Mahadeb Singh vs The State of Bihar (Now Jharkhand)

Pradeep Kumar, J.—On repeated call, nobody appears on behalf of the appellant to argue this case.

On the request of the Court, Mr. Pankaj Kumar argued this case as Amicus Curie.

The instant appeal is directed against the judgment of conviction and order of sentence dated 16.03.2000 passed in S.T. No. 179 of 1987 by Ekramuddin,, Assistant Sessions Judge , 1st Dhanbad by which judgment he found the appellant guilty u/s 376 of the I.P.C. and sentenced him to undergo R.I for seven years and the appellant has been acquitted for the charge under Sections 366 and 366A of the Indian Penal Code.

It is submitted by learned Counsel for the appellant that as per the prosecution case given by the prosecutrix herself that she had left her house with the appellant on her own free will to get married in the Court and on the date of occurrence i.e. on 12.12.1981 she had to go to Court for marriage but on the same day in the evening some neighbours raised objection of keeping her in his house by the accused. At the instance of neighbours, they were arrested by the police. Learned court below considered the case of the appellant and acquitted the appellant u/s 366 and 366A of the Indian Penal Code, but the Court had wrongly found the appellant guilty u/s 376 of the Indian Penal Code giving the finding that the appellant enticed the victim and she was raped against her own free will. In that view of the matter, conviction of the appellant u/s 376 of the Indian Penal Code is bad in law and fit to be set aside.

On the other hand, learned Counsel for the State submitted that the victim girl was living with the appellant because appellant promised the victim girl that he will marry her, but his intention was not to marry with her and the appellant made sexual inter-course with her for five days at his house, as such he has rightly been convicted.

After hearing both the parties and going through the records, the prosecution case was started on the basis of Fardbayan given by the victim girl, Muni Devi, stating therein that one month before the date of occurrence when she went to hydrant to take water, the accused namely, Mahadeb Singh, met with her there, who wanted to marry with her whereupon she said that I am ready to marry with him. Subsequently, the accused was remanded to jail custody in a dacoity case. When he was released, he again came to her one week before the date of occurrence, he told her that if her parents and brother were not ready to marry her with him, she should flee away with him to marry in the Court. She entangled in his trap and fled away with him. He took him to his house at Fulari Tand and assured her that he would marry with her in the Court. She stated that she came to the house of the accused and started living with him in the house at Fulari Tand where she stayed for five days and she was subjected to sexual intercourse and on 12.12.1981 when they were going to the Court for marriage, but on the same day, some neighborers raised objection on keeping her in his house by the accused. Thereafter, police came and arrested them on the basis of the said statements and registered a case under Sections 366, 366A and 376 of the Indian Penal Code and police after investigation submitted charge-sheet in the case. Since, the case was exclusively triable by the court of Sessions, learned Magistrate committed the case to the court of Sessions and subsequently the case was tried by learned Assistant Sessions Judge, 1st, Dhanbad, who found the appellant guilty u/s 376 I.P.C.

It appears that in the course of the trial, the prosecution has examined as many as three witnesses. P.W. 1 Muni Devi victim girl, P.W.2, doctor, Geeta Verma and P.W.3, Khagen Mandal, declared hostile. Thus, only P.W.I informant has stated that one month prior to occurrence she went to bring water from hydrant. The accused asked water from her. She offered water to him. The accused asked her that she would marry with him. She refused but after one month the accused again met her and kept proposal to marry with her and also enticed her to flee away. She fled away with the accused from the house of her parents. The accused kept her in the house for five days during that time accused established sexual intercourse with the prosecutirx and while we were going, on the date of occurrence on 12.12.1981, to the Court for marry, police arrested us. P.W.2 (Doctor) has stated on 13.12.1981 that she examined the informant that the informant is aged about 20 years i.e. she is major and she(doctor) did not find any mark of injury over any part of the body of the informant. On examination of her private part she found that pubic hair developed but not matted, old rapture of hymen, discharge (+). Report of high vaginal swab-spermatozoa was detected on examination of the slide as reported by the pathologist since admitted she had intercourse with the accused.

It appears that accused established sexual intercourse with the victim girl with consent only on the assurance of marriage, but the marriage could not took place. In that view of the matter, the case u/s 376 of the Indian Penal code is made out against the appellant. In the facts and circumstances of the case, since the Appellant intended to marry, the sentence to undergo R.I. for 7 years is reduced to the period of detention already undergone during the investigation and trial.

It appears that the appellant has already been undergone the sentence during the trial and appeal from the records it appears that appellant was remanded in jail custody from 02.06.1984 to 15.03.1988. He was released on 15.03.1988, he was again in jail custody about 10 and 15 days after conviction in the Sessions Court.

Accordingly, the appeal is allowed in part with alteration in the order of sentence. Since, the appellant is on bail. He is released from the bondage of bail.