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2017 DIGILAW 1291 (JHR)

Bihari Pradhan v. State Of Jharkhand

2017-07-27

RONGON MUKHOPADHYAY

body2017
JUDGMENT Rongon Mukhopadhyay, J. – Heard Mr. Triveni Mishra, learned counsel, appearing for the petitioner and Mr. Shekhar Sinha, learned A.P.P. for the State. 2. This application is directed against the judgment dated 13.04.2004 passed in Criminal Appeal No. 40 of 2001 by learned 1st Additional Sessions Judge, Gumla, whereby and where-under, the judgment of conviction and the order of sentence dated 11.07.2001 passed by learned Assistant Sessions Judge, Gumla, in S.T. No. 240 of 1997, convicting the petitioner for the offence punishable under section 376 I.P.C. and sentencing him to undergo R.I. for seven years, has been affirmed. 3. It has been stated by learned counsel for the petitioner that there are vital contradictions in the evidence of the witnesses which fact has not been taken note by either of the courts below. It has further been argued that the Doctor who had examined the victim lady and the I.O. who investigated the case have not been examined by the prosecution and there is no eye witness of the occurrence except the informant. Learned counsel furthering his argument has submitted that in the alternative if this Court is not inclined to interfere with the impugned judgment of conviction, the period of sentence be modified, considering the fact that the petitioner is facing rigours of criminal case since 1997 and had remained in custody for more than 5 years. 4. Learned A.P.P. has opposed the prayer of the petitioner and has submitted that the medical report has been marked as Ext. 3 and in view of the statement of the prosecutrix the non-examination of the I.O. as well as the medical officer does not prove the falsity of the prosecution case. 5. The prosecution case as it appears from the F.I.R. of the informant (PW 5) is to the effect that while she had gone to sell Datun and when she reached near the place Jora Mahwa, the petitioner had come and asked her to stop. It is alleged that when the informant did not stop, the petitioner had caught hold of her and dragged towards a mango tree in a lonely place and after gagging her mouth committed rape upon her. The informant had tried to raise alarm and told the accused that she was going to lodge a case and at this the accused taken her to his house and locked her in a room. The informant had tried to raise alarm and told the accused that she was going to lodge a case and at this the accused taken her to his house and locked her in a room. It has been alleged that subsequently the mother of the victim and some neighbours had assembled near the house of the petitioner and they were also threatened by the petitioner. Subsequently, on the intervention of the neighbours, the room was unlocked. The prosecutrix was sent to the police, but since no case was instituted, a complaint was lodged before the Court of learned CJM, who had sent it to the police under section 156(3) Cr.P.C., 1973 which led to institution of Raidih P.S. Case No. 06 of 1997. Investigation resulted in submission of charge-sheet and after the cognizance was taken, the case was committed to the Court of Sessions, where charges were framed and trial proceeded. 6. In course of trial 6 witnesses were examined on behalf of the prosecution. P.W. 1 is one Somra Pradhan. He has stated that had heard about the petitioner having locked the informant in a room of his house. This witness has stated that the petitioner and the informant are cousins and further deposed that he came to know that when the informant had gone to sell Datun, the petitioner committed rape upon her. P.W. 2 is the mother of the prosecutrix who had stated although she did not see the alleged occurrence but the victim had narrated the entire story of having rape been committed by the petitioner and the fact of her being locked inside a room. She has further stated that in the evening the room was unlocked and thereafter the victim narrated her entire story. P.W. 3 is Budhain Pradhan, who did not support the prosecution case and she was declared hostile by the prosecution. P.W. 4 Rishimuni Devi is the sister of the informant who has stated that she had come to know about the alleged occurrence from her sister. This witness has stated that the petitioner wanted to marry the informant which she had denied and which led to the act of rape committed by the petitioner upon the informant. P.W. 4 Rishimuni Devi is the sister of the informant who has stated that she had come to know about the alleged occurrence from her sister. This witness has stated that the petitioner wanted to marry the informant which she had denied and which led to the act of rape committed by the petitioner upon the informant. P.W. 5 Pairo Devi is the prosecutrix who has stated that when she was going for selling Datun, the petitioner had come up from behind and thereafter she was pushed to the ground and was sexually abused. This witness has further stated that she raised alarm but no one arrived and subsequently the petitioner dragged her to his house and confined her in a room where she remained till evening when her mother and other neighbours had come and rescued her. She has further stated that the petitioner happens to be her cousin brother and only because the informant wanted to marry another person which was not liked by the petitioner, she was subjected to rape. P.W. 6 is a formal witness. 7. Admittedly the Investigating Officer as well as the Medical Officer of the case was not examined and the entire case of the prosecution rests upon P.W. 5, victim lady. She has in her evidence very categorically disclosed about her forcibly been taken away to a lonely place, where she was subjected to rape by the petitioner and thereafter she was confined in a room. P.W. 2 had stated that the victim had disclosed about the occurrence and in fact she along with other neighbours had gone to the house of the petitioner and had rescued the informant, who was confined by the petitioner. P.W. 4 is the sister of the victim lady who had also stated about the disclosure made by the victim lady to her about the rape committed by the petitioner. Although the Investigating Officer was not examined, but the place of occurrence has fully been proved by P.W. 5 as well as by P.W.2, which was the house of the petitioner, where the prosecutrix was kept confined. So far as the non-examination of the Doctor is concerned, the same is not fatal to the case of the prosecution in view of Ext. 3, the medical report, in which it has categorically been stated that the informant was subjected to rape. So far as the non-examination of the Doctor is concerned, the same is not fatal to the case of the prosecution in view of Ext. 3, the medical report, in which it has categorically been stated that the informant was subjected to rape. The facts which have been disclosed by the witnesses and supported by the medical evidence do point to the guilt of the petitioner in committing rape upon the informant and thereafter confining her in a room. 8. These facts have properly been appreciated by the learned trial court while convicting the petitioner and which was rightly affirmed in appeal. There being no reason to conclude otherwise, the judgment of conviction is hereby sustained. 9. With respect to the sentence imposed upon the petitioner, it has been argued by learned counsel for the petitioner that the petitioner has been facing rigours of the prosecution case since 1997 and he has remained in custody for more than five years. The submission of learned counsel for the petitioner for reduction in the sentence imposed upon the petitioner is not being considered by this Court in view of the fact that the informant has been subjected to rape by the petitioner and the informant also happens to be cousin sister of the petitioner. The crime which has been committed by the petitioner does not deserve leniency, as it is a crime against the society and is to be deprecated and in such circumstances, I am not inclined to interfere with the sentence imposed upon the petitioner. 10. As a consequence to the discussions made herein above, this application fails and the same is accordingly dismissed.