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2007 DIGILAW 54 (PAT)

Arbind Mahto v. State Of Bihar

2007-01-08

CHANDRA MOHAN PRASAD

body2007
Judgment C.M.Prasad, J. 1. This appeal is against the judgment of conviction dated 26th June 1992 and order of sentence dated 27th June 1992 of the 7th Additional Sessions Judge, Nalanda at Biharsharif passed in S.T.No. 355 of 1991/54 of 1991 whereby the appellant has been convicted under Sec. 452 I.P.C. and sentenced to undergo R.I. for two years. 2. The First Information Report of the case was recorded on the statement of Nawal Kishore Ram (RW.3), husband of victim Manti Devi (RW.2). The informant alleged that in the mid night of 19/20th August 1990, while he (the informant) had gone out to other village and his wife (the victim) was sleeping on the roof of his house, the appellant climbed on the roof through the bamboo ladder and assaulted his wife (P.W.2) with fists and slaps and also committed rape on her. The informant further alleged that in the ensuing morning, when he went to the appellants house to complain about the offence, the appellant assaulted him with fists. After recording the F.I.R. investigation commenced and on completion of the investigation, charge-sheet was submitted for offence under Sections 376 and 452 I.P.C. The appellant was tried by the trial court which found that the charge under Section 376 I.P.C. was not proved but the charge under Sec. 452 I.P.C. was held proved and the appellant was convicted and sentenced, as above. 3. As many as ten witnesses were examined by the prosecution. P.W.1 Sunila Kumari is the daughter of the victim who deposed that in the night of occurrence, she woke up on hearing cries of her mother and she further deposed that the appellant had committed the offence. 4. P.W.2, who is the victim herself has turned hostile and she stated in her evidence that the appellant had not committed any offence on her. Her attention was drawn towards her previous police statement wherein she supported the case of the prosecution but she denied to have made such statement before the Police. However, she has deposed in her cross-examination that out of fear of villagers, she entered into a compromise with the accused. 5. RW.3 Nawal Kishore Ram who is the husband of the victim and the informant of the case has also turned hostile. However, he has deposed that he had lodged the F.I.R. at the Police Station. 6. However, she has deposed in her cross-examination that out of fear of villagers, she entered into a compromise with the accused. 5. RW.3 Nawal Kishore Ram who is the husband of the victim and the informant of the case has also turned hostile. However, he has deposed that he had lodged the F.I.R. at the Police Station. 6. P.W.4 Harish Chandra Prasad, P.W.5 Karoo Prasad and P.W.6 Shishupal Ram are the witnesses who have stated about the production of stained blouse and petticoat by the victim. P.W.7 Lale Singh deposed that in the morning ensuing the night of occurrence, the victim had produced the torn blouse and petticoat which were stained with blood and that he had advised the victim to go to the Police Station and lodge the case. 7. P.W.8 Baburam Murmu is the I.O. of the case who has stated about the lodging of the F.I.R. and the medical examination of the victim conducted by the doctor on police requisition. He has also proved the police statement given by the hostile witnesses. P.W.9 Shailendra Kumar is the Judicial Magistrate who had recorded the statement of the victim under Sec. 164 Cr.P.C. during the investigation. Dr. Parween Bano is the doctor who had examined the victim. She has deposed that she had found swelling and tenderness on the part of the body of the victim, as stated in detail in her evidence. However, she further deposed that she had not found any evidence of rape committed within 75 hours of the examination. 8. During argument, learned counsel for the appellant did not argue this appeal on the merits of the evidence. However, he submitted that the appellant has been sentenced to undergo R.I. for two years but he has already remained in custody for a period of one year and ten months. Learned counsel pointed out that the appellant was taken in custody on 25th August 1990 and he was allowed bail by this Court during appeal on 17th July 1992 and he was actually released from custody on 29th July 1992 by the trial court on furnishing bail bond. Learned counsel also submitted that, in the mean time, the appellant had remained on provisional bail from 2nd January 1992 to 12th February 1992. Learned counsel submits that the period already undergone by the appellant is sufficient sentence. 9. Learned counsel also submitted that, in the mean time, the appellant had remained on provisional bail from 2nd January 1992 to 12th February 1992. Learned counsel submits that the period already undergone by the appellant is sufficient sentence. 9. On considering the evidence on record, I find that the conviction of the appellant under Section 452 I.P.C. is quite justified and proper, hence the same is sustained. However, considering the facts and circumstances of the case, I feel that the period already undergone by the appellant would be sufficient sentence to the appellant for the offence under Section 452 I.P.C. 10. Under the circumstances, this appeal is dismissed with modification in the sentence to the extent that the sentence is reduced to the period already undergone by the appellant.