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2000 DIGILAW 1105 (PAT)

Sukhdeo Bhuiyan v. State Of Bihar

2000-09-13

ASHOK KUMAR VERMA

body2000
Judgment Ashok Kumar Verma, J. 1. The sole appellant Sukhdeo Bhuiyan has preferred this appeal against the judgment and order of conviction and sentence dated 26.4.1995 passed in ST. No. 13 of 1992 by the Sessions Judge, Hazaribagh whereby learned Sessions Judge has convicted the accused-appellant under Secs. 376 and 379 of the Indian Penal Code and sentenced him to undergo R.I. for seven years under Secs. 376 of the Indian Penal Code and R.I. for one year under Sec. 379 of the Indian Penal Code. The sentences are to run concurrently. 2. In short, the case of the prosecution is that on 17.7.91 the informant Kapur Devi, wife of Dina Mahto had gone to South West of the village Bonga to put her cattle there. When she was returning from there at about 1.30 to 2.00 p.m. and passing through a maize field, accused Sukhdeo Bhuiyan alias Bhairo Bhuiyan asked her to stop there. But, she did not stop on which accused Sukhdeo Bhuiyan caught her hand and thrashed her on the ground in the maize field and raised her saree and saya and committed rape on her and left her after half and hour when his semen was discharged. The accused also took away some ornaments of the informant. As it was raining, there was no one in the Badhar. The informant went to her house and narrated about the occurrence to her Gotni who told about it to her (informant) Bhainsur and the people of the village were informed about the occurrence. The Bhainsur of the informant and villagers caught the accused Sukhdeo Bhuiyan and brought him to Bonga village. Fardbeyan (Ext. 2) of the informant was recorded by A. Ali, Sub-Inspector of Police, Ichak P.S. in Bonga village on the same day (17.7.1991) at about 3.10 p.m. On the basis of the fardbeyan formal F.I.R. (Ext. 3) was drawn in this case. After investigation, police submitted charge-sheet under Secs. 376 of 379 of the Indian Penal Code against the accused Sukhdeo Bhuiyan alias Bhairo Bhuiyan. The Chief Judicial Magistrate took cognizance of the case and committed it to the Court of Sessions for trial. 3. The defence of the accused, according to trend of the cross-examination of the prosecution witnesses, is that he has been falsely implication in this case. 4. The Chief Judicial Magistrate took cognizance of the case and committed it to the Court of Sessions for trial. 3. The defence of the accused, according to trend of the cross-examination of the prosecution witnesses, is that he has been falsely implication in this case. 4. It was argued by the learned Counsel or the appellant that the informant Kapur Devi has been examined in this case as P.W. 1 and in her cross-examination, she has said that she had not identified the accused and she has given a go-bye to her evidence recorded earlier. The contention of the learned Additional P.P. was that the defence had recalled this witness for drawing her attention to her statement under Sec. 164, Cr.P.C. which would appear from the order sheet of the trial Court dated 5.7.94. It was also submitted by the learned Additional P.P. that it appears that the subsequent statement of P.W. 1 Kapur Devi was obtained by the defence by pressurising her or by other means. 5. In this case, five witnesses have been examined on behalf of the prosecution. P.W. 4 is Dr. Kalpana Sharan. She has stated that on 17.7.91 while she was posted as lady Civil Assistant Surgeon, Sadar Hospital, Hazaribagh, she had examined Kapur Devi wife of Dina Mahto of village Bonga, P.S. Ichak, Dist. Hazaribagh. According to her, no injury over her body or private part was found. She has stated that vaginal smear examination showed that spermatozoa not found. In her (P.W. 4) opinion as there was no injury over the body or on the private part and no spermatozoa was found in her vaginal smear examination, so definite opinion about rape cannot be given. Ext. 1 is her report. She has said in her cross-examination that the girl seems to be accustomed to sexual intercourse. It was submitted by the learned Counsel for the appellant that the medical officer has not said that rape was committed on her. P.W. 4 Dr. Kalpana Sharan has stated that as there was no injury over the body or on the private part and no spermatozoa was found in the vagina smear examination, so definite opinion about rape cannot be given. It was submitted by the learned Addl. P.W. 4 Dr. Kalpana Sharan has stated that as there was no injury over the body or on the private part and no spermatozoa was found in the vagina smear examination, so definite opinion about rape cannot be given. It was submitted by the learned Addl. P.P. that the FIR shows that it had rained on that day and the occurrence had taken place in a maize field and so there cannot be any injury on the body the victim lady. The contention of the learned Addl. P.P. appears to be tenable in the facts and circumstances of the case. The prosecution case cannot be brushed aside on the ground that the doctor has not given any definite opinion about commission of rape. 6. P.W. 2 Jayanti Devi has stated that her gotni Kapur Devi had told her that Sukhdeo Bhuiyan had committed rape on her in maize field and had taken her ornaments. According to P.W. 3 Jagdish Mahto also, Kapur Devi had told him that accused Sukhdeo Bhuiyan had committed rape on her and had taken her ornaments. So there two witnesses (P.Ws. 2 and 3) have stated what they had learnt from Kapur Devi. 7. P.W. 1 is Kapur Devi, the informant of this case and the victim lady. She has stated that when she was returning to her house at 1.30 p.m. and had reached near the maize field of Bedo Mahto, accused Sukhdeo Bhuiyan caught her and raised her saree and thrashed her on the ground and committed rape on her and thereafter Sukhdeo Bhuiyan snatched her ornaments. She has stated her accused Sukhdeo Bhuiyan is her villager and she recognises him. According to her, she returned to her house after the occurrence and told her Gotni Jayanti Devi about it. Jayanti Devi (P.W. 2) has supported her evidence that Kapur Devi had told her about the occurrence. She (P.W. 1) has stated that daroga had come to her village and recorded her statement and read it over to her and she had put her thumb impression on it. P.W. 5 is Asfaque Ali, Sub-Inspector of Police, who is Investigating Officer of the case. He has stated that on 17.7.91 he has posted in Ichak P.S. and on that day he had recorded fardbeyan (Ext. 2) of Kapur Devi. P.W. 5 is Asfaque Ali, Sub-Inspector of Police, who is Investigating Officer of the case. He has stated that on 17.7.91 he has posted in Ichak P.S. and on that day he had recorded fardbeyan (Ext. 2) of Kapur Devi. He has said that he took further statement of the informant and sent her to Sadar Hospital for medical examination and arrested the accused on the same day. He has further said that he inspected the place of occurrence which is a maize field and he had found the maize crop trampled there. According to the prosecution accused Sukhdeo Bhuiyan had committed rape on Kapur Devi the informant of this case in the maize field. So, the fact that the Investigating Officer (P.W. 5) had found the maize crop trampled there supports the case of the prosecution and the evidence of P.W. 1 Kapur Devi, the informant of this case. P.W. 1 was examined as a witness in the trial Court on 18.8.1992. On recall by defence she was further examined on 3.9.1994, i.e., after about 2 years of her evidence, recorded in the trial Court on 18.8.1992. She has said in her further cross-examination on recall by defence that she does not identify the accused and no one had told his name to her. She has also said in her further cross-examination on recall that the accused who is present in Court had not committed rape on her. The contention of her learned Counsel for the appellant and the Addl. P.P. have already been mentioned above. P.W. 1 Kapur Devi has said in her evidence recorded on 18.8.92 the accused Sukhdeo Bhuiyan is her villager whom she recognises and she had identified her also in the trial Court. P.W. 2 Jayanti Devi who was examined as a witness in the trial Court on 18.8.92 has said in her evidence that Kapur Devi had told her that Sukhdeo Bhuiyan had committed rape on her. P.W. 3 Jagdish Mahto who was examined as a witness in the trial Court on 2.9.92 has also said that Kapur Devi had told him that accused Sukhdeo Bhuiyan had committed rape on her and taken her ornaments. In the facts and circumstances, it cannot be inferred from the further cross-examination of P.W. 1 Kapur Devi on recall by defence that the accused has not committed the offences as alleged. 8. In the facts and circumstances, it cannot be inferred from the further cross-examination of P.W. 1 Kapur Devi on recall by defence that the accused has not committed the offences as alleged. 8. The evidence of P.W. 1 Kapur Devi, the informant of this case and the victim lady, recorded on 18.8.92 in the trial Court is corroborated by the evidence of P.W. 2 Jayanti Devi and P.W. 3 Jagdish Mahato and P.W. 5 Asfaque Ali, Sub-Inspector of Police who is Investigating Officer of the case. P.W. 5 Asfaque Ali has said that he had inspected the place of occurrence which is a maize field and he had fond the maize crop trampled there. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused-appellant Sukhdeo Bhuiyan has committed the offences as alleged. Therefore, the judgment and order of conviction passed by the learned Sessions Judge, Hazaribagh under Sec. 376 and 379 of the Indian Penal Code is confirmed. The date of occurrence of this case is 17.7.1991 and so it is more than nine years since then. In view of the facts that this case was instituted more than nine years back and the accused has been under shadow of the case for a long time and in view of the facts and circumstances of the case, sentence of R.I. for four years under Sec. 376 of the Indian Penal Code will meet the ends of justice. Therefore, the sentence of accused Sukhdeo Bhuiyan under Sec. 376, I.P.C. is reduced to rigorous imprisonment for four years. The sentence passed under Sec. 379, I.P.C. is confirmed. 9. With above modification in the judgment and order of conviction and sentence, this Criminal Appeal is dismissed. 10. The accused-appellant is on bail. His bail-bond is cancelled and he is directed to surrender in the Court of Sessions Judge, Hazaribagh forthwith to serve out the sentence. The Sessions Judge, Hazaribagh will also take all necessary steps in this regard.