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2004 DIGILAW 276 (JHR)

Binod Mahto v. State Of Bihar

2004-03-16

HARI SHANKAR PRASAD

body2004
JUDGMENT Hari Shankar Prasad, J. 1. Both these appeals are directed against the judgment of conviction and order of sentence dated 31.3.1998 passed in Sessions Trial No. 171/95, whereby and whereunder the learned Sessions Judge, Bokaro at Chas held both the appellants guilty under Section 376, IPC and convicted and sentenced them to undergo RI for ten years and appellant Shanti Mahto was further held guilty under Section 323, IPC and convicted and sentenced him to undergo RI for six months but sentences, in case of Shanti Mahto, were directed to run concurrently. 2. Prosecution case in brief is that on 27.3.1995 at 12 noon Namita Kumari (informant) and her niece Patia Kumari had gone near Barabandh P.S. Chandankiyari for collecting cow dung. While they were collecting cow dung in a basket (Tokri) appellants Shanti Mahto and Binod Mahto came there and showed money to them and thereby tried to yield them or induce them to yield to their carnal desire but both the girls refused to yield to their carnal desire. Appellant Shanti Mahto caught Namita Kumari and compelled her to proceed towards paddy field and thereafter appellant Shanti Mahto forcibly opened her paint, threatened her with dire consequences in ease she raises alarm, pushed handkerchief in her mouth and on being resisted by her assaulted her and scratched her cheek and thereafter committed rape on her and as a result of rape blood started oozing out from her private part. Similarly when Patia Kumari refused to yield to the temptation shown by appellant Binod Mahto, Binod Mahto caught Patia Kumari, forcibly took her near a bush, opened her paint and committed rape on her and similarly blood started oozing out from her private part. Patia Kumari also resisted but her mouth was gagged and she was assaulted by slaps. After commission of rape on them, they came to the residence and narrated the occurrence to Lata Bourin and when they were narrating the occurrence to Lata Bourin, villagers from the neighbourhood also assembled on hearing screams of both the victims. The victims alongwith neighbours went to the house of appellants as well as to the house of sarpanch but sarpanch was not available at his house and similarly appellants were also not available in their houses. Even father of the informant was not present in the village on the date of occurrence. The victims alongwith neighbours went to the house of appellants as well as to the house of sarpanch but sarpanch was not available at his house and similarly appellants were also not available in their houses. Even father of the informant was not present in the village on the date of occurrence. After father of the informant, namely, Satya Kinkar Bouri returned home in the evening on 28.3.1995 then both the victim girls narrated the occurrence to Satya Kinkar Bouri and thereafter they went to the P.S. on 29.3.1995 and on the statement of victim Namita Kumari, FIR was lodged under Sections 376, 323/34, IPC. I.O., after investigation, submitted chargesheet, cognizance in the case was taken and case was committed to the Court of Sessions, where learned Sessions Judge, after recording evidence, both oral and documentary of both the sides, came to a finding, held the appellants guilty under the aforesaid sections and convicted and sentenced them as aforesaid. 3. Prosecution has examined nine witnesses and two witnesses have been examined on behalf of the defence. PW 1 is Manmat Ravidas. PW 2 is Akhari Bouri PW 3 is Satyakinkar Bouri PW 4 is Namita Kumari, who is the victim girl as well as informant of the case. PW 5 is Patia Kumari. She is also a victim girl. PW 6 is Lata Bourin. PW 7 is Prem Chand Bouri. PW 8 is a lady doctor, who examined the victim girls and PW 9 is I.O. of the case. 4. PWs 4 and 5 are the most important witnesses of the case as they are the girls, on whom rape is said to have been committed. PW 4 is also the informant of the case besides being a victim girl. According to this witness, occurrence took place on 27.3.1995 at about 12 Oclock in the day when she had gone to collect the cow dung in front of Barabandh. After collecting cow dung she was keeping the same beneath the tree and when she was arranging the same in the basket, appellants turned up, who were sitting there and showed money to them (PWs 4 and 5) but both of them refused to take money. Then appellant Shanti Mahto caught her and appellant Binod Mahto caught Patia and both of them took them towards the field. Then appellant Shanti Mahto caught her and appellant Binod Mahto caught Patia and both of them took them towards the field. Appellant Shanti Mahto untied her paint, threw her on the ground and when she protested then he threatened to commit murder. If she raises alarm and thrust handkerchief in the mouth and committed rape on her and even assaulted her and scratched her cheek. After commission of rape shanti mahto left the place but he threatened her to commit her murder if she discloses to anybody and thereafter she put on her paint. She did not see rape being committed on Patia (PW 5) but when she came then she narrated that appellant Binod committed rape on her. Both of them came home. Paints of both of them were stained with blood as blood was oozing out from their private part. She disclosed to her Bhabhi (Lata Bouri) about the occurrence. At that place PWs 1 and 2 and several other persons came and she narrated the occurrence to all of them. PW 5 Patia disclosed about the occurrence then co-villagers went to the residence of the appellants alongwith victim girls and Lata Bouri but both of them were not available at their residence and thereafter they went to Sarpanch but Sarpanch was also not available. Her father was not in the house, as he had one out and he came on 28.3.1995 at about 6 p.m. then both of them narrated the occurrence to him. Her father alongwith others came to P.S. where her jardbeyan was recorded and after recording the evidence, the same was read over to her and finding the statement to be true, she put her signature (Ext. 2). She handed over her paint and frock at the P.S., which were received by the Darogaji and after preparation of paper she has also put her signature (Ext. 2/1). She says that the her frock was seized and paint of Patia was seized. When Darogaji came to her house then Darogaji seized her paint, which was stained with blood (Ext. 2/2) and prepared a paper on which she put her signature and thereafter both of them were sent to doctor for examination. 2/1). She says that the her frock was seized and paint of Patia was seized. When Darogaji came to her house then Darogaji seized her paint, which was stained with blood (Ext. 2/2) and prepared a paper on which she put her signature and thereafter both of them were sent to doctor for examination. According to this witness, in the pond men and women come to take bath and near the place of occurrence there is a brick kiln of appellant Binod Mahto but on that very day no person either man or woman was there taking bath in the pond. She is unable to say whether there was any person in the brick kiln or not. 5. PW 5 is Patia Kumari. She has also stated that she had gone to Barabandh for collecting cow dung with PW 4 and when both of them were arranging cow dung in basket, appellants came there and showed money to them but both of them refused the money and thereafter both of them caught them. According to this witness appellant Binod caught her and appellant Shanti caught PW 4 and Binod took her to field and committed rape on her. This witness when raised alarm, she was assaulted by appellant Binod and he gagged her mouth and thereafter committed rape on her. Blood started oozing out from her private part. She also disclosed the occurrence to her maternal aunt where several persons were there. Villagers took both of them with Lata Bouri to the residence of appellants but they were not available then, thereafter, they went to Sarpanch but he was also not available. Since father of PW 4 was not in the house, as he had gone to Bokaro and when he returned back occurrence was narrated to him and he took them to P.S. where a case was lodged by PW 4 and thereafter both of them were sent to hospital for medical examination. She told that her paint was seized at the P.S. She admits that persons of her village go to Barabandh for taking bath and women flock also go there for taking bath in the very morning. 6. PW 8 is a doctor, who conducted examination on the victim girls. According to the doctor, on 29.3.1995 she examined PW 4 but she did not find spermatozoa and any stains of blood. 6. PW 8 is a doctor, who conducted examination on the victim girls. According to the doctor, on 29.3.1995 she examined PW 4 but she did not find spermatozoa and any stains of blood. There was a small bruise on the face and there was a small injury on her private part and age of the girl was found below 16 years (Ext. 3). On the same day she examined PW 5 but she did not find any spermatozoa in her private part. She also did not find any stains of blood and other stains on her cloth. She found injury on her private part and the age of the girl was found below 16 years (Ext. 3/1). According to the doctor, she is not definite whether rape might or might not have been committed. 7. PW 9 is I.O. of the case. He recorded the statement of PW 4 on 29.3.1995 (Ext. 4) and thereafter formal FIR was drawn up (Ext. 5). He conducted the investigation and prepared seizure list (Ext. 6). He took statement of victim girls and visited the place of occurrence. Place of occurrence is lonely place where he found paddy cut. 8. PW 1 is Manmat Ribidas. He heard cries of weeping of both the girls and went there and saw that PWs 4 and 5 were weeping and they narrated the occurrence to him. 9. PW 2 is Akhari Bouri. He stated that on 27.3.1995 he was in his house and at that time both the girls (PWs 4 and 5) came there weeping. His house is adjacent to the house of PWs 4 and 5 and on hearing the sound of cries he went there and knew about the occurrence. 10. PW 3 is the father of PW 4. According to this witness he was not in his house on 27.3.1995 and he came back on 28.3.1995 in the evening then his daughter (PW 4) and maternal grand daughter (PW 5) narrated the occurrence and he went to the P.S. and lodged a case. He has supported the occurrence though he is hearsay witness. 11. PW 6 is Lata Bouri and she has also supported the prosecution case and has stated that PWs 4 and 5 came home and narrated the occurrence to her and at that time other persons were present. He has supported the occurrence though he is hearsay witness. 11. PW 6 is Lata Bouri and she has also supported the prosecution case and has stated that PWs 4 and 5 came home and narrated the occurrence to her and at that time other persons were present. The villagers took her to the residence of appellants but they were not available and from there the villagers went to the house of Sarpanch but he was also not available. On 28.3.1995 PW 3 (father of PW 4) returned from Bokaro and on 29.3.1995 a case was lodged by PW 4. 12. PW 7 is Prem Chand Bouri and he is a formal witness. 13. On the other hand, two witnesses have been examined on behalf of the defence. According to DW 1, PW 3 was working in the brick kiln of appellant Binod Mahto and due to commission of theft by PW 3, appellant Binod Mahto had removed him from service and, therefore, he has got this false case through his daughter and maternal grant daughter. Same line is the evidence of DW 2 when he says that due to some trouble this PW 3 was removed from the work in the brick kiln of Binod Mahto. 14. While assailing the judgment, the learned counsel for the appellants, submitted that there was inordinate delay in lodging of the FIR, as the occurrence is said to have taken place on 27.3.1995 and there is no explanation for delay in lodging of the FIR. It was also pointed out that not a single independent witness has been examined and all those, who have been examined, are interested witnesses and no reliance should be placed on the evidence of such witnesses. It was further pointed out that the doctor (PW 8) has not found any sign of rape and she was unable to say whether rape has been committed or not and, therefore, this rape case has been falsely instituted only because the father of Namita Kumari (PW 4) was actually working in the brick kiln of appellant Binod and for some theft, which is committed, he was removed from the work and due to this very reason he got this false case instituted against the appellants involving Patia Kumari (PW 5) also. It was also submitted that there are several contradictions in the statement of witnesses and on all these accounts the appellants deserve acquittal. 16. On the other hand, learned APP appearing on behalf of the State, has submitted that there is no material warranting interference in the impugned judgment and order of conviction. 17. The case has been instituted for commission of rape on two different girls (PWs 4 and 5) by the appellants and both the girls are unmarried and below 16 years of age and no cogent proof of working of Satyakinkar Bouri (PW 3) in the brick kiln of appellant Binod Mahto has been brought on record. Although DWs 1 and 2 have come to say that PW 3 was working in the brick kiln of appellant Binod Mahto but their evidence does not inspire any confidence. Merely because appellant Binod has a brick kiln there, a plea has tried to be taken, but PW 3 may involve his daughter (PW 4) for falsely implicating appellant Binod Mahto but question is just otherwise that appellant Shanti Mahto is said to have committed rape on the daughter of PW 3 and appellant Binod Mahto is said to have committed rape on Patia Kumari (PW 5) and Patia may not be a party to such a conspiracy of PW 3 and, therefore, the defence, which has been taken on behalf of the appellants, does not stand to reason. The doctor (PW 8) has found injuries on the private part of both the victim girls (PWs 4 and 5), although she has not given opinion about commission of rape and this is a mistake on the part of the doctor and to the extent she has tried to help the appellants or has been influenced some how or she does not have knowledge, because when she was asked to examine whether rape has been committed or not, she should have given definite finding whether rape has been committed or not. However, from the injuries appearing on the private part of each of the victim girls (PWs 4 and 5), it appears that rape was committed on both of them and besides that almost all the witnesses, except PW 3, PWs 1, 2 and 6 immediately came to know about the occurrence as narrated by PWs 4 and 5 and PW 3 arrived next day and PWs 1, 2 and 6 have clearly supported the commission of rape on PWs 4 and 5 and, therefore, it is clear that prosecution has been able to prove the occurrence in the manner, as alleged by the prosecution. 18. I do not find reason to interfere with the impugned judgment. This appeal is dismissed.