Criminal Appeal (SJ) No.172 of 2002 ****** Against the judgment and order of conviction and sentence passed by Shri Hemant Kumar Srivastava, 1st Additional Sessions Judge cum Special Judge, Patna dated 26.2.2002 in Special Case No. 20/1998. ****** Smt. Hemlata Yadav wife of Shri Gangadhar Yadav, Resident of Q/2, Officers Flat, New Punaichak, Patna ---------------------- (Appellant) Versus The State Of Bihar ------------------------ (Respondent) With Criminal Appeal (SJ) No.162 of 2002 Mritunjay Kumar Yadav @ Babloo son of Gangadhar Yadav, Resident of Q/2, Officers Flat, New Punai Chak, Patna ----------------------- (Appellant) Versus The State Of Bihar ------------------------- (Respondent) ******* For the appellant : Mr. Chitranjan Sinha ,Sr.Advocate, (Cr.Appeal No. 172 of 2002) and Mrs. Soni Srivastava For the appellant: Mr. Jitendra Singh, Sr.Advocate (Cr.Appeal No.162 of 2002) and Mr. Satya Barat Verma and Mr. Rajesh Kumar For the State: Mr. Gopesh Kumar, APP (In both the Cr. Appeals) P R E S E N T THE HON'BLE MR. JUSTICE MANDHATA SINGH Mandhata Singh,J. These appeals are directed against the judgment and order of conviction and sentence passed by Sri Hemant Kumar Srivastava, 1st Additional Sessions Judge cum Special Judge, Patna dated 26.2.2002 in Special Case No. 20/1998 convicting the appellant (Smt. Hemlata Yadav) for 2 offence under section 120B read with sections 376 and 506 of the Indian Penal code and sentencing her to three years and 126 days that is the period undergone by her in custody and the appellant (Mritunjay Kumar Yadav @ Babloo) has been convicted for the offence under sections 376 and 506 of the Indian Penal code and sentenced to undergo rigorous imprisonment for 10 years for offence under section 376 I.P.C. and further 6 months rigorous imprisonment for offence under section 506 I.P.C along with fine of Rs.10,000/- and in default of payment of fine, further to undergo simple imprisonment for six months. 2. Before discussing the case, it is pertinent to mention that the statement of informant Champa Biswas was recorded on 19.8.1998 at about 11.00 AM by S.I. Asha Thakur of Pirbahore Police Station in Delhi at House No.1 Block/B Double Storey, Vishal Inclax P.S. Rajauri Garden, New Delhi-27 in presence of Sri Niraj Sinha, Superintendent of Police (D), Bihar, Patna, Sri Lalit Kumar, Inspector of Police, Patna, Sri B.B.Biswas, informant’s husband, elder brother Dinesh Chandra Biswas and one Chiranji Lal which in short is as follows: 3. That her (informant’s) marriage was 3 solemnized on 18.7.1990 with B.B.Biswas (P.W.2). From 2.9.1995 she started to reside in Government Quarter No. 53/60 situated in Bailey Road, Patna along with her husband and other family members. One Jugal Kishore Gupta alias Jogendra Gupta and his wife Reeta Gupta were occupying the servant quarters of informant’s quarters from before. They were asked by the informant to vacate the servant quarters with a view to shift her own maid Shefali but Hemlata Yadav and her son Mritunjay alias Babloo Yadav came there in their rescue, pressurized her to allow them to continue in the said servant quarters. 4. Jogendra Gupta and Reeta Gupta were allowed to continue. On 7.9.1995 it is said that in between 11.00 to 12.00 in day time Shefali and Reeta came to her and requested her to see the condition of said servant quarters while her husband had gone office and children to school. Following the request she went inside the servant quarters where the appellant Hemlata Yadav and Mritunjay Kumar Yadav were found sitting from before. She was requested to sit there. She declined but all of a sudden Hemlata, Shefali and Reeta came out of the room stealthily and locked the room from outside. Servant quarters has got a single room with single 4 door and window. Appellant Mritunjay Kumar Yadav caught hold of her, she applied force and raised alarm also but rape was committed on her, specifically it is said that none was there in the colony, so none came in her rescue. 5. Further it is said that on account of aforesaid rape she became unconscious and when she regained her consciousness, she found the door of servant quarters opened and none was present there. After coming of her in quarters it is said that Hemlata Yadav came, persuaded not to disclose the incident to her husband or any other person otherwise her family members would be murdered and her naked photograph would also be published which was taken by appellant Mritunjay Kumar Yadav. She was consoled also by telling appellant Hamlata’s influence as being equivalent to State Minister having influence at State level. Informant did not disclose the incident to any person due to threat and fear of publishing of naked photograph. 6. Further it is said that on 8.9.1995 when her husband and children were absent from the house, Hemlata Yadav, Mritunjay alias Babloo, Shefali and Reeta came in her quarters and entered in her bed room. Mritunjay was holding a Camera in his hand, all persuaded her to marry Mirtunjay as 5 he was young, smart, educated having influence of his mother with further suggestion to not disclose the occurrence to any body. Her husband was told old man to have no relation with her. Appellant Hemlata Yadav further told her that she was getting a Minister post and then she would be accommodated of any post of chair person. Again she was left with Mritunjay in the room which was bolted from outside who told her about her having naked photographs with threatening to defame on divulgence and her husband and children would be killed. Rape was committed thereafter telling influence of mother of appellant Mritunjay for no harm to him, again she became senseless. Her naked photographs were also taken on 8.9.1995. Repeatedly rape was committed by the appellant Mritunjay. The agony made her indecisive as what she should do for her prestige and lives of her family members. She became pregnant, examined by Dr. Smt. Gupta. 7. The informant further states that in 2nd week of December, 1995 her mother Smt. Padma Rani Biswas came to her house to look after her and one day when her husband and children were out of house and Shefali was preparing food, appellant Mritunjay came, asked her mother about whereabout of the informant. She did not reply, then she was hugged 6 and misbehaved. Any how on her protest, Mritunjay left the house. Feeling annoyance, her mother in March, 1996 advised the couple to leave the house and Patna and the husband to leave the job of I.A.S. Her mother left for Bengal. 8. She further states that at the cost of threat to defame and kill her husband and children, commitment of rape by appellant Mritunjay continued. She was being consoled by Smt. Hemlata Yadav and Reeta to not worry. On 15.5.1996 she went west Bengal with her husband. She was checked at S.N.R. Corny Wall Nursing Home, admitted on 20.5.1996 due to excessive bleeding, gave birth of female child, after hours she was declared dead whose dead body was buried by informant’s cousin Piyush Kanti Biswas and her husband’s cousin Sunirmal Biswas. Thereafter she returned back to Patna along with Shefali. 9. She further states that in July, 1996 Piyush Kanti Biswas came to Patna and one day he saw appellant Mritunjay sitting in side of her, felt annoyance also, expressed his desire to return back to Bengal but was gained over by Smt. Hemlata Yadav and Mritunjay. Giving threatening of publicity of the aforesaid incident. Mritunjay got admitted her in Aghore Kamni Silayee Kendra, 7 thereafter to Sansar Prashikshan Kendra, Rajapul enabling her to fulfil his desire out of her house. 10. Further she states that in November, 1996 one day her husband came earlier from the office when Mritunjay was sitting with her, so he suggested to keep a distance from Smt. Hemlata yadav and Mritunjay, knowing the suggestion a threatening was again given to kill the husband. She became terrified. She suspected some misdeed by Shefali and Reeta in mixing something in her husband’s food as his health was appearing deteriorated. 11. She further states that in January, 1997 she started to go to Sanjay Gandhi Javik Udyan with Smt. Hemlata Yadav and Mritunjay but after some days, Smt. Hemlata Yadav left the informant and Mritunjay alone for walking, coming of Mritunjay’s friend Mannit and Amit to Mritunjay’s house is also asserted. In March, 1997 it is said that Mritunjay went to West Bengal and returned in 2nd week but her husband’s niece Kalayani was seen, perhaps was brought by Mritunjay in connivance of Sujit Kumar @ Gopal, specifically it is said that Mritunjay kept her niece at Howrah for one or two days and committed rape twice. Kalayani is said to be brought for facilitating Mritunjay’s friend for 8 sexual lust. 12. Further it is said that in between the night of 21-22nd May, 1997 Mritunjay came to her house, she opened the door out of threat of Mritunjay, went in a room which was a reading room. The door of bed room where her husband was sleeping was blocked by Mritunjay by putting Sofa, indulged in sexual relation. Her husband woke up, tried to open the door, Mritunjay fled away but that incident was also not told on her behalf due to threat of appellant Mritunjay. 13. Further she states that Shefali confessed about administering drugs in her husband’s meal at the instance of Mritunjay and Reeta. She was being taken to Friend Medical Store situated near Indira Bhawan at the point of said threat and there also he was having sexual intercourse with her in a room situated behind the aforesaid Medical Store. For Kalayani it is said that she became pregnant twice. Reeta also became pregnant. Both ladies were aborted by one Dr. Smt. Mukherji at the instance of Mritunjay. Rajesh Kumar Singh, a teacher coming to teach informant’s children, stopped to come due to fear of Mritunjay. Thereafter Awadh Kishore Sinha started to teach her children but was gained over by Mritunjay. Now Awadh Kishore Sinha was keeping 9 vigil while Mritunjay indulged with sexual intercourse with the informant. 14. Again it is said that in the month of March, 1997 one day her husband suddenly came at about 1.30 PM on which Awadh Kishore Sinha was quick in entering the house by bolting the same from inside which facilitated Mritunjay to flee away from the house through back door. His unnatural behaviour was inquired by Awadh Kishore Sinha but with no reply. In May,1997 also informant’s husband came at 1.30 PM, switched the bell while Mritunjay was indulged in sexual intercourse, so the door could be opened only after escape of Mritunjay. On knock and dash, colony people assembled there, then Kalyani opened the door, delay in opening the door was replied, their remaining in bath room while Shefali was washing utensils. Children on query reported that they were stopped to open the door. They were threatened by Shefali, Mritunjay and Kalyani even not to disclose anything to her husband. 15. Further it is said that on their return in the month of June, 1997 informant along with her husband, children and Kalyani from Delhi on L.T.C., Shefali told her not to work in her house rather to Smt. Hemlata Yadav as Rs. 600/- per month was 10 offered on her behalf with Government job to her son, so Shefali was brought by them to her village Patti Khali. Informant and Kalyani used to talk appellant Mritunjay on telephone was seen by her husband’s cousin, talk on telephone is also said due to threat. Further their statement is about coming of Jamuna Biswas, again in July, 1997 coming of Deepak Biswas, Kalyani’s elder brother and his returning to Patti Khali. 16. She further states that in the month of July, perhaps on 19.7.1997 Mritunjay while was to go Calcutta asked her to meet at Railway Station, New Market in the evening with threatening. On the pretext of purchasing medicine and eggs, she went there along with her elder son and Jamuna Biswas on car which was being driven by his private driver, who was kept/engaged by Mritunjay on the point of same threat. Absence was queried on return by the husband who did not satisfy with her answer and removed the aforesaid driver. 17. She further states that in the month of July, her husband came across the incident from officials of his office and others. He expressed his annoyance and thereafter in the 3rd week of July. Sujit Kumar Biswas was asked by the informant on telephone to send husband’s sister Rewa Biswas 11 and cousin Sunirmal. Again husband asked Sujit to come along with Shefali and Kalyani. Informant’s brother was also informed on telephone in Delhi. He came next day while Rewa Biswas and Sunirmal came next day, non- coming of Shefali and Kalyani was answered that same was not told by Sujit. Kalyani had informed Nityagopal Biswas, husband’s cousin on telephone no. 76545 from phone no. 222574 on 22.7.1997 about proceeding of Rewa Biswas and Sunimal for Patna. Husband’s nephew Anikhan and Pintu and other ladies had heard Kalyani informing on telephone. Kalyani had told Pintu that she was talking on phone with Babloo Bhaiya who had studied from Delhi in English medium and had wrote a book in English also. His mother was Chairperson of the Board having political influence and rich also. Nearby staff and people had also knowledge about the incident but were keeping mum due to political influence of accused persons Mritunjay and her mother or their group. 18. She further states that one day her husband saw her children preparing bomb and gun from toys who told to kill Mritunjay, humiliating thereof she disclosed all the incidents to her husband. 19. After knowing that informant’s husband had come to know about all the incidents, he 12 (Mritunjay) became more aggressive. They came to know that conspiracy was being hatched up to eliminate her husband and her children. Some of the staffs, neighbours and others were part of conspiracy. They felt helpless alone and threatened. It was decided by her husband to leave Patna and they left for Delhi and were residing at different places. Lastly it is said that they belong to scheduled caste community for that only such act was being done. 20. After cognizance charge framed, trial commenced followed by examination of witnesses, examination of accused persons under section 313 Cr.P.C. and after concluding trial, appellant Mritunjay Kumar Yadav is convicted for the offence under sections 376 and 506 IPC and appellant Smt. Hemlata Yadav for the offence under section 120B read with 376 and 506 IPC. Appellant Mritunjay Kumar Yadav alias Babloo Yadav is sentenced to undergo R.I. for ten years for offence under sections 376 and 506 IPC with a fine of Rs. 10,000/-, in default to undergo S.I. for six months and appellant Smt. Hemlata Yadav is sentenced for a period of three years and 126 days for offence under sections 376 read with 120B IPC which was already undergone by her and there is no separate 13 sentence for the offence under section 506 IPC. 21. Witnesses examined on behalf of prosecution are P.W.1 Champa Biswas, informant of the case, P.W.2 Sri Bhupati Bhushan Biswas, informant’s husband, P.W.3 Shyam Sundar Dubey, P.W.4 Munni Lal Prasad, P.W.5 Suresh Yadav, P.W.6 Jitendra Kumar, P.W.7 Rakesh Ratnam, P.W.8 Ashish Kumar, P.W.9 Sheo Prasad Mahto, P.W.10 Raj Kishore Prasad Singh, P.W.11 Ramoo Ram, P.W. 12 Matiur Rahman, P.W.13 Ramdeo Prasad, P.W.14 Piyush Kanti Biswas, P.W.15 Jjayant Biswas, P.W.16 Sujeet Kumar Biswas, P.W.17 Dular Chand Biswas, P.W.18 Rewa Biswas, P.W.19 Ashima Biswas, P.W.20 Nitya Gopal Biswas, P.W.21 Jai Ram Baboo alias Ram Baboo Yadav, P.W.22 Om Prakash Sharma, P.W.23 Sunirmal Biswas, P.W.24 Anirman Biswas, P.W.25 Pintoo Biswas, P.W. 26 Subimal Biswas, P.W.27 Dr Pramila Gupta, P.W.28 Dr Anil Kumar Sinha, P.W.29 Asha Thakur, P.W.30 Lalit Kumar, P.W.31 Devendra Kumar Sharma, P.W.32 Subhash Kumar, P.W.33 Faiz Ahmad, P.W.34 Kesri Kishore Tiwari, P.W.35 Md. Hasnain. 1. Ext.I – Photo of a child 2. 1 to 1/9 – Signature of Champa on Fardbeyan. 3. 1/10 to /19 – Signature of Dinesh 4. 1/20 to 1/29 – Signature of Chiranjee 5. 1/30 – Signature of Champa on seizure cum 14 production list 6. 1/31 to 1/40 – Signature of a witness on Fardbeyan 7. 1/41 to 1/46 – Signature of witness on seizure cum production list. 8. 1/47 – Signature 9. 1/48 – Signature of Champa on the back of material ext. 10. 1/49 to 1/54 – Signature of Shiv Prasad on seizure list. 11. 1/55 to 1/60 – Signature of Raj Kishore on seizure list. 12. Ext. 1/61 – Signature of Lalit Mohan and Fard Beyan 13. Ext. 1/62 – Signature of Mritunjay and Fard Beyan. 14. 2/1 – Endorsement on Fard Beyan 15. 3 – Formal F.I.R. 16. 4 – Place of occurrence. 17. 5 - Seizure list 18. 6 – Report of D.N.A.Test 19. 7-7/1 – carbon copy of letter written for sending blood stained cloth to Forensic laboratory. 22. Two witnesses examined on behalf of defence are D.W.1 Deep Narain Singh and D.W.2 Ram Balak 15 Singh. Defence: 1. Ext.A – application for admission. 2. Ext.B –letter of Forensic Laboratory,Patna 3. Mark Y – photo copy of Advocate’s notice 4. Ext.C – Notice sent by Advocate 5. Ext.D – Order of Governor 6. Ext.E – Signature of Vikash Ayukt 7. Ext.F – Notification no.3 legal. 8. Ext.Mark Z - Notification 23. To discuss the allegation if rightly have been decided, it is necessary to mention the offences under which accused appellants have been convicted. Accused appellant Mritunjay Yadav has been convicted for the offence under sections 376 and 506 IPC while accused appellant Smt. Hemlata Yadav is concerned, she is convicted for the offence under section 376 read with 120B and 506 IPC. For the offence under section 506 IPC the rape is inter-linked, threatening if is excluded, the act alleged discussed later comes to consented sexual intercourse, rape is defined under section 375 IPC which runs as follows: “375. Rape.- A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- 16 First- Against her will Secondly- Without her consent Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly- With or without her consent, when she is under sixteen years of age.” 24. The said section clearly goes to show that sexual intercourse in itself is not crime. It is crime when it is done against will, without consent, with consent, when consent has been obtained by putting her (victim lady) or any person in whom victim is interested in fear of death or of hurt. 25. Third ingredient is only applicable in the case. She is stating, consenting for all time, save and except first two occasions but under threat. For the first and second occasion it was against her will and without her consent. For rest if the consent is obtained under threat, indirectly it can be said that it was against will also. Rest of the ingredients i.e. fourth, fifth and sixth are not 17 applicable in the case. 26. Once it appears that rape is committed, something more is attached that is social repercussion, backward looking by Indian society, danger of being ostracized and survival difficulties, the resultant psychology of an Indian girl or woman and something more is added with victim of the case that appellant Smt. Hemlata Yadav was chair person of a committee/Board, a leader of political party. Accused appellant Mritunjay Yadav is shown as muscleman having fire arms also able to give threatening. 27. Parallel to it something is there against the victim also. She is wife of an I.A.S. Officer, there is much difference in age with her husband as has come in paragraph 26 of P.W.2 that at the time of marriage his age was 41 year and that of his wife 18 years and his second wife. Several of the accused persons and one tried are lady also, she (tried lady) has created circumstance rather conspiracy to commit rape upon the victim but by her son. Rest come from lower strata or house wife or maid. None of the witnesses including ladies are supporting prosecution case save and except the informant and her husband. Sexual intercourse was continuing. These are circumstances to favour the 18 prosecution case as well to doubt it. 28. In that context it is to be taken into consideration whether conclusion reached by Additional Sessions Judge is liable to be sustained or not? 29. Material witnesses are P.W.1, the informant, victim of the case and P.W.2 her husband who have supported the prosecution case in Court. P.W.35 is I.O. of the case. Statement of P.W.1 and 2 if finds corroboration by rest of witnesses, will be discussed later at appropriate stage. The evidence of I.O. is of any relevance for prosecution or defence will also be discussed in the same sequence. Rest of witnesses namely P.Ws. 4, 9, 10 and 21 have been declared hostile finding no corroborative to prosecution case. Of them, P.Ws. 4 and 21 have not stated any thing on the point of incident. P.Ws. 9 and 10 though are hostile but they have identified their signature on seizure cum production list. P.Ws. 11 and 13 are stating about their remaining at the quarters of informant from 7.00 am to 2.00 pm and from 2.00 pm to 7.00 pm. PWs 3, 5, 6 and 12 state nothing relevant concerning the incident. P.Ws 8 and 22 are tendered witnesses stating nothing on the point of incident. 30. P.W.7 is owner of Friends Medical Store, is 19 only on the point that the victim and accused were not coming to his shop nor there was any room behind his shop, is taken to doubt the prosecution case to that extend that Mritunjay was going there with victim for having sexual intercourse. 31. P.Ws 14, 15,16,17,18,19,20,23,24,25,26 and 27 are witnesses who are in any way related with the victim or her husband and none of them is on the point of incident if committed in their presence. Of them, P.W.19 Ashima Biswas is stating only about hearing the incident but while was queried detail, she states about not remembering any part of the incident. If their statements have any concern with the incident for its believe or disbelieve, will be discussed according to relevancy of the case at appropriate places but of them P.Ws 23, 25 and 26 are hostile witnesses. 32. P.W.27 is a doctor, who had examined the victim but not asserted any commitment of sexual intercourse as it was health and usual check up. P.W.28 is Dr. Anil Kumar states about taking of blood sample of accused Mritunjay Yadav and the victim. P.W.30 states about recording of Fardbeyan of victim in his presence. P.W.31 Devendra Sharma has attached property of Smt. Hemlata Yadav, P.W.32 states about going to attach Reeta’s property. 20 P.W.33 states about attachment of Shefali’s property and P.W.34 states for attachment of property of Awadhesh Kumar Sinha. 33. P.W.29 Asha Thakur, S.I.Gandhi Maidan police station is Police official recorded the statement of informant and that she is supporting. Now that is not doubted also