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2000 DIGILAW 1266 (PAT)

Suresh Bhar @ Rajendra Bhar v. State Of Bihar

2000-11-27

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. This is an appeal filed by convict Suresh Bhar @ Rajendra Bhar against his conviction under Sections 376, 366-A and 419 of the Indian Penal Code ("the Code" in short) for which offences he was sentenced to undergo rigorous imprisonment for 10 years, 7 years and 2 years, respectively which were aiso ordered to run concurrently in the judgment recorded by the Additional Sessions Judge, 3rd Court, Kohtas at Sasaram in Sessions Trial No. 715 of 1994 on 19.11.1998. 2. It will appear that by an order of this Court Sri Rajesh Kumar, Advocate, was allowed to appear on behalf of the appellant. Sri Rajesh Kumar and learned Addl. Public Prosecutor have been heard. 3. The allegation in brief, as coming out of Ext. 1/1, the first information report recorded by the victim girl Lali Kumari on 11.5.1994 before the police, was that on 6.5.1994 a person who claimed to be his cousin Uttam Prasad Bhar came and told her to accompany him on the ground that his wife was in family way for which her Phua had called her. The informant claimed that she was not identifying her cousin Uttam Bhar though she knew his name. The allegation further goes that she was, after she went with the accused, kept by the accused in a shop and was offered marriage and thereafter she came to a village with him where she met with her Phua, who identified her and she told to her everything. Her Phua told that Uttam Kumar, her son, was in the house itself and that his wife was not in family way after which the accused started claiming to be a relative, but the villagers caught him after which he revealed his name to be Rajendra Bhar. As per the informant, her age at that time as 14-15 years and she claimed that the appellant also had raped her. Thereafter the accused was brought to the police station, case was instituted and investigation started and, finally, charge-sheet was submitted and after trial accused was convicted and sentenced as aforesaid. 4. Learned counsel for the appellant has submitted following points : (i) No independent witness was examined, rather only interested witnesses, who were related to the girl were examined. Even the Investigating Police Officer was not examined. 4. Learned counsel for the appellant has submitted following points : (i) No independent witness was examined, rather only interested witnesses, who were related to the girl were examined. Even the Investigating Police Officer was not examined. (ii) That in the evidence of Uttam Bhar it has come that when the girl reached at the house, she stayed there for 3-4 days but the girl and the accused were made to sleep separately. (iii) That the place of occurrence of rape was not proved as no witness has been examined on that point, nor the Investigating Police Officer was examined in this case to prove the same. (iv) That PW 3, the informant Lali Kumari, herself had given contradictory statement. (v) That as per evidence of PW 3 and the doctor witness, PW 4, the offence of rape has not been substantiated. 5. The learned Addl. Public Prosecutor on the other hand supported the conviction and the sentences. 6. In so far as the conviction under Section 376 of the Indian Penal Code is concerned, I do not think that the prosecution by its evidence has proved that beyond doubts. Victim girl, PW 3 has fully described in her evidence as to how she had proceeded with the accused after leaving her house, after supporting as to how she was sent with the appellant. She said that she was brought to a place called Dinara where she was kept in a house and she claimed that the appellant there had raped her. She also said that at the police station the Police Officer had seized her petticot. However, this petticot has not been produced in the Court. During cross-examination in para 6 she was asked about the occurrence of rape in which she first said that when she was sleeping in the night, after half an hour the accused started raping her. But in the same breath she said that after sleeping the accused had not made any overt acts nor he had opened her blouse. She further said that the accused had opened her saya and sari. He firstly opened her sari for which she raised alarm for half an hour. Then she said that while appellant was removing her sari she sat down and assaulted him by fists and slaps. On hulla an old lady came. She further said that the accused had opened her saya and sari. He firstly opened her sari for which she raised alarm for half an hour. Then she said that while appellant was removing her sari she sat down and assaulted him by fists and slaps. On hulla an old lady came. She also said that no sooner the lady came, the accused left her alone and did not do anything with her and thereafter the old lady took her to her house and she stayed with the old lady for whole night. She also said that she did not tell the old lady about the occurrence. In para 7 she said that the next morning the accused took her away on a bus and after two hours they reached at village Natwar and from there he took her to relatives house where she met also Uttam and then she told about the occurrence. The next morning the accused was caught by the villagers. Thereafter the case was instituted. Not only the evidence of the most important witness on the point of rape creates doubt, but the doctor in her statement has stated, after considering ossification test that the girl was 16-17 years old, and that no injury on her body or mark of violence was found and her hymen was also found intact. In her opinion no rape was committed. In the first portion of the FIR this witness did not say that she was raped but only said that the appellant had proposed to marry with her and when she started crying he consoled her and thereafter in other village she met her Phua. It is towards the end of her narration that she only mentioned that she was also raped. 7. In view of the aforesaid evidence I am of the opinion that the prosecution has failed to prove the charge against the appellant under Section 376 of the Indian Penal Code beyond doubts and hold that accused, so far this offence is concerned, deserves acquittal. 8. In so far as the non-examination of the Investigating Police Officer is concerned, that can effect the prosecution case only if by his non-examination the defence has been prejudiced. Learned counsel for the appellant has submitted that the place of occurrence could not be proved in absence of evidence of Investigating Police Officer. 8. In so far as the non-examination of the Investigating Police Officer is concerned, that can effect the prosecution case only if by his non-examination the defence has been prejudiced. Learned counsel for the appellant has submitted that the place of occurrence could not be proved in absence of evidence of Investigating Police Officer. However, I have already found the allegation under Section 376 of the Code not to have been proved which was said to have been committed at a place called Dinara. In so far as the place of occurrence is concerned, for offence under Sections 366-A and 419 of the Code, the place of occurrence originated in the village of the victim girl where the appellant had gone impersonating as Uttam Prasad. This place of occurrence as well as the place where he was apprehended by the villagers have been proved by cogent evidence. Therefore, non-examination of the Investigating Police Officer will not be fatal to the prosecution case. 9. In so far as the non-examination of independent witness is concerned, no doubt that it was proper for the prosecution to examine independent witnesses but the ground realities now-a-days is that mostly the independent witnesses shy away from taking witness box for a variety of reasons, and if by evidence of those witnesses who may not be said to be independent, the prosecution case stands proved then, in my opinion, non- examination of such independent witness should not be held to have fatally effected the prosecution case. 10. However, in so far as the offence under Sections 366-A and 419 of the Indian Penal Code are concerned, I find that by evidence on record the prosecution has been able to bring him the charges. PW 1 Uttam Bhar, who also identified the accused in the dock in the Court, said that accused had come with the giri in his house but when he asked about relations he had faltered and since the parents had gone out of the village, he kept them in the house where the girl and the accused slept separately. He also said that the girl told him that this accused /appellant had posed as Uttam bhar and having so identified himself, he had brought her from her home. However, in cross-examination this witness also admitted non-acquaintance with the faces of his relatives. 11. He also said that the girl told him that this accused /appellant had posed as Uttam bhar and having so identified himself, he had brought her from her home. However, in cross-examination this witness also admitted non-acquaintance with the faces of his relatives. 11. PW 2 Phul Chand Bhar, father of the girl, has supported as to how this accused came there, identifying himself to be Uttam, a relative of his who was son of his brother-in-law (Sala), also stating that he had seen Uttam in his childhood and accepted this identification. He supported that his accused thereafter told that his wife was in family way after which he, her father, asked Lali Kumari to go with him. He further said that after a few days his brother-in-law came and asked him as to with whom he had sent his girl, further informing that the said boy had been sent to jail. He further said that, thereafter he accompanied the brother- in-law and came to village Natwar where his daughter narrated the story as to how she was brought to that village. 12. PW 3 the victim girl also has supported as to how she was taken away from her house by this appellant and how after moving several places she was brought in a house where she also claimed that she was raped. As seen, from her evidence, that allegation was not substantiated, rather this much was substantiated that he was attempting to remove her sari. This witness about her taken away or about moving to different localities, has given details in her evidence including in course of cross-examination. She also said as to how She reached the village of her relatives and exposed the accused and thereafter the case was instituted. 13. Learned counsel for the appellant has drawn my attention towards evidence of this witness in which she had denied to have said in FIR that a person who had identified himself as Uttam had come to her house and had told her to accompany her at which she got ready. However, she also said that she had given her statement before the police twice. She also said that at the time of occurrence she was not married. However, she also said that she had given her statement before the police twice. She also said that at the time of occurrence she was not married. She denied that she had not told the Daroga that when she came after grazing the goats, her parents told her about invitation through Uttam for attending his wife who was in family way. 14. This is slight contradiction in her statement. In the FIR she has said about accused telling her to come with him for the aforesaid purposes but her evidence is that he had told that to her parents who had sent her with him. 15. It has been proved by evidence that the victim was taken out from her house on the plea of the accused who had impersonated Uttam, as aforesaid, and reached the village of her relatives and exposed the story and thereafter the case was instituted. 16. In the statement of the victim this much had come that the appellant had tried to remove her clothes in the night and had made her to sleep with him on a chowki. Therefore, this evidence which appears to be credible as coming from the victim cannot be totally ignored in view of one difference in statement as to how the appellant had approached first when he had gone to her house posing as Uttam. Even the fact that he had tried to open her sari indicates his intention for which he had brought the girl after impersonating, and that would bring the case under Section 366-A of the Code. The doctor also found the girl to be a minor. In so far as conviction under Section 419 of the IPC is concerned, in view of the definition of cheating as given under Section 415 of the Indian Penal Code, in my opinion, offence under Section 419 of the Indian Penal Code stood proved as the appellant has been proved to have induced a girl to accompany her which act, as result of such inducement, was likely to cause damage or harm to the informant in body, mind and in her reputation. 17. In view of the aforesaid, conviction under Sections 419 and 366-A of the Indian Penal Code are upheld. 18. 17. In view of the aforesaid, conviction under Sections 419 and 366-A of the Indian Penal Code are upheld. 18. Coming on the sentence the learned counsel for the appellant has submitted that this accused in custody since 11.4.1994, thus he has already spent more than six years in custody. Since the charge under Section 376 of the Indian Penal Code has failed. I think that the sentence under Section 366-A of the Indian Penal Code for the period already undergone in custody will serve the ends of justice. The sentence under Section 419 of the Indian Penal Code is maintained. Both the sentences as awarded will run concurrently. 19. In view of the aforesaid, this appeal is allowed in part and conviction under Section 376 of the Indian Penal Code is hereby set-aside whereas conviction under Sections 366-A and 419 of the Code are hereby upheld but sentence under Section 366-A of the Code is reduced to the period already undergone in custody while maintaining the sentence under Section 319 of the Indian Penal Code, which both sentences are also ordered to run concurrently. 20. In the last this Court records its appreciation in the manner Sri Rajesh Kumar, Advocate has presented the case of the appellant which has been of good help to the Court.