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2012 DIGILAW 96 (PAT)

Mumtaz @ Nasim Khan v. State of Bihar

2012-01-17

MANDHATA SINGH

body2012
JUDGMENT Mandhata Singh. J.-This appea1is rued against the Judgment and order dated 17.08.1999 passed by the 3rd Additional Sessions Judge, Bhabua in Sessions Trial No. 349 of 1986/98 of 1998 whereby and whereunder above appellants have been convicted under Section 376 of the I.P.C. and sentenced to undergo R.I. for 10 years. 2. F.I.R. is lodged basing statement (fardbeyan) of the victim, Potni Devi which in brief is to the effect that she along with her sister-in-law, Jyoti Kumari had gone for cutting grass in a field. Her sister-in-law went to river for bath and this victim-informant proceeded for her home. At about 3.00 to 4.00 pm. when she reached in side of sugar-cane field of Gulab Pir Sah saw the accused-appellant, Bijai Chhamar there, who caught her hand from behind. In the meantime, accused, Mumtaz Khan and Idrish Khan came out from the sugarcane field and victim was handed over to them by Bijai Chhamar. Her grass scattered and her mouth was closed by means of gamcha. She was taken in the field of sugarcane, thereafter accused-appellants. Mumtaz Khan and Idrish Khan committed rape upon her one after another. After the rape, accused persons came out from the field. After coming out from the field, she (victim) saw accused-appellant. Ayub Khan also there. There is an averment of raising alarm on which only accused-appellants rushed towards river. Thereafter, she came her home with grass narrated the occurrence to her family members including her sister-in-law. Jyoti Kumari on her arrival. Family members have been specified; father-in-law, uncle-in-law, aunt-in-law, gotni and husband, Kamal Ram. 3. Charge-sheet is submitted for the offence under Sections 341, 342 and 376/34 of the I.P.C. Charge against accused-appellants. Mumtaz and Idrish is framed for the offence under Section 376 of the I.P.C., while that against Ayub Khan and Bijai Chhamar is framed under Section 376 read with Section 109 of the I.P.C. and all accused-appellants have been convicted and sentenced for the offence punishable under Section 376 (2)(g) of the I.P.C. 4. Framing of charge either under Section 376 of the I.P.C. or under Section 376 read with Section 109 of the I.P.C. is relevant in the case if can justify conviction and sentence under Section 376 (2)(g) of the I.P.C. be discussed later. 5. In all 9 witnesses are examined in the case. Framing of charge either under Section 376 of the I.P.C. or under Section 376 read with Section 109 of the I.P.C. is relevant in the case if can justify conviction and sentence under Section 376 (2)(g) of the I.P.C. be discussed later. 5. In all 9 witnesses are examined in the case. They are PW 1 Gulab Chand Ram, PW 2 Kamla Ram, husband of the victim, PW 3 Aliyar Ram, brother-in-law of the victim, PW 4 Snehi Ram, father-in-law, PW 5 Sri Kishun Pandey, PW 6 Potni Devi, victim of the case, PW 7 Jyoti Kumari, sister-in-law of the victim, PW 8 Shivmurat Ram, uncle of informant's husband and PW 9 Jibati Devi, while PW 7 has been examined for the second time. PW 4 is a tender witness to state nothing about the incident. PW 5 is a formal witness to identify signature of Officer-in-charge, Ext.1. PW 1, PW 2, PW 3, PW 7, PW 8 and PW 9 are the witnesses to whom incident was narrated by the victim, informant either at the field of the occurrence or at her home. PW 6 victim of the case is the sole witness to state commission of rape upon her by accused-appellants. 6. Counsels are at agreement on the point that conviction is possible basing solitary evidence of prosecutrix if that inspires confidence and appears to be absolutely trustworthy, unblemished and of sterling quality. In any case, sexual intercourse may be said rape if the act alleged comes within definition of 375 of the I.P.C. 7. In the instant case, averment is that alarm was raised in the field after commission of rape and incident was narrated to family members or anyone at the home. On this point, PW 6 states in para-1 of her examination in Chief that after commission of rape, accused persons went towards South. She came her home and narrated the incident to her brother-in-law, bhaisur, father-in-law, mother-in-law and sister-in-law. Making of any alarm is missing. That could be relevant that there was chance of narration of incident at the spot (place of occurrence). Witnesses PW 1, PW 7, and PW 8 are stating their arrival to the field of occurrence on alarm of the victim and narration of the incident by her there. Making of any alarm is missing. That could be relevant that there was chance of narration of incident at the spot (place of occurrence). Witnesses PW 1, PW 7, and PW 8 are stating their arrival to the field of occurrence on alarm of the victim and narration of the incident by her there. Of them, namely, PW 7 is again examined, as PW 9 in which she does not state about her coming to the field of sugarcane on alarm of the victim. In any case, making of alarm and narration of the incident by the victim at the P.O. field is not corroborated by the victim herself. 8. No doubt, incident was narrated to PW 2 and PW 3, as stated by them is corroborated by the victim but at home. More over, this much is relevant to the point only that just after the incident, same was narrated to witnesses may be said post-incident happening. 9. Now PW 6, victim of the case remains to be discussed if justifies the conclusion of the trial Court about conviction and sentence. 10. On the point of real act of commitment of rape, F.I.R. is to the effect that while she reached in side of sugarcane field of Gulab Pir-Sah accused-appellant. Bijai Chhamar caught her hand from behind then was handed over to accused. Mumtaz Khan and Idrish Khan. An attempt was made by her to get herself freed. In that attempt, her grass was scattered. Her mouth was pressed by both the accused persons and rape was committed. Her statement is doubted on the ground that alarm was not raised on her behalf even after she was freed by accused persons. If the act of accused-appellants was resisted, every probability was there to appear some violence on persons of the victim including her private part, victim in her statement made in Court states about commitment of rape by three persons. She was examined by a Doctor but Doctor has not been examined in course of trial. Mark of violence was also there on the place of occurrence as stated by PW 1 that is foot print and broken sugarcane plants including scattered grass for which examination of the I.O. was a must. This much is taken as prejudice caused to the accused person. 11. Mark of violence was also there on the place of occurrence as stated by PW 1 that is foot print and broken sugarcane plants including scattered grass for which examination of the I.O. was a must. This much is taken as prejudice caused to the accused person. 11. Initially, accused, Ayub Khan was not alleged for committing rape but in course of examination in Court of victim he has also been shown one of the persons, who committed rape upon her. Above discussed points are stressed on behalf of the learned counsel for the appellants that victim was a lady who has no hesitation in making allegation against anyone. Making of alarm is averred in the F.I.R. but not corroborated by the victim herself in her statement made before the trial Court after commitment of rape and witnesses are not constant on the point if they reached the field on her alarm. 12. There are some suggestions made to witnesses for false implication. In para 17 of PW 1, it has come though in form of denial that informant's family was working as labourer to surpanch, Ram Dahan Singh with whom Mumtaz Khan, Nasimudhin Khan and Imtiyaz Khan were in litigating term and on his instance only case was lodged. Further, suggestion is about Idrish Khan, cousin of Dr. Masinuddin Khan who was at litigating term with Ahmed Khan and on his instance only, this case is lodged. Suggestion is from the victim herself also, in para-9 she states that her bhasur, Gulab Ram, PW 1 was leader of Harizan Community and para-11 is the suggestion that on instigation of Gulab Ram, this case was lodged. Such suggestion is made to PW 7 also. In para-7, she states that it was not the fact that on instance of Gulab Ram and Kamal Ram PW 1 and PW 2, she has made the false statement. 13. On the point of framing of charge in minor section and conviction in major section, submission of learned counsel for the appellants is that accused-appellants. Mumtaz @ Nasim Khan and Idrish Khan are charged for the offence under Section 376 of the I.P.C. while accused-appellants. 13. On the point of framing of charge in minor section and conviction in major section, submission of learned counsel for the appellants is that accused-appellants. Mumtaz @ Nasim Khan and Idrish Khan are charged for the offence under Section 376 of the I.P.C. while accused-appellants. Ayub Khan and Bijai Chamar are charged for the offence under Section 376 read with Section 109 of the IPC, and have been convicted for the offence under Section 376 (2)(g) of the I.P.C. In both the offences, Life Imprisonment is one of the punishments but in case of 376 of the I.P.C., the minimum punishment is of 7 years, while for the offence under Section 376 (2) (g), minimum sentence is of 10 years. If that is taken into consideration, offence under Section 376 (2)(g) is a major offence and no conviction is allowed under Section 376 (2) (g) of the I.P.C. 14. Discussed suggested infirmities if are summarized, they are contradiction appeared in statement of witnesses including victim of the case, naming accused-appellant Ayub Khan also among the persons who committed rape upon the victim for the first time in Court, non-examination of the Doctor and the I.O. followed by framing of the charge under Sections 376 and 376 read with 120-B of the I.P.C. and conviction under Section 376 (2) (g) of the I.P.C. It may be re-collected that making of alarm is in the F.I.R., missing of the same in the statement of victim, non-disclosure of the incident in the field in the F.I.R. and by the victim also but PW 1, PW 7 and PW 8 state that they reached the field of the occurrence and matter was narrated by the victim to them that finds no corroboration in the statement of PW 7 even when she was again examined as PW 9. 15. Remaining the above discussed infirmities, in my view, conviction of appellants for the offence under Section 376 (2)(g) of the I.P.C. is not safe which has not been considered by the trial Court. So, the conclusion reached by it is not liable to sustain. 16. In the result, appeal is allowed and the judgment of conviction dated 17.08.1999 and order of sentence dated 23.08.1999 passed by the 3rd Addl. Sessions Judge. Bhabuain Session Trial No. 349 of 1986/98 of 1998 are set aside. 17. Accordingly, above named accused-appellants are acquitted of their respective charges. 16. In the result, appeal is allowed and the judgment of conviction dated 17.08.1999 and order of sentence dated 23.08.1999 passed by the 3rd Addl. Sessions Judge. Bhabuain Session Trial No. 349 of 1986/98 of 1998 are set aside. 17. Accordingly, above named accused-appellants are acquitted of their respective charges. They are on bail, so they are discharged from their liabilities of the bail bonds. 18. Let copy of this judgment along with lower Court records be sent to the trial Court immediately. Appeal allowed.