BINOD MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH these appeals are directed against the judgment of conviction and order of sentence dated 31.3.1998 passed in Sessions Trial No. 171/95, whereby and whereunder the learned Sessions Judge, Bokaro at Chas held both the appellants guilty under Section 376, IPC and convicted and sentenced them to undergo RI for ten years and appellant Shanti Mahto was further held guilty under Section 323, IPC and convicted and sentenced him to undergo RI for six months but sentences, in case of Shanti Mahto, were directed to run concurrently.

(2.) PROSECUTION case in brief is that on 27.3.1995 at 12 noon Namita Kumari (informant) and her niece Patia Kumari had gone near Barabandh P.S. Chandankiyari for collecting cow dung. While they were collecting cow dung in a basket (Tokri) appellants Shanti Mahto and Binod Mahto came there and showed money to them and thereby tried to yield them or induce them to yield to their carnal desire but both the girls refused to yield to their carnal desire. Appellant Shanti Mahto caught Namita Kumari and compelled her to proceed towards paddy field and thereafter appellant Shanti Mahto forcibly opened her paint, threatened her with dire consequences in ease she raises alarm, pushed handkerchief in her mouth and on being resisted by her assaulted her and scratched her cheek and thereafter committed rape on her and as a result of rape blood started oozing out from her private part. Similarly when Patia Kumari refused to yield to the temptation shown by appellant Binod Mahto, Binod Mahto caught Patia Kumari, forcibly took her near a bush, opened her paint and committed rape on her and similarly blood started oozing out from her private part. Patia Kumari also resisted but her mouth was gagged and she was assaulted by slaps. After commission of rape on them, they came to the residence and narrated the occurrence to Lata Bourin and when they were narrating the occurrence to Lata Bourin, villagers from the neighbourhood also assembled on hearing screams of both the victims. The victims alongwith neighbours went to the house of appellants as well as to the house of sarpanch but sarpanch was not available at his house and similarly appellants were also not available in their houses. Even father of the informant was not present in the village on the date of occurrence. After father of the informant, namely, Satya Kinkar Bouri returned home in the evening on 28.3.1995 then both the victim girls narrated the occurrence to Satya Kinkar Bouri and thereafter they went to the P.S. on 29.3.1995 and on the statement of victim Namita Kumari, FIR was lodged under Sections 376, 323/34, IPC. I.O., after investigation, submitted chargesheet, cognizance in the case was taken and case was committed to the Court of Sessions, where learned Sessions Judge, after recording evidence, both oral and documentary of both the sides, came to a finding, held the appellants guilty under the aforesaid sections and convicted and sentenced them as aforesaid.

(3.) PWS 4 and 5 are the most important witnesses of the case as they are the girls, on whom rape is said to have been committed. PW 4 is also the informant of the case besides being a victim girl. According to this witness, occurrence took place on 27.3.1995 at about 12 Oclock in the day when she had gone to collect the cow dung in front of Barabandh. After collecting cow dung she was keeping the same beneath the tree and when she was arranging the same in the basket, appellants turned up, who were sitting there and showed money to them (PWs 4 and 5) but both of them refused to take money. Then appellant Shanti Mahto caught her and appellant Binod Mahto caught Patia and both of them took them towards the field. Appellant Shanti Mahto untied her paint, threw her on the ground and when she protested then he threatened to commit murder. If she raises alarm and thrust handkerchief in the mouth and committed rape on her and even assaulted her and scratched her cheek. After commission of rape shanti mahto left the place but he threatened her to commit her murder if she discloses to anybody and thereafter she put on her paint. She did not see rape being committed on Patia (PW 5) but when she came then she narrated that appellant Binod committed rape on her. Both of them came home. Paints of both of them were stained with blood as blood was oozing out from their private part. She disclosed to her Bhabhi (Lata Bouri) about the occurrence. At that place PWs 1 and 2 and several other persons came and she narrated the occurrence to all of them. PW 5 Patia disclosed about the occurrence then co -villagers went to the residence of the appellants alongwith victim girls and Lata Bouri but both of them were not available at their residence and thereafter they went to Sarpanch but Sarpanch was also not available. Her father was not in the house, as he had one out and he came on 28.3.1995 at about 6 p.m. then both of them narrated the occurrence to him. Her father alongwith others came to P.S. where her jardbeyan was recorded and after recording the evidence, the same was read over to her and finding the statement to be true, she put her signature (Ext. 2). She handed over her paint and frock at the P.S., which were received by the Darogaji and after preparation of paper she has also put her signature (Ext. 2/1). She says that the her frock was seized and paint of Patia was seized. When Darogaji came to her house then Darogaji seized her paint, which was stained with blood (Ext. 2/2) and prepared a paper on which she put her signature and thereafter both of them were sent to doctor for examination. According to this witness, in the pond men and women come to take bath and near the place of occurrence there is a brick kiln of appellant Binod Mahto but on that very day no person either man or woman was there taking bath in the pond. She is unable to say whether there was any person in the brick kiln or not.