Rohit Ram and Another vs State of Bihar

Hari Shankar Prasad, J.—Both these Criminal Appeals bearing Nos. 66/96 and 68/96 arise out of the judgment dated 6th August, 1996 and order of sentence dated 7th August, 96 passed in Sessions Trial No. 29/94, whereby the learned Sessions Judge held all the appellants guilty u/s 366A IPC and sentenced them to undergo RI for seven years and to pay a fine of Rs. 2000/- each and in default of payment they were further directed to undergo RI for one year each. All the appellants were further directed to undergo RI for three months each u/s 323 IPC. Accused Pran Lohra (not appellant here) was further held guilty u/s 376 IPC and was directed to undergo RI for seven years and to pay a fine of Rs. 1000/- and in default of payment of fine he was further directed to undergo RI for six months. The sentences imposed upon the appellants were directed to run concurrently.

The case of the prosecution in brief is that on 15-8-93 at 5 p.m. informant Anil Beck alongwith Jivan Bara and Soren Toppo aged about 16 years, Punni William Toppo and Raj Kumar Oraon went to Chainpur Bus stand of Gumla to catch the bus for Raidih and when they reached the bus stand they learnt that there was no bus to go to Raidih and so they were returning and when they reached the Chowk of Bara Durga Mandir Road, suddenly four persons appeared there and started assaulting them with fists and belts, whereupon Jivan and Raj Kumar made good their escape but criminals caught Soren Toppo and dragged her forcibly to unknown place. Informant Anil Beck tried to rescue her but accused persons assaulted him by fists and belts and thrashed him down and thereafter they forcibly took Soren Toppo on bicycle and the remaining accused persons ran behind the bicycle. The informant identified one of the accused as Rohit Ram, who was working as an agent for small buses at the Chainpur bus stand and who had taken Soren Toppo on his bicycle. The informant claimed to identify all the accused, who had participated in the commission of crime if he chances to see them. After some time students of the college came there to rescue the victim girl but without any result. On the statement of informant a case under Sections 366A, 341 and 323 IPC was registered and in course of investigation, on the statement of victim girl made on 7-8-93, a case u/s 376 IPC was added. Victim girl and others identified the persons in TI Parade as participants in the commission of crime. Charges were framed under Sections 341, 323, 366A and 376/34 IPC and cognizance was taken. After trial, appellants were found guilty and were sentenced as aforesaid.

Cr. Appeal No. 66/96 was filed on behalf of the appellant Rohit Ram. Learned counsel appearing for this appellant has assailed the judgment on the ground that there is no legal evidence u/s 366A/323 IPC. The judgment was further assailed on the ground that doctor in course of examination of girl found the girl aged in between 17-18 years and, therefore, no case will be made out u/s 366A and the learned Court below has failed to take contradictions appearing in the statement of witnesses. It was further pointed out that the victim girl in her statement u/s 164 Cr. P.C. has stated that she was taken by the appellants on bicycle whereas in her evidence before the learned Court below she stated that she met the appellants on the way when she was taken by someone and not a single witness has supported the case of the prosecution.

Cr. Appeal No. 68/96 has been filed on behalf of the appellant Chandul @ Umakant Singh. The learned counsel appearing for this appellant has assailed the judgment on the points which have been assailed by the appellant of Cr. Appeal No. 66/96. It was also pointed out that there is no allegation against this appellant and also there is no evidence of the victim girl that this appellant induced her for illicit intercourse with any other person. There is also no allegation against this appellant that he kidnapped and committed rape on the victim girl.

The learned Court below, in course of trial, recorded the statements of witnesses and after considering both oral land documentary evidence on record, came to a finding as aforesaid and convicted and sentenced the appellants as aforesaid.

The prosecution, in order to prove its case, has examined ten witnesses. PW 1 is Jivan Bara. He has supported the case in part only but has not identified any person. He has come to say that he alongwith others waited for a bus an when all of them came to know that no bus will go then they decided to return back to their hostel and when they reached near Durga Mandir, some persons chased them and assaulted them with belt and fists and then he and Raj Kumar (PW 3) were driven away and thereafter he came to his hostel and did not see the occurrence which occurred in the latter part of the case.

PW 2 is Anil Beck, who is informant of the case and he has supported the prosecution case and he has stated that while he alongwith others were returning back near Durga Mandir Baraik Mohalla 4-5 boys came and assaulted Jivan Bara (PW 1) and Raj Kumar (PW3), whereupon both of them fled away from there. He further says that thereafter he and Soren Toppo wanted to run away but they were assaulted and Soren Toppo (PW5) was carried by a cycle towards DSP road and the man, who forced Soren Toppo to sit on the bicycle was identified by this witness as Rohit Ram. He further says that he tried his best to locate whereabouts Soren Toppo and his friends but he could not locate. He further says that he appeared in TIP and identified accused Pran Lohra.

PW 3 is Raj Kumar Uraon. He has been declared hostile but he has supported the part of the occurrence as PW 1 has supported. He appeared in TIP but did not identify any person.

PW 4 is Mantu Kunwar. He is a student and he has come to say that he saw that some scuffle was going on between boys and one boy was carrying a girl towards DSP road sitting her on a cycle and some boys were following that cycle.

PW 5 is Soren Toppo, who is victim girl. She has stated that on 15th August, 93 she was staying in Toppo lodge and at about 4 p.m. she proceeded for Chainpur road for going home and alongwith her PWs 1, 2 and 3 were there. They waited for bus till 7 p.m. but no bus turn up and, therefore, all three persons accompanied her to Toppo lodge but when all of them reached near Durga Mandir, Baraik Mohalla occurrence, as alleged by PW2, occurred. She has further stated that she made statements before the Magistrate u/s 164 Cr. P.C. and she also appeared in TIP twice and identified Pran Lohra and appellant Uma Kant Singh @ Chandul but she stated that this Uma Kant Singh @ Chandul did not do anything with her. Other witnesses are Magistrate, who conducted TIP, doctor, who examined the victim girl and I.O., who conducted the investigation.

I have gone through the judgment and from the judgment it appears that the learned Court below has carefully examined the evidence of the witnesses and scrutinized the evidence of all the witnesses very minutely and thoroughly and in his well discussed judgment he has come to a finding that both the appellants namely, Rohit Ram and Uma Kant Singh @ Chandul are guilty u/s 366A IPC and u/s 320 IPC also.

Anil Beck (PW 2), who is informant of the case, has named this Rohit Ram in the very FIR as the person, who was carrying victim Soren Toppo (PW 5) on bicycle. PW 2 in his evidence in very specific way stated that this appellant was carrying PW 5 forcibly on bicycle and other persons were following the bicycle. PW 5 in her statement u/s 164 Cr. P.C. has named appellant Rohit Ram but has stated that he did not commit rape on her when a specific question was put to her but in her evidence in Court she has stated that this appellant committed rape twice on her. She has stated so in paragraph 2 of her deposition that after commission of rape on her by Pran Lohra she saw this appellant there and she has further stated that Rohit Ram took him towards Ramnagar. Thus, it is clear that she identified this Rohit. She has identified this appellant in Court also. Thus, there is ample evidence against the appellant Rohit Ram. Similarly she has identified in TIP appellant Umakant Singh @ Chandul and has stated that he did not commit rape on her or do anything with her. PW 5 in her statement u/s 164 Cr. P.C. has stated that this appellant was following the bicycle and was asked to bring a sack for facilitating the rape upon her and all these things have been stated in para 2 of her deposition, Hence the victim girl has identified this appellant also in TIP and has also stated so in her evidence in Court.

It is clear from the medical report that the age of the victim girl was 17-18 years and she has given her age in her statement u/s 164 Cr. P.C. as 17 years and in her evidence, as PW 5, 20 years. Occurrence is dated 15-8-93 and she deposed in Court on 10-1-96 and, therefore, by that time she became aged about 20 years but at the time of occurrence she was aged 17 years and the doctor has also assessed her age as 17-18 years and, therefore, she was below 18 years of age at the time of occurrence and other ingredients of Section 366A have also been proved from discussions made above. Hence, in my opinion, both the appellants namely, Rohit Ram and Umakant Singh @ Chandul have rightly been convicted under Sections 366A and 223 IPC and in that view of the matter I find no merit in both the appeals. 14. There is no merit in both these appeals and, therefore, both the appeals are dismissed.