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2004 DIGILAW 69 (JHR)

BAIDA RAM v. STATE OF BIHAR

2004-01-13

H.S.PRASAD

body2004
Judgment : H. S. PRASAD, J. ( 1 ) THIS appeal is directed against the judgment of conviction dated 21-3-1998 and order of sentence dated 25-3-1998 passed in Sessions Trial No. 337 of 1993/11 of 1994 whereby and whereunder the learned Additional Judicial Commissioner, lohardaga held the appellants guilty under Section 376 of the Indian Penal Code (IPC) and convicted and sentenced them to undergo R. I. for five years. ( 2 ) CASE in brief is that Savitri kumari, the informant, lodged an FIR with the Kuru Police Station on 16-2-1993 at about 5. 15 p. m. alleging inter alia that on 13-12-1993 at about 7. 00 p. m. she had gone out of her house to attend the call of nature in the field where suddenly Gopal Mahli and baida Ram came and caught her and forcibly took her to hill side, although she tried to raise alarm but the appellant No. 2-Gopal mahli, at the point of dagger, asked her to keep quiet and thereafter he committed rape on her. When she started weeping, then he threatened to stab her to death, she. had no way out but to keep mum. Thereafter appellant no. 1-Baida Ram committed rape on her. Both of them detained her in the hill in the night. The appellant No. 1-Baida Ram brought food from his house and compelled her to take the meal. All the three spent night in the hill and both the appellants committed rape on her one by one on assurance that Baida Ram would marry her. Next day also, she was detained on the assurance of marriage and in the night also, they committed rape on her. On the following day, in the evening, both the accused persons brought her to the village and kept in the house of Laloo where her father and choukidar came. The accused persons on seeing them fled away. She was brought back home nd on fourth day of the rence i. e 16-2-1993 she was taken to Kuru p. S. where she lodged a case. Police after investigation submitted charge-sheet under sections 341, 376/34, IPC. Cognizance in the case was taken and the case was committed to the court of Session where learned additional Judicial Commissioner, lohardaga recorded evidence of witnesses both oral and documentary and came to a finding and held the appellants guilty and convicted and sentenced them as aforesaid. Police after investigation submitted charge-sheet under sections 341, 376/34, IPC. Cognizance in the case was taken and the case was committed to the court of Session where learned additional Judicial Commissioner, lohardaga recorded evidence of witnesses both oral and documentary and came to a finding and held the appellants guilty and convicted and sentenced them as aforesaid. ( 3 ) PROSECUTION has altogether examined eight witnesses. PW-1 is Soma Uraon. He is the father of the informant as well as the victim girl. He has been declared hostile and he has not supported the prosecution case. PW-2 is Laldeo Manjhi. He has been tendered for cross-examination. PW-3 is bhukhal Ram Uraon. He has come to say that Soma (PW-1} came to him and informed that his daughter is traceless. On getting this piece of information, he along with PW-1 and choukidar went to the residence of laloo Manjhi where he saw her (his) daughter (PW-5) and both the appellants. On seeing them, both the appellants fled away from there and on inquiry, Savitri Kumari (PW-5) told him that she was taken to the hill side where both the appellants committed rape on her. He admits that there was darkness so he did not try to catch them. Savitri was also fleeing away but she was caught. ( 4 ) PW-4 is Sohrai Uraon. He has come to say that he was in his house. At about 8. 00 p. m. PW-1 came to him and informed that his daughter is traceless. He went in search for his daughter with him but he could not get any trace of his daughter for last two days and on third day, Soma took him to the residence of Laloo where choukidar and PW-3 were also there and laloo was in his residence. Both the appellants fled away from the house, Savitri also wanted to run away but she could not flee away. On inquiry from Savitri (PW-5) she disclosed that she was taken to the Tangri mountain where both of them (appellants) committed rape on her. He further says that he along with Savitri went to the P. S. where a case was registered. He admits that two days after disappearance of Savitri, they had gone to the P. S. ( 5 ) PW-5 is Savitri Kumari. She is the prosecutrix and she has supported the prosecution case. He further says that he along with Savitri went to the P. S. where a case was registered. He admits that two days after disappearance of Savitri, they had gone to the P. S. ( 5 ) PW-5 is Savitri Kumari. She is the prosecutrix and she has supported the prosecution case. She says that on Saturday at 6. 00 p. m. she had gone to answer the call of nature where both the appellants came and caught her and exhibited chura and stopped her from raising alarm. Thereafter both the appellants took her to mountain and committed rape on her one by one. They detained her in the night and ultimately brought her to the residence of Laloo and in the night on sunday, his father Soma Uraon, Bhukhal ram Uraon along with choukidar went to the residence of Laloo and brought back home. On Monday, she went with her father to the P. S. where a case was lodged. She admits that in the day, people go towards that place but she stayed in the mountain by concealing herself. She stayed in the mountain for two nights. ( 6 ) PW-6 has been tendered for cross examination. ( 7 ) PW-7 is Dr. Kiran Marandi. She has examined the victim girl (PW-5) and had come to the following findings. Height 49" - weight - 48 Kgs.- no. of teeth 14 Upper Jaw - 14 Lower jaw - breast developed.- axillary hair saft and pale coloured downy hair.- pubic hair saft and pale coloured downy hair.- iii. Marks of violence on the body : No any injury mark present on any part of the body.- iv. Examination of private part of the body: - 1. No injury detected in private part of the body.- 2. Vagina petioles admit two fingers.- 3. Old rupture of Hymen.- 4. Vaginal swab taken and examined under microscope.- no spermatozoa was found.- according to the doctor, she was aged 13- 14 years and she did not find any sign of rape on her. ( 8 ) PW-8 is I. O. of the case. He has visited the place of occurrence and has given description of place of occurrence. ( 9 ) ON the other hand, one witness on behalf of the defence has been examined. DW 1 says that Savitri has lodged a false occurecase at the instance of choukidar. ( 8 ) PW-8 is I. O. of the case. He has visited the place of occurrence and has given description of place of occurrence. ( 9 ) ON the other hand, one witness on behalf of the defence has been examined. DW 1 says that Savitri has lodged a false occurecase at the instance of choukidar. ( 10 ) LEARNED Court below after scrutinizing evidence on record, came to a finding and held the appellants guilty under Section 376, ipc and convicted and sentenced them as above. ( 11 ) WHILE assailing the judgment, learned counsel for the appellants submitted that father of the victim girl has turned hostile and he ,says that he knows nothing about the case. It was further pointed out that Laldeo Majhi (PW-2) has been tendered and other witnesses who have supported the prosecution case, are interested ones. It was also pointed out that Savitri Kumari has lodged this case at the instance of choukidar and even doctor has not supported the prosecution case and, therefore, no case is made out. ( 12 ) ON perusal of evidence on record, it appears that PW-5 appears to be consenting party as she stayed for two nights in the mountain with the appellants and she even got opportunity to raise alarm on the next morning when people passed through that mountain but she has not done so and, therefore, she appears to be consenting party. Witnesses have also stated that from the house of Laloo, both the appellants fled away and at the same time, this prosecutrix also wanted to flee away but she was ultimately caught and, therefore, she admits to be consenting party and whatever sexual intercourse done by the appellants that was done with her consent and now, when she has been caught doing wrong work with the appellants, she has lodged this case. But question is, under the definition of rape, a girl, below 16 years of age, even if sexual intercourse is committed with her, with her consent that will amount to commission of rape. But question is, under the definition of rape, a girl, below 16 years of age, even if sexual intercourse is committed with her, with her consent that will amount to commission of rape. Here in the instant case, doctor has found the girl to be aged between 13-14 years and any sexual intercourse is done with her even with her consent, will amount to commission of rape and as per definition under Section 375 of the Indian Penal Code, rape with her consent or without her consent if committed will be rape if the girl is below 16 years of age and, therefore, on the basis of the evidence, both of PW-5 and other witnesses, I find that the appellants are guilty of committing rape on PW-5. ( 13 ) SINCE statement under Section 313, cr. P. C. of both the appellants was recorded on 29-1-1997 and the learned Court below assessed the age of appellants No. 1, Baida ram as 22 years and that of appellant No. 2, Gopal Mahli at 23 years and their age four years back must have been less by four years and both of them were in between age group of 18-19 years and considering the age of the appellants and also considering the facts that occurrence is of the year 1993, i think that whatever period they have remained in custody will meet the ends of justice. ( 14 ) IN the result, this appeal is dismissed with the modification in the sentence to the period already undergone by them. They are on bail, they are discharged from the liability of their bail bonds. Appeal dismissed. --- *** --- .