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2014 DIGILAW 1055 (PAT)

Karan @ Banti Kumar Singh v. The State of Bihar

2014-10-13

GOPAL PRASAD

body2014
Judgment Heard. 1. This appeal is directed against the judgment of conviction and order of sentence dated 22.07.2010 passed by Shri Himanshu Shekhar Pandey, Additional Sessions Judge, Sheikhpura, in Sessions Trial No. 56 of 2010/T.R. No. 6 of 2010 by which the appellant has been convicted under Section 376 of Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 3,000/- and in default of fine the appellant further sentenced to undergo rigorous imprisonment for one year. 2. The prosecution case as alleged in the First Information Report, the victim is a Class VIth student aged about 15 years. She had gone to Barbigha Hospital for treatment along with her younger brother. While coming out from hospital, a boy came with vehicle and parked it in front of her and after closing her mouth he picked her up in his vehicle. Thereafter, he took her inside his room and after confining her committed rape upon her. He committed rape with her over night. After rape, in the morning on next day she was taken by him to Hatiya More and asked a rickshaw puller to take her to More of Chadu Kuan and from there she reached at her village and disclosed about the occurrence to her parents. Thereafter, her parents took her to the police station to record First Information Report. On the basis of First Information Report by the Prosecutrix F.I.R. lodged and investigation proceeded. The police after investigation and medical examination of the victim, inspected the P.O. and subsequently submitted charge sheet, on the basis of which cognizance was taken, case was committed to the Court of Sessions and after framing of the charge, trial proceeded. 3. The defence of the accused that on the date and time of occurrence, the appellant was not present at the place of occurrence rather he had gone out to Patna, i.e. taken the plea of Alibi but the said plea of Alibi has not been proved nor any evidence adduced. The trial court taking into consideration the evidence adduced on behalf of the prosecution and defence set up by accused, convicted the appellant holding that prosecution has succeeded to the establish the prosecution case beyond reasonable doubt. 4. The trial court taking into consideration the evidence adduced on behalf of the prosecution and defence set up by accused, convicted the appellant holding that prosecution has succeeded to the establish the prosecution case beyond reasonable doubt. 4. Learned counsel for the appellant however contends that in the prosecution story, the victim had gone to hospital along with her younger brother from where victim alleged to have been kidnapped, but the brother of the victim who is said to be present at the time of occurrence has not been examined as witness. It is further contended that mother of the victim has also not been examined. It is further contended that the evidence of the victim has neither been supported or corroborated by medical evidence as spermatozoa was not found. Even the mother and brother have not come to support or corroborate the victim. 5. Learned counsel for the State however contends that statement of victim itself sufficient for conviction and the evidence of the victim is sufficiently corroborated by medical evidence to convict the appellant. 6. On the respective submissions, question for consideration whether prosecution has been able to prove the charge beyond reasonable doubt. However, the prosecution case as alleged by the informant that she was kidnapped from the hospital while she was went out from hospital with her younger brother. 7. P.W. 1 is the victim. She supported the prosecution case that Banti kidnapped and took her in a vehicle and raped her whole night. On the next day, Banti took her at Hatiya More. From there she reached at her village and disclosed about the occurrence to her parents. Thereafter, her parents took her to police station where she was disclosed about the occurrence to the police regarding rape by Banti. In her cross examination she stated that at the time of occurrence her younger brother only five years. Father of the victim has also corroborated the evidence of the victim and supported the prosecution case and stated that when the victim came to house she was started bleeding and disclose about the occurrence also narrated committed rape for whole night. He has also stated that boy was tender age and was immature. The doctor who examined the victim on 28.12.2008 stated that occurrence alleged to be happened in the night in between 27-28.12.2008. He has also stated that boy was tender age and was immature. The doctor who examined the victim on 28.12.2008 stated that occurrence alleged to be happened in the night in between 27-28.12.2008. P.W. 4, Medical Officer who examined the victim stated that no any injury all over the body. Further it has been stated that hymen recent ruptured. Margin of ruptured hymen is congested, swollen and tender on touch. Vaginal intraipus admit only one right index finger. There is sign of recent vagina penetration and there are no any physical injuries. So only recent vaginal penetration can not suggest sexual offences positively, but recent vaginal penetration without any physical injury also does not exclude sexual offences. In her cross-examination, P.W. 4 has stated that “the police had sought her opinion on four points (a) whether any rape was done. On this, there was no any sign of rape committed. In this case sexual intercourse could be. Second point- there was no injury on private part of the victim. Third point- she could not give the age of the victim still she has not received any report of medical board. 8. Learned counsel for the appellant, however contends that there is no sign of rape or external injury on the person of the victim, though, the victim in her evidence has stated that during the period of alleged rape, she was earlier assaulted by lathi and danda, but there is no injury on her person belies the prosecution case. Though, there is allegation in the statement of the victim that she was assaulted by lathi itself it cannot be inferred that victim was not subjected to rape. The victim and witnesses sometime may be exaggerated about the occurrence merely because there are exaggeration for the reason witness may infer that he may not be disbelieve making statement on imagination. Hence merely because no wound found on her person, though, in her evidence she stated about assault by lathi during rape it can not be said that rape was not committed. 9. However, from the evidence of victim and evidence of P.W. 4, the Medical Officer, the possibility of rape can not be ruled out and medical evidence suggests that hymen recent ruptured. Margin of ruptured hymen is congested, swollen and tender on touch. Vaginal entraipus admit only one right index finger. 9. However, from the evidence of victim and evidence of P.W. 4, the Medical Officer, the possibility of rape can not be ruled out and medical evidence suggests that hymen recent ruptured. Margin of ruptured hymen is congested, swollen and tender on touch. Vaginal entraipus admit only one right index finger. There is sign of recent vagina penetration but there are no any physical injuries. So the evidence of P.W.4 that the recent vaginal penetration without any physical injury does not exclude sexual offences, and it amounts to corroboration when as per evidence, the rape of the victim has not been ruled out by medical evidence. 10. Hence in view of the evidence of other witnesses and evidence of the victim about indulges, I do not find any reason to interfere with the order of conviction and sentence recorded by the trial court and on the basis of evidence it can well be inferred that prosecution has been able to prove the charge beyond reasonable doubt. 11. However, learned counsel for the appellant contends that at the time of occurrence, the appellant was only 20 years old as it has been find out at the time conviction and sentence his age recorded as 22 years in the year 2010, whereas the victim stated that at the time of occurrence as per assessment her age was 18 years. It is further contended that taking into consideration the age of the appellant, careful consideration may be made regarding period of sentence. It has further been contended that victim and the appellant both of them were well known to each other. 12. Hence taking into consideration the facts and circumstances period of sentence particularly age of the appellant at the time of occurrence, in justice by reducing the sentence from 10 years to 8 years, but at the same time the amount of fine enhanced from Rs. 3000/- to Rs. 10,000/-. Hence appellant is ordered to be sentenced to undergo rigorous imprisonment for eight years and fine Rs. 10,000/- and in case, the appellant did not pay fine then further sentence to undergo rigorous imprisonment for one year. 13. Accordingly, the appeal is dismissed with modification of sentence. Appeal dismissed.