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2001 DIGILAW 409 (PAT)

Jainu Dhunia v. State Of Bihar

2001-05-07

ASHOK KUMAR VERMA, INDU PRABHA SINGH

body2001
Judgment Ashok Kumar Verma, J. 1. The sole appellant has filed this appeal against the judgment and order dated 17th June, 1987, passed by the Xth Additional Sessions Judge, Patna in Session Trial No. 713 of 1986, whereby the learned Additional Sessions Judge has convicted the accused-appellant under Secs. 376 and 366-A of the Indian Penal Code and sentenced him to undergo R.I. for life under Sec. 376 of the Indian Penal Code and R.I. for ten years under Sec. 366-A of the Indian Penal Code. The sentences are to run concurrently. 2. In short the case of the prosecution is that on 22nd March, 1985 at about 10 a.m. Geeta Kumari aged about 14 years, daughter of the informant had gone to her school and when she did not return from the school her father, who is informant of this case, went in search of her and at Neora Railway Station, a boy, son of one Bihta Rai told him that he had seen a girl with Jainu Dhunia at the Railway Station at about 12O clock in the day. Accused, Jainu Dhunra was tailor, who used to work as tailor in the room of the house of the informant. According to the prosecution, accused-appellant, Jainu Dhunia had kidnapped the girl with intention to marry her. The fardbeyan of the informant was recorded by the Officer-in-Charge of Shapur Police Station on 23-3-1985 at about 7 a.m. and on the basis of the fardbeyan, a formal First Information Report (Ext. 3) was drawn in this case. After Investigation police submitted charge-sheet against the accused-appellant, the learned Judicial Magistrate after taking cognizance of the case committed it to the Court of Sessions for trial and charges under Sections 376 and 366-A of the Indian Penal Code were framed against the accused-appellant by the learned Additional Sessions Judge, Patna. 3. The defence of the accused-appellant according to trend of the cross-examination is that he has been falsely implicated in this case due to some dispute regarding water. 4. In this case 12 witnesses have been examined on behalf of the prosecution in support of the case, out of which, PW 9, Meera Jha and PW 12 Ramashray Singh are witnesses of formal nature, who have proved Ext. 2 the injury report and Ext. 5 the fardbeyan of this case. 4. In this case 12 witnesses have been examined on behalf of the prosecution in support of the case, out of which, PW 9, Meera Jha and PW 12 Ramashray Singh are witnesses of formal nature, who have proved Ext. 2 the injury report and Ext. 5 the fardbeyan of this case. PW 2, Pramod Kumar has stated that he does not know anything about the case. He has been declared hostile by the prosecution. 5. PW 1, Mohan Sao is the informant of the case and father of the victim girl. PW 3, Amar Nath Sao is cousin brother of the victim girl and PW 5 Sunaina Devi is her sister-in-law. All these witnesses have made consistent statement that the victim girl had gone to the school on the day of occurrence and she did not return. Their statement is also consistent on the point that the police had recovered the victim girl and the accused-Jainu Dhunia was along with the girl and the victim girl was returned to her house by the police. PW 1 (Mohan Sao). PW 3 (Amar Nath Sao) and PW 5 (Sunaina Devi) have stated that Geeta Kumari had gone to school and when she did not return, her father want in rearch of her and after about four days, she was found at Bihta Police Station. PW 1 (Mohan Sao), the informant of this case has stated that the Daroga had recorded his statement and read it over to him and after finding it correct he had put his signature on it, which is Ext. 1. According to PW 1 (Mohan Sao), son of Bithu Rai at Neora Railway Station said that he had seen Geeta Kumari with Jainu Dhunia. Jainu Dhunia was doing the work of tailoring at his (PW 1) door for the last one year. PW 3 has stated that Geeta Kumari is his cousin sister and after three days she was found at the police station and Jainu Mian was also with her and she was aged about 14 years at that time. PW 5 (Sunaina Devi), the sister-in-law of the victim girl has also stated that after 3-4 days Geeta Kumari was found at the Police Station with Jainu Dhunia. PW 5 (Sunaina Devi), the sister-in-law of the victim girl has also stated that after 3-4 days Geeta Kumari was found at the Police Station with Jainu Dhunia. According to PW 4 (Hira Lal Gupta), who is brother of the victim girl, Geeta Kumari was aged about 14 years at the time of occurrence and she had gone to school and she did not return and they started searching for her and it was Jearnt that she had fled away with Jainu Dhunia. He was also stated that Geeta Kumari was found after three days and Jainu was with her. PW 7 Lalpati Devi sister of the victim girl, Geeta Kumari. She has also stated that Geeta Kumari had gone to school but did not return and her father and brother had searched but she could not be traced and Geeta Kumari returned after four days and a constablehad brought her and Jainu was also with her. The evidence of PWs. 1, 3, 4, 5 and 7 is supported by the evidence of 1.0. PW 10. Indradeo Singh. According to him (PW 10) he had obtained the fardbeyan from Sahpur Police Station and accordingly he had drawn the formal FIR (Ext. 3) and took up the investigation of this case. He has said that on 26-3-1985 he learnt at Patna Kotwali Police Station that one boy and a girl of Bihta had been arrested at the Patliputra Police Station and he proceeded for that Police Station and enquired about it from the Officer-in-charge of the said Police Station and he learnt that one Sabbi Mian had informed that one boy and a girl were in the house of Bhola Mian and on raid they were recovered from that house. The girl was Geeta Kumari, who had been kidnaped by the accused-appellant and boy was Jainu Dhunia. He (PW 10) took them in custody and went to village Shivala on 28-3-1985 with them and Geeta Kumari was identified by her father and mother and she was sent to Referral Hospital, Bihta for medical examination and after medical examination she returned at about 12O clock in the day and he recorded the statement of Geeta Kumari and obtained the injury report. According to him, after completing the investigation, he submitted charge-sheet in this case. This witness (PW 10). According to him, after completing the investigation, he submitted charge-sheet in this case. This witness (PW 10). who is I.O. of the case has said in his evidence that according to the admission register of the school age of the kidnapped girl appeared to be 14 years. 6. It was submitted by the learned lawyer appearing on behalf of the appellant that PW 1, the informant and father of the girl has said in his cross-examination that the age of his daughter is 22-23 years, it is relevant to mention here that in his fardbeyan the informant, who is PW 1 has categorically stated that the girl was aged about 14 years and besides that there is consistent statement of the witnesses, i.e. of brother (PW 4) of the victim girl and the Medical Officer (PW 11) that she was aged about 14 year at the time of occurrence. The I.O. had also found the age of the victim girl according to the admission register of the school to be 14 years. Keeping in view the facts and circumstances of the case and the materials available on record, it cannot be inferred that the girl was major at the time of occurrence. 7. PW 6, is Kedar Nath Singh. According to him, be knows Mohan Sao and about two years back Jainu hid kidnapped his daughter Geeta. He (PW 6) was examined as a witness in the trial Court on 18-4-1987. He has said in his cross-examination that the has no personal knowledge about the occurrence and so his evidence is of little help in this case. 8. PW 8 is Geeta Devi, the victim girl. According to her she was studying in Neora School and at that time Jainu was doing tailoring work in her house and when she was going to school Jainu met her in the way and told her that her father was calling her and then he said that there was urgent work and he took her towards Chauar. She has stated that he (Jainu Dhunia) took her to the house of his sister in the Dilip Chak and kept her in the night and committed rape on her. Thereafter, he (Jainu), took her to Hajipur and then to Chapra and kept her at the house of his cousin brother (Fufera Bhai) and there also Jainu committed rape on her. Thereafter, he (Jainu), took her to Hajipur and then to Chapra and kept her at the house of his cousin brother (Fufera Bhai) and there also Jainu committed rape on her. She has-stated that Jainu took her to Patna where police caught them and took them to Patliputra Police Station and she was sent to Bihta Police Station and from there she was sent to her house. PW 11 is Dr. Neelam, a Medical Officer. She has stated that she was posted as Medical Officer at Bihta and she had examined Geeta daughter of Mohan Sao aged about 14 years on 28-3-1985. According to her she had found that hymen was lacerated posteriorly 1/2" and the salwar was stained with blood on front which had been cut and preserved and sealed and sent with the report to Police Station for chemical analysis. She has stated that the injury was caused due to forceful penetration of hard and blunt substance may be even human organ. Nothing has been elicited in the cross-examination of this witness (PW 11) and in cross-examination of PW 8 (Geeta Devi), the victim girl to disbelieve their evidence. The medical evidence clearly shows that rape had been committed on the victim girl, Geeta Kumari. The fact that the girl was found by the police with accused Jainu and both of them were detained at the Police Station from where the girl was sent to her parents proves the prosecution case. It was contended by the learned Additional Public Prosecutor that in cases on sexual assault corroboration of evidence of victim girl is not necessary and conviction can be founded on her testimony alone unless there are compelling reasons for corroboration and in support of his contention he placed reliance on a decision of the Supreme Court reported in 1996 SCC (Cri) 316. 9. The above evidence adduced on behalf of the prosecution, proves beyond all reasonable doubts that the accused-appellant Jainu Dhunia has committed the offence punishable under Secs. 376 and 366-A of the Indian Penal Code. On the point of sentence, it was submitted by the learned Lawyer appearing on behalf of the appellant that this case is of the year 1985 and the accused has suffered agony of the case for a long period of about 16 years, and so there should be lessor punishment. 376 and 366-A of the Indian Penal Code. On the point of sentence, it was submitted by the learned Lawyer appearing on behalf of the appellant that this case is of the year 1985 and the accused has suffered agony of the case for a long period of about 16 years, and so there should be lessor punishment. In the facts and circumstances of the case and in view of the fact this case is of the years 1985, sentence of R.I. for seven years under Sec. 376 of the Indian Penal Code will meet the ends of justice and a sentence of R.I. for seven years under Sec. 366-A of the Indian Penal Code will also be justified. Accordingly, the sentence of the aceused-appellant Jainu Dhunia under Sec. 376, IPC is reduced to R.I. for seven years and sentence under Sec. 366-A, IPC is also reduced to R.I. for seven years. The sentences shall run concurrently. The bail bond of the accused-appellant Jainu Dhunia is cancelled and he is directed to surrender in the Court of the learned Additional Sessions Judge forthwith to serve out his sentences. The learned Additional Sessions Judge will also take all necessary steps in this regard. 10. With above modification in the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, this Criminal appeal is dismissed.