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2000 DIGILAW 504 (PAT)

Md. Minhaz Alios Munna Mia v. State Of Bihar

2000-03-30

A.K.PRASAD

body2000
Judgment A.K.Prasad, J. 1. Appellant Md. Minhaz alias Munna Mian has been convicted under Sections 376 and 380 of the Indian Penal Code and sentenced to rigorous imprisonment for terms of ten years and six months respectively on each count and the sentences passed on him have been ordered to run concurrently. Appellant Md. Ismail has been convicted under Section 411 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for a period of six months thereunder vide impugned judgment dated 28.3.1992 and the order of sentence dated 1.6.1992 in S.T. No. 208 of 1990 rendered by Sri P.N. Yadav, the then 3rd Addl. Sessions Judge, Hazaribagh. 2. Briefly stated the prosecution case, as made out in the fardbeyan (exhibit 3) of Chinta Devi (PW 4) the prosecutrix recorded on 8.1.1990 at 5 p.m. by PW 9 (Ramsagar Singh), the then Sub-Inspector of Police, Incharge Pelawal Out Post, is as under : On 8.1.1990 at about 11 a.m. Chinta Devi, the prosecutrix was alone in her house and she was engaged in thrashing mustard in her court-yard. Her husband and other family members were away from their home for collecting wood and grazing cattle. The accused/appellant Md. Minhaz, who lives in her neighbour-hood, entered her house through the open door and bolted it from inside, finding a suitable opportunity. He over powered the prosecutrix Chinta Devi, forcibly took her into a room where paddy was spread and on the point of dagger, he undressed her, fell her on the spread paddy and sexually assaulted her against her will. She was helpless. She could not even raise alarm as the accused/appellant Md. Minhaz closed her mouth and threatened her with dire consequences. He relieved her of silver Hasuli, golden ear rings, nose pin and silver bangles, on her person. The prosecutrix ran into another room for safety, but the accused/appellant Md. Minhaz, being not quenched sexually followed her and forcibly again raped her. Thereafter, the accused/appellant Md. Minhaz went on Kotha (first floor) of the house and he committed theft of Rs. 500/- in cash and Hasuli from the box, which belonged to the mother-in-law (PW 1) of the prosecutrix. The prosecutrix put on saya (petticoat) on her person and came out of the house crying and weeping and she met Bhago Devi (PW 2), her neighbour to whom she narrated the incident. 500/- in cash and Hasuli from the box, which belonged to the mother-in-law (PW 1) of the prosecutrix. The prosecutrix put on saya (petticoat) on her person and came out of the house crying and weeping and she met Bhago Devi (PW 2), her neighbour to whom she narrated the incident. At that time, the accused/appellant Md. Minhaz escaped from the house with the booty, which was witnessed by PW 2. There was semen stains on her saya and she had suffered wounds on the neck and nose and other parts of her body, when she had offered resistance to the sexual assaults made on her by the accused/appellant. On her alarm, many villagers had collected on the scene of occurrence and she had reported the matter to them. Ultimately, her mother-in-law (PW 1) Shyam Kumar returned from the forest, where she had gone to tend cattle by 2 p.m. and the prosecutrix complained the incident to her, whereafter in her company the prosecutrix went to the police out-post and gave the fardbeyan (exhibit 3). On the basis of the fardbeyan, the present case came to be instituted, formal first information report (exhibit 4) was drawn up the police officer (PW 9) assumed and commenced investigation, he visited and effected seizure of the saya (petticoat) of the prosecutrix, which bore semen stains [vide exhibit 5), sent her for medical examination, arrested the accused/appellant (Md. Minhaz) on 9.1.1990 at 1 a.m. at Chatra Hazaribagh road near village Basal and recovered a spring knife and a sky colour kuchhi (underwear), which had semen like stains from Ms person under the seizure memo (exhibit 5/1). He also arrested accused /appellant Md. Israil on 9.1.1980 at 2 a.m. from his house and recovered a pair of silver earrings from the pocket of the shirt on his person under seizure memo (exhibit 5/2), which were identified in the Test Identification Parade to be the stolen property, belonging to the prosecutrix. Exhibit 6 is the carbon copy of the test identification parade chart. On completion of investigation, charge-sheet was laid in Court against the accused/appellants. The case was, ultimately, committed to the Court of Sessions by the then learned Chief Judicial Magistrate on 13.6.1990. 3. The main defence is of innocence and false implication due to the land dispute. 4. At the trial, the prosecution examined ten witnesses, in support of its case. On completion of investigation, charge-sheet was laid in Court against the accused/appellants. The case was, ultimately, committed to the Court of Sessions by the then learned Chief Judicial Magistrate on 13.6.1990. 3. The main defence is of innocence and false implication due to the land dispute. 4. At the trial, the prosecution examined ten witnesses, in support of its case. Out of them, PW 5 (Mahavir Sao) is the tendered witness, whereas PW 6 (Prasadi Rana) is a witness on the seizure list (exhibit 5/1) and PW 10 (Saryug Prasad) is another witness on the seizure list (exhibit 5). PW 8 (Gona Mahto) is a witness on the seizure of the pair of ear-rings from the possession of accused-appellant Md. Israil. The other PWs are PW 1 (Mosst. Shyam Kumari), the mother-in-law of the prosecutrix PW 2 (Bhago Devi), the wife of cousin of the prosecutrix, PW 3 (Kusum Devi), PW 4 (Chinta Devi) the prosecutrix herself, PW 7 (Dr. RS. Bandana), who had examined the prosecutrix and PW 9 (Ramsagar Singh), the Investigating Officer. The defence on the other hand, examined two witnesses. Out of whom DW 1, a scribe (Md. Nizamuddin) is a normal witness, who has proved the registered sale deed dated 17.5.1977, executed by Kedar Dusadh in favour of Imaman Mian, father of accused-appellant. DW 2 is Md. Jahoor, on the point of land dispute between the pasties. 5. On consideration of the evidence and materials on record, the trial Court held the accused-appellants guilty of the respective charge under Sections 376, 380 and 411 of the Indian Penal Code and convicted and sentenced them, as stated, above. 6. While assailing the impugned convictions, Mr. P.S. Dayal, learned senior counsel, appearing on behalf of the appellants, has mainly urged that the medical evidence does not corroborate the testimony of the prosecutrix (PW 4) that she had been sexually assaulted and on microscopic examination of the vaginal swab no spermatozoa was found dead or alive that the prosecutrix (PW 4) has stated in her cross-examination that the accused-appellant Md. Minhaz had taken her naked on the Kotha (first floor) and this circumstance, coupled with the fact that the appellant undisputedly lived in her immediate neighbourhood suggest that it may be a case of sex with consent of the prosecutrix and she had raised no alarm, while she was being taken by this accused on the kotha; that there is no report of the chemical examiner that the seized saya of the prosecutrix and the kuchhi, seized from the person of the accused-appellant, in fact, had semen stains. He further submitted that the conviction of the accused- appellant Md. Israil under Section 411 of the Indian Penal Code cannot be sustained because the pair of silver earrings alleged to have been recovered from his possession were not produced as material exhibits, nor the Magistrate who conducted the Test Identification Parade has been examined in this case and there is no evidence on the record to suggest that he had dishonestly received or retained the silver ear-rings given to him by the accused-appellant (Md. Minhaz), knowing or having reason to believe the same to be stolen property and the evidence of DW 2 is to the effect that there was some dispute for land between the parties. The learned APP, on the other hand, appearing for the State, has supported the impugned judgment. 7. Now the point which falls for consideration in this case is whether the impugned convictions of the appellants on the respective charge under Sections 376, 380 and 411 of the Indian Penal Code can be sustained. At this juncture, it may be stated that now it is well settled that the conviction can be based on the testimony of victim(s) of sexual assault alone, unless the same is shown to be infirm and not trustworthy. The evidence of victim(s) of sexual assault stands on par with the evidence of an injured witness, but where there is reason(s) and suspicious circumstances, and it is difficult to place implicit reliance on the testimony of the victim(s) of sexual assault, the Court may look for independent corroboration on the testimony of such witness for sustaining conviction on the charge of rape. The testimony of victim of sexual assault is vital. The testimony of victim of sexual assault is vital. While trying the accused on the charge of rape, the Court must deal with such cases with utmost sensitivity and the Court should examine the broad probabilities of the case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of fatal nature, to throw out the otherwise reliable prosecution case. 8. Bearing this principle in mind, one may now proceed to discuss and analyse the evidence of PW 4 (Chinta Devi), the prosecutrix. She has testified to the effect that on the day of occurrence, around 11 a.m., she was alone in the house of her husband and other family members had gone out to collect wood from the forest or for grazing the cattle and she was thrashing mustard in her court-yard, when appellant (Md. Minhaz), snicker into her house through the open door, bolted it from inside, over powered her, gaged her mouth, took her forcibly to a room where paddy crop was spread, undressed and made her naked and sexually assaulted her on the point of dagger and when she tried to raise alarm, he inflicted scratch on her person with the dagger, whereafter he took her on the kotha (first floor), forced her to disclose where the box was kept and thereafter from the box of his mother-in-law (PW 1), he committed theft of Rs. 500/- in cash and silver Hasuli. She has further testified to the effect that the accused-appellant Md. Minhaz brought her down stairs to the bed room, throw her on the cot, and once again ravished her and relieved her of the ornaments, held by her, including a pair of silver ear-rings and then this accused-appellant threatened to finish her. She ran out side her house in scanty dress and in semi-naked condition, and met Bhago Devi (PW 2) and Kusum Devi (PW 3), her neighbours. The moment, she emerged out to the house and narrated the incident, she was properly dressed by PWs 2 and 3. She has further deposed that accused-appellant Md. Minhaz followed her out of the house and escaped, which was witnessed by PWs 2 and 3. PW 4 is a married lady, aged about 17-18 years. She has given the vivid description of the incident, which happened with her. She has further deposed that accused-appellant Md. Minhaz followed her out of the house and escaped, which was witnessed by PWs 2 and 3. PW 4 is a married lady, aged about 17-18 years. She has given the vivid description of the incident, which happened with her. In spite of searching cross-examination, she is consistent in her evidence. There may be some minor discrepancies here and there on the trivial matters, which do not effect the core of the prosecution case that she was sexually assaulted by accused-appellant Md- Minhaz mercilessly and that he had committed theft of the articles, further, as stated above, the victim ran out of the house in scanty dress. Could it be a case of consent ? The answer is in negative. PW 2 (Bhago Devi) her cousin Gotni and PW 3 (Kusum Devi), an independent witness, have testified to the effect that they have seen the accused-appellant Md. Minhaz alias Munna fleeing away from the house of the prosecutrix and the prosecutrix came out of the house with the saya and she was holding its loose string; that she had complained to them that the accused-appellant Md. Minhaz finding her alone in the house has committed rape on her and theft of some cash and ornaments. The subsequent conduct of the prosecutrix, immediately disclosing the incident to PWs 2 and 3 is the relevant fact. PWs 2 and 3 have corroborated not testimony of her subsequent conduct. PW 1 (Mst. Shyama Kumari), her mother-in-law too has stated that when she returned home from the forest at about 2 p.m. the prosecutrix had narrated the incident to her. 9. The evidence of PW is that in the company of her mother-in- law (PW 1) she went to Pelawal police out-post and lodged her fardbeyan the same day at about 5 p.m. The fardbeyan was promptly loaded by her. The appellant is named therein. The testimony of the prosecutrix in material particular is corroborated by the fardbeyan, which was promptly lodged by her. 10. PW 7 (Dr. The appellant is named therein. The testimony of the prosecutrix in material particular is corroborated by the fardbeyan, which was promptly lodged by her. 10. PW 7 (Dr. R.P. Bandana) has testified to the effect that at the first instance, she had examined Chinta Devi, PW 4 on the night of 8.1.1990 at 10.30/11.00 p.m., but she referred the matter to the Civil Surgeon for her examination by the medical board, which was constituted and she was a member of the said Board and Chinta Devi was examined by the Board on 10.1.1990. She has further stated that the Medical Board found the marks of violence on her body, which are as follows : (i) Abrasion 1/4" linear over the left cheek. (ii) Abrasion multiple small size over front of neck. (iii) Swelling 1/2" x 1/2" over the nose. (iv) Blood was smeared over both the nostrils and upper lips and there was old tear of hymen. She has further stated that on vaginal smear examination, no spermatozoa was found. Exhibit 2 is the report of the medical board, she has further stated that the medical board suggested that under clothes of the prosecutrix be sent for chemical examination to detect the semen stains. The prosecutrix was examined by the medical board on 10.1.1990, ie. about two days later of the occurrence. It is suffice to say that mere absence of spermatozoa cannot cast doubt on the prosecution case 1989 (1) SCC 432 , Prithi Chand V/s. State of Himachal Pradesh. 11 PW 9 (the Investigating Officer) has testified to the effect that he had sent the saya of the prosecutrix and the kuchhi of accused/appellant Md. Minhaz to Forensic Science Laboratory for chemical examination, but unfortunately the report of the chemical examiner is not available on the record. But it does not adversely affect the prosecution case, when there is otherwise cogent and reliable evidence of other PWs. Be that as it may, the presence of the injuries on the person of the prosecutrix lands assurance to the testimony that she had been subjected to forcible sexual assault by the accused/appellant Md. Minhaz and while inspection of the room, the scene of the occurrence, the I.O. had found that the paddy spread there was scattered and there were bruised marks of foot-prints. 12. Minhaz and while inspection of the room, the scene of the occurrence, the I.O. had found that the paddy spread there was scattered and there were bruised marks of foot-prints. 12. On careful scrutiny of the evidence of the prosecutrix, PWs 1, 2 and 3, as well as the medical evidence and keeping in view the setting of the broad facts and circumstances of the case, in my considered view, the accused-appellant Md. Minhaz alias Munna has been rightly convicted by the trial Court under Sections 376 and 380 of the Indian Penal Code. 13. DW 2 (Md. Jahur) has testified to the effect that father of the appellants, Imamuddin. had sold eight decimals, out of 14 of the land to Daban Mahto, the deceased father-in-law of the prosecutrix, while Daban Mahto wanted to purchase the entire land and for that there was dispute between them. It has come in his evidence that such dispute took place some time in 198687, but for that there was no criminal case."For very good reasons, the trial Court has discarded the defence version and it merits no further discussion by this Court. 14. Now let us come to the conviction of the accused-appellant (Md. Israil) under Section 411 of the Indian Penal Code. It is alleged that pairs of stolen silver earrings of the prosecutrix was seized from his person. The I.O. (PW 9) and the seizure witness have testified to this effect. No doubt, accused-appellant Md. Israil has denied the recovery of the ear- rings from his possession, but the same have not been produced as material exhibit in the Court. There is possibility that the seized pair of silver ear-rings might have been received by the accused-appellant Md. Israil from Md. Minhaz alias Munna without any knowledge that it was stolen property. So in the circumstances of the case, the accused-appellant Md. Israil is given benefit of doubt and is acquitted of the charge under Section 411 of the Indian Penal Code. 15. In the result, the appeal of Md. Minhaz alias Munna is dismissed. The orders of conviction and sentence passed on him by the trial Court are confirmed. However, it appears from the record that appellant No. 1 (Md. Minhaz alias Munna) has already suffered the period of sentence imposed an him by the trial Court. 15. In the result, the appeal of Md. Minhaz alias Munna is dismissed. The orders of conviction and sentence passed on him by the trial Court are confirmed. However, it appears from the record that appellant No. 1 (Md. Minhaz alias Munna) has already suffered the period of sentence imposed an him by the trial Court. In that view of the matter, let him be released from custody forthwith if not required in any other case(s). So far appellant No. 2 Md. Israil is concerned, his appeal is allowed on giving benefit of doubt and he, as stated above, is acquitted of the charge. His conviction and sentence under Section 411 of the Indian Penal Code are set aside. He is on bail. He is discharged from the liability of his bail bond.