BHAGWAN PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) As the appellant was usually visiting house of Sirajuddin Mian, no one suspected foul play when in the night of 26th November. 1987 at about 9 p.m. he got the door of the house opened, and on false pre text of illness of Sirajuddin Mian took Taira Khatoon and her mother to Barkagaon. After Sirajuddin Mian came to his house, he did not find his daughter and wife, and on enquiry made from his younger daughter, he came to know that both his wife and daughter had accompanied the appellant on his persuasion Further enquiry was made by the father and eventually he came to know that appellant had committed sexual assault on Taira Khatoon, and with these accusations, the prosecution was launched on behest of Sirajuddin Mian, pursuant to which investigation commenced. During investigation, the police made recovery of Taira Khatoon and apprehended the appellant, got the prosecutrix examined by the Doctor, visited the place of occurrence, and on conclusion of investigation, laid charge-sheet before the Court. In the eventual trial that commenced, the prosecution examined altogether 6 witnesses including the prosecutrix, her parents, the Doctor and also the Police Officer.

(2.) The defence of the appellant both before the trial Court and this Court was denial of entire allegations and he ascribed his false implication. The explicit defence of the appellant at trial was that the prosecutrix was married to him and she had also conceived as a consequence of the wedlock, and hence he was not answerable for the charges of abduction of the prosecutrix or commission of sexual assault on her. The defence too examined two witnesses including Dr. Suman Kumar. DW2 who stated to have recorded a finding about the prosecutrix to be of 16 years. and the trial Court on evaluation of testimonies of the witnesses, though did not find the appellant guilty either under Section 363 or 366 of the Indian Penal Code, recorded verdict of guilt under Section 376 of the Indian Penal code, finding the appellant guilty on that counts and sentenced him to suffer rigorous imprisonment for a term of 10 years.

(3.) Contentions raised at Bar 9n behalf of the appellant was that once the trial Court had recorded finding of innocence against the appellant under Sections 363 and 366 of the Indian Penal Code, no finding of guilt could have been recorded under Section 376 of the Indian Penal Code and it is sought to be urged that since volume of documents placed on records on behalf of the appellant would suggest that the appellant had married the prosecutrix, no finding of guilt could have been recorded for ravishing her. The other contention raised at Bar on behalf of the appellant was that in her statement, which she rendered before the Magistrate under Section 164 of Cr.P.C., she had belied the accusation attributed to the appellant about he having committed sexual assault on her contrary to her wishes and last argument urged on behalf of the appellant was that since the appellant has suffered ordeal of protracted trial for about 15 years and has remained in custody both as under-trial prisoner and also during the post conviction period for about 39 months, these mitigating circumstances too be taken into consideration while imposing sentence on him, if he is found guilty of the charges recorded by the Court below. Learned counsel appearing for the State resists the contentions raised on behalf of the appellant.