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2006 DIGILAW 1098 (PAT)

Mithilesh Tiwary v. State Of Bihar

2006-11-21

ANWAR AHMAD

body2006
Judgment Anwar Ahmad, J. 1. This Criminal appeal has been directed against the judgment of conviction dated 19.8.2003 and order of sentence dated 23.8.2003 passed by 1st Additional Sessions Judge, Siwan in Sessions Trial No. 216 of 2002 convicting the appellant Mithilesh Tiwary for the offence under Sec.376 of the Indian Penal Code and sentencing him to undergo R.I. for 10 years with a fine of Rs.2000.00 and in default of payment of fine for a further period of 6 months R.I. 2. Shiv Kumari Devi, wife of Sudarshan Kuer of Village Madhopur, RS. Maharajganj, District-Siwan, gave fardbeyan on 3.1.2002 at 6 PM alleging therein that her daughter Chanda Kumari aged about 8 years who was dumb, on that day at 5 PM went to play by the side of her house. During the course of playing Mithilesh Tiwary aged about 25 years enticed her away into his house. She thought that he would have taken her to give something to eat. After 10-15 minutes the informant went to the angan of Mithilesh Tiwary and heard sound of weeping and crying of her daughter. She entered into that room and found that Mithilesh Tiwary after undressing the pant of her daughter was committing rape upon her. She pushed away Mithilesh Tiwary from that position. Mithilesh Tiwary with a knife ran to assault her. In the meantime, the informant pulled her daughter, came out of the house and raised hulla. On hulla, villagers Raj Sigar Kuer, Ram Dayal Kuer, Chandeshwar Kuer and so many persons assembled there. She narrated the incident to them and thereupon the villagers caught Mithilesh Tiwary in his house and began to assault him. Mithilesh Tiwary confessed his guilt and asked for apology. Villagers asked to ring the police station. On information, police came and she gave the statement. A case under Sec.376 IPC was registered against the appellant Mithilesh Tiwary. 3. After investigation chargesheet has been submitted under Sec.376 I.P.C. Cognizance has accordingly been taken. Thereafter the case was committed to the court of sessions. 4. The defence case is that no such occurrence took place and under the conspiracy with Babloo Kuer with whom the father of the appellant has got enmity and litigation, the appellant has falsely been implicated. 5. After trial, the learned Additional Sessions Judge convicted and sentenced the appellant as stated above. 6. 4. The defence case is that no such occurrence took place and under the conspiracy with Babloo Kuer with whom the father of the appellant has got enmity and litigation, the appellant has falsely been implicated. 5. After trial, the learned Additional Sessions Judge convicted and sentenced the appellant as stated above. 6. Being aggrieved by and dissatisfied with the impugned judgment of conviction and order of sentence the present appeal has been filed to set aside the said judgment and order. 7. In order to prove the case the prosecution has examined altogether seven witnesses. The defence has adduced no evidence. 8. First of all, I would like to discuss the evidence of the informant Shiv Kumari Devi, PW-4. She stated that her daughter Chanda Kumari aged about 8 years went by the side of the house of Mithilesh Tiwary to play. Mithilesh Tiwary took her to his house. She thought that he had taken her to give something to eat. After a short while, she went there and saw Mithilesh Kumar committing rape upon her daughter after undressing her pant. She pushed Mithilesh Tiwary away and picked up her daughter. Thereafter Mithilesh Tiwary ran to assault her with his knife. She fled away raising hulla. Villagers assembled and started assaulting Mithilesh who stated that he would not repeat the mistake. People of the village called the police and police came there. Police recorded her statement over which she put her R.T.I, and people of the village also put their signatures as witnesses. 9. PW-1 is Raj Sigar Kuer, PW-2 is Ram Deyal Kuar. They stated that the occurrence took place on 3.1.2002 at 5 PM. They stated that at that time they were at their door and on hulla of the mother of Chanda they came to the door of Mithilesh Tiwary, Shiv Kumari Devi, mother of Chanda, stated that Mithilesh Tiwary enticed away her daughter Chanda in his house and there he was committing rape on her. She stated that she removed Mithilesh Tiwary by pushing him and pulled her daughter outside. In the meantime, Mithilesh Tiwary attempted to assault her with a knife. They stated that they and other villagers caught hold of Mithilesh Tiwary who confessed his guilt and stated that he would not repeat the mistake. Police reached and recorded the fardbeyan of Shiv Kumari Devi over they put their signatures. 10. In the meantime, Mithilesh Tiwary attempted to assault her with a knife. They stated that they and other villagers caught hold of Mithilesh Tiwary who confessed his guilt and stated that he would not repeat the mistake. Police reached and recorded the fardbeyan of Shiv Kumari Devi over they put their signatures. 10. PW-3 is Chandeshwar Kuer. He stated that the occurrence took place on 3.1.2002 at 5 PM when he was at his door. On the hulla of Shiv Kumari, he along with villagers reached there. Shiv Kumari stated that Mithilesh Tiwary committed rape upon her daughter Chanda Kumari. Villagers caught hold of Mithilesh Tiwary. Police reached and recorded the statement of Shiv Kumari Devi over which he put his signature. Police also arrested Mithilesh Tiwary. 11. PW-5 is Shyam Sunder Sharma. He stated that on hulla, he went to the P.O. and saw so many people there. He stated that village people were telling that Mithilesh Tiwary had committed rape upon Chanda. 12. PW-6 is Dr. Shadan Usmani. He stated that on 4.1.2002 while he was posted as Medical Officer, Sadar Hospital, Siwan, a Medical Board consisting of him, Dr. R.K. Mishra and Dr. Shiv Kumar was constituted. The Medical Board examined Chanda Kumari and found her mentally retarded since birth. Two elongated scratch marks were found on both the cheeks. Hymen was found reddish and tendered. Laceration, redness, and tenderness were found around the vaginal opening. Various tests and Xray were done. Victim was found to be aged within 8-9 years. He has proved the medical report, various tests and Xray report. 13. PW-7 is Niranjan Mandal, O/C of Maharajganj Police Station and I.O of this case. He stated that on telephonic message he reached village Madhopur. He recorded the statement of Shiv Kumari Devi, took her RTI and signature of the witnesses. He arrested the accused Mithilesh Tiwary. He has proved formal FIR. He stated that he seized the pant of Chanda Kumari. He stated that he recovered one knife and two tablets of Vallium and prepared the seizure list. He stated that he inspected the seizure list. He stated that he inspected the P.O. and has given the details thereof. He stated that he sent the victim for medical examination and obtained the medical report. 14. The learned defence lawyer submitted that the victim Chanda Kumari, daughter of the informant has not been examined. He stated that he inspected the seizure list. He stated that he inspected the P.O. and has given the details thereof. He stated that he sent the victim for medical examination and obtained the medical report. 14. The learned defence lawyer submitted that the victim Chanda Kumari, daughter of the informant has not been examined. He submitted that the appellant is said to have committed rape upon her and she is the best and competent person to say as to whether rape was committed by the appellant. So, he submitted that non examination of the victim is fatal to the case of prosecution. 15. As per the very FIR victim Chanda Kumari is a minor aged about 8 years and dumb. The doctor (PW-6), a member of the Medical Board who examined the victim Chanda Kumari found her mentally retarded from birth. The trial court called the victim for the purpose of her examination but found that she was not capable of understanding and not in a position to give evidence. So, the court in the circumstances could not record her statement. In the facts and circumstances, the victim Chanda Kumari could not be examined in this case and hence non examination is not at all fatal to the present case. 16. The learned defence lawyer submitted that as per the FIR the place of occurrence is a room of the house of the appellant where the appellant is said to have committed rape upon the daughter of the informant. He referred to the evidence of the informant, PW-4, and submitted that she in her cross examination stated that the rape was committed on the verandah of the house of the appellant. As such, he submitted that P.O. changes from the room to the verandah and hence emphatically stated that the case fails on this ground. In support of his contention he referred to two decisions, reported in 1987 BLJ 486 and 1990 (2) BLJ 184 [:1990 (2) PLJR 269]. 17. Of course, as per the prosecution case, the P.O. is the room of the house of the appellant but the informant (PW-4) in her cross examination stated that occurrence took place at the verandah of the house. The I.O. (PW-7) found the P.O., the room of the house of the appellant. 17. Of course, as per the prosecution case, the P.O. is the room of the house of the appellant but the informant (PW-4) in her cross examination stated that occurrence took place at the verandah of the house. The I.O. (PW-7) found the P.O., the room of the house of the appellant. Taking into consideration the evidence of the witnesses examined in this case the P.O. appears to be the room of the house of the appellant though the informant in her cross examination stated the verandah of the house of the appellant. This may be a slip of tongue or the informant being a lady failed to give the correct answer. Even if it is accepted for the sake of argument that there is contradiction in the statement of the informant with respect to the P.O., much ice is not cut. The said verandah is just adjacent to the room where the rape is said to have been committed and in my opinion, it is not so material as to brush aside the whole case of the prosecution. So far as the decisions referred to by the learned defence lawyer are concerned, in my opinion, they did not help the defence. 18. The learned defence lawyer submitted that there is only one eye witness who is informant of this case and the alleged occurrence of rape and her evidence in consideration of contradictory statement made with respect to the P.O. be not accepted and hence, the prosecution case fails. In support of his contention he referred to two decisions reported in 1978 BLJ 238 and 1986 BLJ 716. He submitted that as per the decision reported in 1978 BLJ 238 (supra) the sole testimony cannot be blindly accepted on the facts and circumstances of the case. He further submitted that as per the decision reported in 1986 BLJ 716 {supra), only on one eye witness supporting the prosecution case and other witness turning hostile, conviction is not to be sustained. 19. The present case is not based on the single testimony of the informant. In this case of a rape there would not be a large number of eye witnesses. In such a case, normally there is only one eye witness supported by other witnesses that the said eye witness disclosed the incident to them immediately after the occurrence. 19. The present case is not based on the single testimony of the informant. In this case of a rape there would not be a large number of eye witnesses. In such a case, normally there is only one eye witness supported by other witnesses that the said eye witness disclosed the incident to them immediately after the occurrence. In the present case, informant is the eye witness who just after the occurrence came out of the house of the appelant with her daughter and raised hulla whereupon so many villagers assembled to whom she narrated the incident. PWs. 1 and 2 have supported that they came to know of the occurrence from the informant immediately after the occurrence and the villagers caught the appellant in his house and started assaulting. So, this is not the case of single testimony. So far the decisions cited by the learned defence lawyer are concerned, the facts and circumstances thereof are different from the facts and circumstances of the present case and hence they are not helpful to the defence. So, the submission made by the learned defence lawyer on this point is not convincing and hence, not sustainable in law. 20. The learned defence lawyer submitted that the case of rape is not supported/corroborated by the medical evidence. He submitted that it is not specific in the evidence of the doctor (PW-6) and the medical report (Ext.2) that rape was committed upon the victim Chanda Kumari. So, he submitted that medical evidence/ medical report did not corroborate the prosecution case and on this score the case fails. 21. From the perusal of the evidence of the doctor and the medical report it appears that hymen of the victim Chanda Kumari was found reddish and tendered. Laceration, redness and tenderness were found around the opening of the vagina. This suggests that rape was committed as it is a case of rape with a girl of 8 years. So, the argument of the learned lawyer for the defence is not sustainable in law. 22. The learned defence lawyer submitted that Janghiya (pant) of the victim Chanda Kumari said to have contained blood was seized by the police. The same was kept without seal and was not sent for chemical examination and therefore, no legal weight is to be given. This submission of the learned defence lawyer did not affect the merit of the case. The learned defence lawyer submitted that Janghiya (pant) of the victim Chanda Kumari said to have contained blood was seized by the police. The same was kept without seal and was not sent for chemical examination and therefore, no legal weight is to be given. This submission of the learned defence lawyer did not affect the merit of the case. 23. The learned lawyer for the defence submitted rape upon the victim Chanda Kumari was arrested on the same date and time and was handed over to the police but the police did not send him to the doctor for medical examination whereas he had sent the victim for medical examination. So, he submitted that non examination of the appellant by a doctor, in the facts and circumstances of the case, seriously affects the case. I do not agree with the submission of the learned lawyer for the defence. 24. So far as the defence case is concerned, save and except suggestions given to the witnesses, no evidence was adduced and nothing material was brought out in the cross examination of the witnesses in support of the defence case. So, I find that the defence case has not been proved or even made probable so as to create doubt over the prosecution case. 25. In view of the discussions made above together with the evidence of the informant supported by independent witnesses, the doctor and the I.O., I find that the prosecution has proved the case against the appellant beyond the shadow of all reasonable doubts. Hence, I do not find any merit in the appeal and I am of the view that the appeal is fit to be dismissed. 26. In the result, the appeal is dismissed and the impugned judgment of conviction and order of sentence passed by the learned Additional Sessions Judge are hereby confirmed.