Criminal Appeal (SJ) No. 998 of 2006 With Criminal Appeal(SJ) No. 1040 of 2006 -------- Against the judgment and order of conviction and sentence dated 18.10.2006 and 19.10.2006 passed by Shri Vijay Kant Mishra, Additional Sessions Judge, Fast Track Court No. V, Sheikhpura in Sessions Case no. 351 of 2002/ Trial No. 241 of 2006. --------- Cr. Appeal (SJ) No. 998 of 2006 Sanichar Ram, son of late Lalo Ram, resident of village – Mour, Police station – Barbigha, District – Sheikhpura ………. Appellant Cr. Appeal (SJ) No. 1040 of 2006 Arjun Ram, son of late Lakhari Ram, resident of village – Mour, Police station – Barbigha, District – Sheikhpura …………… Appellant Versus The State of Bihar …………. Respondent (in both the appeals) ---------- For the Appellants : Shri Ajay Mishra, Advocate (Amicus Curiae) For the State : Shri S.N. Prasad, A P P -------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA -------- Dharnidhar Jha, J. These two appeals have been preferred by two appellants, one each in each of the two appeals who were put on trial by being jointly charged for committing rape upon P.W. 3, to set up a challenge against the judgment of conviction dated the 18th October, 2 2006 passed by the Presiding Officer of Fast Track Court No. V, Sheikhpura in Sessions Case no. 351 of 2002 / Trial No. 241 of 2006, by which the appellants were convicted of the offence under section 376/34 IPC and were directed to suffer RI for seven years each as also to pay a fine of rupees ten thousand each, else to undergo SI for three months in lieu thereof. 2. The prosecution story is contained in the written report of P.W. 3 in which she stated that the two appellants were invited to exorcising the evil soul, which had over taken her Devar named Ranjeet Mahto. The two appellants came to the house of the prosecutrix at 7.30 P.M. and performed some pooja – paath (rituals) and also carried out some Jhar-phook (exorcism) on Ranjeet Mahto. Both of them, thereafter, stated that the prosecutrix shall have to accompany them up to the cremation ground where they were likely to bury the exorcised evil soul. As such, the prosecutrix accompanied them to the cremation ground and it was 8.00 P.M. when the prosecutrix reached near a Mahua tree situated west of the village, she was asked to sit down there and both of them started taking liquor. They, thereafter, started dragging the prosecutrix by her hands as also pulling her Sari. She was firstly raped by appellant Sanichar Ram whereafter appellant Arjun Ram also committed rape upon her. She came weeping to her house and narrated the story to all her family members. 3. It appears that on the basis of the written report of P.W. 3, FIR of the case (Ext. 2) was drawn up and the investigation was 3 undertaken and at the close of the same, the two appellants were sent up for trial. In between the investigation, the prosecutrix appears forwarded by the Investigating Officer for her medical examination to the Medical Officer of Referral hospital, Barbigha and, accordingly, P.W. 8 Dr. Shyama Prasad examined her and issued Ext. 1, the medical report. It is to be noted that there was no finding recorded by the doctor in support of the allegation that the prosecutrix had been raped though she was examined at 3.18 P.M., the next day of the occurrence, i.e., on 18.7.2001. In spite of the above, the two appellants were sent up for trial and they were convicted accordingly. 4. The defence of the appellants was that they had falsely been implicated at the instance of one Dilip Ram, who used to indulge in factional politics in the village and was aggrieved by not being supported by the two appellants. 5. During the course of trial, nine witnesses were examined, out of whom P.W. 9 was a witness of formal character who brought on record the formal FIR (Ext. 2). Other witnesses included Patti Mahton who happened to be the husband of the P.W. 3 and brother of Ranjeet Mahto (P.W. 6). Both P.Ws. 1 and 6, Patti Mahto and his brother supported the prosecutrix by stating that P.W. 6 was ill and was believed to be seized by some evil soul and as such, the need of the souls being exorcised by inviting some exorcists and, accordingly, the two appellants were invited to do the tricks of exorcising the evil souls. It was stated by witnesses P.Ws 1 and 6 that the two came, performed some pooja (rituals) and thereafter asked that P.W. 3 had to 4 accompany them up to the cremation ground so as to burying the evil souls exorcised by them and, accordingly, P.W. 3 went with them and when she came weeping, she told them that she had been ravished by the two appellants in the manner as stated earlier. 6. Other witness who was examined was the other brother of P.W. 6, namely, Naveen Mahto (P.W.2), who also supported P.Ws 1 and 6 completely. P.W. 4 Fakira Ram had not supported the prosecution story and he had been declared hostile. P.W. 5 Ram Pravesh was tendered for cross-examination. P.W. 7 Raj Kumar Yadav was also not a witness very much material for the prosecution, but still stated that after four – five days of the occurrence he learnt that the victim had been raped by the appellants. Thus, his evidence was hear say but to a reply to the court’s question, which is recorded in paragraph 5, P.W. 7 stated that the two appellants used to practise exorcism and further that there was no ill will or dispute or quarrel between the families of the appellants and that of the prosecutrix. 7. It is true that P.W. 8 Dr. Shyam Prasad did not find any mark of violence, which may be indicative of the victim not being dragged away or being raped, but one has to appreciate the facts that the victim was aged 30 years and was a married lady being the wife of P.W. 1. The evidence of the doctor was too cryptic to believe many things regarding the examination of the lady. It was such an indefinite and misleading report that no court could latch on much to it to draw any sustenance to the charge either of the prosecution or the story as propounded by the defence. The doctor who had examined P.W. 3, 5 had not even cared to point out as to what was the age of the lady as per the determination medically and had not further indicated other details on account of the wear and tear of the private part of the lady. It was a general testimony which, rather, appears rendered very indifferently and with no sense of purpose either to negate the charge or to support it. This court could not appreciate the approach of the doctor P.W. 8 in examining the lady and rendering the report. 8. It is evidently clear from the evidence of one of the witnesses P.W. 7 that the appellants were not on inimical terms nor the prosecutrix or her family was bearing any ill will or grudge towards them. They were practicing Ojhas (exorcists) as was told by the witnesses. In rustic background of remote villages as remote as a place in the district of Sheikhpura where touch of modernity and temper of science and intelligence are yet to reach, one could very much imagine the persistence of the rusticity and practice of traditional beliefs due to age old superstition. The region from which the case has been reported may not be different from other remote places of Bihar where many traditional evils still continue and people are still guided by their ancient beliefs of evil souls overtaking human souls and thereby affecting the human body so as to put a person into the state of peril or illness. Superstitions are still prevailing in our villages and the folks and it was due to the superstitious beliefs of the family members of P.W. 3, the prosecutrix that Ranjit Mahto (P.W. 6) in spite of falling ill, does not appear being taken to a doctor and was, rather, put to the tricks of the so called exorcist for taking the evil 6 souls out of his body. The two gentle men, who were respected even in the village, as we know them to be respected in the age of modernity and cultural advancement, were utilizing their position of being respected and, as such, were being accompanied by the lady of the house to such alien a place as a burial or cremation ground on the pretext that exorcised evil soul was to be buried there. The evidence of witnesses namely, P.Ws. 1, 3 and 6 indicates that the two appellants along with P.W. 3 had not even reached the cremation ground situated west of the village, that they sat down under a Mahua tree asking the lady to do so. After having inebriated themselves so as to forgetting about the distinction between the good and bad deeds, were forcing the lady to be preyed upon by their lust. This is the evidence of witnesses. Even a witness who had gone hostile, like, P.W. 7 was telling the court that it was thickly in air of the village that the two appellants had committed the misdeeds of violating a respected lady of the house by utilizing their positions of respect of being exorcists of evil souls. 9. There is no reason for this court to disbelieve the evidence of P.Ws 1, 3 and 6. The lady did not have any reason, at least to come weeping to her house and to tell the family members as to how she has been humiliated after being criminally assaulted. Three persons of her family, namely, P.Ws 1, 2 and 6, which included her husband and two Dewars, came to the court to relate the story of being subjugated to the foulest of acts, which a man could be committing to a lady. Those three persons, in spite of being humiliated by the 7 accused, were forced to come to court and stand up in the witness box to narrate the woes which were suffered by the lady of their house (P.W.3) at the hands of the two appellants. The evidence of the witnesses, namely, P.Ws 1, 2, 3 and 6 have a very thick ring of truth about the story revealed by them who were trusted by the court as deposing truly about the story. The trial court had the opportunity and occasion to look to the witnesses so as to judging their demeanor and after doing that, it had placed explicit faith on their worthiness and, therefore this Court, sitting in appeal, has no reason to disturb that trust and faith of the trial court in the witnesses, namely, P.Ws 1, 2, 3 and 6. The charges stood proved by the evidence of witnesses and this court does not find any reason to interfere with the impugned judgment. 10. In the result, the conviction and sentence passed upon the two appellants is hereby upheld and the two appeals are dismissed. (Dharnidhar Jha, ) Patna High Court, The 26th July, 2011, NAFR/Anil/