SUBHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present Appeal under Sec. 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.") has been preferred by the sole appellant against judgment of conviction and sentence passed in Sessions Trial No. 811 of 2011 / Trial No. 712 of 2012. The sole appellant by judgment dated- 16/4/2013 has been held guilty and convicted for commission of offence under Sec. 376 of the Indian Penal Code, 1860 ( hereinafter referred to as the "I.P.C.") and by order dtd. 23/4/2013 he has been sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000.00. In default of payment of fine he has been directed to further undergo simple imprisonment for six months. The appellant was tried by Sri Jitendra Nath Singh, learned Adhoc Additional Sessions Judge 4th, Araria [ hereinafter referred to as the "trial judge"] in Sessions Trial No. 811 of 2011 / Trial No. 712 of 2012 (arising out of Araria P.S. Case No. 66 of 2011).

(2.) Short fact of the case is that on 13/2/2011 at 8.00 Hours in the morning Sub Inspector of Police of Araria R.S. Police Station namely - Sri Raghubir Das (P.W. 7) recorded fardbyan of victim, aged about eight years, D/o Md. Muslim Ansari (not examined). The fardbyan was recorded in Sadar Hospital, Araria. In the fardbyan the victim, in presence of her mother- Makina Khatoon (correctly Mobina Khatoon) stated before the Police that her elder sister- Afsana / P.W. 1 was married in Azad Nagar, Araria with Md. Subhan (appellant) about 1 - 1/2 years back. About one month back her sister had delivered a male child. Thereafter her sister came to the house of the victim for getting domestic help and she requested the mother of the victim for the same. Her mother on last Thursday had sent the victim with younger brother of the appellant namely- Sabban to Azad Nagar, Araria for such help. On the same day at about 2.00 P.M. she reached the house of her sister. In the preceding night (11/2/2011) while she was sleeping in the house of her brother -in-law (appellant), in the night at about 2.00 her brother -in-law namely: Md. Subhan (appellant) came nearer to her and thereafter she awoke. Subsequently Md. Subhan forcibly caught her and after pressing her mouth, he committed rape with her. Due to the said occurrence from her private part blood started oozing out and she started crying. On her cry her sister awoke and she explained all those facts to her elder sister. The neighbours of her sister also arrived and subsequently she was carried to hospital on rickshaw where during treatment her fardbyan was got recorded. The said fardbyan was read over to her and after finding it correct she put her signature. As a witness to fardbyan Makina Khatoon (P.W. 2) and Md. Rafique Ansari ( P.W. 6 ) also put their signature. On the basis of the said fardbyan on the same day i.e. on 13/2/2011 at 9.00 A.M. a formal F.I.R. vide Araria P.S. Case No. 66 of 2011 was registered for the offence under Sec. 376 of the I.P.C. against the sole appellant.

(3.) During investigation accusation against the appellant was found true, and as such, on 18/3/2011 charge sheet was submitted against him and on 23/3/2011 the learned Chief Judicial Magistrate, Araria took cognizance of the offence. Thereafter, on 29/8/2011 the case was committed to the court of Sessions and it was numbered as Sessions Trial No. 811 of 2011/ Trial No. 712 of 2012. In the case on 3/9/2011 charge was explained to the appellant and it was framed under Sec. 376 of the I.P.C.