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2014 DIGILAW 1157 (PAT)

Gopal Kumar @ Ram v. The State of Bihar

2014-11-21

GOPAL PRASAD

body2014
JUDGMENT Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted under Section 376(2g)/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for the offence under Section 376(2g)/34 of the Indian Penal Code for ten years each. 3. The prosecution case, as alleged, in the First Information Report, by the father of the victim, is that he used to live in the house of Alok Paswan and used to sell the vegetables. His minor daughter Khusbu Kumari aged about 14 years went to bring mustard oil from the shop of one Sanjai Goswami on 20.01.2012 at about 7:00 P.M. along with her younger brother Jitan Kumar. After purchase oil both of them were returning to their house then the appellants, namely, Gopal Kumar @ Ram, Ganesh Kumar and Munna Kumar @ Munnu Ram chased them and when they reached near the back of the house of Narain Chaudhary at a lonely place, all the three appellants thrown her on the ground and raped her one after another and they have caught hold of Jitan Kumar, the son of the informant but Jitan Kumar anyhow managed to escape and disclosed about the occurrence then the wife of the informant Baby Devi went along with Jitan Kumar at the place of occurrence and saw Khushbu Kumari in naked stage with Munnu Ram lying over her then she made a cry and thereafter the accused persons fled away abusing her. The further case is that after the accused persons fled away, the neighbours asked the informant about the occurrence and he disclosed everything. The date of occurrence alleged to be on 20.01.2012. However, the First Information Report was lodged on 22.01.2012 at about 1:00 P.M. The police during investigation recorded the statement of the victim under Section 164 of the Code of Criminal Procedure in which she disclosed about the occurrence and the victim was also examined by the police and was medically examined. 4. The police after investigation submitted charge sheet for the offence under Section 376(2g)/34 of the Indian Penal Code. 4. The police after investigation submitted charge sheet for the offence under Section 376(2g)/34 of the Indian Penal Code. Thereafter cognizance was taken, case committed to the Court of Sessions and during trial seven witnesses were examined on behalf of the prosecution who are P.W. 1 Suraj Kumar, P.W. 2 Khusbu Kumar (victim), P.W. 3 Baby Devi, P.W. 4 Jitan Kumar, P.W. 5 Karu Ram, P.W. 6 Dr. Asha Singh and P.W. 7 Shashi Ranjan Kumar. The documentary evidence adduced, written complaint and endorsement are marked as Exts. 1, 1/1 and ½, medical report has been marked as Exts. 2 and 2/a, First Information Report is marked as Ext 3 and the statement of the victim under Section 164 of the Code of Criminal Procedure has been marked as Ext. 4. The defence has also examined one witness in support of his defence plea as P. W. 1 Alok Paswan after the statement of the victim having been recorded under Section 313 of the Cr.P.C. and the further defence is that a false case has been instituted to exert pressure to have married with the accused Ganesh Kumar. The trial court convicted the appellants for the offence under Section 376(2g)/34 of the Indian Penal Code taking into consideration the fact that the victim has supported the prosecution case and her evidence is corroborated by his younger brother Jitan Kumar P.W. 4 as well as her mother (P.W. 3) as Jitan Kumar was accompanying and the mother on being informed by Jitan Kumar rushed to the spot and saw the part of the occurrence and hence, there is corroboration. 5. Learned counsel for the appellants, however, challenged the judgment of conviction and order of sentence on the ground that the appellants have falsely been implicated in this case as the victim put pressure to marry with Ganesh Kumar and further the fact that the medical evidence is not supported the prosecution case as the doctor has not found the injury on the person of the victim. It has further been contended that only the family members of the prosecution party have come to support the prosecution case and no independent witness has turned up. 6. However, having regard to the respective submissions of the parties, the question for consideration is whether the judgment of conviction and order of sentence is sustainable. 7. It has further been contended that only the family members of the prosecution party have come to support the prosecution case and no independent witness has turned up. 6. However, having regard to the respective submissions of the parties, the question for consideration is whether the judgment of conviction and order of sentence is sustainable. 7. The prosecution case as alleged is that while the victim was returning to her home after purchasing oil from the shop then she was chased by the appellants and when she reached near the house of Narain Chaudhary, the three appellants committed rape one after another. The victim in her statement supported the prosecution case under Section 164 of the Cr.P.C. as well as her statement before the Court and she has specifically stated that they caught hold of her, tied her mouth and committed rape one after another. She has further stated that his brother was also there and he anyhow managed to flee away and informed then the mother came and saw Munnu Ram lying on the victim. 8. P.W. 4 Jitan Kumar the brother of the victim has also supported the prosecution case and the mother has also adduced evidence as P.W. 3. 9. However, discrepancy pointed out that at the place of occurrence, there are 6-7 houses but none has come to support the prosecution case. However, in paragraph 3, the cross-examination of the victim, she herself stated that her mouth was tied and so she could not make Hulla and then she has tried to get herself free and though her brother has made a Hulla but none came. 10. However, having regard to the fact that the victim has supported the prosecution case and the two witnesses P.W. 4 Jitan Kumar and mother (P.W. 3) have also corroborated and supported the prosecution case so the criticism is that the appellants have falsely been implicated out of the animosity. However, in Indian society one knows the consequence of falsely alleging in the rape case as it has graver consequence as the person losses respect in the society and even the further marriage of the victim is also a big question mark. So far the evidence of the doctor P.W. 6 Dr. However, in Indian society one knows the consequence of falsely alleging in the rape case as it has graver consequence as the person losses respect in the society and even the further marriage of the victim is also a big question mark. So far the evidence of the doctor P.W. 6 Dr. Asha Singh is concerned, he has stated that no external injury over breast or private parts, vaginal swab taken and sent for chemical examination, opinion reserved till awaiting report. However, it is apparent that the report of the doctor is very cryptic, there is no detail examination and there is no description of the private part of the victim to draw any inference and in cross-examination the doctor has only stated that the injury is possible by sexual assault. However, the victim is a girl of tender age and the evidence is corroborated and supported by her brother and mother and the consequence of rape is graver as not only the victim but even the family members lost respect in the society and graver social stigma attached to it and even the marriage of the victim become a problem and it is difficult to draw inference on the medical report marked as Exts. 2 and 2/a as it is totally vague and cryptic. 11. However, the criticism raised is that the occurrence took place on 20.01.2012 whereas First Information Report has been lodged on 22.01.2012 and there is no explanation for the delay. 12. However, having regard to the nature of allegation, the delay of one day in lodging the First Information Report does not prejudice the prosecution case. However, in such type of occurrence, there is delay in taking decision for lodging the case and hence, the delay itself cannot be said to be ipso facto fatal for prosecution. 13. Learned counsel for the appellants, however, contended that the appellants are aged about 20-25 years respectively and are at the early stage of life and there is no criminal antecedent and hence, the conviction of ten years in the fact of the case is not proper and it requires to be reconsidered. 14. Hence, having regard to the fact that the appellants are of tender age having no criminal antecedent and nature of the occurrence, the ends of justice shall meet by sentencing the appellants to undergo rigorous imprisonment for seven years. 14. Hence, having regard to the fact that the appellants are of tender age having no criminal antecedent and nature of the occurrence, the ends of justice shall meet by sentencing the appellants to undergo rigorous imprisonment for seven years. Hence, with this modification in sentence, the appeal is dismissed. Appeal dismissed.