Patna High Court
Satendra Kumar Singh Kushwaha vs The State Of Bihar on 23 January, 2001
Equivalent citations: 2003CRILJ392
JUDGMENT Indu Prabha Singh, J.
1. The sole appellant has been convicted under Sections 366-A and 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 7 years under Section 366-A of the Indian Penal Code and 9 years under Section 376 of the Indian Penal Code. Both the sentences were ordered to run concurrently.
2. The prosecution case, in brief, is that on 6-8-1997 the informant, Seema Kumari, at about 3 P.M. had gone to purchase Tobacco and after purchasing the Tobacco she was returning to her house, in way appellant Satendra Kumar Singh Kushwaha caught her hand and took her to the house of Piduli Mahto and confined her. It is also alleged that he gauged her mouth and in the night the appellant took Seema Kumari in an orchard where he stayed with her and in the next morning he proceeded to village Barasi and he took her to the house of Kameshwar Mahto in Village Barasi and he committed rape with Seema Kumari in the night and he kept Seema Kumari to the house of Kameshwar Mahto for three days. Thereafter, he brought Seema Kumari in the house of Mohan Mahto at Village Jagjiwanapur and he kept her in the house of Mohan Mahto for one day and thereafter on Saturday he brought Seema Kumari to Tarari in the house of Umesh Kahar where the people caught them and brought them to Tarari police station where fardbeyan of the informant Seema Kumari was recorded on the basis of which a case was instituted. The informant (victim girl) was sent to Arrah hospital for her treatment, where she was medically examined. The case was thoroughly investigated and ultimately charge-sheet was submitted. Subsequently the trial concluded with the result as stated above.
3. The appellant pleaded not guilty and has denied the entire occurrence as alleged by the prosecution.
4. The prosecution in order to prove its case has examined altogether 7 witnesses including the informant (P.W. 5). P.W. 1 Ram Ashish Rai, is the grand-father of the informant. P.W. 2, is Nand Kumar Rai. P.W. 3, Rajendra Rai is the father of the informant Seema Kumari. P.W. 4 is Tilakdhari Rai. P.W. 6, Umesh Kahar, is a hostile witness. P.W. 7 is Dr. Vijay Lakshmi Sharma and P.W. 8 is Saiyed Irshad Ali, I. O. of this case.
5. P.W. 5 the informant victim girl has stated that she was inticed away by the appellant, Satendra Kumar Singh Kushwaha, at 3 P.M. and the appellant had kept her for three days in the house of Kameshwar Mahto at Village Barasi and he committed rape with the victim girl and when she narrated the story of her inticement and rape to Kameshwar Mahto, he drove them away from his house then she was taken to the house of Mohan Mahto at Village-Jagjiwanpur and she was kept there for one day where also appellant committed rape with her. She has further stated that in the village of Mohan Mahto a girl of her Village has been married, so she narrated the story of her rape and kidnapping to the father-in-law of that lady then he drove away the appellant and victim girl from his house. Thereafter, the appellant took the victim girl to Village Tarari where she had narrated the story of her inticement and rape to Umesh Kahar, then Umesh Kahar went to Tarari police station and gave information to Tarari Police then the Tarari Police came to the house of Umesh Kahar and brought appellant and Seema Kumari to Tarari police station where the victim girl narrated the entire story of her inticement and rape by the appellant. Thereafter the police recorded the fardbeyan.
6. P.Ws. 2 and 3 have fully supported the case of the prosecution as alleged by the victim girl.
7. P.W. 1 has supported the evidence of the victim girl (P.W. 5) to the effect that it is he, who had sent the victim girl for purchasing Khaini (Tobacco) at 3 p.m. at the relevant date but the victim girl did not return. Then he told his son P.W. 3 and he made a search of the victim girl and after a lapse of four days the Chaukidar of Tarari police station came to him and informed that his grand-daughter was at Tarari police station along with appellant. Then he went to Tarari police station where he saw the victim girl and came to know from her that appellant had kidnapped her by inducing her and appellant had kept her in the house of several persons and the appellant committed rape upon her.
8. P.W. 2 has also corroborated the evidence of the victim girl (P.W. 5) to the effect that the appellant had kidnapped her for 3 to 4 days. He had kept her at several places.
9. P.W. 3 who is the father of the victim girl (P.W. 5) has stated in his evidence that he made search for her daughter on 5-8-1997 in the evening and came to know that her daughter and appellant had fled away. P.W. 6 though in his evidence has not supported the prosecution case and became hostile but the I. O., P.W. 8 has stated in his evidence that P.W. 6 had stated before him that the appellant had brought a girl to his house and that victim girl had also told him that appellant had inticed her away and had committed rape with her then only this witness went to Tarari police station to give information to Tarari police thereupon the appellant along with victim was apprehended and brought to Tarari Police Station.
10. P.W. 7 is the Doctor who has examined the victim girl. She has stated that it was difficult to say that the rape was committed or not since signs of rape was disappear with the lapse of time or after menstruation. She has also stated that no injury was found on the person of the victim girl.
11. From the deposition of the material witness as well as evidence of the victim girl it is apparent that the appellant took away the victim girl without consent of his father and committed rape on her. It is well settled that a victim of sexual assault is not accomplice, she should be treated as an injured and Court can convict the accused even on sole testimony of the victim girl. Since it is most unlikely that a girl of such assault specially an unmarried minor girl would invite such disgrace in society and also take risk of her future by marital prospect falsely implicating a person until and unless she is not subjected to such cruelty.
12. In this case from the record it appears that even there was no enmity between the appellant and the informant. Admittedly the victim girl was minor at the time of occurrence. It has been submitted by the learned counsel that the doctor who examined the victim girl did not found the sign of rape but it is obvious that the victim girl was examined after three days of her recovery as such the absence of signs of rape is not expected and does not falsify the case of the prosecution since the girl was minor and was taken without the permission of her guardian with a motive to marry her. As such the offence punishable under Section 366-A of the Indian Penal Code is also attracted. The learned Court below has rightly convicted the appellant for the offences punishable under Sections 366-A and 376 of the Indian Penal Code.
13. However, coming to the question of sentence learned counsel appearing on behalf of the appellant has submitted that the appellant has remained in jail for about 3 1/2 years and both the victim girl and appellant have already been married, therefore, it requires consideration on the point of sentence.
14. Keeping in view the submissions made on behalf of the appellant, in my view, it would be expedient in the interest of justice that if the sentences of the appellant is reduced from 9 years to 5 years under Section 376 of the Indian Penal Code and also from 7 years to 5 years under Section 366-A of the Indian Penal Code. Both the sentences shall run concurrently.
15. Accordingly, with the aforesaid modification in the sentence this appeal is dismissed.