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2000 DIGILAW 269 (PAT)

Magister Marandi v. State Of Bihar

2000-02-16

D.P.S.CHOUDHARY

body2000
Judgment D.P.S.Choudhary, J. 1. The sole appellant has preferred this appeal against the judgment and order dated 4.2.1996, passed by the Sessions Judge, Dumka, in Sessions Case No. 179 of 1994, convicting the appellant under Section 376, IPC and sentencing him to undergo rigorous imprisonment for 10 years. 2. The prosecution case in brief is that on 24.6.1994, at about 9 p.m., the victim lady Pramila Murmu, PW 5 was alone in her shop at Literacy Centre and it was raining. All of a sudden, the appellant Magister Marandi came inside her shop and caught hold of her. He threw her on the ground and committed rape forcefully. She raised alarm, on which her younger brother, Anil Murmu, PW 1 and her husband Malan Marandi, PW 2 arrived there. The accused-appellant fled away who was chased by them. Some villagers also assembled who were informed about the occurrence. Some of the villagers went to the house of the accused and after returned back, they told the informant that she may proceed with the case as she desires. Since it was night, the matter was reported to the police on the next day. On the fardbeyan of the informant, FIR was registered over which she gave her signature (Ext. 1). Her husband Malan Marandi also gave his signature on the FIR (Ext. 1/1). The victim lady was sent for medical examination. The doctor after examining her submitted the report (Ext. 3). After investigation charge-sheet was submitted and after commitment trial proceeded in the Court below. 3. The case of he defence is that he has been falsely implicated because of the land dispute. The appellant happens to be the nephew of the victim in relation and as such it is beyond imagination that he will commit the offence of rape with her aunt. 4. The prosecution, in all, examined 7 witnesses to prove its case, out of them PWs 1 and 2 are the brother and husband of the victim lady. They stated that on hulla they had arrived at the shop and they had seen the accused fleeing away. 4. The prosecution, in all, examined 7 witnesses to prove its case, out of them PWs 1 and 2 are the brother and husband of the victim lady. They stated that on hulla they had arrived at the shop and they had seen the accused fleeing away. They had also chased the accused, but he fled away inside his house PW 2 stated that on the same night some villagers were called and they went to the house of the accused to enquire about the occurrence and after some time they returned back and asked her to proceed in the case as she desires. On the next day, he went to the police station along with his wife, where her statement was recorded. He stated that in his presence his wife handed over her Saya to the Investigating Officer, which contained whitish stains. The I.O. had prepared the seizure-list (Ext.2),over which he had signed. He further stated that in the morning at about 8 a.m., when he went to the police station, the Officer In-charge was reluctant to institute the case and thereafter, he met the higher officers including the Superintendent of Police on the same day and on their direction the police instituted the case. In cross-examination, he denied the suggestion that he had land dispute with the accused. PW 3, Sukku Marandi, stated that he was called at the shop of PW 5, where he learnt about the occurrence. Thereafter, he along with some villagers went to the house of the accused. In cross-examination, he stated that he had not seen the accused fleeing away from the shop of the informant. PW 5, Parmila Murmu is the informant and the victim lady. She stated that on 24.6.1994 at 9 p.m., when she was at the shop, the accused came inside the shop and forcibly committed rape on her and thereafter, he fled away. On alarm, her brother and husband came and both of them chased him, but he could not be caught. She also supported the evidence of her husband that some villagers went to the house of the accused, but returned back and told her to lodge the case with the police. She stated that on the next day, she went to the police station along with her husband and thereafter, she went to the office of the Superintendent of Police. She also supported the evidence of her husband that some villagers went to the house of the accused, but returned back and told her to lodge the case with the police. She stated that on the next day, she went to the police station along with her husband and thereafter, she went to the office of the Superintendent of Police. She further stated that she had handed over her Saya containing whitish stains at the police station. PW 6 Sunil Murmu is another brother of the victim lady who had arrived at the place of occurrence on hulla and had seen the accused fleeing away from her shop. He had chased the accused along with his brother and the husband of victim lady. 5. PW 4, Dr. Merry Jhelmo Das is the lady doctor who examined the victim lady on 26.6.1994. In her opinion, after examining the X-ray plate, the victim lady was aged about 20 years. She has come to the conclusion that no definite opinion could be given whether rape was committed or not. She has not found any external or internal injury on her person. On pathological examination of swab, no spermatozoa was found. PW 7 is the Investigating Officer. He stated that the victim lady PW 5 had handed over her Saya to him which contained whitish stains and that was seized in presence of the witnesses. He prepared the seizure-list. He sent the victim lady to hospital for medical examination. He visited the place of occurrence which is a shop and there is also a room adjacent to the shop. On the basis of the evidence discussed above, the trial Court came to the finding that the offence of rape committed by the accused-appellant on the prosecutrix has been proved beyond all reasonable doubts and accordingly convicted him as indicated above. The trial Court has come to the finding that there is no evidence on the record to show that there was any land dispute in between the parties. It has further come to the conclusion that there was no reason for the prosecutrix, who happened to be aunt of the accused in relation, to falsely implicate him. 6. Learned counsel for the appellant has submitted that the prosecution has not been able to substantiate the charge of rape beyond all reasonable doubts. It has further come to the conclusion that there was no reason for the prosecutrix, who happened to be aunt of the accused in relation, to falsely implicate him. 6. Learned counsel for the appellant has submitted that the prosecution has not been able to substantiate the charge of rape beyond all reasonable doubts. The evidence of the doctor does not support the prosecution case as the lady doctor has not found any sign of rape on her and no external or internal injury was found on the victim lady. In normal course a grown-up lady like the prosecutrix, if resisted at the time of commission of rape, must have received some external injury on her person. Absence of any such injury on her person belies the commission of rape, muchless, a forceful rape on her. In reply, learned APP submitted that the lady doctor, PW 4 stated that she was not in a position to give any definite opinion whether rape was committed or not. It is true that no external or internal injury was found on her person. Admittedly, the lady was married having children. She was examined after two days of the alleged crime and as such it was possible that the doctor could not find any definite sign of rape. She being a married lady was habitual to sexual intercourse. Learned APP submitted that in several decision, the Apex Court has held that it is not essential in each and every case that medical evidence should corroborate the evidence of the victim lady, if otherwise the evidence of the lady appears to be cogent and reliable. Even in absence of medical evidence, prosecution case is to be relied upon the sole testimony of the prosecutrix. In this case, the victim lady is the aunt of the accused in relation. There is no enmity in between the parties from before. As such, there is no reason for the lady to falsely implicated the accused who is her nephew, in relation, at the risk of her own prestige and that of the entire family. In ordinary course, a woman is always shy in reporting the matter of rape to the police and if after great courage one goes to the police station to report the matter of rape, there is no reason to disbelieve her evidence. In ordinary course, a woman is always shy in reporting the matter of rape to the police and if after great courage one goes to the police station to report the matter of rape, there is no reason to disbelieve her evidence. Her evidence is like evidence of an injured witness, which does not require any corroboration. Learned APP further submitted that in her evidence the lady has stated that her bangles were not broken at the time of commission of rape. she has not said that she received any bruises or injury on her body, while protesting at the time of commission of rape. As such, the lady doctor has right not found any external injury on her person. Learned APP further submitted that PWs 1, 2 and 6 are the brothers and husband of the victim lady who arrived at the place of occurrence on hulla and they had seen the appellant fleeing away from the scene. Only because they are the relations of the victim lady, their evidence should not be discarded altogether. In such cases evidence of the family members has to be considered like that of an independent witness because when an offence of rape is committed inside the room, there is no chance of presence of any other witness. In most of the cases, family members arrive at the place of occurrence at the cry of the victim, as happened in this case. As such, these witnesses are competent and reliable on the point that they had seen the accused fleeing away from the place of occurrence. 7. Learned counsel for the appellant submitted that the husband of the victim lady had stated that other villagers also assembled at the place on hearing hulla and they were told about the occurrence. They also visited the house of the appellant and thereafter told the victim lady that she may institute the case with the police, but none of them have been examined in this case as a witness. From the perusal of the charge-sheet, it appears that none of these witness have been cited in the column of witness and only five witness have been named and they all have been examined on behalf of the prosecution. As such I find no substance in this contention of the counsel for the appellant. Seizure-list, Ext. From the perusal of the charge-sheet, it appears that none of these witness have been cited in the column of witness and only five witness have been named and they all have been examined on behalf of the prosecution. As such I find no substance in this contention of the counsel for the appellant. Seizure-list, Ext. 5, shows that clothes with semen stains were seized by the I.O. including the Saya of the victim lady. It was submitted that the Saya has not been produced as a material exhibit nor it was sent for chemical examination by the expert. This is an omission on the part of the prosecution, but on this lacuna, the evidence of the other witnesses discussed above are not to be disbelieved. 8. Learned counsel for the appellant submitted that appellant is a young man and a relation of the prosecutrix. He is the sole earning member of his family. He has remained in jail since 26.6.1994 and has not been allowed bail either by the Court below or by the High Court. He prayed that a lenient view may be taken in awarding the sentence. 9. Heard learned APP. In the facts and circumstances of the case and considering the relationship of the accused with the victim lady and also his age, the period of sentence of 10 years R.I. is reduced to the period already undergone by him in custody. 10. With the above modification, this appeal is dismissed. The jail authorities are directed to release the appellant forthwith, if not wanted in any other case.