Raja Choudhary 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. Tapas Roy argue this case as Amicus Curie.

The instant appeal is directed against the judgment of conviction dated 04.02.2000 and order of sentence dated 05.02.2000 respectively passed in S.T. No. 333 of 1997 by Shri Kumar Ganesh Dutt, 2nd Additional Sessions Judge , Palamau at Daltonganj by which judgment he found the appellant guilty u/s 376 of the I.P.C. and sentenced appellant to undergo R.I for ten years and fine of Rs. 1000/- (one thousand only).

It is submitted by learned Counsel for the appellant that it appears from the F.I.R., only allegation made by the informant is that attempt of rape was made by the accused/appellant and on the basis of the said F.I.R., after investigation, police found that the case under Sections 376 and 511 of the I.P.C. and learned Magistrate took cognizance of the case u/s 376 and 511 of the I.P.C. Since, the case was exclusively triable by the court of Sessions, learned Magistrate committed the case to the court of Sessions. Subsequently, the case was tried by learned 2nd Additional Sessions Judge, Palamau at Daltonganj, who found the appellant guilty u/s 376 I.P.C, but there is no evidence that the accused-appellant committed rape upon the victim girl even the medical report, which was proved by P.W.-9 Dr. Sudakshina Lalla, a lady medical officer, also shows that no rape was committed. In that view of the matter, the 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 opposed the same and submitted that the appellant might have, said in the F.I.R., committed rape upon the prosecutrix, as such, Court has rightly convicted the accused/appellant.

After going through the records and the evidences, I find that the prosecution case is based on the Fardbayan of the victim girl, Sanichari Kumari, who was examined as P.W.-4 in the Court, stating therein that on 01.03.1997 while she was picking up cow dungs, the accused approached near her on the pretext of massaging his hands and knocked her down in nala and on the nala he broken her trouser''s siring and ravished her. Subsequently, mother of the victim girl came there then victim girl disclosed the sordid tale and her mother took her to the house. On the basis of the said Fardbeyan, police registered a case under Sections 376 and 511 of the Indian Penal Code and after investigation submitted charge-sheet against the appellant. Thereafter, Magistrate took cognizance of the case u/s 376 and 511 of the I.P.C. 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 2nd Additional Sessions Judge, Palamau at Daltonganj, who framed charges under Sections 376 and 511 of the Indian Penal Code, but subsequently framed the charge only u/s 376 of the Indian Penal Code the accused was found guilty as aforesaid.

It appears that in the course of trial, the prosecution has examined as many as ten witnesses. P.W. 1 Ram Briksh Chaudhary hearsay witness, P.W.2 Gulab chand, declared hostile, P.W.3 Milo Kumari has supported the prosecution case, P.W.4, Sanichari Kumari, also supported the prosecution case, P.W. 5, Kalia Devi mother of the victim girl, P.W.6 Fekan Chaudhary one of the witnesses to the recording of the fardbeyan of the prosecutrix, P.W.7 is Bandhu Chaudhary is declared hostile, P.W. 8 Sheo Chaudhary father of the victim girl, P.W.9 - Doctor Sudakshina Lalla, has proved the injury report as Exhibit-3, which was writing by Dr. Sima Sinha and P.W. 10, Mazbullah Khan a Police writer- constable.

Thus, it appears that except the victim girl, her mother and father, nobody has supported the prosecution case. The victim girl, who was examined as P.W.4, stated in Court that the accused caught her while she was picking up cow dungs and committed rape upon her and her mother, who came after the occurrence on hearing sound of weeping of her daughter, stated that at the place of occurrence, she saw the accused running away towards the east of the nala and she was told about occurrence by her daughter. Her father P.W.8 stated that he was told about the occurrence by his wife (P.W.5), subsequently. So there is only one witness i.e. the victim girl herself to prove the commission of rape, although the victim girl contradicted her statement in the fardbayan where she stated that only attempt for committing rape was made by the accused. The medical report, which is marked as Exhibit-3, also shows that Doctor found no external injury nor found any internal injury. Doctor found no foreign material on her private part. In the instant case hymen was found intact, but redness was present over labia and it was tender on touch. No spermatozoa was found in pathological report.

In that view of the matter, the medical report also shows that no sexual intercourse was found rather, it is only a case that the appellant attempted to outrage the modesty of the victim girl. In a similar case reported in Premiya @ Prem Prakash Vs. State of Rajasthan, . in which the medical report submitted that the victims'' hymen were intact and there was no injury on the private part. Hence, it was a case of molestation and not of rape. Accordingly, the conviction of the accused u/s 376 of the Indian Penal Code was altered to that'' u/s 354 of the Indian Penal code.

It appears that the appellant is in jail custody since 14.03.1997 i.e. for more than ten years, which is sufficient punishment and the sentence is altered to the period already undergone by him during the trial and appeal.

Accordingly, the appeal is allowed in part with alteration in the order of sentence.