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2002 DIGILAW 191 (PAT)

Dhiru Singh v. State Of Bihar

2002-02-08

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. The facts of the case are tell-e-tell. Ranjana Bhattacharya alias Babli (P.W. 15), who was prosecuting her studies at Calcutta (Kolkatta), came down to her parents and was living in a quarter at Sonepur, allotted to her father, who was working in a Locoshed, .Railways, Sonepur. As usual, mother used to go to school where she was a mistress but one day when she had gone to school with her other children, leaving Babli alone in the quarters, she was found missing. It is alleged that when the father came to the quarter, he found the quarter locked and the worried father could not find details of whereabout of Babli, even from his wife. The quarter was found locked and key of the lock was supplied to him by his neighbour who told that Babli had gone out with the appellant entrusting him the key of the quarters and with these accusations, the first information report was lodged wih the Police to set it in motion which followed investigation, and during investigation, the Police recorded statements of a number of witnesses including, that of the victim, got her clincally examined by the doctor, inspected the place of occurrence and on conclusion of investigation, laid charge sheet before the Court, pursuant to which the appellant along with others on being committed to the Court of Sessions, was put on trial. While the appellant was charged under sections 366 and 376 of the Indian Penal Code simpliciter, others, who are not the appellants, were also charged with the same offence at trial, that commenced against them. 2. Now, adverting to the evidence placed on record, one would find Srimati Bina Bhattacharya (P.W. 10), reiterating her early version which she rendered before the Police about Ranjana Bhattacharya alias Babli, a minor girl, missing from the quarter, after she left her alone in the quarter to attend school with her children. The prosecution examined Nikhil Bhattacharya (P.W. 2), father of the victim girl and similar narrations were made by him about he having found the quarter locked and Babli missing from there. He would state that the key of the lock was supplied to him by a neighbour. The witness would state that one Vishwanath Singh had been frequently coercing and hurling threats, to get Ranjana Bhattacharya married with the appellant, else that will lead to a disastrous result. He would state that the key of the lock was supplied to him by a neighbour. The witness would state that one Vishwanath Singh had been frequently coercing and hurling threats, to get Ranjana Bhattacharya married with the appellant, else that will lead to a disastrous result. The age of the victim girl has been stated by the father as about 17-18 years. Now, adverting to the testimony of Ranjana Bhattacharya (P.W. 15), who happened to be the victim, one would find her narrating that the appellant had been transmitting letters to her, preceding the incident, and had been hurling threats not to disclose to her parents, receipt of the letters by her allegedly written by him, else her younger sister would be kidnapped. She would state that he had been forcing her to write letters to her parents expressing her desire to marry the appellant. The victim would state that on the day of incident, the appellant came to her and putting her in fear of death, forced her to accompany him and also got one letter (Exhibit 3) written by her. The victim would state her woes making narration, inter alia, that she was taken to various places by the appellant and others including Jasidih, Bokaro, Patna and Hajipgr where he stayed with the victim in hotel at Hajipur. He married her, contrary to her will and eventually ravished her. Her statement was also recorded by a magistrate under section 164 of the Code of Criminal Procedure. She was also clinically examined by the doctor. 3. Evidence of some other witnesses were also sought to be placed on the record and these are the evidence of one Ram Kumar Verma (P.W. 3), who stated that the appellant had taken away the victim girl with him on tempo to Hajipur and similar was the evidence of Santosh Kumar (P.W. 4), who was a neighbour, about one person having taken Babli in his company on a tempo, though the witness would not claim identification of the male member. While Manoj Kumar (P.W. 5) was tendered by the prosecution, Yogendra Baitha (P.W. 6) simply stated to have learnt about the appellant having taken the victim girl with him. Other witnesses is Babita Bhattacharya, younger sister of the victim, and she happens to be P.W. 7. While Manoj Kumar (P.W. 5) was tendered by the prosecution, Yogendra Baitha (P.W. 6) simply stated to have learnt about the appellant having taken the victim girl with him. Other witnesses is Babita Bhattacharya, younger sister of the victim, and she happens to be P.W. 7. She would state that while her mother had been to the school and Babli was alone in the quarter, she came to know that one person had come and taken Babli in his company. She stated to have noticed the appellant in the quarter even preceding the date of incident. Thekani Mahto (P.W. 8) turned volte face to the State, while Baikunth Prasad (P.W. 9) was a formal witness and there was nothing in his evidence to merit consideration. Manowar Hussain (P.W. 11) was the manager of Sheeshmahal Hotel and his evidence was that a lady had come with a male member for stay in the hotel. This witness too was declared hostile by the State. Since Baikunth Prasad (P.W. 12) was not cross examined by the defence, his evidence did not merit consideration. Shri Amlendu Kumar Sinha (P.W. 16) was magistrate who stated to have recorded statement of the victim girl under section 164 of the Code of Criminal Procedure. Shri Shambhu Nath Singh Veer (P.W. 17) happened to be the Investigating Officer of the case who stated to have recorded statement of the mother of the victim, got the statement of the victim girl recorded under section 164 of the Code of Criminal Procedurre by a magistrate, apprehended the victim girl with the appellant, got the victim examined by the doctor and on conclusion of the investigation, laid charge sheet before the Court. The last witness Bageshwari Roy (P.W. 18) was also a formal witness and there was nothing material in his evidence to merit consideration. Dr Rajeshwar Triwari (P.W. 13) was a Radiologist who recorded his finding in his report Exhibit 7, about assessment of the age of the victim girl on the strength of X-ray plate which are exhibits 8 and 8/1 and the doctor assessed age of the victim below 18 years. The other doctor examined by the State was Dr. (Mrs) Bimla Sahi (RW. 14) who too assessed age of the victim below 18 years. The other doctor examined by the State was Dr. (Mrs) Bimla Sahi (RW. 14) who too assessed age of the victim below 18 years. Though the doctor did not find evidence of external or internal violence or injury on the person of the victim, she noticed her hymen old-ruptured. Though there was no spermatozoa in the swab, the doctor was of the opinion that the victim was used to intercourse, as there was ruptured hymen. 4. The defence too examined two witnesses including one Baban Prasad Sinha, Advocate (D.W. 1), who brought an affidavit allegedly sworn in by the victim, on record. The other witness examined by the defence was Dr. Ram Bachan Thakur (D.W. 2), who stated to have assessed the age of the victim to be about 20 years. This is all the evidence adduced on behalf of the State and the appellant. 5. The trial court on appreciation of evidence placed on the record, while acquitted rest of them who were put on trial, of the charges brought against them, rendered verdict of guilt under sections 376 and 366 IPC against the appellant finding him guilty on both the counts and sentenced him to suffer rigorous imprisonment for seven years on each count. 6. The findings recorded by the trial court were sought to be assailed by the learned counsel for the appellant on the premises that even the mother of the victim who was expected to disclose age of her daughter, in explicit terms, had not stated so in her evidence. The contentions were raised that against the vague statement made by the parents of the victim, about the age of Ranjana Bhattacharya, there was evidence of the doctor examined on behalf of the appellant who noticed the victim, of the age of 20 years and that apart, it is urged, that assuming the finding recorded by the two doctors to be true on face value, if the variation of two years on either side be taken into consideration, that did not conclusively lead to the conclusion that the victim was minor on the date of occurrence. 7. Commenting on the finding recorded by the doctor, it is sought to be urged that it would appear from the tenor of evidence that in fact the person who was examined by the doctor was the younger sister of the victim girl whose name is Babita Bhattacharya. 7. Commenting on the finding recorded by the doctor, it is sought to be urged that it would appear from the tenor of evidence that in fact the person who was examined by the doctor was the younger sister of the victim girl whose name is Babita Bhattacharya. In quick succession the other limb of argument pressed into service on behalf of the appellant was that taking into consideration totality of the circumstances and also the evidence placed on record, it was most unlikely that even though the victim girl was taken to various places including public places, had she not been willing to accompany the appellant, she was expected to raise alarm to leave his company. The evidence of Manager of the hotel is also assailed for the reason that he too had not disclosed identity of the appellant. Reliance was also placed on letter (Exhibit A) allegedly written by Ran/ana Bhattacharya and it is sought to be urged that, that would unerringly lead to the conclusion that the victim was trading love affairs with the appellant for some time past and it was on her own motion, that she gave company to the appellant and the last argument canvassed on behalf fo the appellant was that the appellant had been in custody for more than two years. 8. Moot point which fell tor consideration before the trial Court and also this Court was about assessment of age of the victim, and the trial court has taken into consideration not only the evidence of the two doctors examined by the State but also the evidence of the parents of the victim lady and also the victim herself, and there has been clinching evidence of these winteses to suggest that the victim was not major at the material time of incident and hence competent to exercise discretion. The finding recorded by the doctor examined on behalf of the appellant contrary to these clinching evidence placed on record by the State did not appear to be based on scientific observation made by the doctor. 9. The trial court also took into consideration the evidence of the witnesses as to whether Ranjana Bhattacharya left her house on her own motion and gave company to the appellant and on this score taking into consideration the evidence of the father (P.W. 2), Ram Kumar Verma (P.W. 3), Santosh Kumar (P.W. 4). 9. The trial court also took into consideration the evidence of the witnesses as to whether Ranjana Bhattacharya left her house on her own motion and gave company to the appellant and on this score taking into consideration the evidence of the father (P.W. 2), Ram Kumar Verma (P.W. 3), Santosh Kumar (P.W. 4). Jogendra Baitha (P.W. 5), and Ranjana Bhattacharya (P.W, 15), it came to conclusion that on consideration of the evidence that she was forced to accompany the appellant, the element of her willingness was totally wanting. The father and mother of the victim girl even stated before the Court that one Vishwanath Singh had been putting pressure on them to get Ranjana Bhattacharya married with the appellant and to crown all, that has been the evidence of the victim also which cannot be brushed aside or discarded simply on assumption of some facts which are not borne out by the record. Ranjana Bhattacharya would state that the appellant used to visit her with revolver during the absence of her parents and Exbt. A was written by her under duress. In view of threat perception, she was not expected to raise alarm, when the appellant took her to various places. 10. The Court below on strength of the evidence placed on record has also come to the finding about commission of sexual assault on the victim by the apellant when she stayed in Sheeshmahal Hotel at Hajipur. Dr Bimla Sahi, who clinically examined the victim, did not find live spermatozoa in the swab, and it was quite unlikely that live spermatozoa would be found, when the victim was examined by the doctor on 24.2.1988, after efflux of about two days of the date of the incident. The doctor has found her hymen ruptured which ostensibly suggests the evidence of intercourse with her at some point of time. The trial court while recording its finding also made an observation which merits consideration that it was not a pure love affair and Accused had some ill-motive. He did not have sex affair with her till her marriage and it was only after marriage that sex affair followed between them. 11. Though the victim was not major to exercise her discretion to give her company to the appellant, latter with unholy object persuaded her to accompany him. He did not have sex affair with her till her marriage and it was only after marriage that sex affair followed between them. 11. Though the victim was not major to exercise her discretion to give her company to the appellant, latter with unholy object persuaded her to accompany him. The impugned judgment also bears testimany about reprehensible behaviour of the appellant at trial, who had been threatening Assistant Public Prosecutor even when he was in custody. Regard being had to the totality of the circumstances which have been highlighted at Bar on behalf of the appellant, while finding recorded by the trial court about guilt of the appellant under sections 366 and 376 IPC, is affirmed, the sentence imposed is reduced to the period of four years and with this modification in sentence, this appeal is dismissed. The bail bonds of the appellant are cancelled and he is directed to surrender in the court below to serve out the sentence. Trial court is also directed to take the appellant in custody forthwith.