Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.661 of 2005 ======================================================= Against the judgment of conviction and order of sentence dated 9th and 10th June, 2005 respectively passed in Sessions Trial No. 66 of 2005 by Sri Bidhu Bhushan Pathak, Ist Additional Sessions Judge, Katihar ======================================================= Khagesh Mahto @ Khagesh Mandal son of Sri Murli Ram, R/o village- Khaira Lal Chandra Samali, P.S.- Falka, District- Katihar .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s ======================================================= Appearance : For the Appellant/s : Mr. Amit Kumar Anand, Advocate Mr. Ratnakar Ambastha Mr. Ajay Kumar Verma For the Respondent/s : Mr. Ashiwini Prasad Sinha, APP ======================================================= CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 14-08-2012 The sole appellant has preferred the instant appeal against the judgment of conviction and order of sentence dated 9th and 10th June, 2005 passed in Sessions Trial No. 66 of 2005 by the learned Ist Additional Sessions Judge, Katihar by which the appellant was convicted for the offence punishable under [STATUTE] and was sentenced to undergo rigorous imprisonment for life for the offence under [STATUTE] and rigorous imprisonment for five years under sections Patna High Court CR. APP (DB) No.661 of 2005 dt.14-08-2012 2 376/511 of the Indian Penal Code and both the sentences were ordered to run concurrently. 2. Fard-beyan (Ext. 3) of Sushil Yadav (PW 6) resulted into registration of formal FIR (Ext. 4) of Falka P.S. Case No. 115 of 2004 under [STATUTE] . The informant Sushil Yadav in his fard- beyan, recorded at the door of PW 5 (Diwakar Pandit, Mukhiya) on 12.9.2004 at 9.30 AM with regard to the occurrence of the previous day in presence of the informant’s daughter Rubbi Kumari aged 12 years (PW 1) and Lalmani Devi (PW 9), alleged that at 9.00 AM on 11.9.2004 Rubbi aged about 12 years set out for Kamat from her house. When she arrived near Banana field of Lal Babu Singh, then Khagesh Mahto (Kahar) started dragging Rubbi Kumari by pressing her neck. It was a lonely place and the accused intended to outrage her modesty. The informant’s daughter cried but the accused pressed her neck causing unconscious to Rubbi Kumari. The accused presumed her to be dead and carried her to secluded place. In the mean time behaviour of the appellant was noticed by a farmer who was present in the nearby field and thereafter the appellant retreated. The accused thought that Rubbi Kumari was already dead and the concealment was with the motive that he will commit rape Patna High Court CR. APP (DB) No.661 of 2005 dt.14-08-2012 3 later on. The informant’s daughter did not reach to Kamat, then a search was made and she was found lying unconscious in Banana field. Her neck was twisted. Any how she was brought to her consciousness and on reckoning consciousness she narrated the entire happenings with her. The informant further stated that the younger brother of this accused namely, Shailendra Mahto ( Kahar) and this accused are addicted to torture girl child or woman and after twisting the neck leading to death they used to commit rape. One occurrence leading to registration of Police Station Case No. 27 of 2001 dated 1.4.2001 was similar and the accused was released from the jail. Accused was chargesheeted in a case for the offence under [STATUTE] . Brother of this appellant, namely, Shailendra Mahto was a life convict in a case of committing murder of Putul Kumari aged 12 years and for commission of rape upon her dead body. The accused was over powered and brought to the Darwaja of Mukhiyajee and in presence of villagers, he confessed his culpability. In course of being caught the accused has also received some injuries. Fard-beyan was witnessed by Rubbi Kumari (PW 1), Diwakar Pandit (PW 5) and Kunkun Yadav (PW 3). 3. In course of investigation statements of Patna High Court CR. APP (DB) No.661 of 2005 dt.14-08-2012 4 witnesses were recorded under sections 161 of the Cr.P.C. The victim girl was sent through requisition (Ext. 5) for medical examination and she was medically examined and the report (Ext. 2) was obtained and the case was found to be true, so chargesheet was submitted under [STATUTE] . The case was committed to the Court of Sessions where charges were explained to the appellant to which he pleaded his innocence and trial proceeded. 4. The defence of the accused was of false implication. It was submitted that a land dispute was the motive of false implication. In fact, this appellant was badly thrashed for which he was medically examined (Exts. A and A/1) and to save themselves from prosecution the present false case was brought. His further defence was that there was dispute with respect to allotment of land with the owner of the place of occurrence land and thereby at the instance of the owner of the place of occurrence the accused has been framed. A Basgit Parcha was claimed to be given to the accused. 5. In order to prove its charge, the prosecution has examined altogether 11 witnesses. They are: Rubi Kumari (PW 1) the victim, Moti Sah (PW 2), Kun Kum Yadav (PW 3), Patna High Court CR. APP (DB) No.661 of 2005 dt.14-08-2012 5 Ram Prasad Pandit (PW 4), Diwakar Pandit the Mukhiya (PW 5), Shushil Kumar Yadav the father of the victim (PW 6), Dr. Ram Lakhan Prasad the Medical Officer (PW 7), Siyaram Pandit (PW 8) an hearsay witness, Lal Mani Devi (PW 9) the FIR named witness, Ram Sewak Yadav (PW 10) and the Investigating officer Sheonath Pandey (PW 11). 6. PW 2 has his paddy near the banana field where PW 1 was carried away. On

Applicable IPC Section: 376

Statute Text:
Section 376 of the Indian Penal Code. Rape. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.