Shankar Sao vs State Of Bihar on 30 September, 2011

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Patna High Court
Shankar Sao vs State Of Bihar on 30 September, 2011
Author: Gopal Prasad
            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
2

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
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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.

15

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.

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