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2007 DIGILAW 488 (PAT)

Md. Jamal v. State Of Bihar

2007-03-08

CHANDRA MOHAN PRASAD

body2007
Judgment Chandra Mohan Prasad, J. 1. This appeal is against the judgment dated 23.11.2002 of the 1st Additional Sessions Judge, Nawadah in S.T. No. 96 of 2001/137 of 2001 whereby the appellant has been convicted u/s. 376 of the Indian Penal Code and sentenced to R.I. for 7 years. 2. The prosecution was initiated on the complaint (Ext-B) filed by the complainant Bibi Nisha on 1.05.1999 before the Chief Judicial Magistrate, Nawadah. The complainant alleged in her complaint petition that on 16.04.1999 at about 12:00 Noon while she was in her house Bibi Ruksana came there and asked her to accompany her to her house for lending some help in sewing. As requested, the complainant accompanied Rukhsana and went to her house where Ruksana gave her a blouse for sewing. When the complainant started sewing work, Bibi Ruksana went away saying that she was going for drinking water and she will return after that. In the mean time, the appellant entering into the room where the complainant was sewing and the appellant forcibly laid her on a cot and committed rape on her. The complainant says that she struggled and tried to restrain the appellant but the appellant was successful in the commission of the offence with his physical strength. The complainant says that when she started crying, the mother and Bhabhi of the appellant came to her and on giving allurement asked her not to raise any voice. The complainant weepingly returned to her house and disclosed the occurrence to her mother. There was no male member in the house and since the disclosure of the occurrence to the villagers would have tarnished the prestige and image of her, she did not disclose it to the villagers. On 21.04.1999, Md. Kalim (P.W. 3), the uncle of the complainant came to her house and then the complainant and her mother disclosed the occurrence to him. The uncle (P.W. 3) called a Panchayati in the village on the next day i.e. 22.04.1999. The Panchayati was attended by several persons belonging to the Hindu and Muslim, both communities. The appellant and his family members were called in the Panchayati and the appellant confessed his guilt before the Panches. The Panches ordered for the performance of Nikah of the appellant with the complainant and the appellant and his family members accepted that Nikah would be performed on 24.04.1999. The appellant and his family members were called in the Panchayati and the appellant confessed his guilt before the Panches. The Panches ordered for the performance of Nikah of the appellant with the complainant and the appellant and his family members accepted that Nikah would be performed on 24.04.1999. The Panches assembled again on 24.04.1999 and the appellant was called for Nikah but the appellant did not turn up and the mother of the appellant sent a message to the Panches that the appellant would not perform Nikah with the complainant. Thereafter, the complainants uncle went to the Police Station for lodging case but the Police did not entertain the matter and he was ousted from the PS. The civil court remained closed since 25.04.1999 and it reopened on 1.05.1999 hence, the complaint was filed on that day. After filing of the complaint, the complainant was examined on S.A. and an enquiry was also conducted by the Judicial Magistrate. Three witnesses were examined by the complainant in the enquiry. On consideration of the materials brought in the enquiry, cognizance was taken u/s. 376 of the Indian Penal Code and the case was committed to the court of Sessions. Then the appellant was put on trial and he has been convicted and sentenced by the trial court, as above. 3. As many as seven witnesses including the complainant were examined by the prosecution. The defence also examined three defence witnesses. 4. Out of the prosecution witnesses, P.W. 4 Bibi Nisha Khatoon is the complainant herself, P.W. 1 Shahnaj Khatoon is the mother of the complainant. P.W. 3 Md. Kalim is the uncle of the complainant. P.W.2 Md. Aslam and P.W. 6 Gango Chaudhary are the co-villagers who deposed in support of the prosecution. P.W. 5 Md. Shaukat Ali is the witness who had attended the Panchayati. P.W. 7 Arjun Prasad Singh is a formal witness who proved the complaint petition marked as Ext-3, Panchnamas prepared in the Panchayati has been proved as Ext-1 and 1/1. 5. The three defence witnesses, namely, D.W. 1 Sabji Devi, D.W. 2 Bosa Majhi and D.W. 2 Md. Ayub have deposed that the complainants family wanted to marry the complainant with the appellant but when the performance of marriage was refused by the appellants family, the complainant filed this case falsely as a pressure tactics. 6. 5. The three defence witnesses, namely, D.W. 1 Sabji Devi, D.W. 2 Bosa Majhi and D.W. 2 Md. Ayub have deposed that the complainants family wanted to marry the complainant with the appellant but when the performance of marriage was refused by the appellants family, the complainant filed this case falsely as a pressure tactics. 6. Firstly I would like to discuss the evidence of the complainant (P.W. 4). She was examined on 4.12.2001 i.e. after two years and seven months of the occurrence and on the day of examination her age was 16 years as mentioned in her deposition. Thus on the day of occurrence, the complainant was a minor girl aged about 13-14 years. She deposed that about three years back at about 12:30 P.M. while she was in her house Bibi Ruksana came to her and asked her to come to her house in order to give her help in sewing of blouse. On her request she (the complainant) accompanied Ruksana to her house where Ruksana gave her a blouse for sewing and she started sewing the blouse. After some time, Ruksana went away saying that she was going for drinking water and some time after Ruksana left the place, the appellant came there, caught hold of the hands of her and dragged her towards a cot and then after opening her Pajama and lifting his Lungi committed rape on her by thrusting his penis in her genital. She stated that she cried whereupon the mother and Bhabhi of the appellant came there and persuaded her not to raise any cries saying that they would perform the Nikah of the appellant with her. Weeping, the complainant returned to her house and disclosed the occurrence to her mother. She says that at that time, there was no male family member in the house and that she did not disclose the matter to the villagers as it would have tarnished her prestige and image of the family. She further disclosed that 5 days after the occurrence her uncle Md. Kalim came to her house and then she disclosed the occurrence to him. The uncle Md. Kalim (P.W. 3) called a Panchayati of the villagers including people of Hindu and Muslim both communities. She further disclosed that 5 days after the occurrence her uncle Md. Kalim came to her house and then she disclosed the occurrence to him. The uncle Md. Kalim (P.W. 3) called a Panchayati of the villagers including people of Hindu and Muslim both communities. She further deposed that in the Panchayati the appellant confessed his guilt and he promised that he will perform Nikah with her and he took one day time for it but subsequently he resiled from it. The Panchayati was convened again but the appellant did not turn up in the Panchayati and his Bhabhi told that Nikah would not be performed. Then the complainant stated that she along with her uncle went to the P.S. and complained the Police about the occurrence but her case was not registered there and then she came to the court and filed her complaint petition. She identified the appellant in dock. At Para-10 of her evidence, she deposed that blood had fallen on her clothes and stains had also appeared on the clothes. She further deposed at Para-11 that she did not go to the doctor for any treatment because the villagers restrained saying that the Nikah would be performed. She further deposed at Para-14 that at the relevant time her father was working at Kolkata. Thus, the complainant supports her complaint and there is nothing to substantially discredit her testimony on the point of occurrence. 7. The learned counsel for the appellant argued that in this case the date of occurrence is 16.04.1999 and the complaint was filed on 1.05.1999 and, thus, there is much delay in the filing of the complaint petition. But the delay is well explained in the manner that after the occurrence, the villagers had tried to resolve the matter by holding Panchayati for the Nikah of the complainant with the appellant. It has also come in the evidence that the Panches asked for the Nikah but the appellant refused. The complainant went to the P.S. also but her case was not registered, hence she came to the court for filing the complaint petition. The court also remained closed from 25th to the end of the month, hence the complaint was filed on 1st May 1999. Thus, the delay is explained. The complainant went to the P.S. also but her case was not registered, hence she came to the court for filing the complaint petition. The court also remained closed from 25th to the end of the month, hence the complaint was filed on 1st May 1999. Thus, the delay is explained. Learned counsel for the appellant also argued that the complainant was not examined by any doctor to find out medical evidence about commission of the occurrence. There is also a reasonable explanation for this. The comlainant states that the village people had convened Panchayati and as per the verdict of the Panches, Nikah had to be performed but the appellant did not obey the verdict of the Panches. Thus, the complainant did not go to the doctor. Moreover, the Police did not accept the complainants case and she had to file a complaint before the Chief Judicial Magistrate. Since the complainant filed complaint in her private capacity, after half month, there would not have been any fruitfulness for any medical examination for the purpose of finding out the evidence of commission of the offence. In this view of the matter, non-examination of the complainant by any doctor is not fatal to the case of the prosecution. 8. P.W. 1 Shahnaj Khatoon is the mother of the victim complainant. She deposed that in day time at about 12 Oclock Ruksana Khatoon came to her house and asked the complainant to accompany her to (Ruksanas) house for some help in sewing and then she took the complainant to her house. This witness further deposed that while the complainant was doing sewing work, Ruksana went away for drinking water and, in the mean time, the appellant came to the complainant and forcibly dragged the complainant to a room and ravished her upon which the complainant started weeping and wailing but appellants mother tried to console the complainant by saying that she (appellants mother) would perform the Nikah of the complainant with her (complainant) and that Panchayati was also held and Panches gave a verdict for performance of Nikah with the complainant. This witness says about the occurrence but she is not an eye witness to the occurrence. As per the evidence of the complainant, when she came to her house, she narrated about the occurrence to her mother. This witness says about the occurrence but she is not an eye witness to the occurrence. As per the evidence of the complainant, when she came to her house, she narrated about the occurrence to her mother. It is quite natural that any minor girl facing such a situation will narrate it to the mother immediately and she had narrated it. Thus, it appears that on the basis of what has been narrated to this witness by her daughter i.e. the complainant, this witness gave a detailed account of the occurrence though she is not an eye witness to it. This witness further deposed that her family members had gone to Pakaribarawan P.S. but her case was not accepted there, hence the complainant filed the complaint petition. At Para-5 she deposed that the complainant was not on frequent visiting terms with Bibi Ruksana but on that day being asked by Bibi Ruksana the complainant had gone to her house. At Para-8 of her evidence, she deposed that the Pajama of her daughter (complainant) had been torn. She also deposed that Panchayati was held in the village and the appellant had promised in the Panchayati that he will perform Nikah with the complainant but subsequently the appellant backed away from his promise. This witness has denied the defence suggestion that the complainant wanted to marry the appellant but due to appellants refusal to it, the appellant has been falsely implicated in this case. This is the stand and also the defence case that the complainants family wanted to marry the complainant to the appellant and when appellants family refused for the marriage, the complainant filed this case falsely. But this plea taken by the learned counsel for the appellant does not appear to be reasonable or probable defence to be accepted in this case. It does not appear acceptable from any point of view that the complainant will file such a case on appellants refusal to marry her because such incident or allegation will go to tarnish the prestige and image of the victim and her family and it will also make further negotiation for marriage difficult for the marriage of the victim and nobody will take such risk only due to refusal of proposal of marriage. The evidence of P.W. 1, the mother of the complainant fully corroborates the evidence of the victim on the material particulars of the case. The evidence of P.W. 1, the mother of the complainant fully corroborates the evidence of the victim on the material particulars of the case. 9. P.W. 3 Md. Kalim is the uncle of the complainant; He deposed that on the date of occurrence, he was not present in the village and that when he had come to the village on 21.04.1999 then the complainant disclosed to him that Bibi Ruksana had taken the complainant to her house for help in sewing work and the appellant committed rape on her and further that after the occurrence, the appellants mother had tried to quiet the complainant by assuring her that she will perform appellants marriage with her. He also deposed that on learning about the occurrence he convened the Panchayati of village people and the Panchayati was attended by several persons, including Ganga Chaudhary (P.W. 6) and Shaukat Mian (P.W. 5). He also deposed that the Panc-hes also prepared the Panchnama. Panchnamas have been proved by the prosecution as Ext-1 and 1/1. This witness further deposed that the appellant undertook to marry the victim but subsequently, he refused hence he took the complainant to the RS. on 25.04.1999 for lodging a case but his case was not accepted there hence, the complainant filed complaint petition before the Chief Judicial Magistrate. The evidence of this witness is fully corroborative to the evidence of the complainant. 10. P.W. 2 Md. Aslam deposed that on 16th April, 1999 while he was near the house of the complainant in the village Keshochak, he saw that the complainant and her mother were weeping and on being asked, they deposed that Bibi Ruksana had taken the complainant to her house for helping in sewing and that the appellant committed rape on the complanant there. They also disclosed that the appellants mother had tried to quiten the complainant by saying that she will perform the marriage of her son i.e. the complainant, This witness was examined on 5.09.2001 and at Para-2 of his cross-examination, he stated that since one year he lives in Pakribarama and prior to that he had his residence in village Keshochak and that his name is mentioned in the voter list of Keshochak village. He also stated that the complainant is his niece. He also stated that the complainant is his niece. Thus it is quite natural that this witness being uncle of the complainant had enquired the complainant and her mother about the occurence when he had seen them weeping. This witness is a natural and probable witness. In Para-6 of his evidence, this witness has stated that on the date of Panchayati, he had gone to the house of Nizam i.e. father of the appellant and prior to that he had not gone there. Thus, he means that prior to the date of Panchayati, he had not gone to the appellants father. This evidence of this witness cannot be taken to mean that prior to the date of of Panchayati he had not visited the house of the complainant in village Keshochak where he had lands at that time. The learned trial court has disbelieved this witness on the ground that this witness visited village Keshochak firstly on the date of Panchayati i.e. 24.04.1999 as claimed by this witness in his evidence. This is not sufficient ground for rejection of evidence of this witness as because this witness only says visiting the house of Nizam, the father of the apellant for the first time on 24.04.1999 and he does not mean that he had visited the village Keshochak for the first time on that day. Thus, the evidence of RW. 2 goes to corroborate the case of the prosecution. 11. P.W. 5 Shaukat Ali deposed that on having called by appellants father Jamal had attended the Panchayati in village Keshochak and the Panchayati was attended by 30 to 40 villagers. He deposed that the complainant had disclosed in Panchayati that the appellant had committed rape on her at the time while she was sewing clothe and that the two Panchnamas, one in Urdu and other in Hindi had been prepared and the witnesses had also signed the Panchnama, The Panchanamas have been proved by this witness as Ext-1 and 1/1. Thus, this witness says about the Panchayati for the redressal of the grievance of the complainant. 12. P.W. 6 Gango Chaudhary has also deposed about holding of Panchayati in the village and that the complainant had disclosed in the Panchayati that the appellant had committed rape on her. Thus, this witness says about the Panchayati for the redressal of the grievance of the complainant. 12. P.W. 6 Gango Chaudhary has also deposed about holding of Panchayati in the village and that the complainant had disclosed in the Panchayati that the appellant had committed rape on her. He also deposed that the appellant had admitted his guilt and the Panches had decided that the appellant will marry the complainant but the appellant refused. The evidence of this witness further corroborates the case of the complainant. 13. The learned counsel for the appellant refers to Ext-C which is an informatory petition filed by Md. Nizam, father of the appellant on 26.04.1999 before the Sub-Divisional Officer, It is stated in this informatory petition that the complainants father and uncle wanted to marry the complainant to the appellant and that when appellants family refused to it, they abused and threatened to lodge a case against them. From the informatory petition it appears that this petition has been filed as a defence measure after commission of the offence at the hands of the appellant. It was argued by the appellants counsel that when the complainants family failed in its attempt to marry the complainant with the appellant they filed this case with false allegation. But it does not appeal to reasons that any person will take to such recourse only for the refusal of marriage. Nobody will go to take his prestige and dignity at stake only for such purpose, because levelling such allegation itself affects the dignity and prestige of the victim itself in the eye ot village people and the victim may herself face difficulty in further negotiation for her marriage. In such view of the matter, I find that the informatory petition is nothing but an attempt to create defence to save skin from the offence committed by the appellant. 14. Thus, hearing and considering the evidence on the record, I find that the prosecution has been able to prove its case beyond shadows of reasonable doubt. The appellant has been rightly convicted and sentenced by the trial court. I find no reason to make any interference with the order of conviction and sentence, as passed by the trial court. The order of conviction and sentence as passed by the trial court is hereby confirmed. 15. In the result, this appeal stands dismissed.