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2007 DIGILAW 454 (PAT)

Ashok Yadav v. State Of Bihar

2007-02-28

CHANDRA MOHAN PRASAD

body2007
Judgment C.M.Prasad, J. 1. This appeal is against the judgment of conviction dated 21st September 2002 and order of sentence dated 23rd September 2002 of the 3rd Additional Sessions Judge, Jamui in Sessions Case No. 664 of 2000 whereby the appellant has been convicted under Sec.376 of the Indian Penal Code and sentenced to undergo R.I. for 10 years and a fine of Rs. 2,500.00 and in default of payment of fine, to undergo S.I. for 6 months. 2. The FIR of the case was registered on the statement of victim Sakuna Kumari (P.W.7) who along with her father Sheo Pandit appeared before the Officer In-charge, Khaira Police Station district Jamui on 24th April 2000 and stated that yesterday (23.4.2000) at 10-11 A.M. She had gone "Kharihar Bagh" (barren land) situated at a distance of half kilo-meter west of her village and she was collecting dry leaves under a Peepal tree for fuel at that time appellant Ashok Yadav and some small boys were grazing cattle. The boys went away for drinking water to their cattle and then finding her (victim) alone, the appellant came close to her and asked her to submit for intercourse. She refused and finding appellants motive bad, started fleeing towards her house. But she was chased and after a short chase he (the appellant) caught her in a. ditch towards east and thrashed her down on the ground and started opening the fastener of her Pajama. She protested and cried upon which the appellant assaulted her with fists and slaps and overpowered her, clinched her and then opening her Pajama, penetrated his penis in her genetal and ravished her for about 15 minutes. She felt much pain and bleeding started. The appellant left her after ejecaculation. Then seeing Laia Mushar, Giridhari Manjhi and Ram Pandit (P.W.4), the appellant fled away from there. After fleeing of the appellant, the victim came to her house at about 2:00 P.M. Her father was not present in the house, hence she told the occurrence to her Gotia Muneshwar Pandit (P.W.5). The victim further alleged that in absence of her father, the appellant came to her house and threatened her not to tell about the occurrence to anybody or to report to the Police, else she would have to face dire consequence. The victim further alleged that in absence of her father, the appellant came to her house and threatened her not to tell about the occurrence to anybody or to report to the Police, else she would have to face dire consequence. Her father had gone to one relation and he returned at about 4:00 P.M. and then she narrated to her father and thereafter her father arranged a motor-cycle and started to take her to Sono Police Station but due to rising of water in the river it could not be crossed and they had to return back to their house. On the next day, she along with her father went to Sono Police Station but the Officer In-charge told that the P.O. lay in the jurisdiction of Khaira P.S. and asked them to go to that P.S. hence they went to that P.S. and thus, delay was caused in lodging of the FIR. The informant stated that after recording of her fard-beya she put her LTI on it in presence of her father who also signed the same as a witness. The FIR was recorded on the basis of the fard-beyari and then investigation commenced and on completion of investigation charge-sheet was submitted and the appellant was put on trial and he has been convicted and sentenced, as above. 3. As many as 8 witnesses were examined by the prosecution. P.W.1 Yadunandan Pandit, P.W.3 Upendra Pandit, P.W.4 Ram Pandit, P.W.5 Muneshwar Pandit and P.W.6 Tripurari Pandit have been examined on the point of occurrence. P.W.7 Sakuna Kumari is the victim informant herself, P.W.2 Dr. Reeta Upadhyay is the member of the Medical Board who had examined the victim and P.W.8 Narayan Singh is the I.O. of the case. 4. P.W.7 Sakuna Kumari (the victim) deposed that while she had gone to Kharharibagh for collecting dry leaves, some boys were grazing their cattle and that while the boys went away for drinking water to their cattle, the appellant who was also there came to her and asked her to concede for sexual intercourse. She also started fleeing away to save herself but the appellant chased her, caught hold of her and thrashed her down on the ground and opening her Pajama, forcibly raped her, for about 15 minutes. Blood came out of her genetal. She also started fleeing away to save herself but the appellant chased her, caught hold of her and thrashed her down on the ground and opening her Pajama, forcibly raped her, for about 15 minutes. Blood came out of her genetal. She also deposed that on her cries, Ram Pandit (P.W.4), Giridhari Manjhi and one another person had come and seeing them, the appellant fled away. She also deposed that she went to her house but her father was not present in house, hence, she narrated the occurrence to Muneshwar Pandit, her Gotia. She continued to depose that in her absence, appellant Ashok Yadav had come to her house and threatened her not to tell the occurrence to anybody or to lodge any case against him, else she would be killed. She stated that when her father came to house, she narrated the occurrence to him. Then she deposed that she along with her father proceeded for going to the Police Station, water had risen in the river in the way, hence, they returned back to house. Next day, she along with her father went to Khaira Police Station where she gave her statement which was recorded and read out to her and then she had put her LTI on the same. She also deposed that her father (Sheo Pandit) and Yadunandan Pandit (P.W.4) had also signed the FIR. She stated that she was treated in Hospital, Jamui. At Para-13 of her cross-examination, she stated that Giridhari Pandit and Ram Pandit, who had rushed towards her on her cries had tried to catch hold of the appellant but he managed to escape. She also deposed that these persons had run to her at the time of occurrence. She further deposed that she had seen those persons when she had stood up after commission of the offence on her. Thus, the victim fully supports the case of the prosecution and there is nothing in her evidence to discredit her testimony. 5. P.W.1 Yadunandan Pandit deposed that on 23.4.2000, while he was in Sarebagh victim Sakuna Kumari had come to him and disclosed before him that appellant Ashok Yadav had committed rape on her. He also deposed that he had seen blood stains on several places on the Pajama of the victim. At Para-4 of his evidence he admitted that the victim is his neice. He also deposed that he had seen blood stains on several places on the Pajama of the victim. At Para-4 of his evidence he admitted that the victim is his neice. Thus it is natural that the victim had disclosed the occurrence to this witness who was her uncle, particularly on the situation when her father was absent from the house. Thus, this witness learns about the occurrence from the victim shortly after the occurrence. He also found blood stains on the Pajama of the victim. 6. P.W.3 Upendra Pandit deposed that the victim had disclosed before him that Ashok Yadav (the appellant) had committed rape on her. He also deposed that he had seen blood stains on the Pajama of the victim. He admits that he had not seen the occurrence with his eyes. This witness has been informed by the victim shortly after the occurrence about the rape committed on her and this witness also finds blood stains on her Pajama. This witness is not directly related to the victim but he says that from the village relationship, the victim is his sister. 7. P.W.5 Muneshwar Pandit deposed that on 23rd April 2000 at about 10 O clock Sakuna Kumari (the victim minor girl) came weeping and she told him that Ashok Yadav had committed rape on her and that at the time of commission of rape, he had also assaulted her with fists and slaps, when she had protested to the commission of rape. This witness further deposed that he took the victim in his lap and had taken her away from the place. He also deposed that he had seen blood stains in the Salwar and Kurta of the victim. He further deposed that Sheo Pandit (father of the victim) had told him that he will lodge a case about the occurrence. Thus, this witness had learnt about the occurrence shortly after the occurrence and he had also found blood stains in her clothes. 8. P.W.6 Tripurari Pandit deposed that on the day of the occurrence, while he was in Kharihar, Ashok Yadav (the appellant) had committed rape on Sakuna Kumari. He deposed that he had seen the appellant climbing over the victim and he had also seen blood stains on the Pajama of the victim. 8. P.W.6 Tripurari Pandit deposed that on the day of the occurrence, while he was in Kharihar, Ashok Yadav (the appellant) had committed rape on Sakuna Kumari. He deposed that he had seen the appellant climbing over the victim and he had also seen blood stains on the Pajama of the victim. In Para-8 of his cross-examination he has deposed that he was at a distance of about 30-40 cubits from the P.O. at which time he heard the cries of the victim and while he rushed towards the ditch he saw that the appellant came out of the ditch and fled away. He has also deposed that when he had come closer to the ditch he had seen the appellant over the victim and seeing the victim he came to a fix for about 2-4 minutes and, in the mean time, the appellant fled away. At Para-9 of his evidence, some omissions have been tried to be proved with regard to the Police evidence as given before the I.O. but on the perusal of the case diary, it appears that the I.O. has not recorded any statement of this witness in detail. There is no scope for any contradiction or omission in the evidence.of this witness with regard to any Police statement. Thus, this witness had come to the P.O. on hearing the cries of the victim and he had also seen the appellant climbed over the victim for the commission of the offence and that when he rushed towards the P.O., the appellant fled away. This witness is not directly related to the victim, but he has stated at Para-6 of his evidence that from the relationship of the village and Tola he lives, the victim is his niece. 9. P.W.4 Ram Pandit deposed that while he had gone to spread cow dung in his field and he was standing near the Peepal tree, he heard the cry of the victim Sakuna Kumari and then he saw that Sakuna Kumari (the victim) and Ashok Yadav (the appellant) were grappling with one another. He also deposed that he tried to catch hold of the appellant but he managed to escape. He further deposed that he had seen blood stain on the Pajama of the victim who disclosed before him that Ashok Yadav (the appellant) had committed rape on her. He also deposed that he tried to catch hold of the appellant but he managed to escape. He further deposed that he had seen blood stain on the Pajama of the victim who disclosed before him that Ashok Yadav (the appellant) had committed rape on her. Her further deposed that he had taken the victim to her father. This witness is also not directly related to the victim and in Para-8 of his cross-examination he has stated that from the village relationship he is the uncle of the victim. Thus, this witness corroborates the victim on the point of occurrence and there is nothing in his evidence to discredit his testimony 10. P.W.2 Dr. Rita Upadhyay is one of the members of the Medical Board which had examined the victim. This witness has deposed that on 24.4.2000 the Medical Board constituted of herself, Dr. Arun Kumar Singh and Dr. Anjani Kumar had examined the victim Sakuna Kumari daughter of Sheo Pandit and had found as follows: (i) Height 46.1/2" Weight 23 Kg. Number of teeth of 28- 14/14. Auxilliary and pubic hair not appeared, breast not developed. The Paijama was torn in mid line in upper part and having whitish and brownish stain marks at multiple places over its under surface. Multiple abrasion brown in colour found in back. Examination of vulva: (i) Recently torn hymen with bruise margin red in colour. (ii) Parenial tear 1/2" x 1/2" deep to skin in mid line, posteriorily and bleeds on stretching. (iii) Verginal swab taken and sent to Pathological Laboratory at Subdivisional Hospital Jamui examined by Dr. A.K. Sinha, Pathologist. (iv) Dead spermatozoa found. Radiological Examination: X ray pelvis A/P view including both hip joint and upper end of both femer and X ray right elbow and right wrist including forearm. A/P and lateral view done at Daily Xray Jamui on 25.4.2000. 11. This doctor witness has deposed in detail about the findings of radiological examination and on the basis of that finding she has further deposed that the age of victim was between 10-12 years. 12. She further deposed that there was injury over vulva in form of tear of hymen and posterior cranial tear found during examination. The age of injury to hymen and injury to perinium and abrasion over back in between 24 to 36 hours. The medical examination report was proved by this witness as Ext-1. 12. She further deposed that there was injury over vulva in form of tear of hymen and posterior cranial tear found during examination. The age of injury to hymen and injury to perinium and abrasion over back in between 24 to 36 hours. The medical examination report was proved by this witness as Ext-1. Thus, the medical examination as proved by the doctor corroborates the prosecution story about commission of forcible rape on the victim. 13. P.W.8 Narayan Singh is the I.O. of the case. He has deposed that on 24.4.2004 the F.I.R. was recorded on the statement of the victim Shakuni Kumari. The F.I.R. has been proved as Ext-2. He also deposed that Sheo Pandit and Yadunandan Pandit (P.W.1) had also signed the F.I.R. He also stated that he took up the investigation of the case. He says that he had inspected the P.O which was a Well like small ditch situated at a distance of 50 yards from the Peepal tree in Khariharibagh which situated at a distance of half Km. from the village Garhul. He further deposed that the ditch was about 2-2.1/2 feet deep. He also deposed that towards south of the P.O. there was Aahar (canal), in which people used to take their cattle for drinking water. Thus, the situation of the P.O. as per the case of prosecution, is established by the objective findings of the I.O. as found during his inspection of the P.O. 14. Thus considering the evidence of the victim as corroborated with the evidence of the P.Ws. 1, 3, 4, 5 and 6 I find that the prosecution has been able to prove the occurrence of commission of rape committed by the appellant on the victim. The objective evidence of the situation of the place of occurrence as found by the I.O. (P.W.8) and the medical evidence as proved by the doctor (P.W.2) fully corroborates the prosecution case about the place of occurrence and the medical findings of the offence on the victim. 15. Thus, considering the evidence and the facts and circumstances of the case, I find that the prosecution has been able to prove the charge beyond the shadow of reasonable doubt. Therefore, the charge is proved and the appellant is held guilty for the offence under Sec.376 IPC. 16. 15. Thus, considering the evidence and the facts and circumstances of the case, I find that the prosecution has been able to prove the charge beyond the shadow of reasonable doubt. Therefore, the charge is proved and the appellant is held guilty for the offence under Sec.376 IPC. 16. As to the question of quantum of sentence, considering the facts and circumstances of the case, I find that the sentence of R.I. for 10 years is sufficient. Therefore, the sentence is also upheld. In such view of the matters, I find no reason to interfere with the order of conviction and sentence passed by the learned trial court. 17. In the result, this appeal is dismissed.