Md. Raja Khan vs The State of Bihar

C.M. Prasad, J.—This appeal is against the Judgement dated 5.4.2003 of the 2nd Additional Sessions Judge Banka passed in Sessions Trial No. 846/2000 whereby the appellant has been convicted u/s 376 of the Indian Penal Code and sentenced to R.I. for 10 (ten) years.

The prosecution was initiated on the fardbeyan of informant Snehlata Devi (P.W.7) who appeared before officer-in-charge of Amarpur P.S. on 11.4.2000 and gave her written fardbeyan which was signed by her. She alleged in her fardbeyan that on 10.4.2000 at about 3 P.M. while she had gone out of her house in Bahihar (barren chuck of land) towards West of her house for casing herself and that while she was seated in Bahihar and was defecating, the appellant Raja khan caught hold of her from behind and putting pistol on parietal side of her head, threatened head asking to keep quiet. She further alleged that the appellant tied her mouth with a Gamcha and then pushed her down on the ground and thereafter, committed rape on her. She has stated about penetration of penis into her general in course of commission of rape. She also alleged that when she tried to protest by throwing the legs, the appellant overpowered her and assaulted her with the butt of the Distal. She further stated in her fardbeyan that the appellant had also threatened her asking not to tell anybody about the occurrence and not to lodge any case against him, else she would be killed. She also stated that during the occurrence, Pappu Rajak (P.W.5) and some other- persons who were loading bricks on a tractor trailor had rushed towards her seeing the commission of offence and that they had also chased the appellant but the appellant run away and went inside of his house. The informant further stated that after the occurrence she along with those persons and some other villagers went to the house of Jafar Khan, the father of the appellant but he did not listen to their grievance rather he threatened and chased them away under threat of gun. The informant also alleged that the appellant and his men tried to prohibit her from going to the P.S. but anyhow she managed to go to the P.S. and gave her fardbeyan there on the next day i.e. 11.4.2000. On the basis of fardbeyan. a formal P.I. R. was registered and investigation commenced. On completion of investigation chargesheet was submitted and the appellant was tried and he has been convicted and sentenced by trial court as above.

As many as eight witnesses were examined by prosecution.

P.W.1 Gulam Rabbani Khan. P.W.2 halim Khan and P.W.3 Md. Lokman Khan have turned hostile and they have deposed to be knowing nothing about the occurrence. On their attention being drawn by the public prosecutor towards their previous police statements they denied to have made any statement supporting the case of prosecution before the police.

P.W.4. Yoqendra Yadav, P.W.5 Paoou Raiak and P.W.6 Suresh Thakur are the co-villagers who have/examined as eve-witnesses to the occurrence.

P.W.7 Snehlata Devi is the victim-informant herself.

P.W.8 Md. Salim is the I.O. of the case.

P.W.7 Snehlata Devi. the victim-informant deposed that on the date of occurrence at about 3 P.M. while she was attending the call of nature in Ahima Tanth the appellant came there and he out pistol on the parietal region of her head and that thereafter he committed rape on her. She further deposed that when she cried) the appellant assaulted on her arms with the butt of the pistol. She also deposed that on hulla the appellant started fleeing away. She continued to depose that Paoou Raiak (P.W.5). Suresh Thakur (P.W.6) Jogendra Yadav (P.W.4), Anil Raiak and several others who were qrazing cattle, came to her and they took her to her house. She further deposed that after the occurrence when she,, along with some villagers went to Jafir Khan, the father of the appellant who did not listen to them rather he chased them to assault, then she deposed that she went to the P.5. and gave her written report. She identified the appellant in dock during trial. At para-4 of her cross-examination she deposes that the appellant Raja Khan was her heighbour but she was not on talking or visiting terms with him. At para-8 she denied that any theft case had been filed against her husband regarding theft of mangoes from the orchard of the appellant''s father Jafir Khan. At para-22 she deposed that while coming out for defecating she had asked her Gotni to accompany her but she did not accompany her because her child was weeping and she could not leave her child alone. At para-29 of her cross-examination she has denied the defence suggestions that she had some affairs with the appellant and that while she was caught in her affairs with the appellant she implicated the appellant with false allegation in order to save herself from humiliation. At para-32 she deposed that since the appellant had put her under threat she could not be able to make protest. Thus the informant supports the prosecution story fully and there is nothing in her evidence to discredit her testimony.

P.W.4. Joginder yadav deposed that on the date of occurrence at about 3 P.M. while he was grazing cattle at a short distance from the P.O. he had seen that the informant Snehlata Devi was coming in Ahima Tanrh for attending call of nature. He further deposed that at that time the appellant Raja Khan, who was taking bath at a well in the mango orchard had followed the informant in that side. He further deposed that a girl Archana Kumari who was grazing cows raised alarm and on her hulla he looked towards the P.O. and saw that Snehlata Devi (informant) was struggling to save her and the appellant had climbed over her and had caught her. This witness also said that the witness Pappu Rajak (P.W.5), Suresh Thakur (P.W.6). Archana Kumari and several others had seen the occurrence. This witness continued to depose that after commission of rape; the appellant fled away and that he (P.W.4) and some villagers had tried to catch hold of him after a chase but the appellant entered into his house. This witness further deposed that when he asked Snehlata Devi (informant) she stated that Raja Khan (appellant) had committed rape on her. This witness has also stated that a punchayati was held but the appellant did not accept it hence. the case was filed at the P.S. This witness identified the appellant in dock during trial. At para-13 of his evidence this witness deposed that at the time of occurrence some villagers were harvesting Chaita croo nearabout the P.O. field. Thus. this witness who was grazing cattle near the P.O. at the time of occurrence; reached towards the P.O. on hearing hulla and he also saw the occurrence and there is nothing in his cross-examination to discredit his testimony.

P.W.5 Paopu Rajak deposed that on the date of occurrence at about 3 P.M. while he was getting bricks loaded on a tractor he heard the cry of a women coming from a distance of l-t 1/2 bighas in the Ahima Tanrh. He further deposed that he rushed towards the P.O. and reaching there he saw that Raja Khan (appellant) was climbing over the wife of Prabhat Chandra Sharma that is informant. He also deposed that while he reached near the P.O. the appellant fled away. He continued to depose that after the occurrence he along with Anil Ragak, Prabhat Tanti and some other villagers, including the husband of the informant, had gone to the house of Jafir Khan, the father of the appellant for holding a punchayati over the matter but Jafir Khan declined to them and he replied that they may go whereever they liked. He further deposed that in the ensuing morning he along with the informant had gone to P.S. where the informant had given her statement. This witness further said that he had also given his statement at the police station. At para- 5 of his evidence he deposed that he was a driver and he drove tractor no. BHJ-634-6 which belonged to one Daud Khan and that he was driving the tractor on employment under the salary of Rs. 800/- per month. At para-9 of his evidence he deposed that he rushed towards the P.O. but before he could reach the P.O. the appellant fled away from there. He further deposed that at that time the informant had also rushed towards him and he had met the informant after covering 2-3 khets (plots) and the informant had also covered 2-3 khets running towards him from the P.O. At Dara-12 of his evidence he deposed that the P.S. situated at a distance of 7-8 Kms from the P.O. At Para-13 he deposed that several villagers had gone to the house of Jafir Khan, the father of the appellant but he did not agree for a punchayati hence it was decided to lodge a case at the P.S. He also deposed at para-16 that Jafir Khan, the father of the appellant is his co-villager. At para-14 of his evidence he deposed that the fardbeyan of the informant was written at the police station on the statement of the informant. Thus, this witness who was engaged in piving the tractor on which the bricks were being loaded and he saw the occurrence. This witness is a natural, probable and competent witness.

P-W.6 Suresh Thakur deposed that while he was grazing buffalo near brick kiln he had heard the cry of the informant Snehlata Devi coming from Ahima Tanrh and then he had seen Raja Khan (appellant) committing rape on the informant and thereafter he fled away. He further deposed that he had learnt that several villagers had gone to house of Jafir (father of the appellant) for making complain against the appellant. There is nothing in the evidence of this witness to discredit his testimony on any count.

The P.Ws. 4. 5 and 6 fully corroborated the informant''s version in all materials particulars of the case.

P.W.8 Md. Taslim is the I.O. who took charge of the investigation at a later stage and then he filed chargesheet on the basis of materials in the case diary collected by S.I. Dhanpatti Tudu from whom he had taken charge of the investigation.

The defence has examined two defence witnesses under the defence plea that earlier the informant''s husband had been fined by Punch for theft of mangoes from the mango orchard of the appellant and that due to this grudge the appellant filed this case falsely for the purpose of getting him humiliated.

D.W.1 Md. Sakir deposed that on 7.A.2000 a Punchavati had been held on the matter of Snehlata Devi''s husband Prabhash Sharma plucking mango from the mango orchard of the appellant. But at para-3 of his cross-examination he deposed that he had arrived in the Punchayati at the last when the Punchayati was over. Thus, this witness did not remain present during the Panchayati. Moreover. any member of the Punch who had imposed the fine has not been examined by the defence. The D.W.2 Md. Ainul Khan, who had attended the Panchayati in which the punch levied a fine of Rs. 100/- on informants husband but this witness was not a Mukhiya. Serpanch or any member of the Gram Panchayat nor any record of few of fine has been proved nor any member of the Gram Panchayat has been examined to show about holding of any Panchayati in which any fine was levied on the informant''s husband. So the story of levying fine on the informant''s husband does not inspire confidence. It appears that such type of story has been created during the evidence of D.Ws. for the purpose of defence only. Even if the story of levying fine in the Panchayati is accented for arguments sake, this story is not helpful to the defence in order to show that only due to levy of such small fine on informant''s husband the informant her social image and prestige at stake by implicating the accused in false case unless something unfortunate like this happens.

The learned Counsel for the appellant argued that there has been delay in the filing of the case. The F.I.R. was lodged on 11.4.2000 and the occurrence had taken place on 10.4.2000 at 3:00 P.M.

P.W.5 has deposed at para-22 that the P.S. instituted at a distance of 7-8 Kms from the P.O. It has come in the evidence that after the occurrence the informant and villagers had gone to the appellant''s father for making complain and settling the complain under a Panchayat but it was not accented hence, the informant went to the P.S. on the next day and lodged the case. Thus, there is no inordinate or unexplained delay in the lodging of the case.

Learned Counsel for the appellant also argued that writings on the fardbeyan of the informant has not been legally proved. No doubt the writing on the fardbeyan could not be proved during trial but trial court has rightly held that the contents of the fardbeyan is not substantial evidence and that it could be used only for the purpose of contradicting the evidence as adduced by the informant before the trial court. The learned trial court has also held that there is nothing in the fardbeyan to contradict the evidence of the informant on any material point.

Thus, the defence is not prejudiced on any ground due to non-proving of the contents during trial. The learned Counsel also submitted that the doctor who examined the informant has not been examined. The evidence of the doctor is considered as corroborative place of evidence. The oral evidence as adduced by the informant and the eve-witnesses is sufficient to Drove the commission of offence of rape by the appellant on the victim-informant. No doubt the doctor has not come to give medical evidence about the findings which he mentioned on examining the victim-informant but the evidence as adduced by the informant and witnesses are sufficient to Drove the commission of the offence of rape by the appellant on the informant, and therefore, I feel that the appellant can be convicted on the basis of the evidence of the informant and the other eve-witnesses; which have been discussed above.

Thus hearing both sides and considering the facts and circumstances of the case, I feel that the prosecution has been able to Drove the charge beyond the shadows of reasonable doubt. The Trial court has rightly convicted the appellant u/s 376 of the Indian Penal Code. The order'' of conviction as passed by the trial court is hereby confirmed.

The learned Counsel for the appellant submitted that the quantum of sentence as awarded to the appellant is excessive. In the facts and circumstances of the case. I feel that a sentence of R.I. for eight years will meet the ends of justice. Therefore, the sentence of R.I. for ten years as awarded by the trial court is reduced to a sentence of R.I. for eight years.

In the result, the appeal is dismissed with the modification in the sentence as indicated above.