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Section 376 in The Indian Penal Code
Section 228A in The Indian Penal Code
Section 376C in The Indian Penal Code
The Indian Penal Code
Section 376B in The Indian Penal Code

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Jharkhand High Court
Sonaram Hembram vs The State Of Jharkhand on 13 February, 2015
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                    Cr. Appeal No.358 of 2014
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Against the judgment of conviction and order of sentence dated
02.07.2009

and 10.07.2009 respectively passed by Additional Sessions Judge, FTCV, Chaibasa, in S.T No.309 of 2007.

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Sona Ram Hembram s/o late Jagmohan Hembram resident of village Pokharia PO & PS Majhgaon, District Singhbhum (West), Jharkhand .... Appellant Versus The State of Jharkhand ....Respondent

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PRESENT HON'BLE MR.JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON'BLE MR.JUSTICE APARESH KUMAR SINGH

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For the Appellant/Petitioner : Mr.Rajesh Kumar For the Respondent : Md.Hatim, APP

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Dated 13th February, 2015 Per Virender Singh, CJ.(Oral) At the very outset, it needs to be mentioned here that since the appellant was not in a position to engage any lawyer to defend his case by filing an appeal against the impugned judgment, Jharkhand State Legal Services Authority provided the services of its panel lawyer. It is how the instant appeal was filed in this Court, in which there was delay of 1711 days, which stood condoned, vide order dated 14.01.2015 and, thereafter, the main appeal also admitted to hearing on 28.01.2015. Since it is a case falling under section 376 IPC, therefore, priority was given to it for its final consideration over and above other pending appeals.

2. Appellant Sona Ram Hembram (for short to be referred to as 'accused' only) aged 45 years was charged for the offence 2 punishable under section 376 IPC for allegedly committing rape upon a girl (daughter of PW Smt. Menna Gope) who was hardly of the age 13- 14 years on the alleged date of commission of offence. He now stands convicted for the said charge vide impugned judgment of learned Addl. Sessions Judge, Chaibasa, dated 2nd of July 2009 and sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs.5000, in default thereof, to further undergo imprisonment for a period of 3 months.

3. We have heard Mr. Rajesh Kumar, learned counsel appearing for the accused and Md. Hatim, learned APP representing the State of Jharkhand.

4. Although learned counsel for the appellant has not joined issue vis-à-vis the merits of the appeal and confined his prayer only with regard to the reduction of substantive sentence submitting that the period already undergone by the accused till date which turns out to be 7 years 3 months and 16 odd days out of the total sentence of 10 years slapped upon him, vide impugned judgment, would meet the ends of justice, yet we being the court of first appeal, have rescanned the entire prosecution evidence and find that the prosecution has been able to prove its case against the accused for the aforesaid charge beyond any shadow of reasonable doubt. We have perused the statement of the victim very minutely, examined as PW 1 (name not being disclosed). The learned trial court should have also avoided disclosing the identity of the girl. We have chosen to describe her as 'the victim' in the judgment.

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5. No doubt, in the evidence of the victim we find certain discrepancies when we read it with the statement of her parents Smt. Meena Gope, examined as PW 2, and Mundia Gope, examined as PW 3, but all those discrepancies crept in the statement of the victim do not shed the basic substratum of the prosecution case. The victim is an illiterate girl hailing from a village and was hardly of the age of 13-14 years on the alleged date of occurrence. She could not speak even 'Hindi' and gave her statement in 'Orria' language which was interpreted by a clerk of an Advocate. Certain aspects could certainly obliterate from the memory of this child victim. She is otherwise consistent on one vital aspect that she had gone to the house of the accused for plucking chilly and when she was in the courtyard (in common parlance Aangan) of the accused, he caught hold of her by neck and took her inside the room, removed her clothes and then did bad act with her. She narrates as to how she was ravished at the hands of the accused.

6. We do find that there is delay in lodging the FIR by the complainant side but that too would not turn out to be fatal to the prosecution. The parents of the victim would think several times before approaching the police in such type of cases. It is stated by PW Mundia Gope, the father that he called the Panchayat of the village regarding the incident which was not attended by the accused as he absconded and then he went to the police for report. There is nothing unnatural in it. Therefore, delay in lodging the F.I.R does not turn out to be fatal in this case at all.

7. We appreciated the present case, yet from another angle 4 as to whether there could be any possibility of falsely implicating the accused in this case as projected from the side of defence but find no reason to disbelieve the victim.

8. We do not feel the necessity of entering into a detailed discussion with regard to the other evidence available on record for the reason that in our considered view, the solitary statement of the victim is sufficient to prove the charge against the accused to the hilt, even without any corroboration. We accordingly uphold the conviction of the accused under section 376 IPC as recorded by the learned Trial Court.

9. Adverting to the quantum of sentence. In our considered view, long incarceration of the accused in the jail (more than 7 years) would not be a ground to consider his case with any sympathetic tilt as the act committed by him is a "beastly act". The victim was of the age of his daughter only. The Court will be failing in its duty, if appropriate punishment is not awarded for a crime which has been committed not only against the victim, but also against the society to which the victim belongs. Imposing of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. Any liberal attitude of imposing sentence or taking too sympathetic a view, merely on account of lapse of time, will be result wise counter productive in the long run and against the societal interest which needs to be cared for and strengthened by the required string of deterrence inbuilt in the sentencing system.

10. We have delicately balanced the case of the accused vis-à- vis the sentence already imposed upon him and find no scope for 5 reducing the same as now prayed for. He does not deserve the least sympathy of the Court. Accordingly, the sentence of 10 years already slapped upon him vide impugned judgment is hereby confirmed.

11. The net result is that appeal on hand stands dismissed on both the counts while confirming the conviction as well as the sentence already recorded by the learned trial court.

12. Since the instant appeal has been filed through JHALSA, Registry is directed to inform the accused of the outcome of the instant appeal through Jail Superintendent. Certified copy of the judgment shall also be provided to the accused without any delay.

13. Before parting with the judgment, we would like to show our anguish with regard to disclosure of the identity of the victim in this case. Hon'ble Supreme Court in case titled, State of Karnataka versus Puttaraja reported in (2004) 1 SCC 475, while dealing with a case of Section 376 I.P.C., observed: -

"Section 228-A of the Indian Penal Code, 1860 (in short "IPC") makes disclosure of the identity of the victim of certain offences punishable. Printing or publishing name or any matter which may make known the identity of any person against whom an offence under Section 376, 376A, 376B, 376C or 376D is alleged or found to have been committed, can be punished. True it is, the restriction does not relate to printing or publication of judgment by the High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracism of the 6 victim of sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, the High Court or the lower court, the name of the victim should not be indicated."

14. In another case titled Dinesh alias Buddha versus State of Rajasthan reported in (2006) 3 SCC 771, where an eight year old girl was sexually ravished by the accused, she was described as 'victim'.

15. In case titled, Satya Pal Anand versus State of Madhya Pradesh reported in (2014) 4 SCC 800, the Hon'ble Supreme Court while perusing the affidavit filed on behalf of the State of Madhya Pradesh, noticed that the names of victims of 376 I.P.C. were disclosed therein. The Hon'ble Supreme Court took a serious note of the said fact and while referring to Section 228-A of the Penal Code, 1807, which exempts two categories of police officers, namely, (i) Officer-in-Charge of Police Station, and (ii) Police Officer making investigation into such offence, who can disclose the identity of the victim against whom offences under Section 376, 376A, 376B, 376C or 376D is alleged or found to have been committed, issued notice to the official ,tendering the affidavit, to show cause why the offence under Section 228-A I.P.C. be not directed to be registered against him for disclosing the identity of the rape victims.

16. We, therefore, convey a note of caution to all the Trial Court Judges that while dealing with the cases of sexual offence against a woman, the identity of the victim should not be indicated, instead she 7 can be described as 'the victim' in the judgment.

17. Registrar General is directed to send a copy of the judgment to all the Principal District Judges of the State including the Principal Judicial Commissioner, Ranchi for compliance.

(Virender Singh, C.J.) (Aparesh Kumar Singh, J.) High Court of Jharkhand The 13th day of February, 2015 NAFR/dey/LAK