Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.247 of 1999 (Against the Judgment of conviction dated 17.08.1999 and order of sentence dated 23.08.1999 passed by the 3rd Addl. Sessions Judge, Bhabua in Sessions Trial No. 349 of 1986/98 of 1998) ========================================================== 1. Mumtaz @ Nasim Khan S/o Warid Khan 2. Idrish Khan S/o late Aziz Khan 3. Bijai Chamar @ Bijai Ram S/o Ram Krit Ram 4. Ayub Khan S/o Shakil Khan All R/o Vill. Kunj, P.S. Bhabua, District – Kaimur. …. …. Appellant/s Versus The State of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellants : Mr. Ashraf Ansari Mr. Humayoun Ahmad Khan. For the Respondent : Mr. S. N. Prasad, A.P.P. PRESENT HON’BLE MR. JUSTICE MANDHATA SINGH J U D G M E N T Mandhata Singh, J. 1. This appeal is filed against the Judgment and order dated 17.08.1999 passed by the 3rd Additional Sessions Judge, Bhabua in Sessions Trial No. 349 of 1986/98 of 1998 whereby and whereunder above appellants have been convicted under [STATUTE] . and sentenced to undergo R.I. for 10 years. 2. F.I.R. is lodged basing statement (fardbeyan) of the victim, Potni Devi which in brief is to the effect that she along with her sister-in-law, Jyoti Kumari had gone for cutting grass in a field. Her sister-in-law went Patna High Court CR. APP (SJ) No.247 of 1999 dt.17-01-2012 2 to river for bath and this victim-informant proceeded for her home. At about 3.00 to 4.00 pm. when she reached in side of sugar-cane field of Gulab Pir Sah saw the accused- appellant, Bijai Chhamar there, who caught her hand from behind. In the meantime, accused, Mumtaz Khan and Idrish Khan came out from the sugarcane field and victim was handed over to them by Bijai Chhamar. Her grass scattered and her mouth was closed by means of Gamcha. She was taken in the field of sugarcane, thereafter accused-appellants, Mumtaz Khan and Idrish Khan committed rape upon her one after another. After the rape, accused persons came out from the field. After coming out from the field, she (victim) saw accused-appellant, Ayub Khan also there. There is an averment of raising alarm on which only accused-appellants rushed towards river. Thereafter, she came her home with grass narrated the occurrence to her family members including her sister-in- law, Jyoti Kumari on her arrival. Family members have been specified; father-in-law, uncle-in-law, aunt-in-law, gotni and husband, Kamal Ram. 3. Charge-sheet is submitted for the offence under [STATUTE] . Charge against accused-appellants, Mumtaz and Idrish is framed for the offence under [STATUTE] ., while that against Ayub Khan and Bijai Chhamar is framed under Patna High Court CR. APP (SJ) No.247 of 1999 dt.17-01-2012 3 [STATUTE] . and all accused-appellants have been convicted and sentenced for the offence punishable under Section 376 (2)(g) of the I.P.C. 4. Framing of charge either under [STATUTE] . or under [STATUTE] . is relevant in the case if can justify conviction and sentence under Section 376 (2)(g) of the I.P.C. be discussed later. 5. In all 9 witnesses are examined in the case. They are P.W.1 Gulab Chand Ram, P.W.2 Kamla Ram, husband of the victim, P.W.3 Aliyar Ram, brother-in- law of the victim, P.W.4 Snehi Ram, father-in-law, P.W.5 Sri Kishun Pandey, P.W.6 Potni Devi, victim of the case, P.W.7 Jyoti Kumari, sister-in-law of the victim, P.W.8 Shivmurat Ram, uncle of informant’s husband and P.W. 9 Jibati Devi, while P.W.7 has been examined for the second time. P.W.4 is a tender witness to state nothing about the incident. P.W.5 is a formal witness to identify signature of Officer-in-charge, Ext.1. P.W. 1, P.W. 2, P.W. 3, P.W. 7, P.W. 8 and P.W. 9 are the witnesses to whom incident was narrated by the victim, informant either at the field of the occurrence or at her home. P.W.6 victim of the case is the sole witness to state commission of rape upon her by accused-appellants. Patna High Court CR. APP (SJ) No.247 of 1999 dt.17-01-2012 4 6. Counsels are at agreement on the point that conviction is possible basing solitary evidence of prosecutrix if that inspires confidence and appears to be absolutely trustworthy, unblemished and of sterling quality. In any case, sexual intercourse may be said rape if the act alleged comes within definition of 375 of the I.P.C. 7. In the instant case, averment is that alarm was raised in the field after commission of rape and incident was narrated to family members or anyone at the home. On this point, P.W.6 states in para-1 of her examination in Chief that after commission of rape, accused persons went towards South. She came her home and narrated the incident to her brother-in-law, Bhaisur, father-in-law, mother-in-law and sister-in-law. Making of any alarm is missing. That could be relevant that there was chance of narration of incident at the spot (place of occurrence). Witnesses P.W.1, P.W. 7, and P.W. 8 are stating their arrival to the field of occurrence on alarm of the victim and narration of the incident by her there. Of them, namely, P.W.7 is again examined, as P.W.9 in which she does not state about her coming to the field of sugarcane on alarm of the victim. In any case, making of alarm and narration of the incident by the victim at the P.O. field is not corroborated by the victim herself. 8. No doubt, incident was narrated to P.W.2 Patna High Court CR. APP (SJ) No.247 of 1999 dt.17-01-2012 5 and P.W.3, as stated by them is corroborated by the victim but at home. More over, this much is relevant to the point only that just after the incident, same was narrated to witnesses may be said post-incident happening. 9. Now P.W.6, victim of the case remains to be discussed if justifies the conclusion of the Trial Court about conviction and sentence. 10. On the point of real act of comm

Applicable IPC Section: 342

Statute Text:
Section 342 of the Indian Penal Code. Wrongfully confining any person. Whoever wrongfully confines any person shall be punished with simple imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.