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2007 DIGILAW 1442 (PAT)

Pyari Yadav @ Pyare Lal Yadav v. State Of Bihar

2007-08-31

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. This appeal has been preferred against the judgment and order dated 15.12.2003 passed by Sri Sushil Kumar Additional Session Judge (Fast Track Court no.1), Bhagalpur in Session Trial no. 388/ 1989 whereby he convicted the appellant under Section 376 of the Indian Penal Code (in short as IPC)- and sentenced him to undergo R.I for 10 years and also to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo R.I for one year. He was also convicted and sentenced to undergo R.I for 5 years under Section 451 of the IPC. It was further ordered that half of amount of fine, if realised, shall go in favour of prosecutrix, and the remaining half of the amount of fine will be realised in favour of the State of Bihar. Sentences were however ordered to run concurrently. 2. The prosecution case, in short, as disclosed in the written statement dated 25.8.1987 submitted by informant Sarjug Yadav before police is that in the night of 23.8.1987 at about 11 PM accused Pyare Yadav son of Mahavir Yadav resident of village Kurda P.S. Katoria committed rape on his wife Kanti Devi after entering into the house. At the time when the rape was being committed the informants wife raised alarm but the accused on the point of dagger threatened her to keep quite. In the meantime, the informant reached there from a nearby government dharamsala where he had gone to serve Kanwarias. The informant seeing the accused committing rape challenged him and a scuffle took place between them. In that scuffle the informants shirt got torn. The informant came out to the room and shut the door. On halla some of the villagers named Birati Yadav (not examined), Bhim Yadav (PW 3) and others reached there when the accused managed to escape by crossing the broken wall contiguous to other room where the alleged incident had taken place. On the basis of written report of the informant the police registered Katoria PS case no. 117 dated 26.8.1987 and on completion of investigation charge sheet was placed. Learned A.C.J.M., Bhagalpur took cognizance and transferred the case to another Magistrate from where the case was committed to the Court of Session. 3. It appears that during trial 5 witnesses were examined on behalf of prosecution. 117 dated 26.8.1987 and on completion of investigation charge sheet was placed. Learned A.C.J.M., Bhagalpur took cognizance and transferred the case to another Magistrate from where the case was committed to the Court of Session. 3. It appears that during trial 5 witnesses were examined on behalf of prosecution. Placing reliance on the evidence of prosecutrix and her husband the Trial Court found the accused guilty and convicted and sentenced him as aforesaid. 4. The defence of the accused was total denial of the alleged occurrence and false implication in the case due to land dispute. 5. Against the said conviction and sentence the appellant has preferred the present appeal before this Court. 6. As mentioned above in order to bring home the charges the prosecution examined in all five witnesses who are PW1, Chintamani Yadav, PW 2, Arjun Prasad Yadav, PW3 Bhim Prasad Yadav, PW 4, Kanti Devi and PW 5 Sarjug Yadav. It appears that accused Pyare Lai Yadav got himself examined as DW 1 in defence. 7. Out of 5 witnesses examined on behalf of prosecution PWs 1, 2 and 3 turned hostile and did not support the case of prosecution. 8. PW4 (Kanti Devi) is the victim of this case. She was examined in Court on 23.11.1993. She disclosed her age as 16 years but the Court assessed her age as 20 years. The alleged occurrence as mentioned above took place on 23.8.1987. Thus, it appears that at the time of alleged occurrence she was not a major lady. She stated before the Court that it was night and she was lying in the room. A dibia was burning. Her husband had gone to Inarabaran, a nearby place, to serve kanwarias/passengers. The door of her room was open. The accused entered in her room and began to catch hold of her intending to outrage her modesty. He lifted her sari and forcibly committed rape on her for 10 minutes. When she resisted and raised alarm he threatened her with knife. In the meantime, her husband arrived and saw accused committing rape. Her husband caught hold of accused but he managed to escape and went in the next room. A scuffle between her husband and the accused took place but the accused managed to run away. Co-villagers Bikaji, Tarni, Girdhari, Bhalo and others arrived to whom she narrated the incident. In the meantime, her husband arrived and saw accused committing rape. Her husband caught hold of accused but he managed to escape and went in the next room. A scuffle between her husband and the accused took place but the accused managed to run away. Co-villagers Bikaji, Tarni, Girdhari, Bhalo and others arrived to whom she narrated the incident. The police seized her sari, saya and blouse. In cross-examination this witness deposed that at the time of alleged occurrence she was alone in the house. She further deposed that her petticoat on account of sexual intercourse had become stained. She further stated that her mother-in-law had gone to perform puja. Then according to this witness three days after the alleged occurrence she was medically examined by the doctor. She denied the suggestion of defence that on account of land dispute the accused has been falsely implicated in the case. 9. PW5 (Sarjug Yadav) is the husband of victim lady. He is also informant of this case. He stated before the Court that he had gone to Inarabaran, Government dharamsala. When he returned back to his house he saw the accused committing rape forcibly on his wife. His wife was in deep trouble. She was weeping. He also stated that a scuffle took place with the accused who managed to escape. In cross-examination he admitted that accused was his gotia. He denied about any land dispute with the accused. He also denied about any case said to have been filed by the accused relating to theft of cow. 10. It has been argued by the learned amicus curiae appearing on behalf of appellant that neither the doctor was examined nor injury report was brought on record. He argued that during medical examination no sign of rape was found on the victim. He also pointed out that Investigation Officer of the case was also not examined by the prosecution for the reasons best known to it and in absence of their evidence the defence case has been prejudiced. 11. It is true that doctor and Investigation Officer were not examined in the case by the prosecution. It is also correct that injury report of the prosecutrix was also not brought on record. 12. It is settled view that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime. 11. It is true that doctor and Investigation Officer were not examined in the case by the prosecution. It is also correct that injury report of the prosecutrix was also not brought on record. 12. It is settled view that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice of the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In practice a conviction for rape almost entirely depends on the credibility of the woman, so far essential ingredients are concerned, the other evidence being merely corroborative. In the present case this Court finds that husband (PW 5) supported the evidence of the prosecutrix. The Trial Court has found their evidence to be trustworthy. The non-examination of doctor is not very material in the case. It is again settled view that absence of injuries on the private parts of the prosecutrix would not rule out her being subjected to rape. 13. It was next argued by learned amicus curiae that though the alleged occurrence took place on 23.8.1987 at 11 PM but the police was informed about the incident on 26.8.1987. He pointed out that this delay of three days makes the prosecution story doubtful. Mere delay in filing the FIR is no ground to doubt the version of the prosecutrix. There may be various reasons for filing the FIR after some delay. In the present case it has come in the evidence of PWs 4 and 5 that soon after the incident they approached the police but their prayer was not entertained and thereafter they went to Banka Court and contacted a lawyer and filed the written report dated 25.8.1987 before the police. Thus the prosecution has explained the delay in filing the FIR. 14. It appears from the record that during trial no documentary evidence was produced by the accused to show any enmity with the prosecution party. Only suggestion was given to PWs 4 and 5 that for alleged incident dated 5.7.1987 regarding theft of cattle the informant and his wife falsely implicated the accused in the case. 14. It appears from the record that during trial no documentary evidence was produced by the accused to show any enmity with the prosecution party. Only suggestion was given to PWs 4 and 5 that for alleged incident dated 5.7.1987 regarding theft of cattle the informant and his wife falsely implicated the accused in the case. Again no paper was produced by the defence to show that accused had filed such case relating to theft of his cattle against the informant and others before the Court of Gram Kachari. 15. So far as charge under Section 457 of the IPC is concerned, it appears from the evidence on record that there was neither lurking house tress pass nor house breaking by night. The mere fact that a house trespass was committed during night hours does not make the offence one of lurking house trespass within the meaning of this Section. There is also nothing in the evidence to show that the accused attempted to conceal himself in the house of prosecutrix. In absence of above requirement it cannot be accepted that offence under Section 457 of the IPC was also committed by the appellant. So far as conviction under Section 457 IPC is concerned the sentence awarded is against the punishment provided in the Section. 16. I have examined the judgment of the Trial Court minutely and so far as conviction under Section 376 of the IPC is concerned, the same indicates proper appreciation of evidence. The view taken by the Trial Court in convicting the appellant under Section 376 of IPC appears to be reasonable. I find no infirmity in the judgment. The Trial Court therefore, has rightly convicted the appellant under Section 376 of the IPC. 17. For the aforesaid reasons, the conviction and sentence of the appellant under Section 451 of the IPC is set aside. 18. Now coming to the question of sentence, I find that appellant is facing this criminal prosecution since last 20 years. It appears that at the time of conviction the appellant was 60 years old. It is settled view that punishment should be proportionate to the gravity of offence but passing of time is a good ground for imposing lesser sentence. It also appears from the record that both parties are neighbours. 19. It appears that at the time of conviction the appellant was 60 years old. It is settled view that punishment should be proportionate to the gravity of offence but passing of time is a good ground for imposing lesser sentence. It also appears from the record that both parties are neighbours. 19. In the facts and circumstances of the case, the sentence of the appellant under Section 376 of the IPC is reduced to 5 years R.I. only. He is also sentenced to pay a fine of Rs. 5,000/- (five thousand) and in default of payment of fine to, undergo R.I. for one year. The amount of fine, if realised, shall be paid to the prosecutrix, that is, victim lady. 20. The appeal is, accordingly, disposed of on the above terms.