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2001 DIGILAW 586 (PAT)

Bihari Sharma v. State Of Bihar

2001-07-16

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. Cr. App. No. 367/ 2000 filed on behalf of Bihari Sharma, Madan Teli @ Madan Sah, Sudama Sharma and Shivjee Mahto and Cr. App. No. 409/2000 filed on behalf of Sheoloch Yadav arise out of one and the same judgment and order, dated 20.9.2000 and 22.9.2000 passed by Sri Mungeshwar Sahoo, 4th Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No. 202/86 whereby and whereunder he convicted the appellant Sheoloch Yadav under Section 376, IPC (hereinafter referred to as the Code) and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for a further period of six months and convicted the other four appellants under Section 376 readwith Section 109 of the Code and sentenced each of them to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- and iri default of payment of fine to undergo rigorous imprisonment for a further period of six months. The amount of fine, if realised having been ordered to be paid to the victim (prosecutrix) Kalawati Devi and hence they have been heard together and they are going to be disposed of by this common judgment. 2. It would be relevant and convenient to reproduce in brief the fact of the case. The victim informant Kalawati Devi (PW 1) was in the night on 3.9.1985 sleeping in her house. Her husband Jawahar Sharma (PW 4) has left his house for his sasural in the morning to bring his wife, the informant from there. However, the informant set-out from her maternal house before her husband reached there and she came to her matrimonial house. While she alongwith her step-son Vijay Kumar Sharma (PW 3), aged about 10 years, was sleeping on the same cot, appellant Sheoloch Yadav entered into her house and started committing rape on her. The victim (PW 1) was under the impression that her husband (PW 4) had returned from his sasural and slept with her. She attempted to get up to serve some food to him whereupon she was pressed in the cot and then PW 1 detected that it was the appellant Sheoloch Yadav and not her husband who laid down with her on the cot. He committed rape on her. She attempted to get up to serve some food to him whereupon she was pressed in the cot and then PW 1 detected that it was the appellant Sheoloch Yadav and not her husband who laid down with her on the cot. He committed rape on her. On protest being made by PW 1 appellant Sheoloch Yadav brandished and pointed a dagger and threatened her to be killed if she raised alarm. In the meanwhile, the other appellants, one of them Bihari Sharma having a gun, entered into the room and they caught hold of her legs and shut her mouth. Appellant Sheoloch Yadav alone ravished her. The victims son Vijay Kumar Sharma (PW 3) wokeup and raised alarm whereafter all the appellants fled away. 3. The victims husband Jawahar Sharma (PW 4) returned to his house on the next day. PW 1 narrated her sordid and awful tale to her husband. Thereafter, a village panchayati was convened and it was held on the next day. The panches were said to have held that the appellants Sheoloch Yadav, Madan Teli and Shivji Mahto were guilty and it advised the informant and her husband to lodge a case in the police station. Thereafter the informant (PW 1) alongwith her husband went to the police station and got her statement recorded, on the basis of which an FIR was lodged and Tiar PS Case No. 24/85 was registered. Investigation started and after investigation charge-sheet was submitted and finally the trial commenced after commitment. 4. The appellants did not enter into defence. However, from the trend of cross-examination of the prosecution witnesses and the statements of the appellants recorded under Section 313, Cr PC the defence seemed to be that of total denial and false implication. 5. In order to prove his case the prosecution examined as many as nine witnesses. Dr. Urmila Mishra was examined as PW 5 as well as PW 10. As previous deposition of the Doctor made by her as PW 5 was lost from the records she was again called and examined as PW 10. 6. The Court below after taking the facts, circumstances and evidence brought on the records into account found and held the appellants guilty and convicted and sentenced them as stated above vide impugned judgment and order. 7. 6. The Court below after taking the facts, circumstances and evidence brought on the records into account found and held the appellants guilty and convicted and sentenced them as stated above vide impugned judgment and order. 7. The appellants assailed the judgment and order of conviction and sentence passed against them on the ground that it was not based on law and facts and correct appreciation of evidence rather it was based on surmises and conjectures. 8. The only point for determination is whether the impugned judgment and order of conviction and sentence recorded against the appellants can be maintained and upheld on the basis of the materials available on the record. 9. In a case of rape the most important witness happens to be the victim herself and in that view of the matter the evidence of prosecutrix Kalawati Devi (PW 1) assumes important significance. PW 1 Kalawati Devi supported the prosecution case in its entirety by stating on oath that while she alongwith her step-son was sleeping in her house in the fateful night appellant Sheoloch Yadav entered into her house at about 10 p.m. and laid down with her on her cot and he started committing rape on her. A lamp was said to be burning in the house. The victim (PW 1) at first instance was under impression that the person who slept with her was her husband who might have returned from his sasural and she tried to get up to serve some food to him as he after returning from his sasural slept with her without taking meal. She added that she was not allowed to get up and she was pressed on the cot and on protest being made by her appellant Sheoloch Yadav pointed a dagger to her and threatened her with dire consequence and he ravished her. It is in her evidence that the other four appellants also arrived there on call given by the appellant Sheoloch Yadav. She specifically stated that it was Sheoloch Yadav alone who committed rape on her though she also stated that other appellants shut her mouth and caught hold of her legs. PW 1 in her cross-examination has stated that her first marriage was performed with a man of village Shilempur and about 5-7 years after the death of her first husband she was married with Jawahar Sharma (PW 4). PW 1 in her cross-examination has stated that her first marriage was performed with a man of village Shilempur and about 5-7 years after the death of her first husband she was married with Jawahar Sharma (PW 4). She further stated that as she was married to PW 4 just two or three months prior to the date of incident she did not know and identify all the persons of the village. She did not say the name of the appellants other than Sheoloch Yadav and their names were disclosed to her by her step- son Vijay Kumar Sharma (PW 3). She could not sky the name of her first husband nor could she say the name of her father but on that account no infirmity can be said to have cropped up in her evidence in regard to commission of rape on her. Though she was cross-examined at length nothing was elicited in her cross-examination to render her testimony doubtful. Her evidence seems to be worthy of credence. Evidence of a victim of a rape stands on par with the evidence of an injured witness in the sense that she is least likely to exculpate the real offender and she is entitled to great weight. If the evidence of the victim does not suffer from any basic infirmity the probabilities-factor does not render it unworthy of credence and conviction of an accused charged with commission of sexual assault can be based on uncorroborated testimony of the prosecutrix. 10. Though the evidence of PW 1 is wholly reliable and it is free from inherent taint and infirmity and the same can be accepted and acted upon even without corroboration, the fact was that she was also corroborated in all material particulars by her son (PW 3) Vijay Kumar Sharma, who was an eye-witness to the incident leading to the commission of rape on her. 11. PW 3 stated that on alarm raised by her mother he woke up and saw that the appellant Sheoloch Yadav with a dagger in his hand caught hold of PW 1 laid down with her and committed rape on her and in the meanwhile the other four appellants also arrived there. His evidence is that when he raised alarm the appellants retreated. His evidence is that when he raised alarm the appellants retreated. He was subjected to long cross-examination but nothing material was elicited PW 3 was an eye-witness to the incident and his evidence is also of important significance. The evidence of PWs 1 and 3 on the point of commission of rape is quite consistent and corroborative. 12. PW 4, Jawahar Sharma, the husband of the prosecutrix stated that on the date of occurrence he had gone to his sasural to bring his wife (PW 1) but before he reached there she returned to her house and he came back on the next day whereafter PW 1 said to him as to how the appellant Sheoloch Yadav entered into her house and committed rape on her and the appellants Bihari Sharma, Madan Teli @ Madan Sah, Sudama Sharma and Shiyjee Mahto had also entered into her room and appellants Shivjee and Bihari Sharma pressed her neck. PW 4 was a hear say witness but his statements constituted a strong piece of circumstantial evidence corroborating the evidence of PW 1. 13. Though the evidence of the prosecution witnesses referred to above is worthy of credence inspiring confidence it will be relevant and convenient to refer to certain criticisms levelled against their evidence. 14. It was contended that as PW 1 could not say the name of her fist husband who belonged to village Shilempur nor could she say the name of her father nor could she say the name of persons of village where she is residing with her second husband (PW 4) on account of her marriage there just two or three months prior to the date of incident and all that showed that she was not a truthful witness and she was a woman of questionable character. The contention is not tenable and acceptable and the same must be discarded outright. It was further contended that in view of statement of PW 1 that she did not identify the people of her village Uttardaha she cannot be believed to have identified any of the appellants including Sheoloch Yadav particularly when she said the names of the appellants other than Sheoloch Yadav were stated to her by her son (PW 3) and they were not even put on T.I. parade. This contention too is devoid of merit and force and the same cannot render the prosecution case doubtful. 15. This contention too is devoid of merit and force and the same cannot render the prosecution case doubtful. 15. The criticism levelled against evidence of PW 4 Jawahar Sharma was that he said that after his return from his sasural on the next day he was informed by PW 1 that the appellant Sheoloch Yadav entered into her house and committed rape on her and on his call other four appellants also arrived there and threatened her with dire consequences if she raised alarm and the appellants Bihari Sharma and Shivjee Mahto pressed her neck but no such statement was made by PW 1 in her deposition and in that view of the matter the evidence of PW 4 in regard to entry of the appellants other than the appellant Sheoloch Yadav in her house and pressing of neck of the victim and threat hurled by them was not admissible and it could not be accepted. This criticism levelled against the evidence of PW 4 is sustainable in respect of involvement and participation of the appellants, namely, Bihari Sharma, Madan Teli @ Madan San, Sudama Sharma and Shivjee Mahto in the commission of rape but it cannot be a ground for discarding the prosecution evidence in regard to commission of ape on the prosecutrix by accused Sheoloch Yadav. 16. PW 10, Dr. Urmila Mishra examined the prosecutrix on 6.9.1985. She found no external and internal injury or even stain on her private part or surrounding area. PW 10 said victims vagina admitted two fingers and she must have sexual intercourse in the past. The Doctor could not give definite opinion regarding commission of rape. The Doctor proved Ext. 2. 17. In the face of unimpeachable evidence of the prosecutrix that she was ravished by appellant Sheoloch Yadav, the evidence of the Doctor cannot be a ground in itself for throwing entire prosecution case overboard. The eye-witness account of commission of rape given by the prosecutrix (PW 1) and her son (PW 3) has to be accepted and not the medical evidence. 18. PW 2, Bharat Lal Sharma, in his deposition said that he heard alarm of commission of theft in the house of the informant. He did not say that he arrived at the place of occurrence not did he speak about the incident of rape on the victim? 19. 18. PW 2, Bharat Lal Sharma, in his deposition said that he heard alarm of commission of theft in the house of the informant. He did not say that he arrived at the place of occurrence not did he speak about the incident of rape on the victim? 19. PW 6-Chandrawati Devi, PW 7-Chunmuna Devi and PW 9-Ganesh Sharma did not support the prosecution case and they were declared hostile by the prosecution. 20. The Investigating Officer too was not examined as a prosecution witness. The evidence of the material witnesses (PWs 3 and 4) was consistent and corroborative. No contradiction or discrepancy occurred in their evidence. Their attention was not drawn to their previous statements recorded under Section 161, Cr PC. Non-examination of the Investigating Officer was of no consequence. There was nothing on the record to show that the appellants were put to prejudice on account of non-examination of the Investigating Officer. 21. The prosecutrix stated in para 15 of her deposition that semen had fallen on her saree and soya but she could not hand-over her saree and saya to the Investigating Officer though the prosecutrix ought to have given her semen stained saya and saree to the Investigating Officer for examination thereof but on that score alone the prosecution case cannot be said to have been rendered suspicious. 22. It was contended that the prosecution witness uttered the name of some of the villagers who had also arrived at the place of occurrence and there were panches to participate in the panchayati but they were not examined. It is to be observed that none of those persons was eye-witness to the occurrence and so their non- examination is of no consequence. Besides, it is a matter of common experience that independent villager seldom get ready to give evidence against their co-villagers for fear that giving evidence may invite the wrath of the offenders. 23. The occurrence leading to commission of rape on the victim Kalawati Devi took place in the fateful night on 3.9.1985 and the FIR was lodged on 6.9.1985. Obviously there was delay committed in lodging the information with the police. 23. The occurrence leading to commission of rape on the victim Kalawati Devi took place in the fateful night on 3.9.1985 and the FIR was lodged on 6.9.1985. Obviously there was delay committed in lodging the information with the police. However, the delay stood well-explained inasmuch as the victim was alone in her house and her husband was away and after he returned on the next day he called a panchayati, but when no solution could be found out in the panchayat this case was instituted. Moreover, in such cases, the delay is of no significance. 24. A few words on defence version. The defence set-up by the appellants is that they have been falsely implicated out of sheer enmity emanating from land dispute. However, there is nothing on the record to give rise to existence of animosity between the prosecutrix or her husband on the one hand and the appellants on the other. PW 1 was suggested that she was on inimical terms with the appellants. She denied the suggestion. PW 3 was suggested that there was dispute between his father and the appellants. Similarly, PW 4 was suggested that there was land dispute between him and the appellant Sheoloch Yadav. He was further suggested that he was also on inimical terms with the other four appellants on account of dispute over irrigation of fields. Both PWs 3 and 4 denied the suggestions put to them. Mere suggestion is no proof. No material whatsoever, over and above, the suggestions put to the witnesses referred to above was brought on records to show the existence of animosity between the appellants and the prosecutrix or her husband. 25. The defence set-up by the appellants is not plausible and acceptable. The facts, circumstances and evidence discussed and the observations made in the preceding paragraphs established beyond reasonable doubt that the appellant Sheoloch Yadav committed rape on the victim Kalawati Devi. The learned Court below rightly found and held the appellant Sheoloch Yadav guilty and convicted him under Section 376, IPC. The sentence of seven years awarded to him is not excessive and exorbitant warranting interference by this Court. 26. As regards appellants Bihari Sharma, Madan Teli @ Madan Sah, Sudama Sharma and Shivjee Mahto, it is to be observed that the prosecutrix (PW 1) did not identify and name them. The sentence of seven years awarded to him is not excessive and exorbitant warranting interference by this Court. 26. As regards appellants Bihari Sharma, Madan Teli @ Madan Sah, Sudama Sharma and Shivjee Mahto, it is to be observed that the prosecutrix (PW 1) did not identify and name them. She specifically and categorically stated that it was Sheoloch Yadav who had committed rape on her. PW 1 said she did not know and identify the appellants other than Sheoloch Yadav and she came to know of their names from her son (PW 3) who stated that Sheoloch Yadav laid down on the body of her mother (PW 1) and ravished her and on call of Sheoloch Yadav the other appellants entered the room and after he raised alarm the appellants fled away. PW 4 stated that he was told by his wife that the appellants Shivjee Mahto and Bihari Sharma pressed her neck but no such statement was made by PWs 1 and 3 who were the eye-witnesses to the occurrence. The statements of PWs 1 and 3 that some among the appellants other than the appellant Sheoloch Yadav shut the mouth of the prosecutrix and caught hold of her legs did not inspire confidence. These appellants carried no allegation that they also intended to commit rape on the victim nor was there any specific allegation of commission overt act by them. They deserve to be extended the benefit of doubt. 27. In view of what has been stated and observed above, the appellants Bihari Sharma, Madan Teli @ Madan Sah, Sudama Sharma and Shivjee Mahto are given benefit of doubt and they are acquitted of the charge under Section 376 read with Section 109 of the Code levelled against them. However, the conviction and sentence recorded against appellant Sheoloch Yadav does not warrant interference by this Court. 28. In the result, Cr. Appeal No. 367/2000 filed on behalf of appellants Bihari Sharma, Madan Teli @ Madan Sah, Sudama Sharma and Shivjee Mahto is allowed and Cr. App. No. 409/2000 filed on behalf of appellant Sheoloch Yadav is dismissed. The impugned judgment and order of conviction and sentence passed against the appellant Sheoloch Yadav stands maintained and confirmed while the conviction and sentence recoded against other appellants, namely, Bihari Sharma, Madan Teli @ Madan Sah, Sudama. App. No. 409/2000 filed on behalf of appellant Sheoloch Yadav is dismissed. The impugned judgment and order of conviction and sentence passed against the appellant Sheoloch Yadav stands maintained and confirmed while the conviction and sentence recoded against other appellants, namely, Bihari Sharma, Madan Teli @ Madan Sah, Sudama. Sharma and Shiviee Mahto is set-aside and they are discharged from the liability of their respective bail bonds and set at liberty.