Criminal Appeal (SJ) No.129 of 1998
With
Criminal Appeal (SJ) No. 189 of 1998
~~~~~~
Against the Judgment of conviction dated 19.03.1998 and order of
sentence dated 20.03.1998 passed by Sri Baikunth Nath Shahi, learned
Additional District and Sessions Judge-IInd, Nawadah in Sessions Trial
No. 116 of 1996 / 198 of 1996.
~~~~~~
Dipak Kumar @ Dilip, Son of Bishun Ram, resident of village -
Kadirganj, P. S. - Nawadah, District - Nawadah.
.... .... Appellant (Criminal Appeal (SJ) No. 129 of 1998).
~~~~~~
Shankar Sao, Son of Krishna Sao, resident of village - Quadirganj, P.
S. - Nawadah, in the district of Nawadah.
.... .... Appellant (Criminal Appeal (SJ) No. 189 of 1998).
Versus
The State Of Bihar
.... .... Respondents (In both the Appeals) ~~~~~~
Appearance :
(In CR. APP (SJ) No. 129 of 1998)
For the Appellant : Mr. Surendra Kishore Thakur, Advocate.
Mr. Pramod Kumar Verma, Advocate.
For the Respondents : Mr. Parmeshwar Mehta, A.P.P.
(In CR. APP (SJ) No. 189 of 1998)
For the Appellant : Mr. Shakil Ahmad Khan, Sr. Advocate.
Mr. H. A. Khan, Advocate.
Md. Mushtaq Alam, Advocate.
Mr. Jay Prakash Singh, Advocate.
Mr. Ram Pravesh Tiwari, Advocate.
Mr. Salendra Kumar Singh, Advocate.
For the Respondent : Mr. Parmeshwar Mehta, A.P.P.
~~~~~~
PRESENT
THE HON’BLE MR. JUSTICE GOPAL PRASAD
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GOPAL PRASAD, J. These two appeals have been heard together and
are being disposed of by the common judgment as both arise out of the
judgment and order dated 19.03.1998 passed by Sri Baikunth Nath Shahi,
learned Additional District and Sessions Judge-IInd, Nawadah in Sessions
Trial No. 116 of 1996 / 198 of 1996 arising out of Nawadah P. S. Case No.
207 of 1995, GR. No. 1284 of 1995 by which the appellant Dipak Kumar @
Dilip in Cr. Appeal (SJ) No. 129 of 1998 has been convicted under Section
366A of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for seven years. He has further been convicted under Section
376/109 of the Indian Penal Code and sentenced to undergo rigorous
imprisonment for seven years. However, it has been ordered that both the
sentences shall run concurrently. The appellant, namely, Shankar Sao in Cr.
Appeal (SJ) No. 189 of 1998 has been convicted under Section 376 of the
Indian Penal Code and sentenced to undergo rigorous imprisonment for ten
years and to pay a fine of Rs.50,000/- and in default of payment of fine to
undergo rigorous imprisonment for one year more and if the amount of fine
is paid by the appellant then Rs.40,000/- out of that be paid to the victim girl
for rehabilitation and stand in the society and has further been convicted
under Section 366A of the Indian Penal Code and sentenced to undergo
rigorous imprisonment for seven years. However, it has been ordered that
both the sentences shall run concurrently.
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2. The prosecution case, as alleged, in the written report is that the
informant Ishwari Mahto (P. W. 3) is the grandfather of the victim Madhuri
Kumari. On 12.10.1995 the victim Madhuri Kumari had gone for study to
Kusum Kanya High School, Kadirganj as usual along with her friend Radha
Kumari. The victim did not return till 5:00 P.M. to her home at village Harla.
The informant went to the house of Radha Kumari to enquire about Madhuri
Kumari. Radha Kumari disclosed hesitantly that Shankar Sao forcibly
abducted/kidnapped the victim Madhuri Kumari by dragging her in a tempo
at Shakri river. The informant went to the house of Krishna Sao the father of
Shankar Sao to inquire about Madhuri Kumari. It is alleged that Krishna Sao
and his wife, Umesh Sao and his wife and sister of Umesh Sao said that his
granddaughter will return after four days and if he made Hulla and spread the
news then the informant himself will loose his prestige. The informant
doubted the hand of these people in the kidnapping of victim by Shankar Sao.
3. The informant lodged the First Information Report on 14.10.1995.
During the investigation the victim produced before the police and she was
medically examined. Her statement was recorded under Section 164 of the
Cr.P.C. before the Judicial Magistrate. However, after investigation, the
charge-sheet was submitted for offence under Sections 376 and 366A of the
Indian Penal Code. The charge was framed under Sections 376 and 366A of
the Indian Penal Code against Shakar Sao and under Sections 376/109 and
366A of the Indian Penal Code against Dipak Kumar @ Dilip and others and
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trial proceeded. During the trial eight witnesses were examined on behalf of
the prosecution and five witnesses were examined on behalf of the defence.
4. P. Ws. 1, 2 and 4 have stated that they do not know anything about
the occurrence and have been declared hostile.
5. P. W. 6, Radha Kumari stated in her evidence that on the date of
occurrence she had gone to study alone and no such occurrence occurred.
This witness has also been declared hostile.
6. P. W. 3 is the informant. He in his evidence supported the prosecution
case in the written statement to the effect that his grand daughter, the victim
went to study as usual with Radha Kumari and did not return till 5:00 P.M.
Then he went to Radha Kumari who disclosed that Shankar Sao has
kidnapped the victim while returning and then he went to the father and
brother of Shankar Sao who stated that the girl will return after four days.
7. P. W. 5 is the victim. She in her evidence stated that while she was
returning from Coaching Centre, Kadirganj in way to her home at Harla on
12.10.1995, the date of occurrence when she reached at eastern corner of the
bridge at Shakri river Shankar Sao came there on a tempo and lifted her in the
tempo. When she tried to raise alarm her mouth was gagged and she was
threatened and thereafter Shankar Sao took away her to Nawadah. At
Nawadah a car was standing in which Dipak Kumar @ Dilip and Kapildeo
Goswami were sitting. She was again forced by Shankar Sao to sit in the car
and thereafter she was taken to Rajgir and kept her in Akash Hotel. Thereafter
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Shankar Sao asked Dipak Kumar and Kapildeo Goswami to go out of the
room. Dipak Kumar and Kapildeo Goswami went out then Shankar Sao raped
her several times in the Hotel for three days. In reply to a court question she
stated that two other accused did not rape her and whenever she tried to raise
alarm her mouth was closed by Shankar Sao. On 14.10.1995 Umesh Sao, the
elder brother of Shankar Sao came in the Hotel and said to take her to
Nawadah. She was taken to Nardigang on 14.10.1995 and stayed in the night
at Sasural of Umesh Sao. On 15.10.1995 she was taken to Nawadah.
Thereafter on 15.10.1995 she went to the police station where Daroga
recorded her statement. On 16.10.1995 she was taken to Nawadah hospital
where she was medically examined and her statement was recorded by the
Magistrate on 17.10.1995. She identified the accused persons in dock.
8. P. W. 7 is the doctor who assessed her age on the basis of radiological
examination as 15 to 16 years and opined that hymen was intact admitting
two fingers loosely suggestive of sexual intercourse but no injury over the
private parts. However, on the basis of pathological examination he opined
that no evidence of sexual intercourse has been committed within 24 to 48
hours.
9. P. W. 8 is the I.O.
10. The defence of the accused as transpired from the suggestion and
cross-examination and the evidence of the defence witness is that the accused
Krishna Sao the father of Shankar Sao had got land in village Harla and the
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informant Ishwari Mahto also belong to Harla and informant and his family
members were persuading Krishna Sao to transfer the land in their favour
otherwise they will teach him a lesson. The appellants have falsely been
implicated to grab the land of the accused Krishna Sao and Shankar Sao.
11. The defence witness deposed to the effect that they saw the verbal
altercation between Ishwari Mahto and Krishna Sao for transferring the land.
12. The trial court considering the evidence of the victim that she
supported the prosecution case about her kidnapping from Shakri river and
rape in the Akash Hotel by Shankar Sao and doctor found hymen was intact
admitting two fingers loosely suggestive of sexual intercourse convicted the
appellant Shankar Sao for the offence under Sections 366A and 376 of the
Indian Penal Code and further taking into consideration the evidence of the
victim P. W. 5 held that though the appellant Dipak Kumar @ Dilip was not a
party to rape but since involved in assisting the accused in kidnapping and
enticing away of the girl and abetting the accused no. 2 in commission of the
offence of rape has convicted and sentenced under Sections 376/ 109 and
366A of the Indian Penal Code.
13. Learned counsel for the appellants, however, contended that the
informant learnt from Radha Kumari about kidnapping of Madhuri Kumari by
Shankar Sao but Radha Kumari has not supported the prosecution case about
kidnapping and abetment of rape by the appellant Dipak Kumar @ Dilip.
There is evidence about kidnapping and rape except the evidence of
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prosecution and there is no corroboration of her evidence. It is further
contended that the evidence of the doctor is contradictory to prosecution case.
The further defence of the appellants is that the informant has vulture eye on
two and half Bighas of land of Krishna Sao the father of the appellant
Shankar Sao in village Harla and it is asserted that the false case has been
lodged to grab the said land. It has further been contended that the victim was
said to have been kidnapped from Kadirganj to Nawadah and then Nawadah
to Rajgir and was kept in hotel for two days and then taken from Rajgir to
Nardiganj, Nardiganj to Nawadah but during her stay as well as in transit
from one place to another she neither resisted nor raised any alarm nor taken
any step to inform the public or even tried to flee away hence she was
consenting party. The doctor found her age as 15-16 years. The learned
Additional Sessions Judge who recorded her statement has assessed her age
as 18 years. Hence, she was in a consenting age and consenting party to
sexual intercourse and has eloped at her own sweet will. It has further been
contended that the investigation is perfunctory as the I.O. neither went to
Akash Hotel to investigate nor went to Coaching Center nor seized the cloth
of the victim which was besmeared with semen nor inquired about the tempo
and car on which she was kidnapped. Hence there is no corroboration on any
material particular. It has further been contended that the defence was not
given the opportunity to cross-examine the prosecutrix and the conviction on
the basis of prosecutrix is not sustainable.
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14. Learned counsel for the State supports the order of conviction and
sentence and there is nothing to disbelieve the prosecution story.
15. In this case the victim Madhuri Kumari P. W. 5 has given her
version of the incidence in her deposition. From perusal of her evidence, it is
apparent that she supported the prosecution case about kidnapping by Shankar
Sao and having been taken to Rajgir and raped in Aakash hotel by Shankar
Sao and she was then taken back to Nawadah and left there where the police
recorded her statement. She was medically examined by the doctor at Sadar
Hospital. Her statement was recorded under Section 164 of the Cr.P.C. which
has been proved and marked as Ext. 2 in which she has also supported the
prosecution about her kidnapping on 12.10.1995 by Shankar Sao and taken to
Nawadah and from Nawadah she was again taken on car to Rajgir in which
accused Kapildeo Goswami and Dipak Kumar @ Dilip were sitting and she
was raped at Rajgir by Shankar Sao in Akash hotel. On 14.10.1995 Umesh
Sao came and asked then to take her to Nawada then she was brought by four
persons to Nawada and kept her at Nardiganj at the Sasural of Umesh Sao.
She stayed at Sasural in the night of 14.10.1995 Umesh Sao took her to
Nawada and left her then she went to police station.
16. P. W. 7 is the doctor who examined the victim on 16.10.1995 and
found hymen absent admitting two fingers loosely suggestive of intercourse
on injury over the private parts and hence it indicates about the sexual
intercourse supporting the prosecution case. Hence, taking into consideration
9
the evidence and reading the deposition of the victim shows that there is a
ring of truth and the conviction is not illegal merely because it proceeds on
uncorroborated evidence of the victim.
17. The criticism is that the evidence of the doctor and the statement
under Section 164 of the Cr. P. C. contradicts the prosecution case is devoid
of any merits. The doctor’s evidence is that hymen was intact admitting two
fingers loosely suggestive of sexual intercourse apparently a corroboration of
the prosecution case suggest a sexual intercourse. However, the doctor opined
that there is no evidence of intercourse within 24 to 48 hours. Taking into
consideration the sequence of event the occurrence took place on 12.10.1995
and the victim was taken to Rajgir and there she was raped on 12.10.1995 and
was kept at Rajgir on 12th, 13th and 14.10.1995. The victim has stated that she
was raped several times at Rajgir. However, the prosecutrix in her evidence
deposed that Umesh Sao came in hotel on 14.10.1995 and asked to leave the
girl and then the victim girl was taken on 14.10.1995 itself to Nardiganj and
they stayed at Sasural of Umesh Sao and then on 15.05.1995 she brought and
was left at Nawadah. She was medically examined on 16.05.1995. Hence,
apparently there was no rape on 14th and 15th so the doctor’s opinion that no
evidence of intercourse within 24 to 48 hours confirms the prosecution case
and defence cannot take any advantage of it. The statement under Section 164
of the Cr. P. C. is not contradictory. No has been drawn to the victim to any
part of the statement recorded under Section 164 Cr. P. C to give opportunity
10
to explain or record contradiction. From perusal of the statement under
Section 164 of the Cr. P. C. there is nothing contradictory rather it supports
the prosecution case. The name of the accused persons find mention in the
statement under Section 164 of the Cr. P. C. and role attributed. The name of
Shankar Sao find mention with allegation of having kidnapped the victim
from Shakri river and taken her to Nawadah, Nawadah to Rajgir where she
was raped and hence there is no merit in submission that the report of the
doctor or statement under Section 164 of the Cr. P. C are contradictory to the
prosecution case.
18. However, it has been asserted that the accused persons did not get
the opportunity to cross-examine the victim. From perusal of the records,
order dated 24.04.1997, passed in S. T. No. 198 of 1996, it appears that the
victim was examined on 24.04.1997 and the order-sheet mentions that the
prosecution witness Radha Kumari and Madhuri Kumari were produced in
police escort in pursuance of the letter no. 98 dated 11.04.1997 written to the
Superintendent of Police, Nawadah accompanied with warrant of arrest non-
bailable requesting to produce in proper escort as hurdle was reportedly being
created in their appearance. The accused also produced and the learned
counsel for the accused Param Ram Singh participated in recording the
evidence of P. W. 5 Madhuri Kumari the victim but after examination in chief
the defence lawyer filed a petition for transfer of the case on ground that the
informant is openly saying that he has won and hence refused to cross-
11
examine. However, the trial court taken it as a denial of the cross-examination
by the court below and considered it as a strategy of the accused to gain over
the victim or to otherwise influence the victim which required to be frustrated
and hence rejected the petition to transfer as well as adjournment of evidence.
However, refusal to cross-examine the witness was treated to be declined to
cross-examine and the witness was released.
19. Criminal Miscellaneous filed before this Court against the order of
learned Additional Sessions Judge was rejected. Thereafter case proceeded
and a petition filed on 28.06.1997 for permission to cross-examine the doctor
and the victim. However, permission to cross-examine the doctor was granted
but the permission to cross-examine the victim was refused in view of the fact
that the Hon’ble Court has not given any such indication hence having regard
to the fact that the appellants refused to cross-examine in unscrupulous
manner having chosen not to cross-examine. Now he cannot be allowed to be
benefited for his own mistake and evil design to win over the victim by hooks
and crooks.
20. Further criticism is that the evidence of the victim is not corroborated
by any material particular and did not pass through the test of cross-
examination. Further the victim has been tutored to lodge a false case in view
of the fact that the informant has vulture eye on two and half Bighas of land
of Krishna Sao the father of Shankar Sao and so the case has been filed to
grab the land. However, it is well settled that if the evidence of the witness is
12
found above board, reliable and trustworthy there is no need for any
corroboration and refusal to act on the testimony of victim of sexual assault in
the absence of corroboration is adding insult to injury.
21. To analyze the argument in support of need to corroboration and
absence of a relentless and remorse cross-examination is required to be tested
in the light of probabilities in context of the values in Indian society. It is
apparent that in Indian society a girl aged about 14-15 years will hardly admit
rape due to the social stigma attached as it reflects her chastity which is most
valuable which distinguishes her status in society jeopardizing the status of
her entire family. However, it must be realized that having regard to
prevailing morse and values of the Indian society, it is unconceivable that a
girl of 14-15 years of age would invent a false story of sexual assault. An
Indian girl at this stage age of 15-16 years is well aware about her reputation
and consequence of admitting rape and is also aware of the consequence of
jeopardizing the reputation of the entire family if the story is spread over in
the society and she knows the consequence getting a match or life partner or
getting her marriage in a respectable and acceptable family. Further it is
unimaginable that a grand father of the victim will lodge a case and will tutor
the minor daughter or an adolescent daughter aged 17-18 years of age to
invent such story or to support such a story to grab the land and wreak
vengeance. They will not do such a thing promoting or tutoring an adolescent
grand daughter for the simple reason that it will not only bring down the
13
prestige of the grandfather but the prestige of the entire family shall be put to
jeopardize and they will be loosing more than whatever the value of the land
and they will loose the status in society and the future prospect of the victim
in the life. The grand parents also expected to be concerned of the traumatic
effects on the psychology of the child having disastrous effect on their
growing age as the victim or the granddaughter will itself suffer unimazingly
to such an extent that it will be more injurious than to gain and hence the
suggestion that the appellants have been roped falsely at the instance of the
grandfather or to grab the land is devoid of any merit and further the
submission that the victim has been tutored to depose falsely also false to
ground is not acceptable to Indian context nor an evidence can be rejected
merely on ground that the victim was tutored or there is any corroboration.
This view is supported in decision reported in AIR 1983 SC 753.
22. Further criticism and assertion is that the victim was aged about
15-16 years old as it has come in the evidence of the doctor on the basis of
radiological test her age to be 15-16 years and there is margin of two years of
age and further the age of the victim has been assessed by Presiding Officer
as 18 years and hence the victim was in a consenting age as sixthly of Section
375 of the Indian Penal Code provides that the victim above 16 years is
capable to give consent for sexual intercourse. Hence, the victim was a
consenting party as the victim has not fled away or resisted or reported during
the captivity while she was taken from Kadirganj to Nawadah, Nawadah to
14
Rajgir, Rajgir to Nardiganj and Nardiganj to Nawadah. However, the victim
in her evidence in court as well as in her statement under Section 164 of the
Cr. P. C has specifically stated that when she was kidnapped by force by
Shankar Sao she raised an alarm or tried to raise an alarm but her mouth was
gagged and she was threatened. From the evidence, it is apparent that all
along through her captivity she was surrounded by Shankar Sao and others
had no opportunity either to flee away or to resist and she has reported that
she tried to raise alarm but her mouth was shut. There is nothing in evidence
that she was free to act on her own wish or she got any opportunity to run
away and hence the criticism that she did not act in a manner or to take any
steps to resist the kidnapping and rape during her captivity is devoid of any
merit. However, it is pertinent to mention that how the victim in adverse
situation will behave is not dependent on the wish of the accused but how a
person behaves in an adverse situation vary from man to man. Some persons
may got nervous in adverse situation and loose the power to resist. Some
persons may resist to some extent and some may be bold enough to fight even
putting his life on threat even if the miscreants are armed with deadly
weapon. However, merely because a person did not give passive resistance it
cannot mean his helpless resignation on face of inevitable compulsion cannot
be deemed as consent and hence the only conclusion relevant is that she was
kidnapped and kept under barrier and was raped against her will by the
appellant Shankar Sao.
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23. Hence, having regard to the facts and circumstances since there is
clear and unequivocal evidence against Shankar Sao having kidnapped the
victim from Shakri river and have raped her at Rajgir and hence the offence
under Sections 366A and 376 of the Indian Penal Code is made out.
24. However, so far the appellant Dipak Kumar @ Dilip is concerned
the only evidence against him is that he was sealed in the car at Nawadah by
which the victim was brought in car. There is evidence that he was with the
victim from Nawada to Rajgir and then back to Nawada. However, the
ingredient of abetment is concerned it is either proved that the person
instigated or has conspired or intended to aid the commission of offence.
However, there is no evidence that Dipak Kumar @ Dilip instigated nor there
is evidence that he prior to the offence he conspired nor he was even present
at the time when Shankar Sao kidnapped the victim at Kadirganj. However,
so far intentional aid is concerned the only evidence is that the appellant had
mere association. However, there is no evidence that the appellant Dipak
Kumar @ Dilip had any intention either adding or in commission of offence
of rape be committed. However, mere presence at Rajgir cannot amount to
intentional aid for rape unless it is proved that Dipak Kumar @ Dilip or the
person hold some position to influence or direct encouragement or having
joined a conspiracy for the offence under Section 376/109 of the Indian Penal
Code hence conviction under Section 376/109 of the Indian Penal Code is
concerned the appellant Dipak Kumar @ Dilip is entitled to get a benefit of
16
doubt and conviction under Section 376/109 of the Indian Penal Code is set
aside. However, the prosecution proved that Dipak Kumar @ Dilip followed
from Nawada in car and hence conviction under Section 366A is maintained.
Hence, Criminal Appeal (SJ) No. 129 of 1998 is allowed in part.
25. Learned counsel for the appellants, however, contended that there is
a compromise petition filed and having regard to the fact that the occurrence
is of the year 1995 hence a lenient view may be taken.
26. However, taking into consideration the fact that the victim was
kidnapped by Shankar Sao at Kadirganj and Dipak Kumar @ Dilip only
joined in Nawada and hence the ends of justice shall meet by sentencing
Dipak Kumar @ Dilip for the period already undergone during the
investigation as well as after conviction for the offence under Section 366A of
the Indian Penal Code. However, so far the accused Shankar Sao in Cr.
Appeal (SJ) No. 189 of 1998 is concerned his conviction under Section 376
and 366 is maintained and however, the sentence under Section 376 of the
Indian Penal Code is reduced 10 years to 7 years and hence the appeal is
dismissed with modification in sentence.
(Gopal Prasad, J.)
Patna High Court, Patna.
Dated, the 30th September, 2011.
N.A.F.R./Kundan.