REPORTABLE

IN 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.
---
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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
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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
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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

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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.T 84/2001 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.T 124/05 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) PW 4

Gaya 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

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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

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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.T 84/2001 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,

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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 WITNESSES

16. 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,

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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

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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 ST 124/05 arising

out of one and the same case, which is tagged with this record because

an appeal against judgment passed in ST 124/05 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 AIR 2005 S.C

986, 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 AIR 1964 S.C 1184. 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) SCC 253,

(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 YES
 35

A-19 Sabir Sah YES

A-20 Pramod Pillai YES YES

Evidence brought against A-21 Khadim Hussain in ST 124/05

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 SCC 770, 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

SCC 465 (rape of Bangladeshi national by Railway staff), [2] Suo

Motu Writ Petition (Cr) No.24 of 2014 reported in 2014 (4) SCC

786, 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