Pitho Bhuiya vs The State of Bihar (now Jharkhand)

This appeal is directed against the judgment and order of conviction dated 11.10.1999 passed by Shree R.P. Singh, 1st Additional Sessions Judge, Chaibasa by which the learned trial court found sole accused, Pitho Bhuiya guilty u/s 376 of the Indian Penal Code a id sentenced him to undergo R.I. for life.

The prosecution was initiated on the basis of the F.I.R. lodged by Sunika Kui wife of Dhono Ho on 14.6.1991 at 18 hrs. It was stated that in the previous night at about 10:45 accused, Pitho Bhuiya came to her house and informed that her husband was lying on the road heavily drunk. On hearing the same she went in search of her husband leaving behind her 10 years old daughter, K (named to conceal her real name) at home. When she returned she found her daughter, K missing from her house. She raised alarm. The villagers assembled. They searched the girl here and there, but could not find any trace. In the morning witness, Ram Naik saw her about 200 yards from her house and informed that her daughter is lying there on the ground smeared with mud. She went there and found her daughter lying unconscious on the ground with mud. Then she stated to the villagers that Pitho Bhuiya had come in the night and he had kidnapped her daughter. The villagers caught hold of him. Whereupon Pitho Bhuiya confessed that he along with Hursi Tanty (since dead) took the victim girl, K from her house and brought her on the ditch and committed rape upon her. The girl was sent to hospital for treatment. She had injuries on her face and neck and there was bleeding from her vagina.

On the basis of the said Fardbeyan police registered a case under Sections 452/ 363/ 307 and 376/ 34 of fee Indian Penal Code against both the accused, Pitho Bhuiya and Hursi Tanty. In course of investigation the said Hursi Tanty died. Hence charge-sheet was submitted only against the accused, Pitho Bhuiya.

Charges were framed against the appellant under Sections 360A, 307 and 376/ 34 of the Indian Penal Code.

During trial the prosecution examined 10 witnesses. P.W. 1, Muneswar Sinku is the formal witness, who proved the signature of the Investigating Officer on the F.I.R. (Ext.1). P.W. 2, Danurdan Birua is also a formal witness, who proved the Fardbeyan of Sunika Kui recorded by the Investigating Officer, Bhubaneswar Mandal (Ext. 2). P.W. 10, Sat Ranjan Chatterjee, is also a formal witness, who proved the diary, which was marked as Ext. 5. He stated that paragraph Nos. 1 to 40 of the case diary was written by S.I., Bhubaneswar Mandal of Gua Police Station and paragraph Nos. 41 to 78 was written by his successor S.I. Shrideo Upadhayay. P.W. 3 Sonika Kui is the informant herself and mother of the victim girl. P.W. 4, Bharat Das interpreted the statement of Fardbeyan of Sonika Kui from ''Ho'' language to Hindi and also proved the signature of Sonika Kui on the Fardbeyan. He had signed the Fardbeyan as a witness (Ext. 3). P.W. 5, Ram Chandra Naik and P.W. 6 Awadhut Tanty are co-villagers, who have proved the occurrence as aforesaid, P.W. 7, is the victim girl, who has given her statement supporting the prosecution case. She identified both the accused persons in Court and stated that she was (sic) and raped by both the accused, namely, Pitho Bhuiya and Hursi Tanty (since dead). P.W. 8, Chantriya Champia is witnessed to some incriminating articles from the house of co-accused, Hursi Tanty. P.W. 9, Dr. J.H. Soren she performed medical examination on the victim girl (P.W.7) and found injuries on her face find neck and also found her vagina badly injured and bleeding and gave a finding that the rape was committed upon her. She proved her injury report as Ext. 4.

The trill court found that witnesses, namely, P.Ws. 3, 4 & 5 have fully corroborated the evidence of P.W. 7, the victim girl herself gave detail of the occurrence as to how she was kidnapped and raped by accused Pitho Bhuiya and Hursi Tanty (since dead). The medical evidence also corroborated the occurrence hence the court below convicted tie accused as aforesaid.

It is submitted by the learned Counsel for the appellant that the occurrence has not been proved by the prosecution. The allegation against the appellant is wholly concocted. He has been falsely implicated by the informant due to land dispute with her. There is no admissible evidence on record to prove the charges against the appellant and Hursi Tanty (since dead). Hence, the finding of conviction and sentence is bad and fit to be set aside.

Learned Counsel for the State submitted that the evidence of P.Ws. 3, 4, 5 & 6 is folly corroborated by the evidence of the victim girl, (P.W.7) and the occurrence has been fully proved. The Doctor (P.W.9) also found conclusively that the minor girl aged about 8 years old was raped by the appellant-Pitho Bhuiya and the co-accused, Hursi Tanty (since dead) and as such no interference is required by this Court.

After hearing both the parties and going through the record, we find from the evidences of P.W.3, informant-Sonika Kui, P.W.5-Ram Chandra Naik and P.W. 6-Awadhut Tanty that the accused, Pitho Bhuiya along with co-accused, Hursi Tanty with full premeditation and plan came to the house of the informant in the night of 13/14.6.1991 and purposely told to her that her husband was lying drunk on Bhuiya a Toli Road. When P.W. 3, Sonika Kui left in search of her husband, the appellant and said co-accused-Hursi Tanty kidnapped the victim minor girl with intention to commit rape upon her. P.W. 3 and P.W. 5 stated that P.W. 7 (the victim girl) was absent from the house. They had searched her in the village and also in the house of the accused. They found the appellant-Pitho Bhuiyan absconding from his house. All the three witnesses have proved the fact that in the morning of 14.6.1991 P.W. 5, Ram Chandra Naik found the victim minor girl lying in a ditch full of mud. He found that the victim girl has got injuries on her mouth and neck and was bleeding from her urinary tract. He also found some cloth inserted in her mouth. He, thereafter, called her mother, other villagers also assembled and they took the victim to her house. Subsequently, the victim K told them that accused, Pitho Bhiyan and co-accused, Hursi Tanti (since deal) brought her there and committed rape. The victim girl herself was examined as P.W.7. She stated that in the night of 13/14.6.1991 the accused, Pitho Bhuiyan came to her house along with co-accused, Hursi Tanti (since dead) and told her mother that her father is drunk and quarreling with the people on the road. When her mother left for bringing her father then accused, Pitho Bhuiyan and co-accused, Hund Tanti (since dead) caught hold of her and brought her near nala and after pushed her in the ''Gaddha'', this accused-appellant after putting cloth in her mouth committed rape by force due to which she stated bleeding from her urinary track and became unconscious and remained lying there for the whole night. She was cross-examined it length but nothing come in favour of the accused. She stated that the accused persons brought her near a lonely nala about 200 yards away from her house.

The Doctor, who was examined as P.W. 9 found the following external injuries:

Height - 3'' 4"

Teeth - Upper Jaw - 12 Lower Jaw - 12 ---- 24 2nd and 3rd major were not found erupted.

Secondary sexual character - Absent

External injuries - She found multiple abrasions which were of lacerated nature over the neck of the girl which was caused by rough substance. The size being "2 1/2" x 1/4", 2" x 1/4", 1 x 1/4", 1" x 1/4"

The age of injury was within 48 hours.

Private part - examination- The hymen was lacerated. She also detected posterior commissiure and perineum lacerated which was started bleeding on touching. The whole area of hymen, posterior commissiure and perineum was very tender. She also (bund injury about 2" x 1/2" in size over posterior commissiure and right lateral perineum.

She has taken viginal swab and kept in vial and sent for Pathological examination to the department of Pathology at Sadar Hospital, Chaibasa. She received Pathological examination report which revealed presence of numerous puse cells. She did not find presence of spermatozoa either dead or living. The Pathological report may be available at Sadar, Hospital, chaibasa.

And at Para 7 site has given opinion that the victim girl had been raped within 48 Hrs. She also found the victim girl aged about 8 years.

Thus, we find that the evidence of the victim girl along with the evidences of the informant (P.W. 3), P.W.4, P.W.5, and P.W.6 fully proved the occurrence and the fad; that the accused along with the co-accused, Hursi Tanti (since dead) with full plan and intention to commit rape upon the victim girl went to the house of the informant and told to her mother that her husband was lying on road side in drunken state. When she left to bring her husband the accused-appellant along with co-accused, Hursi Tanti (since dead) kidnapped the victim girl and committed rape upon her. The victim girl had fully corroborated the fact that she was taken from her house by the accused and co-accused (since dead) and they committed rape upon her in a ditch 200 yards away from her house. The fact has also been proved and corroborated by the doctor, who found bleeding injuries in vagina and injuries on the face and neck of the victim girl. She had given opinion that she was raped within 48 Hrs.

Although the defence has taken the plea that there was enmity with the informant and due to that he appellant and another were implicated, but no document has been filed to prove enmity. The witnesses, namely, P.W. 3 and P.W. 7 have denied that there was any land dispute with the accused.

In view of the above discussion, we find no room for doubt in holding that the accused-appellant, Pitho Bhuiya along with co-accused, Hursi Tanti (since dead) committed the heinous crime of rape upon the victim who is a minor girl aged about 8 years. The prosecution has proved the charges against the appellant u/s 376 of the Indian Penal Code beyond all reasonable doubts. Accordingly, the conviction of the accused u/s 376 of the Indian Penal Code is confirmed. The sentences are also appropriate as the nature of crime is heneiou.

We find no merit in this appeal, which is accordingly dismissed without any order as to costs.