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2014 DIGILAW 1203 (PAT)

Sunil Kumar Choudhary v. State Of Bihar

2014-12-08

GOPAL PRASAD

body2014
JUDGMENT : Gopal Prasad, J. Heard the learned counsel for the appellant and the State. 2. The appellant has been convicted under Sections 366A as well as 376 of the Penal Code and has been sentenced to undergo rigorous imprisonment for ten years each with a fine of rupees ten thousand and in default to pay fine, further, sentenced to undergo simple imprisonment for three months each. 3. The prosecution case, as alleged in the first information report by Krishna Choudhary, P.W. 4, the father of the victim, that on 14.09.2011 his daughter, Anjali Kumari (victim) went to school at 10.00 a.m., but, did not return in the evening, then, he made out a search and when he failed to search her out, got recorded a sanha in the evening at Danapur Police Station regarding her missing. Even after recording sanha he remained making out search heather and thither. On 15.09.2011 in the evening he got information that his daughter, Anjali Kumari, is lying unconscious near Chamarichak School. On this information the informant, along with his wife, Tunni Devi, P.W. 2 and his relative Jang Bahadur Choudhary, P.W. 1, went to Chamarichak. At Chamarichak they saw the victim, Anjali Kumari, lying unconscious at the Ota of Devi Chaura, where he found some female members of the village and they disclosed that the victim was lying unconscious near the School and they brought her here. Several attempts were made for bring her consciousness, but, in vain, then, the informant brought the victim to Danapur Hospital where she was treated, but, the victim has not got consciousness the doctor referred to the Patna Medical College Hospital, Patna, for treatment where the treatment of the victim has going on in Intensive Care Unit and till the filing of the written report, the victim was unconscious. The, further, case is that Anjali Kumari was kidnapped by one Sunil Kumar Choudhary about one week back as he has enticed her away, but, the victim returned on that day. Sunil Kumar Choudhary had threatened that he will destroy her and suspicion has been raised that Sunil Kumar Choudhary had enticed his daughter and kidnapped here along with 2-3 associates and have dome something wrong with her by which the victim got unconscious. Sunil Kumar Choudhary had threatened that he will destroy her and suspicion has been raised that Sunil Kumar Choudhary had enticed his daughter and kidnapped here along with 2-3 associates and have dome something wrong with her by which the victim got unconscious. On the written report, an endorsement was made for recording the first information report and consequently the first information report lodged on 16.09.2011 at 18.15 (06.15) p.m. After lodging of the first information report, the investigation proceeded and during the investigation the victim gained consciousness and was examined by the doctor on 15.09.2011 and statement of the victim under Section 164 of the Criminal Procedure Code has been recorded on 28.11.2011. The police after investigation submitted the charge sheet on which cognizance taken, case committed to the Court of sessions and, thereafter, framing of the charge, under Sections 366A and 376 of the Penal Code, the trial proceeded and the appellant has been convicted and sentenced, as mentioned above. 4. During the trial eleven witnesses were examined by the prosecution and the documentary evidence adduced are Exhibits 1 to 6/1, which are written report, petition of Krishna Choudhary, Statement of Anajli Kumar under Section 164 of the Criminal Procedure Code, confessional statement of Sunil Kumar Choudhary, accused, formal first information report, endorsement on written report, injury report and supplementary injury report. 5. The learned counsel for the appellant has challenged the order of conviction and sentence recorded by the trial Court on the ground that there is no eye witness to the occurrence and except the evidence of the victim, there is no evidence either kidnapping or rape and the victim herself stated that the rape may have been committed as after the kidnapping she become unconscious and gained consciousness after 4-5 days of the occurrence she got consciousness and when she went to urinate, it appeared that she has been raped by accused and the medical evidence also not specific that the rape has been committed though P.W. 3 has stated about the rape, but, at the same time she is also saying that she was during period, hence, she is also not sure. It has, further, been contended that there is no corroboration either on kidnapping or on rape, hence, the order of conviction and sentence is not sustainable. It has, further, been contended that there is no corroboration either on kidnapping or on rape, hence, the order of conviction and sentence is not sustainable. It has, further, been contended that since 18.09.2011 the appellant is continuously in jail, so taking into consideration the allegation and nature of allegation a lenient view is required to be taken against the appellant. 6. However, the prosecution case is that the victim was found missing as she did not return from school on 14.09.2011, the matter was reported to the police and sanha entry was made and on the very next day (15.09.2011) in the evening, it was learnt that the victim is lying senseless near Chamarichak School and then the informant along with his wife and relative, P.Ws. 2 and 11, went to Chamarichak and found his daughter unconscious though the attempt was made to bring her to consciousness, but, she did not gain consciousness and has been taken to Danapur Hospital where, when, she did not gain consciousness, she was referred to the Patna Medical College Hospital, Patna, and was in the treatment in intensive care unit and the first information report was lodged. 7. However, the concerned witness is P.W. 4, the informant, who has supported the prosecution case in the first information report that her daughter did not return from school on 14.09.2011, then, he informed about her missing and a sanha entry was made and on the next day P.W. 4 was informed that a person came and disclosed that a girl lying unconscious, then, the informant along with his wife and a relative went to Chamarichak and there they found the victim in unconscious state and froth coming out of her mouth, the victim was taken to Danapur Hospital and from there referred to Patna Medical College Hospital. He has, further, stated that on 18.09.2011 she gained consciousness and, then, she disclosed that while she was going to school and when reached at Hathikhana turning, there Sunil Kumar Choudhary abducted her by force in a tempo and put a tablet in her mouth and pressed her mouth and, thereafter, she got consciousness at Hospital. 8. P.Ws. He has, further, stated that on 18.09.2011 she gained consciousness and, then, she disclosed that while she was going to school and when reached at Hathikhana turning, there Sunil Kumar Choudhary abducted her by force in a tempo and put a tablet in her mouth and pressed her mouth and, thereafter, she got consciousness at Hospital. 8. P.Ws. 1 and 2 supported the prosecution case regarding the missing of the girl and her recovery and they have been reported about the victim in unconscious state through Kusum Kumari, P.W. 3 and, thereafter, they went there took the victim to Hospital and victim disclosed on her gaining consciousness that she has been kidnapped by appellant and a tablet was put in her mouth by which she got unconscious. 9. P.W. 5 is the victim and she has also supported the prosecution case that she was kidnapped by Sunil Kumar Choudhary while she was going to school and there he put tablet in her mouth and then she got unconscious and when she get consciousness, she went to urinate and she found that there is pain her body and has been raped. She has, further, stated that after the occurrence she returned to her house on 23.09.2011 and her statement recorded on 28.09.2011 under Section 164 of the Criminal Procedure Code, which has been marked as Exhibit 3 and her medical examination report have been marked as 6 and 6/1. However, in her statement she has stated that after having been kidnapped, just after the occurrence, the tablet was put in her mouth and so she became unconscious and gained consciousness in Patna Medical College Hospital and after gaining consciousness she went for urination and then it appeared to her that she has been raped and there was mark on the panty and she believed that Sunil Kumar Choudhary and two other unknown persons raped her after her being unconscious or administering tablet. However, in the medical examination, the age of the victim assessed as 14 to 17 years and the doctor P.W. 7, who examined the victim on the next day of occurrence, opined that it is difficult to say whether rape has been committed or not, hence, from the doctor’s report it is not positive that the rape has been committed. P.W. 6 is the investigating officer and P.Ws. P.W. 6 is the investigating officer and P.Ws. 9 to 11 are the witnesses who have not supported the prosecution case, hence, declared to hostile having not supported the prosecution case. 10. Hence, from the evidence, it is apparent that only evidence regarding the kidnapping and rape is of the victim, except that there is neither any eye witness to the occurrence nor any witness to corroborate it. How she came to Chamarichak after having been kidnapped from Hathikhana at the gate of Central School, Janakdhari Road, and where she was taken from that place has not been mentioned and there is no witness to the occurrence either at the gate of Central School nor there is any witness that when she reached Chamarichak and how she was taken there. It is disclosed that the victim was found at Chamarichak, but, none of the witnesses of the locality has come to support the fact. However, P.Ws. 1, 2 and 3 supported the prosecution case that they learnt that the victim lying unconscious and P.Ws. 1, 2, 3 and 4 went to Chamarichak where the victim was lying unconscious and from there she was taken to Danapur Hospital and then to Patna Medical College Hospital. However, except the evidence of P.W. 5, the victim, that she was kidnapped by the appellant and his two other associates, but, there is no corroborating evidence regarding her kidnapping from the place of occurrence. However, the story and prosecution case about the rape is concerned, there is no eye witness to the rape and the victim herself has stated in her statement that after the kidnapping she was administered tablet in her mouth and, thereafter, she become unconscious on 14.09.2011 and she gained consciousness after 4-5 days and her statement recorded 14 days of the occurrence, i.e., on 28.09.2011 and in that statement also she has stated that on gaining consciousness when she went to urinate, then, it appeared to her that rape has been committed, hence, from her evidence, itself, it is apparent that she is not sure whether rape has been committed or not nor the medical evidence is clear and a doubt has been created whether the rape has been committed or not as there is no specific evidence except suspicion, hence, it can not be inferred that the appellant and others have committed raped. However, there is great difference between may be proved and must be proved and this distance is to be traveled by cogent, reliable and unimpeachable evidence. However, having regard to the nature of the evidence, it is apparent that evidence adduced regarding the rape can not be said to be reliable and unimpeachable to Court that the victim was raped. 11. Hence, the order of conviction and sentence regarding office under Section 376 of the Penal Code is set aside as the lower Court misdirected itself in holding the appellant guilty on the basis of the evidence which could not be said to be reliable, trustworthy and worthy of confidence to infer that victim was raped. 12. So far the evidence of kidnapping is concerned, though the victim stated in her statement that while she was going to her school, she was kidnapped by the appellant by force, however, it is true that there is no corroboration, but, it can not be said that without corroboration the order of conviction can not be sustained. However, the evidence of the victim is found to be reliable, trustworthy and worthy of confidence, then, the appellant can be convicted on that score. However, having regard to the fact that the victim stated that she was kidnapped and a tablet was put in mouth by which she get unconscious and on the very next day the victim was found in unconscious stated and P.Ws. 1, 2 and 3 stated how she was found in unconscious state at Chamarichak and was, then, hospitalized and the doctor’s report also suggests that she has been hospitalized where she gained consciousness after 4-5 days. Hence, having regard to the fact the evidence of the victim is worth reliable, hence, the order the order of conviction recorded under section 366A of the Penal Code is sustainable. So far taking into consideration the sentence under Section 366A of the Penal Code is concerned, it is maximum up to ten years, however, having regard to the nature of allegation and evidence and the facts and circumstances, taking into consideration the age of the appellant at the time of occurrence, the sentence would be harsh, the ends of justice shall be met by convicting the appellant for the period already undergone with fine of rupees ten thousand. 13. 13. The appellant is directed to be released forthwith if not wanted in any other case, subject to the condition of not paying fine of rupees ten thousand, the appellant has, further, to undergo rigorous imprisonment for one year. 14. With these modifications in sentences, this appeal is allowed in part.