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2004 DIGILAW 161 (PAT)

Meena Devi v. State Of Bihar

2004-02-09

BRAJ NANDAN PRASAD SINGH

body2004
Judgment B.N.P.Singh, J. 1. As usual, while Pratibha Kumari, a thirteen years old girl, had been to Vanita Vihar School, her classmate Neelam took her to her residence where her mother Meena Devi seemed to be quite hospitable to her. Allegedly Meena Devi and Manoj Kumar, the appellants took her to Danapur where she was confined for more than a fortnight for sex affairs. She was, thereafter, taken by Manoj Kumar to his house at Bidupur. However, it was alleged that Manoj Kumar after 3/4 days informed her parents, pursuant to which she was rescued and brought to her house from Bidupur. It was the prosecutrix on whose behest prosecution was launched, pursuant to which, as usual, investigation followed. In course of investigation the Police Officer visited different places of occurrence, recorded statement of witnesses, got the prosecutrix clinically examined by the doctor and on conclusion of investigation, laid charge-sheet before the Court. In the eventual trial that followed, the State examined five witnesses including prosecutrix, her mother, other witness of her family, doctor and the Police Officer. 2. The defence of the appellants both before the Court below and this Court had been that of innocence and they ascribed their false implication. Two fold defence had been put up at trial on behalf of appellants. It was pleaded that the prosecutrix was a lady of easy virtue which was also source of livelihood of her mother. Other defence was that as Manoj Kumar and Meena Devi had registered protest against unholy conduct of Avinash Kumar who had been exploiting the girl and blackmailing her, a false case had been registered against them for no good reasons. However, the defence had not chosen to examine any witness to strengthen assertion made on their behalf at trial. The trial Judge on evaluating the probative value of testimony of witnessed while rejecting defence of the appellants, recorded finding of guilt and sentenced the appellants to rigorous imprisonment for a term of ten years under both counts under Sections 366-A and 376 of the Indian Penal Code with a rider that both the sentences shall run concurrently. 3. To appreciate contentions raised, a brief resume of narrations made by prosecution witnesses can be noticed at the threshold. 3. To appreciate contentions raised, a brief resume of narrations made by prosecution witnesses can be noticed at the threshold. Reiterating her earlier version which she rendered before the police, Pratibha Kumari, the prosecutrix (PW 3), alleges that while she had been to Vanita Vihar School on-the day of incident, she was taken by her classmate Neelam to her house where her mother seemed to be quite hospitable to her. She along with Manoj Kumar, took her to Danapur where she was confined for more than a fortnight for exploitation of her sex by a number of persons including Manoj Kumar. Thereafter she was taken to the house of Manoj Kumar which situates at Bidupur and it was only after stay of 3/4 days that her parents were informed by Manoj Kumar who rescued her from their captivity. She alleges to have set the police in motion by filing written complaint of which Avinash Kumar happened to be the author. The evidence of Avinash Kumar (PW 1) and Savitri Devi (PW 2) were admittedly of not much significance, as they stated to have learnt about woes of Pratibha Kumari from her, about appellants, having confined her at Danapur for more than a fortnight for her sexual exploitation from where she was taken to Bidupur and from where she was rescued by them shortly after receipt of information about her confinement there. 4. The Police Officer stated to have came into action shortly on receipt of a written complaint by the prosecutrix when statement of witnesses were recorded and prosecutrix were clinically examined by the doctor. The doctor who examined the prosecutrix, in pathelogical report found her 17 years of age and though he did not notice evidence of commission of recent sexual assault on the prosecutrix, he could not rule out commission of sexual assault, there being old rupture of hymen. This is all the evidence that has been placed on the record on behalf of the State. 5. Taking recourse to findings recorded by the doctor, learned counsel for the appellants would submit that since prosecutrix was found to be major, conviction of the appellants under Section 366-A of the Indian Penal Code would not fall within its ambit. This is all the evidence that has been placed on the record on behalf of the State. 5. Taking recourse to findings recorded by the doctor, learned counsel for the appellants would submit that since prosecutrix was found to be major, conviction of the appellants under Section 366-A of the Indian Penal Code would not fall within its ambit. Resisting submission canvassed on behalf of the appellants, submission made on behalf of the State was that since age of the prosecutrix was estimated by the Court when she was examined during trial, regard being had to the estimation of age by the Court and the age disclosed by none else but the prosecutrix, the finding recorded by doctor would not be conclusive evidence about age of the prosecutrix. It can be noticed that witnesses too examined at trial had been stating about Pratibha Kumari to be aged about 13 years when incident took place. If witnesses are to be believed, she was reading in class VI at the material time of incident and that apart, variation of two years of age on other side cannot be ruled out. 6. Commenting on credibility of evidence of the prosecutrix, submission is that it was acknowledged by none else but Pratibha Kumari that while she had been taken to Danapur, her mouth was gaged by appellants which was visible to co-passengers and also passersby and it was quite unlikely that none will come for her rescue. Similar argument was about conduct of the prosecutrix for not raising alarm for her rescue when she was taken to Bidupur and also when she happened to cross public places. However, considering credibility of the prosecutrix, this fact cannot be lost sight of that in their anxiety, witnesses might have provided embroidery over their version. However, what is worth consideration is essence of accusation and also its broad probability. 7. However, considering credibility of the prosecutrix, this fact cannot be lost sight of that in their anxiety, witnesses might have provided embroidery over their version. However, what is worth consideration is essence of accusation and also its broad probability. 7. Other limb of argument was that it was quite unusual that even though Bhola Sah, father of Pratibha Kumari who was most concerned person in the affair whose daughter had been kidnapped, was not examined at trial by the State and reasons are quite obvious that as he was opposed to immoral conduct of his daughter which was being resisted also by her mother, he had driven her daughter out from his house and hence he had not chosen to come to Court to lend assurance to prosecution version. There is no gain saying that father of the prosecutrix was not examined at trial but for that reason alone, the credibility of prosecutrix cannot be thrown over board. Somewhat faint argument was also about identity of the prosecutrix as it was alleged that in fact initially the case was launched by Pratima Kumar, sister of Avinash Kumar but as she had not chosen to come to Court, Pratibha Kumari was put in the witness box and it is how that in estimation of the doctor who examined the victim, she was found 17 years old. 8. There is no gainsaying that the prosecutrix was the solitary witness of her woes and onslaught which she had suffered and in fact in many cases there may not be possibility of persons, witnessing such atrocities. Crystallized in catena of decisions of the Court, the Courts have taken the view that the prosecutrix was not an accomplice and rather she stands at par with an injured witness and there was no valid and good reason to discard the solitary evidence of the prosecutrix if she was otherwise found credible by the Court. Though assertion made by the prosecution witnesses about Pratibha Kumari reading in Vanita Vihar School had been questioned, but for that reason too, I find no good reason to disbelieve the victim.A lot of reasons may be there for non examination of the persons who may be residing in the vicinity of Meena Devi where Pratibha Kumari was allegedly confined for about 20 days but those reasons too, would not over shadow the evidence available on the record. Apart from solitary testimony of the prosecutrix as has been noticed, other witnesses including her mother and Avinash Kumar too who was a close relation of her, had lent assurance to assertion made by her. Though doctor had not found evidence of commission of sexual assault on the victim, in view of old rupture of hymen, he did not rule out commission of sexual assault on the victim. Though occurrence took place on 10th July, 1998, it was not before 7th August, 1998 that the prosecutrix was clinically examined by the doctor. Though prosecutrix was also taken to Bidupur, no assertion was made by the prosecutrix about sexual assault during her confinement at Bidupur and hence there may be possibility of old rupture of hymen. Suggestions given to the witnesses while refuting accusation attributed to the appellants were somewhat different, as while one suggestion was that the prosecutrix had eloped with Avinash Kumar, other suggestion was that she had eloped with Santosh. Be that as it may, considering evidences, while defence of appellant about elopement of Pratibha Kumari was devoid of merit, as for complicity of appellants, there has been good evidence on the record. 9. The last submission made on behalf of the appellants was that while Manoj Kumar had suffered incarceration since 8th November, 1998, other appellant Meena Devi was in custody since 6th August, 1998 and on these premises contentions are raised that since appellants had suffered incarceration for about five and half years, in case finding of guilt recorded by Court below is upheld by this Court, their sentences in view of long incarceration be considerably reduced. It appears that though both Meena Devi and Manoj Kumar alias Manoj Poddar were charged under Section 376/34 of the Indian Penal Code, the Court had recorded finding against Meena Devi also under Section 376 of the Indian Penal Code without aid of Section 34 of the Indian Penal Code. Since she was charged at trial under Section 376/34 of the Indian Penal Code and evidences too were led at trial suggesting complicity of Meena Devi in facilitating commission of sexual assault on prosecutrix by Manoj Poddar, her conviction is altered to Section 376/34 of the Indian Penal Code. Likewise, though Manoj Kumar alias Manoj Poddar was charged under Section 376/34 of the Indian Penal Code, he suffered conviction under Section 376 of the Indian Penal Code simpliciter. Likewise, though Manoj Kumar alias Manoj Poddar was charged under Section 376/34 of the Indian Penal Code, he suffered conviction under Section 376 of the Indian Penal Code simpliciter. However, in view of evidences, he was explicitly liable for conviction under Section 376 of the Indian Penal Code and his conviction as such, in my opinion, would not prejudice the appellant. Now so far sentences awarded to the appellants are concerned, the prosecution was launched against appellants in the year 1998 and as has been submitted on behalf of the appellants, they have suffered incarceration for about five and half years and while Meena Devi was aged about 35 years, Manoj Kumar alias Manoj Poddar was 30 years old. In the backdrop of these circumstances and regard being had to the evidences, while finding of guilt recorded by the Court below is upheld with above modification, their sentences are reduced to six years on each count with rider that both sentences shall run concurrently and with these modifications, both the appeals are dismissed.