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2007 DIGILAW 1386 (PAT)

Mohan Yadav, Ram Krishna Yadav v. State Of Bihar

2007-08-21

MADHAVENDRA SARAN

body2007
Judgment MADHAVENDRA SARAN, J. 1. Cr. Appeal no. 33 of 2004 and Cr. Appeal No. 75 of 2004 have been heard together as they both arise out of same judgement of conviction and sentence dated 11.12.2003 passed by Sri Shyam Kumar Mishra, Sessions Judge, Madhepura in Sessions Case No. 85/1988. 2. Appellant Ram Krishna Yadav of Cr. Appeal No. 75/2004 has been convicted and sentenced to undergo R.I. for 10 years u/s. 376 of the Indian Penal Code. Then appellant Mohan Yadav of Cr. Appeal No. 33 of 2004 has been convicted and sentenced to undergo R.I. for 10 years for the offence u/s. 376/34 of the Indian Penal Code. 3. Shortly stated the prosecution case is that on 4.7.1982 at noon (Sunday) informant Bimla Devi was going towards north of her house in the field of Mobarak Mian in which marua crop was grown by Shivnandan Yadav for cutting maura crop. When she reached near the field of Bhumi Sah and Rafique Mian she saw accused Mohan Yadav and Ram Krishna Yadav standing on the ridge. As soon as she went ahead of them both the accused chased and surrounded her. Mohan Yadav asked her to stop. The informant suspecting their bad intention tried to run away from there but accused Mohan Yadav caught her and pulled her on the ground. She wanted to raise alarm but Mohan Yadav shut her mouth with one hand and caught her with another hand. Accused Ram Krishna Yadav lifted her sari and petticoat and wrapped his lungi and thereafter committed rape of her forcibly. After committing rape accused Ram Krishna Yadav asked other accused to commit rape upon her. In the meantime, the informant got opportunity and raised alarm loudly. Thereafter both the accused fled away towards east leaving the informant. The informant went to marua field and informed about the occurrence to her mother-in-law Sandhya Devi (PW 6). She also narrated about the occurrence to Jagdish Yadav, Arun Sah and to the daughter-in-law of Shivnandan Yadav who were present there. She also stated that her husband was in Punjab and her nandosi was also not available and, therefore, on the next day in the morning she went to the police station and reported the matter. It appears that on the basis of statement of informant the police registered Kumarkhand PS case no. 168/1982 under Ss. She also stated that her husband was in Punjab and her nandosi was also not available and, therefore, on the next day in the morning she went to the police station and reported the matter. It appears that on the basis of statement of informant the police registered Kumarkhand PS case no. 168/1982 under Ss. 376 and 341 of the Indian Penal Coded and after investigation submitted charge sheet on the basis of which cognizance was taken in the case. The case was later on committed to the Court of Session. After trial the two accused were convicted and sentenced as mentioned above. Against the said conviction and sentence the appellants have preferred the present appeals before this court. 4. The defence of the appellants was total denial of the alleged occurrence and false implication in the case. Their further defence was that due to enmity with Jagdish Yadav and Nebi Sah they were falsely implicated in the case. 5. In support of the charge the prosecution examined in all 8 witnesses who are PW 1, Rudra Narayan Singh, PW2, Arun Sah, PW3, Jugal Paswan, PW4, Surendra Yadav, PW5, Jagdish Yadav, PW6, Sandhya Devi (mother-in-law of victim). PW7, Bimla Devi (the informant) and PW8, Dr. Mrinalini Yadav. 6. It appears that PWs 2 and 4 were simply tendered for evidence by the prosecution so there is nothing in their evidence to support the prosecution case. 7. PWs 1, 3 and 5 were declared hostile and cross examined by the prosecution. 8. PW7, Bimla Devi is the victim of this case. She stated before the court that on the day of occurrence at about 1 PM she was going to the field of Shivnandan Yadav for carrying bundles of marua crop where her mother-in-law was cutting marua crop. When she reached near the field of Bhumi Sah she saw that both the accused were standing on the ridges. Both of them asked her to stop by saying "Kohbara Bali Tahro". She did not stop as accused were asking her to stop at a lonely place. She began to move briskly when accused Ram Krishna Yadav came in front of her and accused Mohan Yadav caught her hand from behind. She was felled down on the ground. Mohan Yadav shut her mouth with one hand and caught her by another hand. She did not stop as accused were asking her to stop at a lonely place. She began to move briskly when accused Ram Krishna Yadav came in front of her and accused Mohan Yadav caught her hand from behind. She was felled down on the ground. Mohan Yadav shut her mouth with one hand and caught her by another hand. She further stated that accused Ram Krishna Yadav raped her and thereafter accused Mohan Yadav also tried to rape her but her mouth was opened and she raised alarm. Both the accused then fled away. She further stated that thereafter she went to the field of Shivnandan Yadav. She was weeping. She narrated the occurrence to her mother-in-law. Jagdish Yadav and daughter-in-law of Jagdish Yadav. Her husband was at Punjab. She also stated that after returning back home she informed Anandi Mukhiya and Kadamlal Mukhiya who asked her to report the matter at the police station. On the next day she along with her nandosi Sadanand Paswan went to the police station and gave her statement which was recorded by the police upon which she put her LT.I. She further stated that she came to the Madhepura Hospital where she was examined by the doctor. It appears that she denied the defence suggestion that she has filed this case at the instance of Jagdish Yadav and Nebi Sah. 9. PW6, Sandhya Devi is the mother-in-law of victim. She deposed before the court that on the day of occurrence she had gone to the field of Shivnandan Yadav to cut marua crop and asked her daughter-in-law Bimla Devi to come there for carrying bundles. At about 12 Noon Bimla Devi came. She was weeping. She reported that when she was coming in the way accused Ram Krishna Yadav and Mohan Yadav caught her and committed rape on her. She further stated that at that time ladies were working in the nearby filed to whom they narrated about the occurrence. She further stated that Jagdish Yadav (PW5) was also present in the field. According to this witness both the accused came there and asked her not to inform anyone about the occurrence. This witness further stated that while she was returning back to her house her daughter-in-law showed her the place where she was raped. She further stated that Jagdish Yadav (PW5) was also present in the field. According to this witness both the accused came there and asked her not to inform anyone about the occurrence. This witness further stated that while she was returning back to her house her daughter-in-law showed her the place where she was raped. It appears from cross examination that she used to work as labourer in the field of Jagdish Yadav. She further stated that when she learnt that Jagdish Yadav got accused persons implicated in this false case due to enmity then they compromised the case with the accused persons. 10. PW8 Dr. Mrinalini Yadav on 6.7.1982 was posted as lady Medical Officer at Madhepura Sadar Hospital and on the same day at 11.30 A.M. she examined PW7, Bimla Devi but she did not find any external or internal injury on her person. She expressed opinion that Bimla Devi was 20-22 years of age. She also did not find any evidence of recent intercourse. Injury report is exhibit-1. She admitted that injured was produced before her by the police. 11. It has been argued by the learned amicus curiae appearing on behalf of the appellants that the doctor during medical examination did not find any external or internal injury on the person of the prosecutrix. The investigation officer was also not examined in the case by the prosecution. Jagdish Yadav (PW5) did not support the prosecution case. He, therefore, argued that on the basis of doubtful testimony of the prosecutrix it would not be safe to convict the appellants. He also pointed out that appellants have got dispute with Jagdish Yadav and he got the accused persons implicated in the present case. 12. The alleged occurrence took place on 4.7.1982 in the after noon at a lonely place. After rape the prosecutrix went weeping and narrated the incident to her mother-in-law (PW6). PW6 also admitted before the court that she had asked her daughter-in-law, Bimla Devi (PW7) to come there for carrying bundles of marua crop. She also stated before the court that both the appellants came there and abused them and also asked them not to inform anyone about the occurrence. Thus, story disclosed by PW7 finds support from the evidence of PW6. It is true that during medical examination doctor did not find any external or internal injury on the person of prosecutrix. She also stated before the court that both the appellants came there and abused them and also asked them not to inform anyone about the occurrence. Thus, story disclosed by PW7 finds support from the evidence of PW6. It is true that during medical examination doctor did not find any external or internal injury on the person of prosecutrix. It is also true that during medical examination no spermatozoa was detected by the doctor. It is settled view that a prosecutrix of a sex offence cannot be put at par with an accomplice. She is a victim of the crime. The evidence of prosecutrix, therefore, carries the same weight as is attributed to an injured person who is a victim of violence unless there are special circumstances which called for greater caution. The prosecutrix is an adult lady and of full understanding. There is nothing to show that her evidence is not trustworthy. It appears that she comes from Harijan family. Her evidence finds corroboration from PW6. Absence of spermatozoa cannot discredit her evidence because she was examined by the lady doctor about 48 hours after the alleged occurrence. The prosecutrix may have washed herself by then. Absence of marks of physical violence on the prosecutrix is also not very surprising. Then the defence did not produce any evidence to show Jagdish Yadav had any dispute with them. Nothing was brought on record to show that Jagdish Yadav got them implicated in this false case. 13. I have seen the judgement of the learned Sessions Judge and the same indicates proper appreciation of the evidence. There is nothing to show that view taken by the learned Session Judge is unreasonable. I find no infirmity in the judgement of the trial court. Learned Sessions Judge, therefore, has rightly convicted both the appellants. 14. In the aforesaid facts and circumstances, I find that prosecution has proved the charge u/s. 376 of the Indian Penal Code against appellant Ram Krishna Yadav and further the charge u/s. 376/34 of the Indian Penal Code has also been established against appellant Mohan Yadav. 15. Now coming to the question of sentence, I find that two appellants are facing this criminal prosecution since the year 1982. It is, settled view that the punishment should be proportionate to the gravity of the offence but the passing of time is a good ground for imposing lesser sentence. 16. 15. Now coming to the question of sentence, I find that two appellants are facing this criminal prosecution since the year 1982. It is, settled view that the punishment should be proportionate to the gravity of the offence but the passing of time is a good ground for imposing lesser sentence. 16. In the facts and circumstances, appellant, Ram Krishna Yadav is, therefore, sentenced to undergo R.I. for four years u/s. 376 of the Indian Penal Code. Similarly, appellant Mohan Yadav is also sentenced to undergo R.I. for four years u/s. 376/34 of the Indian Penal Code. 17. With the above reduction in the period of sentence, the two appeals are dismissed.