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2001 DIGILAW 190 (PAT)

Udai Rajbanshi v. State Of Bihar

2001-03-01

INDU PRABHA SINGH

body2001
Judgment INDU PRABHA SINGH, J. 1. The appellant has been convicted under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years with a fine of Rs. 5,000/- in default of payment of fine, the appellant would have further undergo rigorous imprisonment for one year. 2. The prosecution case in short is that on 14.11.1997, at about 4.30 p.m., the informant along with her minor girl Sudha Kumari went out to get her minor daughter answered on slope of hillock in the back side of her house. It has been stated that when the girl Sudha Kumari sat for answering call of nature, her mother came back to her house, but in the meantime she heard screaming sounds of her daughter and when she rushed towards the place of occurrence, she saw the appellant committing rape on her minor daughter. It has been stated that when she raised an alam, her father- in-law came running there, but the appellant pushed him aside and fled away. It has been stated that when the informant and her father-in-law went near the victim girl, they found her unconscious and there had been profuse bleedings from her private part. When the girl regained consciousness, she started crying loudly. Out of fear, she could not be taken to the police station in the succeeding night but in the morning, she was taken to the police station, where on the statement of Basanti Devi, the mother of the victim, formal FIR was registered. The victim was referred to Nawadah Sadar Hospital where she was examined on 15.11.1997 at 4.30 p.m. by a Board of medical officers, who confirmed the incident of rape on the victim girl. 3. After completion of investigation, the police submitted charge-sheet, on the basis of which cognizance of the offence was taken and the case was committed to the Court of Sessions and finally the trial concluded with the result as indicated above. 4. The appellant pleaded not guilty and has stated that he has been falsely implicated in this case due to enmity. 5. The prosecution in support of its case examined altogether as many as seven witnesses. Out of them, PW 1 is Sudha Kumari, she is the victim girl, PW 2 is the informant Basanti Devi, the mother of the victim girl. 5. The prosecution in support of its case examined altogether as many as seven witnesses. Out of them, PW 1 is Sudha Kumari, she is the victim girl, PW 2 is the informant Basanti Devi, the mother of the victim girl. PW 3 is Govind Mistry, grand father of the victim girl, PW 4 is Dr. Indu Jyoti, she has examined the victim girl with other doctors, PW 5 is Ram Pravesh Rai, PW 6 is Kapildeo Choudhary, PW 7 is Kalicharan Sharma. 6. PW 1 Sudha Kumari, the victim girl who was a minor at the time of her examination, could not understand and answer any question. She could not even disclose the name of the appellant as it was indicated by her mother to the appellant. PW 2 is the informant, the mother of the victim girl, she has fully supported the case of the prosecution as narrated in her First Information Report. She has stated that on the date of occurrence at 4 p.m., she had taken her minor daughter Sudha Kumari for attending the call of nature and she was in the vicinity when she heard screaming of her daughter and she went there running and she found that the appellant was committing rape on her daughter. She raised an alarm, and her father-in-law Govind Mistry came there, but the appellant pushed him aside and fled away. She has further stated that she took the girl to the Nawada Hospital and from there, she take her to Hasua Hospital and gave her fardbeyan to the police. Another witness PW 3 Govind Mistry, the father-in-law of the informant, he has stated that hearing the alarm raised by the informants daughter, he rushed to the place of occurrence and saw the accused running away. Thereafter, they brought the girl in injured condition and on the next day, they took her to the police station, where the fardbeyan of the informant was recorded. He has also stated that the police sent the victim girl for medical examination at Nawada. PW 4 is Dr. Indu Jyoti, one of the doctors of the Medical Board, which examined the victim girl. She confirmed that the rape has been committed on victim PW 4, Dr. Indu Jyoti has stated that on 15.11.1997 at about 4.30 p.m., she along with other doctors, Dr. N.P. Mandal, Dr. R.N.P. Singh, Dr. Mrs. Sudha Kumar Sharma, Dr. PW 4 is Dr. Indu Jyoti, one of the doctors of the Medical Board, which examined the victim girl. She confirmed that the rape has been committed on victim PW 4, Dr. Indu Jyoti has stated that on 15.11.1997 at about 4.30 p.m., she along with other doctors, Dr. N.P. Mandal, Dr. R.N.P. Singh, Dr. Mrs. Sudha Kumar Sharma, Dr. Arvind Kumar and Dr. Manohar Lal examined the victim girl Sudha Kumari and confirmed her age as about six years. They found as follows : "Height: 3" 4 Weight: 12 kgs. General condition : patient is conscious, fearful and nervous. Teeth : Total 20 in number Upper Jaw : 10 Lower Jaw : 10 Scalp hairs : normal and black in colour. Axillary & pubic hairs : not present Breasts not developed. Secondary sexual characterNot developed and resembling child-like. 2. Examination of Private parts Hymen ruptured : second degree perineal tears in mid-line in posterial aspect with slight bleeding. 3. VeginaJ swab taken and sent for pathological examination. Pathological report: Not a single spermatazoa found either alive or dead. R.B.C. 10 to 20 cells per H.P.A. W.B.C. 0 to 9 cell per H.P.A. Epithenal cells 4 to 10 per H.P.A. Radiological findings : X-ray wrist A/P view of both hands are done shows appearance of lunate and trapezium epiphysis. X-ray right knee joint A/P and lateral view shows appearance of patellar epiphysis. 7. On the basis of the aforesaid finding, the Board was of the opinion that the age of the victim girl was about 6 years. The Board also found perineal wound as described above present in the victim girl and opined that rape had been committed on the girl. The report of the Medical Board has been marked as Ext. 2. During the course of her cross-examination, the Medical Officer has disclosed that the age of the victim girl assessed by the Board may vary by six months backward or forward but she could not be aged below 5 and half years. The Medical expert has opined that it is not necessary that in each case of commission of rape, seminal spots on thigh would be present and it is not necessary that in each case, abrasion or bruises would be present over labia, minora. The Medical expert has opined that it is not necessary that in each case of commission of rape, seminal spots on thigh would be present and it is not necessary that in each case, abrasion or bruises would be present over labia, minora. She has also opined that rupture of hyman is possible by fall on penetrating substance but according to her, in such case second degree perineal tear is not possible by fingering. 8. PW 5 and 6 has been declared hostile PW 7 is the formal witness. 9. Learned counsel appearing on behalf of the appellant submitted that the child was three years old according to her mother and she was very near to the place of occurrence. It has been further stated that it was the day-time and thereafter, no one can dare to commit such type of offence. It has been further submitted that the place of occurrence was near from the house of the informant as it was only at a distance of 10 dhurs and the grand father of the victim girl did not find any stool on the place of occurrence. It has been also submitted that there was delay in lodging the FIR. 10. According to the deposition of the mother of the victim girl, the informant, though she was very near,but the girl was not visible due to there was tree in between them. It was the month of November, and as such at 4.30 p.m., it is not expected that it would be very bright evening. As far as delay in lodging the FIR, I do not find that there is any inordinate delay, as the police station was 7 k.m. from the house of the informant and after the occurrence in the night, it was not safe to go to the police station to lodge the FIR. That apart, in such type of cases, due to so many social reasons, the parents of the girl have to think always before lodging the FIR, due to fear of bad reputation and disgrace in the society. As far as the contention of the learned counsel that the girl was sitting at visible distance from the house of the informant and as such, no body would dare to commit rape at that time. As far as the contention of the learned counsel that the girl was sitting at visible distance from the house of the informant and as such, no body would dare to commit rape at that time. The act as alleged is not possible by a normal person and from a pervert like the appellant, normal action could not be expected. Not only that, in normal transaction there was no need to keep a close eye on a child while she was easing at a lonely place nearby. The other witness PW 3 also reached the place of occurrence immediately and had corroborated the case of the prosecution PW 4, medical expert has supported the fact that rape was committed on the victim and, the Medical Board, which examined the victim girl has assessed the age of the victim girl as six years and found the injury on her private part. The prosecution has proved its case beyond reasonable doubts and as such, the Court below has rightly convicted the appellant for the offence under Section 376 of the Indian Penal Code, I do not find any reason to interfere with the judgment impugned. 11. Accordingly, this appeal is dismissed.