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2007 DIGILAW 801 (PAT)

Lallu Yadav v. State Of Bihar

2007-04-20

INDU PRABHA SINGH

body2007
Judgment I.P.Singh, J. 1. The sole appellant has been convicted under Sec. 376 of the Indian Penal Code and was sentenced to undergo R.I. for 10 years. 2. The case of prosecution, in short, is that on 22.4.1989 while Kaushalya Devi was grazing her she-goats, her co-villager Lallu Yadav was also grazing sheeps and she-goats by her side. It has been stated that Lallu Yadav came near her, showing his sickle, threatened and caught her and forcibly took her into the "PAIN" and committed rape on her. He threatened her if she would disclose about it to anybody, he will cut her by the sickle. She stated that after assault blood came out from her private parts and also she got blood stain on her petticoat and sari. Anyhow, she came to her house and narrated about the occurrence to her aunty Kari Devi who saw the blood stained cloths and told about the occurrence to the family members. It has been stated that on the day of occurrence as there was no male member present in the house, therefore, she could not go to the Police Station for lodging a case. Her fardbeyan was recorded by Sub- Inspector of Sono Police Station. On the basis of her fardbeyan a formal F.I.R. was registered being Sono P.S. Case No. 34 dated 22.4.1989 under Sec. 376 of the Indian Penal Code. After completion of investigation chargesheet was submitted against the accused under Section 376 I.P.C. Accordingly, cognizance was taken and the case was committed to the Court of Sessions for trial. 3. The appellant pleaded not guilty and has stated that he has falsely been implicated in this case due to enmity. 4. The prosecution, in support of its case, examined altogether six witnesses. 5. P.W. 1 Shivnandan Yadav, uncle of the victim girl. P.W.2 is Gulab Yadav, father of the victim, P.W.3 is Kaushalya Devi, the victim and informant of this case. P.W.4 is Sukar Yadav, a relative of the informant. P.W. 5 is Kari Devi, aunty of the victim and P.W.6 is Doctor Nirmal Sinha. She has examined the victim. 6. The defence has also examined two defence witnesses. 7. D.W.1 is Bhunna Yadav and D.W.2 is Mannu Yadav. 8. P.W 1 Shivnandan Yadav is uncle of the victim Kaushalya Devi. According to him, on the day of occurrence he was out of the village. She has examined the victim. 6. The defence has also examined two defence witnesses. 7. D.W.1 is Bhunna Yadav and D.W.2 is Mannu Yadav. 8. P.W 1 Shivnandan Yadav is uncle of the victim Kaushalya Devi. According to him, on the day of occurrence he was out of the village. On the next day when he retuned back he came to know that on the previous day when her niece Kaushalya Devi had gone to graze she-goats, Lallu Yadav caught hold and dragged her into the canal and after threatening to cut her by sickle he committed rape upon her. He also saw blood stained petticoat and sari. Thereafter he took her to the Police Station where fardbeyan of the victim Kaushalya Devi was recorded. She was also sent to Jamui Hospital by the S.I. of Police. She was examined by the doctor in the hospital. He has stated that her petticoat and sari was given to the Police who prepared a production list marked as Ext.1. In his cross-examination he has denied that there was any MAR-PIT between him and Jagarnath, father of the accused for partition. 9. P.W.2 is Gulab Yadav, father of the victim girl. He has stated that her daughter had already been married but her second marriage (GAUNA) had not been performed. According to him on the day of occurrence he was not present at home and had gone to Farkia and returned after one month of the occurrence. Before returning from Farkia he had not narrated about the occurrence. 10. P.W.3 victim Kaushalya Devi, the prosecutrix of the case has fully supported her version as stated in her fardbeyan. She has stated that on the day of occurrence at about 11-12 noon she had gone to graze her she-goats in the southern side of her house near the canal. According to her, in the meantime, Lallu Yadav came having sickle in his hand. He caught her hand and started dragging, when she wanted to raise an alarm, he showed his sickle and told that she will be cut by his sickle. She was frightened. Thereafter, by dragging her, he took her near the canal and committed rape on her. The petty coat and sari was stained with the blood. He also threatened her that if she would disclose about the occurrence to the others she would be cut into pieces. She was frightened. Thereafter, by dragging her, he took her near the canal and committed rape on her. The petty coat and sari was stained with the blood. He also threatened her that if she would disclose about the occurrence to the others she would be cut into pieces. Any how she came to her house and narrated about the incident to her aunty. She has stated that as there was no male members in the house she did not go to the Police Station on the day of occurrence and when her uncle returned home, she was taken to the Police Station where her fardbeyan was recorded. She was sent to Jamui Hospital for her medical examination by the Police where she was examined by a lady doctor and was x- rayed. She has also stated that her marriage was performed 8-9 years ago. She stated that there was no quarrel between the father of the accused and accused person. She has also stated that on the day of occurrence her father was not present. 11. P.W.4 is Sukar Yadav. According to him, he heard about the occurrence from Shivnandan Yadav (P.W.1) and he went to Police Station. According to him, the fardbeyan of the victim was recorded in presence of him. She also gave blood stained petti coat and sari to the Police. He also put his thumb impression on the paper which was prepared by sub- Inspector of Police. 12. P.W.5 is Kari Devi, aunty of the victim informant. According to her on the day of occurrence at 12:00 A.M. she was cooking food in her house. The victim Kaushalya Devi had gone to graze she-goats. After sometime she came back and started weeping before her. She enquired why she was weeping then she told that Lallu Yadav after holding her hand took her to the canal and committed rape upon her. She showed blood stain on her petiticoat and sari. She has further stated that since no male member was present and on the next day only when her husband came and she narrated about the incident to him. Her husband took the victim Kaushalya to the Police Station. 13. P.W.6 is Dr. Nirmala Sinha. She showed blood stain on her petiticoat and sari. She has further stated that since no male member was present and on the next day only when her husband came and she narrated about the incident to him. Her husband took the victim Kaushalya to the Police Station. 13. P.W.6 is Dr. Nirmala Sinha. She has examined the victim-informant on 22.04.1989 at 7:00 P.M. and found the following injuries on her person: (1) weight 29 kg., height 4 9", teeth upper 14 and lower 14, age-13 to 14 years. No axillary or pubic hair present. Breast not developed. No marks of injury on external part of body present. (2) On internal examination dried blood present on genital and inner side of thigh. Vaginal tear present on both sides pure hymen tear present on posterior side. The edge of which was ned and swollen and tender and fluids on touch. Vaginal swab taken and sent for pathological examination. No spermatozoa found according to pathologist, Dr. S.K. Sinha. (3) X-ray of pelvic bone done dated 22.4.1989. Symbol CD. iliac crest has not appeared., greater tronchanter not fused with shaft. 14. According to doctor the injury was of more than 24 hours. In her opinion positive sign of rape was present. She has stated that rape has been committed. The injury report was marked as Ext.2. 15. D.W.1 is Bhunna Yadav. He has stated that there was a dispute for partition of the land of informant between the accused persons from five years ago for which a Panchayati was held and he was one of the panch of that panchayati. He has stated that a false case was filed by the informant against the accused persons. He has also stated that the accused was living in Calcutta and he used to come to his village for short period. 16. Similar is the statement of D.W.2 Mannu Yadav. 17. Learned counsel for the appellant has submitted that there is no eye-witness of the occurrence and no other person has seen the occurrence. All the prosecution witnesses are related and interested, therefore, their statements are not to be relied upon. He has also submitted that no independent witnesses have been examined. P.W.1 has inimical term with the accused as there was land dispute between them. All the prosecution witnesses are related and interested, therefore, their statements are not to be relied upon. He has also submitted that no independent witnesses have been examined. P.W.1 has inimical term with the accused as there was land dispute between them. It has also been submitted that the appellant is the uncle of the victim girl Kaushalya Devi as such it is not expected that such type of nefarious act he would do and outrage the modesty of his niece. In this case the I.O. has also not been examined which has greatly prejudice the case of the defence. So far the submission of learned counsel that the occurrence has not been seen by anybody, is concerned, usually in such type of cases of rape it is not expected that such act would he committed in view of some one who could be a witness to it. The witnesses who are related are inmates of the house to whom the victim girl has first narrated about the occurrence. They are the most competent and natural witnesses. In such type of cases of sexual assault the victim is hardly expected to narrate about the occurrence to the neighbours in fear of social stigma. In cases of rape it is well settled that an accused could be convicted even on the testimony of the victim, if her testimony is reliable, no other corroboration is needed. From the deposition of the victim girl, It appears that her testimony is reliable and trust inspiring. It is a case in which the victim girl was examined and the doctor has opined that rape was committed on the prosecutrix, probability is not to be considered in criminal cases when positive evidence is there. 18. I find no reason to interfere with the finding of the Court below. The learned Court below has rightly convicted the appellant for the offence punishable under Sec. 376 of the Indian Penal Code. Accordingly, the conviction of the appellant is upheld. 19. Coming to the question of sentence learned counsel for the appellant has submitted that the occurrence took place 18 years back and the appellant has been sufficiently harassed and punished during the trial and he has also remained in custody for about three and half years, as such, some lenient view may be taken while awarding the sentence to the appellant. 20. 20. Considering the submission and in the facts and circumstances of the case, I am of the view that it will be expedient in the interest of justice if the sentence of Rigorous Imprisonment for 10 years is reduced to Rigorous Imprisonment for seven years. 21. With the afforesaid modification in the sentence this appeal is dismissed.