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1998 DIGILAW 115 (PAT)

Samuel Soran v. State Of Bihar

1998-02-10

N.N.SINGH

body1998
Judgment N.N.Singh, J. 1. Sole appellant, Samuel Soren, preferred this appeal against the judgment of conviction and order of sentence, dated 14.07.88, passed by IVth Additional Sessions Judge, Santhal Parganas at Camp Sahebganj in Sessions Trial No. 79 of 1985, by which this appellant was convicted under Section 376 of the IPC and was sentenced to undergo rigorous imprisonment for four years. 2. Briefly stated, the prosecution case, as unfolded by fardebeyan (Exhibit 2) of Barunika Chaure (PW 1), a minor girl, recorded on 06.09.83 at Taljhari Railway platform, is that she was a student of Class IV in St. John School, Taljhari, and was residing in the house of this appellant, who happened to be the headmaster of that school, and also a distant relative as brother-in-law of the informant. The informant claimed that she was aged about 12 to 13 years and used to perform the household job in the house of the informant. The case of prosecution is that on 20.08.83 wife of this appellant, along with her son, had gone to Pakur and in the evening this appellant went towards village and returned at about 03.09.00 p.m. and asked the informant to sleep in the office. Further case of prosecution is that in the office this appellant asked her to press his legs and when she was not ready, he abused her and thereafter asked her to remove her clothes and himself forcibly removed her clothes and committed rape on her. The informant claimed that in the next morning when wife of this appellant came, she narrated the incident to her whereupon wife of the appellant assaulted the appellant with stick. The informant claimed to have informed about the incident to a relation of the appellant, who was also a teacher in the school, but she said not to disclose it to others otherwise she would be assaulted and thereafter she was taken to Taljhari village where she remained for some days and then went to station to catch train to go to her house at Barhet. She made her statement to the Officer-in-Charge of Taljhari Police Station to whom she reported the matter and her fardbeyan was recorded on which she put her signature and one Dawood Hembrom (PW 4) also put his signature as a witness. She made her statement to the Officer-in-Charge of Taljhari Police Station to whom she reported the matter and her fardbeyan was recorded on which she put her signature and one Dawood Hembrom (PW 4) also put his signature as a witness. On the basis of her fardbeyan Taljhari P. S. Case No. 34/83 was registered under Section 376 of the IPC and police after due investigation, submitted charge-sheet against this appellant, who, after cognizance and commitment, was put on trial and was convicted and sentenced as aforesaid. 3. The defence, as gathered from suggestions put to PWs and the statement of the appellant under Section 313 of the Criminal Procedure Code, was that this appellant has been falsely implicated at the instance of one Dawood Hembrom (PW 4), who was contestant for the post of headmaster of that school and that this appellant was falsely implicated at his instance which is apparent from the fact that the fardbeyan was recorded in his presence. 4. Prosecution examined seven witnesses in support of its case out of whom PW 3, Aruna Rukhi, was tendered for cross-examination and PW5, Manik Chandra Sah, was a formal witness who simply proved formal first information report (Exhibit 3). PW 4, Dawood Hembrom, has also figured as a formal witness, who proved his signature (Exhibit 1/1) on the fardbeyan (Exhibit 2) PW 2, Karuna Noyal Hembrom, a lady health visitor, and PW 6, Jonathan Baski, are hearsay witnesses. PW 7 is Dr. K. Gupta, who examined the victim girl (PW 1) and PW 1 is Barunika Chaura the informant and victim girl of this case. The investigating officer of this case was not examined. 5. The learned trial Court discussed the evidence of informant, victim girl, PW 1, in paragraph 11 of its judgment and has come to the conclusion that her evidence was consistent and she fully supported prosecution case as detailed in her fardbeyan (Exhibit 2). In course of argument, learned Counsel for the appellant contended that no sign of rape was found by the doctor (PW 7) and as such the medical evidence did not support the prosecution case. In course of argument, learned Counsel for the appellant contended that no sign of rape was found by the doctor (PW 7) and as such the medical evidence did not support the prosecution case. PW 7 stated to have examined the informant on 07.09.83, that is, after eighteen days of alleged rape and as such the trial Court rightly held in paragraph 12 of its judgment that non-finding of any sign of rape on the victim girl was but natural. I was taken to the evidence of PW 1 in which she had mentioned in detail as to how this appellant committed rape on her. Nothing was suggested to her as to why she would falsely implicate this appellant, who was not only her relation but had kept her in his house. PW 7 assessed the age of the victim girl as 15 to 17 years. The learned Advocate for the appellant put stress on the point that the age claimed by PW 1 as 12 to 13 years was not supported by medical evidence where PW 7 opined that she was aged approximately 15 to 17 years. I do not find any material difference as even after assessment of the age of the girl on the higher side to be 17 years made by PW 7, she still remained a minor. 6. It was contended on behalf of the appellant that PW 2, a lady health visitor, Karuna Noyal Hembrom, admitted enmity between the appellant and Dawood Hembrom (PW 4). It was also submitted that PW 4, Dawood Hembrom, and PW 6, Jonathan Baski, were close relations. I find that this has no bearing on the case as the victim girl was not related to PWs 4 and even if PW 4 had any ill-will or enmity with the appellant, there could be no reason as to why PW 1, the informant, would alleged falsely that this appellant committed rape on her. Having regard to the prevailing mores of the Indian society it is inconceivable for a girl, like PW 1, that she would invent of her own a false story of sexual assault. It is also unthinkable that PW 4, who is not even related to her would tutor her to invent a story of sexual misbehavious and she would implicate the appellant. 7. It is also unthinkable that PW 4, who is not even related to her would tutor her to invent a story of sexual misbehavious and she would implicate the appellant. 7. The learned advocate for the appellant contended that the trial Court held the evidence of PWs 2 and 6 as hearsay witnesses and as such there remains only the uncorroborated evidence of PW 1, the victim girl, with some contradictions regarding her allegation of commission of rape by the appellant on her. I am tempted to quote a passage from decision of the case Madal Lal V/s. State of Jammu and Kashmir, reported at (1997) 7 SCC, 677 : "In assessing the testimonial potency of the victims version, human psychology and behaviourial probability must be looked into. The inherent bashfulness in faminina tendency to conceal the outrage of masculina sexual aggression are facts which are relevant to improbabilities of the hypothesis of false implication. The prosecutrix evidence cannot be examined by picking one sentence in cross-examination and to find out whether she is truthful witness or not." 8. In this view of the matter, any single contradictory statement by the victim girl should be treated to have been made on account of inexperience of the young girl, who was subjected to sexual harassment, and such minor discrepancy in her evidence cannot be read in isolation, bereft of what she stated just previous to the aforesaid statement. In another decision of the case of State of Punjab V/s. Gurmeet Singh, reported at (1996) 2 SCC 384 , it was held: "A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused of charge of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probability of a case and not get swayed by minor contradiction or insignificant discrepancy in the statement of the prosecutrix which are not of a fatal nature to throw out otherwise reliable prosecution case. If evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. The courts should examine the broader probability of a case and not get swayed by minor contradiction or insignificant discrepancy in the statement of the prosecutrix which are not of a fatal nature to throw out otherwise reliable prosecution case. If evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason, the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive, while dealing with cases involving sexual molestation". 9. In this case minor girl, like PW 1, who was living in the house of the appellant and was getting her bread and education there alleged that the appellant, while his wife was away, committed rape on her. There is absolutely no reason as to why she would! implicate the appellant. The delay in recording the fardbeyan is also mean-, ingless in the circumstances that the minor helpless victim girl, as has been stated by her, was asked not to disclose this incident to others otherwise she would be assaulted and then she was moved to Taljhari village and at the first opportunity, when she met the police officer at railway platform, she gave her fardbeyan about the incident. It may be that PW 4, Dawood Hembrom, was inimical to the appellant and might have been keen in publicising the incident but nothing was shown as to how he would prevail upon PW 1 to implicate the appellant. The evidence of PW 1, the victim girl, is that of a truthful witness, a rustic village girl, who was traumatized on account of sexual harassment by her own headmaster and relation like this appellant. 10. On the basis of discussion, made above, and from the evidence on record irresistible conclusion is that the prosecution was able to establish the charge and under the circumstances conclusion reached by the trial Court could not be successfully assailed. 10. On the basis of discussion, made above, and from the evidence on record irresistible conclusion is that the prosecution was able to establish the charge and under the circumstances conclusion reached by the trial Court could not be successfully assailed. I do not find any merit in the contention of the learned Advocate for the appellant regarding quantum of sentence also as it is already on lenient side, without assigning any reason for the same. The minimum sentence prescribed under Section 376 of the IPC is seven years punishment whereas this appellant was awarded only four years punishment and at this stage while disposing of this appeal, I am not in favour of issuing any notice for enhancement of sentence. 11. In the result, finding no merit in this appeal, this appeal is dismissed. The bail bond of the appellant, who is on bail, is cancelled and he is directed to surrender before the Court below and the Court below is also directed to take steps for his arrest to serve out the remaining part of his sentence.