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2002 DIGILAW 948 (JHR)

Upendra Singh And Gunjan Singh v. State Of Bihar

2002-08-30

HARI SHANKAR PRASAD

body2002
JUDGMENT Hari Shankar Prasad, J. 1. Both these appeals are directed against the judgment dated 27.11.1996 passed by Sri Gangad-har, 1st Additional Sessions Judge, Gumla in S.T, No. 323/93, corresponding to G.R. Case No. 438/93, whereby the learned 1st Additional Sessions Judge held appellant Gunjan Singh guilty under Section 366, IPC and sentenced him to undergo R.I. for 3 years and to pay a fine of Rs. 500/- and in default of payment of fine to further undergo RI for six months and held appellant Upendra Singh guilty under Section 366, IPC and sentenced him to undergo RI for 5 years and to pay a fine of Rs. 500/- and in default of payment to further undergo RI for six months and the learned 1st Additional Sessions Judge also held appellant Upendra Singh guilty under Section 376, IPC and sentenced him to undergo RI for 7 years and to pay a fine of Rs. 1000/- and in default of payment to further undergo RI for one year. However, the learned 1st. Additional Sessions Judge directed that both the sentences shall run concurrently. 2. The Sessions Trial No. 323/93 has arisen out on the basis of statement of Jharia Ram, informant, and a Palkol P.S. Case No. 36/93 dated 11.6.1993 under Sections 366/376, IPC was registered and investigation was taken over by Rameshwar Ram, S.I., Palkot P.S. 3. Prosecution case in brief is that the informant Jharia Ram, Rukmani Kumari and inmates of the house were sleeping in the house and at about 11.30 p.m. Jharia Ram woke up and saw his daughter Rukmani Kumari, aged about 13 years and six months was not in the room in which she was sleeping. He waited for return of his daughter but all in vain and thereafter he had his family members began to search for Rukmani Kumari and during the search he came to know that appellants Upendra Singh and Gunjan Singh were absent from the village. He further came to know that both Upendra Singh and Gunjan Singh have gone towards Gumla on the motorcycle of one Bimal Oraon. During the search Jharia Ram, informant, entered into the campus of Maharaja Circus at Gumla on 10.6.1993 at about 1 p.m. where he saw the appellant Gunjan Singh. He further came to know that both Upendra Singh and Gunjan Singh have gone towards Gumla on the motorcycle of one Bimal Oraon. During the search Jharia Ram, informant, entered into the campus of Maharaja Circus at Gumla on 10.6.1993 at about 1 p.m. where he saw the appellant Gunjan Singh. He made request before the Gumla Police Station, whereupon Gunjan Singh was arrested and brought to the Gumla police station to enquire into the incident, Gunjan Singh confessed there that he and Upendra Singh have kidnapped the girl with an ill intention but he did not furnish the correct address where Upendra Singh had taken away the girl. Informant expressed doubt about the murder of his daughter after commission of rape. The family members of Gunjan Singh threatened the informant on account of arrest of Gunjan Singh. Thereafter FIR was lodged on 11.6.1993 in Palkot P.S. for taking strong legal action against the appellants and for recovering the victim girl and on that basis the aforesaid FIR was registered against the appellants and both were found guilty and were convicted. 4. Defence taken by appellants is total denial of occurrence and of false implication by the informant. 5. The prosecution, in order to prove its case, has examined six eye- witnesses. PW 1 is Rukmani Kumari, the victim girl herself. PW 2 is Munni Devi, who is mother of the victim girl. PW 3 is Jharia Ram, who is father of Rukmani Kumari. PW 4 is Jai Mangal Lakra, a Bench Clerk of Judicial Magistrate Sri Binod Prasad. PW 5 is Rameshwar Ram, who is IO of the case and PW 6 is Dr. Anuradha Kachchap, who has examined the victim girl. 6. Some defence witnesses namely Madhusudan Prasad, DW 1 and Rambriksh Singh, DW 2 have been examined on behalf of Gunjan Singh. After scrutinizing the evidences both oral and documentary led by both sides, learned Ist Additional Sessions Judge came to the finding and held appellants guilty and convicted them accordingly. 7. Assailing the judgment, the learned counsel for the appellants submitted that the victim girl was a consenting party and, therefore, she did not arise alarm at any place otherwise if she would have raised alarm the kidnappers would have been caught, but since she was a consenting party, she did not raise any alarm. 7. Assailing the judgment, the learned counsel for the appellants submitted that the victim girl was a consenting party and, therefore, she did not arise alarm at any place otherwise if she would have raised alarm the kidnappers would have been caught, but since she was a consenting party, she did not raise any alarm. The learned counsel further submitted that the victim girls evidence in Court and her statement under Section 164, Cr PC do not tally with each other. Learned counsel further pointed out that the victim girl used to write letters to Upendra Singh, from perusal of which it will appear that she was a consenting party and, therefore, no case of rape is made out. Learned counsel further pointed out that the appellant Gunjan Singh is not at all concerned with the occurrence and he has got a number of children and his house is situated in such a way where the victim girl cannot be brought to stay in the house and all allegations are nothing but a concoction and this appellant has falsely been implicated in this case. Learned counsel for the appellant Upendra Singh submitted that no case is made out against him because the girl was in love with him and she was a consenting party and she is a major girl above 18 years of age. Learned counsel further pointed out that all the witnesses are interested ones and this case has been lodged at the instance of police. 8. PW 1 is the prosecutrix. She has deposed that 2-1/2 years ago on 9.6.1993 at about 11 p.m. she was studying in the room and at that very time she came out to make out water and at that time appellant Upendra Singh caught her hand and showed her a round article like bomb and asked her to accompany him for visiting circus. She has further deposed that when she said that she would not go and wanted to raise alarm, he threatened to commit her murder and further to commit the murder of her parents. At that time her parents were asleep in the house. She has further deposed that appellant Upendra Singh caught her hand and dragged her to the house lying in front of her house and kept her there for the whole night and committed rape on her. At that time her parents were asleep in the house. She has further deposed that appellant Upendra Singh caught her hand and dragged her to the house lying in front of her house and kept her there for the whole night and committed rape on her. She has further deposed that before Sun rise both the appellants took her on a motorcycle to Gumla. She protested but they threatened to beat her. She further deposed that she was kept in the house of brother of appellant Upendra Singh and at that place also she requested to reach her house but they refused. Therefter appellant Upendra Singh brought her by bus to a village in Hazaribagh and kept her there for two days and committed rape on her. She has further deposed that brother of appellant Upendra Singh came there and on his persuasion appellant Upendra Singh brought her to Palkot and handed her over to police. 9. PW 2 is mother of PW 1. She has stated what has been stated by PW 1. 10. PW 3 is father of PW 1. He has deposed that after performing his duty he came to house and after taking dinner he slept. He has further deposed that he came out from the house for making water and found the door of the house open and also the door of the room where his daughter used to sleep was open, then he found his daughter absent from the room. He has further deposed that he waited for some time but she did not come then he informed his family members and searched for his daughter in the Basti but she was not found. He further deposed that in the morning search was again made then in the way he met with Kunti Kumari, sister of appellant Upendra Singh. Then Kunti Kumari enquired from him as to where he was going and then he disclosed that he was in search of his daughter then Kunti Kumari informed him that Rukmani Kumari has been taken away by appellants to Gumla. Then Kunti Kumari enquired from him as to where he was going and then he disclosed that he was in search of his daughter then Kunti Kumari informed him that Rukmani Kumari has been taken away by appellants to Gumla. He further deposed that he again came to Gumla and searched his daughter and he went inside the circus pandal and he found appellant Gunjan Singh sitting there and he narrated the occurrence to Gumla Police present there, who arrested appellant Gunjan Singh and there he was examined and he confessed to have brought Rukmani Kumari to Gumla but at the present moment he cannot say that where she is staying. He further deposed that next day he again came to Gumla P.S. and gave in writing (Ext. 1). He has further deposed that on 14th he was called in Gumla P.S. where his daughter was also present and his daughter disclosed the sequence of events to him. 11. PW 4 is a formal witness, who has proved the statement of Rukmani Kumar recorded under Section 164, Cr PC by Sri Binod Prasad Singh, learned Judicial Magistrate (Ext. 2). 12. PW 5 is IO of the case. He drew the formal FIR and recorded re-statement of the informant and,inspected the PO. He has deposed that. PO is the house, of the informant. He has further deposed that on 13.6,1993 at about 7.30 p.m. appellant Upendra Singh with Rukmani Kumar (PW 1) came to the police station and appellant Upendra Singh was arrested. He has further deposed that he recorded the statement of Rukmani Kumari under Section 164, Cr PC and sent her for medical examination. 13. PW 6 is lady doctor, who examined; the victim girl and found the following in juries :-- "On genital examination of the victim girl I found that her body was average built. Height 5, teeth 14 x 14 with each jaw. Lower last molow was in erupting stage. Axllllary hair and pubic hair present. Mewarchy 5 to 5-1/2 year before. According to physical, chemical and radiological examination she was about 18 to 19 years of age. On genital examination any type of staining, foreign hair and injury not found. Hymen not ruptured. Vaginal semen examination, spermatozoa not found. I did not find any evidence of rape." 14. Axllllary hair and pubic hair present. Mewarchy 5 to 5-1/2 year before. According to physical, chemical and radiological examination she was about 18 to 19 years of age. On genital examination any type of staining, foreign hair and injury not found. Hymen not ruptured. Vaginal semen examination, spermatozoa not found. I did not find any evidence of rape." 14. According to the doctor she has mentioned the age of the victim girl in the injury report (Ext. 6) as 19 in different ink. 15. The learned counsel for the appellants had taken, the plea that the victim girl was a consenting party and she had gone to her own desire but from perusal of evidence of prosecutrix it nowhere appears that a suggestion or a question in cross-examination has been suggested to PW 1 that she went out of her desire and she was not kidnapped. Whatever suggestion has been advanced to her is that no such occurrence as alleged has taken place and appellants never took her to any other place. A letter was shown to her but she refused and said that the letter is not in her handwriting and that much is the only material which was brought on record but that letter has not been properly proved and was marked X for identification. Further the learned counsel for the appellants has taken the plea that the statement of the prosecutrix recorded under Section 164, Cr PC and her substantive evidence in Court do, not tally but not a single statement of, her recorded under Section 164. Cr, PC was put to her that she has given her statement under Section 164, Cr PC, which does not tally with her substantive evidence and this piece of material has not been brought on record. Further contention of the learned counsel for the appellants is that all are interested witnesses and, therefore, no reliance should be placed on their evidence and it is also not worthy of acceptance because in such cases only interested persons come and depose, but the evidence, of such interested person should be carefully scrutinized and seen whether the evidence is biased one or not. Here in the instant case prosecutrix (PW 1) was kidnapped and rape was committed on her. PW 1 has also so stated, her mother appearing as PW 2 and father appearing as PW 3 have also so stated. Here in the instant case prosecutrix (PW 1) was kidnapped and rape was committed on her. PW 1 has also so stated, her mother appearing as PW 2 and father appearing as PW 3 have also so stated. Now the question is in such a case parents generally try to conceal the offence of rape committed on their daughter but here father and mother both have come to say that rape has been committed on their daughter. Admittedly PW 1 is an unmarried girl and due to this very incident it will be some difficulty for father to marry his daughter and, therefore, for this very reason parents generally try to conceal or even girls try to conceal the offences committed on them, but PW 1 has boldly stated about commission of rape. If, as pleaded by learned counsel for the appellants, PW 1 was a consenting party then his father would have come to rescue the appellants. As doctor (PW 6) has found the age of the victim girl as 18-19 years but from perusal of injury report it will clearly appear that doctor has initially found her age about 18 years and subsequently through another pen she inserted 18 to 19 years. She has clearly mentioned in her report (Ext. 6) that she is about 18 years (eighteen) years of age but later on by manipulation by another ink in her own handwriting she has added 18 years to 19 years (eighteen to nineteen), which is a clear cut manipulation. She has tried to help the appellants so that a different case may be made out provided the prosecutrix is gained over to say that she has gone put of her own will and in that case no case could have been made out and appellant would get acquittal. 16. During the course of argument learned counsel for the appellants has further pleaded that the doctor (PW 6) has found no rape was committed and, therefore, there is no evidence of rape. 16. During the course of argument learned counsel for the appellants has further pleaded that the doctor (PW 6) has found no rape was committed and, therefore, there is no evidence of rape. But when doctor has been found to help the appellants by making interpolation in the report, it cannot be said that she has given an independent report and on the other hand the prosecutrix has given her age as 13 years and Court has assessed her age of 15 years and it will also appear that at the time of alleged occurrence she was studying in 5th Class and as such in normal circumstance the age of prosecutrix must be around that and she has clearly asserted in her evidence in Court and in her statement under Section 164, Cr PC (Ext. 2) that appellant Upendra Singh had committed rape on her while in course of taking her to different places. PW 5 has further stated that Upendra Singh had come to the police station along with PW 1 and had handed her over to police and at that time he was arrested. But on the other hand the evidence of DWs in the face of so much material is of no help to the appellants. 17. Considering the facts and circumstances of the case and the materials brought on record, both oral and documentary, I find that the impugned judgment and order of sentence requires no interference. 18. In the result, I find no merit in both these appeals, which are accordingly dismissed.