Criminal Appeal (SJ) No.137 of 1998 Against the judgment and order of conviction dated 28. 02. 1998 and order of sentence dated 02. 03. 1998, passed by Sri S. M. Haque, Ist Additional Sessions Judge, Madhepura, in Sessions Case No. 135 of 1991. 1. Jagarnath Yadav, son of Mitai Yadav. 2. Ramji Yadav, son of Prem Lal Yadav. 3. Narayan Yadav, son of Jagarnath Yadav. 4. Jai Prakash Yadav, son of Anandi Yadav. All resident of Village-Parwa Tola, Santnagar, P.S.Murliganj, District- Madhepura. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Pramod Kumar Singh, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 and 2 have been convicted under Section 376 I.P.C. and sentenced to undergo rigorous imprisonment for seven years. Further appellant no. 1 has been convicted under Section 365 I.P.C. and sentenced to undergo rigorous imprisonment for five years and further convicted under Section 366 I.P.C. and sentenced to undergo rigorous imprisonment for five years and further convicted under Section 363 I.P.C. and sentenced to undergo rigorous imprisonment 2 for three years and further convicted under Section 452 I.P.C. and sentenced to undergo rigorous imprisonment for five years. However, all the sentenced shall run concurrently. However, appellant no. 3 and 4 have been convicted under Sections 365, 363, 366 and 452 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. 3. Informant is the father of victim lodge the Fardbeyan that Jagarnath Yadav, Narain Yadav and Jai Prakash Yadav came into the courtyard of the informant and accused Jagarnath Yadav catch hold the hand of Geeta Devi, daughter of the informant and kidnapped her even on protested by his wife. The accused persons after kidnapping took her to their house and on the second day accused Jagarnath Yadav took her to some unknown place to marry or illicit connection. The Rajendra Yadav (P.W.2), Janar Devi (P.W.3), Laxmi Yadav (not examined), Kanik Lal Yadav (P.W.4) and Sadanand Yadav (not examined) has seen the occurrence. The daughter could not be found and retaining till 28. 12. 1989 so he has filed the case on 28. 12. 1989. 4. On the Fardbeyan, F.I.R. was lodged. 3 Investigation proceeded. During investigation, the victim was recovered from the Basa of Ramjee Yadav on 06. 01. 1990. Ramjee Yadav was arrested. The statement of the victim was recorded under Section 164 Cr.P.C. on 09. 01. 1990 before the Magistrate. Subsequently after investigation, charge sheet submitted, cognizance taken and case committed to the Court of Sessions. Charge was framed before Sessions Judge. During trial, nine witnesses were examined. Two witnesses examined on behalf of defence and the document brought in evidence which are Fardbeyan, injury report, formal F.I.R., statement under Section 164 Cr.P.C. which are Ext. 1, 2, 3 and 4 respectively and Ext. A and A/1 and A/2 the signatures. 5. P.W. 1 informant. P.W. 2 Rajendra Yadav declared hostile. P.W. 3 Janar Devi, wife of informant supported the prosecution case and deposed that her daughter on recovery disclosed about rape by Jagarnath and Ramjee. P.W. 4 and 5 are tendered. P.W. 6 is the victim supported the prosecution case that she was kidnapped and kept in house of Jagarnath then taken to Dhurgown and there raped by Jagarnath then taken to 4 Bahigaon (Baranga) where she was raped by Jagarnath and Ramjee and then she recovered from then house of Ramjee and then her statement recorded under Section 164 Cr.P.C. by the Judicial Magistrate as Ext. 4 and P.W. 6 denied the marriage with Jagarnath and asserted victim to have been married at Village- Chenpanguria and had gone to her Sasural there. However, the doctor did not find any sign of rape and assessed the age of the victim about 16-17 years. 6. The defence of the accused persons that victim was a consenting party and there was love affairs between Jagarnath and the victim and Jagarnath used to visit the house of the informant and there was relationship of Guru and Chela i.e. Jagarnath and the informant and further the Jagarnath married the victim. 7. The trial court taking into consideration the evidence of prosecution that she was kidnapped taken to village Dhurgaon. There she was raped by Jagarnath. She was kept in captivity and taken to Bahigaon (Baranga). There she was again raped by Ramjee and Jagarnath. The police recovered her from the basa of Ramjee at Bahigaon and also arrested Ramjee from 5 there. P.W. 1 and 2 have supported the prosecution case convicted the appellants. The trial court on these evidence convicted the appellants. 8. Learned counsel for the appellants however, contends that there is delay in lodging the F.I.R. The non-examination of I.O. has cause prejudice to the accused persons that they could not take the evidence about the relationship between Jagarnath and victim. The mother of the victim has not been examined. The medical evidence did not find any sign of rape so no corroboration like medical evidence. The prosecution case is highly improbable that father will accompanying his son in sexual offence and hence prosecution case not reliable and the prosecution has not able to prove the prosecution case. 9. P.W. 6 supported the prosecution case that while she was cooking the food on the date of occurrence then Jagarnath, Jai Prakash, Narayan Yadav came catch hold of her dragged to their house even on protest by her father and mother. In the morning they took her to Dhurgaon. She was raped at Ghurgaon by Jagarnath. Then she was taken to Bahigaon (Baranga) 6 there she was kept at Kamath of Ramjee. There she was subjected to rape by Ramjee and Jagarnath for three-four days. Thereafter on police raid the Kamath of Ramjee recovered her from there and arrested Ramjee. Her statement was recorded by the Magistrate in court. The P.W. 9 is the Magistrate who has proved the statement of the victim, P.W.6 recorded by the Magistrate and has proved the statement marked as Ext. 4. P.W. 1 is the father has also supported the prosecution case about kidnapping of victim for his house. P.W. 3 is the mother of the victim and she has supported the prosecution case about kidnapping by the accused persons. P.W. 2 has been declared hostile. P.W. 4 and 5 tendered. P.W. 7, doctor has found the victim 15 to 16 years old. However, opined that no definite opinion of rape can be given as the girl was married. 10. However, the learned counsel for the appellants submits that there is delay in lodging the F.I.R. However, it is a matter of common experience that in case of kidnapping and the rape of a girl, the people in India thinks whether case to be lodged or not as it touches the prestige. People are reluctant to lodge the 7 case of sexual offence at first instance in touches the prestige and seldom like to lodge a case immediately and here also P.W. 1 in his evidence stated that people told him that this is a matter of prestige, so he did not file the case immediately, he waited for sometime to return the girl, but since she did not return then he was compelled to lodge the case. Hence there is explanation of delay in lodging the F.I.R. 11. It has been contended that I.O. has not been examined has caused prejudice as the I.O. is the person can depose regarding what evidence he received during investigation. However statement recorded by I.O. of the witness is not admissible in evidence till the witness come and depose. Hence no merit in submission that non-examination of I.O. has caused prejudice to accused. Nothing has been shown what prejudice has been caused for non-examination of I.O. 12. It has been submitted that medical evidence not supported the prosecution case. However, it has come in evidence that victim was married and twice visited her Sasural and in case of married woman sign of rape seldom possible when examination was done on 09. 8 01. 1990 whereas the allegation of kidnapping on 22.12.1989 and rape was alleged for 3-4 days in Bahigaon (Baranga). Moreover the doctor has specifically stated in deposition that no definite opinion of rape can be found given as girl was married. It has further been stated that Sadanand Yadav and Laxmi Yadav have not been examined. Five persons have been named in the F.I.R. Out of five three have been examined. P.W. 2, though has supported the prosecution case declared hostile. However, the evidence of a witness recorded and his evidence is found to be reliable and worthy of confidence then his evidence cannot be rejected for the non-examination of other witnesses. 13. However, it is a matter of common experience that in our traditional society the victim or any person did not want to report the matter of rape as it touches social stigma and possibility of losing love and respect of their near and dear even the family members and the husband in society, then it can seldom that victim make false allegation and hence to ask any corroboration is adding insult injury. 14. The appellants have taken defence that there 9 was consent. However, D.W. 1 and 2 stated that alias name Geeta Devi is Domni Devi. The Domni Devi had illicit relationship with Jagarnath Yadav. D.W. 2 has stated that the victim gave her thumb impression on affidavit. However, thumb impression cannot be proved by D.W.2 who is not an expert and in his cross- examination has stated that he has no knowledge about content on the affidavit and hence content in the affidavit has not been proved. Hence defence has taken plea of consent that there was love affairs and there was marriage, but except suggestion. There is neither any evidence about love affairs nor prove of marriage nor any document to suggest the prior relation between the victim and appellant Jagarnath. However, mere suggestion is not the proof and Ext. A1 and A/1 is not a prove of marriage. However, Jagarnath is aged 50 years as he himself claim in his statement under Section 313 Cr.P.C. and the victim is only stated to be 15-16 years old and merely because Jagarnath was in visiting term and had a relation of Guru-Chela is no ground to say that there was consent to kidnap or rape. However it has been suggested that victim was taken from one place to 10 another, but he did not made her protest. However, evidence of P.W. 3 specifically stated that she made hulla and she protested but none come to rescue her. However, mere because a victim of abduction or kidnapping did not resist does not give rise to a presumption that she was a consenting party. The recognition due to volitional faculty shrouded in fear be deemed to be a consent. 15. Hence taking into consideration the entire facts and circumstances of the case, I find and hold that prosecution has been able to prove the charges and there is no merit to interfere with the order of conviction recorded by the lower court. 16. Learned counsel for the appellants however contends that this occurrence is of the year 1989 and twenty two years has already been elapsed and no useful purpose serve is sending the appellant to jail and appellants have suffer a lot during investigation and trial and even after conviction the appellant nos. 1 and 2 have remained in jail from 10. 04. 1990 to 01. 09. 1992 and again the period after conviction from 02. 03. 1998 to 01. 02. 1999 when the bail was granted by Hon’ble High 11 Court and hence they have remained in jail for more than three years. Further appellant nos. 3 and 4 have been sentenced to undergo imprisonment for six month and remained in jail for four months i.e. two months prior to conviction and two months after conviction. Hence end of justice shall meet by sentencing the appellants for the period undergone. Hence with this modification of sentence, this appeal is dismissed. Patna High Court, The 25th August, 2011. NAFR/m.p. (Gopal Prasad, J.)