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2000 DIGILAW 457 (PAT)

Kapoor Barla v. State Of Bihar

2000-03-24

A.K.SINHA

body2000
Judgment A.K.Sinha, J. 1. The sole appellant, namely, Kapoor Barla has preferred this appeal against the order of conviction and sentence passed against him in S.T.No. 486 of 1995 which was tried along with S.T. No. 157 of 1996 whereby the appellant was held guilty for committing offence under Section 376(1) of the Indian Penal Code read with Section 342 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of seven years under Section 376(1) of the Indian Penal Code and rigorous imprisonment for a period of six months under Section 342 of the Indian Penal Code by VIth Additional Judicial Commissioner, Ranchi. 2. The relevant facts concerning this appeal, according to the FIR. (Ext.3), are that on 23.3.1995 the informant, Dulari Barla along with her friend Julita Karketta both aged about 15 years had gone to Jaria Mela and both of them left Jaria Mela at 3.30 p.m. for their home. When the informant and Julita Karketta reached to Hulus Garaha Toli, it was about the sun-set time where the appellant and co-accused, Jitan Manjhi surrounded both the girls being armed with dagger and the appellant, Kapoor Barla caught the arm of the informant, whereas, accused Jitan Manjhi caught hold of the arms of Julita Karketta by showing dagger. Both the accused took the informant and her friend towards Mahugaon Bazar Tand. It is alleged that at about 8 p.m., the appellant, Kapoor Barla, committed rape on the informant by showing a dagger to her in a thatched house situated in Mahugaon Bazar Tand, whereas, the accused Jitan Manjhi committed rape in similar way with Julita Kerketta. It is further alleged that the appellant was threatening the informant to kill her in case she raised alarm and by giving fear to her, he kept her detained for the whole night and committed rape with the informant thrice. It is also alleged that accused Jitan Manjhi also committed rape thrice with Julita Karketta in course of the night and in the morning both the accused again threatened to the informant and her friend not to disclos the matter to anybody, failing which they will be done to death and both the victim girls returned back home. It is stated that due to fear, the informant and her friend, Julita Karketta did not disclose about the occurrence to anybody and washed their cloths. It is stated that due to fear, the informant and her friend, Julita Karketta did not disclose about the occurrence to anybody and washed their cloths. After two days the informants brother Rajendra Barla, who had gone out, returned back home and learnt about the incident from the villagers and he enquired about the occurrence from the informant and her friend and at first the informant hesitated to disclose about the occurrence to her brother but on much pressure given by her brother. She spoke the truth and thereafter on 3.4.1995 the informant was taken to Lapung police Station, where she gave her Statement and FIR of the present case was lodged under Sections 341, 342 and 376/34 of the Indian Penal Code against the appellant and his associate, namely, Jitan Manjhi and the police took up the investigation into the matter and submitted the charge-sheet in the case under Sections 323, 342 and 376/34 of the Indian Penal Code against the appellant and co-accused, Jitan Manjhi, on the basis of which, cognizance was taken and the case was committed to the Court of session for trial. Ultimately, the case was transferred to the file of VIth Additional Sessions Judge, who delivered the judgment and passed the impugned order of conviction and sentence against the appellant but acquitted the accused Jitan Manjhi of the charges. 3. The accused persons were charged under Sections 342 and 376(2) of the Indian Penal Code by the learned Court below. Both the accused persons facing trial pleaded not guilty to the charges and claimed to be tried and their defence was that of denial simplicitor. 4. It may be pointed out here that co-accused Jitan Manjhi had absconded earlier and so at first the case of the appellant was committed to the Court of sessions vide S.T. No. 486/95, but later on the absconding co-accused Jitan Manjhi also appeared in the Court and his case was also committed to the Court of sessions Vide S.T. No. 157/96 and since both the cases arose out of the same cause of action hence, the trial of both the cases was amalgamated and the learned Court below passed the common judgment in respect of both the cases. 5. 5. It appears from the suggestion given by the defence that the prosecutrix Dulari Barla (PW 2) and the appellant Kapoor Barla wanted to marry each other but the brother of the informant, Rajendra Barla was not ready for their marriage and hence at the instance of Rajendra Barla, the appellant is said to have been falsely implicated in the case. 6. Being aggrieved with and dissatisfied by the impugned judgment as well as the order of conviction and sentence recorded by the learned Court below the present appeal has been filed on the ground that the learned Court below has committed grave error in convicting the appellant without properly appreciating the facts and circumstances of the case and as such the order of conviction and sentence recorded by him are liable to be set aside. 7. I have already stated above that the accused Jitan Manjhi has been acquitted of the respective charges framed against him, so it remains to be seen as to whether the prosecution has been able to prove the respective charge against the appellant as found by the learned trial Court. 8. The prosecution has examined altogether nine witnesses in this case, out of which PW 1 Dr. (Mrs.) Rita Lal had examined the informant at Sadar Hospital Ranchi on 4.4.1995 at 10.35 a.m. 9. PW 1 has proved the injury report (Ext. 1) and has deposed that on the basis of finding recorded by her, she did not find any sign of rape and the opinion regarding the age of prosecutrix was kept reserved till receipt of the X Ray report but it appears that no definite opinion could be given by PW 1 regarding the age of the informant but so far as the age of the prosecutrix is concerned, she was examined in Court on 9.7.1996 and her age recorded as 16 years. In the FIR which was recorded on 3.4.1995, the informant claimed herself to be the age of 15 years and hence there is no dispute regarding the age of the informant and in all probability it has to accepted that on the date of the occurrence the informant was aged about 15 years and was a minor. In the FIR which was recorded on 3.4.1995, the informant claimed herself to be the age of 15 years and hence there is no dispute regarding the age of the informant and in all probability it has to accepted that on the date of the occurrence the informant was aged about 15 years and was a minor. Even on the date of her examination i.e. 9.7.1996 the Court assessed her age as 16 years and hence on that date also she must be held to be a minor girl aged about 16 years. 10. The main important witness in this case is PW 2 Dulari Barla, who is the informant, and the victim girl of the present case. She has fully supported the prosecution story as detailed above by stating categorically that the accused-appellant took her to a thatched house by showing dagger where the appellant committed rape with her thrice and threatened her to kill. She has further stated that the appellant released her in the morning by giving threat that if she disclosed about the alleged occurrence to anybody then she will be killed. Similar threat was also given to other victim of the case namely Julita Karketta. PW 2 has further stated that her friend, Julita Karketta also disclosed to her that the accused Jitan Manjhi committed rape with her thrice during the course of the whole night. The subsequent part of the story as to under what circumstances she did not disclose about the occurrence to anybody, she has candidly stated that since accused had given threat to her, she and Julita Karketta were tight-liped till her brother Rajendra Barla came and learnt about the occurrence from the villagers and presurrised her to tell the truth and accordingly she confessed the truth to him and thereafter he took her to police station where she gave statements to the police and on the following day she along with Julita Karketta were sent to Sadar Hospital for medical examination and after medical examination was over they were taken to Court for giving statements before the Magistrate and accordingly she gave her statement before the Magistrate without any influence or fear of anybody. She further stated that the Magistrate recorded her statement which was read over and explained to her and she put her signature on the statement recorded by the Magistrate and has proved her signature on the FIR which has been marked Ext-2 and she also proved the signature of her friend Julita Karketta on FIR which has been marked as Ext. 2/1. PW 2 identified both the accused person. 11. Before evaluating the evidence of PW 2 Dulari Barla, it must be kept in mind that she is a tribal girl aged about 16 years on the date of her examination in Court. It has also to be kept in mind that in a case of rape of such nature the evidence of the prosecutrix has to be considered with great caution. The prosecutrix is a minor girl coming from the tribal belt and Court cannot be swayed by any loose statement made by PW 2 and her evidence has to be taken into consideration as a whole in order to find out the truth. 12. I find that PW 2 has been cross-examined at length and she has replied to each and every question put to her on each and every point and she fully stood the test of the cross-examination without being shaken and in fact if her evidence is read as a whole nothing has been elicited in her evidence so as to render her version unworthy of placing credence to. The defence has tried to make capital of her statement made in para 31 of her cross-examination where PW 2 emphatically denied that her mother and brother were not willing to perform her marriage with the appellant. She has further stated that her mense started three years ago and she does not understand the meaning of the word SAMBHOG or BYAVICHAR but she understands the meaning of BALATKAR. In reply to another question PW 2 has stated that she has not been raped after commencement of menstruation. I may quote her statement verbatim which is as follows: (LOCAL LANGUAGE) 13. In reply to another question PW 2 has stated that she has not been raped after commencement of menstruation. I may quote her statement verbatim which is as follows: (LOCAL LANGUAGE) 13. The learned defence counsel making capital of aforesaid loose statements made by PW 2 strongly argued before me that PW 2 has admitted by making the aforesaid statement that no rape was committed with her after commencement of menstruation which took place three years before so the question of committing rape by the appellant, Kapoor Barla, does not arise and the aforesaid statement alone falsifies the prosecution case. 14. The learned Court below has found that the aforesaid statement made by the PW 2 cannot demolish the entire evidence and he was of the view that this witness meant to say that apart from the alleged occurrence she was never subjected to rape by anybody. I have already stated above that the evidence of the informant PW 2, who is a tribal girl of minor age, has to be read as a whole and if the evidence of PW 2 is read as a whole without being swayed by the loose statements made by her as referred to above, it would appear that in para 33 of her evidence PW 2 has emphatically denied that the prosecution case was lodged on being pressurised by her brother and that she has falsely implicated the appellant. Similar denial has been made by her in para-31 of her evidence that the statement was made by PW 2 that she is capable of having menstruation. It is true that in one breath PW 2 has admitted that she understands the meaning of rape (Balatkar). In reply to a separate question put to her she has admitted that her menstruation started three years ago and in reply to another question she has made the aforesaid statement that no rape was committed after her menstruation started which may mean that she is referring to the last menstruation and has stated that since after commencement of the last menstruation no rape has been committed with her. I have already stated above that since the informant is a tribal girl it appears that by jugglery of words by confusing the informant, the defence has been able to obtain such statement as referred to above and wants to make capital of the same in the defence of the accused. The statement made by PW 2 in para-31 is that she is capable of having menstruation as narrated above and if the entire evidence of PW 2 is taken into consideration, it would appear that her statement on the point of the commission of rape with her thrice during the alleged night of the occurrence has virtually remained undemolished. 15. In this case I may refer to the statement of PW 2 recorded under Section 164 of the Code of Criminal Procedure (Ext. 4) by PW 9. Shahid Khan, Judicial Magistrate, Ranchi, where PW 2 stated on oath after lodging of the FIR that the appellant had surrounded her near Hulus Garaha Toli and her friend Julita Karketta was also surrounded and after giving fear of life, the appellant and his friend took them near Mahugaon Barka Toly where both of them committed rape and had inter course in the night. She has specifically stated that the appellant raped with her thrice in course of night. PW 9 Shahid Khan, Judicial Magistrate has proved the signature of PW 2 and her statement which was recorded under Section 164, Cr PC and deposed that he recorded statement of PW 2 as made by her and he has also stated about recording of statement of Julita Karketta with which I am not concerned at this stage. From the evidence of PW 9, it appears that he correctly recorded the statement of PW 2 under Section 164, Cr PC. It would, therefore, appear that soon after lodging of the FIR. PW 2 was produced before the Magistrate where her statement was recorded under Section 164 and she also categorically stated about the commission of the rape with her by the appellant in the manner alleged in the FIR and as such it transpires by reading the evidence of the PW 2 as a whole as also from the statement of PW 2 recorded under Section 164, Cr PC that the statement on the point of the commission of rape with her is consistent and worth relying. Simply because in para 31 of her evidence loose statement was made by her, her independent evidence being consistent and reliable cannot be disbelieved. It must be held that either she made statement in para-31 of her evidence due to certain confusion or the statement meant that after commencement of last menstruation no rape was committed with her and that is exactly she meant by her aforesaid statement and by no stratch of imagination, it can be conceived that while making such statement, PW 2 meant that three years ago no rape was committed on her but she gave consistent evidence regarding commission of rape with her and stood the test of cross-examination which was done in detail. 16. I, therefore, find from the evidence of PW 2 that her evidence on the point of commission of the rape with her by the appellant is quite natural, consistent, reliable and worth placing credence to. 17. PW 3 is another victim girl, Julita Karketta, who was declared hostile by the prosecution and it appears that she did not support in her evidence that rape was committed on her by Jitan Manjhi. The learned Court below acquitted him of the charges. It appears from her evidence that she has given false statement belatedly even to the extent of denial that her statement under Section 164, Cr PC was recorded by the Magistrate although the facts remain that PW 9 Shahid Khan Judicial Magistrate, Ranchi testified that he recorded the statement of PW 3 and had also proved her signature on her statement which is Ext-2/3 and had also proved her statement. It would, therefore, appear that PW 3 has been completely gained over by the accused and that is why she suppressed the truth and falsely stated in the Court. As such, statements made by her in Court cannot he accepted or relied upon. 18. It would, therefore, appear that PW 3 has been completely gained over by the accused and that is why she suppressed the truth and falsely stated in the Court. As such, statements made by her in Court cannot he accepted or relied upon. 18. PW 4, Rajendra Barla is the brother of the informant (PW 2), who is not eye-witness of the alleged occurrence, has been examined to say that on the date of the occurrence i.e. 23.3.1995 he was out from the village and when he returned after one week he learnt from the villagers that the appellant and Jitan Manjhi committed rape with his sister and Julita Karketta by showing dagger and so he enquired from Dulari Barla who admitted about the commission of rape after being pressurised to tell the truth and another victim, Julita Karketta also admitted about the commission of rape by accused Jitan Manjhi and thereafter he tool them to Lapung P.S. on 3.4.1995 where the statement of Dulari Barla was recorded by the police and FIR was lodged on which he along with his sister put signature having understood the contents of the FIR. 19. There is nothing worth comment in the evidence of PW 4, who is not an eye-witness whose version cannot be accepted. 20. PW 5 Biswanath Singh is the officer incharge of Lapung police station who recorded the statement of informant, Dulari Barla and has stated that he recorded the statement of PW 2 in presence of Julita Karketta and Rajendra Barla and he read over the contents of the FIR. to them and thereafter Dulari Barla put her signature on the FIR (Ext. 2). Julita Karketta and Rajendra Barla also put their signature on the FIR as witness which have been marked as Exts. 2/1 and 2/4. He has also deposed that the investigation of his case had been entrusted to Braj Kishore Singh (PW 8) and after his transfer the case was handed over for investigation to S.I. Ajay Kumar Verma (PW 7). In his cross- examination this witness has stated that he had only recorded the statement of Dulari Barla and lodged the FIR. where as, in his deposition he has denied that Dulari Barla had not used the words BALATKAR and SAMBHOG and Dulari Barla had not given any statement, rather, he has stated that PW 4 had made such statement. 21. PW 6 Dr. where as, in his deposition he has denied that Dulari Barla had not used the words BALATKAR and SAMBHOG and Dulari Barla had not given any statement, rather, he has stated that PW 4 had made such statement. 21. PW 6 Dr. (Mrs.) Rita Lal has been examined as PW 1 has deposed about the medical examination of Julita Karketta, so, there is no necessity to discuss about her evidence which is not relevant for the purpose of this appeal as Julita Karketta has been declared hostile. 22. PW 7 Ajay Kumar Verma is one of the Investigating Officers to whom further investigation of this case was entrusted and he simply submitted charge-sheet in the case against the appellant and accused Jitan Manjhi. So there is nothing worth comment in his testimony. 23. PW 8 is another Investigating Officer to whom the charge of investigation was given at the first instance and he has stated that he had recorded further statement of Dulari Barla and Julita Karketta after the case was instituted and he inspected the place of occurrence which is a shop of one Shahid Mian where the appellant had committed rape on the informant. 24. PW 8 has also described another place of occurrence where Julita Karketta was raped which is the shop of Tetu Sahu and these two shops are situated at a distance of 20 yards from one another. PW 8 has further stated that on 4.4.1995 he brought both the victim girls to Ranchi for their medical examination and after completion of their medical examination, he sent them before the Magistrate for recording the statement under Section 164, Cr PC and returned to the police station. The attention of PW 8 was drawn to certain statements made by Julita Karketta and PW 8 has stated about the statements made by Julita Karketta which she denied in her (Julita Karketta) evidence. There is nothing else in the deposition of PW 8. 25. Learned counsel appearing for the appellant, however, argued before me that on the same day medical examination of the informant was done as also her statement under Section 164, Cr PC was recorded which shows interestedness on the part of the police to implicate the appellant in the present case. 25. Learned counsel appearing for the appellant, however, argued before me that on the same day medical examination of the informant was done as also her statement under Section 164, Cr PC was recorded which shows interestedness on the part of the police to implicate the appellant in the present case. In my view, this argument has got no substance and there is nothing wrong if on the same day the statement under Section 164, Cr PC was recorded and medical examination of the victim girl was done. 26. Regard being had to all the facts and circumstances of the case and after considering the evidence on record I find that the prosecution had proved the charges under Section 376/342 of the Indian Penal Code against the appellant beyond reasonable doubt and the learned Court below was quite justified in holding the appellant guilty of the aforesaid offences and as such order of conviction recorded by the learned Court below under Section 376/342, IPC deserved to be upheld. 27. On the point of sentence, however, learned counsel for the appellant submitted before me that the appellant is also tribal boy and on 21.12.1996 his age was recorded as 20 years while he made statement under Section 313 of the Code of Criminal Procedure and so on the alleged date of occurrence his age was about 18 years. It was further submitted that there is no history sheet against the appellant to show about his bad antecedent or bad character. Learned counsel, therefore, submitted that the appellant is in jail continuously since 4.4.1995 and a period of four years is going to expire within few days. Hence, taking into consideration the age, character and antecedent of the appellant the sentence of seven years imposed upon him may be reduced to the period already under gone by him in jail custody. Learned counsel relied upon a decision Phul Singh V/s. State of Haryana, AIR 1980 SC 249 , wherein his lordships has held as follows: "Ordinarily, rape is violation, with violence, of the private person of a woman an outrage by all cannons. In our conditions of escalating sex brutality four year term of rape is not excessive. However, in the instance case the accused was in his early twenties and he was not a habitual offender and signs of repentance were seen. In our conditions of escalating sex brutality four year term of rape is not excessive. However, in the instance case the accused was in his early twenties and he was not a habitual offender and signs of repentance were seen. The families of accused and victim being closely related, were also ready to take a lenient view of the situation. In the circumstances the sentence was reduced from 4 years to 2 years R.I. Sentencing efficacy in cases of lust loaded criminality cannot be simplistically assumed by award of long incarceration, for often that remedy aggravates the malady. Punitive therapeutics must be more enlightened than the blind strategy of prison severity where all that happens is sex starvation brutalisation criminal companionship, versatile vices through bio-environmental pollution, dehumanised cell drill under" zoological" conditions and emergence, at the time of release, of any embittered enemy of society and its values with an indelible stigma as convict stamped on his a potentially good person "successfully" processed into a hardened delinquent". 28. In the light of the aforesaid decision it was submitted that the appellant who is a boy of teen age has already suffered in jail custody for about four years. Hence, considering the facts and circumstances of the case, as also in view of the principle enunciated by the Apex Court, the appellant should be released from jail custody by reducing his sentence to the period already undergone by him in jail custody. 29. The submission made by the learned counsel on the point of the sentence deserves consideration specially in view of the fact that the appellant is also tribal boy and at the time of the alleged occurrence his age was roughly 18 years and he has remained in jail for about four years and the appellant and the informant are co-villagers. Hence, in the circumstances of the case, I feel that the ends of justice will be met if the sentence awarded to the appellant is reduced to the period already undergone by him in jail custody considering his age and other factors enumerated above. 30. Accordingly sentence awarded to the appellant is reduced to the period already under gone by him. In the result, I find no merit in this appeal which stands dismissed with modification in his sentence. The appellant is directed to be released forthwith, if he is not required in any other cases.