FARI AHMAD AND ANOTHER Vs. STATE OF BIHAR

JUDGEMENT

(1.) The two appellants stand convicted under Section 376 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years.

(2.) According to the prosecution case at the material time the prosecutrix Indu Devi was living with her parents at village Sirsiya (at some places also referred to as 'Sarasawan') under Majhoulia P.S. On 6.3.1995 due to some family quarrel she was turned out of their house. She then proceeded with the intention to go to her husband's place at village Mujauna under Shikarpur P.S. (which, as it appears from the record, is at a distance of about 40 Kms. from her parents' village). She came to the neighbouring village Bharwalia where she met the two appellants. Appellant No. 1 who was the village Chowkidar told her that they would help her in getting her case instituted with the police. Thus, assured by them she stayed at village Bharwalia. At around 3 p.m. on that day the two appellants came and asked her to go with them to the High School, Sirsiya where, according to them, the 'Darogaji' had come and where her case would be instituted. When they reached an orchard an orchard outside the village towards its south, they committed rape on her one after the other. After the appellants had gratified themselves the prosecutrix somehow managed to free herself and she ran in the direction of the High School. In the struggle to free herself she lost her payal and Saree to the appellants. She went to the school where the Punjab Police was camping at that time having been deployed in that area in connection with the general parliamentary elections. It is further the case of the prosecution that the appellants were apprehended by the Jawans of the Punjab Police and the local villagers and in presence of the villagers of Sirsiya the appellants made a confessional statement. The confessional statement made by the two appellants were reduced to writing separately on two sheets of paper each of which was signed by the concerned appellant. It appears that for some reason the local police was not approached directly. The statement of the prosecutrix was written down in the form of a petition addressed to the Superintendent of Police, West Champaran, Bettiah. It has come in evidence of PW 4, the prosecutrix that her statement was written by some one whom she referred to as 'Karamchari Saheb'. From a perusal of this petition addressed to the Superintendent of Police it is evident that the Karamchari wrote the statement of the prosecutrix in his own language giving the substance of the allegations made by her, as stated above. The prosecutrix was made to put her right thumb impression on this petition and the two sheets of papers recording the confessional statements of the two appellants were made enclosures to this petition. Each confessional statement (enclosed with the prosecutrix's petition to the Superintendent of Police) bears the L.T.I. and the signature of the concerned appellant; appellant No. 1 also gave the date 7.3.1995 under his signature.

(3.) It appears that this petition along with its two enclosures was submitted to the Superintendent of Police, Bettiah. On 7.3.1995 the Dy. Superintendent of Police, Headquarters, Bettiah made an endorsement on the margin of this petition directing the officer-in-charge, Majhaulia P.S. to institute a case under Sections 376/34 of the Penal Code. On that date at 11.15 p.m. a formal first information report (Ext. 2) was drawn up incorporating the aforesaid petition with its two enclosures and giving rise to Majhaulia P.S. Case No. 16/1995.