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2000 DIGILAW 1264 (PAT)

Rameshwar Beldar v. State of Bihar

2000-11-24

P.K.SINHA

body2000
JUDGMENT P.K. SINHA, J. This appeal is directed against the judgment, dated 7.11.1998 recorded by 9th Addl. Sessions Judge at Patna in Sessions Trial No. 318 of 1996 in which, having found the accused guilty of committing rape upon Rinku Kumari, a minor girl about 8 years old, on 3.2.1995, and, on hearing on sentence, sentenced him to undergo rigorous imprisonment for 10 years. 2. The case of the prosecution case, in brief, as coming out of the FIR, dated 4.3.1995 (Ext.2) lodged by Birjan Beldar, father of the victim girl, is that on 3.2.1995, Rinku Kumari had gone to the house of Lakshmi Beldar to viewing television but when she did not come back till 11 p.m., the wife of the informant came out to search her and found Rinku Kumari lying unconscious by the side of the road, her clothes drenched with blood which was oozing from her private part. In the morning, when she regained consciousness, on being asked she told that while she was returning home the appellant Rameshwar Beldar caught hold of her and took her to the field of one Mishraji and thereafter, closing her mouth with cloth, raped her and, thereafter, left her in the lane. The informant went to the field of Mishraji and found blood there. 3. After institution of the case, she was sent for medical examination and the report of the Doctor is Ext.3. Her clothes were seized vide seizure-list, Ext.1. 4. The plea of the accused in course of trial was false implication and the victim girl, PW 6, was also suggested that she had suffered injury, having fallen down. 5. Learned counsel for the appellant and the learned Additional Public Prosecutor have been heard. 6. The point for consideration is whether the prosecution by its evidence has been able to prove the charge against the appellant beyond reasonable doubts. 7. Learned counsel for the appellant in course of arguments submitted that though the occurrence was said to have been committed at about 11 p.m. on 3.2.1995, no one including any authority was intimated of the occurrence during the night. It was further submitted that the First Information Report was lodged on 4.2.1995 at 10.45 a.m., therefore, there was considerable delay in filing the same; hence, false implication could not be ruled out. 8. It was further submitted that the First Information Report was lodged on 4.2.1995 at 10.45 a.m., therefore, there was considerable delay in filing the same; hence, false implication could not be ruled out. 8. Commenting on the evidence, the learned counsel for the appellant submitted that PWs 1 to 5, including father of the victim girl were all hearsay witnesses and it was only PW 6, the victim girl, who came to support the prosecution case, further submitting that the Investigating Police Officer was not examined in the case as also the mother of the victim, who was most important witness. 9. Learned APP, on the other hand, submitted that in her evidence Rinku Kumari had fully supported the allegation which was further supported by evidence of PW7, Dr. Manika Sinha, who had examined the victim girl on 4.2.1995. 10. Coming to the evidence of witnesses, it is true that except the victim girl, no witness is an eye-witness to the occurrence which is but natural in a case of this nature. However, besides supporting the prosecution case they have also given valuable visual evidence. For example, PW 1 said that the informant had told him that white, Rinku Kumari was returning, the appellant had ravished her. This witness also said that he also saw Rinku Kumari and saw that her thigh and clothes were drenched with blood and then he with others took her to the police station from where he also accompanied the girl the hospital. 11. It may also be noted that this witness said that the police had not recorded his evidence. However, on this ground alone the statement of a witness cannot be held to be inadmissible in law, though his evidence in such a case h-as to be construed very carefully. His evidence of examination-in-chief, however, has not been shaken in the cross-examination rather he said that Rinku Kumari, on regaining conscious had taken the name of the appellant. 12. PW 2 is Sia Saran Beldar, who also supported that the next morning Rinku Kumari had told that in the night the appellant had taken her to the field of Mishraji and had raped her. He also saw the clothes and lower part of her body to be blood-drenched. He also had gone to the place of occurrence where he had found blood on the earth. He also saw the clothes and lower part of her body to be blood-drenched. He also had gone to the place of occurrence where he had found blood on the earth. His statement was taken by the police, and credibility of this witness also could not be shaken in the cross-examination. It may be noted that the defence in course of cross-examination did not suggest him any contradiction in his evidence when compared with the statement made before the police. PW 3, Ram Sewak Beldar has submitted that when he had gone to the place of occurrence, he found blood there and then he also accompanied the informant with others to the police station and the clothes were seized by the police on which he also had signed (Ext. 1 ). In cross-examination, he said that he had told the police that the field which was place of occurrence was being tilled by him on 'batai' and that he had seen blood there. However, the defence did not suggest that he had not made any such statement before the police. 13. PW 4 is the informant himself, who had supported what he had stated in the FIR saying that the clothes were torn with blood marks and he also saw blood in the field of Mishraji and the cauliflowers there trampled. He also said what the girl had told him and supported that he had seen blood oozing from private part of the girl. Thereafter, he also supported about the institution of the case and the girl having been sent to the hospital, as in FIR. He stated that he came to know about the girl in the morning at about 5.30-45 a.m. He also supported in cross-examination that the girl in the hospital was also X-rayed. In cross-examination, he also said that the police officer had come and had visited the place of occurrence with him. This witness also has withstood the test of cross-examination. 14. PW 5 is Brijani Jamadar, who also likewise has supported the prosecution case and has claimed that police had recorded his statement. He is the brother of the informant. In cross-examination, he said that he had told about the occurrence by his sister-in-law, niece and Rinku Kumari. His cross-examination is quite brief. 15. 14. PW 5 is Brijani Jamadar, who also likewise has supported the prosecution case and has claimed that police had recorded his statement. He is the brother of the informant. In cross-examination, he said that he had told about the occurrence by his sister-in-law, niece and Rinku Kumari. His cross-examination is quite brief. 15. PW 6 is victim herself and she supported that when she was returning after viewing the television from the house of Lakshmi Beldar this appellant caught her, closed her mouth and took her to the land of Mishraji where he laid her down and thereafter, ravished her (ejjat loot liya). She further said that he lifted her and left her in osara, further stating that the towel that she was wearing was drenched with blood which was also coming out from her private part. She also supported that she had told the story to others also naming Rameshwar Beldar. 16. Though the age of this girl was assessed to be 10 years at the time of recording her evidence, it will appear that she had given clear answers to the questions put to her in cross-examination. 17. However, in para 13, she said that the appellant has left her at osara and in the morning she found herself in the osara and also said that thereafter she was asked questions by her family members. But, there appears to be no infirmity in the evidence-of this important witness on the very point of the occurrence or the manner of occurrence. Despite one minor variation about her finding herself in the morning at osara it will appear that she has given her evidence quite credibly. 18. PW 7 is the Doctor. From the evidence of this Doctor and Ext.3 which is her report it will appear that on examination she found vulva to be blood stained and hymen to have been torn and also found bruise on labia minor with blood stained t discharge. She could not make deeper examination because of pain. She also found vaginal swab to be blood stained. On receipt of medical examination report spermatozoa was not found present. But, she gave opinion that there was vulval penetration and vagina was also partially penetrated. The evidence of this Doctor witness also supports the prosecution. She could not make deeper examination because of pain. She also found vaginal swab to be blood stained. On receipt of medical examination report spermatozoa was not found present. But, she gave opinion that there was vulval penetration and vagina was also partially penetrated. The evidence of this Doctor witness also supports the prosecution. No doubt spermatozoa was not found but for completing offence of rape it is not necessary that the rape itself should be completed to its bitter end, mere penetration is enough to constitute the offence. This penetration appears to have been proved from the evidence of the victim and also from the evidence of the Doctor. 19. On non-examination of the mother of the victim girl, on the basis of evidence of other witnesses including that of the victim the prosecution case cannot be thrown away on that score when the Court finds the evidence available on the record to be believable and credible. 20. Insofar as the non-examination of the Investigating Police Officer is concerned, only because the Investigating Police Officer was not examined will not be sufficient to disbelieve the prosecution case, though the benefit may accrue to the defence if it was shown that the defence was prejudiced by the non-examination of the Investigating Police Officer. 21. In this regard, insofar as the place of occurrence is concerned, in the evidence of witnesses, who had found blood stains at the spot where the victim said that she was raped, and from the evidence of the victim herself, it will appear that the place of occurrence has been established by evidence. 22. Non-examination of the Investigating Police Officer is not vital also because during cross-examination, no such contradiction have been taken from witnesses, from their statements given to the police which could have caused prejudice to the defence by non-examination of the Investigating Police Officer. 23. The defence has examined two witnesses. DW1 is Ram Beldar, who has simply said that there was differences between the two families and also said that no such rape had been committed upon Rinku Kumari, four years back. However, there is nothing in his evidence to show that the difference between two families were such so as to induce the informant to bring such a charge against the appellant involving his minor daughter. However, there is nothing in his evidence to show that the difference between two families were such so as to induce the informant to bring such a charge against the appellant involving his minor daughter. Insofar as his assertion that no such occurrence had taken place, that is negative evidence which has no value. DW 2 had proved Ext.4 which is school leaving certificate of the appellant in which his date of birth has been shown to be 9.12.1978. The date of occurrence in this case being 3.2.1995, the appellant obviously was not a juvenile on that date, so that he could be given any benefit under the Juvenile Justice Act. 24. Learned counsel for the appellant also submitted that the appellant is in custody since 5.2.1995. Though this submission may not result in reduction of the sentence but having undergone custody for the period as claimed by the learned counsel for the appellant, he would be entitled to the benefit of Section 428 of the Cr. PC. 25. It will appear that victim was quite young, and keeping in view, the offence committed by the appellant, I do not think that he deserves any leniency even in the matter of sentence. The appellant has been sentenced to undergo 10 years of rigorous imprisonment by the learned trial Court, which is proper. 26. In view of the aforesaid this appeal must fail. In the result, this appeal fails and is dismissed.