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2005 DIGILAW 652 (PAT)

Harishchandra Sah v. State Of Bihar

2005-07-27

REKHA KUMARI

body2005
Judgment Rekha Kumari, J. 1. This appeal is directed against the judgment and order dated 19.4.2003 and 21.4.2003 passed by Sri Raghubar Sharma, 5th Addl. Sessions Judge, East Champaran Motihari in S. Tr. No. 622 of 2001/75 of 2003 under which he has convicted the appellants Harishchandra Sah and Jogindra Sah u/s. 376/34 of the Indian Penal Code and has sentenced them to undergo R.I. for seven years. 2. The prosecution case is that the prosecutrix is a widow having four children. Her husband died about three years prior to the occurrence. The appellants are distant pattidars of her husband. They had an evil eye on the prosecutrix since the death of her husband. They wanted to keep her as their concubine to which she was not ready. They were, hence, always in search of opportunity when they could find her in a lonely place and outrage her modesty. On 18.9.2000 at about 7.30 to 8.00 p.m. the prosecutrix was going to ease herself at Khajurwani of one Kuldeep Sah, South of her house and when she was 100 yards North of grooves both the appellants reached there and took her to the grooves land forcibly committed rape on her one by one by gagging her mouth and after satisfying their lust they threatened that if she spoke about the incident to anybody she would be finished and then they fled away towards their houses. The prosecutrix then raised alarm. Some witnesses came and saw the appellants fleeing from the grooves. The prosecutrix had developed pain in her abdomen. So, thereafter she went to the local doctor and narrated him about the incident. The doctor treated her and gave certificate of rape and injury in presence of her Nanad Mairkhuniya Devi. The further case of the prosecution is that the villagers asked her not to institute any case and assured that they would punish the appellantsthrough Panchayati. The villagers also called Panchayati a number of times but the appellants did not attend the Panchayati. So, she went to the police station but there the case was not registered and she was directed to file complaint in Court. Hence, she filed a complaint regarding the occurrence before the Chief judicial Magistrate, Motihari on 30.9.2000. 3. The villagers also called Panchayati a number of times but the appellants did not attend the Panchayati. So, she went to the police station but there the case was not registered and she was directed to file complaint in Court. Hence, she filed a complaint regarding the occurrence before the Chief judicial Magistrate, Motihari on 30.9.2000. 3. The complaint was then forwarded to Chakiya P.S. for registration of the case and for investigation and then the police registered the case and after investigation submitted charge sheet against the appellants. 4. The appellants wre charged u/s. 376/34 of the Indian Penal Code, 1860 . They pleaded not guilty to the charge. Their defence as gathered from the suggestions given to the prosecutrix and the D. Ws. examined is that there was a land dispute between one Rajdeo Sah and the prosecutrix and as the appellants were supporting the claim of Rajdeo Sah, they have been falsely implicated in this case. 5. At trial the prosecution examined seven witnesses to prove the charge Among them, PW 1 Dasai Das, PW 2 Harishankar Sah, PW 3 Kamal Sah and PW 4 Sheo Dayal Mahto, who according to the prosecution, had seen the occurrence fleeing, have stated that they do not know anything about the alleged occurrence. They have been declared hostile. PW 5 Markuniya Devi has also stated that she does not know anything about the alleged rape. She has also been declared hostile. PW 6 is the prosecutrix herself. PW 7 Raghunath Singh, Advocate clerk, has proved the injury report (Ext. 1) and the prescription (Ext. 1/1) issued by the Dr. Sudhir Kumar Singh of Bara Chakiya. 6. The appellants have examined five witnesses in support of their defence. They are DW 1 Bhagwan Singh, DW 2 Girdhari Bhagat, DW 3 Hari Shankar Prasad Gupta, DW 4 Baidhyanath Das and DW 5 Siyaram Singh. 7. The learned trial Court after considering the evidence of the witnesses convicted the appellants and sentenced them as mentioned above. 8. Learned counsel appearing on behalf of the appellants submitted that as the evidence of the prosecutrix has not corroborated by any other evidence and there has been great delay in lodging the case only on the evidence of the prosecutrix, it cannot be held that the appellants had committed rape on the prosecutrix. 9. 8. Learned counsel appearing on behalf of the appellants submitted that as the evidence of the prosecutrix has not corroborated by any other evidence and there has been great delay in lodging the case only on the evidence of the prosecutrix, it cannot be held that the appellants had committed rape on the prosecutrix. 9. In order to appreciate the argument of the learned counsel I have gone through the evidence of the witnesses examined in this case. 10. I have already mentioned that PWs 1 to 4, who according to the prosecution had seen the appellants fleeing from the P.O., have not supported the prosecution case that they had seen the appellants fleeing. PW 5, Nanad of the prosecutrix , has also riot stated that the prosecutrix had narrated the occurrence to her or that she had gone to the doctor with the prosecutrix. 11. Dr. Sudhir Kumar Singh, who had treated the prosecutrix, has also not been examined. The injury report and the prescription of the doctor have, however, been proved. 12. The injury report shows that the doctor had examined the prosecutrix on 18.9.2000 at 9.30 p.m. in presence of her husbands sister Markuniya Devi (PW 5) and found the following injuries on her body: (i) Abrasion and scratches mark on and around the right breast. (ii) Pain tenderness and swelling in the lower part of the umbilical region, (iii) Stains of spermatozoa were present inside and around the vaginal orifice. 13. According to the doctor, injuries No. 1 and 2 were caused by hard blunt substance and injury No. 3 was caused by sexual intercourse with the glans of the penis and the injuries were caused within three hours of the examination. 14. The injury report, thus, shows that the rape was committed on the prosecutrix at or about the time of alleged occurrence. But as the doctor has not been examined in this case, the injury report is not admissible in evidence. So, the prosecution cannot use it to corroborate the testimony of the prosecutrix. 15. Hence, the only witness who has supported the prosecution case is the prosecutrix herself. She has deposed that after the death of her husband, the appellants, one of them was elder brother of her husband and other younger brother of her husband by village relationship, had evil eyes on her. 15. Hence, the only witness who has supported the prosecution case is the prosecutrix herself. She has deposed that after the death of her husband, the appellants, one of them was elder brother of her husband and other younger brother of her husband by village relationship, had evil eyes on her. On the date of occurrence at about 7.30 p.m. she was going to ease herself out of her house in the field. The appellants followed her and took her to Khajurbani and gagged her mouth with cloth and at first appellant Harishchandra Sah and then appellant Jogindra Sah committed rape on her and at the time of retreating they threatened that if she told about the incident to anybody she would be killed. 16. Though the witness has been cross-examined at iength there is nothing material in her evidence to disbelieve her. It is also reasonable to assume that no woman would falsely implicate a person in sexual offence as the honour and prestige of that woman also would be at stake. Learned counsel has submitted that as the victim was a mother of four children, this assumption would not be applicable in this case, but though the prosecutrix is the mother of four children, she was a widow and no widow would like to stake her prestige by false implication. The assumption hence is equally applicable in this case. 17. The witness (prosecutrix) in her cross-examination has of course admitted that she has land dispute with one Rajdeo Sah and the appellants support the said Rajdeo Sah, but this cannot be a ground to disbelieve the witness. The enmity is not direct. Besides this, if she had to falsely implicate the appellants for this reason, she would not have left Rajdeo Sah. This witness again has admitted that the appellant Harishchandra Sah has filed a case against her Pattidars Muneshwar and Wakil in which she is also an accused. But he learned trial Court has rightly pointed out that it has not been taken as to whether before or after this occurrence the case was instituted. The case of the appellants nowhere also is that on account of this case, the prosecutrix falsely implicated them. Therefore, it can be inferred that the case was instituted after institution of this case and it cannot be said that on account of that case the appellants were falsely implicated. 18. The case of the appellants nowhere also is that on account of this case, the prosecutrix falsely implicated them. Therefore, it can be inferred that the case was instituted after institution of this case and it cannot be said that on account of that case the appellants were falsely implicated. 18. Again in this case there has been delay in lodging the complaint. The occurrence had taken place in the night of 18.9.2000 and the complaint was filed on 28.9.2000 but the evidence shows that there was pain in her abdomen. She went to the hospital in the night. It is, therefore, obvious that she could not go to the police station on the date of occurrence. Her evidence further shows that in the next morning the Punches asked her to get the matter settled through the Panchayati but the matter could not be settled and hence, the Punches advised her to file case in police station and then she went to the police station but as the case was not registered there she filed the complaint. The delay, hence, has been well explained. Though no witness has been examined to prove that actually there was any Panchayati but there is no suggestion to the witness that no such Panchayati was called. So the evidence of the witnesses in this regard cannot be disbelieved. Learned counsel submitted that the witness did not go to any Government hospital and this casts doubt about the prosecution case. But there is nothing on record to show that there was any Government hospital nearer the clinic of Dr. Sudhir Kumar Singh. So, this cannot be a ground to discard the evidence of the witness. 19. I, therefore, also find that the evidence of the prosecutrix is quite natural and trust-worhty. 20. As against the evidence of the prosecutrix DW 1 Bhagwan Singh, DW 2 Girdhari Bhagat, DW 3 Hah Shankar Prasad Gupta and DW 5 Siya Ram Singh have been examined to prove that there was land dispute between the prosecutrix and Rajdeo Sah and prior to the occurrence there was a Panchayati regarding the dispute and in that Panchayati the appellants had supported the claim of Rajdeo Singh and hence, the appellants were falsely implicated. It has been admitted by the prosecutrix in her evidence that there is such a dispute in which the appellants used to support Rajdeo Sah, but I have already mentioned that this cannot be ground to falsely implicate the appellants. As regards Panchayati no suggestion was given to the prosecutrix that any such Panchayati was held. Rajdeo Sah has also not been examined to prove the said Panchayati. So the story of Panchayati appears, to be an after thought. 21. DW 4 has stated that she has her house at a distance of 10 luggis from the house of the parties and she did not hear that the appellants had raped the prosecutrix. The appellants have also filed a certificate (Ext. A) purported to be signed by several villagers of the village Phulwariya, P.S. Bara Chakiya that on account of land dispute the prosecutrix has falsely implicated the appellants. But only because DW 4 has no knowledge of the allegation, it cannot be said that no such occurrence had taken place. The certificate also does not appear to be admissible in evidence. 22. In this case, the I.O. has not been examined. But no prejudice appears to have been caused to the appellants for non- examination of the I.O. 23. Thus, I also find that though the prosecutrix is the sole witness in this case, who has supported the prosecution version, her evidence appears to be . reliable and worthy of acceptence. In the case of Sudhanshu Shekhar Sahu V/s. The State of Orissa, reported in -, it has been held that the sole testimony of the victim can be a basis for conviction provided it is said to be reliable and worthy of acceptence. Therefore, in this case also the learned lower Court was justified in convicting the appellants. The sentence passed is also minimum prescribed under the law. I, hence, do not find merit in this appeal and the same is hereby dismissed.