REPORTABLE1IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal No.1089 of 2004 with Batch Cases [Against the judgment of conviction and order of sentence dated 20.05.2004 and 22.05.2004 respectively passed in Sessions Trial No. 84 of 2001 and judgment of conviction and order of sentence dated 06.09.2012 and 10.09.2012 respectively passed in S.T. No.24 of 2005 by 1st Additional Sessions Judge, Bokaro] A-1 Mojib Ansari --- Appellant in Cr. Appeal (DB) No.1089 of 2004 A-2 Abdul Shattar Ansari @ Sirajuddin Ansari A-3 Mansoor Ansari --- Appellants in Cr. Appeal (DB) No.1146 of 2004 A-4 Kazi Rizwan --- Appellant in Cr. Appeal (DB) No.1156 of 2004 A-5 Abbas Ansari ---- Appellant in Cr. Appeal (DB) No.1157 of 2004 A-6 Habib Ansari A-7 Sirazuddin Ansari ---- Appellant in Cr. Appeal (DB) No.1172 of 2004 A-8 Md. Islam Ansari A-9 Feroz Sah ----- Appellant in Cr. Appeal (DB) No. 1173 of 2004 A-10 Anwar Ansari ----- Appellant in Cr. Appeal (DB) No.1175 of 2004 A-11 Mani Swami ----- Appellant in Cr. Appeal (DB) No.1177 of 2004 A-12 Gaffar Ansari ---- Appellant in Cr. Appeal (DB) No.1178 of 2004 A-13 Noor Alam @ Lalit ---- Appellant in Cr. Appeal (DB) No.1182 of 2004 A-14 Yunus Ansari ---- Appellant in Cr. Appeal (DB) No.1199 of 2004 A-15 Barju Sah ---- Appellant in Cr. Appeal (DB) No.1218 of 2004 A-16 Sayyum Ansari ---- Appellant in Cr. Appeal (DB) No.1421 of 2004 A-17 Momin Akhtar ---- Appellant in Cr. Appeal (DB) No.1422 of 2004 A-18 Ekbal Sah A-19 Sabir Sah ---- Appellants in Cr. Appeal (DB) No.1743 of 2004 A-20 Pramod Pillai ---- Appellant in Cr. Appeal (DB) No.431 of 2006 A-21 Khadim Hussain ---- Appellant in Cr. Appeal (DB) No.1150 of 2012 … … Appellants Versus State of Jharkhand … … Respondent ------ For the Appellants A-2, A-3, A-6, : M/s. B.M.Tripathy, Sr. Advocate, A-7, A-8, A-9, A-10,A-12, A-13, Nutan Sharma & Navin Kr. Jaiswal, A-14, A-15 & A-16 Advocates For the Appellant A-1 : Mr. Mahesh Kumar Sinha, Advocate For the Appellant A-4 : Mr. Bijay Kumar Sinha, Advocate For the Appellant A-5 : Mr. N.K.Sahani, Advocate For the Appellant A-11 : Mr. Sanjay Kumar, Advocate For the Appellants A-17, A-18, : Mr. A.K.Sahani, Advocate A-19 & A-21 For the Appellant A-20 : Mr. Sanjeev Thakur, Advocate For the Respondents : M/s. Shekhar Sinha, H.K.Shikarwar, Amaresh Kumar, Pankaj Kumar, Binod Singh, A.P.Ps. --- 2 PRESENT HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR. JUSTICE P.P.BHATT --- th C.A.V. on 10 July, 2015 Pronounced on 13th August, 2015 Per Virender Singh,C.J.
Victim girl aged 19 years, being an aspirant of IIT, had certainly a dream of her future life to become a top class engineer, having graduated from a premier institute like Indian Institute of Technology, She was however unaware that one fateful night she would fall prey at the hands of certain persons who were of the age of her brother and father. This not only washed away her dream but also turned out her life completely piteous till she breathed her last. The statement of the victim girl carries horrific account of gang rape continuously from 9 p.m. to 2 a.m, by several people of different age group under open sky, at a place known as ‗Bharra Basti‘, dominated by a particular community, ‗Muslims‘. Although she was saved from critical septicemia by the doctors, which she developed because of the acute infection that had initially developed in her private parts and then progressed further, she lost her mental equilibrium due to flashbacks, nightmares, severe anxiety, uncontrollable thoughts about the event that happened, prolonged sadness and feeling of helplessness and most importantly, the act of taunt passed against her by some persons during the investigation of the present case as she was cooperating with police. This brutal and beastly act not only caused physical pain to the victim, but also caused unbearable mental agony for a long time, due to which, her soul left her body leaving behind several questions before us, (a) Is being a girl actually a curse in our society? (b) Had the assemblage of shameless men of age group of her brother and father, who had committed brutal gang 3 rape on victim girl by taking turn from 9 p.m. to early in the morning under open sky, lost their conscience? (c) How had the rapists fulfilled their lust by raping a girl of 19 years continuously in a village of one community in open place on that fateful night without any fear of the stringent law of rape? (d) Why did the rapists even tear the wearing apparels of the victim leaving her naked on that fateful night after committing rape? (e) Why did the rapists compel the victim girl to drink the stinking water of a dirty drain when she felt thirsty? Are they sadist or what was the real reason behind such a brutal rape on an innocent helpless teenager girl by several persons? (f) Why were the rapists, who belonged to one and the same village and all from the same community but for one or two, so fearless as well as confident about their safe position from any action of law against them that they commit such an act of brutal sexual violence, in the presence of several persons at spot, without any hindrance and resistance? (g) Why did none of the villagers try to prevent this crime or even save the victim girl? 2. The insensitive role of police in this heinous crime of gang rape on the innocent teenaged girl, keeping its ears deaf towards the loud cry for justice by the society greatly perturbs our judicial conscience. Case diary prepared by the Investigating Agency speaks volumes of the half-hearted investigation The Investigating Officer did not make any effort to inspect the place of occurrence after lodging the F.I.R. promptly. Had he investigated with intent to know the truth and ascertain the complicity of the accused persons, he certainly would have inspected the place of occurrence promptly. Delay in recovery of apparels of the victim from the place of occurrence indicates that the 4 police reached the place of occurrence with a considerable delay. No investigation was done to find out the car that was used in this offence and to find out the identity of 2 – 3 persons who were present in the car at the time of alleged kidnapping of the victim. The most dirty role of police has surfaced from the evidence brought on record which shows the police remained silent spectator, when filthy comments were being passed against the victim girl when she was accompanying the police for Test Identification Parade (T.I.P.) as well as for recording her statement under Section 164 Cr.P.C. This omission of the police to shield the victim from constant taunt adversely affected the investigation as victim refused to accompany the police for T.I.P. of other accused persons. The victim's father too refused to extend cooperation to investigating officer as he realised the traumatic experiences of his daughter. The frequent taunting made the life of victim hell and ultimately she succumbed to that shock. The father of the victim also got himself transferred to another place and shifted with his entire family. Police case diary is completely silent on certain other material facts, the details of which we do not want to delve into at this stage at least.
3. Not only that, even the trial Judge has also committed certain irregularities during trial, although the same are not so damaging. They also need training in this regard in working sessions at the State Judicial Academy. The above narrated situation itself signifies that it is an unprecedented case which reflects so many things.
4. This, in short, is the sordid flashback of the case without diving deep into the merits which require re-scanning of the entire evidence available on record in its right perspective to arrive at the just conclusion of the case. We now start with that exercise so as to 5 appreciate which piece of evidence has the evidentiary value within the four corners of law and which piece of evidence, although available on record, has to be legally rejected.
5. In all 17 analogous appeals were preferred against one and the same impugned judgment of conviction and order of sentence, dated 20.05.2004 and 22.05.2004 respectively, passed by 1st Additional Sessions Judge, Bokaro in Sessions Trial No. 84 of 2001 and have been taken together for the convenience of the Court. The 18 th appeal bearing Cr. Appeal (DB) No. 1150 of 2012 is filed by appellant Khadim Hussain (A-21) against a separate judgment of conviction and order of sentence, dated 06.09.2012 and 10.09.2012 respectively, passed by 1 st Additional Sessions Judge, Bokaro in S.T. No. 24 of 2005 arising out of the same F.I.R. It needs to be mentioned here that one of the appellant-convict namely Taleb Ansari, who had filed a separate bearing Cr. Appeal(D.B) No. 1144/04 died in jail as such the said appeal stood abated. Thus, at present we have, in all 17 appeals on Board for their consideration. By the impugned judgment dated 20.05.2004 accused persons namely A-4 Kazi Rizwan, A-19 Sabir Sah, A-1 Mojib Ansari, A-18 Ekbal Sah, A-11 Mani Swami and A-20 Pramod Pillai (in all 6 accused) stand convicted under Section 120B of IPC and sentenced to undergo rigorous imprisonment for life with fine to the tune of Rs.20,000/- each and in default to pay fine, simple imprisonment for 3 years. Further, accused persons namely A-14 Yunus Ansari, A-17 Momin Akhtar, A-10 Anwar Ansari, A-8 Md. Islam Ansari, A-16 Sayyum Ansari, A-7 Md. Sirazuddin Ansari, A-6 Md. Habib Ansari, A-5 Md. Abbas Ansari, A-9 Feroz Sah, A-3 Md. Mansoor Ansari, A-2 Abdul Shattar Ansari @ Sirajuddin Ansari, A- 15 Barju Sah, A-13 Noor Alam @ Lalit and A-12 Gaffar Ansari (in all 6 14 accused) stand convicted under Section 366/34 of IPC and sentenced to undergo 10 years rigorous imprisonment with fine to the tune of Rs.5,000/- each and in default to pay fine, simple imprisonment for one year and further they also stand convicted under Section 376(2)(g)/34 of IPC and sentenced to undergo rigorous imprisonment for life and to pay fine to the tune of Rs.20,000/- and in default to pay fine, simple imprisonment for 3 years with a rider that both the sentences shall run concurrently. However, by the impugned judgment dated 06.09.2012 accused A-21 Khadim Hussain stands convicted under Section 120B, 366 and 376(2)(g) of IPC and sentenced to undergo rigorous life imprisonment with fine to tune of Rs.20,000/- and in default to pay fine, simple imprisonment for three years for the offence under Section 120B IPC, to undergo rigorous imprisonment for 10 years with fine to the tune of Rs.5,000/- and in default to pay fine, simple imprisonment for one year for the offence under Section 366 IPC and to undergo rigorous imprisonment for life and to pay fine to the tune of Rs.20,000/- and in default to pay fine, simple imprisonment for three years for the offence under Section 376(2)(g) IPC with rider that all the sentences shall run concurrently.
6. Section 273 Cr.P.C mandates that all the evidence taken in the course of trial shall be taken in presence of the accused, meaning thereby that the evidence recorded in absence of the accused cannot be taken into consideration against him. In the light of the above mandatory provision the evidence brought on record by prosecution in S.T842001 to prove charges against 21 accused persons cannot be read against absent accused Khadim Hussain, who was declared absconder in charge-sheet filed at that time. The trial initiated for Khadim Hussain in S.T12405 is based on separate 7 evidence, which can only be taken into consideration in order to decide the appeal filed by him against a separate judgment passed on 6th September 2012.
7. The case of the prosecution sans unnecessary details, as one finds from the written report, dated 07.04.99. (initial statement) PW4Gaya Prasad, the father of the victim is that his elder daughter, aged about 19 years (victim), who, as per her daily routine, had gone for strolling in front of house on 05-04-99 at 9 P.M, did not return to the house, a frantic search was made throughout the night at several places. On 6.4.99, at about 6 a.m, two boys of Bharra Basti, came to his house and informed that last night at about 2 a.m., the victim had come in a naked condition in front of their house so they kept her in their house. Upon this information, the informant went to Bharra Basti with his younger daughter, Sonika, and brought his elder daughter (victim) back home in a precarious condition. From the injuries found on her face and hands, the victim's father divined that his daughter had been raped, but due to shame and sorrow, he didn't intimate the police and tried to take care of her in his house only, so that her condition could improve. However, on seeing her deteriorated mental condition, she was removed to the Bokaro General Hospital on 07-04-99 for medical treatment. The concluding paragraph of the written report reveals that the informant had suspected the complicity of some unsocial elements, who used to assemble at one garage in a shopping centre situated in front of his house. On the basis of the aforesaid allegations, formal FIR, bearing No. 61/99 u/s 366, 376 (2), 307, 379/120B of the Indian Penal Code, came to be registered in Bokaro Sector IV Police Station against unknown persons, investigation of which was undertaken by Police S.I. Braj Kishor 8 Shastri (P.W.-9) and later on by Inspector Sudhir Chandra Choudhary (P.W.10). During investigation police recorded another fardbeyan of the victim girl after 21 days (Ext-3) under her signature, [which is hit by mischief of Section 162 (1), Cr.P.C. and hence it cannot be taken into consideration].
8. Police, during investigation recovered the wearing apparels of the victim near the place of occurrence, which were put on TIP and informant as well as his wife identified them as apparels of the victim which was worn by her on the night of occurrence.
9. Police thereafter arrested one accused Yunus Ansari (A-14) and sent him to jail. In TIP, the victim had identified Yunus Ansari as one of the kidnappers as well as rapist. Statement of the victim as well as the confessional statement u/s 164, Cr.P.C, of two accused persons, namely Abbas Ansari and Anwar Ansari were also recorded in the Court of 1st Class Judicial Magistrate by I.O. The recovered articles were sent to FSL for biological and serological examination and its report was obtained. Ultimately on completion of investigation a challan was filed against the accused persons, against whom charges for the offences punishable u/s 366, 379, 307, 376 (2)(g) and 120B of the IPC were framed, for which they tried and now stand convicted and sentenced in terms of orders passed in two impugned judgments, as mentioned in above paragraph 6.
10. The case of the accused persons, as one finds from their statement recorded under Section 313, Cr.P.C, is of denial simpliciter. During cross-examination, it has been suggested to some of the prosecution witnesses by the learned defence counsel that accused persons have been falsely implicated. This was however denied by the prosecution witnesses. The accused persons, however, have chosen 9 not to adduce any evidence in their defence.
11. Mr. B.M.Tripathy, learned Senior Advocate, in fact has argued on behalf of all the accused and the other counsel virtually adopted his submissions. Mr. Tripathy pointed out certain flaws in the case of prosecution viz; an adverse inference can be drawn against the prosecution for non-examination of the victim; none of the accused persons except accused Yunus Ansari were put on TIP hence prosecution has completely failed to prove the complicity of rest of the accused persons, and so far as the complicity of Yunus Ansari is concerned, informant had admittedly held a grudge against him, as he opposed his presence in the garage, known as Pillai Garrage; there were vital contradictions in the evidence of prosecution witnesses, which go to the root of prosecution case; the impugned judgment is based on confessional statement of accused persons, reduced into writing as well as recorded in tape-recorder by police, which is not relevant in terms of the provisions of Indian Evidence Act; at best section 120 IPC is applicable against some accused persons for concealing the design to commit gang rape, but on that count also, the trial court has committed irregularity and since they have not faced that charge, conviction even qua that offence cannot be ordered. As such, all the appellants may be extended the benefit of doubt to disturb the conviction as already slapped upon each of them.
12. Per contra learned A.P.P submitted that there was sufficient evidence on record to prove the guilt against all the accused, their conviction as recorded deserves to be maintained. He further pointed out that the victim has not been withheld by the prosecution with any ulterior motive, rather there was sufficient material on record to show 10 that the victim had become insane due to the horrific gang rape and in terms of Section 118 of Indian Evidence Act, she was not competent to depose her evidence. Learned APP further pressed that her statement u/s 164, Cr.P.C, be read in terms of Section 33 of the Indian Evidence Act. He in the same breath stated that the informant has identified all accused persons in court and their identification has not been challenged during cross-examination by the learned defence counsel. He further added that learned counsel for appellant, atleast, has admitted about the application of Section 120 I.P.C. against accused persons, therefore, the confessional statement of the two accused persons before Judicial Magistrate, who were present in that group, unveiling the complicity of his companions in this gang rape, leaves no doubt about the complicity of appellants. He contended that all the appeals are devoid of any merit, as such deserve to be dismissed.
13. First of all, we are taking the evidence brought on record by prosecution in S.T842001 for its appreciation to decide all the appeals, except Cr. Appeal (DB) No.1150 of 2012, filed by Khadim Hussain (A-21) for the reasons stated herein-above.
14. The prosecution, in order to bring home the guilt, examined altogether 15 witnesses in this case. Prosecution has also proved and exhibited the documents viz; Ext.1 - T.I.P chart for identification of skirt, blouse, brassiere and sameez recovered near P.O, Ext.2 – Certificate of discharge of victim from the hospital, Ext.3 – Statement of victim recorded by the police, Ext.4 – Written report of informant Gaya Prasad, Ext.5 – Signature of informant on the seizure list, Ext.6 – Letter written to the second I.O by the informant, Ext.6/1 – The notice issued to the victim girl for attending the T.I parade on 12.7.99 11 and 13.7.99, Ext. 6/2 – Letter dated 11.7.99, written by Chandra Prabha Prasad, mother of victim girl, to the Police Inspector. Ext.7 – Medical certificate issued by Dr. Shail Verma, Ext.8 – Confessional statement of accused Abbas Ansari, u/s 164 of Cr.P.C, Ext.8/1 – Confessional statement of accused Anwar Ansari, u/s 164 of Cr.P.C, Ext.9 – Certificate given on the statement of the accused Abbas Ansari, recorded u/s of 164 Cr.P.C by Magistrate, Ext.10 – Statement of victim girl u/s 164 of Cr.P.C, Ext.11 – Medical case sheets of the victim girl prepared by Dr. Gita Singh, Ext.12 – Injury report of the victim girl, Ext.13 – Pathological report of the vaginal swab of victim, Ext.14–Report of Radiologist, Ext.15 – Injury report of the victim prepared by doctor on 7.4.99, Ext.16 – Clinical history sheet of the victim girl prepared by Dr. A.N. Bose, Ext.16/1 – Clinical history sheet prepared by Dr. T. Sudhir, Ext. 17 – Examination report of the victim girl under anesthesia, Ext. 17/1 – Anesthesia note, Ext.18 – The admission form of the victim girl, Ext.19 – The report of Forensic Science Laboratory prepared and signed by D.N.Tiwary and counter signed by U.K.Sinha of Regional Forensic Science Laboratory, Ranchi, Ext.20 – Serological report given by FSL, Ext.21–Test Identification Parade chart prepared for identification of accused, Ext.22 – Endorsement of police official on the written report, Ext.22/1 – Endorsement of O/C, Sector – IV P.S, Bokaro on the written report, Ext.23 – Seizure list of recovery of auto-rickshaw, Ext.23/1 – Seizure list of sameez and brassiere, Ext.23/2 – Seizure list prepared for recovery of pink coloured blouse and skirt, Ext.23/3 – Production cum Seizure list prepared for cream coloured suit, Ext.24 – Confessional statement of accused Yunus Ansari, Ext.24/1 to 24/3 - Confessional statement of accused, Anwar Ansari, Momin Akhtar and Feroz Sah, 12 Ext.24/4 to 24/6 - Confessional statement of accused, Md. Islam Ansari, Sirajudin Ansari and Habib Ansari, Ext.24/7 to 24/9 - Confessional statement of accused Mansoor Ansari, Abdul Sattar and Abbas Ansari, Ext.24/10 to 24/12 - Confessional statement of accused Barju Sah, Noor Alam and Saiyum Ansari, Ext.25 – Forwarding report by CJM Bokaro for sending material exhibits to the Director, Forensic Science Laboratory, Ranchi for its examination, Ext.26 – Medical Certificate issued by Dr. Shail Verma, Consultant Psychiatrist, J.L.N Hospital and Research Centre, Bhilai (M.P), Ext.27 – Signature of Gaya Prasad (informant) on carbon copy of summon, Ext.28 – Letter of Jail Doctor of Sub-Jail, Chas, addressed to the CJM, Bokaro, Ext.29 – The blood group and Rh typing examination report, Ext.30 – Formal FIR, Ext.31 – Charge sheet, Ext.31/1 – Supplementary Charge sheet, Ext.32 – Medical Certificate issued by Dr. Das of B.S.P Hospital, Bhilai (M.P), Ext.33 – Signature of Gaya Prasad (informant) on the back of summon issued in the name of victim girl.
15. Prosecution has produced and exhibited the materials seized during investigation as Material Ext. - M-1. It has also produced and exhibited a recorded 'Tape Cassette' containing the confessional statement of accused Noor Alam. PROSECUTION WITNESSES16 P.W-1 Dr. Tripeet Prasad Singh is the person, who had medically examined the victim in presence of the junior doctor A.N.Bose and noticed the marks of sexual assault on her person viz. wounds on cheeks, breast and legs.
17. P.W-2 Rajiv Shankar is the Circle Officer. According to him, 13 T.I.P of torn pink coloured skirt and blouse, white coloured sameej and brassiere was conducted in presence of independent witnesses. He further deposed that the father as well as mother of victim had participated in TIP as witness and identified those wearing apparels among other clothes as the apparels of the victim. Thereafter, he being the deputed Magistrate for conducting TIP, prepared TIP chart in his pen and signature (Ext-1).
18. P.W-3 Dr. K.N. Thakur has deposed that he had medically treated the victim for her mental disorder, from 8-04-99 to 21-04-99, in Bokaro General Hospital. He has proved a written information given by Dr.T.Sudhir (Ext-2) to officer-in-charge of police station on 21-04- 99, to the effect that the victim had become fit. Thereafter the statement of the victim was recorded in his presence by the Inspector of Police (P.W-10).
19. P.W-4 Gaya Prasad (Informant) while affirming his earlier statement stated on oath that his elder daughter, aged about 19 years (victim herein), did not return to her house, who, as per daily routine, had gone for strolling in front of the quarter on 05-04-99 at 9 p.m. whereupon a frantic search was made by him throughout the night at several places. On 6.4.99, at about 6 a.m., two boys of Bharra Basti came to his house and informed that last night at about 2 a.m. the victim had come in naked condition in front of their house. They had given her clothes to wear, as well as shelter in their house. On the receipt of this information, the informant rushed to Bharra Basti with his younger daughter, Sonika, and brought his elder daughter (victim) with him in a precarious condition. He further stated that when her mental state started deteriorating, she was ultimately removed to B.G. Hospital by him, where she was admitted. After medical treatment, she 14 was discharged from the hospital and thereafter she made a complaint that while she was strolling outside her house, someone from behind, covered her nose with a handkerchief and forcibly dragged her into a vehicle and took her to a lonely place, where 20-25 people encircled her and started committing rape on her, one by one and tore her clothes. When she felt thirsty and desired to ease herself, they brought her to a dirty drain flowing nearby and forced her to ease there and also to drink its stinking water. As she raised a protest against their inhuman demands, she was assaulted by them. As a result she received multiple injuries. The accused persons, after commission of rape, left her in a naked condition there and went away with her HMT wrist watch. She however came to a house situated near the place of occurrence and started to raise an alarm for help. The inmates of the house awakened, took her inside their house and gave her clothes to wear. The informant has proved his signature on the production cum seizure list prepared for producing the sameez given by the inmates of house as Ext-5. Police conveyed his daughter (victim) to court for recording of her statement u/s 164 Cr.P.C. on 21.05.99 and also conveyed her to the Jail for conducting TIP on 10-06-1999. As per the instruction of police, the informant and his wife participated in the TIP, which was arranged for identification of articles recovered from the place of occurrence. They identified the torn pink coloured skirt- blouse (which were worn by the victim on that fateful night), sameez and brassiere of the victim. On 11-06-99, police again arrived at his quarter and asked his daughter to participate in TIP but she refused to go for it due to the reason that she felt ashamed on previous occasions on hearing the filthy taunts passed against her by the by-standers, in presence of the police. He further deposed that he was transferred to 15 Bhilai, where police arrived to take his daughter to Bokaro for TIP. However, due to mental illness, his daughter was not in such a condition so that she could accompany police. Hence, certificates (Ext- 6/1 and 6/2) to this effect were taken from him by the police. He has also proved and exhibited a certificate (Ext.-7) issued by Dr. Shail Verma of J.L.Nehru Hospital, Bhilai, who was treating the mental illness of the victim; to the effect that victim was not in such condition that she could go for adducing evidence at Bokaro. He has stated that there is a garage, owned by Pillai, in a shopping centre, just in front of his quarter, where anti-social elements used to assemble and urinate facing towards his quarter for which he had opposed and made a complaint to police through telephone. Seeing all the accused persons in the accused-dock of court, he identified them as the same anti- social elements, who used to assemble in the garage and pass filthy taunts seeing females.
20. During cross-examination nothing cogent has been elicited to shake the testimony of the informant and it is also important to note that the identification of accused persons has also not been challenged.
21. P.W.-5 Mr. Ashok Kumar Pathak who is a judicial officer, has stated that he had recorded the confessional statement of Abbas Ansari (Ext-8) Anwar Ansari (Ext-8/1) and statement of victim (Ext-
10) in his pen and signature. He has also stated that he recorded the confessional statement of accused persons following the procedures incorporated u/s 164 Cr.P.C. for recording the confessional statement of accused and he has given a certificate to this effect on the said statement in his pen and signature.
22. P.W-6 Dr. Gita Singh had examined the victim. She has proved 16 the admission form (Ext-18) revealing that victim was admitted to B.G. Hospital, Bokaro, in a serious condition due to sexual assault with multiple injuries on 07-04-99. As per Ext- 15, she has described the external injuries as– (i) Multiple abrasions over the face both side hips, neck, both breasts, both hands and both legs (with several scratch marks); (ii) Haematoma of three inches diameter over right breast (lateral aspect); (iii) Haematoma of two inches diameter over left breast. Nature of injuries were simple, caused by hard and blunt, sharp object like finger nail. Age of injuries was more than twenty four hours at the time of examination. She has stated that the patient was irritable and it was not possible to conduct an internal examination without anesthesia. Proving the examination report of the victim, done under anesthesia (Ext-17), she has described the injuries as- (1) The skin over labia minora and inner aspect labia majora excoriated; (2) Hymen torn posteriorly with margin raw; (3) Slight blood stained discharge present; (4) There was greenish pus present (5 to 10 cc). On speculum examination about 4-5 cc of milky fluid present in vagina was aspirated with a syringe and sent to pathology lab for the detection of sperm. As per pathological report (Ext -13) occasional dead spermatozoa were found in the vaginal swab. She has proved the case sheets (Ext-11), injury report (Ext-12), radiological report (Ext-14), clinical history (Ext-16, 16/1) and anesthesia report (Ext-17) to reveal all about medical examinations and injuries on the person of the victim.
23. P.W-7 Shailendra Kumar Sinha, Technician, F.S.L Ranchi has proved the biological examination report in the signature of the then Senior Scientist Sri D.N.Tiwari, as Ext-19, which reveals that on examination of spot marks on the clothes marked A to O in two piece 17 garment, semen has been detected in the spot I/A to I/G, I/I, II/K, II/L and II/O on both the exhibits. This witness has proved serological examination report under signature of senior scientist Sri D.N.Tiwari as Ext-20, which unveiled blood group of semen found on both clothes i.e. skirt and top. Material Spot on Spot on Spot on Spot on Spot on Spot on Spot on Spot on Spot on Spot on Exhibits Skirt Skirt Skirt Skirt Skirt Skirt Skirt top top top Marking Marked Marked Marked Marked Marked Marked Marked Marked Marked Marked as 1/A as 1/B as 1/C as 1/D as 1/E as 1/G as 1/I as 1I/K as 1I/L as 1I/O Finding Semen Semen Semen Semen Semen Semen Semen Semen Semen Semen Blood 'B' 'A'&'B' 'A' 'B' 'A' 'B' 'B' 'A'&'B' 'A'&'B' 'O' group Antigen Antigen Antigen 24. According to P.W.-13 Dr. Chandra Bhusan Prasad Singh, the examination of blood group of accused persons in compliance of the order of the learned CJM was done as per his direction. He has proved the carbon copy of the report in his pen and signature as Ext-29, which disclosed the blood group and Rh factor of accused persons as follows:- Accused A-2 A-3 A-4 A-6 A-8 A-9 A-10 A-11 A-12 A-13 A-14 A-15 A-16 A-17 A-21 Blood group B+ A+ B+ O+ A+ O+ B+ B+ O+ A+ B+ O+ A+ A+ O+ 25. P.W-8 Mithlesh Kumar Dwivedi, Judicial Magistrate, has proved T.I.P chart in his pen and signature (Ext-21) and stated that TIP was conducted following the legal procedure in which victim identified suspect Yunus Ansari as the person who had committed rape on her.
26. P.W.-9 Braj Kishore Bharti, first I.O of the case, has proved some documents, as stated above, and described that when he reached B.G. Hospital, the victim was not in a position to give statement. According to him, he inspected the place of occurrence, which is situated behind Bokaro Hotel in south of Gara river at an open and lonely place and recovered one brassiere and old sameez. He, thereafter, prepared the seizure list (Ext-23/1). He also recovered pink 18 coloured shirt-blouse behind a wall at some distance from first place of recovery by preparing a seizure list (Ext-23/2). He also took aid of sniffer dog for tracking with aid of recovered cloths. The dog went to the house of Md. Mobinuddin behind the house of retired B.D.O., and thereafter the dog reached the house of Yunus Ansari. Again the sniffer dog went from place of occurrence to the house of Yunus Ansari. He has proved the seizure list (Ext-23/3) prepared on production of sameez given to victim, when she was naked. He has stated about recording of confessional statements of accused person by him but they are irrelevant as per the Evidence Act, as they do not come within the purview of Section 27 of Evidence Act.
27. During cross-examination nothing has been elicited to shake the aforesaid testimony of this I.O.
28. P.W-10 Sudhir Chandra Choudhary, second I.O of the case, has described the place of occurrence in detail and added that he had produced victim in the Court of Magistrate, where her statement u/s 164, Cr.P.C, was recorded. Victim has also participated in TIP held in Jail for the test identification of suspect Yunus Ansari on 10.06.99, and identified Yunus as the culprit of the crime. He sent sealed material exhibits to FSL with requisition memo (Ext-25) for its examination. He produced and exhibited the seized cloths (M-Ext I) and cassette of tape-recording of confessional statement of the accused Noor Alam.
29. P.W.-11 Pramod Kumar, Inspector of Police, who had gone to Bhilai on 03-02-2003, for service of summons to the victim, has stated that he came to know from the father of the victim about her mental illness as well as her medical treatment for her mental illness done by Dr. Shail Verma of J.L.Nehru Hospital, Bhilai. He has proved the 19 noting of the father of victim regarding her incapacity to come in court due to mental illness on the back of summon (Ext-27) as well as medical certificate issued by Dr. Shail Verma (Ext-26) to said effect.
30. P.W-12 Dr. Ratneshwar Prasad Verma has proved a letter addressed to C.J.M., Bokaro in his pen and signature (Ext-28) by which he had informed the Court that the accused persons, who were on bail did, not appear before him to give blood sample for serological examination.
31. P.W.-14 Awdesh Kumar has formally proved formal FIR, as Ext-30, in terms of Section 47 of Evidence Act.
32. P.W- 15 Ratnesh Mohan Thakur is another police personnel, who visited Bhilai on 27-01-04, and found the victim in an insane condition. According to him, victim was unable to receive the summon. So he made the service of summon on the father of victim. He has further added that he had seen the medical records of the victim pertaining to her insanity. He has proved service report of the summon (Ext-33) and the medical certificate issued by the medical officer, Mr. Das (Ext-32), revealing the fact that victim has been suffering from post-traumatic stress disorder and was under continuous treatment.
33. In our view, three documents are very important and ought to be considered in order to ascertain who the real culprit in this crime was. They are as follows- (i) statement of victim recorded u/s 164, Cr.P.C., (ii) Confessional statement of the accused Abbas Ansari, recorded u/s 164, Cr.P.C. and (iii) Confessional statement of accused Anwar Ansari recorded u/s 164, Cr.P.C.
34. Before discussion on the contents of the statement of victim recorded u/s164, Cr.P.C, we have to see whether it can be taken into consideration or not? 20 35. Section 33 of the Evidence Act runs inter alia, ―Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided— that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.—A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section‖.
36. For the application of Section 33 Indian Evidence Act, it is mandatory that the adversary must have the right and opportunity to cross-examine the witness, but at the time of recording statement u/s 164, Cr.P.C, there vests no right or opportunity with the adversary to cross-examine the witness. Hence, Section 33 of Indian Evidence Act is not applicable in the case at hand meaning thereby that we cannot legally read the statement of victim recorded u/s 164, Cr.P.C on the strength of Section 33 of Indian Evidence Act at least. However, the statement of witness recorded u/s 164, Cr.P.C, itself bears a corroborative value.
37. Ext-10 is the statement of victim u/s 164 Cr.P.C. recorded on 21st May 1999, where she lamented her fate. According to her, on 21 05.04.1999 around 8-8.30 P.M, while she was strolling outside her house and when she reached near Bokaro Ispat Library, someone from behind put handkerchief on her nose and forcibly dragged her in a car in which 2-3 more persons were sitting, she thereafter became senseless due to smell of handkerchief. After some time, when she regained her consciousness, she saw a car returning behind Bokaro Hotel leaving her in a ground, where several persons had assembled, who after coercing her, started committing rape on her one by one. When she felt thirst and desired to ease herself, they brought her to dirty drainage passing nearby and forced her to ease there and also compelled her to drink its stinking water. They had kulhari and danda in their hands. They also threatened her by brandishing firearms and ammunition. She had seen them in the light of a torch, which was being flashed by them on her face repeatedly. One bearded man who remained there during the entire period, also committed rape on her. At the site of the crime, there were two-three persons with a lanky physique, who wore lungi around their waists, while the others were of normal physique. In total, around 10 to 12 persons, committed rape on her and left her alone there. She however, came to a nearby house, where she was provided apparels to wear. After making enquiries about her residential address, an intimation was sent to her father, who thereafter came there and took her away. She has with her affirmed faith, alleged the complicity of three persons, namely:- a boy from her school, namely Rahul Raj, who used to write letters using filthy words; one South Indian by the name of Pillai, who lived beside a garage in front of her house and who used to leave letters containing filthy sentences at the gate of her house; and one dosawala in this crime. 22 38. We have taken notice of the fact of the victim's death on 20-04- 2008, during a prolonged course of medical treatment of her mental illness. Perusal of the testimony of the victim's father given on oath, as well as the death certificate of the victim (filed in ST12405 arising out of one and the same case, which is tagged with this record because an appeal against judgment passed in ST12405 has also been preferred), it becomes apparent that the mental ailment of the deceased was the tragic aftermath of the gruesome rape.
39. Section 32 (1) of the Indian Evidence Act expressly states that, ―when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question‖.
40. If the matter in controversy, pending before us, had been the cause of death of the deceased u/s 302 IPC, who died due to her acute mental disorder consequent to the gang rape, as well as the traumatising effect of filthy taunts passed against her during investigation, her statement u/s 164, Cr.P.C would have surely been treated as circumstances of the transaction which resulted in her death, so as to find out the truth about the real culprit of the crime. It would have been accorded the treatment of a reliable, substantive piece of evidence in terms of Section 32(1), Evidence Act. That is not the situation in this case. But at the same time, we have no hesitation in our mind that the statement of victim recorded u/s 164, Cr.P.C, bears a quality of truthfulness and veracity. Hence, we consider it reliable and take it into consideration to 23 find out the truth. The statement of the deceased ought to be used as a corroborative piece of evidence on the strength of decision in B.P. Achala Anand Vs S. Appi Reddi & Anr reported in AIR2005S.C986 in which the Hon'ble Supreme Court observed that “unusual fact situation posing issues for resolution is an opportunity for innovation. Law, as administered by courts, transforms justice. Thus, it is evident that while deciding the case, court has to bear in mind the particular facts, if so exist, in a given case.”
41. Let us now avert the confessional statement (Ext-9) of accused, Abbas Ansari (A-5), which has been duly recorded in terms of procedure provided u/s 164, Cr.P.C. It reveals that accused Abbas Ansari was present at the place of occurrence i.e. Kauwali Maidan at 1.30 a.m., in the dead hours of the intervening night of 05/06-4-99 with co-accused persons, namely Sirazuddin Ansari (A-7), Islam Ansari (A-8), Yunus Ansari (A-14), Habib Ansari (A-6), Feroz Sah (A- 9), son of Suga Husain, namely Khadim Hussain (A-21)[as per record-Absconder], son of Mashal Sah, namely Barju Sah (A-15) (as per record), Sayyum Ansari (A-16), Momin Akhtar (A-17). All belong to Bharra Basti. Although, Abbas Ansari (A-5) denied committing rape on the victim, he confessed that he was present at the place, where other co-accused persons had encircled a young girl and were taking their turn to rape her. He is very categorical in saying that when he wanted to leave the place of occurrence, some of the accused said in their vernacular dialect, ―TUM BHI MAJE LE LO‖.
42. Ext-10 is the confessional statement of accused Anwar Ansari (A-10). It unveiled that on 05-04-1999, at around 12 to 12-30 at night, accused Anwar (maker of the statement) had gone with Momin Akhtar (A-17) and saw 10-12 persons of Bharra Basti at the place of 24 occurrence, who had encircled a young girl. Among them he identified Sirazuddin (A-7) and Kayyum by voice.
43. Although both the aforesaid accused persons, in their confessional statements have denied having committed rape on the victim, their disclosure regarding their presence in dead of night with other co-accused persons at a lonely, secluded place, and that too at the time of the commission of rape by their companions, itself amounts to an inculpatory statement. One can reasonably infer from the factual matrix at hand that their presence at the site of the crime in dead of night with other co-accused persons was nothing but an act in furtherance of common intention i.e. commission of gang rape. This inference is further bolstered by the statement of accused, Abbas Ansari (A-5), who has confessed in vernacular that his companions had told him that ―Tum bhi maze le lo”. Thus, in terms of Explanation 1 of Section 376 (2) (g), IPC, their statement comes within the purview of confession of the offence of gang rape.
44. We are conscious of the fact that while recording one of the confessional statement of Anwar Ansari, the learned Magistrate has committed irregularity as the certificate of the Magistrate in terms of section 164 Cr.P.C is missing but in our considered view the said aspect, when seen in the light of cross-examination conducted on Magistrate loses its adverse effect.
45. Explanation 1 of Section 376 IPC expressly states that ―where a woman is raped by one or more in a group of person acting in the furtherance of common intention, each of the person shall be deemed to have committed gang rape within the meaning of this sub section.‖ It therefore means that being member of a group at place of occurrence as well as acting in furtherance of common intention 25 itself comes within the purview of gang rape.
46. Further, it is not out of place to mention here that both accused persons, who belong to Bharra Basti, were identified as persons, who used to assemble in the garage situated in front of the quarter of the victim (since deceased). They used to pass filthy taunts and urinate keeping their face towards her house seeing victim. These incidents leave no iota of doubt about their complicity in this crime. Therefore, their statements under section 164, Cr.P.C squarely come within the ambit of a confessional statement falling within the ambit of section 30 of the Indian Evidence Act.
47. Section 30 of the Evidence Act speaks, “when more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and others of such persons is proved, the court may take into consideration such confession as against such other person as well as against person who makes such confession”.
48. The evidentiary value of the confessional statement made by one accused against the other co-accused persons has been comprehensively discussed in Haricharan Kurmi Vs State of Bihar, reported in AIR1964S.C1184 The Constitution Bench of the Hon'ble Supreme Court referred to Section 3 of the Evidence Act and observed that confession of a co-accused is not evidence within the meaning of Section 3 of the Evidence Act. It is neither an oral statement, which the court permits or requires to be made before it as per Section 3 (1), nor does it fall in the category of evidence referred to in Section 3 (2) of the Evidence Act, which covers all documents produced for inspection of the court. Supreme Court further observed that even then section 30 provides that a confession may be taken into consideration 26 not only against its maker, but also against a co-accused. Thus though such a confession may not be evidence as strictly defined by Section 3 of the Evidence Act, it is an element, which may be taken into consideration.
49. In State Of Tamil Nadu Through Superintendent of Police, CBI/ SIT vs. Nalini and Others, reported in 1999 (5) SCC253 (better known as Rajiv Gandhi assassination case), the Hon'ble Supreme Court has been pleased to observe that: In Principles and Digest of the Law of Evidence, Volume 1, New Edition, by Chief Justice M.Monir, after noticing conflicting views and discussing various authorities, the learned author stated the rule as follows : The rule may, therefore, be stated to be that whereas the evidence in proof of a confession having been made is always to be suspected, the confession, if once proved to have been made and made voluntarily, is one of the most effectual proofs in the law. There is a plethora of case law holding that confession of an accused recorded in the manner provided under Cr.P.C. and admissible under the provisions of the Evidence Act, even if retracted later, is substantive evidence as against the maker thereof. Section 30 of the Evidence Act which deals with consideration of proved confession affecting person making it and others jointly under trial for same offence, is quoted below: ▪ A plain reading of Section 30 of the Evidence Act discloses that when the following conditions exist, namely, (i) more persons than one are being tried jointly; (ii) the joint trial of the persons is for the same offence; (iii) a confession is made by one of such persons (who are being tried jointly 27 for the same offence); (iv) such a confession affects the maker as well as such persons (who are being tried jointly for the same offence); and (v) such a confession is proved in Court, the Court may take into consideration such confession against the maker thereof as well as against such persons (who are being jointly tried for the same offence) 50. In the light of above discussed law, we can take both the confessional statement of accused persons, namely Anwar Ansari and Abbas Ansari, into consideration for some accused persons on the strength of Section 30 of Indian Evidence Act, as it fulfilled all the mandatory requirements.
51. It would be pertinent to recapitulate the entire evidence brought on record on the touchstone of relevancy as per the Indian Evidence Act. The evidence brought on record are enlisted hereinunder: (i) On 05-04-1999, when victim, who was strolling outside her quarter, did not return to her house, her father searched for her throughout the night. (This is direct evidence as per Section 60, Indian Evidence Act); (ii) At 6 a.m. on 06-04-1999, two boys from Bharra Basti came and informed the father of the victim about her presence in Bharra Basti in a house, where she had arrived at 2 a.m., in a naked condition. Thereafter the informant (the victim's father), with his younger daughter, rushed there with one set of wearing apparel of the victim and brought his daughter (victim) to his quarter. (iii) On seeing the injuries on his daughter's body, the informant divined that she had been raped, but due to 28 shame, ignominy, sorrow and fear of social stigmatization, he did not inform the police authorities. However, when the mental condition of the victim deteriorated drastically and became precarious, he removed her to B.G. Hospital, where she was admitted. (iv) Doctors found haematoma of three inches diameter over right breast, haematoma of two inches diameter over left breast and wounds on both hips, both hands, both legs. The doctor opined that it was a case of sexual assault. (v) Lady doctor examined the private parts of the victim under anesthesia and found the hymen torn posteriorly. There was greenish pus present (5 to 10 cc). On speculum examination about 4-5 cc of milky fluid was found present in the vagina, which was aspirated with a syringe. (vi) Pathological report of the vaginal swab of the victim confirmed the presence of occasional dead spermatozoa. (vii) The police recovered a torn pink coloured skirt, blouse, sameez and brassiere from and nearby the place of occurrence. (viii) In TIP the parents of the victim identified the recovered clothes as those belonging to the victim, which were worn by her on the night of occurrence. (ix) During the course of the examination in chief and even during the cross examination, the informant has stated that the victim, having regained her consciousness after treatment of her mental illness, had complained about the commission of gang rape, which is relevant u/s 8 of Indian Evidence Act. 29 (x) The chemical examination/ serological examination of the recovered torn pink coloured skirt & blouse of victim unveiled that there were several spots of semen of blood group O+, A+, B+ and AB+ (all blood group). (xi) The victim has stated in her statement recorded u/s 164 Cr.P.C that gang rape was committed on her.
52. After perusing the entire evidence on record, we are of the considered view that the prosecution has successfully discharged its evidentiary and persuasive burden of proof and has been able to prove the commission of Gang Rape on the victim by several persons as semen of all four blood groups have been detected on her skirt.
53. There are sufficient direct evidence [both oral and documentary (in shape of medical report)] that the victim had become insane at the time of trial and was hence not able to take oath in court. Thus, her non-examination can never be said to be fatal for the prosecution case as the ingredients of presumption clause provided u/s 114 (g), which runs inter alia, “The evidence which could be and is not produced would, if produced, be unfavorable to person, who withhold it” are not fulfilled in the case at hand.
54. The proven fact that the victim, who was strolling outside her house, did not return to her house throughout the night of 05/04/1999, coupled with her statement u/s 164, Cr.P.C, unveiling her abduction followed by gang rape on that night, unerringly established the offence under Section 366, IPC beyond all reasonable doubts.
55. It appears from record that although the victim was saved from critical septicemia by doctors, she lost her mental balance and had become insane due to the traumatic experience of the gang rape and 30 ultimately died during the long treatment. The awful account of the gang rape, as unveiled by the victim in her statement u/s 164, Cr.P.C before the Judicial Magistrate, coupled with the medical reports, has amply convinced us that this occurrence must have affected her mental condition so precariously that she became insane. This gruesome, blood curdling incident ultimately led to her death.
56. It is true that the learned lower court has improperly considered the confessional statement of some accused persons recorded by the police as well as the statement of victim recorded u/s 164, Cr.P.C, in terms of Section 33, Indian Evidence Act without considering its proviso and treated the signed statement of victim taken during investigation as evidence, which is hit by section 162 (1), Cr.P.C, in order to base his order of conviction against accused persons in the impugned judgment. But even after that, it is to be seen whether the decision of the learned lower court would survive independent of such admission of improper evidence or not? Section 167 of the Evidence Act has vested wide powers in the appellate judge, not to disturb the judgment of lower court despite improper admission of evidence or improper rejection of evidence if it is found that decision would survive independent of such admission of improper evidence or by admission of rejected evidence.
57. In the facts and circumstances of the case at hand, we think that there is hardly a chance of any witness to muster his courage to open his mouth against his co-villagers in the court, particularly when no one came to the rescue of the victim while gang rape was being committed on her from 9 p.m. to 2 a.m. on that intervening night, in an open ground situated amidst the village. Hence, we are of the view that even a single corroborative piece of evidence adduced on the point 31 of complicity, would be sufficient to record or uphold the order of conviction against the accused.
58. First of all, we take the evidence brought on record by prosecution against the accused to prove the offence of conspiracy to commit the crime of gang rape, in the light of Section 10 of Indian Evidence Act.
59. Section 10 of Evidence Act runs inter alia, ―Things said or done by conspirator in reference to common design.—Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it‖.
60. So far as the complicity of the accused persons on the point of hatching a conspiracy is concerned, the following pieces of evidence are important and ought to be taken into consideration to arrive at the correct conclusion. i. There be direct and substantive evidence to show that accused persons assembled in garage situated in front of the quarter of victim (since deceased). They used to pass filthy taunts on seeing the victim and also used to urinate keeping their face towards her house. The informant of the case had forbidden them from doing so and had thereafter complained at the concerned police station, but the police remained inactive. ii. The statement of the victim (now deceased), recorded u/s 164 Cr.P.C speaks about the complicity of one Pillai (A-20), Rahul 32 Raj (not accused in the case) and dosa wala for hatching a conspiracy for committing this crime. iii. Victim (now deceased) was abducted from the road near her quarter/garage. iv. Statement of victim u/s 164 Cr.P.C also unfolds that all the rapists belong to Bharra Basti. v. Victim had identified accused A-14 Yunus Ansari (dadhi wala although he had shaved before TIP) resident of Bharra Basti in this crime, who used to sit at the garage of Pramod Pillai, as her kidnapper and rapist. vi. As per the statement of the victim u/s 164 Cr.P.C, the accused Yunus Ansari was present from the very beginning to the end of occurrence. vii. Informant, at the time of adducing his evidence, has identified the accused (A-11 Mani Swami), who was present in accused-dock, as dosa wala in court by touching his hand. He has also identified A-20 Pramod Pillai by his name and face, who was also present in the accused-dock . viii. Victim was prevented from further participating in the TIP for the identification of other accused persons due to filthy taunts passed by the supporters and relatives of the accused persons, in presence of the police during investigation. The police remained a silent spectator at that time and failed in their duty to shield the prosecutrix from the onslaught of persistent taunts. However, the testimony of informant on record regarding the complicity of all the 21 accused persons as the same person, who used to assemble in the garage and pass filthy taunts, remained unchallenged. The above established facts unerringly prove the nexus as well as angle of conspiracy of at least two accused persons namely A-20 Pramod Pillai and A-11 Mani Swami (dosawala) with Yunus Ansari resident of village Bharra (identified in TIP by the victim) and other perpetrators of crime who used to assemble in Pillai garage. Hence, according to Section 10 of the Indian Evidence Act, ―all things said and done by Yunus Ansari and other perpetrators of this crime in reference to their common 33 intention, after the time, when such intention was first entertained by them, are relevant against both accused persons, namely A-20 Pramod Pillai and A-11 Mani Swami and can be used against them”
61. But it is not safe to believe that accused A-4 Kazi Rizwan, A-19 Sabir Sah, A-1 Mojib Ansari and A-18 Ekbal Sah, against whom an order of conviction has been passed in the impugned order, had a nexus as well as an agreement with the perpetrators of this crime, for want of corroboration of the evidence of informant on this point.
62. The serological report of semen found on the wearing apparels of victim, sent by FSL, disclosed all type of blood group (A, B, AB and O) with +ve Rh factor. Therefore, we are of the view that it would not help for the corroboration/contradiction on the point of identification of accused persons because all the blood group with Rh+ factor have been detected in serological report of semen found on apparel of deceased victim.
63. Although, the informant has identified all the 21 accused persons, who were present at the time of recording his evidence as anti-social elements who used to assemble in Pillai Garage and pass filthy taunts but we are of the view that it would not be safe to convict all the accused persons on only his testimony on the point of identification of the accused persons without further corroboration of at least another piece of evidence.
64. We have already perused the confessional statement of both accused, recorded u/s 164 Cr.P.C, by the Judicial Magistrate and found that aforesaid both requirements as per Section 30 of the Evidence Act are fulfilled as (i) both accused were being tried jointly with other 19 accused -appellant in Sessions Trial No. 84 of 2001 but both were not tried with Khadim Hussain whose trial was commenced 34 after four years in S.T. No.24 of 2005 and (ii) Both accused confessed their guilt as well as the presence and participation of some accused persons in this crime, accordingly the confessional statement of both accused persons can be taken into consideration in this case.
65. According to the confessional statement of both accused persons namely Abbas Ansari and Anwar Ansari, the name of accused persons, who had committed gang rape on victim, are A-5 Abbas Ansai, A-7 Sirazuddin Ansari, A-8 Md. Islam Ansari, A-15 Barju Sah (son of Mashal Sah), A-14 Yunus Ansari, A-6 Habib Ansari, A-9 Feroz Sah, son of Suga Husain [as per charge-sheet], A-21 Khadim Hussain (Absconder), A-16 Sayyum Ansari, A-17 Momin Akhtar and A-10 Anwar Ansari.
66. Now, for our convenience, a chart is being prepared for ascertaining the complicity of accused persons on the basis of corroboration of another evidence with the evidence of informant. Name & identity Identification Complicity Complicity Name of accused disclosed in by victim Identification disclosed in disclosed in Tracking by statement u/s deceased in by informant confession confession sniffer dog 164.Cr.P.C TIP co-accused co-accused A-5 A-10 A-1 Mojib Ansari YES A-2 Abdul Shattar YES Ansari @ Sirajuddin A-3 Mansoor Ansari YES A-4 Kazi Rizwan YES A-5 Abbas Ansari YES YES A-6 Habib Ansari YES YES A-7 Sirazuddin Ansari YES YES A-8 Md. Islam Ansari YES YES A-9 Feroz Sah YES YES A-10 Anwar Ansari YES YES A-11 Mani Swami YES YES A-12 Gaffar Ansari YES A-13 Noor Alam @ YES Lalit A-14 Yunus Ansari YES YES YES YES YES (Dadhi Wala) A-15 Barju Sah YES YES A-16 Sayyum Ansari YES YES A-17 Momin Akhtar YES YES A-18 Ekbal Sah YES35A-19 Sabir Sah YES A-20 Pramod Pillai YES YES Evidence brought against A-21 Khadim Hussain in ST12405 67. The prosecution, in order to bring home the charges framed against accused, A-21 Khadim Hussain, examined altogether 7 witnesses, namely P.W-1 Dr. K.N Thakur, P.W.-2 Dr. Gita Singh, P.W-3 Dr. Asim Narayan Bos, P.W.-4 Gaya Prasad, P.W.-5 Ashok Kumar Pathak, P.W.-6 Braj Kishore Bharti and P.W.-7 Dr. Tripit Prasad Singh in this case.
68. Prosecution has also proved and exhibited the documents viz; Ext.1 - Statement of victim recorded by the police, Ext-2 – Injury report of the victim, Ext-3 Case sheet of the victim girl prepared by Dr. Gita Singh, Ext-4 Examination report of the victim girl under anesthesia, Ext-5 Pathological report, Ext-6 Report of Radiologist, Ext- 7 Clinical history sheet of the victim girl prepared by Dr. A.N. Bose, Ext-8 Admission form of the victim girl, Ext-9 Injury report dated 07- 04-99 of victim, Ext-10 Written report of informant Gaya Prasad, Ext- 10/1 Endorsement of police officials on the written report, Ext-10/2 – Endorsement of O/C, Sector – IV P.S, Bokaro on the written report, Ext-11 Confessional statement of accused Abbas Ansari u/s 164 Cr.P.C, Ext-11/1 Certificate given on the statement of the accused Abbas Ansari recorded u/s 164 Cr.P.C by Magistrate, Ext-12 Confessional statement of accused Anwar Ansari u/s 164 Cr.P.C, Ext- 13 Statement of victim girl u/s 164 Cr.P.C, Ext-14 Signature of Alok Kumar on formal FIR, Ext-15 Seizure list for recovery of auto- rickshaw, Ext-16 Seizure list of Sameez and brassiere, Ext-17 Seizure list for recovery of pink coloured blouse and skirt, Ext-18 Production cum Seizure list for cream coloured suit, Ext-19 Confessional 36 statement of accused Yunus Ansari, Ext-20 to 22 -Confessional statement of accused, Anwar Ansari, Momin Akhtar and Feroz Sah.
69. From the oral evidence of P.W-1 Dr. K.N Thakur, P.W.-2 Dr. Gita Singh P.W-3 Dr. Asim Narayan Bos and P.W.-7 Dr. Tripit Prasad Singh and documentary evidence, which have already discussed, viz Ext.2 – Injury report of the victim, Ext-3 Case sheet of the victim girl prepared by Dr. Gita Singh, Ext.4 Examination report of the victim girl under anesthesia, Ext-5–pathological report, Ext-6 Report of Radiologist, Ext-7 Clinical history sheet of the victim girl prepared by Dr. A.N. Bose, Ext-8 the Admission form of the victim girl, Ext-9 Injury report dated 07-04-99 of victim Ext-13 Statement of victim girl u/s 164 Cr.P.C Ext.16 – Seizure list of Sameez and brassiere, Ext.17 – Seizure list for recovery of pink coloured blouse and skirt and Ext.18 – Production-cum-seizure list for cream coloured suit, we arrive at the same conclusion that the gang rape was committed on the victim (now deceased).
70. Now, it is to be seen whether the confessional statement of two accused persons i.e. Ext-11 confessional statement of accused Abbas Ansari u/s 164 Cr.P.C and Ext.12–confessional statement of the accused Anwar Ansari u/s 164 Cr.P.C, passes the judicial muster provided u/s 30 of the Evidence Act, in order to be taken into consideration against the accused Khadim Hussain? 71. The charge against accused, A-21 Khadim Hussain for the commission of gang rape on victim/deceased was framed on 29-03-06 hence both confessional statements of co-accused do not fulfill the first condition of Section 30 of Indian Evidence Act, which necessitates a mandatory requirement that maker of confessional 37 statement and the co-accused must be tried jointly. Since the trial of the co-accused persons (who had confessed to their guilt as well as that of the other co-accused persons) was completed on 20-05-2004 and the trial of accused A-21 Khadim Hussain was initiated on 29-03-06, hence. Ext-11 and 12 cannot be read against him.
72. Accused Khadim is being benefited on account of his abscondence. He has saved himself from being tried with the two accused persons, who had confessed their guilt and disclosed his name as perpetrator of this crime also. Had his trial been conducted with these two accused persons, Section 30 of Indian Act would have surely been applicable against him also. This disturbs us a lot but we are helpless as we can not go beyond ambit of law.
73. Besides the aforementioned infirmity, even the informant did not say anything against Khadim Husain nor did he identify him as a culprit in the crime. This weakness is apparent on the face of the record and is not sufficient to hold accused Khadim Hussain guilty of the offences for which he stands charged. Conclusion 74. After meticulously rescanning the prosecution case in its right perspective, we are of the considered view that the prosecution has, no doubt, been able to prove its case beyond the shadow of any reasonable doubt vis-a-vis the complicity of two accused namely A-11 Mani Swami and A-20 Pramod Pillai for hatching the conspiracy for committing kidnapping and committing rape on deceased victim, which are offences punishable under Section 120B read with Sections 366 and 376 (2) (g) of the IPC, as well as the complicity of ten persons 38 namely A-5 Abbas Ansari, A-6 Habib Ansari, A-7 Sirazuddin Ansari, A-8 Md. Islam Ansari, A-9 Feroz Sah, A-10 Anwar Ansari, A-14 Yunus Ansari, A-15 Barju Sah, A-16 Sayyum Ansari and A-17 Momin Akhtar for committing the offence punishable under Sections 366 and 376 (2) (g) of the IPC.
75. At the same we do not find sufficient evidence against A-1 Mojib Ansari, A-2 Abdul Shattar Ansari, A-3 Mansoor Ansari, A-4 Kazi Rizwan, A-12 Gaffar Ansari, A-13 Noor Alam @ Lalit, A-18 Ekbal Sah, A-19 Sabir Sah and A-21 Khadim Hussain. Resultantly, we extend the benefit of doubt towards them disturbing the impugned judgment of conviction and sentence to that extent. Sentence 76. Learned counsel for the accused-appellants submitted that all the convicts have remained in custody for a substantial period and the clemency of penal justice suggests that the minimum sentence would sufficiently meet the ends of justice. Hence, minimum sentence prescribed for this offence may be awarded to convicts in the event of their conviction being maintained.
77. On the other hand, the learned A.P.P submitted that convicts do not deserve any leniency.
78. We have considered all relevant facts and circumstances bearing on the question of sentence and thereby proceed to impose a sentence commensurate with the gravity of the offence. Offence against the bodily integrity of a woman, tarnish and nullify her image and reputation for good and thus have a stifling effect on her personality. In the sociological setup found in India, this effect is further 39 aggravated and the prosecutrix's personality withers with time. The Hon‘ble Supreme Court, in a catena of cases, recognized the importance of a person's reputation, which is a priceless asset, which no one would like to barter for all the wealth of the world. The importance of a person's reputation is further accentuated, when one is dealing with the reputation of a woman. Thus, an offence affecting the woman's bodily integrity and chastity ought to be dealt with sternly. Further, it should also be the endeavor of criminal justice system to stamp out all sorts of criminal proclivities, by awarding suitable sentences which are commensurate with the gravity of the offence under consideration, so as to adequately reflect the societal condemnation to reprehensible conducts. We cannot lose our sight towards the loud cry for justice by the society in such heinous crimes of gang rape, by such a large number of accused persons of different age groups, on an innocent hapless teenager girl. This case truly shocked the collective conscience of community. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. In the instant case, there are no extenuating or mitigating circumstances available on the record which may justify the imposition of minimum sentence on the respondents, as is claimed by the defence counsel. Rather, the factual matrix of the case at hand discloses a sordid mode of commission of the most heinous crime of gang rape, perpetrated in the most reprehensible and utter inhuman manner, after having kidnapped a girl of 19 years, who was committed to getting an admission in IIT and becoming an Engineer. An innocent life was thus brutally snuffed out because of the dastardly act of these accused persons. These facts only justify the imposition of maximum sentence on the convicts, as mandated within the contours of law. To 40 show mercy in such a case would be travesty of justice and the plea for leniency, in our view, is wholly misplaced. Hence, we are of the view that maintaining the sentence as already recorded by the trial court against A-5 Abbas Ansari, A-6 Habib Ansari, A-7 Sirazuddin Ansari, A-8 Md. Islam Ansari, A-9 Feroz Sah, A-10 Anwar Ansari, A-11 Mani Swami, A-14 Yunus Ansari, A-15 Barju Sah, A-16 Sayyum Ansari, A-17 Momin Akhtar and A-20 Pramod Pillai would sufficiently meet the ends of justice, which we direct.
79. To conclude : Cr. Appeal Nos. 1157/04, 1172/04, 1173/04, 1175/04, 1177/04, 1199/04, 1218/04, 1421/04, 1422/04, and 431/06 stand dismissed whereas Cr. Appeal Nos. 1089/04, 1146/04, 1156/04, 1178/04, 1182/04, 1743/04 and 1150/2012 stand allowed.
80. Accused persons namely Mansoor Ansari, Sabir Sah, Kazi Rizwan and Mojib Ansari are stated to be on bail as their substantive sentence was suspended during the pendency of the instant appeal. They are discharged of their bail bonds.
81. The accused persons namely Abdul Shattar Ansari @ Sirajuddin Ansari, Noor Alam @ Lalit, Ekbal Sah, Gaffar Ansari and Khadim Hussain are in custody. Let release order be sent qua them to the concerned jail authority forthwith for their release from the jail where they are presently lodged, if they are not required in any other case.
82. The remaining 12 (twelve) accused namely - Pramod Pillai, Mani Swami, Md. Islam Ansari, Feroz Sah, Barju Sah, Yunus Ansari, Anwar Ansari, Abbas Ansari, Momin Akhtar, Habib Ansari, Sirazuddin Ansari 41 and Sayyum Ansari, shall serve the remainder of their substantive sentence as already recorded.
83. Learned trial court be intimated of the outcome of the instant appeal. Trial court records (in original) be remitted to the court concerned.
84. Lastly, we have to apply our mind to question of awarding compensation. In a case Ankush Shivaji Gaikwad v. State of Maharashtra, reported in (2013) 6 SCC770 the Hon'ble Supreme Court has been pleased to hold, “While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case.‖ 85. It is indeed unfortunate that learned Additional Judge has failed to apply his judicial mind on the question of awarding compensation to the victim u/s 357 Cr.P.C. It is agonising for us to see that the victim was left to fend for herself, even as she was undergoing medical treatment. The brunt of the gruesome incident was borne by the family of victim. The victim's family was economically drained.
86. At this juncture it would be prudent to mention that victim of a crime or his kith and kin have a legitimate expectation that the State will punish the guilty and compensate the victim. In several cases, to do justice to the victims, the Hon'ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed in their duty to protect the life and liberty of victims. Reference in this regard may be made to the judgment [1] Chairman, Rly. Board Vs. Chandrima Das, (2000) 2 42 SCC465(rape of Bangladeshi national by Railway staff), [2] Suo Motu Writ Petition (Cr) No.24 of 2014 reported in 2014 (4) SCC786 wherein Their Lordships, in a case of gang rape, held that no compensation can be adequate nor can be of any respite for the victim but as the State has failed in protecting such serious violation of the victim's right, the State is duty bound to provide compensation, which may help in the victim's rehabilitation. The humiliation or the reputation that is snuffed out can not be recompensed but then monetary will at least provide solace.
87. In the contemporary era where state dons the welfarist mantle, it becomes imperative for it to provide adequate recompense to the victim as it has failed in its mandate to provide security of persons and property.
88. Ironically the second para of our judgment brings forth the grave procedural lapses on the part of police machinery. The police, which is ordinarily presumed to play the role of protector, has been dormant and inactive in this case. This perturbs our judicial conscience considerably and we take this opportunity to deprecate such errant behaviour on the part of police. The second paragraph of the judgment brings forth the negative dormant and dirty role played by the police in the extant case, which disturbs our conscience a lot. There are glaring patent lapses on the part of State in taking preventive measures as also procedural safe guards provided for victim (since deceased) under Cr.P.C and to protect fundamental right.
89. We were also informed by the learned State counsel during the course of argument that the incident took an ugly turn when Bokaro Dy. S.P. Mr. Nihal reported to S.P. that it is a fake case. We presume 43 that the learned State counsel made this statement after seeing the complete police record.
90. A shocking information has also been given to Court by the learned counsel for complainant that the only earning member of family, i.e. the father of victim-deceased (first informant), is now also no more. We can very well presume the mental condition of the father of victim, who faced a tragic fate when the fear of social ignominy kept gnawing at his conscience. He, being emotionally battered and economically totally drained, died a slow death on daily basis. Now, the mother and sister of victim-deceased remain alone in this world as victim of aftermath circumstances. They have been left high and dry to fend for themselves.
91. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. The police, the learned public prosecutor, learned defence counsel and the judge together constitute a golden quadrilateral of criminal judicial system and if any of these fails to perform their task, the administration of justice loses its sheen. The role of police becomes more pivotal in cases related to the heinous crime like gang rape, where the cry for justice by the society is more loud. In the case at hand, in order to discern and find out the real truth, we engaged ourselves with extra herculean efforts in the journey of discovering the truth due to serious lapses in investigation, which had posed several issues to resolve.
92. Section 357-A has been incorporated in Criminal Procedure Code to enable the Court to direct the State to pay compensation to the victim. In the case at hand, there appears to be no reason as to 44 why the mother of the victim, who has lost her young talented daughter for ever due to the curse of gang rape as well as her husband and now left as totally helpless lady, should not be awarded compensation. In our considered view, State of Jharkhand is liable to pay compensation to the family of the deceased. We, thus, determine the compensation to the mother of the victim of gang rape as Rs.5,00,000/- (Rupees Five Lakh). This shall be without prejudice to any other rights or remedies of the victim family, available to them in other proceedings. The aforesaid compensation shall be paid by the State after securing the attendance of the mother of the victim, after proper verification, within six weeks from today in this Court and for this purpose only the present case shall be taken up by the Registrar General of the Court on 23rd September, 2015. Let an intimation be sent to the mother of the victim on her fresh address in this regard.
93. All these 17 appeals, thus, stand disposed of finally. (Virender Singh, C.J.) (P.P.Bhatt, J.) High Court of Jharkhand at Ranchi Dated the 13th August, 2015 Birendra/ A.F.R