Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 330 (PAT)

Mahamood Mian v. State Of Bihar

2007-02-13

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. The four appellants aggrieved and dis-satisfied with the judgment of conviction and order of sentence dated 19.8.2003 passed by Sri Baikunth Nath Shahi, learned 9th Addl. Sessions Judge, Saran at Chapra in Sessions Trial No. 199/98, have preferred this appeal. The appellants have been convicted under Sections 376(2)(g), 379 and 323 I.P.C. have been sentenced to undergo R.I. for 10 years for offences under Sections 376(2)(g) I.P.C. However, no separate sentence has been passed in respect of the offences under Sections 379 and 323 I.P.C. 2. One Nimajan Khatoon filed a petition of complaint before the learned Chief Judicial Magistrate, Saran at Chapra on 12.6.1996, inter alia, alleging that on 11.6.1996 at about 7 P.M. while she was enroute to her house after marketing in Ekma Bazar and had reached the canal situated between village Khanpur and Rajapur the accused persons who were waiting for her arrival from before caught hold of her. It was alleged that whereas accused Karamat Mian assaulted her mother, Most. Rashidan with slaps and separated the mother from the daughter, the other accused dragged the complainant near the canal where she was gang raped by the accused persons one after another. Having satiated their carnal desire the accused persons departed and while departing accused Mahmood Mian is said to have snatched a silver chain worth Rs. 150.00 from the complainant and threatened them with dire consequences if they contemplated approaching the police. The complaint petition was transmitted to the Manjhi Police Station under Sec.156(3) Cr.P.C. and on the basis thereof Manjhi RS. Case No. 68/1996 was registered under Sections 341, 323, 379, 376/ 34 of the I.P.C. 3. The Manjhi PS. after due investigation submitted a chargesheet and following commitment of the case to the Court of Sessions the instant Sessions trial No. 199/98 came to be registered. At the trial the prosecution examined in all 6 witnesses including the I.O. and the victim and proved certain documents as exhibits. 4. However, no witness was examined on behalf of the defence but they have raised a plea of the victim lady herself being a woman of easy virtue. The defence of the accused can effectively be culled out from the trend of their cross examination of the material prosecution witnesses P.Ws. 4. However, no witness was examined on behalf of the defence but they have raised a plea of the victim lady herself being a woman of easy virtue. The defence of the accused can effectively be culled out from the trend of their cross examination of the material prosecution witnesses P.Ws. 1 to 3 to whom suggestion that P.Ws.2 and 3 were women of easy virtue and under the guidance of one Lai Bahadur Singh indulged in extramarital sexual escapades as a result whereof the atmosphere in the village had become polluted. The further defence of the accused was that they have been falsely implicated in this case as they had protested against the immoral activities of the two women by fabricating a false case only to harass them. 5. The learned counsel for the appellants in support of the appeal sought to point out that there were abundance of discrepancies and contradictions in the testimony of material P.Ws. 1 to 3 and the other three witnesses examined by the prosecution were the two I.Os. and the Doctor. In this connection the learned counsel pointed out that whereas P.W.1 deposed in paragraph 11 of her cross-examination that she and the prosecutrix raised alarm when the accused persons caught hold of her daughter and also stated that they had covered her mouth with their hand, the prosecutrix figuring as P.W.2 deposed in her examination in chief that the mother had arrived after the occurrence of her gang rape by the aforesaid four accused. He further sought to point out that whereas the prosecutrix in paragraph 29 denied that Munna Kuer (P.W.3) was not her friend and Munna Kuers husband had expired, Munna Kuer in her deposition in paragraph 7 had stated that she had visited the house of the prosecutrix on several occasions and that she was living with her husband Rajeshwar Singh at Hajipur. The learned counsel also sought to point out that P.W.3 Munna Kuer was not an eye witness of the occurrence and in this connection it was submitted that whereas P.W.1 in paragraph 3 stated that RW.3 Munna Kuer on hearing the alarm raised by her had arrived and thereafter the silver chain was snatched from the prosecutirx, Munna Kuer in her deposition in paragraph 2 stated that when she met the victim and her mother at the P.O. they had narrated the story of gang rape to her. The learned counsel also pointed out that the Doctor (P.W.4) who had examined the prosecutrix on 27.6.1996 did not find any evidence of recent injury on physical violence and that the victim had not produced any of her clothes before her although the prosecutrix deposed in paragraph 24 that she had produced her clothes before the Doctor. 6. Admittedly the incident took place on 11.6.1996 and the prosecutrix was examined by the Doctor on 27.6.1996 i.e. after a lapse of almost 16 days and naturally no sign of physical violence or rape would be found after the lapse of such a long period. The learned counsel for the appellants placing reliance on paragraph 6 of the deposition of P.W.6, Rajeshwar Prasad, the first I.O. wherein he has stated that the prosecutrix and Munna Kuer were ladies of questionable character and easy virtue submitted that the two being professional sex workers under the patronage of one Lai Babu Singh they could not raise plea of being gang raped. 7. I am unable to accept and appreciate the submissions advanced by the learned counsel for the appellants for the reason that it is by now well established by several decisions of the Apex Court that the statement of the prosecutrix in Court was sufficient to invite conviction notwithstanding there being discrepancies in the evidence of the other witnesses. Reliance can gainfully be placed on the decisions of 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 . 8. The Courts have unanimously held that the victim of sexual assault is not to be treated as an accomplice and as such her evidence does not require corroboration from any other evidence including the evidence of a Doctor. 8. The Courts have unanimously held that the victim of sexual assault is not to be treated as an 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 signs of rape, it is no ground to disbelieve the sole testimony of the prosecutrix and suggestion given to her 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 contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. 9. In view of the well established principle of law regarding rape/gang rape, notwithstanding the discrepancies and contradictions pointed out by the learned counsel for the appellants, I have no option but to uphold the impugned judgment and order, more so when there is sufficient and reliable evidence of identification against each of the appellants. 10. Due regard being had to the facts and circumstances of the case I find no merit in this appeal and the same is dismissed.