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2018 DIGILAW 12 (PAT)

Pintu Yadav S/o Mithilesh Yadav v. State of Bihar

2018-01-03

ADITYA KUMAR TRIVEDI

body2018
JUDGMENT : 1. Appellant Pintu Yadav has been found guilty for an offence punishable under Section 376(1) of the I.P.C. and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs. 20,000/- and in default thereof, to undergo S.I. for three months, additionally, under Section 506 of the I.P.C. and sentenced to undergo R.I. for two years with a further direction to run the sentences concurrently vide judgment of conviction dated 04.02.2015 and order of sentence dated 09.02.2015 passed by the Adhoc Additional Sessions Judge-1st, Jehanabad in Sessions Trial No. 100 of 2013 and 66 of 2014. 2. PW-3, victim (name withheld) gave her fard-bayan on 24.10.2012 at about 8.00 p.m. at her residence lying at village- Kaitha Lodipur before Officer-in-Charge, Kurtha (Manikpur O.P.) alleging inter alia that on the same day at about 7.00 p.m. her sister-in-law (Nanad), Jhunki Devi instructed her to bring a hair oil from a shop, whereupon while she was going to the shop of Pintu Yadav, son of Mithilesh Yadav, she found him following her. When she reached near a chunk of land belonging to Kamlesh Yadav, which is fenced by a wall, Pintu Yadav caught hold her, lifted her inside the premises. She tried to raise an alarm, whereupon he gagged her mouth. She entered into scuffle in order to save herself and during course thereof, she fell down as a result of which, she sustained injury over her head as well as hand. Even then, Pintu Yadav succeeded in committing rape upon her. During course of fleeing, he threatened to face dire consequence. Then thereafter, she rushed to her house and disclosed the event. On the basis of the aforesaid fard-bayan, Arwal Mahila P. S. Case No. 36 of 2012 was registered, whereupon investigation commenced and after concluding the same, chargesheet was submitted facilitating the trial in a manner, subject matter of instant appeal. 3. Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, it has also been asserted that on account of land dispute, this false case has been instituted against him. However, neither ocular nor documentary evidence has been adduced. 4. In order to substantiate its case, prosecution had examined altogether nine PWs. Furthermore, it has also been asserted that on account of land dispute, this false case has been instituted against him. However, neither ocular nor documentary evidence has been adduced. 4. In order to substantiate its case, prosecution had examined altogether nine PWs. out of whom, PW-1, Badhi Yadav, PW-2, Ranjan Kumar, PW-3, victim, PW-4, Santosh Kumar, PW-5, Suraj Kumar, PW-6 Dr. Mahendra Sharma, PW-7, Dr. Ranju, PW-8, Gajendra Kumar and PW-9, Dr. Vijay Kumar Sinha as well as had also exhibited the documents viz. Exhibit-1, injury report, Exhibit-2 series, signature of relevant witnesses over the fard-bayan, formal F.I.R. 5. Learned counsel for the appellant has submitted that considering the material available on the record, he would like to confine his submission in compact way in order to justify that the finding recorded by the learned lower Court is not at all maintainable. In order to substantiate the same, it has been submitted that doctor (PW-6), PW-7 and PW-9 being members of the Medical Board have occasioned to examine the victim and had not found sign of rape. Though injuries were there. Furthermore, it has also been submitted that PW-1, PW-2, PW-4 and PW-5 are not an eye witness to occurrence rather they came to know about the occurrence on a disclosure made by the victim (PW-3). PW-3 is the victim. Though during course of recording of fard-bayan, she had alleged that she was ravished at the end of the appellant, which during course of evidence, she insisted upon during her examination-in-chief, but during course of cross-examination, she had categorically stated that only her hands were caught hold by the appellant on account of which, there was push and pull and during course thereof, she had fallen down as a result of which, sustained injuries. She raised alarm, whereupon accused fled away and that being so, it would be a case under Section 354 of the I.P.C. and for that, period having undergone by the appellant right from 26.10.2012 to 03.04.2015, covering approximately two and half years will be sufficient to render justice. 6. She raised alarm, whereupon accused fled away and that being so, it would be a case under Section 354 of the I.P.C. and for that, period having undergone by the appellant right from 26.10.2012 to 03.04.2015, covering approximately two and half years will be sufficient to render justice. 6. On the other hand, learned Additional Public Prosecutor resisted the submission and submitted that though during course of cross-examination, the victim had stated like so, but being a rustic lady, the same should not be considered in a way as suggested by the learned counsel for the appellant in the background of the fact that during course of her examination-in-chief, she had corroborated the factum of rape having at the end of appellant. 7. Gone through the record, the victim was examined by the Medical Board on 26.10.2012 and on account thereof, in natural phenomenon, there would not be presence of spermatozoa. However, injuries were found over the person of the victim in consonance with the allegation relating to wound over her head as well as over her finger. Furthermore, when the evidence of witnesses have been gone through, learned counsel for the appellant is right in suggesting that PW-1, PW-2, PW-4 and PW-5 are not an eye witness to occurrence rather they got information on a disclosure made by the victim (PW-3). PW-3 is the victim, during her examination-in-chief, she had stated that she had made her statement before the police in presence of her husband and others and then thereafter, put her thumb impression thereupon. She had further stated that occurrence is about two years ago. It was evening hour. She was going to purchase cold oil (thanda tail). When she had reached at the corner, Pintu Yadav caught hold her, dragged her at Khand and took her prestige. When she raised alarm, she was threatened. At the time of occurrence, she was gagged. She sustained injuries during course of push and pull. On an alarm raised by her, so many persons (named) came whom, she disclosed that after gagging her mouth, she was outraged. Police had taken her to medical examination, identified the accused. During cross- examination at Para-7, she had stated that Khand was duly fenced, but was opened. The same happens to be by the side of the road, but at that very moment, none of the villagers were going. Police had taken her to medical examination, identified the accused. During cross- examination at Para-7, she had stated that Khand was duly fenced, but was opened. The same happens to be by the side of the road, but at that very moment, none of the villagers were going. At Para-8, she had stated that as soon as her hand was caught hold by the accused, she raised alarm. Subsequently thereof, she had fallen down as a result of which, she sustained injury. In Para-9, she had stated that only to that extent an occurrence took place with her. 8. Considering the evidence on record as referred hereinabove, it has become crystal clear that whatever she had deposed during course of examination-in-chief that she was outraged that was in a way as indicated under Para-8 and 9 of her cross-examination and certainly the same did not satisfy the ingredients of rape as laid down under Section 375 of the I.P.C. rather the aforesaid activity is found duly covered under Section 354 of the I.P.C. whereupon the finding recorded by the learned lower Court is modified as the same is found permissible in terms of Section 222 of the Cr.P.C. being a minor offence of Section 376 of the I.P.C. In likewise manner, the sentence is also reduced and being under custody for two and half years, is found sufficient to saturate, whereupon sentence is reduced as period already undergone retaining the fine amount. In case, the fine amount is deposited, half be given to the victim on proper identification. In case of default, the appellant will have to undergo imprisonment for six months additionally. The fine must be deposited within eight weeks till then the privilege being availed by the appellant by way of bail will continue. In case of non-deposit of fine within the aforesaid stipulated period, the learned lower Court will proceed against the appellant in accordance with law.