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2008 DIGILAW 304 (PAT)

Nathuni Roy v. State of Bihar

2008-02-12

body2008
S.K. SHARMA, .J.:- This appeal has been filed against the judgment of conviction and order of sentence dated 28.6.1993 passed in Sessions Trial No. 162 of 1989 by 4th Additional Sessions Judge, Samastipur whereby the appellant was held guilty under sections 354, 376/511 of the Indian Penal Code and was sentenced to undergo R.I. for 7 years under sections 376/511 IPC and he was further sentenced to undergo R.I. for 2 years under section 354 IPC. However, all the sentences were ordered to run concurrently. 2. Originally this appellant with one Dodhai Sah were facing trial. After closure of the case the Trial Judge found another accused Dodhai Sah aged about 14 years on the date of occurrence so his case was separated and referred to the Juvenile Court. 3. The prosecution case in short is that on 4.5.1988 the prosecutrix had gone to cut maize stems. After cutting the maize she started for the house at about 3 PM. Appellant and Dodhai Sah came there, pulled the bundle of stems from her head and dragged her to maize field. Both of them committed rape one by one. On hearing her cry Binod Paswan and Ramdev Paswan came and witnessed this appellant and Dodhai running away. She narrated the story to the witnesses. She was brought to her house from where she and witnesses went to the police station and case was registered under section 376/34 of the Indian Penal Code. Investigation was taken up. After investigation charge-sheet was submitted under sections 376/34 of the Indian Penal Code. Cognizance was taken and case was committed to the Court of Sessions where the charges were framed under sections 354/376/354 of the Indian Penal Code against the appellant and Dodhai Sah. 4. The defence of the appellant was of complete denial and of false implication on account of long standing dispute with regard to passage. 5. The prosecution has examined 14 witnesses in order to substantiate its case. They are PW 1 Asharfi Das, PW 2 Binod Paswan, PW 3 Ramdev Paswan, PW 4 Mahendra Paswan, PW 5 Mithilesh Kumar Sinha, PW 6 Umesh Paswan PW 7 Nathuni Chaudhary, PW 8 Fulo Devi, PW 9 Devraj Kumar, PW 10 Dr. (Mrs.) Mithilesh Jha, PW 11 Dr. N.L Jha, PW 12 Dr. They are PW 1 Asharfi Das, PW 2 Binod Paswan, PW 3 Ramdev Paswan, PW 4 Mahendra Paswan, PW 5 Mithilesh Kumar Sinha, PW 6 Umesh Paswan PW 7 Nathuni Chaudhary, PW 8 Fulo Devi, PW 9 Devraj Kumar, PW 10 Dr. (Mrs.) Mithilesh Jha, PW 11 Dr. N.L Jha, PW 12 Dr. (Mrs.) Sobha Sinha, PW 13 Sultan Ahmad, PW 14 Ramakanth Chaudhary PWs 1, 5, 7, 9 12, 13 and 14 were the formal witnesses who have proved seizure list, injury reports i.e. Ext.-1, 2, 3 series and 5 respectively. PW 14 is also a formal witness. PWs 10, 11 and 12 are the doctors. PWs 2 and 3 are the material witnesses. PW 8 is the informant. PW 4 is the brother of informant. PW 6 has been tendered. 6. Witnesses of the defence are DW 1 Bindeshwar Rai, DW 2 Ram Chandra Ram and DW 3 Nathuni Chaudhary. They have been examined to prove the defence version and they have exhibited some documents which are Exhibits A and B series. 7. Firstly, the evidence of the informant is being considered. According to the informant PW 8 at about 2 PM she had been to cut maize from her field. While she was coming alongwith the bundle of maize then the appellant and Dodhai pulled her down and they dragged her in the maize field where she was pushed down by the appellant and another accused held her hands and pressed her mouth and rape was committed upon her alternatiely by both the accused persons. After committing rape those persons escaped. She started crying thereafter Ramdev Paswan PW 3, Binod Paswan PW 2 and Umesh Paswan PW 6 came and brought her to her house. She narrated every things to them. At home she stated about the occurrence to her mother and brother. She went to the police station along with her mother, brother. She produced her petticoat which was kept by the police station. That petticoat contained some stains. Her statement was recorded and she put her L.T.I. on the fardbeyan. In cross-examination she was asked about the existence of passage. She denied that any obstruction was caused by any person to anybody for crossing through passage. She has denied every suggestions of the defence that she has falsely implicated the accused persons. 8. That petticoat contained some stains. Her statement was recorded and she put her L.T.I. on the fardbeyan. In cross-examination she was asked about the existence of passage. She denied that any obstruction was caused by any person to anybody for crossing through passage. She has denied every suggestions of the defence that she has falsely implicated the accused persons. 8. PWs 2 and 3 are the witnesses who came to the place of occurrence allegedly after hearing the cry of the informant. They in their evidences have stated that they went after hearing some noise near the field of informant's father Jadu Paswan. They witnessed the accused persons escaping from the field. PW 7 stated about the occurrence which was committed by the accused persons. PW 6 also reached and heard about the occurrence. Therefore, PW 7 has been corroborated by the other witnesses also to the extent that on hearing cry they went to the place of occurrence. 9. On the point of occurrence the informant has remained intact in her evidence and her statement that she was raped by the appellant and another has remained intact. This fact to some extent has been supported by the two witnesses who immediately reached to the place of occurrence and saw the accused persons escaping. 10. Learned counsel for the appellant has submitted that there are vitial contradictions and the seized petticoat has not been produced. The entire occurrence cannot be believed to be true because a number of witnesses were given on behalf of the defence to show that there was enmity from before. 11. It has also been pointed out that there are some inconsistency in the version of the prosecutrix. She has stated in her cross-examination that she lost her consciousness when she was raped by the accused persons. These facts have not been stated in her examination-in-chief. 12. Learned APP submitted that the statement of the prosecutrix has to be taken in its entirety. If a minor girl becomes victim of such act then it shall be natural for her to become perplexed and at that time it could be deemed that she was in state of shock and this cross-examination is only to the extent that she has lost her physical consciousness. 13. Undoubtedly the girl was examined after lapse of 18 hours from the alleged occurrence. 13. Undoubtedly the girl was examined after lapse of 18 hours from the alleged occurrence. None finding of the Spermatozoa after such long time cannot rule out that she was not a victim of rape. At the time of alleged occurrence the alleged victim was a minior, she was unmarried and there appears no valid ground to assume that she had motive to implicate the appellant. 14. It is not a case that some injuries have been found on the face of the victim. It the victim says that she was raped then her evidence has to be believed if it is corroborated by other circumstances and in the present case enough corroborations are on the record to prove that the prosecutrix was the victim of rape. 15. The doctor who has examined the prosecutrix has found her age between 14-15 years (PW 12 para 8). In view of the clause 6 of Section 375 IPC sexual intercourse with a girl, not related as wife, below 16 years is an offence or rape, no matter "whether the victim girl consented or not consented to sexual intercourse. PW 8 has consistently stated before the court in her evidence that she was raped. She has faced grueling cross-examination but her evidence remained intact that she was raped. The allegation of rape to some extent has been supported by the doctor (PW 12 para 3) who has stated that six skin deep abrasion about 1/3" on the right side of the cheek was found upon her body, PW 8 in para 3 has stated that she was dragged in the field of maize and was thrown on the ground. The doctor has found some injuries on her person which is natural if a person is dragged and thrown in a field. The presence of absence of injury on the body of prosecutrix is not relevant to decide whether the coitus was sensual or not. In view Section 114A of the Evidence Act the victim of rape states in her evidence that she did not consent then the onus is upon the accused to prove otherwise. Only the prosecution is required to prove the sexual intercourse, even if no injury was found on the body of prosecutrix then the case of rape does not become false. 16. Only the prosecution is required to prove the sexual intercourse, even if no injury was found on the body of prosecutrix then the case of rape does not become false. 16. The present case does not appears to be a case in which story of rape has been fabricated. 17. Cumulative effect of all the evidences brought on the record is that the prosecution has been able to prove that on the date and time of ocuurrence the prosecutrix was raped by the appellant. 18. The argument of the learned counsel for the appellant is not based on the facts on the record. The facts and evidences on the record are enough to prove that on the date and time of occurrence the victim was subjected to offence as alleged. In that circumstances I am of the considered view that the prosecution was able to prove its charge against the appellant beyond all reasonable doubts. 19. In the result the impugned judgment of conviction and sentence is upheld and this appeal is dismissed. The bail bond, of the appellant is cancelled and he is directed to surrender forthwith before the court below to serve out the remaining period of sentence. The court below is also directed to take coercive steps to take him into custody.