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2014 DIGILAW 1192 (PAT)

Chandan Kumar v. The State of Bihar

2014-12-03

GOPAL PRASAD

body2014
Judgment Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Sections-366-A and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment of five years for the offence committed under Section 366-A of the Indian Penal Code and also punished with fine of Rs.5,000/- and in default to serve further rigorous imprisonment for six months. He has further been sentenced to undergo rigorous imprisonment of ten years for the offence committed under Section 376 of the Indian Penal Code with fine of Rs.30,000/- and in default of fine to serve further rigorous imprisonment of one year. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case, as alleged in the fardbeyan of the informant Dinesh Yadav, the father of the victim, alleging therein is that her daughter, namely, Babita Kumari aged about 14 years went to her school on 12.09.2011 at about 10:00 A.M. along with Doli Kumari. Babita Kumari went to purchase chocolate with Shabanam Praveen from the shop of Janardan Ram and when she was coming to her school and reached near Voda’s tower towards north of shop, where a room was constructed in tower, Chandan Kumar, Munna Kumar and 3-4 unknown boys called her. When Babita Kumari reached there, she was locked inside the room. It is further alleged that Doli Kumari came back to her house after closing the school and told the informant that Babita Kumari is not in school, then informant searched his daughter. Bhushan Yadav told him that he has seen Babita Kumari going inside the tower. The informant went there but room was locked. It is also alleged that the room of the tower is the shelter of criminals and Chandan Kumar is anti-social element and has committed such type of offence several times. The informant has doubted that the accused had kidnapped his daughter with intent to kill. 4. On the fardbeyan the First Information Report was lodged and investigation proceeded. During investigation the victim and the accused were apprehended by Madhepura Police and Madhepura Police handed over them to the Investigating Officer. The statement of the victim was recorded and she was medically examined at Sadar Hospital, Saharsa. 4. On the fardbeyan the First Information Report was lodged and investigation proceeded. During investigation the victim and the accused were apprehended by Madhepura Police and Madhepura Police handed over them to the Investigating Officer. The statement of the victim was recorded and she was medically examined at Sadar Hospital, Saharsa. Her statement was also recorded under Section 164 of the Code of Criminal Procedure and after completion of investigation the police submitted charge-sheet. On submission of the charge-sheet, cognizance was taken, case was committed to the Court of Sessions and after framing of the charge trial proceeded. 5. During trial seven witnesses were examined on behalf of the prosecution who are P.W. 1 Ram Milan Yadav, P.W. 2 Raj Kishore Yadav, P.W. 3 Chandra Bhushan Yadav, P.W. 4 Dinesh Yadav, P.W. 5 Babita Kumari the victim, P.W. 6 Dr. Bibha Rani, the doctor who examined the victim and P.W. 7 the Investigating Officer, Sunil Kumar Bhagat in support of the case. The documentary evidence have been produced by the prosecution i.e. Ext. 1 written report, Ext. 1/1 signature of Parmanand Yadav on written report, Ext. 2 statement of victim under Section 164 Cr.P.C., Ext. 3 Medical Report, Ext. 4 Endorsement on written report, Ext. 5 Charge-sheet and Ext. 6 Formal First Information Report. 6. The defence of the accused is that he has falsely been implicated due to local politics and no occurrence as alleged was committed. However, a submission has been made on behalf of the appellant that it is a case of love-affairs. 7. However, the trial court taking into consideration both oral and documentary evidence convicted the appellant and sentenced as mentioned above. 8. Learned counsel for the appellant, however, contended that the appellant has falsely been implicated and Shabanam Praveen has not been examined in this case to support the prosecution that she went along with the victim. It has further been contended that the kidnapping is alleged on the gate of the school but no independent witness has come to support the kidnapping. It has further been contended that the victim has stated that her clothes were besmeared with blood and semen was found on the clothes but the clothes were not examined. It has further been contended that the kidnapping is alleged on the gate of the school but no independent witness has come to support the kidnapping. It has further been contended that the victim has stated that her clothes were besmeared with blood and semen was found on the clothes but the clothes were not examined. It has also been contended that it is a case of love-affairs and there is element of consent and hence, prosecution has not been able to prove the charges beyond reasonable doubt. 9. Leaned counsel for the State, however, contended that the witnesses have supported the prosecution case and the victim herself has stated about the occurrence. He further submits that her evidence has also been corroborated by the medical evidence and further both the victim and the appellant have been apprehended by the police and have taken into custody and this evidence to sufficient to prove the prosecution case to record conviction. 10. P. Ws. 1 and 2 have stated in their evidence that the matter of kidnapping was disclosed by the victim and Dinesh Yadav and hence, have stated whatever disclosed by Babita Kumari and Dinesh Yadav. 11. P.W. 3 is in his evidence though stated in examination in chief that he is the eye witness but stated in his cross-examination that he learnt about the kidnapping on the next day. He also learnt that both of them have been apprehended at Madhepura and in further cross-examination he stated that Babita Kumari disclosed him about the occurrence. 12. P.W. 4 Dinesh Yadav is the informant of the case and not the eye witness of the occurrence. 13. P.W. 5 is the victim herself. She has fully supported the prosecution case that she had gone to school, kept her book in class and went to purchase pen, when returned back and reached near tower, Munna Kumar caught her hand, Chandan Kumar put his hand on her mouth and she was locked in tower. She has also stated that she became unconscious and was brought to Banmankhi in night and kept in hotel. She gained consciousness at about 12:00-01:00 hour in night. She has clearly stated that Chandan Kumar has committed rape 6-7 times with her and was brought to Madhepura on 13.09.2011 from Banmankhi by the vehicle by Munna Kumar, Raju Singh and Shankar Singh and she was threatened by them. She gained consciousness at about 12:00-01:00 hour in night. She has clearly stated that Chandan Kumar has committed rape 6-7 times with her and was brought to Madhepura on 13.09.2011 from Banmankhi by the vehicle by Munna Kumar, Raju Singh and Shankar Singh and she was threatened by them. She has also stated that police caught her and Chandan Kumar but rest three persons fled away. The police recorded her statement thereafter the doctor examined her and her statement recorded under Section 164 Cr.P.C. which is Exhibit 2 in which she has supported the prosecution case about her kidnapping and rape. 14. P.W. 6 is the doctor, who has opined that there is confirmatory evidence of sexual intercourse. However, found no external visible injury on her body. 15. P.W. 7 is the Investigating Officer, who has deposed that during investigation Madhepura Police handed over the victim and the appellant to him and he got recorded the statement of the victim. 16. The doctor has assessed the age of the victim as 14-16 years and remarked that there is confirmatory evidence of intercourse. The evidence of the victim is that she was kidnapped by force and taken in the tower and then from tower to Banmankhi where she was kept in a hotel and raped and later was brought to Madhepura and her evidence recorded under Section 164 of the Cr.P.C. and further the evidence of the Investigating Officer that the victim and the appellant were arrested and handed over to him by Madhepura Police itself indicates that the victim was in custody of the appellant from where she was arrested and handed over to the Investigating Officer and hence, from the evidence of the victim and the entire cross-examination of the victim there is nothing to disbelieve her testimony and she has successfully passed the test of cross-examination and no material has been brought to the notice of this Court on the basis of which it can be said that the evidence of the victim is not reliable or trustworthy. 17. Considering the facts and circumstances of the case, it appears that the victim has passed the test of cross-examination and there is nothing to disbelieve her testimony and further the allegation of rape has been corroborated by her statement recorded under Section 164 of the Cr. 17. Considering the facts and circumstances of the case, it appears that the victim has passed the test of cross-examination and there is nothing to disbelieve her testimony and further the allegation of rape has been corroborated by her statement recorded under Section 164 of the Cr. P.C. as well as medical examination by the doctor and the contention raised by the learned counsel for the appellant that Shabanam Praveen has not been examined and the clothes of the victim has not been sent to the Forensic Science Laboratory for examination has no significance, as far these reasons the evidence of the victim cannot be brushed aside to disbelieve her. It is incumbent on the part of the Investigating Officer to collect the clothes, however, non-compliance of the duty imposed on the Investigating Officer cannot permit the defence to take benefit. However, it has been submitted that it is a case of love affairs. Further neither any suggestion has been given nor there is any material on record to suggest that it was a case of love affairs to go or decide or hold that there was element of consent and merely because there is no injury on the person of the victim it cannot be said that there was consent. 18. Having regard to the facts and circumstances of the case, I find that the prosecution has been able to prove the charges beyond all reasonable doubts and there is no infirmity in the judgment of conviction and order of sentence recorded by the trial court. Hence, I do not find any reason to interfere with the impugned judgment and the appeal is dismissed. Appeal dismissed.