cause arrest of the two accused persons.
On 24-01-2014 medical examination in respect of victim girl (P.W. no. 7)
was done at Forensic Medicine, RIMS. On the same day Medical
examination of the accused Bungbung was also done before Forensic
Medicine, RIMS.
P.W. no. 5 further deposed that Ext. P/7 is the seizure memo for seizing
of one plastic tube containing vaginal swab (MO-1) and one plastic tube
containing urethral swab (MO-2) on production by Dr. Kh. Pradipkumar of
FM, RIMS in presence of witnesses of Ch. Soreila Devi (Mother of victim
P.W. no. 8) and Md. Alimuddin cons/driver of Hng. P.S. (P.W. no. 1) and
Ext. P/7/4 is his signature.
Ext. P/8 is the seizure memo dtd. 24-01-2014 at 2pm for seizing of one
plastic tube containing penile swab (Mo-3), one plastic tube contairing
urethral swab (MO-4) and one EDTA tube containing sample of blood (MO-
5) on production by Dr. Kh. Pradipkumar of Forensic Medicine, RIMS in
presence of witnesses M. Hemanta Singh (P.W. no. 2) constable of Hng.
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BUNGBUNG & 2 ORS V/S STATE OF MANIPUR
P.S. and Md. Alimuddin (P.W.no. 1) constable/ driver of Hng. P.S. and Ext.
P/8/4 is his signature.
On the same day i.e, on 24-01-2014, he has seized the following items on
production by Soreila Devi (P.W. no. 8) at Forensic Medicine, RIMS, i.e.
(1) one full shirt, V-shape black dotted by red in colour, (2) one panty red
in colour having semen stain and (3) one black colour long pant
(stretchable) MO-11 is the one black colour long pant (stretchable) in the
presence of the witnesses namely Sarejahan Shiekh (P.W.no. 11)
W/Const. of Hng. P.S.
On 24-01-2014 he had examined and recorded the statement of the victim
u/s 161 Cr.P.C. On that day i.e. on 24-01-2014 the accused persons Bocha
[A-2] and Khamba [A-3] surrendered before the then O.C. Hng.P.S. and
then arrested the two accused persons Bocha and Khamba.
On the next day i.e. on 25-01-2014 he made a prayer and taken police
custody for 7 days till 31-01-2014 from the court of CJM/IE.
The P.W. no. 5 also deposed that he examined and recorded the statement
of the three accused persons u/s 161Cr.P.C. one after another. They had
admitted to have committed the crime.
On 27-01-2014 he had seized (Ext. P/13) one scarf striped with white-
yellow-pink-orange-and brown some part torn on the middle part and at
the end part of the cloth (MO-12), in presence of the witnesses namely
Ch. Gourachand Singh (father of the victim) and Khomdrom Shiroy Meitei
CRIL. APPEAL NO. 1 OF 2018: KHURAIJAM
BUNGBUNG & 2 ORS V/S STATE OF MANIPUR
Const. Hng. P.S. The P.W. no. 5 identified the signature of Khomdrom
Shiroy Meitei Const. Hng, P.S as he was serving with him for a long time
in the same P.S. Ext. P/13/3 is the signature of Khomdrom Shiroy Meitei
Cons. Hng. P.S. and Ext. P/13/4 is his signature.
(iv) Ashang Kasar the complainant was examined as (P.W. no. 6).
He has deposed that Soreila the mother of the victim (P.W. no. 8) is his
cousin sister who is married to one Ch. Priyo Kumar Singh (P.W. no.9) of
Kwakeithel. Miss X, the victim of the case, was staying at his residence for
helping his family in the house-hold things and sometimes she also did
tailoring work at his house at the relevant time. At that time she (P.W.
no.7) must be aged about 23 yrs.
On 22-01-2014 in the evening she (P.W. no.7) asked him that she wanted
to go to bazar and left his house. In the evening when it was getting late
he (P.W. no.6) was worried as she did not return home. Then he tried to
contact her with her mobile but her (P.W. no.7) mobile was switch off. In
the evening but he could not remember the exact time and when he
informed the matter to his cousin sister namely Soreila Devi (P.W. no.8)
but she told him that the victim Miss X (P.W. no.7) did not come to her
(P.W. no.8) place. They were searching the whereabout of his niece Miss
X to their locality, at the relevant time he was informed by the family
member of one Luikham@Golmei namely Mrs. Ashing that his niece was
with him and they went for roaming but on the way back home Miss X
(P.W. no.7) was brought by some unknown persons and Golmei came back
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home. At the relevant time he (P.W. no.6) did not recognize the unknown
persons but later he came to know the three persons (who are sitting in
the dock) in the Heingang police station. On the day his niece Miss X (P.W.
no.7) did not return to his place and she went to her mother's house at
Kwakeithel.
The P.W. no.6 further deposed that he lodged a written complaint to the
O.C. Hng.P.S, he identified the O.E/complaint and his handwriting.
On the cross examination the P W. No. 6 deposed that the contents of the
complaint (Ext. P/10) was not written by his (P.W. no.6) handwriting. He
also deposed in the cross examination that at the time of putting his
signature (Ext. P/10/1) the contents was not read over to him.
Further, in the cross examination by the Ld. Counsel of accused no. 3,
P.W. no.6 stated that he put his signature Ext. P/10/1 on Ext. P/10 in a
blank paper, not after writing the contents of the complaint.
During his cross-examination, his evidence could not be shaken except for
confronting him with denial suggestions.
(v) . Miss X who is the victim in the case is examined as P.W. no.
7. She has deposed that she has many nick names. She knows the accused
persons who are now sitting in the dock.
P.W. no. 7 also deposed that in the year 2014 she was staying at the house
of her maternal uncle namely Ashang Kasar (P.W. no. 6).
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Her mother's name is Soreila (P.W. no. 8). Her mother was originated from
Tangkhul Tribe and married to Meitei who belongs to Hindu religion. After
passing class-X standard, she could not complete Class XII and she did not
continue her study and started embroidery work.
The P.W. no. 7 further goes to depose that in the last week of October,
2013 she stayed at the house of her maternal uncle whose name is Ashang
Kasar (P.W. no. 6) for helping the household works for the ailing aunty
Achui at Nagaching. During the time when she was staying at her uncle's
house, she came to know one person named Lukham @ Ringsinglun. He
was her boyfriend. Sometimes they used to talk over phone. When she
returned home, they used to chat over phone frequently. One day in the
month of January, 2014, that was in the morning Luikham called her up
through mobile phone and asked her (P.W. no. 7) to come and see him at
one pan dukan at Mantripukhri. At about 1:00 pm or it was about 2:00 pm
she (P.W. no. 7) came out from her house, on reaching main road at Sega
Road she caught one Auto rickshaw and reached at Khwairamban Bazar,
Samu Makhong and proceeded upto Nagamapal Auto parking on foot.
Then she went through one passenger auto rickshaw upto Mantripukhri
where Luikham was waiting for her. Lukham proposed to go somewhere
for roaming and both of them went to a place which was high lying area
and it was not actually hill area. The area was an isolated area, vacant
land and clearly visible by someone if they used to go and sit over there.
On reaching upto to the high lying area, they were sitting and talking to
each other. While they were sitting together some unknown three persons
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came near to them. They were asked by the three persons the reason for
sitting at that place. They told them that they were just sitting.
The P.W. no. 7 also deposed that out of those three persons, one person
had taken her boyfriend namely Luikham and the remaining two persons
remained near to her. At the relevant time she (P.W. no. 7) was standing
there, out of those two persons one person was holding her right breast.
P.W. no. 7 strongly objected and that person slapped on her face due to
her objection. Another person asked her to have sexual intercourse and
she refused. One person was holding her (P.W. no. 7) hands and another
person pushed down her trouser and panty up to knee joint. By that time
she was made to lie down on the ground. The witness has identified the
person (accused) who committed rape to her (P.W. no. 7) and he is the
person accused who is now sitting in the court and his name is
Bungbung[A-1]. Bungbung pushed down her (P.W. no. 7) trouser and
panty upto knee and then he (Bungbung) raped her. At the relevant time
the other person escorting near the incident by holding a stick. After the
rape, P.W. no. 7 pulled up her trouser and panty and dressed properly.
She (P.W. no. 7) was trying to leave that place but the two restrained her
from leaving the place. They demanded money from her, failing which
they would disclose to the local Meira Paibis (women vigilantes) about the
gathering of her and her boyfriend at that place but she could not
remember the exact amount which they demanded from her (P.W. no. 7).
Thereafter, she (P.W. no. 7) and the two persons had an exchange of hot
words, later she left the place, by saying to the persons that she (P.W. no.
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7) would take money from home. When she (P.W. no. 7) came down from
the high lying area to the low area she e saw her boyfriend and the other
person were standing. At the relevant time the other two persons were
also followed her. When she reached near to her boyfriend, she asked
them to accompany with her boyfriend to take money from home but they
asked them (P.W. no 7 and the boyfriend) one of them should remain
there. Her boyfriend proposed to go and herself to remain with them but
she refused and then PW no. 7 came alone for taking money from her
mother's home at Sega Road, Takkel Leikai. When she reached home at
Sega road Takhel leikai it was about to dark. She asked her mother (PW
no. 8) to give some money for buying a mobile phone but her mother said
she had no money.
The P.W. no. 7 in her evidence further deposed that in the night at about
6:30 pm her uncle namely Ashang Kasar (P.W.6) rang up to her mother
(P.W. no. 8) asking about her (P.W. no. 7) and her mother replied her
uncle that P.W. no. 7 was with her. On the next day, her uncle Ashang
Kasar (P.W. no. 6) rang up again to her mother and told that there was
some crisis happened the previous day to P.W. no. 7 and because of that
crisis some local Meira Paibis (women vigilantes) assembled at residence
of P.W. no. 6 and her uncle asked her mother to come with her (P.W. no.
7). Accordingly, in the same morning she (P.W. no. 7) along with her
mother (P.W. no. 8) went to uncle's house (P.W. no. 6). On the way i.e.
about to reach uncle's house (P.W. no. 6), they were informed by some
local Meira Paibis to come to community hall of Mantripukhri. Her mother
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(P.W. no. 8) went to community hall with some Meira Paibis and P.W. no.
7 along with 2/3 Meira Paibis went to one school located at Mantripukhri
i.e. the local area of her uncle (P.W. no. 6).
After some time her mother along with some persons including Meira
Paibis came to the school where she (P.W. no. 7) was waiting for them.
She asked the Meira Paibis to make available the accused persons at the
school but she (P.W. no. 7) was informed that the three persons were
picked up by the Heingang police personnel. After a while some police
personnel came to the school and then she was also picked up by police
personnel.
She was examined and her statement U/s 161 Cr.P.C. was recorded by the
I.0. of the case in connection with this case. She also appeared before the
court of CJM/IW and recorded her statement U/s 164 Cr.P.C. on
17/02/2014. Her statement u/s 164 CrPC is marked as Ext.P-11 where she
narrated that she was raped by accused Bungbung by inserting his penis
in her private parts while another accused threatened her not to scream.
Her statement recorded u/s 164 CrPC is more or less consistent with her
deposition before the court.
In the cross examination P.W. no. 7 denied that she was not sexually
assaulted by the accused persons but she could not say the colour of t-
shirt and the trousers of the respective dress of the three accused persons.
Others are mere denial and while cross examination by the ld. counsel of
the accused persons to the victim the factum of rape and torture with
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common intention committed by the accused Bungbung, Bocha and
Khamba could not be shaken. In cross examination of P.W. no. 7, she
admitted that the youngest person, later pointed out and identified as
accused Khamba [A-3], was not involved in the insult, sexual assault and
rape, but he was the person who had taken Luikham (PW no.7's boyfriend)
aside.
PW no.7 denied the suggestion that she was not sexually assaulted by the
accused persons. On that day at the spot the three accused persons came
with their respective dress of shirts and trousers but she cannot say the
colour of the shirts and the trousers.
She denied the suggestion that the persons now in the dock are not the
persons who came near to her and Luikham while they were sitting
together at the spot.
P.W. no.7 was cross-examined on recall on 11th December, 2017. In her
further cross examination by the Ld. Counsel of accused no. 1 and 2, she
has deposed that "I admit to the suggestion that on the day of occurrence
i.e. on 22-01-2014 accused no. 1 (Bungbung) did not rape me". She
further stated that all the accused persons had beaten her on that day.
(vi) Soreila the mother of the victim was examined as P.W. No.
8. She has deposed that in the month of January, 2014 at about 10/11
am but she could not say the exact timing, she went to Forensic Medicine,
RIMS along with her daughter namely Miss X (victim) in c/w the case as
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asked by the IO of the case. When they reached at Forensic Medicine,
RIMS with her daughter one doctor namely Dr. Kh. Pradeepkumar Forensic
Medicine, RIMS examined her daughter Miss X in c/w this case. After
examining her daughter the I.O. of the case seized by preparing a seizure
memo for seizing one plastic tube containing viginal swab and one plastic
tube containing urethral swab in their presence. She put her signature on
the seizure memo as a seizure witness prepared by the I.O. of the case.
She identified the seized items.
6. Confessional statement of accused/appellant no. 1 Khuraijam
Bungbung u/s 164 CrPC recorded on 12/02/2014 [Ext.P-20] is
reproduced below:
"On 22nd January, 2014 at around 1:30 pm when I was sitting in my pan-
dukan/shop I show a young couple climbing a hill of Lamlongei. In the meantime
one Bocha Singh who is my neighbour came to my shop and he also seems to
have seen the said couple climbing up the said Lamlongei hill slop, asked me that
they should go up and see what the purpose are up to. I along with the said
Bocha who leads in the front along with one Khamba went up to the direction of
the hill slope where the couple have climb up. On reaching the spot the said
Bocha who is also a co-accused in this case said to us that the two couple has
sneaked into a thick/dense grass and said that we should go and have a look as
to what is happening within the bushes. When I reached along with the other co-
accused to the spot of bushes they show the couple in a compromised position.
On seeing that Mr. Bocha chastised the couple why they are doing such kind of
act in this locality you should have behaved in more descent manner by sitting
down at the proper places and Mr. Bocha slapped both the couple once. After
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slapping the couple we called the couple to come with us to the local club to talk
over about the issue. I along with the male couple and Khamba came out from
the spot/bushes and we were walking on the footpath of the hill thinking that Mr.
Bocha and female partner are also coming behind us. After walking for about 20
meters away from the spot where we found the couple in the compromised
position, I realized that Bocha and the lady were still in the said bushes. Since
Bocha and female were not come out, I went back to the same place and I found
Bocha and the lady were standing at the distance of one feet between them.
There I scolded the lady saying that do you want fun and enjoyment. Saying that
I also being a human being I was also over taken by the carnal desire so I touch
the bodies of the lady. I leave up her cloths to check any marks or something is
there on her body simultaneously I also told the lady since you want enjoyment
you have to enjoy with me also while caressing her body and playing with her
bodies I ejaculated myself without any penetration into her body as I was
mentally restrained to do such acts. As I discharged myself I show her
handkerchief lying on the ground and I pick up the said handkerchief to clean
myself. Thereafter I myself along with the lady came from the bushes and at that
time Bocha and Khamba were found standing nearby.
The male partner was found standing together there I told the male victim that
as per the custom you both have to be taken to the local club and you have to
do the keina Katpa' and not only that you could be fine even Rs. 40,000/ to
50,000- to us. To these the victim boy requested to me and to my co-accused
not to take to the local club and not to take such king of actions and he requested
us that he will giving some fine to us (accused person). So we asked how much
amount he can pay to us and the boy said that he can give about Rs. 5,000/- to
us in the meanwhile the victim girl intervened and said that the boy is a poor
person he would not be able to pay the amount so she requested us to send her
home to Collect the amount from her house and she will come back and pay the
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amount to us. After waiting a while she did not return. Since the girl has not
returned we sent back the boy to his house. Before sending him back to his house
we seized his I- card and his mobile and earlier before the girl left to her house
to collect the money we also seized her mobile phone to ensure that they return
with the amount. We told both of them they can collect their mobile phone and
other material after the payment is made. After sending away the couple in this
manner we also left for our own house and before we reach home I took the two
mobile phones from Bocha for safe keeping with me because I could not trust
that he is a drug addict so he might sold out the mobile phone. So I took the
mobile phone from Bocha and keep with me. On the next day at around 7:30 am
I went out from my house to buy some grocery for my shop and upon reaching
at the leikai community hall show people gathering including the club member
and the victim boy and also Bocha and Khamba. I also went to the community
hall when inquire I found that it was regarding yesterday incident/issue. The club
member and the meira paibies scolded us why you have not brought them to the
local club. I admitted my mistake and beg for forgiveness. The club member
demanded a fine of Rs. 50,000-from me for not bringing the matter before the
local club. So I along with one uncle of my locality went to my house and informed
my mother about the fine but my mother say she does not have that kind of
money. So I in turn requested to my accompanying uncle to help me and he say
that he can help amount of Rs. 25,000/- and the said amount is handed to me
and the remaining amount I was trying to manage the sold forth amount of Rs.
25,000/- by mortgaging my Activa scooter to the said uncle's younger brother.
While in the process some two/three women of our locality refused to accept the
kind of settlement. At that moment, some policemen were also present at the
spot where the two three women of our locality were protesting of the settlement
of the local club. At that moment, my accompanying uncle called the police who
were stationed nearby to take me away to the police station because here it is
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creating lot of commotion. Accordingly, I was taken to the police station and later
I was arrested in this case. At present I am in the judicial custody."
7. On 18/12/2017 the Ld. Addl. Sessions Judge (FTC) Crime Against
Women, Manipur convicted the Appellants under Section 376-D of IPC.
Vide separate order dated 20/12/2017 on sentence, the First Appellant
was sentenced to undergo rigorous imprisonment for life with fine of Rs.
10,000/-. The other two Appellants were sentenced to undergo 20 years
rigorous imprisonment with fine of Rs. 5000/- each. In default of payment
of fine amount, they should undergo 3 (three) months simple
imprisonment further.
8. Hence, the appellants filed this present appeal for setting aside the
impugned order of conviction as well as the order on Sentence.
9. Mr. Khaidem Mani, learned senior counsel for the appellants has
submitted that there was no reliable evidence to support the charges and
the trial court failed to examine crucial contradictions in the victim's and
complainant statement. He further argues that the victim's testimony (PW-
7) during the cross-examination has contradicted the prosecution's case
as she admitted that she was not raped by the 1st Appellant and that the
2nd appellant was not involved. Additionally, the Complainants testimony
was inconsistent and key witnesses including the victim's boyfriend were
not called to testify before the court.
10. Mr. Khaidem Mani, learned senior counsel for the appellants has also
submitted a written submission pointing out some important points for just
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determination of the case as the impugned judgment and order of the trial
court suffers from certain infirmities in as much as the same is illegal,
improper, arbitrary and leading to justice viz,
(i) There are so many procedural lapses: Charge-sheet was submitted
without compliance of Sec. 173 of CrPC without forwarding statements of
the prosecution witnesses and accused recorded u/s 161 CrPC and also
non-compliance of Sec 207, 208, 209 and 157 of CrPC.
(ii) FIR is the foundation of the investigation of a criminal case on the
cognizable offence. In the present case FIR (Ext. P/10) is a false and
fabricated document and the complainant (PW No.6) has disowned the
complaint (Ext. P/10) and it also does not disclose any offence against the
Accused/Appellants. There is unexplained delay of 24 hours in reporting
and lodging of FIR.
(iii) No place of occurrence disclosed. The prosecution has failed to prove
site plan/rough sketch map with index.
(iv) No Test Identification Parade of the accused as they are unknown
persons during investigation and trial.
(v) The most important point is that the alleged victim (PW No.7) admitted
that no rape was committed by the accused and hence no offence is made
out.
In further cross-examination on recall after alteration of charge,
victim PW-7 stated that "I admit to the suggestion that on the day of
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occurrence i.e. 22-01-2014 the Accused No. I (Bungbung) did not rape
me" It is well settled that an admission is substantive evidence of fact as
well as it is the best evidence against the makers of the statement.
(vi) No eye witness was produced even though the victim said that her
boyfriend was present at the place of occurrence. There is no
corroboration to the deposition of the victim.
(vii) There is no biological evidence such as semen, blood vagina
secretions, saliva etc may be identity and genetically typed by a crime lab.
But in the present case, no Forensic Expert report regarding the clothes
worn by the prosecutrix and accused.
(viii) Three different and contradictory statements of the place of
occurrence: (a) Lamlongei/Lamlongei jungle as per complainant, PW-6 in
the complaint, Ext.P-10; (b) High lying area not actually hilly area as per
victim PW-7 in her deposition; (c) Leihaopokpi Hillock, as recorded by Trial
Court in para 43 of the judgment.
(ix) Factual inconsistencies and error of facts have occurred in the original
charge and altered charge orders. In the original charge order dated
24.07.2017, the place of occurrence was mentioned as 'Lamlongei Jungle'
while in the altered charge order dated 08.12.2017, the same is mentioned
as 'High Lying Area'. It is also pointed out that the original charge was
altered without giving any opportunity to the accused persons thereby
causing injustice and prejudice to them.
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(x) Non-examination of the accused persons u/s 313 CrPC post charge
alteration is a serious lapse in the trial. It is stated that the examination of
the accused u/s 313 CrPC was recorded on 29/11/2017 and the charge
was altered on 08/12/2017. However, there is no fresh examination of the
accused u/s 313 CrPC after alteration of the charge thereby causing
prejudice to the accused persons. It is stated that the punishment for gang
rape u/s 376-D IPC is harsher than that of rape u/s 376 IPC.
(xi) The statement of the prosecutrix/victim (PW-7) recorded under
Section 164(5) CrPC was recorded after 26 days and the same was not on
oath and hence not admissible.
(xii) Confessional statement of A-1, Bungbung recorded u/s 164 CrPC
was not corroborated and there is no admission of rape.
(xiii) There is no iota of evidence against A-2 & A-3 and they are entitled
to be acquitted.
(xiv) Criminal motive or intention cannot be established during the trial
and the conviction was based on conjectures and surmises and without
any credible evidence.
11. Mr. Kh. Mani, learned senior counsel for the appellants refers to the
decision reported as Sidhartha Vashist v. State (NCT of Delhi):
(2010) 6 SCC 1 regarding compliance of Sections 157 and 173 of CrPC.
He further relies to another decision in the case of Gopal Singh v. State
of MP: (2010) 6 SCC 407 with respect to the compliance of the provision
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of Section 157 CrPC for prompt sending of FIR to the concerned Magistrate
and delay in such may draw adverse inference against the prosecution. In
the case of State of MP v. Sheetla Sahai: (2009) 8 SCC 617, it
emphasised for compliance of Section 173(5) CrPC for production of all
material documents before the court along with the chargesheet. Learned
senior counsel also refers to the decisions reported as Prithipal Singh v.
State of Punjab: (2012) 1 SCC 10 to the point that conviction can be
upheld on the basis of sole witness and acquittal may be sustained in spite
of several witnesses. When the accused is named for the first time in the
court, he is entitled to the benefit of doubt. He further cites the case of
Ram Deo Chauhan v. Bani Kanta Das: (2010) 14 SCC 209 to the
point that "if a person is entitled to benefit under a particular law, and the
benefits under that law have been denied to him, it will amount to violation
of his human rights". The sum and substance of the submission of learned
senior counsel for the appellants is that the appellants may be acquitted
from the conviction under Section 376-D IPC due to absence of credible
evidence and inherent defects in the trial as pointed out above.
12. Mr. Kh. Athouba learned PP has submitted that the victim was raped
by the accused Bungbung [A-1] in association with the two accused
persons namely Bocha [A-2] and Khamba [A-3] and the statements of PW-
6 and PW-7 are fully corroborated, moreover it is supported by the P.W.
10 who examined the victim and the accused Bungbung. The P.W. 10 has
clearly stated that after performing the clinical examination the findings
are consistent with recent sexual intercourse and there was sign of use of
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force. Thus the prosecution has established beyond reasonable doubt that
the accused person Bungbung had committed rape and acted in
furtherance of common intention with Bocha and Khamba which is
punishable u/s 376-D IPC.
13. Mr. Kh. Athouba, learned PP has also submitted that the narration of
the incident by the prosecutrix should be considered in entirety and minor
contradiction or insignificant discrepancies in the statement of the
prosecutrix should not be a ground for disbelieving the prosecution story.
The counsel also submitted that in the statement u/s 164(5) Cr.P.C. the
victim had narrated the true scene of crime which was recorded on 17-02-
2014 i.e. after 25 days of the occurrence and when she gave her evidence
in the court during trial she stated that she was forcibly raped by Bungbung
and it was escorted by one person and one person took away her
boyfriend, the statement given on 11-12-2017 (on recall) was made out
of fear and influence from the accused person.
14. Mr. Kh. Athouba Ld. PP also submitted that the occurrence was on
22-01-2014 and after two days i.e. on 24-01-2014 the Medico-legal
examination of the victim as well as the accused Bungbung were done. As
per finding of the Medico-legal examination of the victim's result was
consistent with recent sexual intercourse and there was Sign of use of
force and it is corroborated with the statement given by the P.W. no. 7 as
well as by her 164 (5) CrPC statement that she was being slapped, beaten
by the accused persons, sexually assaulted and raped by the accused
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Bungbung with common intention of his associates namely Bocha and
Khamba. Moreover, it is corroborated by the Medical examination report
of the P.W.10 in respect of the body injuries of the victim as well as
Bungbung. As such the commission of the crime is more corroborated by
the confessional statement of Bungbung.
15. Learned PP has also submitted written submission and for clarity the
same is reproduce below:
(i) The present Criminal Appeal has been preferred against the
Judgement & Order dated 18-12-2017 and Sentence Order dated
20-12-2017 by the 3(three) Appellants who are the convicts in the
Sessions Trial (CAW) Case No. 3 of 2017 (FIR No. 04(1)2014 HNG-PS
u/s 376/34 IPC altered to 376-D IPC) passed by the Ld. Addl. Sessions
Judge, Fast Track Court, Crime Against Women, Manipur.
(ii) The 3(three) convicts have been convicted under Section 376-D of the
Indian Penal Code and ordered that the convict Khuraijam Bungbung
[A-1] is sentenced to rigorous imprisonment for his life term which
shall mean imprisonment for the remainder of the convict natural life
and fine of Rs. 10,000/- (Rupees ten thousand) only.
Further, the convicts namely Nongthombam Bocha @ Biren
Singh [A-2] and Khuraijam Khamba Singh [A-3] are sentenced to
rigorous imprisonment for a period of 20 years each and fine of Rs.
5,000/- (Rupees five thousand only) each and in default of payment of
fine the convicts are to undergo 3(three) months simple imprisonment.
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(iii) The report/complaint (at page no. 2 of the Memo of Appeal paper
book) was lodged by the uncle of the victim on 23-01-2014 before the
Officer-in-Charge, Heingang Police Station, Imphal East, Manipur
stating that 3(three) men namely (i) Khuraijam Bungbung, aged about
27 years, S/o (L) Indrajit, (ii) Nongthombam Bocha Singh, aged about
40 years, S/o N. Bihari and (iii) Khuraijam Khamba, aged about 23
years, S/o Khuraijam Guno came out and kidnapped his niece namely
X when she reached at Lamlongei on 22-01-2014 at around 2:00 pm
and also seized the mobile and raped his niece Nanao. Accordingly,
FIR (at page No. 1) has been registered by the Heingang Police Station
being FIR No. 4(1)2014 u/s 376/34 IPC against the said 3(three)
accused persons.
(iv) The Charge Sheet (at page No. 3) has been submitted before the
Addl. Sessions Judge, Fast Track Court, Crime Against Women,
Manipur being Charge Sheet No. 6/HNG PS/2014 dated 15-05-2014
under charged sections 376/34 IPC, 384/120-B IPC against the
3(three) accused persons for trial.
(v) The charge was framed on 24-07-2017 (page No. 8) by the Addl.
Sessions Judge, Fast Track Court, Crime Against Women against
Khuraijam Bungbung (convict no. 1), aged about 27 years, S/o(L)
Indrajit Singh of Lamlongei punishable under section 354 IPC, 376 IPC
and 384 IPC. On the same day, charge has been framed against
Nongthombam Bocha@ Biren Singh (convict no. 2), aged about 40
years, S/o N. Bihari Singh of Lamlongei Mantripukhri Maning Leikai
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punishable under section 109 IPC read with section 376 IPC, section
384 IPC read with 34 IPC. Charge also has been framed on the same
day against Khuraijam Khamba Singh (convict no. 3), aged about 23
years, S/o Kh. Guno Singh of Lamlongei Mantripukhri Maning Leikai
punishable under section 109 IPC read with section 376 IPC, section
384 IPC read with 34 IPC.
(vi) The 164 confessional statement of Khuraijam Bungbung (convict no.
1) (at page No. 20 of the Memo of Appeal paper book) was taken on
12-02-2014 before the Judicial Magistrate, First Class, Imphal East.
The relevant portion at page no. 21 of the Memo of Appeal paper book
at question no. V is reproduced as " V. Why you want to confess? Ans:
I want to make this confession to remove my guilty mind to what I
have done/committed so that I can live with free mind without any
pressure or tension."
(vii) The 164 statement of the victim namely X aged about 26 years was
taken on 17-02-2014 before the Chief Judicial Magistrate, Imphal West
(at page no. 26 of the Memo of Appeal paper book). The victim girl
narrated as "........ I met Lungkham and we walked towards the hill
side. The site was looking beautiful and after walking a bit, I got tired.
Looking around a suitable place to sit upon, we sat and chatted. While
we are enjoying with our chatting, 3(three) unknown persons came
towards us and asked us what we were doing. We replied that we were
just talking and deciding the date of our elopement etc. However,
paying no heed, they started to beat us. The elderly looking and the
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youngest looking men of the three slapped me and they kicked
Lungkham. They snatched the Mobile phone of myself and Lungkham.
They told us that they would question us separately. They also
threatened us that if we shout or gave alarm, we would be killed.
Then, the elderly looking person took me up the place whereas, the
other two person took down Lungkham from the place. After a few
steps, the person insisted on checking my bag to which I handed it
over to him. While opening the bag, he asked me whether I had
physical relationship with my friend. I told him that we had no such
relationship except love affairs. He then tried to molest me, I slapped
his hand away and told him not to do such kinds of things and also to
look at me as his sister. He slapped me and tried to hold and molest
me again. The youngest looking person then came up and asked as to
what was inquired from me by the elderly looking person. I told him
that he asked if I had physical relationship Lungkham and that I
answered no to him. He told me not to lie. He said he would test if I
was not lying. He said it was only natural that he should ask such kind
of questions. The elderly person then called the youngest looking
person aside by saying Bungbung, I want to talk to you. Thats when I
knew he was called Bungbung.
I did not hear what they were talking about. They then came up to
me and said they wanted to test whether I was lying or not. I told
them that they can test me. Bungbung then told me to take off my
pants. I refused and that they can't just allege anything towards me.
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They said that I as a woman should not talk so much and that I should
not be so stubborn. Bungbung then slapped me on my left cheek. He
then told me to lie down. I refused. The elderly person then held me
from my back. They slapped me and pushed me to the ground. I
screamed and kicked but Bungbung held my legs. The elderly person
then held a branch near my mouth and told me that he would hit me
on my mouth. They told me not to scream and the elderly person put
his hand over my mouth. Bungbung then raped me. He inserted his
penis inside my private parts."
The 3(three) convicts also demanded Rs. 50,000/- (Rupees fifty
thousand only) from them.
(viii) The Medical examination of the victim was conducted at RIMS on
24-01-2014 after 2(two) days of the occurrence of the incident. Report
is available at page no. 170 of the Memo of Appeal paper book. At
page no. 171 of the Memo of Appeal paper book, the examination
report reflects that Examination of Genital Parts at No. 17 (b) External
Genitalia;
(ii) Labia Minora: - Abraded, red & tender
(iii) Fourchette (bleeding, tear, etc.): - Fresh tear on
midline, 0.5 cm, red
No. 20. Clinical Opinion : (a) Consistent with recent sexual
intercourse/assault (d) Sign of use of force present
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(ix) The Medical examination report of the victim was supported by the
evidence of the PW-10 (page No. 66) namely Dr. Khangembam
Pradipkumar Singh who was working as Assistant Professor in the
Department of Forensic Medicine, RIMS.
(x) The relevant portion of deposition of the PW No. 7 (the victim) is
found at page No. 58 & 59 of the Memo of Appeal. It is reproduced as
"......... In the last week of October, 2013 I stayed at the house of my
maternal uncle whose name is Ashang Kasar for helping the household
works for the illing aunty Achui at Nagaching. During the time when I
stayed at my uncle's house I know one person whose name is Lukham
@ Ringsinglun. He was my boyfriend. Sometimes we used to talk over
phone. Thereafter I returned home, we used to chat over phone
frequently. One day in the month of January, 2014, that was in the
morning Lukham called me up through mobile phone and asked me to
come and see him at one pan dukan at Matripukhri. At about 1:00 pm
or it was about 2:00 pm I came out from my house, on reaching main
road at Saga Road I caught one Auto rickshaw and reach at
Khwairamband Bazar, Samu Makhong and proceeded upto Nagamapal
Auto parking on foot. Then I went through one passenger auto rickshaw
upto Matripukhri were Lukham was waiting for me then we met.
Lukham proposed to go somewhere for roaming then we both went to
a place that exact location in name I do not know but it was high lying
area, it was not actually hill area. The area was an isolated area, vacant
land and clearly visible by some one if we used to go and sit over there.
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On reaching upto to the high lying area we were sitting and talked each
other. While we were sitting together some unknown three persons
came near to us. We were asked by the three persons the reason for
sitting at that place. We told them that we were just sitting.
Out of those three persons, one person had taken my boyfriend
namely Luikham and the remaining two persons were remanded near
to me. At the relevant time I was standing there out of that two persons
one person was holding my right breast, I , strongly objected after that
the same person slapped on my face due to my objection. Another
person asked me to have sexual intercourse, in that I refused. One
person was holding my hands and another person pushed down my
trouser and panty upto knee jointly. By that time I was made lie down
on the ground.
The witness has identified the person (accused) who committed rape
to her and he is the person accused who is now sitting in the court and
his name is Bungbung. Bungbung pulled down my trouser and panty
upto knee and then he raped me, at the relevant time the other person
was escorting near the incident by holding a stick. After rape I was
pulling up my trouser and panty and dressed properly. I was trying to
leave that place but the two restrained me to leave the place. They
demanded money to give failing which they will disclose to the local
Meira Paibis (Women Folk) about the gathering of me and my boyfriend
at that place but I cannot remember the exact amount which they
demanded to me........."
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(xi) The deposition of PW No. 7 who is the victim was again taken on
11-12-2017 (on recall) (at page No. 62) and stated as "I admit to the
suggestion that on the day of occurrence i.e. on 22-01-2014 accused
No. 1(Bungbung) did not rape me." In the Judgment & Order dated 18-
12-2017 at page No. 120 of the Memo of Appeal at para No. 36, it has
been observed by the Hon'ble Trial Court that the statement given on
11-12-2017 (on recall) was made out of fear and influence from the
accused person.
(xii) The examination of accused No. 2 namely Nongthombam Bocha
under section 313 of the CrPC was taken on 29-11-2017 and question
no. 6 (at page no. 82) is reproduced as "Q.No. 6 : It is also in the
evidence of Ext. P/20 the confessional statement of accused Bungbung
that you along with Bungbung and Khamba went together and on
seeing the victim girl and her boyfriend sitting together you slapped,
kicked, beaten the victim and her boyfriend. You forcibly took away the
boyfriend of the victim from the spot. What have you got to say? Ans:
Yes, it is true."
(xiii) The examination of accused No. 3 namely Khuraijam Khamba Singh
under section 313 of the CrPC was taken on 29-11-2017 and question
no. 6 (at page no. 84) is reproduced as "It is also in the evidence of
Ext. P/20 the confessional statement of accused Bungbung that you
along with Bungbung and Bocha went together and on seeing the victim
girl and her boyfriend sitting together you slapped, kicked, beaten the
victim and boyfriend. You hold a stick and threatened the victim not to
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scream and escorted Bungbung while committing rape on the victim
girl. What have to got to say? Ans: Yes, it is true."
(xiv) In RAFIQ AHAMAD ALIAS RAFI -Versus- STATE OF UTTAR
PRADESH: (2011) 8 SCC 300 at para No. 67 page No. 331, the Hon'ble
Supreme Court observed that "It is true that the statement under
Section 313 CrPC cannot be the sole basis for conviction of the accused
but certainly it can be a relevant consideration for the courts to
examine, particularly when the prosecution has otherwise been able to
establish the chain of events."
(xv) The statements of the witnesses were recorded under 161 CrPC by
the Investigating Officer (I.O).
(xvi) The rough sketch map of the place of occurrence was drawn by the
I.O as found at Sl.No. 2 page No. 6 of the Memo of Appeal.
(xvii) The place of occurrence i.e Lamlongei Jungle/ High Lying Area/
Leihaopokpi Hillock mentioned in the deposition/trial of the case is
meant to be the same as Leihaopokpi Hillock which is of High Lying
Area and within the boundary of Lamlongei area. It is pertinent to
mention that the name of "Leihaopokpi Hilllock" was mentioned by the
DW No. 1 which is at page No. 73 of the Memo of Appeal paper book.
(xviii) RELEVANT CASE LAWS IN SUPPORT OF THE
PROSECUTION ARE AS FOLLOWS:
1. (2003) 6 SCC 175 : Superintendent of Police, CBI & Ors. -
Vs- Tapan Kumar Singh : At para 20 page No. 183, the Hon'ble
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Supreme Court observed as "It is well settled that a first
information report is not an encyclopaedia, which must disclose
all facts and details relating to the offence reported. An
information may lodge a report about the commission of an
offence though he may not know the name of the victim or his
assailant. He may not even know how the occurrence took place.
A first informant need not necessarily be an eyewitness so as to
be able to disclose in great detail all aspects of the offence
committed. What is of significance is that the information given
must disclose the commission of a cognizable offence and the
information so lodged must provide a basis for the police officer
to suspect the commission of a cognizable offence. At this stage
it is enough if the police officer on the basis of the information
given suspects the commission of a cognizable offence, and not
that he must be convinced or satisfied that a cognizable offence
has been committed. If he has reasons to suspect, on the basis
of information received, that a cognizable offence may have been
committed, he is bound to record the information and conduct an
investigation. At this stage it is also not necessary for him to
satisfy himself about the truthfulness of the information. It is only
after a complete investigation that he may be able to report on
the truthfulness or otherwise of the information. Similarly, even if
the information does not furnish all the details he must find out
those details in the course of investigation and collect all the
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necessary evidence. The information given disclosing the
commission of a cognizable offence only sets in motion the
investigative machinery with a view to collect all necessary
evidence, and thereafter to take action in accordance with law.
The true test is whether the information furnished provides a
reason to suspect the commission of an offence, which the police
officer concerned is empowered under Section 156 of the Code to
investigate. If it does, he has no option but to record the
information and proceed to investigate the case either himself or
deputy any other competent officer to conduct the investigation.
The question as to whether the report is true, whether it discloses
full details regarding the manner of occurrence, whether the
accused is named, and whether there is sufficient evidence to
support the allegations are all matters which are alien to the
consideration of the question whether the report discloses the
commission of a cognizable offence. Even if the information does
not give full details regarding these matters, the investigating
officer is not absolved of his duty to investigate the case and
discover the true facts, if he can. "
2. (1990) 1 SCC 550 : State of Maharashtra -Vs-
Chandraprakash Kewalchand Jain : At para 16 page 559, the
Hon'ble Supreme Court observed as "A prosecutrix of a sex
offence cannot be put on par with an accomplice. She is in fact a
victim of the crime. The Evidence Act nowhere says that her
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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."
"We have, therefore, no doubt in our minds that ordinarily the
evidence of a prosecutrix who does not lack understanding must
be accepted. The degree of proof required must not be higher
than is expected of an injured witness."
"Courts must also realise that ordinarily a woman, more so a
young girl, will not stake her reputation by levelling a false charge
concerning her chastity." (at page No. 560)
3. (1996) 2 SCC 384 : State of Punjab -Vs- Gurmit Singh &
Ors. : At para No. 8 page No. 396, the Hon'ble Supreme Court
observed as "The inherent bashfulness of the females and the
tendency to conceal outrage of sexual aggression are factors
which the courts should not overlook. The testimony of the victim
in such cases is vital and unless there are compelling reasons
which necessitate looking for corroboration of her statement, the
courts should find no difficulty to act on the testimony of a victim
of sexual assault alone to convict an accused where her testimony
inspires confidence and is found to be reliable. Seeking
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corroboration of her statement before relying upon the same, as
a rule, in such cases amounts to adding insult to injury. Why
should the evidence of a girl or a woman who complains of rape
or sexual molestation, be viewed with doubt, disbelief or
suspicion? The court while appreciating the evidence of a
prosecutrix may look for some assurance of her statement to
satisfy its judicial conscience, since she is a witness who is
interested in the outcome of the charge levelled by her, but there
is no requirement of law to insist upon corroboration of her
statement to base conviction of an accused. The evidence of a
victim of sexual assault stands almost on a par with the evidence
of an injured witness and to an extent is even more reliable. Just
as a witness who has sustained some injury in the occurrence,
which is not found to be self-inflicted, is considered to be a good
witness in the sense that he is least likely to shield the real culprit,
the evidence of a victim of a sexual offence is entitled to great
weight, absence of corroboration notwithstanding. Corroborative
evidence is not an imperative component of judicial credence in
every case of rape. Corroboration as a condition for judicial
credence in every case of rape. 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."
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4. (2011) 2 SCC 550 : State of U.P -Vs- Chhotey Lal : At para
No. 22 page 561, the Hon'ble Supreme Court observed as "......
The testimony of the prosecutrix, if found to be reliable, by itself,
may be sufficient to convict the culprit and no corroboration of
her evidence is necessary. In prosecutions of rape, the law does
not require corroboration. The evidence of the prosecutrix may
sustain a conviction. It is only by way of abundant caution that
the court may look for some corroboration so as to satisfy its
conscience and rule out any false accusations."
5. AIR 1957 SC 614 : Vadivelu Thevar -Vs- State of Madras
: At para No. 12, the Hon'ble Supreme Court observed as "........
But, where there are no such exceptional reasons operating, it
becomes the duty of the court to convict, if it is satisfied that the
testimony of a single witness is entirely reliable. We have
therefore, no reasons to refuse to act upon the testimony of the
first witness, which is the only reliable evidence in support of the
prosecution."
6. (2008) 17 SCC 587 : State represented by Inspect of
Police -Vs- Saravanan & Anr.: The Hon'ble Supreme Court
observed at para No. 18 page No. 593 "........ Even otherwise, it
has been said time and again by this Court that while appreciating
the evidence of a witness, minor discrepancies on trivial matters
without affecting the core of the prosecution case, ought not to
prompt the court to reject evidence in its entirety..........
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Difference in some minor detail, which does not otherwise affect
the core of the prosecution case, even if present, that itself would
not prompt the court to reject the evidence on minor variations
and discrepancies."
7. (1995) 6 SCC 230 : State of A.P -Vs- Bodem Sundara Rao
: The Hon'ble Supreme Court observed at para No. 9 page No.
232 as "In recent years, we have noticed that crime against
women are on the rise. These crimes are an affront to the human
dignity of the society. Imposition of grossly inadequate sentence
and particularly against the mandate of the legislature not only is
an injustice to the victim of the crime in particular and the society
as a whole in general but also at times encourages a criminal. The
courts have an obligation while awarding punishment to impose
appropriate punishment so as to respond to the society's cry for
justice against such criminals. Public abhorrence of the crime
needs a reflection through the court's verdict in the measure of
punishment. The courts must not only keep in view the rights of
the criminal but also the rights of the victim of crime and the
society at large while considering imposition of the appropriate
punishment. The heinous crime of committing rape on a helpless
13/14 year old girl shakes out judicial conscience. The offence
was inhumane."
8. (2003) 7 SCC 643 : Sucha Singh & Anr. -Vs- State of
Punjab: The Hon'ble Supreme Court observed and emphasised
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at para No. 20 page No. 653 as "A judge does not preside over a
criminal trial, merely to see that no innocent man is punished. A
judge also presides to see that a guilty man does not escape. Both
are public duties."
16. Mr. Kh. Athouba, learned PP submits that from the above stated facts
and circumstances and case laws, it is crystal clear that the 3(three)
Appellants/convicts have committed the offence of Gang rape under
section 376 D IPC, i.e., raped by one or more persons constituting a group
or acting in furtherance of a common intention. The minimum punishment
of which is rigorous punishment for a term not less than 20(twenty) years
and may extend to life which shall mean imprisonment for the remainder
of the person's natural life, and with fine. It is stated that the irregularities
as alleged by Mr. Kh. Mani, learned senior counsel for the appellants are
insignificant and such will not affect the trial. It is clarified that the initial
charge under Section 109/376/34 IPC was rightly altered to Section 376-
D IPC, as the accused have common intention. Corroboration is not
required in rape case and conviction can be sustained on the basis of sole
deposition of the victim and the corroboration, if any, is for abundant
caution. It is stated that there is no inconsistency in mentioning the place
of occurrence and different names mentioned by various witnesses, would
mean the same place.
17. We have perused the materials on records, the pleadings and the
written submissions. For better understanding, the provisions of Sections
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375 & 376-D of Indian Penal Code and Section 80 of Indian Evidence Act
are reproduced as under :-
Section 375 of Indian Penal Code, 1860
375. Rape.--A man is said to commit "rape" if he--
(a) penetrates his penis, to any extent, into the vagina, mouth,
urethra or anus of a woman or makes her to do so with him or any
other person; or
(b) inserts, to any extent, any object or a part of the body, not being
the penis, into the vagina, the urethra or anus of a woman or makes
her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause
penetration into the vagina, urethra, anus or any part of body of such
woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or
makes her to do so with him or any other person,
under the circumstances falling under any of the following seven
descriptions:--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by
putting her or any person in whom she is interested, in fear of death
or of hurt.
Fourthly.--With her consent, when the man knows that he is not her
husband and that her consent is given because she believes that he
is another man to whom she is or believes herself to be lawfully
married.
Fifthly.--With her consent when, at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the
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administration by him personally or through another of any stupefying
or unwholesome substance, she is unable to understand the nature
and consequences of that to which she gives consent.
Sixthly.--With or without her consent, when she is under eighteen
years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.--For the purposes of this section, "vagina" shall also
include labia majora.
Explanation 2.--Consent means an unequivocal voluntary agreement
when the woman by words, gestures or any form of verbal or non-
verbal communication, communicates willingness to participate inthe
specific sexual act:
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity.
Exception 1.--A medical procedure or intervention shall not constitute
rape.
Exception 2.--Sexual intercourse or sexual acts by a man with his own
wife, the wife not being under fifteen years of age, is not rape.
Section 376 IPC provides punishment for rape for a rigorous
imprisonment not less than 10 years, but may extend to imprisonment
for life and with fine.
Section 376D of Indian Penal Code, 1860
376D. Gang rape.--Where a woman is raped by one or more persons
constituting a group or acting in furtherance of a common intention,
each of those persons shall be deemed to have committed the offence
of rape and shall be punished with rigorous imprisonment for a term
which shall not be less than twenty years, but which may extend to
life which shall mean imprisonment for the remainder of that person's
natural life, and with fine:
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Provided that such fine shall be just and reasonable to meet the
medical expenses and rehabilitation ofthe victim:
Provided further that any fine imposed under this section shall be paid
to the victim.
Section 80 in The Indian Evidence Act, 1872
80. Presumption as to documents produced as record of evidence.
Whenever any document is produced before any Court purporting to
be a record or memorandum of the evidence, or of any part of the
evidence, given by a witness in a judicial proceeding or before any
officer authorized by law to take such evidence, or to be a statement
or confession by any prisoner or accused person, taken in accordance
with law, and purporting to be signed by any Judge or Magistrate, or
by any such officer as aforesaid, the Court shall presume - that the
document is genuine; that any statement as to the circumstances
under which it was taken, purporting to be made by the person
signing it, are true, and that such evidence, statement or confession
was duly taken.
18. The first ground of challenge to the judgment of conviction is non-
compliance of the provisions of Section 173 CrPC for not forwarding all the
statements recorded u/s 161 CrPC and for non-compliance of Sections 207,
208, 209 and 157 CrPC. On perusal of the front page of the chargesheet
[Ext.P-16], it is seen that the same consists of 178 sheets including
statements recorded u/s 161 CrPC and other relevant documents. There
was no protest regarding this allegation during the trial and the said
ground seems like an afterthought. We do not find any substance in this
allegation.
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19. The next ground is regarding FIR and it is alleged that the
complainant, PW-6 has disowned the complaint [Ext.P-10] lodged by him
during cross-examination and hence the basis of FIR [Ext.P-17] does not
exist. It is also stated that the no offence is made out against the accused
persons on plain reading of the complaint. There are many contradictions
regarding the place of occurrence and other details of the offence.
20. In his deposition, PW-6 did not dispute the contents of the complaint
[Ext.P-10] and his signature on it, but in the cross-examination, he stated
that the complaint was not in his handwriting and he signed on blank
paper. On careful examination of Ext.P-10, it is clear that the handwriting
on the complaint and the signature of the complainant are quite different.
This leads credence to the fact that someone wrote the complaint on
behalf of PW-6 and then he appended his signature upon it. The
discrepancy as pointed out by learned senior counsel for the appellants
may be due to passage of time (complaint lodged on 23/01/2014 and
deposition of PW-6 recorded on 30/08/2017) and the same is not fatal, as
its contents are more or less corroborated by the statements of other
witnesses. There is no substance in the allegation that the accused persons
were subsequently named in the court. On bare perusal of Ext.10, all the
three accused persons/appellants have been named in it and in FIR [Ext.P-
17].
21. Another major ground for appeal is that the victim (PW-7) herself
admitted in her cross examination that the accused Bungbung [A-1] did
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not rape her and hence no offence is made out. PW-7 did not mention
involvement of A-2 & A-3 in committing the rape. On careful analysis of
the deposition of PW-7 (victim) and her statement recorded u/s 164 CrPC
[Ext.P-11], she specifically stated that A-1, Bungbung raped her while A-3
kept guarded and threatened her. A-2 took her boyfriend away at that
time. The presence of the three accused at the place of occurrence has
been established from the confessional statement of A-1 [Ext.P-20]. A-1
also admitted his attempt to commit rape, but ejaculated before
penetration. Emphasis is made on the statement in cross-examination of
victim (PW-7) on recall that A-1 Bungbung did not rape her in order to
discredit the finding of the trial Court.
22. It may be noted that PW-7 was examined on 30/08/2017,
06/09/2017, 14/09/2017 and 25/09/2017 and her statement was
consistent with the prosecution story. During the cross-examination, her
deposition could not be discredited. However, on recall for cross-
examination on 11/12/2017, PW-7 stated that A-1 Bungbung did not rape
her. The trial Court observed in para 36 of the judgment that the statement
given by the victim on 11/12/2017 (on recall) was made out of fear and
influence from the accused person. We also agree with this observation as
the victim was recalled for further cross-examination on this point alone
after recording of statements of the accused u/s 313 CrPC on 29/11/2017.
It may be noted that in the statement u/s 313 of CrPC, A-3 admitted the
incident of rape as answer to question No.6. It is seen that the recall on
11/12/2017 might have been resorted to dilute the admission of A-3 and
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other materials and 'fear and influence from the accused' as held by the
learned trial Court is proper and logical. We are of the view that the
prosecution case cannot be discredited by a single statement made by the
victim on recall for further cross-examination, that too after completion of
recording statements of the accused u/s 313 CrPC.
23. Another ground of appeal is the alteration of charge after completion
of deposition of witnesses and recording statements u/s 313 of CrPC. It is
stated that the earlier charges framed on 24/07/2017 were u/s
376/109/384/34 IPC and on 08/12/2017 the same were altered to u/s 376-
D IPC . It is alleged that no fresh evidence was recorded after alteration of
charge and no further statements u/s 313 were also recorded. No
opportunity was given to contest the alteration of the charge. Learned PP
explains that the alteration in charge is just to rectify the mere error in
charge order, in exercise of the power u/s 216 CrPC. By converting a
charge u/s 376/34/109 IPC to one u/s 376-D is in essence the same and
it does not change the nature of the trial. There is an element of sharing
common intention amongst the accused in committing the crime and each
of the members of the group shall be deemed to have committed the
offence.
24. We are of the view that the alteration of the charge u/s 376/109/34
IPC to the one u/s 376-D IPC does not cause any prejudice to the accused.
The prosecution case is that the three accused shared a common intention
and A-2 & A-3 assisted A-1 in committing rape on the victim. Every person
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forming the group consisting of more than one person will be liable for the
same offence, even if he does not actually commit the rape himself. Since
the trial has been initiated on this basis, there is no further requirement of
producing fresh evidence for the altered charge and hence no requirement
of recording fresh statements u/s 313 CrPC of the accused.
25. Another ground of appeal is multiple places of occurrence as
mentioned by witnesses and in the judgments such as 'Lamlongei
jungle/High Lying Area/Leihaopokpi hillock'. We are of the view that all
these would mean the same place and the same does not vitiate the trial.
'Leihaopokpi Hillock' is also a 'High Lying Area' within the boundary of
'Lamlongei area'. Leihaopokpi hillock is mentioned by DW-1 and then
mentioned in the judgment.
26. We are not able to agree with the submission of Mr. Kh. Mani,
learned senior counsel for the appellants that the allegation of rape is not
substantiated by medical report and FSL opinion. Deposition of PW-10, Dr.
Pradipkumar who examined the victim and A-1 is very categorical. Medical
Examination report of the victim [Ext.P-14] mentioned fresh tear of hymen
at 3 & 7 o'clock position and the clinical findings are consistent with recent
sexual intercourse/assault and presence of sign of use of force. PW-10
also opined that as per medical examination report of A-1 [Ext.P-15], A-1
is potent. It is held that the allegation of rape is supported by the medical
opinion of the treating doctor. In view of the depositions of the victim and
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PW-10, we do not find it necessary for corroboration of statement of the
victim by FSL report specially in a trial for rape.
27. We do not find much force in the submission of the appellants that
the statement of victim u/s 164 CrPC [Ext.P-11] cannot be relied as the
same was not recorded under oath. Such a statement is not a substantive
piece of evidence, but a previous statement made before the Magistrate
who has power to take oath. Statement of minor is usually recorded
without oath. Since the statement recorded u/s 164 CrPC is corroborative
in nature, the same ought not to be rejected for mere absence of oath.
28. As held in the case of Gurmit Singh (supra), Vadivelu Thevar
(supra), the trial cannot be faulted for non-examination of the boyfriend
of the victim who was present near the spot before the trial Court. It is
the settled principle of law that conviction in a rape case can be sustained
on the basis of sole deposition of the prosecutrix, if the same is
trustworthy. In such situation, corroboration is a matter of abundant
caution and prudence. In the present case, non-examination of the
boyfriend is, in fact, a lapse on the part of the prosecution. However, the
same does not vitiate the trial as the deposition of the victim, PW-7 is
supported by the deposition of PW-10, treating doctor and medical
examination report [Ext.P-14]. Absence of Test Identification Parade will
not vitiate the trial in view of the consistent deposition of PW-7, PW-10
and medical report, Ext.P-14.
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29. In view of the observations and discussions made above, we are of
the view that there is no error apparent in the conviction order dated
18/12/2017 passed by the learned Addl. Sessions Judge (FTC) CAW,
Manipur in ST(CAW) Case No. 3 of 2017, whereby all the accused persons
were convicted u/s 376-D IPC. Accordingly, conviction order is upheld.
30. Vide separate order on sentence dated 18/12/2017, learned trial
Court directed A-1, Bungbung to undergo rigorous imprisonment for life
(remainder period of natural life) with fine of Rs.10,000/-. A-2, Bocha and
A-3, Khamba were directed to undergo rigorous imprisonment for a period
of 20 years with fine of Rs.5000/- each, in default of fine all the accused
to undergo 3 months simple imprisonment.
31. It is the finding of the trial Court that A-1 committed the actual rape
and A-2 & A-3 facilitated A-1 in the crime in furtherance of common
intention. Section 376-D IPC provides that all persons forming a group of
more than one person, are equally liable for the offence committed by one
or some of them. Actual act of committing rape by all the accused is not
required to be proved, if such act is done in furtherance of common
intention.
32. In the present case, upon found guilty for the offence u/s 376-D IPC,
the trial Court awarded life imprisonment to A-1 with fine of Rs.10,000/-
and directed A-2 & A-3 to undergo rigorous imprisonment for 20 years
with fine of Rs.5,000/- and in default of fine, simple imprisonment for 3
months. However, no reason is given for awarding different sentences to
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the accused persons who have been convicted u/s 376-D IPC. It is settled
law that different sentences may be given after careful analysis of different
roles of the convicts. We are of the view that different sentences may not
be proper in absence of any discussion of the respective roles of the
convicts. In the circumstances, the sentence awarded to A-1 is reduced to
rigorous imprisonment for 20 years with a fine of Rs.5000/- to bring
uniformity with other two accused, A-2 & A-3.
33. In terms above, the appeal is partly allowed. Conviction u/s 376-D
IPC is upheld and sentence to A-1 is modified to rigorous imprisonment
for 20 years with fine of Rs.5000/-. Sentence to A-2 & A-3 as well as default
sentence of 3 months simple imprisonment is retained.
34. MC(Crl.A.) No. 7 of 2024 is accordingly disposed of.
35. Send a copy of this order to learned Addl. Sessions Judge (FTC)
CAW, Manipur and Superintendent, Manipur Central Jail, Sajiwa for
information.
KH. Digitally signed
by KH. JOSHUA
JOSHUA MARING JUDGE CHIEF JUSTICE
Date: 2025.05.20
MARING 12:07:35 +05'30'
suchitra
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