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2011 DIGILAW 1642 (PAT)

Md. Israr Alam v. State of Bihar

2011-08-04

GOPAL PRASAD

body2011
JUDGMENT Gopal Prasad, J. - Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant No. 1. Israr Alam has been convicted under Section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years with a fine of Rs. 2000/- and in default further sentenced to undergo rigorous imprisonment for six months. Appellant Nos. 2 and 3 Md. Ibrar Alam and Md. Aiyub @ Sk. Aiyub have been convicted under Section 325 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged by the informant Bibi Mahfila Khatoon that at 12 noon on 18.10.1994. while she was went to take fire wood from the room at a little distance from her West of her house then accused Israr Alam through her ground on the back side and when she tried to make hulla then put cloth on her mouth and committed rape at the point of dagger. However. after rape when Israr Alam tried to flee away then she made hulla and on hulla her sister-in-law (nanad) Samida and her cousin brother Md. Halim came there and catch hold of accused Israr Alam, in the meantime elder brother of Israr Alam. Ibrar Alam came along with his father Md. Aiyub get the accused release j and also assaulted the informant and her nanad and cousin brother and when she tried to go to Police Station then accused persons kept restraint on pretext to do the justice and her husband had lived at Sikim for his livelihood. 4. On the statement of the victim. F.I.R. was lodged. After investigation charge-sheet submitted and considering the oral and documentary evidence order of conviction and sentence recorded taking into consideration the evidence in the light of submission. 5. During thrial, six witnesses were examined. PW 4 is the informant and she has supported the prosecution case and stated that after committing rape when the accused flee away on hulla Md. Halim, cousin brother and Bibi Samida, nanad came there. 6. PW 1 Md. Halim stated that he came along with his Bibi Samida and saw scuffle between Mohfila and accused Israr. PW 2 Bibi Samida also supported the prosecution case and stated on hulla she came there and they catch hold accused Israr and at that time Md. Ibrar and Md. Alyub. 6. PW 1 Md. Halim stated that he came along with his Bibi Samida and saw scuffle between Mohfila and accused Israr. PW 2 Bibi Samida also supported the prosecution case and stated on hulla she came there and they catch hold accused Israr and at that time Md. Ibrar and Md. Alyub. hrother and father of accused Israr came and liberated him. 7. PW 6. Sayeed Samim Ahmad is I.O. and has stated that inspected the place of occurrence on 22.10.1994 and gave description of P.O. He recorded the statement of witnesses. He has further stated that the informant has supported the allegation in her further statement made before him. He has further stated no gamchha was given to him. He did not mention the articles which were kept in the room where the occurrence took place. He has further stated that he did not record the statement of the husband of the infom1ant he was not present in the village at that time of occurrence. 8. Learned counsel for the appellants however, contends that there is contradiction in place of occurrence as evidence of the informant (victim) and evidence of the I.O. are at valiance regarding facing of the room and physical feature• of the road and further allegation that room where the occurrence took place filled with sand. However, there is delay of four days in lodging the F.I.R. and further the victim was not examined by the Doctor and there is no report of the Doctor. The husband and family members were not examined and Md. Halim is an accused in a case under Section 396. IPC lied by Md. Alyub in which conviction of Md. Halim and .hence Md. Halim was instrumental for enmity. 9. However. The husband and family members were not examined and Md. Halim is an accused in a case under Section 396. IPC lied by Md. Alyub in which conviction of Md. Halim and .hence Md. Halim was instrumental for enmity. 9. However. contradiction or discrepancy pointed by the learned .counsel for the appellants are minor discrepancy which do not go to the root to the prosecution case and the prosecution case for rape can not be disbelieved merely because there are variance in evidence about the facing of the room or face of the road and discrepancy pointed out does not go to the root to the prosecution case when there is allegation of rape and hence it has not basic version, none examination of the Doctor or in a village base society or to ask for corroboration to retrain woman in case of having insulting a woman and alleging rape or even restraint likely to reflect chastity of examination a guard in our society as very remorse such woman are of the danger of their being looped down by the society including her own family members and even danger of loosing respect and love of the husband and other family members and in that view a female or the victim are very reluctant to lodge a case and there is possibility of ostracize from the society. Further in this background when a rape has been alleged by the victim have taken risk of this factor and hence it is not proper to see the allegation at a tiny type. Hence, I find that prosecution has been proved the case and therefore. I do not find to interfere the finding of conviction recorded by the lower Court. 10. Learned counsel for the appellants, however, contends that occurrence is of the year 1994 and appellant No.1 has suffered a lot loosing respect in the society. Further, he married and bless with children and put him behind the bar his family member suffer as he is only bread earner and the appellant has remained in jail for about two years three months from 25.9.1996 to 14.12.1998. 11. Hence to end of justice shall meet under by sentencing the appellant No. 1 under Section 376. IPC for the period already undergone with fine of Rs. 11. Hence to end of justice shall meet under by sentencing the appellant No. 1 under Section 376. IPC for the period already undergone with fine of Rs. 10.000/ to be paid within three months, failing which the order of sentence passed by the lower Court shall maintain, Appellant Nos. 2 and 3 are ordered to be released on due admonition. 12. Hence the appeal is dismissed with modification and sentence. Appeal dismissed.