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2004 DIGILAW 1039 (PAT)

Md. Mokhtar v. State Of Bihar

2004-09-28

MRIDULA MISHRA, SHIVA KIRTI SINGH

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Judgment Shiva Kirti Singh and Mridula Mishra JJ. 1. The sole appellant Md. Mokhtar has preferred this appeal against the judgment of conviction and sentence dated 13th December, 2000 passed by 3rd Additional Sessions Judge Darbhanga in Sessions Trial No. 149 of 1997 whereby the appellant has been convicted and sentenced to undergo R.I. for life for offence under Section 376 of the IPC and also to pay a fine of Rs. 1,000/- payable to the informant and in default to undergo simple imprisonment for one month. The appellant has further been convicted and sentenced to simple imprisonment for six months each for the offences under Sections 323 and 342 of the IPC. All the sentences have been ordered to run concurrently. 2. The prosecution case as disclosed by the fardbeyan of father of the victim, Md. Wazul (PW 7) is that the victim on 27.12.1996 at about 11 a.m. had gone to see a field of the informant having wheat crop and when she did not return till 3 p.m. then a search was being made and in course of the search the victim who is a minor daughter of the informant aged about 7 yeas was found lying in a field having Rahar plants with tied hands. Her clothes were disturbed and she was blooding from her private parts. She had also sustained injuries on her mouth and body. On query the victim disclosed the details of a person who had committed the offence of rape against her. The details mentioned in the fardbeyan are that the person was a Muslim and by profession a hazam whose wife was dead and who has constructed a house recently on west of Chamartoli Narainpur. The victim was immediately taken to Sakri Government Hospital on the date of occurrence itself and when the police arrived in the Hospital in the morning of 28.12.1996 the fardbeyan was recorded in the hospital and formal FIR was drawn on the same date in the police station at 4 p.m. 3. The prosecution has examined ten witnesses in all. PW 1, Aisa Khatoon, PW 2, Md. Nurul Hoda, PW 3, Md. Mustaquim and PW 4 Abdul Kalam are all residents of the same village who have claimed to have gone and seen the victim while she was lying at the place of occurrence in injured condition. The prosecution has examined ten witnesses in all. PW 1, Aisa Khatoon, PW 2, Md. Nurul Hoda, PW 3, Md. Mustaquim and PW 4 Abdul Kalam are all residents of the same village who have claimed to have gone and seen the victim while she was lying at the place of occurrence in injured condition. They further claimed that the victim was bleeding from her private part and since her condition was serious she was taken to hospital for treatment. PW 5, Fatima is mother of the victim. She has claimed to have learnt about the occurrence as well as about the accused from her daughter, the victim and has supported the injuries on the person of the victim for which she was taken to hospital. Similar is the statement of informant, Md. Wazul (PW 7). Besides supporting the fardbeyan he has disclosed that the Investigating Officer prepared a seizure-list of blood-stained skirt of the victim as well as of some arhar Leaves. He further disclosed that the victim had to be shifted to Darbhanga Hospital for better treatment where she was treated for about a month. He also denied the suggestion of the defence that the accused was implicated because of enmity between the informant and one Yunus father-in-law of the accused. 4. The victim who as per medical report of PW 9, Dr. Akhauri Ravindra Kishore was aged about 7 years was examined in Court as PW 6 and her age was assessed about 8 years. The trial Court put some questions to test her understanding and found that she was capable of understanding the questions and answers. In her deposition she has given all the details and has further named the appellant as damad of Yunus who committed the offence against her and she also identified him while standing in the dock. One Sanjeeda Khatoon, PW 8 who declined to claim to have heard anything about the occurrence has been declared hostile. 5. PW 9 is Dr. Akhauri Rabindra Kishore. He has proved the injury report of the victim as exhibit-1. Although only photo-copy of his report was proved as exhibit but this was done without any objection by the defence. Exhibit-1 shows that the victim had sustained several injuries on her person but most important injury was on her genital parts which clearly supported the prosecution case. He has proved the injury report of the victim as exhibit-1. Although only photo-copy of his report was proved as exhibit but this was done without any objection by the defence. Exhibit-1 shows that the victim had sustained several injuries on her person but most important injury was on her genital parts which clearly supported the prosecution case. PW 10 is Sub-Inspector of Police, Devendra Nath who investigated the case and submitted charge-sheet against the appellant. 6. On behalf of the sole appellant it was submitted that the villagers who have claimed to have reached at the place of occurrence after hearing about the occurrence have given contradictory statements inasmuch as they have disclosed the name of the appellant claiming that it was disclosed by the victim and there is inconsistency on the point whether victim was unconscious or not at the time when the witnesses arrived at the place of occurrence. On the basis of such submission it has been claimed that the evidence of all the witnesses except PW 6, Afshana, who is the victim should be dis-believed. In respect of evidence of the victim, PW 6 it was submitted that in paragraph-12 of her cross-examination she has stated that she received bleeding injury in her private part on account of piercing by arhar plant. So far as the criticismsim against other witnesses are concerned, on going through their depositions, this Court finds that there is nothing to doubt their claim that they arrived at the place of occurrence and saw the victim in injured condition. Since the victim was initially under apparent shock, she was described as behosh (unconscious) but there is nothing to doubt the claim of the witnesses which is also supported by the informant in the fardbeyan that the victim after her hands and mouth were untied disclosed the details which were sufficient to identify the accused. It was, in such circumstances, that later while deposing in Court the witnesses have not only given the details of identification disclosed by the victim but also name of the accused-appellant. From the statement of the victim it is clear that subsequently she could re-collect or verify the name of the culprit and she has deposed without any hesitation that the sole culprit was this appellant. From the statement of the victim it is clear that subsequently she could re-collect or verify the name of the culprit and she has deposed without any hesitation that the sole culprit was this appellant. So far as contradiction in paragraph-12 of the cross-examination of the victim, PW 6, is concerned, it was apparently either on account of mis-understanding of the suggestion or on account of slip of pen because this statement is not only directly in conflict with the claim of the victim in her examination-in-chief in paragraph-1 of the deposition but also against the express opinion of the doctor that such injury in the genital was not possible by fall on any plant. Although defence has raised objection but on recall the witness, PW 6 in paragraph-15 has clarified that bleeding was caused to her on account of the offence committed by the informant and not on account of piercing by any plant. No other point could be raised on behalf of the appellant to challenge the judgment and order of conviction passed, by the trial Court. On careful consideration of all the materials on record, we are of the view that the judgment of conviction and sentence passed by the trial Court require no interference. This criminal appeal is, thus, found to be devoid of any merit. It is, dismissed, accordingly.