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2003 DIGILAW 1016 (PAT)

Rangila Choudhary v. State Of Bihar

2003-09-16

INDU PRABHA SINGH

body2003
Judgment Indu Prabha Singh, J. 1. The sole appellant has been Convicted u/s. 366 (A) and 376 of the Indian Penal Code, 1860 and was sentenced to undergo R.I. for five years with a fine of Rs. 500.00 and further sentenced to undergo RI for seven years with a fine of Rs. 500/ for the offence u/s. 376 of the Indian Penal Code, 1860 . However, both the sentences were ordered to run concurrently. 2. The prosecution case, in short is that on 16-10-1998 Marachhi Devi, the daughter of the informant, was married with one Pahari Choudhary. It has been further alleged that on 10-10-1998 the appellants/Rangila, Choudhary, Hiram Choudhary and Nagendra Choudhary, kidnapped his daughter who was aged about 13 years. It has further been alleged that while she was taken by the accused persons she took away a box containing ornaments, clothes and cash worth Rs. 2000.00 . According to the report his daughter was minor and as such she had no maturity of understanding of good or bad. She was kidnapped for selling her or to remarry or to force her to do any illicit inter course. His wife Sharda Devi, had also informed that the accused Rangila Choudhary had come to her house some time before the kidnapping and talked to her daughter and enticed away her On the written report of the informant the case was registered under the aforesaid sections and after completion of the investigation charge-sheet was submitted against three accused and on the basis of the charge-sheet cognizance was taken. The learned Magistrate committed the case to the Court of Sessions. The trial ultimately culminated in the conviction and sentence as discussed above. 3. The appellant pleaded not guilty, as he has committed no offence. 4. The prosecution examined altogether nine witnesses to substantive the charges against the appellant, PW1, Yogendra Choudhary, PW2, Bindeshwari Choudhary, PW 3, Harihar Mahto and PW 4, Shambhu Choudhary, have been declared hostile. PW 5, Sharda Devi is the mother of the victim girl. PW 6, Govinda Choudhary is the father of the victim PW7 is Marachhi Devi is the victim, PW 8, Lal Babu Prasad, is a formal witnesses who has proved the formal First Information Report (Ext. 1). PW 9, is Dr. Jasbir Sharan who has examined the victim girl. PW 5, Sharda Devi is the mother of the victim girl. PW 6, Govinda Choudhary is the father of the victim PW7 is Marachhi Devi is the victim, PW 8, Lal Babu Prasad, is a formal witnesses who has proved the formal First Information Report (Ext. 1). PW 9, is Dr. Jasbir Sharan who has examined the victim girl. PW 6 is the informant, the father of the victim, who has fully supported the case of the prosecution. According to him the accused, Rangila Choudhary, Nagendra Choudhary and Hirman Choudhary had kidnapped his daughter who was aged about 13 years at that time. According to him her daughter was minor and as such she was not able to understand, good or bad and she was kidnapped by the accused persons with an intent to sell her or to remarry her or to force to do illicit sex. According to him he came to know about kidnapping of his daughter through his wife and villagers. They told that accused Rangila Choudhary, Hirman Choudhary had come to his house and he was seen him talking with her daughter. Thereafter, she was traceless. After hectic search when the victim could not be traced out he gave a fardbeyan on the basis of which the FIR was drawn up. 5. PW 7 Marachhi Devi the victim girl, has also supported the case of the prosecution in her deposition as well as the statement recorded under Section 164 of the Code of Criminal Procedure which was marked as Ext. 3 and is available on the record. According to her she was married with one Pahari Choudhary. On being deserted by her husband, Pahari Choudhary, again she was married with one Lalu Choudhary. She was stated that her father had lodged the FIR. According to her on the date of the occurrence accused Rangila Choudhary came to her house and asked her that her husband, Pahari Choudhary had called her. Thereafter, she alongwith her clothes and ornaments accompanied the accused, Rangila Choudhary but she did not find her husband there. She saw the other co-accused persons, Hirawan Choudhary and Nagendra Choudhary. Thereafter, she was taken to Sugauli and there she did not meet her husband, Pahari Choudhary. She has stated in para 4 of her deposition that at Sugauli the appellant, Rangila Choudhary committed rape on her. She saw the other co-accused persons, Hirawan Choudhary and Nagendra Choudhary. Thereafter, she was taken to Sugauli and there she did not meet her husband, Pahari Choudhary. She has stated in para 4 of her deposition that at Sugauli the appellant, Rangila Choudhary committed rape on her. Thereafter, she was again taken to Motiyaraia village and there again the appellant Rangila Choudhary committed rape on her. Then Rangila Choudhary took her to Janakpur and committed rape on her there. From Janakpur the appellant Rangila Choudhary took her to Amolwa village and he kept her there and committed, rape on her. In this way she was forced to roam with the appellants from place to place for about a month. Thereafter, they again came to Sugauli Railway Station where the police came and both were arrested. She was taken to Mothihari by the police where her statement was recorded u/s. 164 Cr. PC. by the Magistrate in which she narrated the whole story to the Magistrate. In her cross-examination she had stated that when she was taken to the Magistrate by the police and whatever she stated before the police she stated before the Magistrate. She has stated in paragraph 23 of her cross-examination that the accused persons have committed nothing wrong with her and she stated about the commission of rape because her father had lodged the FIR. 6. The Doctor is PW 9 who examined the victim girl on 24-12-1998. PW 9 Dr. Jasbir Sharan, in course of examination, found the following on her person. She was 5 1"of height; developed, she had hymenal tear 2 fingers admitted in her vagina She opined her age about to be 16 to 17 years. The victim appears to be habituated to sexual act. She found no injury on her body or any sign of rape on her body. 7. Learned Counsel for the appellant submitted that the Investigating Officer has not been examined by the prosecution and there is contradiction in the deposition of the prosecution witnesses, PW1, PW2, PW3 and PW4 have not supported the case of the prosecution. As such the conviction against the appellant is not sustainable in the eye of law. 8. Learned Counsel for the appellant has submitted that IO of this case was not examined which has prejudiced the case of defence. However, in such case, the IO has tittle role to play. As such the conviction against the appellant is not sustainable in the eye of law. 8. Learned Counsel for the appellant has submitted that IO of this case was not examined which has prejudiced the case of defence. However, in such case, the IO has tittle role to play. Hende, the non-examination of IO has not prejudiced the case of the defence. As submitted even though there is contradiction in the deposition of the victim girl but as she was minor at the time of the occurrence and such contradictions are natural. She had specifically deposed before the Court that (sic). In such cases of rape there cannot be witnesses to occurrence and ever the accused can be convicted on the sole testimony of the victim. As per the opinion of medical expert she was minor and was taken away by the appellant without Consent of her legal guardian with intent to do illicit sex with her. Hence, the Court below has rightly convicted the appellant for the offence under Secs. 366A and 376 of the Indian Penal Code, 1860 I see no reason to interfere with the conviction of the appellant. 9. The learned Counsel for the appellant submitted that the occurrence took place in the year 1998 and the appellant is in jail since then. It has also been submitted that according to the medical expert no spermotozowa was found. It has been also submitted that she has clearly denied in her cross-examination about the allegation of rape against the appellant, but the Court below did not consider this point and also other points of contradiction by herein her deposition. As such it has been submitted that some lenient view can be taken in awarding sentence. 10. Considering the submission of learned Counsel and in the facts and circumstances of the case, I am of the view that it will be expedient in the ends of justice, if the sentence of the appellant is reduced to the period he has already undergone in custody, 11. With me aforesaid modification the appeal is dismissed. The fine awarded by the learned Court below is maintained.