Arun Kumar Yadav & Anr vs State of Bihar

By judgment of conviction and order of sentence dated 22.12.2008 passed by the Additional Sessions Judge, FTC III, Supaul, in Sessions Trial

No.96 of 2006 arising out of Triveniganj P.S. Case No.74 of 2005, Appellant No.1, Arun Kumar Yadav, has been convicted for the offence under

Section(s) 376 Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and Appellant No.2, Vidyanand Yadav, has been

convicted for the offence under Section(s) 201 Indian Penal Code and sentenced to undergo rigorous imprisonment for one year.

Prosecution case, as per First Information Report, is that on 19.06.2005 at about 8.30 AM, the informant had gone to Temple for Puja. She was

returning home and reached near the field. Both the appellants were hiding in the field. It is alleged that appellant, Arun Kumar Yadav, caught the

hand of the victim and told her to pick up the grass. The informant denied and attempted to run away. Then, Appellant, Arun Kumar Yadav, took her

inside the field and started assaulting her. Thereafter, he tied both the hands of the victim with Patuaa and started pressing her neck. The informant

became afraid. He removed her clothes and committed rape with her and she became unconscious. She recovered sense after 1-2 hours and found

herself in the house. Father told her that some boy had seen her lying in Patuaa field of Mahadeo Rai at 10.15 AM and they raised halla. Thereafter,

her brother, Sushil Kumar along with villager, Surya Narayan Sah, had brought her and gave information about the occurrence. Father of the

informant told the occurrence to the villagers. The villagers caught the boy. Thereafter, boy was brought to the door of Ram Lochan Sah. He admitted

his guilt before the villagers. Thereafter, father of victim was bringing the victim to the Police Station for lodging the case, then Neto Yadav, and Anil

Yadav persuaded the informant to return back and brought her to Dr. Poddar, where she got treatment. Thereafter, the informant was brought to the

house by her father. Panchayati sat on 20.06.2005 in which Neto Yadav, Anil Yadav, Mahendra Yadav, and Vidyanand Yadav asked the father of

the informant not to lodge the case and threatened him that they will be ousted from the village, if case is lodged. He will be given 10 Kathas of land

for treatment and maintenance. They told that registry of 10 Kathas of land has been done on 21.06.2005. Panches had taken rupees eleven thousand

as cost for registration, but they have not handed over the document. The accused persons confined the father of the informant and did not allow him

to go to Police Station. Thereafter, the informant came to the Police Station stealthily on 27.06.2005 to lodge the case.

Charge has been framed against the accused Appellant Ao.1, Arun Kumar Yadav for the offence under Section(s) 376 Indian Penal Code and

against Appellant No.2, Vidyanand Yadav, for the offence under Section(s) 201 Indian Penal Code. They faced trial and have been convicted and

sentenced as mentioned above.

The defence has not examined any witness.

Defence case is that father of the victim girl has obtained sale deed executed by accused Vidyanand Yadav for 10 Kathas of land, but

consideration amount was not paid within the due time by the father of the victim. Being aggrieved, appellant, Vidyanand Yadav, did not return the

Chirkut of the sale deed to the father of the informant. This caused the father of the victim irritated and he instituted this false case making false

allegation.

Prosecution has examined altogether eight witnesses to prove the case.

Nirmal Kumari, PW 5, is the informant and the victim of the case. She has stated in her examination-in-chief that she was returning on the date of

occurrence after performing Puja. She saw Arun Yadav, sitting in Patuaa field. He told her to pick up grass, which she denied. Thereafter, he caught

hold her hand and brought her in Patuaa field. He tied her both hands and legs with Patuaa and committed rape with her by shutting her mouth.

Accused caused injury to her private part with his hand. She became unconscious. She was in her house when she got consciousness. She saw her

father and mother in the house. She told her mother and father that Arun Yadav has forcibly committed rape with her. She was brought to the police

by her father and mother and case was lodged in Triveniganj P.S. Other witnesses also gave their thumb impression on the fard-e-beyan. Thereafter,

she was sent to hospital where she got treatment. Doctor gave stitches on her private part and also gave some medicines to eat. Thereafter, police

arrived in the village in evening. They were taking her to lodge the case then Mahendra Yadav, Vidyanand Yadav and Neti Yadav persuaded her to

return and said that they will not allow them to live in the village if she will file the case. They brought her to Dr. Poddar. The Doctor showed his

inability to treat her. Thereafter, she came to her house. Panchayati was held on the next day. Vidyanand Yadav forcibly took the father of the

informant to Panchayati. She after 7-8 days stealthily came to Triveniganj for lodging the case.

In para 8 of her cross-examination, she has stated that when Arun Yadav was committing rape with her, she became unconscious. He had put his

Lungi in her mouth.

Dr. Nutan Verma has been examined as PW 1. She had examined the victim on 28.06.2005. She has stated in her evidence that vagina was torn.

Stitches were given by her in Operation Theater. No blood was oozing as dressing was done earlier. In vagina, white curdy discharge was present.

The doctor had found abrasion 5†x 4.5†over both side of back and both scapular region and epidermal abrasion over sacroiliac region over right

back of pelvis 1†x ½â€. Victim had painful movement and she was limping. Her age was about 10 years. The victim was mentally shocked and

afraid while she was being examined. She was scared but co-operative and mentally normal. Vaginal swab was taken and sent for radiological

examination at Sadar Hospital, Saharsa. The Doctor has said that from all aspects of above examination, it is a case of rape. She has proved the

Medical Report, which has been marked as Ext.1.

In cross-examination, it has been stated that abrasion found by her on the person of the victim was of within 24 hours. She has not mentioned age of

the injuries found on the person of the victim. In para 13 of his cross-examination, this witness has stated that she has mentioned age of the victim as a

guess work, but she cannot be aged 14 years as she had not developed secondary sexual character. In cross-examination, this witness has stated that

she found white curdy discharge in vagina. White curdy discharge in vagina can remain in vagina up to 72 hours.

Buchani Devi, PW 2, is mother of the victim girl. She has stated that her daughter was raped by Arun Yadav in Patuaa field while she was

returning after Puja. Age of her daughter was 10-11 years. She was raising halla in Patuaa field. Sushil Kumar and Surya Narayan Sah brought her

after hearing the sound of cry. She was slightly unconscious. She sprinkled water on her face and gave her milk to drink then she regained

consciousness. She told her after regaining consciousness that Arun Yadav has committed rape with her in Patuaa field. Private part of the victim

was injured.

In para 11 of her cross-examination, she has stated that she has not seen the occurrence with her own eyes. Her son, Sushil Kumar brought her to the

house. She was unconscious at that time. In examination-in-chief, this witness has stated that she along with her husband and victim were going to

Police Station to lodge the case, but near Pool, Neti Yadav, Vidyanand Yadav and Mahendra Yadav forcibly got them returned to the house and told

them not to file the case. Panchayati was called on the next day at the initiative of Vidyanand Yadav, Neti Yadav and Mahendra Yadav. Vidyanand

Yadav told that he will give 10 Kathas of land, but her husband refused to take the land. Vidyanand Yadav, Neti Yadav and Mahendra Yadav took

her husband on a cycle to Triveniganj and executed sale deed, but did not handover the document to him. Her daughter remained in the house for 3-4

days. She used to cry on account of pain. Triveniganj Police sent her daughter for medical examination.

Sushil Kumar, PW 3, is the brother of the victim girl. He has stated that he along with Surya Narayan Sah, was taking rest in orchard. He heard

sound of crying of Nirmal Kumari (victim). He along with Surya Narayan Sah went in the field and found Nirmal Kumari lying unconscious in Patuaa

field of Mahadev Yadav. He also found blood stain in her Pant. He and Surya Narayan Sah brought Nirmal Kumari to the house in unconscious state.

He found that Nirmal Kumari was raped. His mother sprinkled water on her face and also gave milk to drink. Then she regained consciousness. She

after regaining consciousness told to the mother that Arun Yadav has committed rape with her while returning from Puja. His father, mother and

victim, Nirmal Kumari, were going to Police Station to lodge the case. The accused persons got them returned and gave threat that they will not allow

them to live in village if they will file the case. The accused persons called Panchayati. In Panchayati, they told that they will give 10 Kathas of land to

his father. They took the father of the informant on a motorcycle to Triveniganj and executed a sale deed, but did not handover the document. Case

was registered on the basis of the statement of victim, Nirmal Kumari, in Triveniganj Police Station. Police also took statement of his father, mother

etc. and sent Nirmal Kumari for medical examination to Supaul where she was medically examined by Dr. Nutan Verma.

In para 15 of his cross-examination, he has stated that he has not seen the occurrence from his own eyes.

Surya Narain Sah, PW 6, has stated in his evidence that on the date of occurrence between 9-9.30 AM, he along with Sushil Kumar was in the

Chaur. He heard sound of crying and went to Patuaa field and saw Nirmal Kumari crying. She was unconscious. He brought her to her house.

Thereafter, he went to his land. Thereafter, he again came to the house of Nirmal Kumari and saw that victim girl after regaining consciousness was

speaking to her mother that Arun Yadav has committed rape with her. Mother of the girl told about the occurrence to her husband. Basudeo and

Sukhdeo brought Arun Yadav. Arun Yadav was sent to the Police Station. Nirmal Kumari was taken to Triveniganj by her parents. Thereafter, this

witness came to his house. Police came after eight days of occurrence and recorded his statement.

In cross-examination, he has stated that he has not seen occurrence with his own eyes.

Mahadeo Sah, PW 7, has stated in his evidence that his niece, Nirmal Kumari, who is daughter of Basudeo Sah, was returning her house after

Puja. When she reached near Nahar, then Arun Yadav, who was hiding himself in Patuaa field, told her to pickup the grass. When she refused then

he brought her in Patuaa field and after tying her hands assaulted her and committed rape with her after removing her Pant. The girl became

unconscious. Sushil Kumar heard cry of the girl and came running to the place of occurrence along with Surya Narayan Sah. They took the victim girl

to the house where several persons assembled. Arun Yadav did not listen to Panchayati. The girl after regaining consciousness told about the

occurrence to him. The girl got treatment in the hospital. Condition of the victim became serious after retuning to the house. Police of Triveniganj sent

the victim girl to Supaul Hospital for better treatment where she got treatment by Dr. Nutan Verma.

He stated in his cross-examination that he gave statement after 8-10 days of the occurrence. He had told the police that Sushil Kumar heard cry of

the girl and he along with Surya Narayan Sah reached the place of occurrence. He was not present in the village on the date of occurrence. He had

gone to earn livelihood. He returned to the village at about 2-2.30 PM and then he learnt about the occurrence from his family members. The niece,

Nirmal, also told him about the occurrence. She also told that Sushil and Surya Narayan Sah had gone to the place of occurrence. His niece was fully

unconscious. She regained consciousness after about half an hour. He found scratch on both sides of her back. The girl had told that accused Arun

Yadav has also assaulted her and tied her mouth. Thereafter, he committed rape with her on account of which she became unconscious.

Basudev Sah, PW 4, is the father of the victim. He has stated that his daughter, Nirmal Kumari, had gone for Puja at 8.30 AM. She was returning

to her house after Puja at 9.30 AM. Arun Yadav, who was hiding in Patuaa field, told his daughter to pickup the grass. She denied on the pretext that

she is hungry then Arun Yadav forcibly dragged her to Patuaa field and tied both her hands by Patuaa and assaulted her. He also committed rape with

her after shutting her mouth with Lungi. She became unconscious. Accused left Nirmal Kumari in Patuaa field of Mahadeo Yadav. She was crying in

Patuaa field. His son, Sushil, and villager, Surya Naryan Sah, went on hearing cry of his daughter and found Nirmal Kumari was crying. They brought

her to the house. Several villagers arrived in the house. His wife was also present in the house. Water was sprinkled on the face and thereafter she

regained consciousness. She told about the occurrence to her mother and other family members present in the house. The female members saw Pant

of the victim was wet with blood. Wife of this witness and other female members found injury on private part of Nirmal Kumari. He wanted to lodge

the case, but villagers told that they will bring the boy. They brought the boy Arun Yadav, who admitted his guilt. He along with his wife and victim

was going to Police Station for lodging the case, but, Vidyanand Yadav, Mahendra Yadav etc. persuaded him and forced him to return. Vidyanand

Yadav told him to not lodge case. He will give him land. Vidyanand Yadav threatened this witness that he will be ousted from the village, if he will

lodge the case. The girl was first taken to Dr. Poddar, who did not give treatment as condition of Nirmal Kumari was serious. Vidyanand Yadav

called Panchayati on the next day and admitted guilt of his son and told the informant to not lodge the case. He offered to give 10 Kathas of land to

Nirmal Kumari for maintenance to which this witness did not agree. Thereafter, Neti Yadav, Vidyanand Yadav forcibly took him to Triveniganj

Registry Office and took rupees eleven thousand from his as registration cost. Vidyanand Yadav and Mahendra Yadav were not allowing this witness

to take his daughter for medical treatment. He along with his wife and victim, Nirmal Kumari, stealthily went to the Police Station after 5-6 days of the

occurrence. Other family members of this witness also accompanied. Police recorded fard-e-beyan of Nirmal Kumari on which Nirmal Kumari gave

her thumb impression. This witness has also put his signature on the fard-e-beyan. His brother, Mahadeo Sah, also put his thumb impression on the

fard-e-beyan. Victim was sent to Supaul Hospital from Triveniganj. Dr. Nutan Verma, Medical Officer examined her. She again returned to Police

Station from Supaul Hospital. Thereafter, she went to her house. Accused persons did not give him Chirkut of execution of land. This witness does not

know even which land was given to him. In para 8, he has stated that Neti Yadav has got his signature on two blank papers by force.

In cross-examination, he has stated that his daughter had gone for Puja alone. In para 16 of his cross- examination, he has stated that he has not seen

the occurrence from his own eyes. He learnt about the occurrence firstly from his younger son, Om Prakash, who informed him to return home

immediately as Nirmal Kumari is not well. He returned to house and his wife told him about the occurrence. His daughter, Nirmal Kumari, also told

him about the occurrence later on. He informed Neti Yadav and Mahendra Yadav about the occurrence. He along with his wife and Nirmal Kumari

proceeded for filing the case via soling road, but he could not reach Police Station. In para 26 of his cross-examination, he has stated that he had not

called any Panchayati. He was taken in Panchayati by Vidyanand Yadav.

Vijay Kumar Gupta, PW 8, is the Investigating Officer of the case. He has stated that he recorded fard-e-beyan of victim, Nirmal Kumari, aged

about 11 years. He took up the investigation of the case. He recorded statement of victim and other witnesses. He sent the victim girl for medical

treatment to Supaul Sub-Divisional Hospital. He also recorded statement of victim, wherein, she has fully supported the case. He also recorded

statement of Basudeo Sah, Buchni Devi, Surya Narayan Sah, Sushil Kumari, Mahadeo Sah etc., who all have supported the occurrence as mentioned

earlier. He procured the Medical Report of the victim from Dr. Nutan Verma. He submitted charge-sheet against both the

appellants.

He has stated in his cross-examination that the date of occurrence is 19.06.2005. fard-e-beyan was recorded on 27.06.2005. He has investigated

about the delay in lodging the farde-beyan and come to the conclusion that the villagers were forcing the victim and her parents to not lodge the case

on account of Panchayati. During cross-examination, attention of this witness was drawn by the defence with regard to contradictions in respect of

earlier statements given by the witnesses before the police and their evidences in the Court.

In this manner, from the evidence of the witnesses, as discussed above, it appears that the victim girl, Nirmal Kumari, PW 5, has fully supported

her case in her evidence levelling specific allegation against the appellant, Arun Yadav, of committing rape with her after taking her into Patuaa field.

She was cross-examined at length by the defence. She has fully corroborated the time of occurrence, place of occurrence and manner of occurrence

in her cross-examination in para 5, 6, 7 and 8. She has categorically stated about committing of rape by the accused. She sustained bleeding injury in

her private part. She has given vivid picture of occurrence and how she was raped by the accused person in her cross-examination in para 8 and 9.

She has stated in para 12 of her cross-examination that after the occurrence there was blood stain on her clothes, but she does not know whether

those clothes were seized by the police or not.

Dr. Nutan Verma, PW 1, Medical Officer, Sub Division Hospital, Supaul, who examined the victim, Nirmal Kumari, submitted Medical Report,

which has been marked as Ext.1. As stated in her evidence, she found vagina was torn and stitches were given in vagina in operation theater. She has

further stated in her evidence that from all aspect of above examination, it is a case of rape. In para 15 of cross-examination, this witness has stated

that she found white curdy discharge in the vagina. She has assessed her age to be 10-14 years. PW 3 and 6 have stated that they have brought the

victim girl to her house from Patuaa field on hearing her cry in unconscious state. She told them about the occurrence levelling specific allegation of

rape against Arun Yadav after regaining consciousness in the house. Similarly, father of the victim (PW 4) and mother of the victim (PW 2) and the

independent witness, Mahadeo Sah, (PW 7), have all supported the case and have stated in the evidence that they reached the house of the informant.

Victim girl told them that appellant, Arun Yadav, has committed rape with her. The Investigating Officer, PW 8, has found the case true after

investigation. Defence has not adduced any evidence to contradict the allegation made against the accused and to prove the defence that instant case

has been filed by the informant falsely to get the sale deed executed with respect to 10 Kathas of land from Vidyanand Yadav, Appellant No.2.

This Court from the evidence of the victim girl, who is aged about 10-14 years, as mentioned by the Doctor and also the Medical Report of the Dr.

Nutan Verma and the evidence of other witnesses, namely, PW 2, 3, 4, 6 and 7 and also the evidence of the Investigating Officer (PW 8), comes to

the opinion that judgment of conviction and sentence passed by the Court below against the Appellant No.1, Arun Yadav, is after proper

appreciation of evidence of the witnesses. The defence has not been able to discredit the evidence of the victim (PW 5) and other witnesses.

This Court does not find any motive of the victim girl, PW 5, aged about 10-14 years, to give false evidence. The Doctor has also no motive to give

false report supporting the evidence of the victim. There is no evidence, at all, brought by the defence to show false implication of the accused persons

by the prosecution party. It further appears that the Trial Court after considering all aspects of the case has sentenced Appellant No.1, Arun Kumar

Yadav, to undergo rigorous imprisonment for seven years under Section 376 Indian Penal Code.

Therefore, conviction and sentence passed against the Appellant No.1, Arun Kumar Yadav, is hereby confirmed.

So far evidence with regard to Appellant No.2, Vidyanand Yadav, is concerned, there is no evidence, at all, to brought charge against him for the

offence under Section(s) 201 Indian Penal Code.

Therefore, impugned judgment of conviction and sentence passed against Appellant No.2, Vidyanand Yadav, is hereby set aside. He is acquitted

of the charge under Section(s) 201 Indian Penal Code.

Bail bond of Appellant No.1, Arun Kumar Yadav, is hereby cancelled. He is directed to surrender in the Court below immediately for undergoing

the sentence as ordered by the Trial Court by the impugned judgment.

In the event, Appellant No.1, Arun Yadav, does not surrender in the Court below, the Court below will take appropriate steps in accordance with

law for arrest of Appellant No.1, Arun Yadav, to undergo the sentence as awarded to him.

This appeal is, accordingly, allowed in part.