{"id":115474,"date":"2004-03-24T00:00:00","date_gmt":"2004-03-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhikhari-mahato-vs-state-of-bihar-on-24-march-2004"},"modified":"2017-02-20T21:48:18","modified_gmt":"2017-02-20T16:18:18","slug":"bhikhari-mahato-vs-state-of-bihar-on-24-march-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhikhari-mahato-vs-state-of-bihar-on-24-march-2004","title":{"rendered":"Bhikhari Mahato vs State Of Bihar on 24 March, 2004"},"content":{"rendered":"<div class=\"docsource_main\">Jharkhand High Court<\/div>\n<div class=\"doc_title\">Bhikhari Mahato vs State Of Bihar on 24 March, 2004<\/div>\n<div class=\"doc_citations\">Equivalent citations: 2005 (2) JCR 619 Jhr<\/div>\n<div class=\"doc_author\">Author: H S Prasad<\/div>\n<div class=\"doc_bench\">Bench: H S Prasad<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>Hari Shankar Prasad, J.<\/p>\n<p>1.  This appeal is directed against the judgment of conviction and order of sentence dated 27.11.1999 passed in Sessions Trial No. 70 of 1993, whereby and whereunder the learned Additional Sessions Judge Seraikella held the sole appellant guilty under Section 376, IPC and convicted and sentenced him to undergo RI for five years.\n<\/p>\n<p>2. The prosecution case in brief is that Shanti Kumari lodged an FIR with Rajnagar P.S. on 14.5.1992 stating therein that on 6.3.1992, after taking meal, she was sleeping in her house in the night with her sister Panu Kumari and niece Rango Kumari and door was not locked or bolted and a lantern was burning in the room and in the night the appellant entered into the room after pushing has door and closed her mouth, threw her on the ground and threatened her that if she raised alarm, she would be killed and removed her Sari and Shhaya and committed rape on her. She gave slap twice still the appellant went on committing rape on her. She wanted to raise alarm but he always pressed her mouth and extended threat. Some time after he discharged his semen and wanted to leave the place then she raised alarm and her brother came and there was some scuffle in between her brother and the appellant but the appellant fled away by pushing her brother. While leaving the place appellant had left his Chadar in the room. While in the morning she was going to Rajnagar P.S. alongwith her brother but Bhuwan Mahato persuaded them for a panchayati where the matter will be settled and a panchayati was held but in the panchayati the matter was suppressed. When informant came to know that no case has been instituted, she met Ramchandra Mahato of her village alongwith her brother and acquainted him about the occurrence and Ramchandra Mahato brought them to Rajnagar P.S. where police recorded the statement of the informant and a case was instituted under Section 376, IPC. Police after investigation, submitted charge-sheet. Cognizance in the case was taken and case was committed to the Court of Sessions, where learned Additional Sessions Judge recorded the evidence of witnesses both oral and documentary and came to a finding and held the appellant guilty and convicted and sentenced him as aforesaid.\n<\/p>\n<p>3. Prosecution has examined five witnesses in this case. PW 1 is Nandi Mahato PW 2 is the victim girl Shanti Kumari, PW 3 is Ramchandra Mahato, PW 4 is Rango Kumari, who has not supported the prosecution case and PW 5 is Tapan Mahato, who is formal witness.\n<\/p>\n<p>4. PW 2 is the most important witness of the case and she is the victim girl as well as informant of the case. According to this witness, she was sleeping in her room with her sister and niece Rango Kumari and doors were not closed and a lantern was burning in the room and in the night appellant Bhikhari Mahato entered into the room by pushing the door. He caught this witness, threw her on the ground and committed rape on her and on her alarm her brother. PW 1 turned up and there was some scuffle in between her brother and this appellant and this appellant has left his Chadar and fled away. On the next morning, she along with her brother went to Rajnagar P.S. where both of them met Bhuwan, who persuaded them that matter will be settled in the village and he will call a panchayati. A meeting was called in the village and this appellant attended the meeting but later fled away and two months after this witness. PW 1 and Ramchandra Mahato went to P.S. and lodged an FIR. According to this witness, doors were bolted from inside the room and when appellant pushed the door, the blot broke down and there was some sound and on that very sound she woke up and her sister also woke up and both of them raised alarm. According to this witness, she was sleeping on a separate cot and her sister was sleeping on another cot.\n<\/p>\n<p>5. PW 1 has also supported the prosecution case and has corroborated the evidence of PW 2.\n<\/p>\n<p>6. PW 3 is Ramchandra Mahato, who has come to say that a meeting was called and some papers were prepared in his presence and he has proved those papers.\n<\/p>\n<p>7. PW 4 is Rango Kumari and she has not supported the case.\n<\/p>\n<p>8. PW 5 is a formal witness, who has proved the FIR. On this piece of evidence, the learned Court below held the appellant guilty and convicted and sentenced him as aforesaid.\n<\/p>\n<p>9. From the evidence and materials available on record, it appears that PW 2 was sleeping with her sister and niece. Her niece has been examined as PW 4 and she has not supported the case and her sister has not been examined in this case besides neither doctor nor I.O. have been examined in this case and FIR has been lodged after a delay of two months and the explanation for delay, which has been given by the prosecution does not appear to be plausible because according to the evidence PW 2, when she had gone to Rajnagar P.S. alongwith her brother PW 1, she should have lodge an FIR there as she had been raped but on the assurance of one Bhuwan Mahato, she came back with her brother to the village for a settlement through a panchayati but Bhuwan has also not been examined and this fact that she went to Rajnagar P.S. alongwith her brother where both of them met Bhuwan and on his assurance, she came back for a settlement, does to stand corroborated due to non-examination of Bhuwan. Further it has not been brought on record as to what sort of settlement was to be arrived at through the panchayati. Since doctor has not been examined the fact that she was raped or there was anything like that could not be brought on record and also due to non-examination of I.O. the fact that doors were bolted from inside the room and due to pushing the door by the appellant that bolt broke down and other related matter could not come on record, it is now a settled principle of law that if victim girl alleges rape and her evidence is reliable one, then no corroboration is required for conviction of an accused under Section 376, IPC but question is that the evidence of the victim girl must be reliable one. Here in the instant case, PW 2, who is a victim girl has come and stated that she has been raped and she has also stated that she was sleeping in her room with her sister and niece on a separate cot and her niece has been examined but she has not supported the case. Further her sister has not been examined and prosecution has not given explanation for non-examination of a vital witness, who was in the room and saw the occurrence and her niece has been examined but she has not supported. The so called Chadar, which according to PW 2, appellant left there at the time of fleeing away, has not been brought on record. The materials, which could have helped in the proceeding of the prosecution case have not been brought on record. Further there was a delay of about two months in lodging of the FIR and by that time all the symptoms of commission of rape had been washed away and simply on the solitary evidence of PW 2 that she has been raped, conviction cannot be sustained. It is also not there that she was threatened with dire consequences and some lethal weapon was shown to her but simply on the threatening extended by words, not accompanied with lethal weapon, it cannot be believed that rape was committed forcibly. She was aged 18-19 years at the time of alleged occurrence, as per age given in her deposition before the learned Court below and she could have resisted when the appellant was not having any weapon like pistol, chhura, dagger etc., which could have immediately put pressure on PW 2 that in case she raises alarm, she may be fired or she may be given chhura or dagger blow and that may cause her death but simply she was threatened, she surrendered to the carnal desire of the appellant, cannot be believed because her sister and niece were also sleeping in her room and in other side of the room her brother was sleeping and so she was not alone in the house. From the evidence of PW 2 it appears to be a case of sexual intercourse, with consent, but from the facts brought on record, such as lodging of FIR after a delay of two months, non-examination of sister and turning hostile of niece and further non-examination of doctor and I.O. are all these factors, which go to show that prosecution has not proved the case beyond reasonable doubt.\n<\/p>\n<p>10. In the result, this appeal succeeds and is allowed. The appellant is acquitted of the charges levelled against him. He is on bail, he is discharged from the liability of his bail bonds.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Jharkhand High Court Bhikhari Mahato vs State Of Bihar on 24 March, 2004 Equivalent citations: 2005 (2) JCR 619 Jhr Author: H S Prasad Bench: H S Prasad JUDGMENT Hari Shankar Prasad, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 27.11.1999 passed in Sessions Trial No. 70 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,18],"tags":[],"class_list":["post-115474","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jharkhand-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Bhikhari Mahato vs State Of Bihar on 24 March, 2004 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bhikhari-mahato-vs-state-of-bihar-on-24-march-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhikhari Mahato vs State Of Bihar on 24 March, 2004 - Free Judgements of Supreme Court &amp; 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