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2001 DIGILAW 61 (PAT)

Upendra Mahto v. State Of Bihar

2001-01-21

P.K.SINHA

body2001
Judgment P.K.Sinha, J. 1. This appeal, preferred by convict Upendra Mahto, is directed against the judgment dated 18.9.1989 recorded by the learned Sessions Judge at Nawadah in Sessions Trial No. 94 of 1989 in which the appellant was convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for five years. 2. It may be mentioned that though the appellant is represented by a counsel, but no one had appeared on 13.12.2000 when this appeal was called for hearing and the case was adjourned. To-day also the case was called out but none has responded on behalf of the appellant. Therefore, heard learned Additional Public Prosecutor and I myself have gone through the entire case record including the record of the lower Court and its judgment. 3. As per first information report lodged by Raj Kumar Jha, father of the victim girl on 10.8.1988, allegation is that his wife Gita Devi had come and told him that when his daughter Rekha Kumari in the morning at about 8 a.m. was going to ease herself and had reached near the field of Raj Kumar Mahto, the appellant came from behind, caught hold of Rekha Kumari, also abused and assaulted her. Thereafter he took her forcibly to the field of Brahmdeo Mahto in which maize crop was grown, threw her down and then raped her. When she started crying, the accused fled away seeing the wife of Rajo Mahto coming towards the place of occurrence. Rekha Kumari thereafter went to her home and informed Gita Devi who came to inform her husband at Nawadah, but he could not go back to home because of heavy rains and the flooded river. But subsequently he came to home and then went to the police station and lodged this case. 4. In due course the trial took place and appellant was convicted as aforesaid. The defence of the accused/appellant was that he was entangled in false case because of groupism in the village, as he told the trial Court in course of his examination under Section 313 of the Code of Criminal Procedure ("the Code", in Short). A suggestion was thrown to the victim girl that this false case was instituted at the behest of one Mahabir Mahto for extorting Rs. 10,000/- from the father of the appellant. 5. A suggestion was thrown to the victim girl that this false case was instituted at the behest of one Mahabir Mahto for extorting Rs. 10,000/- from the father of the appellant. 5. A perusal of the memo of appeal would show that the ground taken was that when the girl was first examined, no external or internal injury was found on her through the victim girl was found to be 15 to 16 years old after ossification test. Further ground was that though PW 1 Gita Devi and PW 2 the victim girl had claimed that the girl was bleeding as result of rape, that was neither confirmed by the medical report, not the Investigating Police Officer had found any blood mark at the place of occurrence. Further ground also was that PW 3, Gaya Devi, wife of Rajo Mahto who was said to be eye-witness, had given contradictory statements in her evidence. It was further averred that Dr. Manorama Prasad, who had examined the victim for the first time did not find the hymen to have been ruptured. That report is Ext. A which is dated 13.8.1988, the date of occurrence being 10.8.1988. 6. From the judgment of the learned lower Court it will appear that the learned Lower Court had not found the evidence of PW 3 Gaya Devi to be reliable and had discarded the evidence in so far as proving the prosecution case was concerned, on the ground that it appeared from the record that the accused side had enmity with her in-laws and that she appeared to be over enthusiast in supporting prosecution case as a result of which she answered in affirmative all the questions that were put to her by the defence. Learned Lower Court has given sufficient reasons for discarding evidence of PW 3 and I do not see any flaw in the reasoning. The learned lower Court appears to have rightly relied upon the evidence of the victim girl and other witnesses including the report of the Medical Board. 7. It may be mentioned that as per Ext. A Dr. Manorama Prasad had found on her investigation that the hymen was intact and she did not find any injury. In her opinion it was difficult to say that rape had been committed. 8. 7. It may be mentioned that as per Ext. A Dr. Manorama Prasad had found on her investigation that the hymen was intact and she did not find any injury. In her opinion it was difficult to say that rape had been committed. 8. From the evidence on record it further appears that on the request of the Investigating Police Officer which he made on the direction of the Superintendent of Police as per his evidence as PW 6 in Para 11, a Medical Board was constituted which filed it report after examination of the girl on 19.9.1988. PW. 5 Dr. Ramanand Prasad Singh, being one of the members of that Board has proved that report as Ext. 3/1 in which the doctors found an old tear of hymen. It has come in the evidence of the victim girl who is PW 2 in paragraph 8, that before the occurrence she had not undergone sexual intercourse earlier. Therefore, the learned trial Court has rightly relied upon the report of the Medical Board, Ext. 3/1, supporting the evidence of victim girl whose evidence the learned trial Court had found to be quite reliable. It may be noted here that the occurrence was said to have taken place on 10.8.1988 whereas the Medical Board had examined the girl on 19.8.1988, as a result of which the tear in the hymen was naturally described to be an old tear. The learned lower Court has given good reasons for not having placed reliance upon Ext. A. 9. PW 1 is Gita Devi, the mother of Rekha Kumari who said that at .8 a.m. in the morning Rekha Kumari had come with blood spots on her at her salvar and samij and explained how the appellant has raped her in the field of Brahmdeo Mahto. she also supported as to how she had gone to inform her husband at Nawadah who thereafter came to the village and thereafter they had gone to the police station where her husband lodged the first information report. In her cross-examination she said that there were no houses at the place of occurrence and she also found some maize plants broken. PW 6, the Investigating Police Officer had also inspected the place of occurrence and he also said that he had found some maize plants broken or trampled. In her cross-examination she said that there were no houses at the place of occurrence and she also found some maize plants broken. PW 6, the Investigating Police Officer had also inspected the place of occurrence and he also said that he had found some maize plants broken or trampled. He also said that this thing he found in the field of Brahmdeo Mahto. This witness has said that on the right thigh of the victim he had seen abrasion. The girl also has said that she had suffered some minor injuries on her body. However, such minor injuries were not likely to be found when the Medical Board had examined the girl about a month and 9 days later. In Ext. A also such injuries were not found but, as already seen, that report has not been found to be credible. About non-finding of the blood mark at the place of occurrence, in the memo of appeal itself it has been stated that the date of occurrence was a rainy day and the victim girl was said to have gone without umbrella. Therefore, in rainy season non-finding of some blood mark at the place of occurrence is not unnatural. In so far as the finding the girl not to be bleeding is concerned, even Dr. Manorama Prasad has examined the girl on 13.8.1988, three days after the occurrence. In any case her report has not inspired confidence. 10. PW 2 the victim girl has fully supported the allegation against the appellant of having forcibly committed rape upon her. She also said that she had shown the place of occurrence to the Police Officer. She also said that she had given her clothes to the Police Officer, the production list of which is Ext. 1. But she clarified that since her clothes had been dirty, she had washed them to remove mud and spots. She has claimed that she was not lying comfortably during rape. She said that the lady doctor had seen the injury. This witness has admitted that she had told the police officer that occurrence had taken place while she was coming after easing herself. However, it is a very minor contradiction which will not lessen the effect of the evidence of the victim girl relating to the actual occurrence. 11. She said that the lady doctor had seen the injury. This witness has admitted that she had told the police officer that occurrence had taken place while she was coming after easing herself. However, it is a very minor contradiction which will not lessen the effect of the evidence of the victim girl relating to the actual occurrence. 11. PW 4 is the father of the girl who has said as to how he was informed about the incident by his wife and as to how he had instituted the case. 12. From a reading of the evidence on record I find that the evidence of the victim girl is quite believable. I dont find any reason as to why the evidence on the point of commission of rape by the appellant should be disbelieved. No reason has come on record to explain why a girl of 15-16 years of age would make allegations of that nature against any one, particularly when it has not been shown that she or her family had any such strong reason to do that. As already stated, the report of the Medical Board which is Ext. 3/1 lends support to the allegation. 13. Therefore, this Court finds that the learned trial Court has rightly convicted the accused for having committed offence punishable under Section 376 of the Indian Penal Code, having found that the prosecution had proved its case beyond reasonable doubts. 14. Some defence documents were also filed on behalf of the appellant in the lower Court and the relevant amongst them had been considered by the learned trial Court. I dont find that those documents are such which could create doubt in prosecution case. 15. In so far as the sentence is concerned, the appellant has been sentenced to undergo rigorous imprisonment for five years only Keeping in view of the nature of offence I do not think that the sentence is excessive. 16. In view of the aforesaid, this appeal fails and is dismissed and the judgment of the learned trial Court and the sentence awarded are hereby confirmed.