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2005 DIGILAW 1013 (PAT)

Sargun Kapri v. State Of Bihar

2005-11-28

M.L.VISA

body2005
Judgment 1. This appeal is directed against the judgment and order dated 09.04.1992 passed by Additional Sessions Judge, Banka in Sessions Trial No. 731 of 1990/490 of 1992 convicting and sentencing the sole appellant to undergo rigorous imprisonment for a period of seven years u/s. 376 of Indian Penal Code (In short " Indian Penal Code, 1860 ") and rigorous imprisonment for six months u/s. 323 of Indian Penal Code, 1860 but ordering both the sentences to run concurrently. 2. The case of prosecution, in short, is that on 19.06.1990 at about 2 p.m., Babita Kumari (PW 6), the victim/informant had gone to attend call of nature to the field of one Mahendra Pandit (PW 2) and after easing out when she was tying up the waist band of her shalwar, the appellant caught hold of her from behind and when she raised alarm, he threw her and pressed her mouth, made her naked and started committing rape on her. When victim/informant protested, appellant asked her to keep quiet otherwise she would be killed and he forcibly committed rape on her. Even thereafter, victim/informant started raising hulla but the appellant again pressed her mouth, gave her threatening and on her further protest, assaulted her with fist on her nose and face causing bleeding injuries on her nose. On her further protest, appellant pressed her neck causing swelling on her neck and went on committing rape on her. On the hulla raised by victim when Deep Narain Singh (PW 7) and Sushil Pandit (PW 3) came running there, appellant started fleeing away. Thereafter, villagers brought the victim/informant to her house and informant heard that some villagers had chased the appellant and in process of catching hold of him, appellant received some injuries. The fardbeyan (Exhibit-3) of victim/ informant was recorded by police on 19.06.1990 at 7.35 p.m. at Sub-divisional Hospital, Banka where she was taken for treatment. On the basis of fardbeyan of informant, a formal First Information Report (Exhibit-3/1) u/s. 376 of Indian Penal Code, 1860 against appellant was drawn. Subsequently sec. 307 of Indian Penal Code, 1860 , was also added to it. After investigation, police submitted charge- sheet under Secs. 376 and 307 of Indian Penal Code, 1860 against the appellant and the case was committed to the Court of Session where cognizance of the case was taken. Charges under Secs. 376. Subsequently sec. 307 of Indian Penal Code, 1860 , was also added to it. After investigation, police submitted charge- sheet under Secs. 376 and 307 of Indian Penal Code, 1860 against the appellant and the case was committed to the Court of Session where cognizance of the case was taken. Charges under Secs. 376. and 323 of Indian Penal Code, 1860 were framed against the appellant and after trial, appellant was found guilty for both the aforesaid offences and he was convicted and sentenced, as indicated above. 3. The case of appellant before Court below, as it appears from the trend of cross-examination of prosecution witnesses, is of complete innocence and his false implication on account of his land dispute with the father of victim. No witness was examined on his behalf. 4. Altogether twelve witnesses on behalf of prosecution were exam ± Prabhat Prasad (PW 11) and Kunti Devi (PW 5) are tendered witnesses. Baoan Singh (PW 12), at the time of occurrence was posted at Banka Police Station as Assistant Sub- Inspector and he has said that on 19,06.1990 at about 7.35 p.m, he had recorded the fardbeyan of victim at Sub-divisional Hospital, Banka and after recording, he read over the fardbeyan to victim who put her signature on the fardbeyan and the fardbeyan was also signed by witnesses Kameshwa Pandey and Janardan Pandey. He has proved this fardbeyan which is marked as Exhibit-3 and he has also proved the formal First Information Report in the pen and signature of Officer-in-charge Ram Singh, Assistant Sub-Inspector (Exhibit-3/1). He has also proved the endorsement (Exhibit-7) of Munshi Ram Naresh Singh on fardbeyan. He has proved a production list which was prepared by him when victim produced shalwar, jumper and one blouse which he seized. This production list is marked Exhibit-6. Babita Kumari (PW 6) is the informant. Dr. Rekha Kumari (PW 8) is the doctor who had examined the victim. Madhav Pandey (PW 9) is the Investigating Officer. Anil Kumar Singh (PW 10) is the seizure list witness in whose presence, the Investigating Officer had recovered a piece of silver chain, a silver locket and three safety pins and had prepared seizure list. Yugal Kishore Pandey (PW 1), Mahendra Pandit (PW 2), Sushil Pandey (PW 3), Kameshwar Pandit (PW 4) and Deep Narain Singh (PW 7) are other witnesses. 5. Yugal Kishore Pandey (PW 1), Mahendra Pandit (PW 2), Sushil Pandey (PW 3), Kameshwar Pandit (PW 4) and Deep Narain Singh (PW 7) are other witnesses. 5. Babita Kumari (PW 6), in her evidence, has said that on 19,06.1990 at about 2 PM she had gone to the field of Mahendra Pandit to ease out and when after easing out, she was tying the waist band of her shalwar, the appellant caught her from behind and threw her on the ground and when she started making hulla, appellant pressed her mouth and after making her naked, raped her. When she tried to rescue herself, appellant gave her threatening to keep quiet otherwise she would be killed and again pressed her mouth and he also assaulted her on her face causing bleeding injuries on her nose and mouth and on her further protest, pressed her neck. She has further said that on her hulla, witnesses Deep Narain Pandey and Sushil Pandit came there and the appellant then fled away and then she was brought to her house by the villagers and, thereafter, she was taken to Banka and at Mushari Tola, she met her parents and villagers narrated the incident to her parents. According to her while going to Banka, she found that a silver chain along with its locket and three safety pins which she had put on her frock and which were on her person at the time of occurrence were missing She has further added that at Banka Hospital, she was examined by a lady doctor and police recorded her fardbeyan which was read over to her and finding it correct she put her signature (Exhibit-1) on her fardbeyan. To a Courts question, she has said that she was forcibly raped. In cross-examination, she has denied the suggestion of defence that she had falsely implicated the appellant because appellant is having land dispute with her father. Dr. Rekha Kumari (PW 8), in her evidence, has said that on 20.06.1990, she was posted at Banka Subdivision^ Hospital when she examined the victim and found the following injuries on her person : (1) Blood-stains were found on the nostrils, mouth and on right cheek, (2) Eyes were red and both the lids were swollen, (3) Multiple nail scratches were present on both cheeks. Both sides of face were swollen and there was a black spot near the left ear on the face 1" x 1/2". (4) Lacerated injury present in front of neck. She has further said that on examination of private part, she found that hymen was ruptured, blood-stain discharge was present around the vaginal intraitus and margin of hymen was swollen and tender. She has clearly stated that in her opinion, rape was committed with the victim. She has proved the injury report under her pen and signature which is marked Exhibit-2. 6 Yugal Kishore Pandit (PW 1) has said that at the time of occurrence, he was in his house and on hearing hulla, he came out and then he went to the house of appellant from where hulla was coming where he found that a number of persons had surrounded the house of appellant and he came to know that appellant had committed rape on informant and appellant was saying that he had committed wrong and was begging for pardon. He has further said that appellant before him and villagers admitted that he had committed rape on informant. He has denied the suggestion of defence that being the own man of informant, he had deposed falsely but the defence has brought nothing on record to prove that he is anyhow related to the informant. Mahendra Pandit (PW 2) has said that at the time of occurrence, he was in his house when he heard hulla and when he came out he found that a number of persons were running towards south and he also followed them and when he went out of the village, he found that some persons were bringing the victim with them and victim had bleeding injuries on her face and had swollen neck and when he enquired from the persons who were bringing her, they informed him that appellant had committed rape on her and had also assaulted her. They further told him that the incident took place in a field where the victim had gone to ease out and some villagers had caught hold of appellant and had taken him to his house. They further told him that the incident took place in a field where the victim had gone to ease out and some villagers had caught hold of appellant and had taken him to his house. He, thereafter, went to the house of appellant where he found that appellant was standing near a Baboo/tree in front of his house and was surrounded by villagers and was confessing that he had committed rape on informant and was seeking apology. In cross-examination, this witness has admitted that he is cousin of Sushil Pandit and in his examination-in- chief, he has named this Sushil Pandit among the persons who were bringing the victim with them. Sushil Pandit (PW 3) is uncle of victim and he has said that at the time of occurrence, he was at his pump house when he was called by Deep Narain Singh (PW 7) and he then went running to the field of Mahendra Pandit from where Deep Narain Singh had called him and there he found victim lying half naked and when he and Deep Narain went near to informant and inquired what had happened, she told him that appellant had committed rape on her and had assaulted her. He has further said that he saw bleeding injuries on nose, face and neck of informant, she was naked and waist band of her shalwar was loose. He has said that other witnesses also came there and he saw appellant running away from the field of Mahendra and he, to some distance; chased the appellant but the appellant fled away and he then came back to the place of occurrence and, with the help of others, brought the victim to her house. In para-3, he has said that when he came to Mushari Tola he found crowd assembled at the house of appellant and he also found that appellant was standing near a Baboo/ tree and appellant, in presence of villagers including himself, confessed that he had committed mistake and asked for apology. In para-3, he has said that when he came to Mushari Tola he found crowd assembled at the house of appellant and he also found that appellant was standing near a Baboo/ tree and appellant, in presence of villagers including himself, confessed that he had committed mistake and asked for apology. Kameshwar Pandey (PW 4), who is the father of victim in his evidence, has said that on 19.06:1990 at about 3 p.m. he alongwith his wife was returning to his village from Banka where he had gone on that day in the morning and when they reached Mushari Tola of their village, they found that some villagers were bringing a khatoli and when he enquired he came to know that they were taking his daughter Babita Kumari to Banka on that khatoli and on further enquiry, he came to know that when his daughter Babita had gone to ease out, appellant committed rape on her and had assaulted her and they further came to know that appellant was at his house. He has said that he, his wife and Sushil Pandit went to the house of appellant where appellant, before villagers, was confessing that he had committed wrong with informant and was asking for apology and he then along with his wife and Sushil Pandit again came to the place where he had met the villagers and his daughter and from there, he went to Banka. He has said that at Banka Hospital, fardbeyan of his daughter was recorded on which he and Janardan also put their signatures (Exhibits-1/1 and 1/2). In cross-examination, he has denied the suggestion of defence that he had any land dispute with the appellant and for that reason, appellant had been falsely implicated in this case. 7. Deep Narain Singh (PW 7) has said that at the time of occurrence, he was at his brickiln when he heard some sound from a field situate on the northern corner of his brickiln and he then called Sushil Pandit who was there in the surrounding and he himself went to the place where he heard the sound and he then saw that appellant was committing rape on informant in a field and informant was naked. He has said that when Sushil Pandit came, appellant, after collecting his clothes, fled away and he found bleeding injuries on the nose of informant and she had some marks of injury on her neck also. When the victim regained her consciousness, she told him and Sushil Pandit that appellant had committed rape on her. He has said that in the meantime, some other persons also reached there and they all brought the informant to her house and they also went to the house of appellant where appellant was standing near a Babool tree and appellant, in his presence as well as in presence of other villagers, confessed his guilt and begged apology. 8. Madhav Pandit (PW 9) is the Investigating Officer of this case. He has said that on 20.06.1990, he was posted at Banka Police Station and when he was going to Barhauna in connection with an another case, he received the fardbeyan of informant through Jamadar Baban Singh. He has said that he took up the investigation of the case and inspected the place of occurrence which is a field of Mahendra Pandit. He has said that he found some area of this field trampled suggesting that some body had been laid on that area and he also found the kesari plants broken and he found a piece of silver chain with silver locket and three safety pins which he seized and prepared seizure list in presence of witnesses (Exhibit-4). He has said that after completing investigation, he submitted charge-sheet. 9. The evidence of victim that she was raped by appellant finds support from the medical evidence because the doctor who examined the victim in her evidence, as stated above, has said that in her opinion, rape was committed with the girl. Deep Narain Singh (PW 7) is an eye-witness who had seen the appellant committing rape on victim. Sushil Pandit (PW 3) is a witness who had also reached the place of occurrence when he was called by Deep Narain Singh (PW 7) and he also found injuries on the face, nose and neck of informant and informant at that very place told him that she was raped by appellant and he further saw the appellant running away from the field. There is evidence of some other witnesses also who although are not eye- witnesses to the occurrence but before whom, the appellant had made extra judicial confession admitting the commission of rape by him on informant. All these facts clearly prove the case of prosecution. On behalf of appellant, it has been argued that the Investigating Officer, in his evidence, has admitted that he did not find any portion of soil wet in the field and he also did not find any lota or other pot carried by victim when she is said to have gone to that field for easing out. It is further argued that Investigating Officer has not found any night soil at the place of occurrence. As stated earlier, the Investigating Officer, on inspection of the place of occurrence, found some area of the field trampled suggesting that some body had been laid on the ground and he also found nearby kesari plants of that area broken. There is further evidence of Investigating Officer that he found a piece of silver chain, one silver locket and three safety pins from the place of occurrence. About these articles, the evidence of victim is that these articles were on her person but after occurrence when she was being carried to the Banka Hospital, she found that these articles were missing. In view of this evidence of Investigating Officer, the absence of any night soil or any lota or pot carried for easing out does not make the entire case of prosecution false. There is only suggestion on behalf of appellant that on account of land dispute, he has been falsely implicated in this case. Appellant has not brought any thing on record to prove that he had any dispute with the parents of victim. 10. The Learned Counsel of appellant has argued that victim in her cross-examination to a Courts question has replied that she had not ever seen the appellant before the occurrence. It is true that this reply is there but then when the Court put the next question whether appellant was known to her before the occurrence she replied in affirmative. 10. The Learned Counsel of appellant has argued that victim in her cross-examination to a Courts question has replied that she had not ever seen the appellant before the occurrence. It is true that this reply is there but then when the Court put the next question whether appellant was known to her before the occurrence she replied in affirmative. In this view of matter as well as considering the evidence of other witnesses out of whom some saw appellant committing rape on victim, I do not find the reply of victim that she had not seen the appellant before the occurrence adversely affects the case of prosecution because she being of tender age might have given such type of reply thinking that she was being asked the question of seeing the appellant on the day of occurrence itself before the occurrence. 11. Considering the entire evidence on record, I find that prosecution has proved its case beyond all reasonable doubts. 12. In the result, the appeal stands dismissed. The judgment and order of Court below are hereby confirmed. 13. As the appellant is on bail, his bail bonds are cancelled and he is directed to surrender before the Court below for serving out remaininp sentences passed on him.