ALIYAS MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal is directed against the judgment dated 27-2-1992 and order dated 28-2-1992 passed by Additional Sessions Judge II, West Champaran at Bettiah in Sessions Trial No. 196 of 1989 convicting and sentencing the appellant to undergo rigorous imprisonment for a period of five years under Section 376 of Indian Penal Code (in short "I. P. C.").

(2.) The case of prosecution in short is that on 21-1-1988, informant Meena Devi (PW-4), after working in a sugarcane field of her master Rama Shanker Singh (PW-5), collected sugarcane leaves for fuel and put them in a bundle and when she was returning to her house along with bundle, the appellant stopped her in the way and pulling the bundle from her head threw it and, thereafter, caught hold of her and threw her in the field. When she raised hulla. appellant put a knife on her neck giving threatening that in case she raised hulla. she would be killed. Thereafter, appellant committed rape on her. On hearing hulla raised by victim Meena Devi, Jawahar Sao (PW-2) reached there and appellant then fled away and in that process, one old HMT watch with broken glass of appellant fell. The victim thereafter along with villagers went to Manjhaulia Police Station where she produced the watch of appellant and first information report (Exhibit-1) was recorded under Sections 341/376 of I. P. C. against the appellant. After investigation, charge-sheet was submitted and cognizance of the case was taken and case was committed to the Court of Session where after trial, appellant was found guilty and was convicted and sentenced to undergo rigorous imprisonment for five years under Section 376 of I. P. C. The case of appellant before the Court below was that he had been falsely implicated in this case on account of enmity because he had earlier filed a case against the family members of prosecutrix because goats of prosecutrix had entered the field of appellant and had damaged his crop by grazing.

(3.) In order to prove its case, prosecution has examined eight witnesses. Meena Devi (PW-4) is informant and victim lady. Laljee Ram (PW-1), Jawahar Sao (PW-2) are witnesses who, according to prosecution, had reached the place of occurrence on hearing hulla of prosecutrix. Dukhni (PW-3) is a tendered witness. Rama Shanker Singh (PW-5) is the master of prosecutrix to whose house prosecutrix along with some villagers after occurrence had gone and requested him to take action and he then took the prosecutrix and villagers to Police Station. Dr. Saroj Jaiswal (PW-6) is the doctor who had examined the prosecutrix. Krishna Kumar Singh (PW-7) is the Investigating Officer and similarly G. P. Mishra (PW-8) is also Investigating Officer who had taken the charge of investigation from PW-7 on latter's transfer to some other Police Station. Meena Devi (PW-4), the prosecutrix, in her evidence, has said that on the day of occurrence, in the evening after working in the field of her master Rama Shanker Singh she after collecting sugarcane leaves in a bundle for fuel was returning to her house when in the way, appellant came and pulled the bundle from her head and while talking laid her on the ground and at the point of dagger committed rape on her. She raised hulla on which the witnesses Jawahar and Dukhni came there. She has further submitted that during the course of commission of rape on her the writst watch of appellant fell and, thereafter she went to Police Station and lodged the first information report. About her medical examination, she has said that she was examined at Bettiah Hospital on the next day of occurrence. In cross-examination, she has said that the place of occurrence is a ridge between sugarcane fields. In para 7, she has said that after occurrence, appellant fled away and then witnesses came there and, therefore, nobody saw appellant committing rape on her. Dr. Saroj Jaiswal (PW-6) is the doctor who had examined the prosecutrix on 22-1-1988 and she in her cross-examination has said that on medical examination of prosecutrix, no definite opinion could be gathered about any recent sexual intercourse but to a Court question, she has answered that ladies bearing child have their vaginal walls dilated hence if rape is committed upon such ladies, the signs and in- juries may not appear. About prosecutrix, she has said that prosecutrix disclosed that she had 2 years old son and she was giving breast feeding to her child. Meena Devi, the prosecutrix, in para-6 of her evidence, has said that at the time of occurrence, she had a son aged about seven months. Laljee Ram (PW-1) in his evidence has said that on the day of occurrence, he along with Jawahar Sao was at Government boring when he heard hulla of Dukhni Devi (PW-3) and, thereafter, he and Jawahar Sao both went to the sugarcane field of Hari Narain Singh where they found appellant committing rape on prosecutrix and when they reached there, the appellant fled away. Meena Devi started weeping and told them that appellant had forcibly raped her. Jawahar Sao (PW-2), in para -20 of his evidence, has admitted that appellant had filed a case against him but according to him that case was filed four to five days after the occurrence in order to create defence of this case. Rama Shanker Singh (PW-5) has said that on 21-1-1988 at about 7 p. m., prosecutrix along with a number of villagers came to his house and told him about the occurrence and villagers were very agitated and were asking him to take some steps otherwise they would themselves settle the matter and he then took the prosecutrix to Police Station where prosecutrix lodged the first information report. He had denied the suggestion of defence that there was dispute between his family and father of appellant who had filed a petition before sub-Divisional Magistrate. He has also denied the suggestion that appellant has been falsely implicated in this case. Krishna Kumar Singh (PW-7) has proved the first information report (Exhibit-1) and has said that he took up the investigation and also seized the petticoat of prosecutrix and prepared a seizure list (Exhibit-3/1). He has further said that the prosecutrix produced an HMT watch which he seized and prepared a seizure list (Exhibit-3). About the place of occurrence, he has said that he inspected the place of occurrence which is the sugarcane field of Hari Narayan Singh and he found that half of the crop had already been cut and half of the sugarcane crop was standing and he also found recent pressing marks of soil at a place in the field and sugarcane leaves were scattered. He has said that he handed over the charge of investigation to Officer-in-charge on 25-3-1988. He has also proved the requisition (Exhibit -4) which was prepared by Harish Chandra Mishra at his dictation for medical examination of prosecutrix. He has proved the case diary which is marked Ex- hibit-5. G. P. Mishra (PW-8) has said that he took up the charge of investigation of the case on 26-3-1988 and on 9-4-1988, he received medical examination report and, thereafter, he submitted charge-sheet.