Ajit Bhuiyan, son of Akhileshwar Bhuiyan vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard learned counsel for the parties.

Present criminal appeal is directed against the judgment of conviction and order of sentence dated 23.05.2009 passed by learned Sessions Judge, Dhanbad in Sessions Trial No. 57 of 2008, whereby and whereunder, the appellant has been held guilty for the offence under Sections 366 and 376 of the I.P.C. and directed to undergo R.I. of 7 years for each offence along with fine of Rs. 1000/- each offence with default stipulation.

FACTUAL MATRIX

The factual matrix giving rise to this appeal is that the mother of the victim girl has presented a written report on 03.09.2007 at Jharia (Boragarh O.P.) stating inter alia that on 30.08.2007 at about 2:30 P.M. her minor daughter, aged about 12 years went to Jharia, but she did not return to home. It is alleged that in course of search, informant came to know that her daughter had gone with present appellant namely, Ajit Bhuiyan. Accordingly, F.I.R. being Jharia (Boragarh) P.S. Case No. 301 of 2007 was lodged for the offence under Section 366(A) of the I.P.C.

After completion of investigation, charge sheet was submitted against the appellant for the offence under Sections 366(A) and 376 of I.P.C. and the case was committed to the court of Sessions. The Sessions Judge has framed charge under Section 366 / 376 of the I.P.C. against the accused, to which, he denied from the charges and claimed to be tried.

In course of trial, altogether 05 witnesses were examined by the prosecution. Apart from oral evidence, the prosecution has adduced following evidence:-

Exhibit-1 : Signature of the victim on her statement recorded under Section 164 Cr.P.C.

Exhibit-2 : Endorsement on written report for registration of case.

Exhibit-3 : Formal F.I.R.

Exhibit-4 : Medical examination report of the victim.

The case of defence is total denial from occurrence and false implication. However, no oral or documentary evidence adduced by the defence.

The learned trial court, after evaluating the evidence of victim girl and her parents along with medical examination report of the victim, recorded the findings of guilt of the appellant and convicted and sentenced him, as stated above.

Learned counsel for the appellant has submitted that the learned trial court has failed to appreciate that there was inordinate delay of 04 days in lodging the F.I.R. without offering any reasonable explanation, which demolishes the whole prosecution story. It is further submitted that the informant has claimed that she came to know from friend of her daughter namely, Sunita Kumari about the occurrence, then lodged F.I.R., but said Sunita Kumari has not been interrogated during investigation nor she was examined in this case. As per evidence of victim girl also, it appears that she was enticed by her friend Sunita Kumari to go to Cinema Hall at Jharia. The victim girl, as per medical examination report, was found to be 15 years old and on the date of occurrence, the appellant was also in between 18-19 years. The victim girl has voluntarily accompanied with the appellant on enticement of her friend Sunita Kumari and roamed several places without any hue and cry.

So far offence under Section 376 of I.P.C. is concerned, medical examination report of the victim girl clearly shows that there was no recent sign of sexual intercourse. Therefore, no offence is constituted against the appellant. The learned trial court has committed serious error of law in not considering the above material facts and arrived at wrong conclusion. Therefore, the impugned judgment of conviction and order of sentence of the appellant is liable to be set aside, by allowing this appeal.

In alternative, it is submitted that during course of trial and post-conviction, the appellant has remained in custody for more than two years. The occurrence is of the year 2007 and more than 18 years have elapsed. Now both victim girl as well as appellant have solemnized their marriage and leading their peaceful life without involving in any other criminal activity. The appellant was also teenager at the time of occurrence. It was first offence of the appellant. Therefore, the sentence awarded to the appellant may be reduced to the imprisonment already undergone in the peculiar facts and circumstances of this case, so that future career of the appellant may not be ruined.

On the other hand, learned APP appearing for the State has opposed the aforesaid contentions raised on behalf of the appellant and submitted that there is clinching and consistent evidence of victim girl against the appellant, who has categorically stated that she was taken to different places under inducement and threat and she was also subjected to rape by the appellant. There was considerable gap in between commission of rape and examination of the victim. Therefore, recent sign of rape could not be detected, but possibility of sexual intercourse has not been denied by the Doctor. There is no reason to disbelieve the testimony of victim girl. The learned trial court has very wisely and aptly analyzed and scanned the evidence available on record, while recording the findings of guilt of the appellant, which suffers from no illegality or infirmity, calling for any interference in this appeal, which is devoid of merit and fit to be dismissed.

I have gone through the record of the case along with impugned judgment and order in the light of contentions raised on behalf of both side.

The only point for determination is that "as to whether the impugned judgment of conviction and order of sentence of appellant is legally sustainable or not?".

Before adverting to adjudicate upon above point, it appears pertinent to take brief resume of the evidence of witnesses examined during trial.

P.W.-1 is the victim girl herself. According to her evidence, on the date of occurrence, she had gone Rajbadi for daily work and when she reached near Thana More her friend Sunita told her to see a movie in presence of Ajit Bhiyan, but initially she refused. Thereafter, she along with Sunita and Ajit Bhuiyan went to see Cinema and returned to Dhanbad on a bus along with Sunita and Ajit Bhuiyan. She has further stated that Ajit Bhuiyan took her to Nawada and kept there for four days and also committed rape upon her. She was also taken to some other places by the accused Ajit Bhuiyan. When she started crying then accused left her at Dhanbad, where police apprehended both of them. She also admits that her statement under Section 164 of Cr.P.C. was recorded by Magistrate.

In her cross-examination, this witness admits that when Sunita Kumari first met her then accused Ajit Bhuiyan was not present there and later on, he joined them. She also admits that Sunita got down after ½ km from tempo before Thana More. From Dhanbad to Nawada, Ajit took her by bus, which consumed about 4-6 hours. She also admits that she did not raise any alarm in the bus journey. She further reiterates that she stayed at Nawada for four days along with accused Ajit Bhuiyan and visited to some other places also for two days and both were apprehended by police at Dhanbad.

P.W.-2 and P.W.-3 are mother and father respectively of the victim, who have simply stated that when the girl did not return to home till the evening and after search her for 3-4 days, the F.I.R. was lodged when it was known to them that Anil Bhuiyan has taken away their daughter. After return, the victim has narrated about the incident to them.

P.W.-5 Dr. Shashi Prabha Jha has examined the victim and found hymen was old tear, but there was no recent sign of rape. On the basis of radiologist report, the aged of the victim was assessed to be 15 years. She has proved medical report of the victim as Exhibit-4.

P.W.-4 Babu Ram Kisku is the Investigating Officer of this case. According to his evidence, after registration of F.I.R., he has arrested the victim girl along with accused on 04.09.2007. He also got the statement of the victim girl recorded under Section 164 of Cr.P.C. and her medical examination and finding sufficient evidence submitted charge-sheet against the accused.

Considering the aforesaid facts appearing in the evidence of victim girl herself, I concur with the findings recorded by the learned trial court that the victim has accompanied the accused on her own accord without any enticement or threat or inducement and covered the journey overnight on bus along with 50-60 passengers without making any hue and cry, but it is abundantly clear that the victim was about 15 years old on the date of occurrence. Therefore, her consent plays no role. She was taken away by the accused to Nawada without consent of her guardian, where also committed rape on her. The sexual intercourse with a girl below 16 years with or without consent constitute the offence of rape within meaning of Section 376 of the I.P.C. Therefore, the learned trial court has held the appellant guilty for the offences charged against him.

I do not find any valid reason to take a different view from that of the learned trial court, so far conviction of the appellant is concerned for the offence under Sections 366 / 376 of the I.P.C., which is hereby upheld and confirmed.

So far quantum of sentence is concerned, it is admitted position that both the victim and the accused were teenager on the date of occurrence. The appellant has remained in custody for 02 years during trial. It was first offence of the appellant and he has no criminal background or conviction for any other offence. Both victim and appellant after solemnizing their marriage have been settled in their life. About two decades have been passed from the date of occurrence. Therefore, striking a balance between grievance of victim and the agony of trial suffered by the accused appellant, theory of deterrence is to be superseded by the theory of reformation of the accused. There are all possibilities of reformation of the appellant and to lead a better life without indulging any criminal activities.

In view of aforesaid discussion and reasons, the sentence awarded to the appellant by the learned trial court is hereby reduced to imprisonment already undergone for the offence under Sections 366 and 376 of I.P.C.

Accordingly, this appeal is dismissed on merits with modification in sentence as stated above.

The appellant is on bail. As such, he is discharged from the liability of bail bonds and sureties shall also discharged.

Pending I.A., if any, stand disposed of.

Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.