Bhola Rabidas vs The State of Jharkhand

Pradeep Kumar, J.—The appeal is directed against the judgment and order of conviction dated 11.7.2001 pined by Shri Staring Dhar Singh, 5th Additional Sessions Judge, Dhanbad in Sessions Trial No. 354 of 1999 by which the judgment the appellant, Bhola Rabidas was convicted under Sections 376(1), 417 of the Indian Penal Code and sentenced him to undergo R.I. for 7 yearn u/s 366 A of the Indian Penal Code along with a fine of Rs. 5000/- , in addition to 7 years. He was sentenced to undergo R.I. for 7 years and a fine of Rs. 5,000/- and in default for 1 year R.I. u/s 376(1) of the Indian Penal Code He was also sentenced to undergo R.I. for 1 year u/s 417 of the Indian Penal Code. The sentences were directed to run concurrently, but the payment of fine was to be sentenced separately and he was directed to deposit a tine of Rs. 10,000/-, otherwise in default to undergo R. 1 for 2 years more.

The prosecution case was started on the basis of a Fardbeyan given by P.W.7, Manju Kumari on 13.5.99 stating therein that at about 10 hrs recorded by A.S.I. N.K. Singh of Kendu Police Station She Stated that she was aged about 17 years and in her Mohall the accused. Bhola Rabidas (sic) since last 3-4 months, he always used to tease her and wanted to marry her. On fast ''Saraswati Puja'' (sic) lefor marriage at marriage at Katras Temple and there he put vermillion on her head and said that now he is married and took her to the house of his brother-in-law by train and kept her confine in the house of his brother-in-law as his wife and also made sexual relation her. Thereafter, he brought her to her house and left her and said that he will many her again in (sic) of all the members of the society and caste people according to the Bindu Rites Subsequently, he used to visit and used to exploit her sexually. Then, she disclosed this matter to her family member and other neighboring people. Then a Panchyati was called, but the parents of the accused, Bhola Rabidas refused to keep her in their house. On 13.5.99 on her insistence the accused took her to his house, (sic) his parents refused to keep her without dowry then Bhola Rabidas also refused to keep her and ousted from his house. She stated that on the pretext of marriage accused has sexually exploit her and committed rape upon her.

On the basis of the said F.I.R. police revered a case u/s 376 of the Indian Penal Code and after investigation submitted charge-sheet u/s 366A and 417 of the Indian Penal Code.

The learned Chief Judicial Magistrate took cognizance of the case and transferred the case to the Court of SDJM, Dhanbad for commitment. Subsequently, the case was committed to the Court of Sessions and trial was held by the 5th Additional Sessions Judge, Dhanbad as slated above and the appellant was convicted as aforesaid.

It is submitted by the learned Counsel for the appellant that the finding of the trial court is bad in law and fit to IKS sol aside No case u/s 366A of the Indian Penal Code is made out because there was no kidnapping she went with the accused oat of her own will. Moreover, u/s 366A of the Indian Penal Code is not applicable because the kidnapping was not for the purpose of any illegal gratification of other persons and she was not forced to her sex with others, Me has further submitted that even u/s 366(1) of the Indian Penal Code is not made out because admittedly the appellant married her and they lived like husband and wife, hence the appellant is only fit to be acquitted from the charges.

On the other hand, learned Counsel for the State has opposed and submitted that the victim girl was not ready to go with the appellant, but on the pretext of marriage she was allured and taken to the temple by force where without any Pandit he put vermillion on her head and committed rape upon the victim girl, hence the finding of the trial court is well-founded and requires no inference by this Court.

After bearing both the parties and after going through the record, I find that in course of Investigation In order to prove the charges the prosecution has examined 8 witnesses. P.W.1, Roop Chand Das. P.W.2, Deepak Das, is brother of the victim girl. P.W.3, Savitri Devi, is sister of the victim girl. P.W.4, Kandhi Devi, is mother of the victim girl. P.W.5, Kuldeep Das and. P.W. 6, Shankar Das, are also brother of the victim girl P.W.7, Manju Devi is the victim girl and P.W 8 is Dr. Laxmi Pandey, who examined the victim girl.

The victim girl (P.W.7) supported her case, as given in the F.I.R., in Court and stated that on the date of occurrence the accused, Bhola Rabidas took her to the Katras Temple by force where he put vermillion on her head and thereafter, took her to the house of his brother-in-law at Loyabad where he kept her confine for two days and committed rape upon her. The accused, Bhola Rabidas by saying that she should not worry because she in now his wife. One day when he went out of the house then she ran away and told about the occurrence to her mother. Then they went to the house of the accused, Bhola Rabidas and asked his parents u, accept her marriage, but they refused then the case was lodged before the police station. She identified the accused in Court. In her cross-examine ion, she stated that she was knowing Bhola Rabidas since about 5-6 months before the occurrence. He used to allure her for marriage and on the pretext of the Marriage he committed rape upon her. P.W.1. Roop Chand Dai stated in Court that the accused, Bhola Rabidas on the pretext of marriage kidnapped his sister, Manju Devi they searched for Manju Devi, but failed to get her whereabout. When she came back she stated that Bhola Rabidas took her to Katras Temple and married her by putting vermillion on her head. The a Panchyati was called out where the family member of the accused said that they will perform the marriage in proper time, but Bhola Rabidas without marriage committed rape upon his sister. Another brother-P.W. 2, Deepak Das he also staled that in the last ''Saraswati Pooja'' the accused, Bhola Rabidas took her sister to (sic) temple he searched for his sister in the relative''s houses, but failed. Lastly, she was found in the house of brother-in-law of the accused, Bhola Rabidas. Then a Panchyati was called. P.W.3, sister of the victim girl, also staled in Court that two days before Saraswati Pooja Manju Devi left the house for bringing water, but when she did not return, she started search She stated that when she returned she stated that Bhola Rabidas kidnapped her and look her to the house of his brother-in-law and committed tape upon her there for two days. She identified the accused in Court. In her cross-examination, she stated that her sister told her on return that the accused had taken her to the house of his brother-in-law where he committed rape on her P.W.4, Kandhi Devi, mother of the victim girl also sifted that the accused, Bhola Rabidas had taken her daughter to Loyabad to the house of his brother-in-law. After two days when Manju Devi returned then she was weeping and told that she was taken by force and raped. Then the matter was reported to the police. She stated that she was taped by the accused, Bhola Rabidas in the house of his brother-in-law. In her cross- examination, she stated that no marriage was performed by Bhola Rabidas with his daughter in the temple and she never stayed at his house.

P.Ws. 5 and 6 have also supported the prosecution case and stated that their sister was taken by force by Bhola Rabidas to the house of his brother-in-law where he committed rape upon her P.W. 8, Doctor, who found the age of the girl to be about 18 years and also found no external or internal injury.

Thus, after going through the evidences, it is clear that the accused, Bhola Rabidas on the pretext of marriage took the victim girl to Katras temple where without any valid marriage he put vermillion on her head and thereafter he took her to the house of his brother-in-law where he made sexual intercourse with giving full assurance that they are now married. The victim girl has stated that when herleft her at his house after two days then also he assured that he will perform marriage in presence of the Society and caste man, subsequently, but her never did so. The aforesaid facts fully corroborate that the accused, Bhola Rabidas made show of marriage by putting Sindur "vermillion" on the complainant''s forehead in fron of (sic) made the victim, Manju Devi believed that she was lawfully married wife of the accused and with such believe she in the case of Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, that if the victim girl gives consent believing that she is married then it is no consent and to overcome to this difficulty, the legislature intervened and induce u/s 114A of the Evidence Act.

Section 114-A Presumption as to absence of consent in certain prosecutions of rape - In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d), or Clause (e) or Clause (f) or Clause (g) of Sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

Accordingly, in the view of law settled by the Supreme Court as stated above, this Court finds that the accused committed rape upon the victim girl and also kidnapped her with that intention.

Accordingly, I find nothing wrong in the finding of conviction and sentence passed by the trial court, he has rightly found him guilty u/s 366A, 376(1) read with Section 417 of the Indian Penal Code.

I find no merit in this appeal and the same is dismissed.

Since the appellant is on bail, the learned trial court is directed lo issue warrant of arrest against him.