IMPORTANT POINT
Acquittal of four accused for offence of gang rape and murder by High Court is perverse. On re-appreciation of whole evidence four accused are found guilty of gang rape. But their conviction u/s 302 r/w 34 IPC by Sessions Court needs modification u/s 304 Part II r/w 34 IPC as injuries on deceased were caused in violent rape without intention to cause death but with knowledge of possible death.

Headnote:(i) Constitution of India-Article 136-General principles governing interference by the Supreme Court in criminal appeal by special leave-Case law referred.
       Held : "(1) that the court would not interfere with the concurrent finding of fact based on the pure appreciation of evidence even if it were to take a different view on the evidence; (2) that the court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; (3) that the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court; (4) that the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the accused; (5) the Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court are manifestly perverse and based on no evidence." (Para 12)
       (ii) Indian Penal Code, 1860-Sections 376 and 302 r/w 34 or 304 Part II r/w 34-Offence of gang rape and murder-Accused chasing deceased and her husband for revenge (holding infant son)-Husband heard shrieks of his young wife pleading for mercy praying for sparing her life and honour-Could not help overawed by might of accused, apparently concerned with safety of his infant son and self-Motive was vengence against news items published against accused in the newspaper by the couple as reporters-Horrifying circumstances of political influence of accused-Inaction of police-Sessions Judge convicted A-2 (Dibakar Naik), A-3 (Raju Rao Dora), A-5 (Birabar Mania), A-6 (Babaji Mania) A-7 (Bhira Behara @ Baga Tanti), A-8 (Surendra Barik), A-9 (Kalu Charan Das @ Tanti) and A-11 (Madha Tanti) (eight persons) under Sections 376 and 302 r/w 34 IPC-High Court acquitted them -Appeal against to Supreme Court-Whether view taken by the High Court is apparently perverse? (Yes) (Para 15)-Effect-Needs scrutiny and re-appreciation of evidence (Para 16)-Result-Rejection of testimony of husband of deceased (PW1) was not proper (Para 18) -In the horrifying circumstances his conduct was normal-Non-seizure of torch of PW1 and non-disclosure of names of accused to PW10 and PW13 not fatal (Paras 19 and 20)-Gang rape of deceased in river bed by four A5, A6, A7 and A11 proved (Para 21)-But nature of injuries prove culpable homicide and not murder-Punishable under Part II of Section 304 r/w 34 IPC-A6 dying during trial (Paras 22 & 23)-State s appeal against 3 (A5, A7 and A11) allowed-Regarding others dismissed-Order accordingly. (Para 24)
       Held : The views taken by the High Court apparently appears to be perverse, not based upon evidence, completely in negation of the normal human behaviour of an individual caught in such a horrifying situation and forgetting that for the fault in the investigation no benefit can be given to the accused persons. (Para 15)
       In view of the perversity in the judgment of the High Court we have opted to scrutinise and re-appreciate the evidence in the case to find about the guilt of the accused-respondents and the extent of their involvement in the case. (Para 16)
       On re-appreciation of whole of the evidence we have come to a conclusion that Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhananda Parmanik (A-11) were responsible for the occurrence which took place in the river bed wherein the deceased was subjected to gang-rape. The aforesaid accused persons, namely, Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda Parmanik (A-11) were, therefore, rightly convicted by the trial court for the commission of the offence punishable under Section 376 and sentenced accordingly. (Para 21)
       However, the nature of the injuries inflicted upon the person of the deceased indicate that the accused persons had not intended to cause her death. It was a case of violent type of intercourse. The injuries found were not in normal course of sexual intercourse. Any violent assault even without rape could cause injuries 1 and 2 and the corresponding internal injuries. Injury No. 2 with corresponding internal injury was sufficient to cause the death. (Para 22)
       As already noticed, in this case there is no evidence to show that the aforesaid accused persons proved to have been involved in the occurrence, had intended to cause the offence of murder within the meaning of Section 300 as punishable under Section 302 of the Indian Penal Code. However, on proof of the commission of offence of gang-rape found to have been committed in a violent manner, they are assumed to be having the knowledge that by their action it was likely that the deceased would have died. The aforesaid accused are, therefore, guilty of the offence, punishable under Part-II of Section 304 of the Indian Penal Code. While acquitting the other respondents we hold Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda Parmanik (A-11) guilty for the commission of offences punishable under Section 304 (II) read with Section 34 of the Indian Penal Code besides the commission of offence punishable under Section 376 read with Section 34 of the Indian Penal Code. The conviction and sentence awarded by the trial Court to Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baga Tanti (A-7), and Madha Tanti @ Madhabananda Parmanik (A-11) under Section 376 of the Indian Penal Code is upheld. On proof of the offence punishable under Section 304(II) read with Section 34 IPC, the aforesaid accused persons are sentenced to undergo rigorous imprisonment for 10 years. Both the sentences shall run concurrently. (Para 23)

JUDGMENT

Sethi, J.-Shrieks and wails of a blossoming young helpless woman pleading for mercy, praying for sparing her life and honour did not deter the vulture like culprits in committing the most ghastliest crime, known under the sky, of rape and culpable homicide for quenching their thrust for passion and revenge. Overawed by the might of the accused, the unfortunate husband, apparently concerned with the safety of his son and self, could not rescue his wife from the clutches of the accused. The alleged crime, committed by the couple, for which they were punished by the accused was the self-conceived notions of the culprits regarding publication of some material against them by the deceased and her husband, both Press Reporters. The accused persons clothed themselves with the powers of both the police and the courts, presumably on account of the political influence they wielded in the area. Inaction by the local police resulted in public agitation whereafter the investigation of the case was handed over to the Dy.S.P. of the Crime Branch. The trial court convicted Dibakar Naik (A-2), Raju Rao Dora (A-3), Birabar Mania (A-5), Babaji Mania (A-6), Bhira Behera @ Baba Tanti (A-7), Surendra Barik (A-8), Kelu Charan Das @ Tanti (A-9) and Madha Tanti @ Madhabananda Parmanik (A-11) under Sections 376 and 302 read with Section 34 of the Indian Penal Code. The other accused persons were convicted and sentenced for minor offences punishable under Sections 448, 323, 341, 342, 347 and 506 and appropriately sentenced for the same. The appeals filed by the accused persons convicted under Sections 376, 302 read with Section 34 were allowed and their convictions and sentences set aside. Convictions and sentences of the other accused persons for offences other than murder and rape were upheld. The appeal filed by the State against the order of acquittal of some of the accused with regard to minor and major charges of rape and murder was dismissed. Aggrieved by the judgment of the High Court, the State has filed the present appeals by special leave.

2. Horrifying circumstances, as disclosed by the prosecution are that Chhabirani aged about 23 years was raped and murdered on 3.10.1980 in the river bed of River Biluakhai when she along with her husband was fleeing from the village to save their lives, as commanded by the accused persons. Nabhakishore (PW1) of about 30 years of age married the deceased, who was a Bengali lady, in the year 1973. PW1 was a matriculate and resident of village Dhiasaibiri where his parents and three brothers were residing. About 7 months prior to the occurrence, the couple was residing in Village Biridi which is about 10-11 kms. from PW1 s native village Dhiasaibiri. The couple had a child of one and a half years of age. They were living in the rented house belonging to Raju Rao Dora (A-3). Before his marriage PW1 had served as a teacher. Seven months before settling in Village Biridi, Nabhakishore (PW1) had become a Press Reporter of the daily Newspaper Pragatibadi , weekly Newspaper Nirvika and monthly newspaper Niankhuntha . The deceased was also a Press Reporter of monthly newspaper Durmukha . Besides being a Press Reporter, PW1 was also an agent of some magzines. Prior to the date of occurrence on the reports of Nabhakishore (PW1), news item in 1980 July issue of Nirvika were published. The said news items were against Raju Rao Dora or Kalpana Mohanty whose brother is a friend of accused Sudhir Parida (A-4) or against Block Development Officer and against the Management of the local hospital. After publication of the said news item the accused Raju Rao Dora demanded PW1 to vacate his house and even attempted to lock the same but failed in his attempt. A-2, A-4 and A-5 threatened PW1 for his publishing the news item pertaining to the said accused and the Block Development Officer. Prior to the date of occurrence, A-3 is alleged to have assaulted PW1 and outraged the modesty of the deceased with the help of h

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2002 Supreme(SC) 531

Cases Referred (6)