Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.49 of 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 16.12.1999, PASSED IN SESSIONS TRIAL NO. 419/97, BY THE ADDITIONAL SESSIONS JUDGE, KISHANGANJ. =========================================================== Jahiruddin @ Md. Jahiruddin, son of Tamizuddin, resident of village Haldawan, P.S. Dighalbank, District Kishanganj .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant : Mr. Arjun Prasad, Amicus Curiae For the State : Mr. Sujit Kumar Singh, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 27-08-2012 S.A. Khan, J. This appeal is directed against the judgment of conviction and order of sentence dated 16.12.1999, passed in Sessions Trial No. 419/97 by the Additional Sessions Judge, Kishanganj convicting the sole appellant to undergo R.I. for 7 years under [STATUTE] and to pay a fine of Rs. 2,000/-. 2. The First Information Report was instituted by Habai Noor Nishan, Daughter of Mohiuddin on 15.3.1997 in which it is said that 15 days prior to lodging of the First Information Report, she had gone to the house of the appellant to grind wheat. It is alleged that the appellant caught hold of her and raped her. She raised an alarm, whereupon, the mother of the appellant and the appellant told her not to attract attention to the incident as she would get them both married. Patna High Court CR. APP (SJ) No.49 of 2000 dt.28-08-2012 2 / 7 2 It is further said that two days prior to the lodging of the First Information Report when she went to the field to ease herself, the appellant caught hold of her and again raped her. She reveals that she disclosed this fact to her mother and the villagers namely Sirajul, Md. Fazloo, Md. Kash, Zabadul Haque and Jamizuddin. A Panchayat took place which was not attended by the appellant and as such she has instituted this case. 3. Learned Amicus Curiae for the appellant submits that the allegations are unbelievable, the case has been lodged after a delay of 15 days and that the story of Panchayat is concocted. 4. Altogether 15 witnesses have been examined in this case. P.W. 15 is the witness who has proved the formal First Information Report, whereas, P.Ws. 7 to 14 are hearsay witnesses who have not been able to disclose as to how and from whom they learnt about the incident. These witnesses are not mentioned in the First Information Report and, therefore, their evidence cannot be relied upon for proving the prosecution case. 5. The doctor has examined the lady and has recorded that no signs of rape could be detected. It is mentioned that the radiological examination shows that the girl was about 19 years of age, whereas, dental examination disclosed that she was about 30 years of age. In this background the Court should now examine the Patna High Court CR. APP (SJ) No.49 of 2000 dt.28-08-2012 3 / 7 3 evidence of so called witnesses to this occurrence. 6. P.W. 1 is the father of the girl. He has stated in his chief that he learnt about the occurrence from his daughter. He has supported the case that there was a Panchayat which was not attended by the appellant. At paragraph 10 he says that Jahiruddin had transferred 1 Bigha of land in favour of his daughter. He denies the suggestion that the case has been instituted because Rs. 7,000/- was to be paid to the appellant and in order to avoid payment of the dues this false case has been instituted. 7. From the tenor of the evidence, it would appear that P.W. 1 has slightly changed the manner of occurrence as mentioned by his daughter in the First Information Report. He has introduced a case that the daughter was asked to go to the house of Jahiruddin by the father of the appellant Tamijuddin. It is also admitted by P.W. 1 that there was some transaction with respect to transfer of land between the parties for which certain amount of money was due to Jahiruddin, the appellant. It is, therefore, submitted that no such occurrence took place and that the case was instituted in order to avoid payment. 8. P.W. 2, Maqbool Hussain has not been mentioned in the First Information Report by the informant as one of the persons to whom she had disclosed the occurrence. He admits that he was not Patna High Court CR. APP (SJ) No.49 of 2000 dt.28-08-2012 4 / 7 4 examined by the Investigating Officer under Section 161 of the Code of Criminal Procedure. His evidence, therefore, has to be rejected out right by this Court. 9. P.W. 3 is the mother of the victim girl. She supports the prosecution version and tries to explain the delay in lodging of the First Information Report by saying that there was a Panchayat between the parties which had led to delay in lodging of the case. This witness at paragraph 7 of her evidence has stated that the appellant had transferred (sold) 1 Bigha of land in favour of her daughter. Apparently this witness knows nothing regarding the occurrence. Infact she has not been examined as a witness in the First Information Report although she was an important witness to substantiate the case of rape. 10. P.W. 4, Md. Ismail is a witness to the Panchayat that was held regarding the said occurrence. His evidence discloses at paragraph 2 that Jahir is his brother-in-law. Attention of the witness has been drawn to the statement given before the Investigating Officer in which he has not stated that a Panchayat was held after the occurrence. Surprisingly he says “ ” thereby dislodging the case of the prosecution that the Mukhiya and the Sarpanch had intervened in the matter and held a Panchayat regarding the occurrence. According to this witness he has stated that Patna High Court CR. APP (SJ) No.49 of 2000 dt.28-08-2012 5 / 7 5 “ ” The Court finds that Md. Ismai

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.