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2006 DIGILAW 168 (JHR)

Ram Nath Yadav v. State of Bihar

2006-03-01

AMARESHWAR SAHAY

body2006
By Court.- This appeal is directed against the judgment dated 17.7.1996 passed by the 5th Additional Sessions Judge, Dumka in Sessions Case No. 195 of 1994 whereby and whereunder the learned Additional Sessions Judge convicted the appellant No. 1 Ram Nath Yadav for the offence punishable under Sections 363 and 376 of the Indian Penal Code and sentenced him to undergo R.I. for a period of 3 years for the offence under Section 363 of the IPC and R.I. for a period of 10 years for the offence under Section 376 of the IPC with fine of Rs. 5000/- (five thousand) in default to undergo R.I. for a further period of 3 years. The appellant No.2 Sanath Manjhi was convicted for the offence punishable under Section 368 of the Indian Penal Code and was sentenced to undergo R.I. for a period of 2 years. 2. The prosecution case as it appears is that the informant (PW-6) Raghu Sah gave a fardbeyan on 2.1.1994 (Ext. 4) to the affect that appellant Ram Nath Yadav was working at t1is sweet meat shop, situated at Hansdiha Dumka Road. His daughter Rinku Kumari (PW-7) aged about 12-13 years came to his shop. It is said that Ram Nath Yadav used to visit informant's house frequently in connection with the business of the shop and in that course he developed familiarity with his daughter Rinku Kumari. He further stated in his fardbeyan that four days prior to 2.1.1994 the appellant Ram Nath Yadav was missing from his shop and after some time his daughter Rinku Kumari was also missing from the said shop. Since the informant found them to be traceless and, as such, he lodged the case before the police stating therein that the appellant Ram Nath Yadav has kidnapped his minor daughter Rinku Kumari. On the basis of the said report the F.I.R. was registered and investigation was taken up. In course of investigation on 9.1.1994 the victim girl Rinku Kumari was found at village Daulatpur in the house of the maternal uncle of the appellant Ram Nath Yadav. The information regarding the presence of the victim Rinku Kumari at village Daulatpur was given to the informant by one Gopal relative of the appellant Ram Nath Yadav. In course of investigation on 9.1.1994 the victim girl Rinku Kumari was found at village Daulatpur in the house of the maternal uncle of the appellant Ram Nath Yadav. The information regarding the presence of the victim Rinku Kumari at village Daulatpur was given to the informant by one Gopal relative of the appellant Ram Nath Yadav. The informant went to the village Daulatpur alongwith his wife and Gopal and they found the appellant Ram Nath Yadav and his daughter Rinku Kumari there at Daulatpur in the house of the maternal uncle of the appellant no. 1 Ram Nath Yadav. The victim was brought from there and then was produced before the police. She was medically examined by a lady doctor (PW. 4) and her statement under Section 164 Cr.PC. was recorded by (PW.1) Judicial Magistrate, Dumka. 3. So far as appellant no. 2 Sanath Manjhi is concerned he is said to be the own brother of appellant no. 2 Ram Nath Yadav and according to the prosecution it is staten that appellant no. 1 Ram Nath Yadav with Rinku Kumari came to Ranchi and stayed for few days in the house of appellant no. 2, his brother and after staying there for few days the appellant no. 1 Ram Nath Yadav with the victim girl went to Daulatpur. 4. The appellant no. 1 Ram Nath Yadav was charged for the offence punishable under Sections 363, 366A and 376 of the Indian Penal Code whereas appellant no. 2 Sanath Manjhi was charged for the offence punishable under Section 368 of the Indian Penal Code only. The trial court acquitted the appellant no. 1 Ram Nath Yadav from the charge under Section 366A of the IPC but convicted him for the offence under Sections 363 and 376 of the IPC as stated earlier. 5. In order to establish the charges altogether nine witnesses were examined by the prosecution, out of which the statement and evidence of the victim girl Rinku Kumari who was examined as P.W. 7, is of much importance. She in her evidence has stated that on 29.12.1993, she was at her sweet meat shop at Hansdiha Dumka Road where the appellant No.1 Ram Nath Yadav was a worker. Her father asked her to stay at the shop and he moved for another shop situated at Hatia, which was being run by his brother Pradip Sah. She in her evidence has stated that on 29.12.1993, she was at her sweet meat shop at Hansdiha Dumka Road where the appellant No.1 Ram Nath Yadav was a worker. Her father asked her to stay at the shop and he moved for another shop situated at Hatia, which was being run by his brother Pradip Sah. She further stated that when she was alone at the shop, the appellant no. 1 Ram Nath Yadav on the point of a knife, compelled her to board on a Dumka bound bus, which was standing in front of the shop. He also threatened her that if she would raise hulla then she, as well as her father would be killed. Thereafter, they went to Dumka and from there they reached Bokaro by bus at about 9 or 10 in the night. From Bokaro they went to Ranchi by bus and then went to the house of his brother, i.e. appellant no. 2 Sanath Manjhi where they stayed for about eight days. She further stated that in the midnight the appellant no. 1 Ram Nath Yadav forcibly committed rape on her and he also threatened her that she would be killed if she raised hulla. She further stated that she was raped by the appellant no. 1 several times during their stay at Ranchi in the house of appellant no. 2. She further stated that thereafter the appellant no. 1 brought her to Basukinath and from Basukinath she was taken to Daulatpur at the house of his Mama. At Daulatpur also she was raped by appellant no. 1 and then on 9.1.1994 Gopal Yadav, Mausera brother of the appellant no. 1 brought her parents to Daulatpur and, thereafter, she came back to her house with her parents. 6. P.W. 6 the informant and the father of the victim girl and his brother P.W.5 Pradip Sah have corroborated the statement of victim P.W. 7. Though the doctor P.W. 4 Dr. Push palata Tudu, who examined the victim girl medically, did not give any definite opinion regarding commission of rape on her but she found on radiological examination the age of the victim to be about 15 years. 7. It appears that there was a long gap between the last sexual intercourse said to have been committed by appellant no. Push palata Tudu, who examined the victim girl medically, did not give any definite opinion regarding commission of rape on her but she found on radiological examination the age of the victim to be about 15 years. 7. It appears that there was a long gap between the last sexual intercourse said to have been committed by appellant no. 1 Ram Nath Yadav on the victim girl and her medical examination therefore, the medical evidence is not of very much importance. 8. The learned counsel for the appellant has taken me to entire evidence adduced by the prosecution and has submitted that even if it is admitted that the sexual intercourse was committed by the appellant no. 1 Ram Nath Yadav with the victim girl Rinku Kumari the same was with her consent and, therefore, it does not come under the purview of Section 376 of the Indian Penal Code nor from the facts it is established that an offence under Section 363 of the IPC was committed. He further submitted that so far as the appellant no. 2 Sanath Manjhi is concerned there is no iota of evidence so as to connect him with the offence charged under Section 368 of the IPC. Even the victim girl has not made any statement making any sort of allegation against appellant no. 2 Sanath Manjhi. 9. I find that there is specific and direct evidence of the victim minor girl Rinku Kumari (PW-7) wherein she has specifically stated that she was forcibly kidnapped by the appellant no. 1 Ram Nath Yadav on the point of a knife and was compelled to board on a bus and was taken to Bokaro and then to Ranchi and then to Daulatpur by the appellant no. 1 Ram Nath Yadav and in that course she was forcibly raped by appellant no. 1. The age of the victim is in between 12-15 years. There is nothing in her evidence to disbelieve her testimony. Her evidence is wholly trustworthy and on the basis of her statement only the ingredient of the offence under Sections 363 and 376 of the IPC are established against appellant no. 1 Ram Nath Yadav. Considering the evidence of the prosecution, particularly of the victim girl with other corroborate evidence, in my view, the learned trial court has rightly convicted and sentenced the appellant no. 1 Ram Nath Yadav. Considering the evidence of the prosecution, particularly of the victim girl with other corroborate evidence, in my view, the learned trial court has rightly convicted and sentenced the appellant no. 1 Ram Nath Yadav for the offences under Sections 363 and 376 of the IPC. So far as the appellant no. 2 Sanath Manjhi is concerned the submission of the learned counsel for the appellants appears to be correct. From the entire evidence led by the prosecution it appears that none of the witness has stated anything against the appellant no. 2. Even PW-7 the prime witness for the prosecution has only stated that she and appellant no. 1 Ram Nath Yadav stayed in the house of the appellant no. 2, who was none else than the own brother of appellant no. 1. She has not even stated that appellant no. 2 was knowing that she had forcibly been kidnapped by appellant no. 1 nor does it appear from her evidence that appellant no. 2 concealed or confined her knowing him to be kidnapped or abducted and, therefore, in absence of such evidence, in my view, the ingredients of Section 368 of the IPC was not established against appellant no. 2 Sanath Manjhi. Accordingly, I find that the conviction of appellant no. 2 for the offence punishable under Section 368 IPC was erroneous. 10. Accordingly, this appeal is allowed in part. The conviction and sentence passed by the trial court against appellant no. 1 Ram Nath Yadav is hereby affirmed and his appeal is dismissed. His bail bonds are cancelled. He is directed to surrender forthwith to serve out the sentence. Whereas the conviction and sentence passed by the trial court against appellant no. 2 Sanath Manjhi for the offence under Section 368 of the IPC is hereby set aside and he is discharged from the liabilities of his bail bonds.