Shri Bhagwan Rai and Another vs The State of Bihar

Chandramauli Kr. Prasad and Abhijit Sinha, JJ.—Both the appeals arise out of the same judgment and, as such, they were heard together and are being disposed of by this common judgment. All the appellants, being aggrieved by the judgment dated 23.1.2002 and order dated 25.1.2002 passed by the 3rd Additional Sessions Judge, East Champaran at Motihari in Sessions Trial No. 31 of 1995 holding them guilty of offence u/s 376(2)(g) of the Indian Penal Code and sentence of rigorous imprisonment for life, have preferred these appeals.

It is stated that Bali Rai one of the appellants in Criminal Appeal No. 130/ 2002 is dead and, as such, the appeal so far as he is concerned stands abated.

Prosecution started on the basis of the written report given by P.W. 3 Jawahar Rai to the Officer-in-Charge of the Pipra Police Station on 7.12.1993. According to the informant on 5.12.1993 at 7 P.M. her minor married daughter, aged about 16 years, namely, Gyanti Devi was kidnapped by appellants Shree Bhagwan Rai, Sushil Rai and Ram Pravesh Rai. According to him he went to the residence of appellant Ram Pravesh Rai at village Junaida alongwith other villagers and on inquiry his father told them that the appellant Ram Pravesh Rai had not come alongwith informant''s daughter. On the basis of the aforesaid information Pipra Police Station Case No. 0092 of 1993 was registered u/s 366 and 379/34 of the Indian Penal Code.

During the course of investigation the victim Gyanti Devi was recovered from the house of appellant Ram Pravesh Rai. Her statement was recorded by the Investigating Officer during the course of investigation as also u/s 164 of the Code of Criminal Procedure. Police after usual investigation submitted a charge sheet against ail the appellants. The learned Magistrate after taking cognizance of the offence committed the case to the Court of Sessions, where they were charged for committing the offence of gang rape punishable u/s 376(2)(g) of the Indian Penal Code.

Appellants pleaded not guilty and claimed to be tried.

Prosecution in support of its case examined altogether six witnesses, out of whom P.W. 1 Bangati Rai and P.W. 2 Bhikhari Rai had been declared hostile. P.W. 3 Jawahar Rai is the informant of the case and father of the victim girl and on recall had supported the case of the prosecution. P.W. 4 Gyanti Devi is the victim girl herself whereas P.W. 5 Suresh Narain Verma is the Investigating Officer of the case. P.W. 6 Dr. Shakuntala Singh is the Medical Officer, who had examined the victim.

Appellants denied to have committed any offence and from the trend of the cross examination their defence seems to be that the victim Gyanti Devi was a consenting party and therefore no offence of rape has been made out. However, no defence witness has been examined.

The Court below on appraisal of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted the appellants as above.

P.W. 3 Jawahar Rai when examined on 15.1.1997 stated that, he had neither seen the occurrence nor saw any accused kidnapping his daughter. He was later on recalled and then examined on 28.4.2000 and in his evidence he has stated that after he returned from the duty, he came to know that his daughter with jewellary was kidnapped by the aforesaid appellants. He had further stated that his daughter was recovered from the house of appellant Ram Pravesh Rai by the police. According to him, appellants had kidnapped his daughter for getting her married to Ram Pravesh Rai. To a Court question he has stated that he had compromised the case.

P.W. 4 Gyanti Devi is the victim of the crime and according to her on the date of occurrence at about 7 p.m. while she had gone to the field to answer the call of nature, all the appellants covered her face, put her in a car and took her to Jamuna Nagar and thereafter to village Junaida at the residence of appellant Ram Pravesh Rai where she was kept confined in a room. According to her, all of them at the point of chura committed rape on her. She has been subjected to detailed cross-examination but she stood by her case that she was kidnapped by the appellants and subjected to rape forcibly.

P.W. 5 Suresh Narain Verma at the relevant time was posted as the Sub-Inspector of Police at Pipra Police Station. According to him on the basis of the written report given by P.W. 3 Jawahar Rai the Officer-in-Charge had recorded the First Information Report (Ext. 1) and entrusted to him the investigation of the case. During the course of investigation, he recovered the victim Gyanti Devi from the house of appellant Ram Pravesh Rai and sent her for medical examination to Sadar Hospital, Motihari. After investigation he submitted charge sheet against all the accused persons showing Ram Pravesh Rai as an absconder.

P.W. 6 Dr. Shakuntala Singh at the relevant time was posted as Medical Officer at Sadar Hospital, Motihari and examined the victim girl on 13.5.1994 and found her to be between 16 to 17 years of age and pregnant. She also opined that the victim girl was habituated to sexual intercourse and so no definite opinion about the rape can be given.

Mr. Sharda Nand Mishra, appears on behalf of the appellants in Criminal Appeal No. 130 of 2002, whereas the sole appellant in Criminal Appeal No. 217 of 2002 is represented by Mr. Vindhya Keshri Kumar, State is represented by Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor.

They submit that in view of the evidence of the victim girl Gyanti Devi that, she was kidnapped and subjected to rape and she having been found pregnant by P.W. 6 Dr. Shakuntala Singh, they cannot legitimately assail the conviction of the appellants u/s 376(2)(g) of the Indian Penal Code.

P.W. 4 Gyanti Devi had clearly stated that she was kidnapped by the appellants and subjected to sexual assault. Her father P.W. 3 Jawahar Rai had clearly stated that she was kidnapped by the appellants and their object was to get her married to appellant Ram Pravesh Rai. P.W. 6 Dr. Shakuntala Singh had found her age between 16 to 17 years and pregnant also. In the face of it we are of the opinion that the prosecution has been able to bring home charge u/s 376(2)(g) of the Indian Penal Code against the appellants beyond all reasonable doubt.

Mr. Mishra as also Mr. Kumar contend that the manner in which the occurrence had taken place the extreme penalty provided under law i.e. imprisonment for life is not fit to be inflicted. They point out that the victim girl was married and had attained the age of discretion and as such, the offence proved does not justify punishment for life.

Mr. Prasad, however contends that the offence committed is serious in nature and justifies the punishment for life.

As stated earlier the victim had attained the age of discretion, although minor at the time of incident. She was also married. Being minor, her consent shall have no bearing so far as the offence is concerned but the very fact that she moved from one place to another without any protest indicates her state of mind.

Taking into account the aforesaid facts, we are of the opinion that sentence of rigorous imprisonment for seven years shall meet the ends of justice.

Accordingly, we maintain the conviction of the appellants u/s 376(2)(g) of the Indian Penal Code but reduce the sentence to rigorous imprisonment for ten years. In case the appellants have already remained in jail for ten year''s, they shall be at liberty forthwith, unless required in any other case. In the result, the appeals are dismissed with the modification in sentence as aforesaid.