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2005 DIGILAW 598 (PAT)

Raj Kumar @ Raju Yadav v. State of Bihar

2005-07-11

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JUDGMENT REKHA KUMARI, J. The appellant faced trial for the alleged commission of offence punishable under section 376 of the Indian Penal Code. The learned 1st Additional Sessions Judge. Saharsa found him guilty under the aforesaid section and convicted him there under and the appellant was sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution version as unfolded in trial is that informant Punam Devi had gone to the field belonging to one Pawan Yadav under Batai of her father for scrapping grass. While cutting grass the appellant suddently reached there, pushed her down on the ground and committed rape on her. He also threatened her with dire consequences if she tried to go to the police. She returned to her house and narrated the incident to her parents. Three days thereafter she went to the police station along with her parents with the help of the villagers and her Fardbbyan was recorded. The formal F.I.R. was drawn up and as usual investigation followed and the chargesheet was filed. 3. In order to prove its version the prosecution examined altogether eight witnesses among whom P.W.3 Punam Devi is the informant herself, P.W.4 Uma Devi and P.W.5 Upendra Ram are the mother and father of Punam Devi, P.W.1 Saryug Yadav and P.W.2 Narayan Yadav are the hearsay witnesses. P.W.7 did not support the case of the prosecution and thus was declared hostile by the prosecution. P.W.6 declared hostile by the prosecution. P.W.6 is Dr. Smt. Rita Singh who examined the victim informant and P.W. 8 Pramod Ram is the Investigating Officer of the case. 4. The appellant denied the charge. His defence as appeared from the suggestions given to the P.Ws. is that he has been falsely implicated in this case at the instance of the Mukhia of the village who was on inimical tems with him. No witness has been examined by the appellant before the trial court. 5. On consideration of the evidence on record the trial court held that the prosecution has been able to bring home the accusation against the appellant. He found him guilty under section 376 of the Indian Penal Code for committing rape on the informant and convicted and sentenced him as stated above. 6. 5. On consideration of the evidence on record the trial court held that the prosecution has been able to bring home the accusation against the appellant. He found him guilty under section 376 of the Indian Penal Code for committing rape on the informant and convicted and sentenced him as stated above. 6. The question that falls for determination is whether on the facts and circumstances of the case as revealed from the evidence on record, the order of conviction and sentence passed by the trial court is proper and fit to be maintained. 7. The grounds urged by the learned counsel for the appellant are that the trial court failed to appreciate the evidence adduced by the prosecution. It did not consider the fact of previous enmity between him and the Mukhia of the village at whose house the mother of the informant works and the father of the informant is also engaged in his field. 8. The learned A.P.P. appearing for the State, in reply, submitted that there is no infirmity in the impugned order of conviction and sentence and the same is fit to be maintained. He also submitted that no woman would go to the extent of staking her reputation and future in order to set up a false case of rape on her. 9. Before I deal with the points raised by the learned counsel for the appellant, it will be convenient to take note of the evidence which has been adduced by the prosecution. P.W.3 Punam Devi has stated that at about 4.00 P.M. she had gone to her maize field for cutting grass when the appellant came and pushed her down on earth and committed rape on her. She returned weeping to her house and narrated the incident to her mother. Her evidence also is that the appellant had threatened her to shoot if she disclosed about the incident to her guardian and that as the appellant with his father and others kept them surrounded, she went to the police station after three days of the occurrence and narrated the incident to the Officer-in-charge. 10. Her evidence also is that the appellant had threatened her to shoot if she disclosed about the incident to her guardian and that as the appellant with his father and others kept them surrounded, she went to the police station after three days of the occurrence and narrated the incident to the Officer-in-charge. 10. P.W.4 Uma Devi, the mother of the informant, has supported the above evidence of P.W.3 and has stated that she had asked her daughter (P.W.3) for cutting grass and after her return she told her that appellant Raju Yadav had misbehaved (BURA KAAM) with her and had threatened her to kill. 11. P.W.5 Upendra Ram, father of the victim informant, has also stated that his daughter had gone to the field of Pawan Yadav for cutting grass of which he was a Bataidar and his daughter returned weeping and she told to her mother that Raju Yadav had committed rape on her and had also threatened to kill if she disclosed the same to anyone. He has further stated that he could not go to the police station as the appellant and others had prevented him from going to the police station. 12. P.W.1 Saryug Yadav has stated that on the alleged date he saw Punam Davi going towards the village and she was weeping. Thereafter he went to her house and asked her father who asked him to go to Punam Devi who would disclose everything. He further stated that Punam Devi, on his asking, disclosed that when she had gone to the field for cutting grass, Raju Yadav committed rape on her. P.W.2 Narayan Yadav has also stated in similar way. 13. The evidence of the doctor P.W.6 is that she had examined the prosecutrix on 9.5.2000 and she did not find any mark of injury on her face, forehead and other parts of the body but there was bruise of 5" diameter present in the right scapula, the age of which was about 5-7 days and caused by hard and blunt substance. Her evidence further shows that the shymen was not intact but there was no injury on the vaginal wall and the vaginal swab on microscopic examination did not show any spermatozoa either living or dead. The evidence of the doctor also shows that the age of the victim was found to be between 16-17 years. Her evidence further shows that the shymen was not intact but there was no injury on the vaginal wall and the vaginal swab on microscopic examination did not show any spermatozoa either living or dead. The evidence of the doctor also shows that the age of the victim was found to be between 16-17 years. The doctor has opined that there was no confirmatory evidence of rape present but the possibility of rape cannot be ruled out. 14. P.W.8, the I.O. has deposed that on 5.5.2000 he was posted at Nawhatta police station as Sub-Inspector of Police. On 8.5.2000 he recorded the Fardbeyan of the informant (victim) and then visited the place of occurrence. His' evidence is that the P.O. which was shown to him was a maize field in village Narainpur about 1km. west of the house of Pawan Yadav His evidence further shows that the actual place of the alleged rape shown to him was a four feet wide Parti land and maize craps were grown around it. He has stated that he did not find any sign of cutting grass there. 15. Among the above PWs. though PWs. 1, 2 and 5 have come to support the prosecution case and have stated that the victim girl had told them that the appellant committed rape on her, the evidence of the victim girl is that she did not state about the incident to anyone except her mother. Therefore, the evidence of these three witnesses is of no use for the prosecution. 16. Then, even though P.W.1 has also stated that he had seen the victim going towards village weeping, his evidence is that he did not ask the reason for weeping. This is against normal human conduct. So this evidence also does not inspire confidence. 17. Learned counsel for the appellant submitted that there is no other eye witnesses to the occurrence except the prosecutrix and her evidence has not been corroborated by the medical evidence and the I.O. and therefore, the prosecution case cannot be said to have been proved. 18. The evidence of the prosecutrix (P.W.3) as mentioned above shows that she has fully supported her case as made out in the Fardbeyan. 18. The evidence of the prosecutrix (P.W.3) as mentioned above shows that she has fully supported her case as made out in the Fardbeyan. There is, of course, no other eye witness in this case, but there is nothing in the evidence of this witness to show that there was anyone in the neigh-bourhood to witness the occurrence. It is also common experience that such offence is committed at a lonely place outside the view of others. So, if no other eye witness has been examined to prove the allegation, it does not affect the prosecution case. There is nothing in the evidence of this witness to disbelieve her testimony. It has been suggested to her that she had illicit relationship with the Mukhia Tej Narain Singh and he got the case instituted but she has denied the suggestions. 19. The evidence of the victim girl also finds corroboration from the evidence of her mother (P.W.4) and though she is the mother of the victim girl and is an interested witness, there is nothing in her evidence also to disbelieve her. This witness (P.W.4) has stated that Mukhiajee is not on visiting terms with them. She has also denied that her daughter had illicit relationship with the Mukhia. 20. In this case, the Fardbeyan was recorded on 8.5.2000 at 18.00 hours when the occurrence had taken place on 5.5.2000 at about 4.00 P.M. Therefore, there is delay in lodging the first information report but the prosecution case in the Fardbeyan is that the appellant had been threatening that if they would go to the police station, they would be killed in the way and so the informant did not dare to go to the police station earlier. P.W.3 in her evidence has also stated that as the appellant, his father and brother had surrounded them with lathi, she could go to the police station for three days. P.W.4 has also stated that the father of the appellant and his sons were threatening to shoot them and so they could not go to the police station for two days. P.W.5, the father of the victim has also stated that for three days the appellant, Bishwanath, Kamal and Raghu had surrounded them and hence they could not go to the police station. I do not find any reason to disbelieve these witnesses on this point. P.W.5, the father of the victim has also stated that for three days the appellant, Bishwanath, Kamal and Raghu had surrounded them and hence they could not go to the police station. I do not find any reason to disbelieve these witnesses on this point. Therefore, though there has been delay in loding the F.I.R. in this case, the delay has been explained and for this delay no adverse inference can be drawn against the prosecution case. 21. The evidence of the doctor shows that she did not find any confirmatory evidence of rape but her evidence also is that possibility of rape cannot be excluded. The witness had examined the victim after several days and hence it is natural that she did not find any evidence of rape. So only because she did not find the confirmatory evidence of rape, the prosecution case cannot be disbelieved. The doctor had found bruise on the right scapula aged about 5-7 days. This injury was possible during alleged rape. Therefore, this injury corroborates the testimony of the victim. The doctor did not find any spermatozoa either living or dead but it is settled that the presence of spermatozoa is not a sine qua non for commission of rape. Therefore, absence of spermatozoa is no ground to disbelieve the testimony of the witness. 22. The evidence of the I.O. again is that he did not find any sign of cutting grass at the place of occurrence but his evidence shows that the P.O. was shown to him by the villagers and not the prosecutrix. So, non-finding of any sign of cutting of grass does not demolish the evidence of the victim or the prosecution case. 23. It hence appears that though there has been delay in lodging the first information report of the case at the police station and the doctor did not find any confirmatory evidence of the rape and the I.O. at the P.O. did not find any sign of cutting grass, the evidence of the victim girl which is corroborated by her mother cannot be disbelieved,. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as honour and prestige of that woman is at stake. In this case, the assumption is further strengthened as the evidence of P.W.5 is that the victim was married prior to the occurrence in the same year. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as honour and prestige of that woman is at stake. In this case, the assumption is further strengthened as the evidence of P.W.5 is that the victim was married prior to the occurrence in the same year. It is also settled law that the sole testimony of the victim can form the basis for conviction if the same is safe, reliable and worthy of credence and I find that there is absolutely nothing in the entire evidence of the victim to disbelieve her. Therefore, the evidence of the victim which is corroborated by her mother is sufficient to prove the allegation. 24. The defence of the appellant, as already mentioned, is that the Mukhia Tej Narain Singh of his village had illicit relationship with the victim and the said Mukhia is on inimical terms with the appellant and so the Mukhia falsely implicated .the appellant by concocting a false case. But no witness has been examined by the appellant to prove that the Mukhia had any illicit relationship with the victim. Nothing could be elicited from the cross-examination of the PWs. in favour of the appellant in this regard P.W.7 in his evidence, of course, has stated that the Mukhia was on visiting terms with Upendra Ram, the father of the victim, but this witness has been declared hostile. Besides this, I have already mentioned that the victim was married in that very year. The evidence of the father of the victim also shows that though after marriage she went to her Sasural, but her Duragman was not yet performed. So by no stretch of imagination, it can be believed that the victim and her family members would concoct such a false case and jeopardise the life of a newly married girl. 25. In view of the above discussions, I do not find any infirmity in the findings of the learned trial court holding the appellant guilty under section 376 of the Indian Penal Code. The sentence passed is also the minimum prescribed under law. 26. In the result, I do not find any merit in this appeal and the same is dismissed.