Criminal Appeal (SJ) No.349 of 1998 With Criminal Appeal (SJ) No. 350 of 1998 **** Against the judgment, dated 29/30.07.1998, passed by Shri Rajendra Prasad Choudhry, District & Sessions Judge, Madhepura, in S. Tr. No. 38 of 1998 **** Dhanjay Parway @ Lallua, son of Ramavtar Prasad Parway, resident of village Chiraura, P.S. Chausa, district Madhapura .. Appellant (in Cr. Appeal (S.J.) No. 349/98) Dilip Parway, son of Ganpat Parway, resident of village Chirauri , P.S. Chausa, district Madhepura .. Appellant (in Cr. Appeal (S.J.) No. 350/98) Versus The State Of Bihar .. Respondent (in both the appeals) For the Appellant .. M/S Ashutosh Kumar & Birendra Kumar Singh, Advs. For the Respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the learned counsel for the appellants and the State. 2. These two appeals are heard together and are being disposed off by this common judgment as both arise out of the same case. 3. The prosecution case, as transpired from the first information report and the evidence, is that the victim, Kanman Kumari, P.W. 6, is the daughter of the informant, Dharnidhar Paswan, P.W. 8, and 2 the victim, along with her cousin brother, Shanker Paswan, P.W. 10, went to give food to her brother, Binod Paswan, at Chausabasa. While they were returning from Chausabasa at about 07.00 p.m. and reached in village near machan of Janardan Paswan, then, they saw Dhananjay and Dilip sitting at the machan. 4. The victim, Kanman Kumari, P.W. 6, is the daughter of informant, Dharnidhar Paswan, P.W. 8. The victim, along with her cousin brother, Shanker Paswan, P.W. 10, went to give food to her brother, Vinod Paswan, at Chausabasa. While she was returning, she reached at 07.00 p.m. near the machan of one Jagdish Sharma. They saw the accused, Dilip and Lalua, sitting there. Dilip came and shut the mouth of the victim with towel and Shanker Paswan was slapped. Shanker Paswan flee away to his house to inform the parents. The victim was taken to machan and was raped after untying her panty. The victim became unconscious. On the information of Shanker Paswan, the parents of the victim rushed to the place of occurrence with other family members and the villagers. They found the victim in unconscious state and panty of the victim dismair with blood. The victim second to bring from her unconsciousness and then the victim disclosed about the rape by the accused, Dilip and Lalua. 5. The occurrence took place on 15.08.1997 at 07.00 p.m., however, the first information report was lodged on the fardbeyan of the informant, P.W. 8, the father of the victim, on 22.08.1997. After lodging of the first information report the investigation proceeded. During the investigation the statement of the victim was recorded under Section 164 3 of the Criminal Procedure Code before a Magistrate, P.W. 13, and the victim was examined by doctor, Saroj Singh, P.W. 1, on 23.08.1997. However, the victim was, again, examined, subsequently, by a team of doctors on 28.10.1997, who are P.Ws. 2, 3 and 11. After the investigation the charge sheet was submitted. The cognizance was taken and case committed to the Court of sessions. 6. After commitment the charge was framed and thirteen witnesses were examined by the prosecution during the trial. P.W. 6, the victim, in her evidence supported the prosecution case that while was returning with P.W. 10 and reached near the machan of Jagdish Sharma, Lalua and Dilip were sitting there. Dilip came and shut her mouth by towel and Lalua got other her by which there was tearing in the private part and panty was dismair with blood. P.W. 10, Shanker Paswan, corroborated the evidence and stated that they reached near the machan of Jagdish Sharma then Dilip and Lalua got over Kanman Kumari and dragged her and he ran to inform and then the parents of the victim reached along with others and the victim brought unconsciousness by shaking her and she named Dhananjay Parway @ Lalua and Dilip. P.Ws. 4 and 5, the mother and aunt of the victim have turned hostile. P.W. 7, the uncle of the victim supported the prosecution case that on hulla he went and saw Kanman Kumari unconscious and she disclosed about the rape by two persons. However, he has stated that she did not disclose the name to the parents. P.W. 9, however, supported the prosecution case that on hulla he went and Kanman Kumari disclosed the name of Dhananjay @ Lalua and Dilip were the persons who dragged and 4 committed rape upon her. P.W. 8 is the informant and has stated that on information he reached at the place of occurrence and found Dilip and Lalua fleeing away from machan and Kanman Kumari in unconscious state and her panty found untied, dismair with blood. However, he stated that afte the occurrence the accused persons did not allow him to go to Police Station and any how he managed to go to Police Station. P.W. 1, the doctor, who examined the victim on 23.08.1997, however, did not find any injury on the private part, but, reported about the old rupture present in hymen and admits two fingers and opined that there is no sign of recent rape. A team of doctors, P.Ws. 2, 3 and 11 examined the victim on 28.10.1997 and opined that the victim is in between 14 to 16 years and there was no sign of recent rape present, however, opined that the commission of rape is not excluded. P.W. 12, the investigating officer, has proved the seizure list of panty and found that the house of Janardan is adjoining east and in front of it there is house of Dhananjay @ Lalua. P.W. 13 is the Judicial Magistrate, who has proved the recording of statement of the victim under Section 164 of the Criminal Procedure Code and has proved the said statement, which has been marked as Exhibit 6. 7. The defence of the accused persons is that there is delay in lodging the first information report and the victim has been tutored to depose her statement under Section 164 of the Criminal Procedure Code as well as during the evidence. The doctor has not found the sign of recent rape and no definite opinion of the rape has been given and the informant is the bataidar of one Dhanik Lal Mandal and the case has been 5 instituted at the instance of said Dhanik Lal Mandal, who is a member of Communist Party and Dhanik Lal Mandal is in litigating term with Ramotar Parway, the father of the accused, Dhananjay @ Lalua, and Ramotar Parway is Mukhiya and only rich man of the village and after the advent of Janta Dal, Dhanik Lal Mandal lost the ground and Ramotar Parway became the Mukhiya and so Dhananjay @ Lalua has been falsely implicated to tarnish the image of Ramotar Parway for political rivalry and due to whom Dhanik Lal Mandal lost the ground. 8. The trial Court, after considering the facts and circumstances of the case, held that the prosecution has successfully proved the case beyond reasonable doubt and there is no sufficient ground for false implication and the defence version is not probable and, hence, convicted and sentenced the appellants, as stated above. 9. The learned counsel for the appellants, however, assailed the impugned order on the ground that there is delay in lodging the first information report, the doctor has not found injury and the prosecution version is a cooked up story to tarnish the image of Ramotar Parway for the political gain of Dhanik Lal Mandal and the case is due to political vendetta and the victim was tutored. 10. The State counsel has opposed the argument of the learned counsel for the appellants. 11. However, taking into consideration the evidence in the light of respective submissions, there is evidence regarding the rape. P.W. 6, the victim supported the prosecution case that when she reached at the place of occurrence then she was caught by the accused persons and 6 rape was committed. P.W. 10 has also corroborated the prosecution case for the material particular regarding catching hold the victim by the accused persons and having identified the two persons at the place of occurrence and then informed in consequence the witnesses rushed and the victim found unconscious state having her panty dismair with blood and then the victim disclosed to the witnesses just after the occurrence, hence, the evidence of the witnesses that the victim just after the occurrence, when they rushed to the place of occurrence, disclosed about the rape and, hence, is corroborated by P.W. 8 and, further, the evidence of the doctor though does not state about the clear cut case of rape, but, has opined that the possibility of commission of rape may not be ruled out. 12. However, the doctor examined the victim after several days and, hence, possibility of finding the recent rape is not possible and the doctor’s evidence is not against, but, in support of the prosecution case that the possibility of rape can not be ruled out. The team of the doctors has stated that the commitment of rape is not excluded and, hence, it is not case that there is no evidence regarding the rape except the prosecutrix rather this is a case in which the evidence of prosecutrix has been corroborated by other witnesses for the most material particular. 13. It is true that the mother and aunt have turned hostile, but, there being hostile is not a surprise in an Indian context as the woman do not like to disclose about the outraging the modesty and, further, the facts and circumstances is that it come in evidence that to the one side the victim and her father is extremely poor having got only homestead land 7 whereas to the contrary the father of one of the appellants is Mukhiya and only rich person of the village. 14. However, the criticism that there was delay in lodging the first information report particularly in case in which the victim has been ravished, however, an explanation has been given that when the accused persons learnt about the reporting they resisted and threatened the prosecution party from lodging the first information report. However, it is not un-common in Indian context that normally the parents or the woman is reluctant to report about the rape or having the allegation which affect the chastity of a woman as it affects their future and several adverse consequences. However, particularly in the context, here, that the father of one of the appellants was Mukhiya and a rich man of the village to the contrary the informant is a man without a means and for this context a delay of five days in lodging the first information report in a rape case is of not much consequence and merely because there is delay in lodging the first information report the prosecution story and case can not be brushed aside when there is proper explanation and the circumstance, itself, shows that there are several impediments. 15. However, the further criticism that the victim was tutored and the contention has been drawn in the evidence of the victim as well as the evidence of P.W. 8 that the victim went along with her father for her giving her statement before the Magistrate and for her evidence in Court that he went Madhepura along with her father and she remained with her father there before giving the statement and she gave a statement at the instance her father, however, she gave her statement before the Magistrate 8 and she gave the statement before the Court where she was subjected to cross examination and she stood the test of cross examination and, hence, mere one line that she deposed at the instance of her father or has stated by the prosecution witnesses the evidence of P.W. 6 can not be rejected that he remained with the father or went with the father. A daughter is expected to go with the father when she is minor and merely because she live with the father her evidence can not be rejected and, hence, merely because she has deposed and gave the statement at the instance of her father is no ground to reject her evidence, when she stood the test of cross examination by the accused persons and in the light of the evidence of the other witnesses who have supported the case of the prosecution and corroborated the evidence of the prosecutrix. 16. However, it has come during the cross examination of the informant that there is litigation between Dhanik Lal Mandal and Ramotar Parway and he also published a purcha. However, he has denied the suggestion that he is a bataidar of Dhanik Lal Mandal. Hence, contention and the submission has been made that the appellants have falsely been implicated as a political vendetta to tarnish the image of Mukhiya, Ramotar Parway. It is asserted that Dhanik Lal Mandal was earlier a leader of Communist Party and had about 14-15 bighas of land and now he has lost those lands and the organization of Communist Party lost it’s ground on the advent of Janta Dal. However, it is pertinent to mention, in this regard, that had there been intention to tarnish the image of Ramotar Parway then a case may had been filed against Ramotar Parway itself. However, it is a matter of common experience that in 9 traditional Indian society no person like to report about rape or even the allegation, which affects the chastity of the woman as the chastity of the woman is a most valuable thing not only for the person, but, an stigma for the entire family and entire family suffers if the case of rape is even reported. The allegation has been made against the victim, who is a girl about 14-16 years of age and it affects her entire life and, hence, it is not expected that just for making a false implication to tarnish the image of Ramotar Parway, a false case has been instituted by implicating his son as an accused in rape case jeopardizing the life of victim and, hence, I do not find any merit in the defence set up by the appellants. 17. Hence, taking into consideration the entire facts and circumstances, I do not find any merit in the submission made by the learned counsel for the appellants to interfere with the order of conviction and sentence and I find and hold that the prosecution has been able to prove the charges beyond reasonable doubt. 18. The order of conviction and sentence recorded by the lower Court is hereby confirmed and both the appellants are dismissed. ( Gopal Prasad, J. ) The Patna High Court The 21st day of September, 2011, N.A.F.R., S.A.