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2001 DIGILAW 816 (PAT)

Dilip Kumar Jha v. State Of Bihar

2001-08-31

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The appellant was convicted under Sections 376 & 366 of the Indian Penal Code (hereinafter to be referred to as the Code) and sentenced to undergo rigorous imprisonment for ten years under the first count and to undergo rigorous imprisonment for five years under the second count both the sentences having been ordered to run concurrently. 2. Nirmala Kumari, complainant (PW 4) having been born on 5.7.1972 was a minor girl at the time of occurrence. Her father was a railway employee posted at New Jalpaiguri. She along with the members of her family used to reside at a railway colony. Jogbani. The appellant Dilip Kumar Jha along with his father also resided in railway colony at Jogbani. The appellant had ill-intended look upon PW 3 Nirmala Kumari. He used to tease her whenever he happened to see her despite protest being made by her. It so happened that on 22.10.1985 he induced and lured her to visit cinema at Forbesganj along with him. She accompanied him but to her utter dismay and surprise the appellant took her into a hotel there, entered into discourse with her and tried to have sexual intercourse with her. The girl (PW 3) protested and objected to his evil design and intention. However, the appellant forcibly committed rape on her against her will and consent. She started weeping whereupon the appellant gave allurement and temptation to her that he would shortly marry her. The appellant also asked the victim Nirmala Kumari not to divulge the incident to anyone. As per allegation the appellant thereafter had sex with her on several occasions and all the time he made promise and gave assurance to her that he would marry her. In the process Nirmala Kumari became pregnant. She requested the appellant to marry her. She always insisted for marriage but the appellant went on postponing the matter making false promise to marry her in near future. At last, the victim Nirmala Kumari along with her brother Naresh Kumar Raut (PW 3) went to the residential quarter of the appellant on 12.5.1986. Both the brother and the sister requested and insisted for marriage whereupon the father of the appellant got infuriated and he abused and assaulted them and asked them to do whatever they liked. 3. At last, the victim Nirmala Kumari along with her brother Naresh Kumar Raut (PW 3) went to the residential quarter of the appellant on 12.5.1986. Both the brother and the sister requested and insisted for marriage whereupon the father of the appellant got infuriated and he abused and assaulted them and asked them to do whatever they liked. 3. The poor victim Nirmala Kumari who was ravished on several occasions by the appellant on false promise and allurement given to her by the appellant was now at her wits end and broken having no alternative but to file a petition of complaint and she did file the same in the Court of the Sub-Divisional Judicial Magistrate. Araria on the basis of which complaint case No. 93 of 1986 was registered against the appellant and his father Uday Chandra Jha under various sections of the Code. The statement of the complainant (PW 3) was recorded on S.A. The Magistrate embarked upon an enquiry under Section 202, Cr PC in course of which as many as five witnesses were examined. The appellant was summoned to face trial. He was charged under Section 493 of the Code and trial began in the court of the S.D.J.M.. Araria. However, subsequently criminal revision was preferred in which it was held that the material on records established a prima facie case under Section 376 of the Code and accordingly direction was made for commitment of the case. Thereafter the case was committed to the Court of Sessions and the case was registered as Sessions Trial No. 492 of 1988. Trial commenced before Shri Priya Sharan. VI Additional sessions Judge, Purnea. 4. The appellant entered into defence and he examined two witnesses, named, Gopal Prasad (PW 1), Harischandra Thakur (DW 2). As gathered from the trend of cross-examination of the prosecution witnesses and the evidence of the defence witnesses the defence set-up by the appellant seemed to be that he never had any connection with the victim complainant nor did he ever give allurement or temptation to her to marry her nor did he ever commit rape on her nor did she beget pregnancy from him and the instant case was concocted to malign and tarnish his image and honour and prestige of his family. 5. 5. The learned Additional Sessions Judge taking the facts, circumstances and evidence brought on records into account found and held the appellant guilty and he convicted and sentenced him as stated above vide the impugned judgment and order. 6. Aggrieved by the judgment and order of conviction and sentence recorded against him the appellant preferred the instant appeal. He assailed the impugned judgment and order of conviction and sentence by contending that it was not based on law and facts and it was against the evidence on the records inasmuch as out of six witnesses examined by the prosecution three witnesses, namely, Rajan Kumar Yadav (PW 1), Ashok Narayan Singh (PW 2) and Guneshwar Mallick (PW 5) did not support the allegation levelled against the appellant and they were declared hostile by the prosecution and under such circumstance conviction ought not to have been based on the evidence of the victim girl and her brother. 7. It is to be noted at the very outset that in a case of rape the most important witness happens to be the victim herself. The evidence of victim of 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 is entitled to great weight. If the evidence of a victim of sexual assault does not suffer from any basic infirmity or lacuna probability factor does not render it unworthy of credence and conviction of an accused charge with commission of sexual assault can well be passed on uncorroborated testimony of the prosecutrix. 8. In the case at hand the victim girl Nirmala Kumari supported the prosecution case in its entirety by stating on oath that her father was a railway employee and he was posted at Jalpaiguri, however, she along with other members of her family resided at Railway Colony. Jogbani and the appellant along with his father also resided in the same colony and whenever she went out of her house or to her school the appellant used to have illintended look at her and he very often teased her and asked her to permit him to have sexual intercourse with her for which he adopted practice of giving allurement and temptation to her but she always protested against and objected to his sinister eye. She added that on 22.10.1985 the appellant went to her and asked her to accompany him to Forbesganj to visit cinema there. He luring her, took her to Forbesganj but to her utter dismay and surprise he took her in a hotel there and he insisted on her permitting him to have sex with her after giving assurance that he would marry her but she did not get ready and she lodged strong protest against his evil design and intention but despite that he forcibly committed rape on her against her will and consent. She further stated that after being ravished the prosecutrix started weeping whereupon the appellant gave her solace and assurance that he would shortly marry her and thereafter he took her to Jogbani and after that also he committed sexual assault on her on several occasions as a result of which she conceived. After the victim (PW 4) became pregnant she was more anxious for her marriage with the appellant and she requested the appellant time and again for marriage but all the time he evaded and postponed the matter on some pretext and ultimately on 12.5.1986 the victim (PW 4) along with her brother (PW 3) went to the residence of the appellant and requested him as well as his father that the marriage between the two be now solemnized by the appellant and his father got infuriated and they abused and assaulted them. 9. The victim was a minor girl belonging to a tradition bound nonpermissive society. She must be expected to be extremely reluctant to appear in the court and to state falsely that she was ravished for fear that it was to reflect upon her chastity and she might be looked down upon by the members of the society as well as the inmates of her house. She must be hesitant and reluctant to make false statement regarding commission of sexual assault on her before the police and in the court at the instance of some other person. Though, of course, the prosecutrix may be said to be interested in the outcome of the charge levelled by her on a careful and cautious scrutiny of her entire statements. She seems to be worthy of credence and her evidence on commission of sexual assault on her by the appellant inspires confidence. Though, of course, the prosecutrix may be said to be interested in the outcome of the charge levelled by her on a careful and cautious scrutiny of her entire statements. She seems to be worthy of credence and her evidence on commission of sexual assault on her by the appellant inspires confidence. There should be no hesitation in accepting her testimony without looking for any corroboration. However, in the present case the prosecutrix was corroborated by her brother Naresh Kumar (PW 3). His evidence on the point of abduction of the victim and commission of rape on her by the appellant by giving her allurement and the victim begetting pregnancy from him was identical to that of the victim girl (PW 4). It is in the evidence of PW 3 and PW 4 that a male child was born to the victim girl from the appellant on 1.7.1986. PW 3 also stated that when he along with his sister on 12.5.1986 went to the appellant and insisted on his marrying her he and his father abused and assaulted them. 10. The evidence of PW 3 and PW 4 was quite consistent and corroborative, free from inherent taint and infirmity. They were cross-examined at length but nothing material going to adversely affect the edifice of the prosecution case was elicited in their cross-examination. Both the witnesses were reliable and their evidence must be accepted and acted upon. 11. The victim Nirmala Kumari (PW 4) produced & proved two letters (Exts. 1 & 1/1) written to her by the appellant though the appellant denied the letters to be in his pen and signature. The learned Court below on comparison of his signatures on vakalatnama and his statement recorded under Section 313, Cr PC with his signatures on all those documents tallied with each other and as such the letters must be in the writings and signatures of the appellant. I am also in agreement with the learned Court below in holding this view. From the contents of the letter it would transpire that the appellant used to call the victim girl in Seclusion sometime at his residence when other members of his family were out and sometime at cinema hall with the ulterior motive of having sex with her. 12. That the victim having been born on 5.7.1972 was minor aged below fifteen years at the time of incident was not disputed. 12. That the victim having been born on 5.7.1972 was minor aged below fifteen years at the time of incident was not disputed. The matriculation certificate (Ext. 2) testified to the fact that she was born on 5.7.1972. The victim girl (PW 3) being minor was not competent to give her consent to go along with the appellant and to have sex with him. Under the circumstance, even if it is assumed that the victim was a consenting party and she accompanied the appellant out of her own sweet will and consent it would not exonerate the appellant of the charge levelled against him inasmuch as the consent of the victim had no value in the eye of the law. The appellant cannot take the plea that the victim had consented to have sex with him nor was such case set up by the appellant. 13. The appellant examined two witnesses and on the basis of their evidence he wanted to lead the court to hold the view that on 22.10.1985 no room was in the Hotel Natraj where the victim was ravished was booked in the name of the appellant and as such the story of commission of rape on the victim in the aforesaid hotel was pulpably false and baseless. DW 1 Gopal Prasad was the keeper of the hotel. He proved entry made in the register on 22.10.1985 and that was marked Ext. A. The entry (Ext. A) was brought on records to show that no room at all was booked on 22.10.1985. DW 1 stated that no room of the hotel was booked even on 21.10.1985 & 23.10.1985. The learned Court below rightly disbelieved this version of the appellant by observing that the register showed that room Nos. 2, 3, 4, 7, 8 & 11 of the hotel were booked on 22.10.1985 and four rooms were booked on 23.10.1985 and the page meant for entry on 22.10.1985 was blank. DW 1 admitted that the aforesaid Entry (Ext. A) did not bear the signature of either manager or the proprietor of the hotel. DW 2 came forward to say that the victim-complainant did not beget pregnancy from the appellant and as a matter of fact she was a girl of questionable character and her illegitimate child was not born from the appellant. DW 2 was an assistant station master of Jagbani Railway Station. DW 2 came forward to say that the victim-complainant did not beget pregnancy from the appellant and as a matter of fact she was a girl of questionable character and her illegitimate child was not born from the appellant. DW 2 was an assistant station master of Jagbani Railway Station. He was not expected to know the conduct and character of the victim as well as the appellant. In his cross-examination he admitted that his brother had stood the bailor of the appellant. He seemed to be a partisan witness and interested in the appellant. 14. The evidence of victim (PW 4) considered together with the evidence of her brother (PW 3) abundantly established that the appellant on giving inducement and allurement to the victim that he would marry her committed rape on her on several occasions in consequence of which she got pregnant and latter on she delivered of a male child but despite repeated request made by her and her brother the appellant did not get ready to marry her. 15. It is true that PWs 1, 2 and 5 did not support the prosecution case and they were declared hostile by the prosecution and the Investigating Officer was not examined but in view of unimpeachable evidence of the victim and her brother hostility of certain witnesses and non-examination of the I.O. cannot pave the ground for throwing over board the entire prosecution case. 16. The defence that the victim was a free lancer and she had questionable character and the appellant never committed sexual assault on her and she did not beget pregnancy from him and nor was her male child born from him and she concocted the instant case to malign and tarnish his image and prestige and honour of his family does not seem to be probable and plausible and the same can not be accepted. 17. The victim girl Nirmala Kumari was made respondent No. 2 in the appeal. Accordingly, a notice was issued to her. Subsequently, a petition purported to be under Section 482 of the Cr PC was filed on behalf of the respondent complainant, Nirmala Kumari stating therein that she and the appellant were now living as wife and husband and they were leading conjugal life and the male child was also with them. Accordingly, a notice was issued to her. Subsequently, a petition purported to be under Section 482 of the Cr PC was filed on behalf of the respondent complainant, Nirmala Kumari stating therein that she and the appellant were now living as wife and husband and they were leading conjugal life and the male child was also with them. However, despite grant of quite a good number of adjournments neither the appellant nor the victim girl ever turned up. Today while I was dictating order the learned counsel appearing on behalf of the appellant submitted that he had received a telephonic message that the victim was no more in the world and she expired during the pendency of the appeal. Be that as it may, under the circumstance petition referred to above said to have been filed on behalf of the victim can not be said to be maintainable and no notice of the petition as well as the submission regarding death of the victim can be taken and the same must be ignored at this stage. 18. Obviously, the appellant by taking away the victim from lawful custody of her guardian and committing rape on her rendered himself liable under Sections 366 & 376 of the Code. 19. In view of the facts, circumstances and evidence discussed and the observations made in the preceding paragraphs it is to be held that the prosecution brougl t home the charges levelled against the appellant beyond the reasonable doubt. The learned Court below rightly found and held him guilty and convicted him. 20. The appellant was sentenced to undergo rigorous imprisonment for ten years under Section 376 of the Code and to undergo rigorous imprisonment for five years under Section 366 of the Code. It was contended that the incident took place in the year 1985 and since then the appellant had been running to courts and, thus, he had already suffered a lot of harassment and mental agony. Another contention was that the appellant was a young man aged about 22 years at the time of judgment and he was a first offender. In the light of the aforesaid contentions it was submitted that the appellant be sentenced to pay some fine only. 21. Another contention was that the appellant was a young man aged about 22 years at the time of judgment and he was a first offender. In the light of the aforesaid contentions it was submitted that the appellant be sentenced to pay some fine only. 21. Regard being had to the facts and circumstances of the case and the nature of the offence and also keeping in view the fact that the appellant had been running to courts since 1985 the sentence of imprisonment for ten years is reduced to rigorous imprisonment for a period of six years. The sentence awarded to the appellant under Section 366 is maintained. 22. With the aforesaid modification in sentence the appeal stands dismissed. The bail bond of the appellant is cancelled. Let the appellant be directed to surrender himself at once to serve out the sentences awarded to him failing which the court below shall take coercive steps for getting him remanded to jail custody.