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2006 DIGILAW 757 (PAT)

Allauddin Mian v. State Of Bihar

2006-08-24

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2006
Judgment 1. Appellant, being aggrieved by his conviction for offence under Sections 366A and 376 of the Indian Penal Code and sentence of rigorous imprisonment for life and 7 years respectively, passed by the Additional Sessions Judge, Fast Track Court No. I, Chapra in Sessions Trial No. 146/60 of 2000/2002, has preferred this appeal. 2. Prosecution story, according to the first information report, given by RW. 4 Laxman Sah on 15.2.1997 at 9 P.M. is that on the same day at 8 P.M., while he was at his tea stall, his wife RW. 1 Meera Devi came weeping and narrated that their daughter P.W. 3 Guriya Kumari, aged about four and half years, is missing since an hour. According to the informant, he proceeded in search of his daughter and reached near a mosque in his locality, where he found that a marriage party was proceeding led by a Band Party. During search, according to the informant, his nephew Om Prakash (P.W. 5) disclosed to him that one of the members of the Band party had kidnapped his daughter. Said Om Prakash pointed towards that member of the Band party who had kidnapped his daughter. he apprehend him and took him to his tea stall for inquiry. He disclosed his name as appeallant Allaudin and confessed the guilt and stated that he had committed rape on her to the north of the mosque. According to the first information report, the appellant also disclosed that his pant had blood stains and the informant also found him wearing blood stained pant. According to the informant, the appellant was taken to the mosque, where he saw his daughter besmeared with blood on her body and private part. On inquiry, she disclosed to the informant that it was the appellant who had committed the rape. The informant with the help of the villagers, brought his daughter and him to the Police Station, handed over the appellant to the Police and gave the report. On the basis of the aforesaid, Chapra Town P.S. Case No. 43 of 1997 was registered under Section 376 of the Indian Penal Code. 3. During the course of investigation, victim Guriya Kumari was sent for treatment and medical examination at Sadar Hospital, Chapra. The statements of the informant as also his nephew Om Prakash were recorded under Sec. 164 of the Code of Criminal Procedure. 4. 3. During the course of investigation, victim Guriya Kumari was sent for treatment and medical examination at Sadar Hospital, Chapra. The statements of the informant as also his nephew Om Prakash were recorded under Sec. 164 of the Code of Criminal Procedure. 4. Police, after investigation, submitted charge-sheet and the appellant was ultimately committed to the Court of Sessions, where he was charged for committing the offence of kidnapping as also rape, punishable under Sections 366A and 376 of the IPC respectively. Appellant denied the charge and claimed to be tried. 5. Prosecution, in support of its case, has altogether examined six witnesses, out of whom PW. 1 is the mother of the victim girl, PW. 2 Kanhaiya Singh is a witness to the seizure of the blood stained cloth, worn by the victim girl and the appellant. He is also a witness to the extrajudicial confession made by the appellant. P.W. 3 Guriya Kumari is the victim herself, whereas P.W. 4 Laxman Sah is her father and they have been declared hostile by the prosecution. P.W. 5 is the nephew of the informant and cousin of victim girl and he has also been declared hostile by the prosecution, P.W. 6 Dr. Anita Srivastava was the Civil Assistant Surgeon posted at Sadar Hospital, Chapra and examined and treated the victim girl. 6. The plea of the appellant in his examination under Sec. 313 of the Code of Criminal Procedure is denial simpliciter. No defence witness has been examined. 7. PW. 1 Meera Devi is the mother of the victim girl and she has stated in her evidence that that on 15.2.1997 at about 7 P.M., marriage party of her neighbour Asok Kumar was proceeding and music was being played by the Band party. According to her, the children of the locality, including her daughter Guriya Kumari and nephew Om Prakash (P.W. 5) had assembled near the Band Party. According to this witness, her nephew Om Prakash told her that one of the members of the Band Party had enticed her daughter, whereupon she started looking for her but was not found. Thereafter, according to this witness, she went to the tea stall of her husband and narrated the entire incident. According to this witness, her nephew Om Prakash told her that one of the members of the Band Party had enticed her daughter, whereupon she started looking for her but was not found. Thereafter, according to this witness, she went to the tea stall of her husband and narrated the entire incident. He also proceeded in search of the victim girl but was not found and one of the members of the band party was apprehended and her nephew Om Prakash narrated that it was he, who enticed the victim girl. She has further stated that the victim girl returned wearing pant and frock besmeared with blood stains. On inquiry, according to this witness, the victim girl has stated that she has been enticed by the member of the Band party and was subjected to rape. On inquiry, the appellant confessed his guilt. This witness identified the appellant. 8. RW. 2 Kanhaiya Singh, in his evidence, has stated that while he was at his tea stall, he heard that the daughter of the informant was enticed by a member of the band party and he further heard that said member of the Band party has been apprehended. According to this witness, after some time, the victim girl came weeping. This witness has clearly stated to have seen the appellant wearing blood stained pant and the victim frock and pant besmeared with blood. According to this witness, the cloth worn by the victim and the appellant was seized in his presence and he is a witness to the seizure list. He has identified his signature in the seizure list as that of another witness to the seizure, namely, Munna Tiwari (Ext. 11/1 and 2/1). He has further stated that the appellant confessed his guilt in the presence of many persons. The victim girl also disclosed that it was the apprehended accused who had raped her. 9. P.W. 3 Guriya Kumari, in her deposition, has stated that while she was listening to the music, one of the members of the Band party took her to the field. She has stated that nothing was done to her. She has been declared hostile by the prosecution. 10. P.W. 4 Laxman sah is the father of the victim girl and the informant of the case. In his deposition, he has admitted to have lodged the case. She has stated that nothing was done to her. She has been declared hostile by the prosecution. 10. P.W. 4 Laxman sah is the father of the victim girl and the informant of the case. In his deposition, he has admitted to have lodged the case. He has further stated that on the date of occurrence at about 8 P.M., while he was at his tea stall, his wife came and narrated that the victim girl is missing since an hour. He has further stated that her daughter was subjected to rape but failed to recognize the person, who had committed the rape. He has also been declared hostile by the prosecution and cross-examined. 11. P.W. 5 Om Prakash is the cousin of the victim girl and was aged about 8 years at the time of the incident. In his deposition, he has stated that he as also the victim girl was at their darwaja and one of the members of the Band party came and enticed the victim girl. This witness did not identify the appellant and has been declared hostile by the prosecution and cross-examined. 12. PW. 6 Dr. Anita Srivastava, at the relevant day was posted as Civil Assistant Surgeon at Sadar Hospital, Chapra and examined the victim girl on 15.2.1997 and found following injuries on her person: (i) Slight abrasion on her left cheek. (ii) Examination of the. perineum, there is blood staining on Perineum, thighs and legs. pubic hair was not found anywhere on perineum. There is perineal tear of about 1" long 1/2" deep extending just above the anus. There is some laceration in the vagina which were bleeding profusely. Two vaginal swabs were taken at the time of vaginal examination and sent to the pathologist for microscopical examination. Vagina was packed. Opinion reserved. 13. She had further examined the victim girl on 16.2.1997 after the report of the Pathologist which is as follows: The report on examination of vaginal swab Microscopic examination: Dead spermatozoa found, R.B.C.: Plenty WBC 2-4 Cells/HPF Epithetical cell present (+). 14. In the opinion of the doctor, on the basis of physical examination and pathological report of vaginal swab, it can be concluded that victim was subjected to rape. 15. The trial court, relying on the evidence of P.W. 1 Meena Devi, PW. 2 Kanhaiya Sah and PW. 6 Dr. 14. In the opinion of the doctor, on the basis of physical examination and pathological report of vaginal swab, it can be concluded that victim was subjected to rape. 15. The trial court, relying on the evidence of P.W. 1 Meena Devi, PW. 2 Kanhaiya Sah and PW. 6 Dr. Anita Srivastava and the extra-judicial confession made by the informant before PW. 1 and 2, concluded that the prosecution had proved its case beyond all reasonable doubt and accordingly, convicted and sentenced the appellant as above. 16. Mr. Pramod Kumar, appearing on behalf of the appellant, submits that according to the prosecution, offence has been committed by one of the members of the Band party and they being in large number, error in identification of the perpetrator of crime, cannot be ruled out. 17. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, however, appearing on behalf of the State, submits that the member of the Band party was apprehended and, in fact, brought to the Police Station alongwith the victim girl and there is no possibility of any error in his identification. 18. Having appreciated the rival submission. I do not find any substance in the submission of Mr. Kumar. The appellant was apprehended and was brought to the Police Station wearing blood stained cloth. In fact, PW. 2 Kanhaiya Singh had stated in his evidence that the victim girl had identified the accused and stated that it was he who had committed the rape. PW. 1 Meera Kumari had also identified this appellant. In that view of the matter, we are of the opinion that there is no doubt, at all, in regard to the identification of the perpetrators of the crime. The evidence on record clearly show that this was the appellant, who had committed the crime. 19. Mr. Kumar, then submits that the victim girl (PW. 3), her father Laxman Sah (PW. 4) and her cousin Om Prakash (PW. 5) having not supported the case of the prosecution and declared hostile, appellant deserves to be given the benefit of doubt. 20. Mr. Prasad, however, contends that simply because few of the witnesses have been declared hostile, prosecution cannot be thrown out only on that ground. He submits that the evidence of PWs. 1 and 2 and the extra-judicial confession of the appellant, prove his guilt, beyond all reasonable doubt. 20. Mr. Prasad, however, contends that simply because few of the witnesses have been declared hostile, prosecution cannot be thrown out only on that ground. He submits that the evidence of PWs. 1 and 2 and the extra-judicial confession of the appellant, prove his guilt, beyond all reasonable doubt. We do not find any substance in this submission of Mr. Kumar also. 21. True it is that PWs. 3, 4 and 5 have been declared hostile but to large extent, they have supported the case of the prosecution. PW. 3 Guriya.Kumari has deposed that she was enticed by a member of the Band party. PW. 4 Laxman Sah has also supported the fact of kidnapping as also the rape but had not identified the appellant. PW. 5 Om Prakash has also supported the factum of kidnapping. Thus, from the evidence of PWs. 3 to 5, it is evident that the victim girl was kidnapped and subjected to rape. PW. 3 to PW. 5 although do not identify the appellant but PWs. 1 and 2 have identified him. 22. In the case of State of U.P. Vs. M.K. Anthony AIR 1985 SC 48 , the Supreme Court, in paragraph no. 15, has held as follows. " 15. xxx If the evidence about extra-judicial confession comes from the mount of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test, on the touchstone of credibility, if it passed the test, the extrajudicial confession can be accepted and can be the basis of a conviction. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." 23. In such a situation to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-judicial confession is reliable, trustworthy and beyond reproach the same can be relied upon and a conviction can be founded thereon." 23. PWs 1 and 2 besides supporting the case of the prosecution, they also supported the fact of the appellant giving extra-judicial confession admitting his guilt. PW. 1 in paragraph no. 3 of her evidence had clearly stated that the apprehended member of the Band party, on inquiry by the persons collected, confessed his guilt. Similarly, PW. 2 Kanhaiya Singh had deposed that the apprehended accused confessed his guilt, when inquired by the persons collected. 24. We do not find any reason as to why PWs. 1 and 2 will falsely implicate the appellant. The factum of rape has been proved beyond any shadow of doubt from the evidence of PW. 6 Dr. Srivastava. The evidence about extra-judicial confession has come from the mouth of PWs. 1 and 2 who do not deem to be biased in any manner and not remotely inimical to the appellant. We are of the opinion that the extra-judicial confession given by the appellant finds support from the evidence of PWs. 1 and 2 and that establish the guilt of the appellant. In our opinion, the prosecution has been able to prove its case beyond all reasonable doubt and the appellant has been rightly convicted and sentenced. 25. Mr. Kumar, lastly submits that the appellant ought not to have been given the extreme sentence of imprisonment for life. We are not at all impressed by this submissions of the learned counsel for the appellant. Here the victim of the crime is innocent 4 1/2 years old girl and in that view of the matter, we are of the opinion that the sentence awarded to the appellant cannot be said to be excessive. 26. In the result, we do not find any merit in this appeal and it is dismissed accordingly.