Shiv Nath Paswan vs State of Bihar

I.P. Singh, J.—The sole Appellant convicted under Sections 366A and 376 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for five years u/s 366A I.P.C. and rigorous imprisonment for ten years u/s 376 of the Indian Penal Code. However, both the sentences were ordered to run concurrently.

The prosecution case in short is that in the night between 4th and 5th December, 1992, Mira Kumari aged about 13 years, daughter of the informant Chandrika Das (P.W. 3) was sleeping in her room along with her younger sister Ranju Kumari. P.W. 3 Chandrika Das was also sleeping in his room. It has been alleged that at about 4.00 A.M. in the morning, Shambhu Das (P.W. 2) arrived at his house and intimated him that her sister Sudama @ Sudamia Devi aged about 20 years, who was already married to one Sipahi Das of Raxaul was missing from her house. It has been stated that P.W. 3 told him that it was just possible that Sudamia Devi might have gone to attend to nature''s call. In the meantime, wife of P.W. 3 came out of her house and informed that the daughter Mira Kumari was not in the house. P.W. 3 became nervous and he along with others, such as, Mahabir Das, Ram Janak Das and Ghanshyam Das set out in search of the prosecutrix Mira Kumari. P.W. 3 and others visited villages, such as Garahiya, Patekha etc. It has been stated that one Tingan Das of village Garahiya informed P.W. 3 that while he was attending to nature''s call in the filed at about 2-3 A.M., the Appellant Jaimangal Paswan and Sheonath Paswan were seen taking away Mira Kumari and Sudamia Devi with them. Ganesh Paswan of village Garahia said to P.W. 3 that he had seen the Appellant and Sheonath Paswan in suspicious manner moving near the house of Shambhu Das (P.W. 2) at about 2.00 A.M. in the night. The priest (Sadhuni) of Jamuna Math stated to P.W. 3 that both the Appellants Sheonath and Jaimangal Paswan were seen (sic) that two girls moving near the Math at about 3.00 A.M. and soon they set out towards Motihari. One Rambhu Paswan of village Patekha told the informant that the Appellant boarded the Raja Bazar Bus Stand with the daughter of the informant and Sudama Devi, sister of Shambhu Das for Siwan.

The informant P.W. 3 then got confirmed that the Appellant and Sheonath Paswan abducted his daughter Mira Kumari as well as Sudamia Devi with an intent that they might be married against her will or they might be seduced to illicit intercourse and he went to the police station and got his statement recorded on the basis of which F.I.R. (Ext. 2) was drawn up and Motihari Mufassil P.S. Case No. 91 of 1992 under Sections 366A and 366 of the Indian Penal Code was registered. After completion of investigation, charge sheet was submitted against the Appellant. Accordingly, cognizance was taken and trial concluded with the result as indicated above.

From the trend of cross examination of the prosecution witnesses and the statement of the Appellant and his associates recorded u/s 313 Code of Criminal procedure the defence seems to be that of total denial and false implication in the case.

The prosecution in support of its case examined altogether six witnesses. P.W 1 is Ganesh Hajra. P.W. 2 is Shambhu Das. P.W. 3 is Chandrika Das (informant). P.W. 4 is Manoj Das. P.W. 5 is victim Mira Kumari and P.W. 6 is Dr. Jasbir Sharan, who examined the victim P.W. 5.

P.W. 5, the victim Mira Kumari has fully supported the case of the prosecution. She has stated that at about 9-10 P.M. in the night on Monday about four years ago, she was in her house and just then Sudama Devi @ Sudamia Devi went to her and asked her to accompany her to witness and enjoy a dance which was going on at village Bhoreharwa and both of them set out for village Bhoreharwa. She has stated that she along with Sudamia Devi arrived at a place. The Appellant Sheonath Paswan caught hold of her, shut her mouth and the Appellant was also accompanying her. She has further stated that the co-accused Jaimangal Paswan was also with them. According to her, she started weeping then Appellant Sheonath Paswan shown a dagger and threatened her and then they took her to Lalbenia Bridge and from there to village Sukhainwa, which was under the district of Sitamarhi by Bus and there she was kept in the house of Nagina Mahto for eight days and the Appellant Sheonath Paswan forcibly committed rape on her in the house of Nagina Mahto. Thereafter, the Appellant Sheonath Paswan brought her to village Pokhra and kept her for three days there in the house of his brother-in-law and then the Appellant book her to village Dhokhraha under the district of Bettiah and thereafter she was brought to Bhainsalotan. According to the victim Mira Kumari, Indrasan came to them in village Dhokhraha and Indrasan had relation in her village. She further stated that when she stated about the occurrenoed to Indrasan the Appellant brought her to Bettiah, but when the Appellants were bringing her to Bettiah the accused Sudamia Devi and Jaimangal Paswan slipped away on the pretext of taking tea and then Indrasan brought her and the Appellant Sheonath Paswan to Mufassil P.S. and from there she was brought to Motihari. She has also repeated that the Appellant Sheonath again committed rape in Bhainsalotan. According to her, her statement was recorded before the Magistrate and she was also examined by the Medical Officer.

In her cross-examination, she has stated that the co-accused Sudama Devi was already married but her husband had deserted her and thereafter she became the wife of the Appellant Jaimangal and both were living as husband and wife and she had also given birth to a female child. She has stated that the village Bhairoharwa where she was being taken by Sudamia Devi to witness a dance situated in the vicinity of her village. She gave a vivid account of manner in which she was taken from one place to another place. In her cross examination made on behalf of the Appellant Sheonath Paswan, she reiterated that it was all the three co-accused persons, namely, Appellant Jaimangal Paswan and co-accused Sudamia Devi, who had abducted her and taken to various places and ultimately she was recovered and handed over to her parents by the police.

P.W. 3 Chandrika Das, father of the victim Mira Kumari has also supported the prosecution case as narrated in the first information report. He has given a detailed account as to how he was informed by Tingan Das, Ganesh Das, priest of the Math and Rambhu Das regarding abduction of her daughter Mira Kumari by the Appellant Sheonath Paswan, Jaimangal Paswan and Sudamia Devi. He has also stated that Sudamia Devi was living as wife of the co-accused Jaimangal Paswan and has also a child from him. According to him his daughter Mira Kumari was recovered and handed over to him about 25 days after her abduction. According to him, his daughter, Mira Kumari when recovered she stated to him that Appellant Sheonath Paswan and Sudamia Devi had abducted and took her away with them.

P.W. 4 Manoj Das, brother of the victim Mira Kumari has also supported the version of Chandrika Das (P.W. 4) (informant). According to him, his sister Mira Kumari was about 13 years of age at the time of abduction. He also went to search her and in the process, he came to know that the Appellant Sheonath Paswan and Sudamia Devi, had induced and allured her and they had taken to her with them. According to him also, his sister was recovered after one month of the occurrence by the police from West Champaran.

P.W. 2 Shambhu Das is brother of Sudamia Devi. He has stated that after he detected that Sudamia Devi was missing from the house and he went to the informant (P.W. 3) and intimated him accordingly and just then he also learnt that Mira Kumari, daughter of P.W. 3 was also missing from her house. According to him, in course of search at about 10-11 A.M. on the next day he learnt that the Appellant and Sheonath Paswan had abducted Sudamia Devi as well as Mira Kumari. In his cross examination, he had admitted that co-accused Sudamia Devi was living as a wife of the co-accused Jaimangal Paswan and she had also children from him.

P.W. 6 is Dr. Jasbir Sharan of Sadar Hospital, Motihari, who had examined the prosecutrix Mira Kumari on 28.12.1992. According to the medical expert the victim Mira Kumari was aged about 15-16 years. According to her, there was no recent sign of rape committed on the person of the prosecutrix.

According to the learned Counsel appearing on behalf of the Appellant submitted that there is no direct evidence against the Appellant and the witnesses who had seen the victim Mira Kumari going with the Appellant have not been examined. From the evidence of the witnesses, it has been admitted that the victim Mira Kumari at the time of her abduction was under 18 years of her age, which has been estimated by medical expert as well as the court below. It has also been proved that she was induced to witness the dance and thereafter without the permission of her parents she was taken from her house and in the way, the Appellant Sheonath Paswan caught her and shut her mouth and took her to different places where he committed rape on her. This act of the Appellant attracts the offence punishable u/s 366A and also 376 of the Indian Penal Code. Victim Mira Kumari in her deposition has stated that she was forcibly ravished by Appellant Sheonath Paswan at Sukhainwa for the first time and thereafter several times from different places. However, the doctor did not find the recent sign of violence and on this point the court below has discussed in detail in paragraph-28 of the judgment. The doctor found her to be below 16 years of age and any sexual assault committed on her is punishable u/s 376 of the Indian Penal Code. The court below has rightly convicted the Appellant for the offence punishable under Sections 366A and 376 of the Indian Penal Code. I do not find any reason to interfere with the conviction of the Appellant. However, coming to the conclusion of sentences, the learned Counsel appearing on behalf of the Appellant has submitted that in this case, the I.O. has not been examined and the doctor who examined the victim Mira Kumari did not find any sign of rape and the Appellant was identified for the first time in the court. It has also been stated that the Appellant is in custody for about 8 years and 8 months. Therefore, it requires consideration on point of sentence.

Having regard to the submission and in the facts and circumstances of the case, in my opinion, it will be expedient in the interest of justice, if the sentences of this Appellant is reduced to the period he had already undergone in jail.

With the aforesaid modification in the sentence, this appeal is dismissed.