Suresh Rai v. The State Of Bihar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.351 of 2011 Arising out of PS.Case No. -75 Year-2009l Thana -Musahari, District- MUZAFFARPUR =========================================================== Suresh Rai Sri Bechu Rai Village-Dhobhan,PS-Musahari,District-Muzaffarpur. .... .... Appellant/s
Versus
The State of Bihar .... .... Respondent/s =========================================================== Appearance:
For the Appellant/s : Mr. S.R.C. Pandey, Advocate Mr. Amit Anand, Advocate For the State : Mr. A.K. Sinha, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH and HONOURABLE MR. JUSTICE ARUN KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) Date: 20-01-2017 The sole appellant Suresh Rai has been convicted under Section 376 and has been sentenced to life imprisonment vide judgment of conviction dated 25th March, 2011 and order of sentence dated 28.3.2011 passed by Shri Anil Kumar Singh, learned Additional Sessions Judge, F.T.C.-V, Muzaffarpur in Sessions Trial No. 942 of 2009.
The victim Rubi Kumari is the informant of this case. She stated that she is a student of class-8 of Government Middle School, Rajwara. On 30.8.2009 at 7:00 P.M., she had gone out of her house to a field in the south for answering call of nature. As soon as she had opened her pant, one Suresh Rai, a co-villager, aged 20 years emerged
from maize field and came near her and pressed her mouth. Thereafter, he dragged her to the maize filed of Vishwanath Mahto, where he committed rape. Due to rape, her frock got soaked with blood. The informant cried in anguish, whereupon her mother Geeta Devi, brother Rabindra Kumar and one Suresh Rai and other villagers came. On the basis of fardbeyan of Rubi Kumari, Musahari P.S. Case No. 75 of 2009, dated 01.9.2009, was registered under Section 376 IPC. The Police after investigation submitted charge sheet whereupon cognizance was taken and the case was committed to the Court of Sessions for trial. The learned trial court framed charge under Section 376 IPC to which the appellant pleaded not guilty and came to be tried. The prosecution in support of its case, examined 11 witnesses including the informant Rubi Kumari who was examined as P.W. 8. The prosecution also produced documents in support of its case including formal FIR, injury report of Rubi Kumari prepared by Dr. Prabha Sinha P.W. 10 etc.
On the other hand, the defence also examined as many as six witnesses in support of its case that he has been implicated on account of land dispute.
Learned counsel appearing for the sole appellant submits that there is no eye witness of commission of rape, save and except for the prosecutrix Rubi Kumari. He next submits that the prosecution
case is not supported by the medical evidence in so much so the doctor did not find any mark of external injury on the person of the victim. Furthermore the doctor found that the prosecutrix was having an old ruptured wound which is suggestive of the fact that she was habitual to sexual intercourse. Elaborating his submission, learned counsel submits that though the prosecution has examined a number of witnesses, none of the witnesses examined by the prosecution have claimed to have seen the actual occurrence. The witnesses on hearing hulla reached the maize field of Vishwanath Mahto where the prosecutrix was sought to be raped and they saw the appellant running away from the place of occurrence.
It is next submitted on behalf of the defence that the appellant has been implicated in this case on account of land dispute and previous enmity. It is further the defence that Hitlal Paswan had in fact filed a case upon the father of the informant in which the appellant is a witness. Besides this, it is a specific case of the defence that there is a dispute between the parties over a piece of land lying next to the house of the prosecutrix. Lastly, learned counsel appearing for the appellants submits that in any view of the matter, the sentence imposed upon the appellant in the facts and circumstances of the case, is too harsh and excessive.
Learned counsel submits that the prosecutrix in her
fardbeyan as well as in deposition before the court has supported the factum of rape committed on her by the appellant. The doctor has not completely ruled out sexual intercourse on the prosecutrix as claimed by her.
On the other hand, Mr. Ashwani Kumar Sinha, learned A.P.P. for the State has supported the impugned judgment of conviction and sentence.
We have heard learned counsel for the parties and perused the materials on record. The prosecutrix is a minor studying in class8 in the local Government Middle School, Rajwara. In her evidence, she has supported the prosecution case that when she had gone to answer call of nature in a maize field south to her house, the appellant came near her and after closing her mouth dragged her to the maize field of Vishwanath Mahto, where she was raped. On account of rape, her cloth soaked with blood. In anguish, she cried, whereupon her mother Geeta Devi P.W.6, brother Ravindra Kumar P.W. 1, villager Suresh Rai P.W. 2 and others came to the place of occurrence. On hearing hulla of the prosecutrix, her mother Geeta Devi P.W. 65, her brother Ravindra Kumar, PW.-1, uncle Suresh Rai and others came to the place of occurrence. However, though none of them are witness to the occurrence. They have only claimed to have seen the appellant fleeing, when they reached near place of occurrence. The doctor
Prabha Sinha, P.W.-10 who examined the victim found the following injuries on her person:
"(i) Her height was 146.5 cm.
Weight-30 kg.
No. of teeth altogether 28 (ii) M.I.-A til mark on her left palm and over left cheek Auxiliary hairs were present black and dark.
(iv) Breast development on examination was grade-II moderately developed of age group of 13 to 14 years. (v) Pubic hairs were black thick but matty. Vulva was moist.
Matting of pubic hairs and moistness of part usually seen after sexual act.
(vi) On examination there was no evidence of struggle mark and evidence of external and internal injury over any part of body.
No vulval or vaginal injuries or abrasion.
(vii) Hymen was old rupture which may signifies that she is not virgin.
Vaginal introy test easily admitted two fingers again signifies that she is not virgin.
(viii) Vaginal swab was taken from the posterior cornic of vagina. Two slides were prepared and were sent to pathological and microscopic examination for presence of spermatozoa.
The pathological report was received on 05.9.2009. Spermatozoa was not detected....." It would appear from the medical reports as
well as evidence of the doctor P.W. 10 that the prosecutrix was sexually assaulted. The defence has not been able to extract any material contradiction to render the evidence of these witnesses unworthy of credence. As such we do not find any infirmity in the judgment of the trial court convicting the appellant under section 376 IPC.
However, the submission of learned counsel appearing for the appellant on the point of sentence, requires due consideration. Learned counsel submits that the appellant is married and a covillager, and there is no previous act of any misconduct. Furthermore, the prosecutrix is too married and well settled. He next submits that the evidence of the doctor would show that the victim had an old ruptured hymen which would show that she is habituated to sexual intercourse. There was no external injury on the person of the victim which would show that in any view of the matter, the victim had not offered any resistance.
In view of all these mitigating circumstances while maintaining the conviction, we reduce the sentence awarded from life imprisonment to seven years, along with a fine of Rs. 5,000/- (five thousand) which would be paid to the victim. In case of default of payment of fine, the appellant would deposit the aforesaid amount in the trial court and in default of which he would undergo simple
imprisonment for further four months. The trial court would ensure the payment of the entire fine amount to the victim within a period of two months from the date of its deposit.
With the aforesaid modification in sentence, the appeal is dismissed.
(Samarendra Pratap Singh, J) (Arun Kumar, J) U T S.Sb/-