MD.JAMAL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is against the judgment dated 23.11.2002 of the 1st Additional Sessions Judge, Nawadah in S.T. No. 96 of 2001/137 of 2001 whereby the appellant has been convicted u/s. 376 of the Indian Penal Code and sentenced to R.I. for 7 years.

(2.) THE prosecution was initiated on the complaint (Ext -B) filed by the complainant Bibi Nisha on 1.05.1999 before the Chief Judicial Magistrate, Nawadah. The complainant alleged in her complaint petition that on 16.04.1999 at about 12:00 Noon while she was in her house Bibi Ruksana came there and asked her to accompany her to her house for lending some help in sewing. As requested, the complainant accompanied Rukhsana and went to her house where Ruksana gave her a blouse for sewing. When the complainant started sewing work, Bibi Ruksana went away saying that she was going for drinking water and she will return after that. In the mean time, the appellant entering into the room where the complainant was sewing and the appellant forcibly laid her on a cot and committed rape on her. The complainant says that she struggled and tried to restrain the appellant but the appellant was successful in the commission of the offence with his physical strength. The complainant says that when she started crying, the mother and Bhabhi of the appellant came to her and on giving allurement asked her not to raise any voice. The complainant weepingly returned to her house and disclosed the occurrence to her mother. There was no male member in the house and since the disclosure of the occurrence to the villagers would have tarnished the prestige and image of her, she did not disclose it to the villagers. On 21.04.1999, Md. Kalim (P.W. 3), the uncle of the complainant came to her house and then the complainant and her mother disclosed the occurrence to him. The uncle (P.W. 3) called a Panchayati in the village on the next day i.e. 22.04.1999. The Panchayati was attended by several persons belonging to the Hindu and Muslim, both communities. The appellant and his family members were called in the Panchayati and the appellant confessed his guilt before the Panches. The Panches ordered for the performance of Nikah of the appellant with the complainant and the appellant and his family members accepted that Nikah would be performed on 24.04.1999. The Panches assembled again on 24.04.1999 and the appellant was called for Nikah but the appellant did not turn up and the mother of the appellant sent a message to the Panches that the appellant would not perform Nikah with the complainant. Thereafter, the complainant 'suncle went to the Police Station for lodging case but the Police did not entertain the matter and he was ousted from the PS. The civil court remained closed since 25.04.1999 and it reopened on 1.05.1999 hence, the complaint was filed on that day. After filing of the complaint, the complainant was examined on S.A. and an enquiry was also conducted by the Judicial Magistrate. Three witnesses were examined by the complainant in the enquiry. On consideration of the materials brought in the enquiry, cognizance was taken u/s. 376 of the Indian Penal Code and the case was committed to the court of Sessions. Then the appellant was put on trial and he has been convicted and sentenced by the trial court, as above.

(3.) OUT of the prosecution witnesses, P.W. 4 Bibi Nisha Khatoon is the complainant herself, P.W. 1 Shahnaj Khatoon is the mother of the complainant. P.W. 3 Md. Kalim is the uncle of the complainant. P.W.2 Md. Aslam and P.W. 6 Gango Chaudhary are the co -villagers who deposed in support of the prosecution. P.W. 5 Md. Shaukat Ali is the witness who had attended the Panchayati. P.W. 7 Arjun Prasad Singh is a formal witness who proved the complaint petition marked as Ext -3, Panchnamas prepared in the Panchayati has been proved as Ext -1 and 1/1.