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2011 DIGILAW 1112 (PAT)

Ram Awadh Dixit v. Ram Darsh Singh

2011-06-01

ANJANA PRAKASH

body2011
JUDGEMENT Anjana Prakash, J. 1. It has been submitted that the appellant no.2 died during the pendency of the appeal and, therefore, the appeal of appellant no.2 abates. 2. The appellant nos.1 and 3 along with the deceased appellant have been convicted u/s.376 I.P.C. and sentenced to R.I. for ten years by a judgment dated 28.9.1996 passed by the Sessions Judge, Purnia in Sessions Trial No.283 of 1993. 3. The case of the prosecutrix (P.W.2) is that on 30.3.1990 when her husband was absent, the three accused persons entered into her hut in a drunken stage and raped her. A complaint was instituted in this regard since it was apprehended by the prosecutrix that the police would not take adequate interest because the accused were police personnels. After the complainant filed the complaint the court ordered for her medical examination by P.W.5 Dr. Tapti Dhar. After the report as well as the examination of the witnesses u/s.202 Cr.P.C., the court took cognizance and committed the case to the court of Sessions subsequently. 4. During trial, the prosecutrix has examined five witnesses. Out of whom, P.W.5 is Dr. Tapti Dhar, who examined the complainant on 31.3.1990. She stated that she had found whitish discharge from her vagina and a few dead spermatozoa were found in the vaginal swab on pathological test. In her opinion the complainant had been subjected to recent sexual intercourse. However she did not find any blood stain or foreign body on her private part. As for the complainant/prosecutrix she has stated in court that the present appellants were posted in a police barrack situated near her house and on the fateful night they entered into her house and raped her one by one. She identified the accused persons in the light of the burning lantern, which was there and broken by the accused persons after they entered into her house. She also stated that when the accused persons were escaping from her house her husband arrived there and also saw them fleeing away from the place of occurrence. Even though P.W.1 her husband has not supported the prosecution case that he was threatened by the accused persons while they were fleeing away but strangely enough he did not identify the accused in court. Even though P.W.1 her husband has not supported the prosecution case that he was threatened by the accused persons while they were fleeing away but strangely enough he did not identify the accused in court. However, P.W.3 Ram Awadh Das, who had arrived at the place of occurrence hearing the cries of the prosecutrix, has stated that he identified the accused persons while fleeing away. This Ram Awadh Das was reportedly a cook in the police barrack and the defence brought some documents to show that he had complained against the police personnels a few days before and an enquiry had been done in this regard. However, when he was examined, the defence did not put the said document to him and only gave oral suggestions. D.W.1 was examined on behalf of the appellants for proving this fact, but from his evidence I find that he did not have any personal knowledge about the contents of the report, which was given in regard to the occurrence that had reportedly taken place between P.W.3 and the accused persons and, therefore, Exhibit A is completely meaningless. P.W.4 Saudagar Ram also supported the fact that in the night of 30.3.1990 when he had gone to the house of the prosecutrix for taking delivery of his shoes, which he had given to P.W.1 to manufacture and he had found the accused persons there and the prosecutrix had also narrated to him about the occurrence. 5. The learned Counsel for the appellants has stated the case rests on solitary evidence of the prosecutrix and since there was enmity between P.W.3 and the accused persons, the case should be disbelieved because the prosecutrix had been set up by P.W.3 to institute this false case. The further submission is that the doctor did not find any injury mark on the breast or the private part of the prosecutrix and, therefore, the story of gang rape is unbelievable. 6. However, both the arguments of the learned Counsel for the appellants is fit to be rejected since apart from the oral suggestion to P.W.3 that there was some kind of a complaint instituted by him against the accused persons, there is no corroboration of the same and the documents brought on record have no bearing in the present case. 6. However, both the arguments of the learned Counsel for the appellants is fit to be rejected since apart from the oral suggestion to P.W.3 that there was some kind of a complaint instituted by him against the accused persons, there is no corroboration of the same and the documents brought on record have no bearing in the present case. Further the medical evidence being silent on the point of matting of public hairs also has no validity since the doctor had found whitish discharge from the vagina of the prosecutrix, who was a married lady and a few dead spermatozoa was also found in the vaginal swab. 7. In the light of the evidence of the prosecutrix and the two supporting witnesses of having seen the appellants fleeing away from the place of occurrence and also the doctor who corroborated the case of the prosecution objectively, I am not inclined to interfere in the conviction of the appellants. However, since the occurrence is said to have taken place in the year 1990 i.e. about 21 years ago, the sentence is reduced to five years. 8. In the result, the appeal is dismissed with the aforesaid modification in sentence.