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2012 DIGILAW 1306 (PAT)

Yogendra Bhagat v. State Of Bihar

2012-09-13

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT Per: SHYAM KISHORE SHARMA, J. This appeal is preferred against the judgment of conviction dated 21.2.2006 and order of sentence dated 22.2.2006 passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Gopalganj in Sessions Trial No. 138 of 2000/ 44 of 2003 whereby the sole appellant has been convicted and sentenced to undergo imprisonment for life along with a fine of Rs.5000/- for the offence under Section 376 IPC and in default of payment of fine, he was further ordered to undergo simple imprisonment for six months. 2. The victim of the case is a girl of tender year. The case has been registered on the basis of fard beyan (Ext. 4) of Rina Kumari (P.W. 5) given at Refferal Hospital Bhore on 6.8.1999 at 5.30 p.m. in presence of her mother Ramdulari Devi (P.W. 4) wherein she alleged that her father was residing abroad. She was a student of class II. On the date of occurrence she had returned to her home after final bell. In the meanwhile, uncle Yogendra Bhagat (appellant) came to her house and enticed her towards Mujwani. She was brutalized and was subjected to rape. She suffered serious injuries resulting into profused bleeding. On her cry, her mother (P.W. 4) rushed there and accused escaped. Her fard beyan resulted into formal FIR of Bhorey P. S. Case No. 64 of 1999. 3. In course of evidence injury reports of two doctors P. Ws. 10 and P. W. 11 were obtained and were marked as Exts. 5 and 6. The statement of witnesses was recorded. The place of occurrence was visited and after the case was found true the final form was submitted. After taking cognizance the case was committed to the court of session where the charge under Section 376 IPC was explained to the accused to which he denied and pleaded innocence and so the trial proceeded. 4. The defence of the sole accused was of innocence. 5. In order to prove its charge the prosecution has examined altogether 13 witnesses. They are P. W. 1 Amar Bhagat, P. W. 2 Bindhyachal Bhagat, P. W. 3 Kanhaiya Singh, P. W. 4 Ramdulari Devi, P. W. 5 Rina Kumari, P. W. 6 Keshwar Singh, P. W. 7 Jawahar Singh, P. W. 8 Ramashankar Bhagat, P. W. 9 Virendra Rai, P. W. 10 Dr. Madhuri Shrivastava, P. W. 11 Dr. They are P. W. 1 Amar Bhagat, P. W. 2 Bindhyachal Bhagat, P. W. 3 Kanhaiya Singh, P. W. 4 Ramdulari Devi, P. W. 5 Rina Kumari, P. W. 6 Keshwar Singh, P. W. 7 Jawahar Singh, P. W. 8 Ramashankar Bhagat, P. W. 9 Virendra Rai, P. W. 10 Dr. Madhuri Shrivastava, P. W. 11 Dr. M. Sami Ahmad, P. W. 12 Komal Kant Jha (Investigating Officer), and P. W. 13 Nagendra Mishra. P. W. 13 is a formal witness and he has proved the writing of doctors upon the injury reports and has also proved the statement under Section 164 Cr.P.C. recorded on 31.8.1999 in which the victim has described her agony. 6. P. Ws. 1, 2, 3, 7, 8, and 9 were declared as hostile witness as they did not support the case in entirety, but P. W. 1 has stated that on hearing cry he went to the place of occurrence and the mother of the victim has told him that the appellant has raped the victim. At that time the victim was having blood injury. P. W. 2 has stated that the occurrence was two years earlier. P. W. 3 has stated that the wife of Ganesh Bhagat came to his house and told that Yogendra Bhagat raped Reena. Therefore, the evidence of these hostile witnesses supports the role of the appellant. 7. The victim (P.W. 5) of the case while deposing on 8th July 2001 has described her age to be 10 years meaning thereby she was barely eight years of age on the date of occurrence. She was tested with regard to competency to depose and after finding her upto mark to depose, her deposition was recorded wherein she has stated that at 4 p.m. she was playing in front of her darwaja. In the meanwhile the accused Yogendra enticed her to Mujwani field and raped her. She received serious injuries upon her private part. On her cry, her mother came and the accused escaped. Blood started coming out from her private part. She was carried to Bhorey Referral Hospital for treatment. Officer-in-charge came and recorded her statement upon which she put her signature (Ext. 1). She has identified the accused in dock and has stated that at the time of occurrence she was a student of Class II. Her statement was recorded before the Magistrate of Gopalganj. She was carried to Bhorey Referral Hospital for treatment. Officer-in-charge came and recorded her statement upon which she put her signature (Ext. 1). She has identified the accused in dock and has stated that at the time of occurrence she was a student of Class II. Her statement was recorded before the Magistrate of Gopalganj. She has identified her signature upon her statement under Section 164 Cr.P.C. In her cross-examination, she has stated that when her mother came to the place of occurrence, she was unconscious and her mother brought her to Bhorey Hospital for treatment but she was referred to Gopalganj where she remained hospitalized for 25 days. Therefore, the victim has narrated the manner in which the accused picked her up, enticed her towards a lonely place and raped her in a brutal manner. 8. Mother of the victim while deposing as P. W. 4 has stated that the victim was of six and half years when she was raped by the accused-appellant. She has found the blood coming out from her private part. P. W. 6 has also seen the blood coming out from her private part and the accused coming out from Mujwani, which has been described as the place of occurrence. Rina has told that appellant carried her towards Mujwani where she was ravished. This witness has gone to the place of occurrence and has found blood there. 9. The victim initially was treated to Refferal Hospital Bhorey. The doctor found her six and half years old and observed following injuries on her person:- (i) Vaginal bleeding, blood oozing continuously, colour of blood was red. (ii) Tear of vaginal wall inside (iii) Lacerated superficial tear over the right Valva size 3 cm x 5 cm. (iv) tear of vaginal orifice. Age of injury was within 2 hours. The case was referred to Sadar Hospital Gopalganj, or Deoria or Gorakhpur. Injury report (Ext. 2) narrates that bleeding was coming out when Rina went for her medical treatment. 10. Rina was taken to Sadar Hospital Gopalganj after she was referred by P. W. 11. She was examined by Dr. Madhuri Shrivastava (P.W. 10) who observed her age to be of seven years. She was hospitalized for treatment and discharged on 12.8.1999. It was referred case from Bhorey Referral Hospital. The doctor has found complete perieneal tear with bleeding. 10. Rina was taken to Sadar Hospital Gopalganj after she was referred by P. W. 11. She was examined by Dr. Madhuri Shrivastava (P.W. 10) who observed her age to be of seven years. She was hospitalized for treatment and discharged on 12.8.1999. It was referred case from Bhorey Referral Hospital. The doctor has found complete perieneal tear with bleeding. She has developed V.V.F (vesico veginal fistula) and R.V.F. (recto vaginal fistula) and was referred to Gorakhpur for further treatment at advice. In the opinion of doctor, it is suggestive of rape, injury with hard blunt weapon. 11. Investigating Officer has gone to visit the place of occurrence after recording fard beyan and formal FIR but it was dark when he arrived at the place of occurrence then he postponed to visit the place of occurrence for the next day. On the next day Investigating Officer went to the place of occurrence and found Munj of 5’ in lacerated condition. 12. The evidence of victim has been duly corroborated by her mother and independent witness (P.W. 6). The doctor who had occasion to examine the victim has found corresponding injuries which was possible only in the event of rape. 13. The plea taken by the appellant in defence is that in fact victim became injured due to fall on bomboo and the implication of the appellant is on account of enmity which was from before. 14. In the present case, no evidence of enmity was brought on record, rather it has come that the accused was one of the close family members of the victim being her uncle. A child will easily rely upon her uncle with whom the victim had gone. She could not even suspect at this tender age that she would be brutalized by her uncle. A student of class II cannot be supposed to be so diligent and intelligent that she could guess ill motive of a person. The victim could not suspect that she would be seriously taunted by the accused. The victim was carried away by the accused towards a lonely place and taking benefit of opportunity the accused has satisfied his lust. The doctors who have supported the factum of rape have not been cross-examined. Their evidence is empathic that the victim was raped on the date and time of the occurrence. The investigating officer has also not been cross-examined. The doctors who have supported the factum of rape have not been cross-examined. Their evidence is empathic that the victim was raped on the date and time of the occurrence. The investigating officer has also not been cross-examined. There is no explanation as to why the important witnesses Investigating Officer and doctors were not cross-examined meaning thereby the accused has accepted his guilt in totality not on account of failure to cross-examine the witnesses rather on account of emphatic evidence of the victim supported by her mother and another independent witness. It can be said that the prosecution has succeeded in proving its case beyond shadow of all reasonable doubts that the accused appellant on 6.8.1999 at village Basdewa, P.S. Bhorey in the district of Gopalganj has committed rape of Rina. Therefore, charge under Section 376 IPC has been proved to the hilt. 15. So far the quantum of sentence is concerned, the offence has been committed with a person who had no inkling of such an offence. Rape has been committed upon a girl of six and a half years and student of Class II. Considering this, the sentence granted to the accused appellant cannot be deemed to be exorbitant and excessive and it also does not require any modification. 16. In the result, the appeal is held to be without merit and it is dismissed. 17. Let a copy of the first and last page of the judgment be handed over to the appointed Amicus Curiae Miss Nimisha Kumari, Advocate who has assisted the Court satisfactorily and she will get the prescribed fees from the High Court Legal Services Committee, Patna. Appeal dismissed.