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2001 DIGILAW 731 (PAT)

Baidya Nath Yadav v. State Of Bihar

2001-08-14

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. The sole appellant suffered conviction under Section 376 of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for eight years on that count. 2. The factual matrix are that on 17th March, 1997, in the morning hours, while Chunia Kumari (P.W. 10) had been to the field for cutting grass, the appellant gagged her mouth with a piece of cloth, made her naked and ravished her despite all resistehce made by her. Thereafter, appellant left the place and victim on coming back to her house, narrated her woes to her mother. A panchayati was convened in the village to resolve the dispute but since the decision taken in the panchayati was not acceptable to the appellant, she took recourse to the police and with these narrations, the first information report was drawn up at Madhepur Police Station on the following day of the incident and the investigation commenced. During investigation, all processes for conclusion of the investigation were taken by the Investigating Officer, who recorded statements of the witnesses, got the victim clinically examined by the doctor and eventually laid chargesheet before the Court. The appellant on being committed to the Court of Session, was put on trial. In the eventual trial, the prosecution examined altogether ten witnesses including the prosecutrix, her mother, family members, and persons who participated in the panchayati, and the trial court placing implicit reliance on the testimony of witnesses while negatived defence raised on behalf of the appellant about his innocence, found the appellant guilty and sentenced him in the manner stated above. 3. The findings recorded by the trial court was sought to be assailed by the learned counsel for the appellant on premises that though finding of guilt was recorded by the trial court on twin grounds, namely, accusations attributed to him and also extra-judicial confession said to have been made by the appellant, however, it would appear from the evidence of Mahavir Sah (P.W. 6) that shortly after panchayati was convened, appellant began to abuse the punches. Contentions were raised that it is quite unlikely that the appellant who would abuse the punches, would admit his guilt and make extra-judicial confession acknowledging the accusations made to him. Contentions were raised that it is quite unlikely that the appellant who would abuse the punches, would admit his guilt and make extra-judicial confession acknowledging the accusations made to him. The learned counsel would urge that though P.W. 6 and P.W. 9 were stating about extra-judicial confession shown to have been made by the appellant, their evidences would not inspire confidence in view of the strained relation between the parties. Yet it is urged that though a large number of persons were shown to have participated in the panchayati, non of them except P.W. 9 would lend assurance to the prosecution version on this score and in quick succession it is urged that even Suresh Yadav (P.W. 4) and Laxman Yadav (P.W. 3), who were shown to be the punches, had turned volte-face to the prosecution. The next limb of the argument on behalf of the appellant was that as the doctor, who is said to have clinically examined the victim, was not examined by the State, the defence finding no option, examined the doctor as a defence witness and if his evidence is taken into consideration to judge the guilt attributed to the appellant, that would unerringly suggest that the doctor stated to have not noticed any positive evidence about commission of sexual assault on the victim. Non- examination of the Investigating Officer was also taken by the learned counsel for the appellant, as one of the grounds on which the bona fide of the prosecution is to be assailed and lastly, some discrepant statements made by the witnesses were also sought to be highlighted by the learned counsel for the appellant. 4. Now adverting to the evidences placed on record, true it is, that a good number of witnesses brought to the witness box had turned volte face to the prosecution lending no assurance to the prosecution allegation about the guilt attributed to the appellant, yet there were evidences of Mahavir Sah (P.W. 6), Ram Lakhan Sah (P.W. 7), Jagtarini Devi (P.W. 8), Indra Narayan Parihas (P.W. 9) and Chunia Kumari (P.W. 10) which merits consideration. Taking up the evidence of the prosecutrix, one would find that she had reiterated her narrations made before the Police about the appellant having gagged her mouth with a piece of cloth and committed sexual assault on her when she had been to the field for cutting grass. Taking up the evidence of the prosecutrix, one would find that she had reiterated her narrations made before the Police about the appellant having gagged her mouth with a piece of cloth and committed sexual assault on her when she had been to the field for cutting grass. Evidence of the prosecutrix would receive corroboration from the evidence of Jagtarini Devi (P.W. 8) who stated that her daughter had narrated her woes shortly after she came from the field, about the appellant committing sexual assault on her when she had been to the field for cutting grass. Similar had been the evidence of Mahavir Sah (P.W. 6) about the appellant committing sexual assault when the victim had been to the field for cutting grass, and admittedly both P.Ws. 6 and 8 were the persons before whom narration about the woes were made by the prosecutrix. Ram Lakhan Sah (P.W. 7) was one of the punches, and he would state that shortly after a decision was taken in the panchayati to paint the face of the appellant with black colour, he reacted and did assault even the punches. Similar has been the evidence of Indra Narayan Parihas (P.W. 9), who was mukhiya, about holding of panchayati to resolve the dispute and decision having been taken to paint the face of the appellant. 5. Arguments canvassed at Bar on behalf of the appellant about there being no credible evidence about the appellant acknowledging the guilt and making extra-judicial confession before the panchayat was not tenable for the simple reason that both P.Ws. 6 and 9 would state about the extra-judicial confession rendered by him and it was only after the decision was taken by the punches to paint the face of the appellant, that he began to abuse them. 6. Endeavours were made on part of the appellant to persuade the Court to believe that it was a false case foisted on him at the instance of Mukhiya of the Gram panchayat, but barring some bald suggestions made to the witnesses about false implication of the appellant at the instance of Mukhiya, there was no evidence worth the name to lead to conclusion about enmity or hostility with Mukhiya. P.W. 8 Jagtarini Devi, who happens to be the mother of the prosecutrix was emphatic in her evidence that she took recourse to Police, only after panchayati had failed and if mukhiya had accompanied them to the Police Station that would not necessarily lead to the conclusion that he was instrumental in getting the prosecution launched against the appellant. 7. The doctor who examined the prosecutrix found her between 16-17 years of age. Though no positive finding was recorded by the doctor about there being evidence of recent sexual assault on the victim, narrations made by prosecutrix cannot be lost sight of that she was examined by doctor after two days of the incident when she had washed her private parts and also clothes. The evidence of victim of sexual assault stands almost at par with the evidence of injured witness and to some extent it is more reliable, and it is most unlikely that she would spare the real culprit and would falsely implicate the appellant. Though there is no rule of law that the evidence of the prosecutrix should not be accepted unless it is corroborated in material particulars, yet I find that there is sufficient corroboration from the evidence of the mother P.W. 8. Prosecutrix was a competent witness under Section 118 of the Evidence Act and her evidence must receive same weight as is attached to an injured in case of physical violence. One more fact cannot be lost sight of and it is the inherent bashfulness of the female and their tendency to conceal the outrage of sexual atrocity to which the victims are subjected. No. delay can be attributed to the victim in launching prosecution against the appellant for, very good reasons have been assigned, as it took about two days to convene panchayati to resolve the dispute and it was only after the panchayati had failed, that the prosecutrix took recourse to the Police authority. Non-examination of the I.O., in view of the evidence placed on record, would not detract the probative value of evidence of the prosecutrix. It is not unlikely that victims of rape are reluctant to take recourse to Police authority due to social stigma which such incidents usually carry with them. Non-examination of the I.O., in view of the evidence placed on record, would not detract the probative value of evidence of the prosecutrix. It is not unlikely that victims of rape are reluctant to take recourse to Police authority due to social stigma which such incidents usually carry with them. It was quite natural that the villagers, on receipt of information about the incident, firstly took the matter to panchayati, and only after panchayati had failed, they took recourse to Police. 8. On consideration of the evidence placed on record and regard being had to the defence raised on behalf of the appellant at Bar, I find that the finding was recorded by the trial court on meticulous appreciation of the evidences placed on record. There being no merit, the appeal accordingly fails and thus the same is dismissed. Since the appellant has been sentenced to undergo rigorous imprisonment for eight years, the sentence too does not appear to be excessive to warrant any interference.