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2003 DIGILAW 1110 (PAT)

Upasi Sada v. State Of Bihar

2003-10-28

BRAJ NANDAN PRASAD SINGH

body2003
Judgment BRAJ NANDAN PRASAD SINGH, J. 1. The sole appellant suffered conviction under Section 376 of the Indian Penal Code (IPC) on being tried by 3rd Additional Sessions Judge, Madhepura and was sentenced to suffer rigorous imprisonment for a term of seven years. 2. Factual matrix centering round the prosecution case was that at about 5 p.m. on 28th March, 2000 while Bimal Devi (PW 4) was scrapping grass in the field, appellant came, tied her hands with a piece of cloth, thrashed her on the ground and violated her person despite all entities made by the prosecutrix. The victim narrated her woes to her mother and uncle, pursuant to which a panchayati was convened in the village but the appellant did not participate in the said panchayati. The prosecution was launched on behest of prosecutrix on 29th March, 2000, pursuant to which investigation followed. In course of investigation, Police Officer entrusted with onerous task of investigation, recorded statement of witnesses, visited place of occurrence, got prosecutrix clinically examined by the doctor and on conclusion of investigation laid charge sheet before the Court. 3. In the eventual trial, State examined seven witnesses including prosecutrix, her mother, doctor and also two Police Officers also among them. Defence of the appellant both before Court below and this Court had been that of innocence and his false implication at the instance of are Lal Singh, the landlord of the prosecutrix. Defence, however, had not chosen to examine any witness and the trial Court while negativing plea of innocence of the appellant, recorded finding of guilt under Section 376, IPC and sentenced the appellant in the manner stated above. 4. A brief resume of the narrations made by the prosecution witnesses may be brought on the record to appreciate contentions raised. Reiterating her earliest version, Bimal Devi (PW 4) stated at trial about appellant having committed sexual assault on her while she was scrapping grass in the field and also about narrating her woes to her family members. She states to have rendered her statement before the Police to set the Police in motion. Maya Devi (PW 3) happens to be mother of the prosecutrix who too was shortly informed by the prosecutrix about her woes and she states in Court in similar terms. Though doctor Dr. She states to have rendered her statement before the Police to set the Police in motion. Maya Devi (PW 3) happens to be mother of the prosecutrix who too was shortly informed by the prosecutrix about her woes and she states in Court in similar terms. Though doctor Dr. Saroj Singh (PW 7) who clinically examined the prosecutrix did not render any finding about there being any evidence of commission of sexual assault on the prosecutrix, had noticed old ruptured hymen. Abdul Kalam Khan (PW 5) the Sub-Inspector of Police stated that a Police case had been instituted on strength of written complaint of the prosecutrix. He recorded statement of witnesses, visited place of occurrence, got the prosecutrix clinically examined by the doctor and made over charge of investigation to his successor. Chandrika Prasad Singh (PW 6) simply states to have laid charge-sheet before the Court on strength of investigation concluded by his predecessor and it seems that he did not make any contribution towards investigation. 5. One may also take notice of evidence of Deo Narain Yadav (PW 1) who had simply brought First Information Report on record and there being nothing material in his evidence, no further comment can be made in his evidence. Though Sitabai Sada (PW 2) had turned volte face to the State, it seems from evidence of the Investigating Officer that before Police during investigation, he stated to have learnt about sexual assault on the prosecutrix from her. This is all the evidence that has been adduced on behalf of the State. 6. Contentions are raised that barring sole testimony of the prosecutrix, there has been no evidence of other witness to lend assurance to the accusations attributed to the appellant, and that apart, if her evidence was to be given any credence, she was not even conversant with the appellant preceding the day of incident. Submission is that evidence of none else but Maya Devi (PW 3} would suggest that since appellant was hostile to Lal Singh, who happened to be her landlord, appellant was falsely implicated in the case on behest of said Lal Singh. Submission is that evidence of none else but Maya Devi (PW 3} would suggest that since appellant was hostile to Lal Singh, who happened to be her landlord, appellant was falsely implicated in the case on behest of said Lal Singh. Referring to evidence of Bimal Devi (PW 4), the prosecutrix, learned counsel would submit that narrations made by her in paragraph 4 of her deposition would rather show that what was stated by her, was at the instance of Lal Babu Singh, and it was at his instance that Police case was instituted and he had also borne the expenses of litigation. The comment on the finding of the doctor was that neither there was any evidence about commission of sexual assault on the prosecutrix nor there was any mark of violence on her person. Referring to the evidence of Investigating Officer, learned counsel would urge that even the Police Officer had not noticed any marks of violence at the place of occurrence, and on these premises it was urged that it was quite hazardous to place reliance on the sole testimony of the prosecutrix. Learned counsel for the State while resisting contentions raised on behalf of the appellant, would urge that since evidence of the prosecutrix was free from blemishes, she deserved credence. 7. As has been noticed, the prosecutrix had reiterated her earliest version in Court, about commission of rape while she was scrapping grass in the field. There is no gain saying the fact that in case of sexual assault, chances of availability of other ocular witnesses usually happen to be extremely remote and while judging culpability of the accused, what is required to be judged was the reliability of the prosecutrix, and from her evidence, I find that her evidence did not suffer infirmity to render her unworthy of credence. Shortly after the incident, she stated to have reported the incident to her mother and she also echoes the same tune in her evidence. This fact cannot be lost sight of that the prosecutrix was examined by the doctor after lapse of more than 24 hours, and in that view of the matter, there cannot be possibility of either evidence of commission of sexual assault or presence of spermatozoa. This fact cannot be lost sight of that the prosecutrix was examined by the doctor after lapse of more than 24 hours, and in that view of the matter, there cannot be possibility of either evidence of commission of sexual assault or presence of spermatozoa. Simply because the Police Officer had not found marks of violence at the place of occurrence that would not introduce any illegality or infirmity in the prosecution case. Though feeble arguments were sought to be made at Bar that two persons shown to be independent witnesses were not examined at trial, in my considered view that too was not a significant factor to discard the prosecution version. 8. Having given my anxious and considered view to the facts and circumstances of the case, I find that the evidences placed on record had been meticulously appreciated by the Court below which did not merit interference, and as for sentence awarded to the appellant, that too did not appear to be harsh or excessive warranting interference by the Court. 9. In the result, while finding recorded by the Court below is upheld, the appeal being meritless is dismissed.