BADRUDDIN MIAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The instant appeal is directed against the judgment of conviction dated 30.6.1998 and order of sentence recorded by the 4th Additional Sessions Judge, Dhanbad in Sessions Trial No. 117 of 1998 by which the sole appellant was convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a term of 7 years.

(2.) The prosecution case, as it stands narrated on 18.6.1985 in the fard bayan of the prosecutrix Pewasi Kamarin before Tundi Police Station was hat a day prior i.e. on 17.6.1985 she was asked by her mother to take away food for the father, who was fishing at the Khudiri rivulet along with other villagers. Pursuant to such instruction, she went there carrying food but she was asked by her father to return back as he was likely to come soon. In course of her return journey when she reached near Deritarn, she spotted Badruddin Mian of her village, who suddenly appeared before her coming from behind the Neem tree and caught hold her hand to which she resisted and tried to get rid of him by rasing alarm. The prosecutrix further alleged that the appellant Badruddin Mian then gagged her mouth with the help of his towel, pushed her on the earth and committed rape and then fled away. She anyhow came to the place where her father was fishing and fell down on the earth unconscious. She regained her senses after about half an hour and then she narrated the occurrence to her father in presence of the villagers. The occurrence took place at about 2.30 p.m. and on information, her mother also arrived there on the bank of river to whom also she narrated the occurrence. She was then taken to home and from there to the Police Station on a cot where her statement was recorded. Tundi Police registered Tundi PS Case No. 48 of 1985 for the alleged offence under Section 376 of the Indian Penal Code against Badruddin Mian. She was medically examined by PW-10 Dr. Rita Gupta and during examination her age was determined as 14 years on the alleged date of occurrence. The police after investigation submitted charge-sheet under Section 376 of the Indian Penal Code against the appellant, who was put on trial after framing of charge. The defence of the appellant was of false implication on account of an incident that a day prior to the alleged occurrence there was altercation between the father of the victim and the father of the appellant and at that time the father of the victim had threatened to implicate the accused in a false case.

(3.) Altogether 10 witnesses were produced and examined on behalf of the prosecution and a formal witness DW-1 Hardayal Prasad Sao was examined on behalf of the defence, who proved the station diary entry No. 397, based upon the written information of Piru Mian i.e. the father of the accused-appellant, received at the Police Station on 18.6.1985 at about 1.00 p.m. with respect to the alleged altercation, which took place on 17.6.1985. PW-1 Sheolal Hazra and PW-2 Kali Charan Mandal were unfavourable to the prosecution and hence they were declared hostile. Nothing material could be elicited from their evidence. PW-3 Rajan Kamar is the father of the victim, who categorically supported the prosecution case and the statement of his daughter Pewasi Kamarin. Pw-4 Durjan Kamar, PW-5 Buddu Kamar, PW-6 Ramesar Kamar were the uncles of the prosecutrix who have corroborated the prosecution case. FW-7 Pumi Kamarin was the mother and PW-8 Pewasi Kamarin was the prosecutrix. PW-9 had investigated the case and PW-10 Dr. Rita Gupta had medically examined the prosecutrix. Besides, the prosecution has proved the fard bayan of the prosecutrix Ext. 1. Signatures of the witnesses Kali Charan Mandal and Sheolal Hazra thereon Ext. 2 and 2/1 respectively. The production-cum-seizure list of the undergarments of the girl was proved and marked Ext. 3 whereas injury report of the victim was proved Ext. 4.