Rajendra Rai v. State Of Bihar — 1998 DIGILAW 185 (PAT)

Judgment Aftab Alam, J. 1. The sole appellant Rajendra Rai stands convicted under Sec. 376 of the Penal Code and sentenced to undergo imprisonment for a period of ten years and also to pay a fine of Rs. 2000.00 and in default to undergo rigorous imprisonment. 2. The prosecution case was instituted on the basis of a written report (Ext. 4) submitted by Sachindra Sah, the father of the victim Neelam Kumari at Bidupur police station on 24.5.1987 at 10.45 a.m. A formal F.I.R. (Ext. 1) was drawn up incorporating the written report and giving rise to Bidupur P.S Case No. 099/1987. 3. In the written report, it was stated that on 18.5.1987 around 10-1 I a.m. the informants daughter Neelam Kumari, aged about 12 years had gone towards village Phulpura for collecting firewood. She returned at about 4-5 in the evening and said that at about 12 in the noon while she was collecting dried wood in the orchard of Awadh Kishore Mishra towards the north of Phulpura village, the appellant came there and dragged her towards some bushes. He committed rape on her and when she tried to raise an alarm gagged her mouth with a piece of cloth. After fully gratifying himself the appellant left her and fled away. It was further stated that the informant then told some of his co-villagers about the occurrence. The appellant and members of his group gave threat that any attempt to institute a case would lead to dire consequences. The informant thus intimidated did not come out of his house. The villagers fixed a panchayti on 23.5.87 but the appellant or his father did not come for the panchayti. Thereafter the informant somehow managed to stealthily go to the police station to report the occurrence for taking suitable action. 4. On the same day the officer Incharge, Bidupur P.S. drew up a memorandum forwarding the victim girl for medical examination. However, from the injury report (Ext. 3) it appears that she was examined by the doctor on 27.5.1987 that is, nine days after the occurrence and four days after the institution of the case. 5. On 23.5.1987, that is, the day after the case was instituted the victim girl was produced before a Magistrate and her statement (Ext. 2) was recorded under Sec. 164 of the Code of Criminal Procedure. 6. 5. On 23.5.1987, that is, the day after the case was instituted the victim girl was produced before a Magistrate and her statement (Ext. 2) was recorded under Sec. 164 of the Code of Criminal Procedure. 6. The Police after Investigation submitted charge sheet against the appellant and he was tried for committing the offence of rape. Before the trial Court the prosecution examined 11 witnesses in support of its case. 7. PW 1 was incharge of the police station at the material time and it was he who had received the informants written report and had started investigation in the case. He stated before the Court that after instituting the case he came to the informants village where he recorded the statement of witnesses and examined the place of occurrence. Thereafter, he took the victim and her mother and started on a three wheeler for taking them to the doctor for the victims medical examination. When the three wheeler reached a little distance towards west from the school, it was forcibly stoped by Shambhu Singh, Raj Kumar Mishra, Raj Ballabh Mishra and Chandeshwar Raj (not before this court) who made the victim and her mother got down from the vehicle and took them away on the point of a pistol. PW 1 made a search for but was unable to find them. A separate case was then instituted in respect of this occurrence. 8. PW 5 is another police officer to whom the investigation of the case was later handed over and who submitted charge sheet against the appellant. 9. PW 2 denied having any knowledge regarding the occurrence and he was declared hostile by the prosecution. 10. PW 3 simply stated that the informant Sachindra Sah had told him that the appellant Rajendra Rai, son of Jibu Rai had committed rape on her daughter and that a panchayti on this matter was fixed on 23. 5.1987 but the appellant and his father did not turn up for the panchayti 11. PW 4 was tendered for cross-examination. 12. PW 6, Shri Krishna Kumar Srivastava, was the Judicial Magistrate who had recorded the statement of the victim under Sec. 164 of the Code of Criminal Procedure and he proved the statement recorded by him which was marked as Ext. 2. 13. PW 7 is Dr. Mrs. Sabitri Kumar who examined the victim on 27.5.1987. 12. PW 6, Shri Krishna Kumar Srivastava, was the Judicial Magistrate who had recorded the statement of the victim under Sec. 164 of the Code of Criminal Procedure and he proved the statement recorded by him which was marked as Ext. 2. 13. PW 7 is Dr. Mrs. Sabitri Kumar who examined the victim on 27.5.1987. She proved the injury report which was marked as Ext. 3. According to her opinion, as stated in the injury report, sexual offence might have been committed on the victim but rape was not confirmed. 14. PW 8 is the victim Neelam Kumari. 15. PW 9 was tendered by the prosecution for cross-examination. 16. PW 10 is the grand mother of the victim and PW 11 is the informant, the father of the victim. 17. Before proceeding to examine the evidence of the victim, Neelam Kumari, it may be noted that she appeared to suffer from some disability of speech. While recording her statement under Sec. 164 of the Code, the learned Magistrate made a note in parenthesis before recording the substance of her statement that the witness stuttered and was unable to speak clearly. The trial Court before commencing to record her deposition similarly noticed that the witness lisped and was slow of understanding. The evidence of the victim is, therefore, to be examined having regard to her handicap (s) as noticed by the Magistrate and the learned trial Court. 18. Neelam Kumari in her deposition before the Court stated that while she was collecting dry leaves, the appellant, Rajendra Rai, son of Jibu Rai caught her, removed here cloth and forcibly committed sexual intercourse with her. When she tried to cry, he gagged her mouth and hit. her with a piece of brick. At a result of the intercourse she started bleeding from her genitals and experienced great pain: she became unconscious. On regaining consciousness she told her father and grand mother about the incident, In the Court she identified the appellant standing in the dock. In her cross-examination she stated that she had become unconscious at the place of occurrence and she was not aware who brought her from there to her father. She also said the her pants were stained with blood. She had gone to the police station two days after the occurrence. She had given her pants which are torn by the appellant to the Police Inspector. 19. She also said the her pants were stained with blood. She had gone to the police station two days after the occurrence. She had given her pants which are torn by the appellant to the Police Inspector. 19. The victims grand mother, PW 10 stated that her grand daughter had gone out to collect dried leaves and when she came out in the evening, her face was pale and there were abrasions on her waist. Her pants were torn and were stained with blood. She told her that the appellant had forcibly carried hereto a bush and forcibly committed sexual intercourse with her; that when she tried to raise hulla the appellant gagged her mouth and hit her. On that day the villagers did not let them go to institute a case but said that the matter would be resolved in a panchayti. But, the appellant did not come for panchayti. In her cross-examination she said that there were abrasions on the entire back and the buttock of her grand daughter, the victim. 20. PW 11, the informant and the father of the victim similarly supported the prosecution case. 21. Mr. Y.C. Verma, learned Counsel for the appellant submitted that the entire prosecution story appeared to be untrue and was liable to be thrown out. He submitted that the victim did not name the appellant at the first instance before the Magistrate who recorded her statement under Sec. 164 of Code of Criminal Procedure and stated his name for the first time before the trial Court. According to Mr. Verma, the omission to name the appellant in the statement under Sec. 164 would be held to be fatal to the prosecution case and that on score alone the prosecution must fail. 22. It is indeed true that In her statement under Sec. 164 the victim Neelam Kumari did not take the name of the appellant but said that her aggressor was a Yadav. She further told that she know her aggressor by name and she used to see him frequently. But it is not entirely correct that she named the appellant for the first time before the trial Court. In her statement recorded by the Investigating Officer under Sec. 161 of the Code of Criminal Procedure, she had given him the name of the appellant as her aggressor. But it is not entirely correct that she named the appellant for the first time before the trial Court. In her statement recorded by the Investigating Officer under Sec. 161 of the Code of Criminal Procedure, she had given him the name of the appellant as her aggressor. The explanation for the appellants name not being mentioned in the statement under Sec. 164 of the Code of Criminal Procedure is not far to seek. From the materials on record, it appears that the appellant and the members of his group were far more stronger than the victims family and enjoyed much greater social influence. It is on the record that they intimidated the victims family and prevented them from going to the police for several days after the occurrence. It has also come in evidence that vehicle taking the victim for medical examination was intercepted and the victim and her mother were snatched away, from the arm of the law at the point of a gun. One also cannot lose sight of the fact that the girl was decapitated and had defective speech. In those circumstances, if she emitted to take the name of the appellant before the Magistrate eight days after the traumatic occurrence, no importance can be attached to that omission. 23. Mr. Verma then submitted that the evidence of Neelam Kumari, PW 8 was not reliable as there were many attempts to develop the prosecution case. It was submitted that she stated before Court that when she tried to raise hulla she was hit by the appellant by a piece of brick; that as the result of rape she became unconscious at the place of occurrence, that she started bleeding and her pants were torn and blood stained. Mr. Verma submitted that these statements amounted to development in the prosecution case as these were no part of the written report submitted to the police. I am not prepared to accept the submission and in my view it overlooks the fact that the written report submitted to the police was not made by the victim. The victim narrated the occurrence to her father and he got the written report prepared by his uncle as he himself could not write. I am not prepared to accept the submission and in my view it overlooks the fact that the written report submitted to the police was not made by the victim. The victim narrated the occurrence to her father and he got the written report prepared by his uncle as he himself could not write. The written report was, thus, a third hand narration of the occurrence and it is, therefore, understandable that it contained only the main event grasped by the writer of the report. 24. Mr. Verma further submitted that it was quite unnatural that the victim did not come across any co-villager or an independent person on her way from the orchard, the place of occurrence to her house and the first persons to whom she narrated the occurrence was her grand mother and her father whom she met only after reaching her house. I find nothing unnatural in the circumstance and it appears to me to be perfectly natural. The child after the trauma of rape would be in a state of daze and she would instinctively go to her home without stopping even for a moment on the way. Even if she came across any persons on her way, she would not stop and talk to them but rather go to her home and tell her immediate family members about the occurrence. 25. Mr. Verma them submitted that the evidence of the victim was not supported by the objective findings at the place of occurrence and the Investigating Officer had stated that he did not find anything unusual at the place of occurrence. It may be noted that the Investigating Officer himself said that he did not find anything unusual at the place of occurrence because he had gone there 6 to 7 days after the occurrence. 26. Mr. Verma next submitted that the case of rape was also not supported by the medical evidence. In my view, the less said about the injury report the better. It may be noted that PW 10, the grand mother of the victim said that she had abrasions on her entire back and on her buttocks. It may further be noted that in the memorandum forwarding the victim girl for medical examination, the police officer had stated that these were external injuries on her person and there was abrasion on her back. It may further be noted that in the memorandum forwarding the victim girl for medical examination, the police officer had stated that these were external injuries on her person and there was abrasion on her back. The doctor in her injury report failed even to notice and mention this injury which was noted by the police officer with naked eyes. 27. I am, therefore, sorry to state that the medical evidence in this case is wholly unsatisfactory and on that basis the evidence of the victim and the other prosecution witnesses cannot be discredited. 28. Having thus examined the materials on record and having considered the submissions advanced on behalf of the appellant, I am of the opinion that the charge of rape stand fully established against the appellant and the judgment of the trial Court warrants no interference by this Court so far as the appellants conviction is concerned. 29. Coming now to the question of sentence, it may be noted that the occurrence took place on 18.5.1987, that is to say, more than ten years ago. This appeal was admitted for hearing before this Court on 8.6.1988 At that time, the appellants prayer for bail was turned down but a year later he was directed to be released on bail by order dated 25.9.1989. He thus remained in jail for about 14 months during the pendency of this appeal before this Court. 30. Having regard to the long lapse of time, I am inclined to slightly reduce his sentence and accordingly his sentence is reduced to rigorous imprisonment for six years. The sentence of fine remain unmodified and in default of payment of fine, the appellant would undergo rigorous imprisonment for a further period of one year. 31. In the result, this appeal stands dismissed subject to the modification in the appellants sentence.