{"id":130052,"date":"2011-09-30T00:00:00","date_gmt":"2011-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shankar-sao-vs-state-of-bihar-on-30-september-2011"},"modified":"2017-06-21T01:32:14","modified_gmt":"2017-06-20T20:02:14","slug":"shankar-sao-vs-state-of-bihar-on-30-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shankar-sao-vs-state-of-bihar-on-30-september-2011","title":{"rendered":"Shankar Sao vs State Of Bihar on 30 September, 2011"},"content":{"rendered":"
Patna High Court<\/div>\n
Shankar Sao vs State Of Bihar on 30 September, 2011<\/div>\n
Author: Gopal Prasad<\/div>\n
            Criminal Appeal (SJ) No.129 of 1998\n                           With\n            Criminal Appeal (SJ) No. 189 of 1998\n\n                          ~~~~~~\nAgainst the Judgment of conviction dated 19.03.1998 and order of\nsentence dated 20.03.1998 passed by Sri Baikunth Nath Shahi, learned\nAdditional District and Sessions Judge-IInd, Nawadah in Sessions Trial\nNo. 116 of 1996 \/ 198 of 1996.\n                         ~~~~~~\nDipak Kumar @ Dilip, Son of Bishun Ram, resident of village -\nKadirganj, P. S. - Nawadah, District - Nawadah.\n         .... .... Appellant (Criminal Appeal (SJ) No. 129 of 1998).\n\n                          ~~~~~~\nShankar Sao, Son of Krishna Sao, resident of village - Quadirganj, P.\nS. - Nawadah, in the district of Nawadah.\n       .... .... Appellant (Criminal Appeal (SJ) No. 189 of 1998).\n\n                         Versus\nThe State Of Bihar\n                          .... .... Respondents (In both the Appeals)<\/pre>\n
                      ~~~~~~
\nAppearance :\n<\/p>\n
(In CR. APP (SJ) No. 129 of 1998)
\nFor the Appellant    : Mr. Surendra Kishore Thakur, Advocate.\n<\/p>\n
                       Mr. Pramod Kumar Verma, Advocate.\n<\/p>\n
For the Respondents : Mr. Parmeshwar Mehta, A.P.P.\n<\/p>\n
(In CR. APP (SJ) No. 189 of 1998)
\nFor the Appellant    : Mr. Shakil Ahmad Khan, Sr. Advocate.\n<\/p>\n
                       Mr. H. A. Khan, Advocate.\n<\/p>\n
                       Md. Mushtaq Alam, Advocate.\n<\/p>\n
                       Mr. Jay Prakash Singh, Advocate.\n<\/p>\n
                       Mr. Ram Pravesh Tiwari, Advocate.\n<\/p>\n
                       Mr. Salendra Kumar Singh, Advocate.\n<\/p>\n
For the Respondent :   Mr. Parmeshwar Mehta, A.P.P.\n<\/p>\n
                        ~~~~~~<\/p>\n
                     PRESENT<\/p>\n
   THE HON’BLE MR. JUSTICE GOPAL PRASAD
\n                                         2<\/span><\/p>\n
GOPAL PRASAD, J.                 These two appeals have been heard together and<\/p>\n
    are being disposed of by the common judgment as both arise out of the<\/p>\n
    judgment and order dated 19.03.1998 passed by Sri Baikunth Nath Shahi,<\/p>\n
    learned Additional District and Sessions Judge-IInd, Nawadah in Sessions<\/p>\n
    Trial No. 116 of 1996 \/ 198 of 1996 arising out of Nawadah P. S. Case No.<\/p>\n
    207 of 1995, GR. No. 1284 of 1995 by which the appellant Dipak Kumar @<\/p>\n
    Dilip in Cr. Appeal (SJ) No. 129 of 1998 has been convicted under Section<\/p>\n
    366A of the Indian Penal Code and sentenced to undergo rigorous<\/p>\n
    imprisonment for seven years. He has further been convicted under Section<\/p>\n
    376\/109 of the Indian Penal Code and sentenced to undergo rigorous<\/p>\n
    imprisonment for seven years. However, it has been ordered that both the<\/p>\n
    sentences shall run concurrently. The appellant, namely, Shankar Sao in Cr.<\/p>\n
    Appeal (SJ) No. 189 of 1998 has been convicted under Section 376 of the<\/p>\n
    Indian Penal Code and sentenced to undergo rigorous imprisonment for ten<\/p>\n
    years and to pay a fine of Rs.50,000\/- and in default of payment of fine to<\/p>\n
    undergo rigorous imprisonment for one year more and if the amount of fine<\/p>\n
    is paid by the appellant then Rs.40,000\/- out of that be paid to the victim girl<\/p>\n
    for rehabilitation and stand in the society and has further been convicted<\/p>\n
    under Section 366A of the Indian Penal Code and sentenced to undergo<\/p>\n
    rigorous imprisonment for seven years. However, it has been ordered that<\/p>\n
    both the sentences shall run concurrently.\n<\/p>\n
                                     3<\/span><\/p>\n
2.         The prosecution case, as alleged, in the written report is that the<\/p>\n
informant Ishwari Mahto (P. W. 3) is the grandfather of the victim Madhuri<\/p>\n
Kumari. On 12.10.1995 the victim Madhuri Kumari had gone for study to<\/p>\n
Kusum Kanya High School, Kadirganj as usual along with her friend Radha<\/p>\n
Kumari. The victim did not return till 5:00 P.M. to her home at village Harla.<\/p>\n
The informant went to the house of Radha Kumari to enquire about Madhuri<\/p>\n
Kumari. Radha Kumari disclosed hesitantly that Shankar Sao forcibly<\/p>\n
abducted\/kidnapped the victim Madhuri Kumari by dragging her in a tempo<\/p>\n
at Shakri river. The informant went to the house of Krishna Sao the father of<\/p>\n
Shankar Sao to inquire about Madhuri Kumari. It is alleged that Krishna Sao<\/p>\n
and his wife, Umesh Sao and his wife and sister of Umesh Sao said that his<\/p>\n
granddaughter will return after four days and if he made Hulla and spread the<\/p>\n
news then the informant himself will loose his prestige. The informant<\/p>\n
doubted the hand of these people in the kidnapping of victim by Shankar Sao.<\/p>\n
3.        The informant lodged the First Information Report on 14.10.1995.<\/p>\n
During the investigation the victim produced before the police and she was<\/p>\n
medically examined. Her statement was recorded under Section 164 of the<\/p>\n
Cr.P.C. before the Judicial Magistrate. However, after investigation, the<\/p>\n
charge-sheet was submitted for offence under Sections 376 and 366A of the<\/p>\n
Indian Penal Code. The charge was framed under Sections 376 and 366A of<\/p>\n
the Indian Penal Code against Shakar Sao and under Sections 376\/109 and<\/p>\n
366A of the Indian Penal Code against Dipak Kumar @ Dilip and others and
\n                                      4<\/span><\/p>\n
trial proceeded. During the trial eight witnesses were examined on behalf of<\/p>\n
the prosecution and five witnesses were examined on behalf of the defence.<\/p>\n
4.       P. Ws. 1, 2 and 4 have stated that they do not know anything about<\/p>\n
the occurrence and have been declared hostile.\n<\/p>\n
5.       P. W. 6, Radha Kumari stated in her evidence that on the date of<\/p>\n
occurrence she had gone to study alone and no such occurrence occurred.<\/p>\n
This witness has also been declared hostile.\n<\/p>\n
6.      P. W. 3 is the informant. He in his evidence supported the prosecution<\/p>\n
case in the written statement to the effect that his grand daughter, the victim<\/p>\n
went to study as usual with Radha Kumari and did not return till 5:00 P.M.<\/p>\n
Then he went to Radha Kumari who disclosed that Shankar Sao has<\/p>\n
kidnapped the victim while returning and then he went to the father and<\/p>\n
brother of Shankar Sao who stated that the girl will return after four days.<\/p>\n
7.      P. W. 5 is the victim. She in her evidence stated that while she was<\/p>\n
returning from Coaching Centre, Kadirganj in way to her home at Harla on<\/p>\n
12.10.1995, the date of occurrence when she reached at eastern corner of the<\/p>\n
bridge at Shakri river Shankar Sao came there on a tempo and lifted her in the<\/p>\n
tempo. When she tried to raise alarm her mouth was gagged and she was<\/p>\n
threatened and thereafter Shankar Sao took away her to Nawadah. At<\/p>\n
Nawadah a car was standing in which Dipak Kumar @ Dilip and Kapildeo<\/p>\n
Goswami were sitting. She was again forced by Shankar Sao to sit in the car<\/p>\n
and thereafter she was taken to Rajgir and kept her in Akash Hotel. Thereafter
\n                                      5<\/span><\/p>\n
Shankar Sao asked Dipak Kumar and Kapildeo Goswami to go out of the<\/p>\n
room. Dipak Kumar and Kapildeo Goswami went out then Shankar Sao raped<\/p>\n
her several times in the Hotel for three days. In reply to a court question she<\/p>\n
stated that two other accused did not rape her and whenever she tried to raise<\/p>\n
alarm her mouth was closed by Shankar Sao. On 14.10.1995 Umesh Sao, the<\/p>\n
elder brother of Shankar Sao came in the Hotel and said to take her to<\/p>\n
Nawadah. She was taken to Nardigang on 14.10.1995 and stayed in the night<\/p>\n
at Sasural of Umesh Sao. On 15.10.1995 she was taken to Nawadah.<\/p>\n
Thereafter on 15.10.1995 she went to the police station where Daroga<\/p>\n
recorded her statement. On 16.10.1995 she was taken to Nawadah hospital<\/p>\n
where she was medically examined and her statement was recorded by the<\/p>\n
Magistrate on 17.10.1995. She identified the accused persons in dock.<\/p>\n
8.       P. W. 7 is the doctor who assessed her age on the basis of radiological<\/p>\n
examination as 15 to 16 years and opined that hymen was intact admitting<\/p>\n
two fingers loosely suggestive of sexual intercourse but no injury over the<\/p>\n
private parts. However, on the basis of pathological examination he opined<\/p>\n
that no evidence of sexual intercourse has been committed within 24 to 48<\/p>\n
hours.\n<\/p>\n
9.        P. W. 8 is the I.O.\n<\/p>\n
10.        The defence of the accused as transpired from the suggestion and<\/p>\n
cross-examination and the evidence of the defence witness is that the accused<\/p>\n
Krishna Sao the father of Shankar Sao had got land in village Harla and the
\n                                    6<\/span><\/p>\n
informant Ishwari Mahto also belong to Harla and informant and his family<\/p>\n
members were persuading Krishna Sao to transfer the land in their favour<\/p>\n
otherwise they will teach him a lesson. The appellants have falsely been<\/p>\n
implicated to grab the land of the accused Krishna Sao and Shankar Sao.<\/p>\n
11.      The defence witness deposed to the effect that they saw the verbal<\/p>\n
altercation between Ishwari Mahto and Krishna Sao for transferring the land.<\/p>\n
12.        The trial court considering the evidence of the victim that she<\/p>\n
supported the prosecution case about her kidnapping from Shakri river and<\/p>\n
rape in the Akash Hotel by Shankar Sao and doctor found hymen was intact<\/p>\n
admitting two fingers loosely suggestive of sexual intercourse convicted the<\/p>\n
appellant Shankar Sao for the offence under Sections 366A and 376 of the<\/p>\n
Indian Penal Code and further taking into consideration the evidence of the<\/p>\n
victim P. W. 5 held that though the appellant Dipak Kumar @ Dilip was not a<\/p>\n
party to rape but since involved in assisting the accused in kidnapping and<\/p>\n
enticing away of the girl and abetting the accused no. 2 in commission of the<\/p>\n
offence of rape has convicted and sentenced under Sections 376\/ 109 and<\/p>\n
366A of the Indian Penal Code.\n<\/p>\n
13.        Learned counsel for the appellants, however, contended that the<\/p>\n
informant learnt from Radha Kumari about kidnapping of Madhuri Kumari by<\/p>\n
Shankar Sao but Radha Kumari has not supported the prosecution case about<\/p>\n
kidnapping and abetment of rape by the appellant Dipak Kumar @ Dilip.<\/p>\n
There is evidence about kidnapping and rape except the evidence of
\n                                       7<\/span><\/p>\n
prosecution and there is no corroboration of her evidence. It is further<\/p>\n
contended that the evidence of the doctor is contradictory to prosecution case.<\/p>\n
The further defence of the appellants is that the informant has vulture eye on<\/p>\n
two and half Bighas of land of Krishna Sao the father of the appellant<\/p>\n
Shankar Sao in village Harla and it is asserted that the false case has been<\/p>\n
lodged to grab the said land. It has further been contended that the victim was<\/p>\n
said to have been kidnapped from Kadirganj to Nawadah and then Nawadah<\/p>\n
to Rajgir and was kept in hotel for two days and then taken from Rajgir to<\/p>\n
Nardiganj, Nardiganj to Nawadah but during her stay as well as in transit<\/p>\n
from one place to another she neither resisted nor raised any alarm nor taken<\/p>\n
any step to inform the public or even tried to flee away hence she was<\/p>\n
consenting party. The doctor found her age as 15-16 years. The learned<\/p>\n
Additional Sessions Judge who recorded her statement has assessed her age<\/p>\n
as 18 years. Hence, she was in a consenting age and consenting party to<\/p>\n
sexual intercourse and has eloped at her own sweet will. It has further been<\/p>\n
contended that the investigation is perfunctory as the I.O. neither went to<\/p>\n
Akash Hotel to investigate nor went to Coaching Center nor seized the cloth<\/p>\n
of the victim which was besmeared with semen nor inquired about the tempo<\/p>\n
and car on which she was kidnapped. Hence there is no corroboration on any<\/p>\n
material particular. It has further been contended that the defence was not<\/p>\n
given the opportunity to cross-examine the prosecutrix and the conviction on<\/p>\n
the basis of prosecutrix is not sustainable.\n<\/p>\n
                                      8<\/span><\/p>\n
14.       Learned counsel for the State supports the order of conviction and<\/p>\n
sentence and there is nothing to disbelieve the prosecution story.<\/p>\n
15.          In this case the victim Madhuri Kumari P. W. 5 has given her<\/p>\n
version of the incidence in her deposition. From perusal of her evidence, it is<\/p>\n
apparent that she supported the prosecution case about kidnapping by Shankar<\/p>\n
Sao and having been taken to Rajgir and raped in Aakash hotel by Shankar<\/p>\n
Sao and she was then taken back to Nawadah and left there where the police<\/p>\n
recorded her statement. She was medically examined by the doctor at Sadar<\/p>\n
Hospital. Her statement was recorded under Section 164 of the Cr.P.C. which<\/p>\n
has been proved and marked as Ext. 2 in which she has also supported the<\/p>\n
prosecution about her kidnapping on 12.10.1995 by Shankar Sao and taken to<\/p>\n
Nawadah and from Nawadah she was again taken on car to Rajgir in which<\/p>\n
accused Kapildeo Goswami and Dipak Kumar @ Dilip were sitting and she<\/p>\n
was raped at Rajgir by Shankar Sao in Akash hotel. On 14.10.1995 Umesh<\/p>\n
Sao came and asked then to take her to Nawada then she was brought by four<\/p>\n
persons to Nawada and kept her at Nardiganj at the Sasural of Umesh Sao.<\/p>\n
She stayed at Sasural in the night of 14.10.1995 Umesh Sao took her to<\/p>\n
Nawada and left her then she went to police station.\n<\/p>\n
16.        P. W. 7 is the doctor who examined the victim on 16.10.1995 and<\/p>\n
found hymen absent admitting two fingers loosely suggestive of intercourse<\/p>\n
on injury over the private parts and hence it indicates about the sexual<\/p>\n
intercourse supporting the prosecution case. Hence, taking into consideration
\n                                     9<\/span><\/p>\n
the evidence and reading the deposition of the victim shows that there is a<\/p>\n
ring of truth and the conviction is not illegal merely because it proceeds on<\/p>\n
uncorroborated evidence of the victim.\n<\/p>\n
17.         The criticism is that the evidence of the doctor and the statement<\/p>\n
under Section 164 of the Cr. P. C. contradicts the prosecution case is devoid<\/p>\n
of any merits. The doctor’s evidence is that hymen was intact admitting two<\/p>\n
fingers loosely suggestive of sexual intercourse apparently a corroboration of<\/p>\n
the prosecution case suggest a sexual intercourse. However, the doctor opined<\/p>\n
that there is no evidence of intercourse within 24 to 48 hours. Taking into<\/p>\n
consideration the sequence of event the occurrence took place on 12.10.1995<\/p>\n
and the victim was taken to Rajgir and there she was raped on 12.10.1995 and<\/p>\n
was kept at Rajgir on 12th, 13th and 14.10.1995. The victim has stated that she<\/p>\n
was raped several times at Rajgir. However, the prosecutrix in her evidence<\/p>\n
deposed that Umesh Sao came in hotel on 14.10.1995 and asked to leave the<\/p>\n
girl and then the victim girl was taken on 14.10.1995 itself to Nardiganj and<\/p>\n
they stayed at Sasural of Umesh Sao and then on 15.05.1995 she brought and<\/p>\n
was left at Nawadah. She was medically examined on 16.05.1995. Hence,<\/p>\n
apparently there was no rape on 14th and 15th so the doctor’s opinion that no<\/p>\n
evidence of intercourse within 24 to 48 hours confirms the prosecution case<\/p>\n
and defence cannot take any advantage of it. The statement under Section 164<\/p>\n
of the Cr. P. C. is not contradictory. No has been drawn to the victim to any<\/p>\n
part of the statement recorded under Section 164 Cr. P. C to give opportunity
\n                                    10<\/span><\/p>\n
to explain or record contradiction. From perusal of the statement under<\/p>\n
Section 164 of the Cr. P. C. there is nothing contradictory rather it supports<\/p>\n
the prosecution case. The name of the accused persons find mention in the<\/p>\n
statement under Section 164 of the Cr. P. C. and role attributed. The name of<\/p>\n
Shankar Sao find mention with allegation of having kidnapped the victim<\/p>\n
from Shakri river and taken her to Nawadah, Nawadah to Rajgir where she<\/p>\n
was raped and hence there is no merit in submission that the report of the<\/p>\n
doctor or statement under Section 164 of the Cr. P. C are contradictory to the<\/p>\n
prosecution case.\n<\/p>\n
18.       However, it has been asserted that the accused persons did not get<\/p>\n
the opportunity to cross-examine the victim. From perusal of the records,<\/p>\n
order dated 24.04.1997, passed in S. T. No. 198 of 1996, it appears that the<\/p>\n
victim was examined on 24.04.1997 and the order-sheet mentions that the<\/p>\n
prosecution witness Radha Kumari and Madhuri Kumari were produced in<\/p>\n
police escort in pursuance of the letter no. 98 dated 11.04.1997 written to the<\/p>\n
Superintendent of Police, Nawadah accompanied with warrant of arrest non-<\/p>\n
bailable requesting to produce in proper escort as hurdle was reportedly being<\/p>\n
created in their appearance. The accused also produced and the learned<\/p>\n
counsel for the accused Param Ram Singh participated in recording the<\/p>\n
evidence of P. W. 5 Madhuri Kumari the victim but after examination in chief<\/p>\n
the defence lawyer filed a petition for transfer of the case on ground that the<\/p>\n
informant is openly saying that he has won and hence refused to cross-
\n                                     11<\/span><\/p>\n
examine. However, the trial court taken it as a denial of the cross-examination<\/p>\n
by the court below and considered it as a strategy of the accused to gain over<\/p>\n
the victim or to otherwise influence the victim which required to be frustrated<\/p>\n
and hence rejected the petition to transfer as well as adjournment of evidence.<\/p>\n
However, refusal to cross-examine the witness was treated to be declined to<\/p>\n
cross-examine and the witness was released.\n<\/p>\n
19.        Criminal Miscellaneous filed before this Court against the order of<\/p>\n
learned Additional Sessions Judge was rejected. Thereafter case proceeded<\/p>\n
and a petition filed on 28.06.1997 for permission to cross-examine the doctor<\/p>\n
and the victim. However, permission to cross-examine the doctor was granted<\/p>\n
but the permission to cross-examine the victim was refused in view of the fact<\/p>\n
that the Hon’ble Court has not given any such indication hence having regard<\/p>\n
to the fact that the appellants refused to cross-examine in unscrupulous<\/p>\n
manner having chosen not to cross-examine. Now he cannot be allowed to be<\/p>\n
benefited for his own mistake and evil design to win over the victim by hooks<\/p>\n
and crooks.\n<\/p>\n
20.      Further criticism is that the evidence of the victim is not corroborated<\/p>\n
by any material particular and did not pass through the test of cross-<\/p>\n
examination. Further the victim has been tutored to lodge a false case in view<\/p>\n
of the fact that the informant has vulture eye on two and half Bighas of land<\/p>\n
of Krishna Sao the father of Shankar Sao and so the case has been filed to<\/p>\n
grab the land. However, it is well settled that if the evidence of the witness is
\n                                     12<\/span><\/p>\n
found above board, reliable and trustworthy there is no need for any<\/p>\n
corroboration and refusal to act on the testimony of victim of sexual assault in<\/p>\n
the absence of corroboration is adding insult to injury.<\/p>\n
21.      To analyze the argument in support of need to corroboration and<\/p>\n
absence of a relentless and remorse cross-examination is required to be tested<\/p>\n
in the light of probabilities in context of the values in Indian society. It is<\/p>\n
apparent that in Indian society a girl aged about 14-15 years will hardly admit<\/p>\n
rape due to the social stigma attached as it reflects her chastity which is most<\/p>\n
valuable which distinguishes her status in society jeopardizing the status of<\/p>\n
her entire family. However, it must be realized that having regard to<\/p>\n
prevailing morse and values of the Indian society, it is unconceivable that a<\/p>\n
girl of 14-15 years of age would invent a false story of sexual assault. An<\/p>\n
Indian girl at this stage age of 15-16 years is well aware about her reputation<\/p>\n
and consequence of admitting rape and is also aware of the consequence of<\/p>\n
jeopardizing the reputation of the entire family if the story is spread over in<\/p>\n
the society and she knows the consequence getting a match or life partner or<\/p>\n
getting her marriage in a respectable and acceptable family. Further it is<\/p>\n
unimaginable that a grand father of the victim will lodge a case and will tutor<\/p>\n
the minor daughter or an adolescent daughter aged 17-18 years of age to<\/p>\n
invent such story or to support such a story to grab the land and wreak<\/p>\n
vengeance. They will not do such a thing promoting or tutoring an adolescent<\/p>\n
grand daughter for the simple reason that it will not only bring down the
\n                                     13<\/span><\/p>\n
prestige of the grandfather but the prestige of the entire family shall be put to<\/p>\n
jeopardize and they will be loosing more than whatever the value of the land<\/p>\n
and they will loose the status in society and the future prospect of the victim<\/p>\n
in the life. The grand parents also expected to be concerned of the traumatic<\/p>\n
effects on the psychology of the child having disastrous effect on their<\/p>\n
growing age as the victim or the granddaughter will itself suffer unimazingly<\/p>\n
to such an extent that it will be more injurious than to gain and hence the<\/p>\n
suggestion that the appellants have been roped falsely at the instance of the<\/p>\n
grandfather or to grab the land is devoid of any merit and further the<\/p>\n
submission that the victim has been tutored to depose falsely also false to<\/p>\n
ground is not acceptable to Indian context nor an evidence can be rejected<\/p>\n
merely on ground that the victim was tutored or there is any corroboration.<\/p>\n
This view is supported in decision reported in AIR 1983 SC 753.<\/p>\n
22.          Further criticism and assertion is that the victim was aged about<\/p>\n
15-16 years old as it has come in the evidence of the doctor on the basis of<\/p>\n
radiological test her age to be 15-16 years and there is margin of two years of<\/p>\n
age and further the age of the victim has been assessed by Presiding Officer<\/p>\n
as 18 years and hence the victim was in a consenting age as sixthly of Section<\/p>\n
375 of the Indian Penal Code provides that the victim above 16 years is<\/p>\n
capable to give consent for sexual intercourse. Hence, the victim was a<\/p>\n
consenting party as the victim has not fled away or resisted or reported during<\/p>\n
the captivity while she was taken from Kadirganj to Nawadah, Nawadah to
\n                                    14<\/span><\/p>\n
Rajgir, Rajgir to Nardiganj and Nardiganj to Nawadah. However, the victim<\/p>\n
in her evidence in court as well as in her statement under Section 164 of the<\/p>\n
Cr. P. C has specifically stated that when she was kidnapped by force by<\/p>\n
Shankar Sao she raised an alarm or tried to raise an alarm but her mouth was<\/p>\n
gagged and she was threatened. From the evidence, it is apparent that all<\/p>\n
along through her captivity she was surrounded by Shankar Sao and others<\/p>\n
had no opportunity either to flee away or to resist and she has reported that<\/p>\n
she tried to raise alarm but her mouth was shut. There is nothing in evidence<\/p>\n
that she was free to act on her own wish or she got any opportunity to run<\/p>\n
away and hence the criticism that she did not act in a manner or to take any<\/p>\n
steps to resist the kidnapping and rape during her captivity is devoid of any<\/p>\n
merit. However, it is pertinent to mention that how the victim in adverse<\/p>\n
situation will behave is not dependent on the wish of the accused but how a<\/p>\n
person behaves in an adverse situation vary from man to man. Some persons<\/p>\n
may got nervous in adverse situation and loose the power to resist. Some<\/p>\n
persons may resist to some extent and some may be bold enough to fight even<\/p>\n
putting his life on threat even if the miscreants are armed with deadly<\/p>\n
weapon. However, merely because a person did not give passive resistance it<\/p>\n
cannot mean his helpless resignation on face of inevitable compulsion cannot<\/p>\n
be deemed as consent and hence the only conclusion relevant is that she was<\/p>\n
kidnapped and kept under barrier and was raped against her will by the<\/p>\n
appellant Shankar Sao.\n<\/p>\n
                                    15<\/span><\/p>\n
23.         Hence, having regard to the facts and circumstances since there is<\/p>\n
clear and unequivocal evidence against Shankar Sao having kidnapped the<\/p>\n
victim from Shakri river and have raped her at Rajgir and hence the offence<\/p>\n
under Sections 366A and 376 of the Indian Penal Code is made out.<\/p>\n
24.        However, so far the appellant Dipak Kumar @ Dilip is concerned<\/p>\n
the only evidence against him is that he was sealed in the car at Nawadah by<\/p>\n
which the victim was brought in car. There is evidence that he was with the<\/p>\n
victim from Nawada to Rajgir and then back to Nawada. However, the<\/p>\n
ingredient of abetment is concerned it is either proved that the person<\/p>\n
instigated or has conspired or intended to aid the commission of offence.<\/p>\n
However, there is no evidence that Dipak Kumar @ Dilip instigated nor there<\/p>\n
is evidence that he prior to the offence he conspired nor he was even present<\/p>\n
at the time when Shankar Sao kidnapped the victim at Kadirganj. However,<\/p>\n
so far intentional aid is concerned the only evidence is that the appellant had<\/p>\n
mere association. However, there is no evidence that the appellant Dipak<\/p>\n
Kumar @ Dilip had any intention either adding or in commission of offence<\/p>\n
of rape be committed. However, mere presence at Rajgir cannot amount to<\/p>\n
intentional aid for rape unless it is proved that Dipak Kumar @ Dilip or the<\/p>\n
person hold some position to influence or direct encouragement or having<\/p>\n
joined a conspiracy for the offence under Section 376\/109 of the Indian Penal<\/p>\n
Code hence conviction under Section 376\/109 of the Indian Penal Code is<\/p>\n
concerned the appellant Dipak Kumar @ Dilip is entitled to get a benefit of
\n                                    16<\/span><\/p>\n
doubt and conviction under Section 376\/109 of the Indian Penal Code is set<\/p>\n
aside. However, the prosecution proved that Dipak Kumar @ Dilip followed<\/p>\n
from Nawada in car and hence conviction under Section 366A is maintained.<\/p>\n
Hence, Criminal Appeal (SJ) No. 129 of 1998 is allowed in part.<\/p>\n
25.      Learned counsel for the appellants, however, contended that there is<\/p>\n
a compromise petition filed and having regard to the fact that the occurrence<\/p>\n
is of the year 1995 hence a lenient view may be taken.\n<\/p>\n
26.       However, taking into consideration the fact that the victim was<\/p>\n
kidnapped by Shankar Sao at Kadirganj and Dipak Kumar @ Dilip only<\/p>\n
joined in Nawada and hence the ends of justice shall meet by sentencing<\/p>\n
Dipak Kumar @ Dilip for the period already undergone during the<\/p>\n
investigation as well as after conviction for the offence under Section 366A of<\/p>\n
the Indian Penal Code. However, so far the accused Shankar Sao in Cr.<\/p>\n
Appeal (SJ) No. 189 of 1998 is concerned his conviction under Section 376<\/p>\n
and 366 is maintained and however, the sentence under Section 376 of the<\/p>\n
Indian Penal Code is reduced 10 years to 7 years and hence the appeal is<\/p>\n
dismissed with modification in sentence.\n<\/p>\n<\/p>\n
                                                   (Gopal Prasad, J.)<\/p>\n
Patna High Court, Patna.\n<\/p>\n
Dated, the 30th September, 2011.\n<\/p>\n
N.A.F.R.\/Kundan.<\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/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":[8,26],"tags":[],"class_list":["post-130052","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nShankar Sao vs State Of Bihar on 30 September, 2011 - Free Judgements of Supreme Court & 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\/shankar-sao-vs-state-of-bihar-on-30-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shankar Sao vs State Of Bihar on 30 September, 2011 - 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