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2013 DIGILAW 134 (PAT)

Dilip Yadav v. State of Bihar

2013-01-30

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT HEMANT KUMAR SRIVASTAVA, J.-Heard learned counsel for the appellants as well as learned Additional Public Prosecutor for the State and perused the record. 2. This Criminal Appeal has been preferred against the judgment of conviction and sentence order dated 21.12.2000 passed by 1st Additional Sessions Judge, Darbhanga in Sessions Trial No. 218 of 1999 by which and whereunder, he convicted the appellants for the offences U/ss. 376, 323 & 341 of the Indian Penal Code and, accordingly, sentenced the appellants to undergo rigorous imprisonment for ten years u/s 376 of the Indian Penal Code but no separate sentence was passed for the offences under Sections 341, 323 of the Indian Penal Code. 3. The prosecution case, in brief, is that P.W. 7 Shital Devi W/o Parmeshwar Mahto went to Manigachhi Police Station on 28.9.1998 at about 10.00 a.m. alongwith her husband, Parmeshwar Mahto and her Bhainsur, Yogesh Kumar Mahto and gave her fardbeyan to this effect that on 23.9.1998 at about 3.00 p.m., she had gone to Beerai Bandh to see her paddy crop and she found that paddy crops of her field were cut and after that, she started hurling abuses without naming any person and when she was returning to her home, the appellant No.1 Dilip Yadav, all of a sudden, came there and lifted her and took her towards a field upon which, she raised alarm but appellant No. 2 also came there and both the appellants brought her in a field of sugarcane and put her on the earth and after that, the appellant No. 1 committed rape upon her and at that time, appellant No.2 had caught her hands and after that, appellant No. 2 also committed rape upon her. She further stated in her fardbeyan that after the aforesaid occurrence, both the appellants gave threatening to her and also gave 4-5 slaps to her. She further stated that she came weeping to her home and narrated the entire incident to Daiyan Devi. She further stated that at the time of alleged occurrence, her husband was working in Delhi whereas; her parents-in-law had gone to Badrinath Dham and there was no guardian in her house. She further stated that she came weeping to her home and narrated the entire incident to Daiyan Devi. She further stated that at the time of alleged occurrence, her husband was working in Delhi whereas; her parents-in-law had gone to Badrinath Dham and there was no guardian in her house. She further stated that on account of fear, she did not go to police station nor could inform the local Chowkidar and when her Bhainsur and husband came, she narrated the entire occurrence to her husband and Bhainsur on 27.9.1998 and after that, she alongwith her husband and Bhainsur, came to police station where her fardbeyan was recorded. 4. On the basis of aforesaid fardbeyan, Manigachhi P.S. Case No. 105 of 1998 was registered for the offences under Sections 341, 323, 376/34 of the Indian Penal Code and formal FIR was drawn against the appellants under the abovesaid sections. 5. The matter was investigated by the police and after completion of the investigation, police submitted charge-sheet against the appellants under the abovesaid sections. Cognizance of the offence was taken and the case was committed to the court of Sessions, in usual way. 6. Both the appellants were charged for the offences under Sections 341, 323, 376/34 of the IPC and prosecution examined altogether nine witnesses to prove its case. The prosecution also got exhibited the signatures of Jugeshwar Mahto and Parmeshwar Mahto on Fardbeyan as Ext.1 series, FIR as Ext.-2, fardbeyan as Ext.3, Medical Report as Ext.-4 and case diary as Ext.-5. The statements of appellants were recorded under Section 313 of the Cr. P.C. in which they completely denied the prosecution story. No evidence was adduced by the appellants in support of their defence but from perusal of the trends of cross-examination of prosecution witnesses as well as statements recorded under Section 313 of the Cr.P.C. it appears that the defence of the appellants was that the P.W. 8 (prosecutrix) was set up by one, Rameshwar Jha, who was an accused in a murder case in which, the brother-in-law of appellant No.2 was a witness. 7. The learned trial court, having heard the parties and having analyzed the evidences available on the record, convicted and sentenced the appellants in the manner as stated above. 8. 7. The learned trial court, having heard the parties and having analyzed the evidences available on the record, convicted and sentenced the appellants in the manner as stated above. 8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that according to prosecution case, the alleged occurrence took place on 23.9.1998 at about 3.00 p.m. but admittedly, the fardbeyan of the P.W. 8 was recorded on 28.9.1998 i.e. after five days of the alleged occurrence and no plausible explanation of the aforesaid delay, was given by the prosecution. He submitted that P.W. 8 has stated in her fardbeyan that no male• member of her family was present. in her house at the time of alleged occurrence and the appellants had given threatening of dire consequences and that was the reason, she could not go to police station to lodge the FIR nor could inform the local chowkidar about the alleged occurrence but P.W. 5 Mahavir Mahto admitted in his cross-examination that the husband of P.W. 8 is his agnate and on the alleged date of occurrence, he was present in the village, so, there was ample opportunity to P.W. 8 to go to police station alongwith P.W. 5 to give information regarding the alleged occurrence but admittedly, she lodged the present case after five days. He further submitted that almost all the material witnesses are related to each others and, therefore, no reliance can safely be placed on the depositions of the aforesaid witnesses. He further submitted that neither the I.O. nor the doctor was examined in this case and medical examination report of P.W. 8 was proved by a formal witness P.W. 9. He submitted that the medical report of P.W. 8 has been marked as Ext.-4 and the aforesaid report reveals that the doctor did not find any positive findings to suggest the recent forceful commission of sexual intercourse with the P.W. 8 and, therefore, the statement of P.W. 8 is not corroborated by the medical evidence and the appellants are entitled to get benefit of doubt. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that P.W. 8 (prosecutrix) has supported her case and she has specifically stated that on the alleged date of occurrence, she was raped by the appellants. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that P.W. 8 (prosecutrix) has supported her case and she has specifically stated that on the alleged date of occurrence, she was raped by the appellants. He further submitted that P.W. 8 has given reasonable explanation for lodging the case after five days of the alleged occurrence. He further submitted that if the statement of P.W. 8 inspires confidence to the court, there is no need for corroboration of the statement of P.W. 8 by other evidence. 10. In this case, P.W. 1 Satan Mahto is father-in-law and P.W. 2 Jageshwari Devi is mother-in-law of P.W.8 and both the abovesaid, witnesses stated that on the alleged date of occurrence, they had gone to Badridham and when they returned to their home, they learnt about the alleged occurrence. P.W. 1 specifically stated that when he came from Badrinath Dham and reached at Lohna Railway Station, one Baiju Mahto and Sitaram Yadav informed him about the alleged occurrence and after that, when he reached at his home, his son as well as his daughter-in-law also narrated to him about the alleged occurrence. P.W. 1 admitted at paragraph-14 of his cross-examination that he knows Rameshwar Jha and he also knows that the aforesaid Rameshwar Jha is an accused of murder case but this witness stated that he was not aware about the fact as to whether the brother-in-law of appellant No.2, Laxmi Yadav was witness in the aforesaid murder case or not. 11. P.W. 3 Bimla Devi is cousin Gotani of P.W. 8. She stated that on the alleged date of occurrence, P.W. 8 divulged before her that appellants had committed rape on her and she also admitted in her cross-examination that when P.W. 8 had come to her home and narrated the aforesaid fact, her family members were present in her house. She admitted that the husband of P.W. 8 was working in Delhi since last 5-6 years. 12. P.W. 4 Daiyan Devi is Gotani of P.W. 8. She stated that P.W. 8 had disclosed to her that she was raped by appellants near Beerai Bandh. She also stated that at the time of alleged occurrence, there was no male member present in her house. 13. 12. P.W. 4 Daiyan Devi is Gotani of P.W. 8. She stated that P.W. 8 had disclosed to her that she was raped by appellants near Beerai Bandh. She also stated that at the time of alleged occurrence, there was no male member present in her house. 13. P.W. 5 Mahabir Mahto happens to be father-in-law of P.W. 3 and cousin father-in-law of the P.W. 8. This witness stated that P.W. 3 narrated about the alleged occurrence to him and at the time of alleged occurrence, the parents-in-law of P.W. 8 had gone to Badrinath whereas husband of P.W. 8 was at Delhi. 14. P.W. 6 Yogendra Kumar Mahto @ Yogeshwar Mahto is Bhainsur of P.W. 8 and he stated that he got information about the alleged occurrence on telephone and at that time, he was at Delhi. He further stated that having got the aforesaid information, he returned from Delhi and inquired from P.W. 8, who stated the entire occurrence to him. He further stated that after getting information from P.W. 8, he alongwith his cousin brother, P.W. 7 Parmeshwar Mahto and P.W. 8 Shitala Devi went to Manigachhi Police Station where Shitala Devi gave her fardbeyan before the police and this witness as well as P.W. 7 put their signatures on fardbeyan of the P.W. 8. 15. P.W. 7 Parmeshwar Mahto is the husband of the P.W. 8 and this witness stated that he got information regarding alleged occurrence from P.W. 6 who got information on telephone and at the time of aforesaid information, they were at Delhi and having got the aforesaid information, they came to their home where P.W. 8 narrated the entire incident and after that, he alongwith P.W. 6 and P.W. 8 went to police station and after that, the case was instituted. 16. P.W. 8 Shitala Devi is the victim as well as informant of this case. She supported her fardbeyan in her examination-in-chief and stated that while she was returning to her home, the appellant No. 1 caught hold her and in the meantime, appellant No. 2 also came there from a field of sugarcane and both the aforesaid persons brought her in the field of sugarcane and after that, appellant No. 1 Dileep Yadav committed rape upon her and then, appellant No.2 committed rape upon her and they also assaulted her with slaps and gave threatening of dire consequences. She further stated that she returned to her home and her parents-in-law were not at their home. She further stated that at the time of aforesaid occurrence, her husband was in Delhi. She further stated that after six days of the alleged occurrence, her parents-in-law came there and similarly, her husband also came after six days of the alleged occurrence. She stated that she narrated the entire incident to her husband and after that she was taken to Manigachhi Police Station, where her fardbeyan was recorded in presence of her husband and Bhainsur. She further stated that she was, medically, examined by the doctor. She was cross-examined by defence at length. 17. After scrutinizing the evidences available on the record, I find that the victim has fully supported the story of rape and she has given the explanation for not lodging the case just after the alleged occurrence. 18. It has come in the evidence of P.W. 2 that P.W. 1 and P.W. 2, the parents-in-law of P.W. 8, were riot present in their house on the alleged date of occurrence and similarly, P.W. 7 (husband of P.W. 8) was also not present in his house on the alleged date of occurrence and when the male members of family of P.W. 8 returned to their home, the P.W. 8 narrated the entire story to them and after that, the present case was lodged against the appellants. So far as the presence of P.W. 5 in the village at the time of alleged occurrence, and non-lodging the case by P.W. 8 just after the alleged occurrence with the help of P.W. 5. is concerned, P.W. 5 is cousin father-in-law of P.W. 8 and P.W. 8 has, nowhere, stated that she had disclosed the occurrence to P.W. 5 rather it was P.W. 3 who disclosed the occurrence to P.W. 5 because P. W. 3 happens to be own daughter-in-law of P.W. 5. is concerned, P.W. 5 is cousin father-in-law of P.W. 8 and P.W. 8 has, nowhere, stated that she had disclosed the occurrence to P.W. 5 rather it was P.W. 3 who disclosed the occurrence to P.W. 5 because P. W. 3 happens to be own daughter-in-law of P.W. 5. So, if P.W. 5 did not take any step to get the case registered just after the alleged occurrence, then also, the aforesaid fact does not make any difference because it is quite natural that in absence of male members of her family, P.W. 8 did not lodge the case just after the alleged occurrence and she waited for arrival of male member of her family and when they arrived, the P.W. 8 lodged the present case and, therefore, even if, the present case has been lodged after five days of the alleged occurrence, then also, I do not find any ground to disbelieve the case of the prosecution on the ground of delay in lodging the first information report. 19. Admittedly, prosecutrix (P.W. 8) has supported the factum of rape but the appellants could not succeed to elicit anything from the deposition of P.W. 8 on the basis of which, the statement, of P.W. 8, could be discarded and, therefore, the statement of P.W. 8 does inspire confidence to this court and, in my view, there is no need of corroboration of statement of P.W. 8 because it is well settled principle of law that on the basis of solitary statement of victim of a rape, conviction can be sustained, if it inspires confidence. Moreover, the appellants could, not succeed to extract anything from prosecution witnesses to show their false implication. 20. On the basis of aforesaid discussions, I am of the opinion that the learned trial court has rightly convicted and sentenced the appellants. 21. So far as quantum of sentence is concerned, the appellants have committed gang rape which is punishable for not less than 10 years rigorous imprisonment but it may be for life also under Section 376(2)(g) of the Indian Penal Code and, therefore, it is apparent that the learned trial court has awarded minimum punishment which has been prescribed under Section 376(2)(g) of the Indian Penal Code. 22. On the basis of aforesaid discussions, this Cr. Appeal stands dismissed and the impugned judgment of conviction and sentence order are, hereby, affirmed. 22. On the basis of aforesaid discussions, this Cr. Appeal stands dismissed and the impugned judgment of conviction and sentence order are, hereby, affirmed. The bail bonds of the appellants are cancelled and, they are directed to surrender before the trial court within a month from today to serve out their sentences and, if, they fail to do so, the learned trial court shall take necessary steps to procure the attendance of appellants so that, they may be sent to jail for serving out their sentences.