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2007 DIGILAW 302 (PAT)

Sanju Kumar, Sanjay Yadav v. State Of Bihar

2007-02-08

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Both these appeals arise out of the common judgment and order dated 6th September 2003 and 10th September 2003 respectively passed in Sessions Trial No. 98 of 1998 ( arising out of Phulwarisharif P.S. Case No. 31 of 1997) by Sri J.M. Sharma, learned 4th Addl. Sessions Judge, Patna and having been heard together is being disposed of by this common judgment. Both the appellants have been sentenced to undergo R.I. for 7 years for offence under Sec. 363 I.PC, to undergo R.I. for 7 years for offence under Sec. 366A I.P.C. and also pay a fine of Rs. 1,000/- each, to undergo R.I. for 10 years and pay fine of Rs. 2,000/- each for offence under Sec. 376 IPC and to undergo R.I for 7 years for offence under Sec. 450 IPC and each to pay fine of Rs. 1,000/-. It was directed that all the sentences will run concurrently. 2. It will not be out of place to mention here that whereas convicted accused Sanju Kumar filed his appeal, the other convicted accused Sanjay Yadav sent a petition from Jail and on the basis thereof this Court was pleased to appoint Smt. Madhuri Lata as Amucus Curiae on behalf of the said Sanjay Yadav. 3. The prosecution was set in motion when one Ganesh Sao submitted a written report before the Incharge Gopalpur O.P. alleging therein, inter alia, that earlier that day (i.e. 23.1.1997) he received information from one Hilan Sao to the effect that two boys had kidnapped his niece Renu Kumari. It is said that on receipt of such information he rushed to his house where he learnt from his mother that at about 9 P.M. Sanjay Yadav and Sanju Kumar of Mohalla Changar within Kankarbagh P.S. had forcibly entered into the house damaged house hold articles and had taken away her grand daughter Renu Kumari at the point of pistol with the intention of committing rape. It is further said that although the mother of the informant raised hulla none from the neighbourhood came to her rescue as they were afraid of the armed miscreants. It is further said that although the mother of the informant raised hulla none from the neighbourhood came to her rescue as they were afraid of the armed miscreants. It is further said that thereafter the informant in the company of his mother and his brother Hilan Sao searched for Renu Kumari in the neighbourhood without any success and, therefore, he approached the police with the written report.The informant has further stated that Renu Kumari the daughter of Jawahar Lal Gupta of village Sirpatpur within Gaurichak police station was his niece (Bhagini) and was studying from his house and that she was aged about 14 years. 4. It appears that the police promptly took up investigation and in course thereof Renu Kumar was recovered on 24.1.1997 from the house of Gita Devi @ Gita Sinha in Ashok Nagar along with accused Sanjay Yadav whereas accused Sanju Yadav managed to flee away. It further appears that Renu Kumari in course of her statement before the Police as also before the Court under Sec. 164 Cr.P.C. stated that she had been raped by both the aforesaid named accused in the house of Gita Devi, who too was raped by both the accused. The statement of Renu Kumari appears to be corroborated by the statement of Gita Devi both before the police as also before the Court under Sec. 164 Cr.P.C., who too stated of having been raped by both the accused. The two victim girls appear to have been examined by the Doctor. On completion of the investigation, the police submitted a chargesheet against both the accused for commission of offences under Sections 363/366A/448/376/34 of I.P.C. and after completion of the procedure of supply of police papers the case was committed to the Court of Sessions where charges under Sections 363, 366A, 376 and 450 IPC were framed against both the accused vide order dated 2.6.1998. 5. At the trial the prosecution has examined 8 witnesses cited in the chargesheet including the doctor and the I.O.. Some of the witnesses in the chargesheet including Chandshekhar and Rudal Kumar have not been examined and there is no explanation therefor. The prosecution has also brought on record certain documents including the medical report of victim Renu Kumari and Gita Devi @ Gita Sinha, their statements under Sec. 164 Cr.RC. and the formal F.I.R. 6. Some of the witnesses in the chargesheet including Chandshekhar and Rudal Kumar have not been examined and there is no explanation therefor. The prosecution has also brought on record certain documents including the medical report of victim Renu Kumari and Gita Devi @ Gita Sinha, their statements under Sec. 164 Cr.RC. and the formal F.I.R. 6. The defence of the accused is that they are innocent and have denied their involvement in the crime. Further defence of Sanju Kumar is that there is business rivalry between his father and Toka Choudhary, who controls the business of the father of Renu Kumari, therefore, the false implication. 7. In the appeal the main ground taken by the learned counsels in both the appeals is that the medical evidence of both the victims has not proved the factum of rape as the injury reports of both the victims reveal that no rape was committed on both the girls. That apart it has also been submitted that the defence case was prejudiced by the non examination of Hilan Sao and victim Gita Devi as they could have been confronted by the defence in course of the trial. 8. Before proceeding with the merit of the impugned judgment it is worth while mentioning that victim Renu Kumari appeared in Court as RW.7 and has stated in her deposition that she had been kidnapped by both the victims and had been raped by them in the house of Gita Devi. It is by now well settled by a catena of decisions, both of the apex court as also various High Courts that the statement of the prosecutrix in Court and/ or statement under Sec. 164 Cr.P.C. was sufficient to invite conviction notwithstanding there being discrepancies in the evidence of the other witnesses. I am supported in my view by the decision in State of H.P. vs. Asha Ram reported in (2005)13 SCC 766 , Vishnu vs. State of Maharashtra reported in (2006)1 SCC 283 and Om Prakash vs. State of U.P. (2006) 9 SCC 787 . 9. As observed by the Apex Court in the traditional non permissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect of getting married with a suitable match. 9. As observed by the Apex Court in the traditional non permissive bounds of society of India, no girl or woman of self respect and dignity would depose falsely, implicating somebody of ravishing her chastity by sacrificing and jeopardising her future prospect of getting married with a suitable match. Not only would she be sacrificing her future prospect of getting married and having family life, but also would invite the wrath of being ostracised and cast out from the society she belongs to and also from her family circle. The Courts have further held that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. The Supreme Court in the case of Om Prakash (Supra) has observed that in a given case even if the doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix and suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. It is also a well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence. Under the given circumstances, minor contradiction or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. 10. In the instant case although learned counsels sought to point out the discrepancies and contradictions in the prosecution story I am not willing to accept the same in view of the decisions of the Apex Court as also the various High Courts. 11. Thus, I find that there was sufficient and reliable evidence of identification against each of the appellants and as such there appears no reason to interfere with the order of conviction of the two appellants recorded by the learned trial court. 12. However, considering the fact that the occurrence took place more than 10 years ago I feel inclined to reduce the sentence. I am informed at the Bar that appellant Sanju Kumar has been in jail custody for a total period of 6 years 3 months and 19 days. 12. However, considering the fact that the occurrence took place more than 10 years ago I feel inclined to reduce the sentence. I am informed at the Bar that appellant Sanju Kumar has been in jail custody for a total period of 6 years 3 months and 19 days. Due regard being had to the facts and circumstances of the case, in my opinion, the ends of justice will be fully met if the sentence so far as Sanju Kumar is concerned, is reduced to the one already undergone. 13. I am also informed at the Bar that appellant Sanjay Yadav had been sentenced to R.I. for 10 years for offence under Section 366A and lesser sentences for the other offences and he has already completed the maximum period of sentence awarded to him. As it appears Sanjay Yadav has been in custody ever since the day of his arrest on 24.1.1997. The term of 10 years is already over. It is not known whether the said Sanjay Yadav has been released from custody on completion of the period of maximum sentence. If he has not been released he should be released forthwith. 14. In the result both appeals are dismissed subject to the modification in sentence as aforesaid.