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2001 DIGILAW 460 (JHR)

Ramjeet Mali v. State Of Bihar

2001-07-17

D.N.PRASAD

body2001
JUDGMENT Deoki Nandan Prasad, J. 1. Both the appeals have been heard together as they are arisen out of the common judgment passed by the Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 461 of 1995 corresponding to G.R. No. 1344 of 1995 under Haidarngar P.S. Case No. 54 of 1995 for an offence under Sections 376/ 34 and 114 of the Indian Penal Code, whereby and whereunder, the learned Sessions Judge convicted the appellants under Section 376/34 of the Indian Penal Code and sentenced them to undrgo rigorous imprisonment for a term of ten years each under the said offence. 2. The prosecution case in brief is that the victim Kaushalaya Kumari lodged a First Information Report alleging therein that she was aged about ten years and on the day of occurrence, she along with her sister-in-law Usha Devi were preparing food in Dhaba of her house and her mother had gone to Daltonganj in order to meet her father. She came out of her house at the door in order to take cow-dung cake and while picking up the same, in the meantime, the appellant Ajay Mali was coming through the gate of the boundary and he caught hold of her and the appellants Ajay Mali and Ramjeet Mali came there from the gate and she was lifted by Ramjeet Mali and was taken near the well. The appellant Ajay Mali caught hold of her hand and she was put on the field and thereafter, the appellant Ramjeet Mali committed rape on her forcibly. Her Bhabhi and Sister were started searching her and they came therewith torch and thereafter, the appellants started fleeing away. According to her, Bhabhi and Sister also saw them fleeing away in the torch light at that relevant time. On the basis of the fardbeyan, a First Information Report was lodged against both the appellants for the offence under Section 376/34 of the Indian Penal Code. The police investigated the case and submitted charge-sheet, The witnesses were examined in the Court below. After having heard both the parties, the trial Court convicted and sentenced the appellants in the manner as stated above. 3. The police investigated the case and submitted charge-sheet, The witnesses were examined in the Court below. After having heard both the parties, the trial Court convicted and sentenced the appellants in the manner as stated above. 3. Learned Counsel appearing on behalf of the appellant Ajay Mali submitted that this appellant has falsely been implicated in the case as there is no allegation against him for committing rape on her and, therefore, the offence under Section 376 of the Indian Penal Code is not made out. It is further submitted that the victim deposed at the latter stage and named this appellant also which is an after-thought and in view of the fardbeyan which was recorded at the earlier opportunity of time, the story cannot be believed. It is also submitted that the Court below failed to appreciate the evidence on record legally as regards the appellant Ajay Mali, who is quite innocent and dragged falsely in the case because of land dispute between the parties from before. 4. At the very out-set, it may be noted here that the victim Kaushalaya Kumari was examined by the Doctor (P.W. 4) and she opined in clear words that rape has been committed and the victim was aged about 8 to 10 years of age at the time of incident. According to the Doctor, hymen was not intact and there was also bleeding from vagina. Thus, there is no doubt to come in conclusion at this stage itself that there was no rape and the victim was also minor. P.W. 8 the victim girl gave out a vivid picture about the aweful incident in her evidence. She stated that appellant Ramjeet Mali committed rape on her forcibly. Nothing could be elicited from her evidence and in her cross-examination to, put any doubt about the occurrence which is specific and direct against the appellant Ramjeet Mali. 5. P.Ws. 1 and 3, namely, Bhabhi and Sister also categorically stated that they had seen the appellants fleeing away which finds support from the evidence of P.W. 8. Thus, there is no doubt in holding that the prosecution has fully established the charge against the appellant Ramjeet Mali for committing rape beyond all reasonable doubts. Hence, I find that the learned trial Court has rightly convicted and sentenced the appellant Ramjeet Mali for the offence charged. 6. Thus, there is no doubt in holding that the prosecution has fully established the charge against the appellant Ramjeet Mali for committing rape beyond all reasonable doubts. Hence, I find that the learned trial Court has rightly convicted and sentenced the appellant Ramjeet Mali for the offence charged. 6. So far as the appellant Ajay Mali is concerned, obviously there is no allegation against him for committing rape in the fardbeyan which was recorded at the instance of the informant herself. It is true that the victim (P.W. 8) also named this appellant during her examination in the Court below which was done on 14-7-1998, whereas the occurrence took place on 16-7-1995 which itself gives a doubt about the name of this appellant after three years of the occurrence. However, P.W. 9 stated in clear terms that there was land dispute in between the two family members of the victim and this appellant from before. In this way, the name of the appellant Ajay Mali appears to have been given after- thought due to previous enmity and much suspicion arose about the direct involvement of this appellant Ajay Mali for the offence under Section 376 of the Indian Penal Code. The fardbeyan which was recorded at the earliest opportunity of time could be taken to true picture of the episode and there is no allegation against this appellant (Ajay Mali) for committing rape. Thus, he cannot be held responsible for the said offence. 7. In the result, it is evidence that prosecution has failed to establish the charge for the offence under Section 376 of the Indian Penal Code against the appellant Ajay Mali beyond all reasonable doubt. Hence, he is acquitted. His appeal (Criminal Appeal No. 214 of 1999(R)) is allowed. The judgment of conviction and sentence as to Ajay Mali is set aside. He appears to be on bail and, as such, he is discharged from the liability of his bail-bond. 8. The appeal (Criminal Appeal No. 225 of 1999(R)) as regards appellant Ramjeet Mali is hereby dismissed, confirming his judgment of conviction and sentence.