LAWS(PAT)-2007-3-80

KRISHNA NANDAN SAH Vs. STATE OF BIHAR

Decided On March 22, 2007
KRISHNA NANDAN SAH Appellant
V/S
STATE OF BIHAR Respondents

JUDGEMENT

(1.) THIS appeal is against the judgment dated 16th November 2002 passed by Sri Paras Nath Sinha, Presiding Officer, Munger under Sessions Case No. 404 of 1992/Tr. No. 225 of 2002/ G.R. No. 454 of 1989 whereby the appellant has been convicted under Sec. 376 IPC with a sentence of R.I. for 7 years and a fine of Rs. 2,000/ - and in default of payment of fine to undergo S.I. for six months. The appellant has also been convicted under Sec. 450 IPC but any separate sentence has not been awarded under this count.

(2.) THE prosecution commenced with the fard -beyan (Ext -3) of informant Kusum Devi recorded on 29th October 1989 at 11:00 P.M. in Referal Hospital, Sheikhpura where she had been admitted for treatment. She stated that about 10 -12 days back, while she was sleeping on the roof of her house at about 1 O 'clock in the night, Krishna Nandan Sah, appellant whose house is adjacent, came on her roof and forcibly committed rape on her. She further alleged that when she tried to cry, the appellant gagged her mouth with clothe. She further stated that due to fear, disgrace and humilitation she did not disclose the incident to her husband or other family members. It has to be mentioned here that the appellant is the yougner cousin father -in -law of the victim informant. The informant further alleged that when she felt the disgrace and humiliation become intolerable it was on that day (29.10.1998) that she decided to end her life and she consumed pesticide tablet which is used for preserving grains. She also stated that she was brought to the Hospital in unconscious stage and on regaining consciousness in the hospital, she gave her statement. In her statement she further stated that her husband had also taken poison and he died and his dead body was lying near the door of the Hospital. She stated that feeling disgrace and humiliation as aresult of the rape committed by the appellant, she had taken poision and that seeing her taking poison her husband Deoniti Prasad Sah also took poison in disgust and lost his life. She stated that she put her LTI on the fard -beyan which was recorded on her statement. On the basis of fard -beyan, a formal FIR (Ext -1) was recorded and the investigation commenced. On completion of investigation, charge -sheet was submitted in this case and the appellant was put on trial and on completion of trial, he has been convicted and sentenced, as above.

(3.) THE informant (P.W. 3) deposed that on 29th October, 1989 her husband ended his life by taking poison and he had done it as a result of disgust on account of the incident of rape committed on her 10 -12 days ago. About the occurrence of rape, she deposed that on the date of occurrence in the mid night, while she was sleeping on the roof of her house, the appellant had gagged her mouth with clothe and then he had forcibly committed rape on her. She also stated that when she disclosed the occurrence of rape to her husband, he took poison due to feeling of disgrace and humiliation. She further deposed that at that time she had also taken poison. She continued to depose that she and her husband both were taken to the Hospital but she survived there whereas her husband could not survive and he died. She also deposed that her statement was recorded in the Hospital and she had given her LTI on the same. She has stated that the appellant was her cousin father -in -law. At Para -6 of her evidence she denied the suggestion that she had married another man and she was living with him but the defence has not brought any evidence to prove this suggestion. At Para -8 of her cross - examination she has stated that earlier she tried to suppress the disgrace and humiliation due to the occurrence but she disclosed it to her husband after 10 -12 days and on the day when she disclosed the occurrence to her husband, he couid not be able to face the disgrace and humiliation on account of the occurrence and he took poison. She continued to depose at Para -9 that she also took poison and she had disclosed the occurrence of rape to her husband. At Para -10 of her evidence, she deposed that during the occurence, she had tried to keep the appellant away but the appellant had gagged her mouth and had forcibly committed rape on her. She states that she was sleeping on the roof of her house with a child aged about 2 years. She further stated that in order to save her, she had even clawed on the face of the appellant. At Para -11 she further deposed that in an attempt to save herself she had received some injuries on her back but she did not show the injuries to the family members because it would have led to her to disgrace and dishonour. She also stated that she had given her statement in the Hospital under full consciousness. At Para -18 of her evidence she denied that she had stated before the Police that she had not disclosed the occurrenced to her husband and any member of the family. In this context the fard -beyan of the informant was referred to by the appellant 'scounsel. In her fard -beyan she stated that she had not disclosed the occurrence to her husband or any family member. Learned counsel for the appellant argued that when she did not disclose the occurrence to her husband or any family member the story of her husband taking poison due to disgrace on account of the occurrence is falsified. But this discrepancy is not a serious flaw. It is admitted by the informant that due to fear of disgrace and humiliation, she did not disclose the matter to her husband and other family members for 10 - 12 days and that when she felt the disgrace unbearable she decided to end her life by taking poison and that at that time, she disclosed the matter to her husband who, too, took poison due to disgrace and humiliation felt by him. Thus, the husband came to know about the occurrence of rape of his wife just at the last moment when the wife (the informant) took poison and he (informant 'shusband) also took poison. During cross -examination of the informant the defence has given some suggestion that she had some otherwise relationship with some persons which she refused. The defence has not broght any evidence or materia! to substantiate the suggestion given to the informant. Thus, considering the evidence of the informant, I find that she is truthfui and reliable witness and there is nothing to discredit her testimony.