Bhagwan Prasad vs The State of Bihar

B.N.P. Singh, J.—As the Appellant was usually visiting house of Sirajuddin Mian, no one suspected foul play when in the night of 26th November 1987 at about 9 PM he got the door of his house opened, and on false pretext of illness of Sirajuddin Mian took Taira Khatoon and her mother to (Barkagaon. After Sirajuddin Mian came to his house he did not find his daughter and wife and on enquiry made from his younger daughter he came to know that both his wife and daughter had accompanied the Appellant on his persuasion. Further enquiry was made by the father and eventually he came to know that Appellant had committed sexual assault on Taira Khatoon and with these accusation the prosecution as launched on behest of Sirajuddin Mian pursuant to which investigation commenced. During investigation the police made recovery of Taira Khatoon and apprehended the Appellant got the prosecutrix examined by the Doctor visited the place of occurrence and on conclusion of investigation laid charge sheet before the Court. In the entual trial that commenced the prosition examined altogether 6 witnesses lading the prosecutrix her parents the Doctor and also the police officer.

The defence of the Appellant both fore the trial Court and this Court was nial of entire allegations and he ascribed false implication. The explicit defence of Appellant at trial was that the prosecutrix is married to him and she had also inceived as a consequence of the wed(sic) and hence he was not answerable for charges of abduction of the prosecutrix commission of sexual assault on her.

The defence too examined two witnesses including Dr. Suman Kumar, D.W. 2 who stated to have recorded a finding about the prosecutrix to be of 16 years and the trial Court on evaluation of testimonies of the witnesses though did not find the Appellant guilty either u/s 363 on 366 of the Indian Penal Code, recorded verdict of guilt u/s 376 of the Indian Penal Code, finding the Appellant guilty on that count and sentenced him to suffer rigorous imprisonment for a term of 10 years.

Contentions raised at Bar on behalf of the Appellant was that once the trial Court had recorded finding of innocence against the Appellant u/s 363 and 366 of the Indian Penal Code, no finding of guilt could have been recorded u/s 376 of the Indian Penal Code and it is sought to be urged that since volume of documents placed on records on behalf of the Appellant would suggest that the Appellant had married the prosecutrix no finding of guilt could have been recorded for ravishing her. The other contention raised at Bar on behalf of the Appellant was that in her statement which she rendered before the Magistrate u/s 164 of the Code of Criminal Procedure, she had belied the accusation attributed to the Appellant about he having committed sexual assault on her contrary to her wishes and last argument urged on behalf of the Appellant was that since the Appellant has suffered ordeal of protracted trial for about 15 years and has remained in custody both as under trial prisoner and also during the post constriction period for about 39 months these mitigating circumstances too be taken into consideration while imposing sentence on him if he is found guilty of the charges recorded by the Court below. Learned Counsel appearing for the State resists the contentions raised on behalf of the Appellant.

Those on whom reliance can be placed to seek corroboration to the prosecution version, include Maitoon Khatoon P.W. 3 who happens to be mother of the prosecutrix and also P.W. 4 Taira Khatoon who was the prosecutrix herself. The facts of the case are tell a tale which are not required to be discussed in details as the same have been spelt out in the judgment recorded by the court below. However, for the sake of brevity evidence of vital significance merits consideration. Both P.Ws. 3 and 4 were inside their house in the night of incident when the Appellant who had been usually visiting their house since last one year, knocked the door got it opened pursuant to which he took both the mother and the prosecutrix in his company on false pretext of ailment of Sirajuddin Mian, the father of the prosecutrix. The evidence placed on record do suggest that he took them to Barkagaon where he confined the prosecutrix in a room and eventually committed sexual assault on her. Though there was no evidence on the record about prosecutrix having been clinically examined by the Doctor for ascertainment of commission of sexual assault on her there was no good reason to discard reliability of P.Ws. 3 and 4, as prosecutrix deserves to be treated like an injured witness and in case of sexual assault no one can be expected to be a witness other than the victim. Though attention of the witnesses were drawn by the defence which was rendered before the police they were not on material facts of the case which can negate their assertion about commission of sexual assault on Taira Khatoon. The trial court while evaluating evidence of the witnesses had also taken into consideration the finding recorded by the Doctor Suman Kumar, D.W. 2 and other circumstances of the case and came to conclusion that prosecutrix at the material date of incident was quite major. Be that as it may the evidence unfailingly would suggest that the prosecutrix was taken from her house on false pretext, pursuant to which she was subjected to sexual assault by the Appellant and on these premises the conclusion drawn by the trial Court finding the Appellant guilty u/s 376 of the Indian Penal Code did not merit interference. However, certain mitigating and extenuating circumstances deserve consideration for consideration of sentencing the Appellant. Volume of documents were placed on record on behalf of the Appellant to which attention of the prosecution witnesses were also drawn by the defence though they were negatived them. Ext. D was an informatory petition filed by none else but the prosecutrix on 17.11.87 in which she stated to have married the Appellant on her own motion as she was carrying pregnancy of 5 months 1 Ext. F was a report submitted by the police officer u/s 107 of the Code of Criminal Procedure with regard to Sanha No. 607 dated 27.11.87 about the prosecutrix having married the Appellant and residing with him. Similar was the case with Ext. F/1 which was a report submitted by the police in a proceeding u/s 107 of the Code of Criminal Procedure with regard to Sanha No. 607 dated 27.11.87. All these evidences placed on record would manifestly suggest that though the prosecutrix had turned volte face she having married the Appellant these documents would belie the assertion made by her. It has been brought to my notice by the learned Counsel for the Appellant that he has remained in custody for about 39 months. Regard being had to these mitigating and extenuating circumstances while upholding the conviction the Appellant is sentenced to the period already undergone by him and with this modification in sentence this appeal is dismissed.