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2002 DIGILAW 344 (PAT)

Bhagwan Prasad v. State Of Bihar

2002-03-14

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. As the appellant was usually visiting house of Sirajuddin Mian, no one suspected foul play when in the night of 26th November. 1987 at about 9 p.m. he got the door of the house opened, and on false pre-text of illness of Sirajuddin Mian took Taira Khatoon and her mother to Barkagaon. After Sirajuddin Mian came to his house, he did not find his daughter and wife, and on enquiry made from his younger daughter, he came to know that both his wife and daughter had accompanied the appellant on his persuasion Further enquiry was made by the father and eventually he came to know that appellant had committed sexual assault on Taira Khatoon, and with these accusations, the prosecution was launched on behest of Sirajuddin Mian, pursuant to which investigation commenced. During investigation, the police made recovery of Taira Khatoon and apprehended the appellant, got the prosecutrix examined by the Doctor, visited the place of occurrence, and on conclusion of investigation, laid charge-sheet before the Court. In the eventual trial that commenced, the prosecution examined altogether 6 witnesses including the prosecutrix, her parents, the Doctor and also the Police Officer. 2. The defence of the appellant both before the trial Court and this Court was denial of entire allegations and he ascribed his false implication. The explicit defence of the appellant at trial was that the prosecutrix was married to him and she had also conceived as a consequence of the wedlock, and hence he was not answerable for the charges of abduction of the prosecutrix or commission of sexual assault on her. The defence too examined two witnesses including Dr. Suman Kumar. DW2 who stated to have recorded a finding about the prosecutrix to be of 16 years. and the trial Court on evaluation of testimonies of the witnesses, though did not find the appellant guilty either under Sec. 363 or 366 of the Indian Penal Code, recorded verdict of guilt under Sec. 376 of the Indian Penal code, finding the appellant guilty on that counts and sentenced him to suffer rigorous imprisonment for a term of 10 years. 3. Contentions raised at Bar 9n behalf of the appellant was that once the trial Court had recorded finding of innocence against the appellant under Secs. 3. Contentions raised at Bar 9n behalf of the appellant was that once the trial Court had recorded finding of innocence against the appellant under Secs. 363 and 366 of the Indian Penal Code, no finding of guilt could have been recorded under Sec. 376 of the Indian Penal Code and it is sought to be urged that since volume of documents placed on records on behalf of the appellant would suggest that the appellant had married the prosecutrix, no finding of guilt could have been recorded for ravishing her. The other contention raised at Bar on behalf of the appellant was that in her statement, which she rendered before the Magistrate under Sec. 164 of Cr.P.C., she had belied the accusation attributed to the appellant about he having committed sexual assault on her contrary to her wishes and last argument urged on behalf of the appellant was that since the appellant has suffered ordeal of protracted trial for about 15 years and has remained in custody both as under-trial prisoner and also during the post conviction period for about 39 months, these mitigating circumstances too be taken into consideration while imposing sentence on him, if he is found guilty of the charges recorded by the Court below. Learned counsel appearing for the State resists the contentions raised on behalf of the appellant. 4. Those on whom reliance can be placed to seek corroboration to the prosecution version, include Kaitoon Khatoon, PW3 who happens to be mother of the prosecutrix and also PW 4 Taira Khatoon who was the prosecutrix herself. The facts of the case tell a tale which are not required to be discussed in details, as the same have been spelt out in the judgment recorded by the Court below. However for the sake of brevity evidence of vital significance merits consideration. Both PWs. 3 and 4 were inside their house in the night of incident when the appellant who had been usually visiting their house since last one year, knocked the door, got it opened, pursuant to which hetook both the mother and the prosecutrix in his company on false pretext of ailment of Sirajuddin Mian the father of the prosecutrix. The evidences placed on record do suggest that he took them to Barkagaon where he confined the prosecutrix in a room and eventually committed sexual assault on her. The evidences placed on record do suggest that he took them to Barkagaon where he confined the prosecutrix in a room and eventually committed sexual assault on her. Though there was no evidence on the record about prosecutrix having been clinically examined by the Doctor for ascertainment of commission of sexual assault on her, there was no good reason to discard reliability of PWs 3 and 4, as prosecutrix deserves to be treated like an injured witness and in case of sexual assault no one can be expected to be a witness other than the victim. Though attention of the witnesses were drawn by the defence which was rendered before the Police, they were not on material facts of the case which can negate their assertion about commission of sexual assault on Taira Khatoon. The trial Court while evaluating evidence of the witnesses had also taken into consideration the finding recorded by the Doctor. Suman Kumar DW 2 and other circumstances of the case and came to conclusion that prosecutrix at the material date of incident was quite major. Be that as it may the evidence. unfailingly would suggest that the prosecutrix was taken from her house on false pretext, pursuant to which she was subjected to sexual assault by the appellant and on these premises the conclusion drawn by trial Court, finding the appellant guilty under Sec. 376 of the Indian Penal Code did not merit interference. However certain mitigating and extenuating circumstances deserve consideration for consideration of sentencing the appellant. Volume of documents were placed on record on behalf of the appellant to which attention of the prosecution witnesses were also drawn by the defence though they were negatived by them. Ext. D was an informatory petition on filed by none else but the brosecutrix 17-11-1987 in which she stated to have married the appellant on her own motion, as she was carrying pregnancy of 5 months. Ext. F was a report submitted by the police officer under Sec. 107 of the Cr.P.C. with regard to Sanha No. 607 dated 27-11-1987 about the prosecutrix having married the appellant and residing with him. Similar was the case with Ext. F 11 which was a report submitted by the police in a proceeding under Sec. 107 of the Cr.P.C. with regard to Sanha No. 607, dated 27-11-1987. Similar was the case with Ext. F 11 which was a report submitted by the police in a proceeding under Sec. 107 of the Cr.P.C. with regard to Sanha No. 607, dated 27-11-1987. All these evidences placed on record would manifestly suggest that though the prosecutrix had turned volte face about she having married the appellant these documents would belie the assertion made by her. It has been brought to my notice by the learned counsel for the appellant that he has remained in custody for about 39 months. Regard being had to these mitigating and extenuating circumstances while upholding the conviction the appellant is sentenced to the period already undergone by him and with this modification in sentence this appeal is dismissed.