Bhola Yadav S/o Upendra Yadav vs The State of Bihar

This appeal is directed against the judgment dated 10.07.2014

and order of sentence dated 16.07.2014, passed by Sri Sanjay Kumar

Singh, Adhoc Additional Sessions Judge, -Ist, Banka, in Session

Trial No. 58 of 2008, by which he has convicted the appellant under

section 376 of the Indian Penal Code and sentenced him to undergo

rigorous imprisonment for ten years with a fine of Rs. 10,000 and in

default of the payment of fine, further R.I. for six months.

Brief facts necessary for adjudication of the present appeal are

that the informant -Phool Kumari gave her written statement in

Dhoraiya police station alleging inter alia that on 29.04.2007 at 4.

P.M. when she was returning from the house of her maternal aunt

situated at village - Pachrukhi, along with brother- Kundan and

maternal grand mother Gauri Devi then appellant Bhola Yadav meet

them in between and maternal grand mother of informant asked the

Bhola Yadav as to where he was going, on which he replied that he

was going in search of his cow. Thereafter, the maternal grand mother

of the informant returned to her house and informant and her brother

proceeded towards their house situated at village - Raghunikita and

when they reached near the primary school, Appellant - Bhola Yadav

stopped them and asked for something from the informant and told

her brother to go away from there. Thereafter, appellant committed

rape on her near the hand - pump by threatening her to kill.

Thereafter, both informant and her brother reached their house

weeping and a panchayati was held in this regard but the appellant

denied the allegations and did not comply the order of panchayat.

On the basis of above written statement filed by the informant

in the Court of CJM, Banka, the case was sent for registration of F.I.R

and, thereafter, Dhoraiya P.S. Case No. 43 of 2007 was registered

against the appellant under Section 323 and 379 of the Indian Penal

Code.

Police after investigation submitted charge-sheet against the

appellant under Section 341, 323 and 376 of he Indian Penal Code .

Cognizance of the offence was taken by the CJM, Banka and

case record was sent to different courts for trial, however, the same

ultimately traveled to the file of Sri Sanjay Kumar Singh, learned

Adhoc Additional Sessions Judge, -Ist, Banka, for trial and disposal.

Charges were framed under Section 376 of Indian Penal Code

against the appellant.

In this case altogether Seven witnesses have been examined

from the side of the prosecution and they are: P.W. 1- Mahendra

Yadav, P.W. 2- Pramila Devi, P.W. 3- Gauri Devi, P.W. 4- Kundan

Kumar, P.W. 5- Phool Kumari (informant /victim girl), P.W. 6- Dr.

Kaushalya, who conducted medical examination on the victim girl,

P.W. 7- Geeta Devi (Mother of the victim girl).

Apart from the above, following documents have been admitted

into evidence and marked as ; Ext. 1 - Medical examination of Victim

girl - Phool Kumari.

From the defence side also one witness has been examined,

who is D.W. 1 - Dinesh Singh and following documents have been

admitted; Ext. A - Panchnama, Ext. A/1 - Signature of Ashok Kumar

and Ext. A/2 - Signature of Upendra Yadav on Panchnamae.

It appears from the suggestion given to the witnesses and his

statement under Section 313 Cr.P.C, the defence of the appellant is of

false implication and complete denial of allegations leveled against

him.

Learned Trial Court after conclusion of trial convicted the

appellant under Section 376 and sentenced him as stated above.

Aggrieved by the said judgment, the appellant preferred the

present appeal.

Learned counsel for the appellant has assailed the judgment and

conviction of the appellant on the ground that there are serious

infirmities in the prosecution story as it has come in the evidence of

girl that at the place of occurrence, there were many houses beside the

road and she had also raised hulla but surprisingly none came to save

her and further she was accompanied by her brother as admitted by

the girl but it is difficult to believe that P.W. 4 brother, did not make

any effort to ask anyone to save his sister or he himself did not make

any effort to raise any hulla. It has also been submitted that there is

considerable delay in lodging the F.I.R, for which no plausible

explanation has been offered. It has also been submitted that no such

occurrence has taken place rather her family members were interested

in getting the girl married with the appellant and earlier a talk has also

been had, but when the appellant refused, they got a panchayati held

at the house of the father of the appellant, in which father of the

appellant was fined Rs. 15,000/- but when he refused to pay the said

amount, they have lodged the present false and concocted case, which

will appear from evidence of D.W. 1 as well as Ext. A. and P.W. 9 has

also admitted about the story of panchyati and also admitted that she

had gone in panchayati. Falsity of the prosecution case will also

appear from the fact that on medical examination of the girl, no sign

of rape has been found. It has further been submitted that in this case,

there is no independent witness, whereas it has been alleged that the

occurrence took place in the evening behind the school, which was

beside the road and on the other side of the road, there were many

houses, which itself casts a serious doubt about the prosecution story.

Further in this case, Investigation Officer has not been examined,

which has caused serious prejudice to the appellant. It has also been

submitted that father of the victim girl did not come forward to depose

in this case, though he was present in the panchayati. On the basis of

the above, it has been submitted that the learned trial court without

considering all these vital facts has convicted the appellant under

Section 376 of Indian Penal Code, which is bad in law and no

sustainable.

On the other hand, learned counsel for the State has submitted

that there are consistent and reliable evidences of P.W. 5 victim girl

and P.W. 4 brother of the victim girl available on record to show that

the appellant had forcibly committed rape on the victim girl, which

has been supported by other witnesses also. It has also been argued

that it is well settled that conviction under Section 376 Indian Penal

Code can be based only on the sole testimony of prosecutrix even in

absence of corroboration by medical evidence, therefore, there is no

infirmity in the judgment of trial court and appellant has rightly been

convicted under Section 376 of Indian Penal Code.

P.W. -5, Phool Kumari is the victim girl in this case and she has

stated in her evidence that one and half year ago at 4 P.M., she was

returning from the house of her maternal aunt along with her brother

Kundan Kumar and when they reached near the school, Bhola Yadav

beaten her brother and forced him to leave the place and appellant-

Bhola Yadav took her behind the school and raped her. Thereafter,

they reached their house and on the next day, She went to

Banka,Court and after that she went to Dhankund Police Station. In

her cross-examination, first she stated the she had gone to the house of

her maternal aunt on Sunday and again she stated that she had gone to

her maternal aunt house on Monday and came back on Sunday.

Further she stated that she proceeded from the house of maternal aunt

at 4.00 P.M. It has also been submitted that the school behind which

the rape was committed to her, was situated in village Chalni and in

front of school, there is road and there were several houses in the east

and north side of the school and behind the school, there was open

field and she had also cried but none has come to save her. She further

stated that she did not disclose the occurrence to anyone there as she

was not known to any person of the said village. Further her evidence

in cross-examination shows that she disclosed the whole occurrence at

her house and the case was filed after six to seven days. Further she

denied a suggestion put to her that there was talk of marriage between

her and appellant.

P.W. 4 is brother of victim girl, Kundan Kumar and he has

supported the case of prosecution and has stated that one and half

years ago, he was returning from the house of his maternal

grandmother along with his sister and maternal grandmother has also

accompanied them for some distance but she returned back from

village Degmara and when they reached near Chalani School,

appellant Bhola Yadav started beating him by belt and committed

rape on her sister. In his cross-examination, this witness has stated

that Daroga Ji had come to his house but he did not enquire about the

matter from him. Further this witness has stated that he knows

appellant - Bhola Yadav, he is resident of village - Pachrukhi. His

evidence further disclosed that the occurrence is of late evening and

none was present there except he, his sister and appellant Bhola

Yadav. His evidence also disclosed that he and his sister raised alarm

but none came as the basti was far away from the school. It has also

been submitted by him that his sister returned after about half an hour

and, thereafter, they proceeded towards their home. Further this

witness denied a suggestion put to him that whatever he has deposed,

he has deposed on the instruction of his father.

P.W. 1 - Mahendra Yadav, he has stated in his evidence that

the victim girl is daughter of his ?Sarhu? (brother-in-law) and a year

ago Phool Kuamri (victim girl) told him that when she was returning

to her house along with her brother and ?Nani? (maternal

grandmother) and ?Nani? had returned back to her house after leaving

them for some distance and when they reached near the chalni school,

appellant caught her and beaten the boy and, thereafter, committed

rape on the Phool Kumari (victim girl). In her cross-examination, this

witness has admitted that he has not seen the occurrence rather the

whole story was disclosed to him by the victim girl - Phulo Kumari.

Further he denied a suggestion put to him that there was previous

enmity between the parties.

P.W. 2, is the Pramila Devi and from her evidence as well as

her cross-examination, it appears that she is not the eye witness of the

occurrence rather she is only the hearsay witness.

P.W. 3 - Gauri Devi, is ?Nani? of victim girl, Phulo Kumari, She has

supported the prosecution story with regard to commission of rape on

victim girl - Phula Kumari, and has stated in her evidence that the

occurrence is of prior to one and half year and at 4 P.M. while she was

accompanying with her grandson and granddaughter, where she saw

that Bhola Yadav was asking for his cow to some boy and after

leaving the grandson and granddaughter for some distance, she

returned back to her house. In her cross-examination, this witness has

stated that she is not the eye witness of the occurrence.

P.W. 6 is Doctor Kaushalya, who conducted medical

examination on the victim girl - Phulo Kumari, and has proved

medical examination report in her handwriting and signature and has

stated in her evidence that no foreign body was found on the private

part of the girl. Further the hymen was found torn. Further she has

stated that vaginal swab was taken and the same was sent for

microscopical examination for presence of spermatozoa. Further she

opined that no definite opinion can be drawn with regard to recent

sexual intercourse with the girl - Phulo Kumari and her age was

ascertained as sixteen years. In her cross-examination she has stated

that vaginal swab report was not produced before her.

P.W. 7 - Gita Devi is mother of victim girl - Phulo Kumari,

and she has supported the prosecution story with regard to

commission of rape on the girl and has stated in her evidence that

about four and six months ago, her daughter - Phulo Kumari and her

son Kundan Kumar had gone to village Pachrukhi to take her mother

to her house and in the evening at 4 P.M. they were returning from

village- Pachrukhi and when they reached near the Chalani school,

appellant - Bhola Yadav committed rape on her daughter and beaten

her son and, thereafter, they returned to their home and informed

about the occurrence to her and villagers. Next day, her Gotiya

Saryug Yadav, Mahendra Yadav and others went to the village

Pachrukhi for panchayati but father of Bhola Yadav did not accept the

verdict of Panchayati. Further this witness had admitted that she was

not the eye witness of the occurrence and she had gone to the police

station and, thereafter, had gone to the hospital for the treatment of her

daughter and son. Further she denied a question put to her that there

was talk of marriage between the victim girl - Phulo Kumari and

appellant Bhola Yadav and when the marriage was not solemnized,

appellant has falsely been implicated in this case.

Considering the evidence as discussed above in the background

of submissions advanced by learned counsel for the appellant as well

as by learned counsel for the State, it appears that defence of the

appellant is that there was a talk of marriage between the appellant

and the prosecutrix, which failed and a panchayati was held in that

connection, in which father of the appellant and father of the

prosecutrix were present and it was decided in the panchayati that

father of the appellant shall pay Rs. 15,000/- to the father of the

prosecutrix as fine, but as father of the appellant failed to pay the said

amount, case has been filed against the appellant. A panchnama was

also proved as Ext. A and L.T.I. of father of the prosecutrix as Ext.

A/1 with objection. Prosecution denied such panchyati and further

denied L.T.I. of father of prosecutrix in the said panchayati and

further submission is that evidence of D.W. 1, in para -5 of cross-

examination shows that there was no panch from the side of the

prosecutrix and signatures of prosecutrix as well as her mother is not

over that. On perusal of the said Panchnama, it is very much clear that

there is L.T.I. claimed to have been of father of the prosecutrix and in

evidence in chief D.W. 1 has also stated so but neither there is any

cross-examination on that point nor the prosecution has challenged the

genuineness of the L.T.I., said to be of father of the prosecutrix nor

any suggestion was given that father of the prosecutrix was not

present, nor prosecution has examined father of the prosecutrix as

prosecution witness, undoubtedly, he is an important witness on the

point of panchyati. On the other hand, P.W. 9, mother of the

prosecutrix has also stated about the panchayati in para -2 of her

cross-examination and in para -3, she has admitted that panchayati

was held at the "Darwaza" of appellant Bhola Yadav and she has

gone there but she has stated that no panchayati was held. Panchnama

Ext. A, supports the defence version as stated above.

Apart from that, there is delay of seven days in lodging F.I.R

and instead of approaching the police directly, complaint petition was

filed and that too after lapse of seven days. It is well settled that in

rape cases delay of seven days is not of much consequence as

prestige of family members of the prosecutrix happens to be involved.

However, in the background of the discussion made above about the

Panchnama Ext. A., the possibility of false implication cannot be

ruled out. Evidence of prosecution also discloses that there are houses

in front of school, where rape was committed and evidence also

shows that the prosecutrix as well as her brother raised hulla but

surprisingly none has come forward to save them. Further, brother,

who was present there also did not make any effort call any other

person. The aforesaid circumstance also creates a doubt about the

veracity of the prosecution version as well as evidence of prosecutrix

and her brother. All the above infirmities in the background of

defence and Panchnama Ext. A shows that prosecution version is not

free from reasonable doubt especially when father of the prosecutrix

has not been examined and secondly, prosecutrix was examined by

Doctor Kaushalya P.W. 6 and she has also deposed that no definite

opinion can be given about possibility of rape. However, learned

Trial Court has not considered the above aspects and relying on the

evidence of prosecutrix P.W. 5 and other witnesses, has convicted the

appellant without appreciating the above infirmities.

Considering the entire discussions made above, it appears that

the prosecution has failed to establish its case against the appellant

Bhola Yadav beyond all reasonable doubts and thus the appellant

certainly deserves the benefit of doubt.

Accordingly, this appeal is allowed and the judgment dated

10.07.2014 and order of sentence dated 16.07.2014, passed by Sri

Sanjay Kumar Singh, Adhoc Additional Sessions Judge, -Ist, Banka,

in Session Trial No. 58 of 2008, is hereby set aside.

As the appellant is in judicial custody, he is directed to be

released forthwith, if not required in any other case.