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2001 DIGILAW 535 (PAT)

Bishundeo Thakur v. State Of Bihar

2001-07-06

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment of conviction and order of sentence passed by the 2nd Additional Sessions Judge, Katihar in Sessions Case No. 68 of 1999. The appellant was convicted under Section 376, IPC and he was sentenced to undergo RI for seven years. He was further convicted under Sections 323 and 341, IPC and was sentenced to undergo RI for six months under Section 323, IPC. However, no separate sentence was passed under Section 341, IPC, All the sentences were directed to run concurrently. 2. The prosecution case, in short, was that the victim Jharia Devi was working in the house of one Ramesh Choudhary and she used to work at his house from morning to the evening. On 23rd September, 1998, when she was cleaning the cattle shed of Ramesh Choudhary, at about 4.00 p.m., appellant Bishundeo Thakur suddenly came there and started teasing Jharia Devi. Thereafter she was pushed by him whereupon she fell down and when the victim raised alarm, the appellant sealed over the wall and fled away. This story was related is, the written report of the informant (Ext. 1) presented before the Police Station and it was prepared before hand. This fardbeyan bore the LTI of Jharia Devi and that of Chanchalia Devi, her mother. 3. The accused denied the alleged occurrence and their false implication. 4. The prosecution, in all, examined eight witnesses on its behalf, PW 8 is the Doctor and PW 7 was the IO PW 6 was Chanchalia Devi, the informant PW 5 was declared hostile, as he failed to support the prosecution case. PW 4 is a hearsay witness who was told by the victims mother about a rape and PW 3 was the victim herself. PW 2 was also declared hostile and PW 1 was another witness who had seen the accused fleeing away after the alleged occurrence. 5. From the evidence of witnesses it transpires that PW 3, the victim and her mother and PW 1 were the only witnesses to speak of the allege occurrence and to corroborate the same. Admittedly, PW 1 had seen the accused, while in flight. He had not seen the alleged commission of the occurrence. So his evidence will only give a circumstantial credence. Admittedly, PW 1 had seen the accused, while in flight. He had not seen the alleged commission of the occurrence. So his evidence will only give a circumstantial credence. PW 1, however, admitted that the appellants mother had filed a case against this witness in which he was remanded to judicial custody. It is at paragraph 4 of his deposition. Now it is the evidence of the victim girl herself which is relevant for deciding whether any occurrence of rape was, of course, committed upon her. She was a deaf and dumb girl and, therefore, she could not narrate the occurrence in speech. She identified the accused in court and pointed towards her neck and the court then interpreted it as an act of throttling committed by the appellant. The court also interpreted it as rape, after gagging, as indicated by her fingers. In cross-examination, however, again she indicated by finger that the accused-appellant had pressed her neck and had fisted and slapped her. She had also assaulted the accused which made him fly. So far the mother of the victim (PW 6) is concerned, she said that the accused-appellant had committed rape upon her daughter, as disclosed to her by the victim through beckoning. Since the girl was deaf and dumb, she was only competent to indi cate it by signs and gestures as to what had happened with her. So there is no eye-witness to the occurrence, except the victim herself and her gestures and postures before the court were not sufficient to indicate whether any act of coitus was committed upon her. The court recorded her evidence and simply stated that the accused had committed rape after gagging her. This finding of the trial Court is not sufficient to indicate that actually any rape was committed upon the victim; because the court has not stated that the victim pointed towards her private part to show that there was any occurrence against this part of her body. The corroboration of witnesses has come and the same is also interpretation by the witnesses, especially the mother of the victim. In this view of the matter, it is the Doctors evidence which gains importance. PW 8 the Doctor specifically stated that the victim was aged about 19-20 years and her private parts admitted two fingers and the hymen was old ruptured. In this view of the matter, it is the Doctors evidence which gains importance. PW 8 the Doctor specifically stated that the victim was aged about 19-20 years and her private parts admitted two fingers and the hymen was old ruptured. There was no external or internal injury on the vagina. The swab from the vagina did not indicate presence of spermatozoa, dead or alive. In such circumstances, the allegation of rape is completely ruled out. The Doctor has said that there was an attempt of rape. I fail to understand as to how the doctor made this observation; because the Data do not suggest any such inference. There is another circumstance which further gains importance in order to give a finding as to whether of course, an occurrence of rape was committed. PW 6 mother of the victim said at paragraph 4 of her deposition that the victims apparel contained stains. Sari of the victim was given to the Police Officer who seized the same and prepared a seizure-list. But neither the seizure-list has been brought on the record nor those clothes have been exhibited nor there is any report of the Chemical Expert in order to confirm that the clothes of the victim were stained. Thus, this is the most vital missing link of the prosecution case which should have confirmed or negatived of the prosecution case, regarding the occurrence of rape. I fail to understand as to why the police failed to obtain this circumstantial evidence in order to confined the actual commission of rape on the victim. This missing circumstance of the case would throw a serious doubt on the prosecution case. Moreover, in such a circumstance when a dead and dumb girl is subjected to rape, the circumstances are of greater importance and decisive. I am of the considered opinion that either the stained clothes have purposely been suppressed by the prosecution or there was no stain on the clothes at all. 6. However, from the evidence on the record and the circumstances of the case, it is apparent that there was some sort of an occurrence involving the informants daughter and the accused appellant. Since the time of occurrence was 4.00 p.m., so it appears that the appellant might have flert with the girl and might have made an attempt which must have failed because there was alarm and people gathered. Since the time of occurrence was 4.00 p.m., so it appears that the appellant might have flert with the girl and might have made an attempt which must have failed because there was alarm and people gathered. In such circumstances, however, the evidence produced, at least proved an offence under Section 323 as also under Section 354, IPC. 7. In the result, this appeal is dismissed and the order of conviction is modiled by convicting the accused-appellant under Sections 323 and 354 of the Indian Penal Code. So far the sentence is concerned, it has been submitted that the accused-appellant has been in custody throughout, and so the period of incarceration of the appellant during the course of trial shall be treated as the period of sentence. The accused-appellant shall be set at liberty forthwith, if not wanted in any other case.