CRIMINAL APPEAL No.738 OF 2007 (Against the judgment of conviction and order of sentence dated 30.3.2007/31.3.2007 passed in Sessions Trial No. 268/04/220/06 by the Additional District and Sessions Judge, Fast Track Court No.V, Aurangabad). JAWAHAR NONIA------------------------------------------------(Appellant) Versus THE STATE OF BIHAR-----------------------------------------(Respondents) P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD For the appellant: Mr. Ajay Mishra (Amicus Curiae) For the State: Mr. S. N. Prasad, A.P.P. -------------- C. M. Prasad, J. This appeal is directed against the judgment and order of sentence dated 30.3.2007/31.3.2007 passed by the Additional Sessions Judge-cum-Fast Track Court No.5, Aurangabad in Sessions Trial No. 268 of 2004/220 of 2006 whereby the appellant has been convicted under Section 376/511 of the India Penal Code and sentenced to undergo R.I. for ten years with a fine of Rs. 5000/- and in default of payment of fine to undergo R.I. for two and half years. The F.I.R. of the case was registered at the Baroon P.S. on the basis of the fard-beyan of Umesh Sao, the informant who alleged that on 14.5.2004 at about 4:00 P.M. his daughter Guria Kumari aged about 12 years and niece Punam Kumari aged about 11 years both had gone to Brahmsthan at the bank of Punpun river situated west of their village for the purpose of cutting Datuwan. When they did not come back after the falling of darkness, he 2 along with his family members went out in search of them and in course of that, when they were near the old brick kiln, they shouted and called the two girls whereafter they heard cry of those two girls. Hearing the cry, they rushed to the side where they found the two girls who were terrified and crying. They disclosed that a man was there who had fled away through the bushes in the west direction. They also disclosed that the person had taken them in a ditch near the old brick kiln and had put off their clothes, making them naked and then he was doing evil deeds upon them. They also disclosed that the man had kissed both of them and then lying them on ground had placed his body over their body and had also dragged them on the ground. It was also disclosed by the girls that the person had threatened them to kill if they raised any cry. They also disclosed that due to kissing tooth marks had appeared on the cheek of one of the girls and abrasion marks had occurred on the back of the other one. Learning it from the two girls, the informant along with others set out in the western direction for searching of that person and after some search, the person was apprehended at Dindayal bigha and after apprehension he disclosed his name as Jawahar Nonia, the appellant. The apprehended person, the appellant was produced before the two girls who identified and stated that he was the man who had committed evil deeds upon them. After lodging of the F.I.R., investigation commenced and on completion of investigation, the appellant was put on trial and he has been accordingly convicted and sentenced as above. 3 As many as seven witnesses were examined by prosecution. P.W.6 Guria Kumari and P.W.7 Punam Kumari were the two victim girls. P.W 5 Umesh Sao was the informant and P.W.4 Naresh Sah was the brother of the informant. P.W.1 Raju Kumar Gupta, P.W.2 Sujit Kumar Gupta and P.W.3 Ram Lal Sao were the co-villagers who had set out with the P.Ws. 4 and 5 for searching out the victim girls and they are also stated to be involved in the search and apprehension of the appellant after the occurrence. The informant P.W.5 corroborated his statement in his fard-beyan along with deposition wherein he stated that when his daughter Guria Kumari and niece Punam Kumari who had gone to for bringing Datuwan did not come back till falling of darkness, he along with others had set out for searching them and near Brahmsthan when they called the two girls, they responded by their voice whereupon they rushed towards the brick kiln and reaching there they found that the two girls were crying there and on being asked they disclosed that a man had fled towards the bush in the western direction after committing evil deeds on them. Learning this, some persons rushed towards that direction. The informant remained with the two girls who further disclosed to him that the escaped person was trying to commit evil deeds upon them and that he had kissed the victim girls Punam Kumari and Guria Kumari and had dragged Punam Kumari on ground by pressing his body against her body due to which she had got scratches on her back. The informant further deposed that after 4 some search, the criminal was apprehended who disclosed his name as Jawahar Nonia (appellant). The informant also deposed that the apprehended person (appellant) was produced before the two girls who immediately identified him and said that he was the person who was trying to commit evil acts upon them. He also deposed that he gave his fard-beyan before the police. There is nothing in the cross-examination to discredit his testimony on any point. The P.W.4 Naresh Sah had accompanied the informant along with others in course of search and had found the victim girls and was involved in the search and apprehension of the appellant. As deposed on similar lines to the evidence of the informant, he has corroborated the informant on all materials particulars of the case. His evidence is most natural, trustworthy and reliable. He is father of Punam Kumari, one of the two victims. The P.Ws.1,2 and 3 who are the co-villagers have also deposed on similar lines as that of the informant and his brother (P.w.4) who were father of the two victims girls. These witnesses are the co-villagers who had set out with the P.Ws. 4 and 5 for searching the two girls when they did not come back after falling of darkness. They have given their categorical evidence that hearing the cry of the two girls they had rushed towards the old kiln where they had found the two girls crying and they had learnt from them about the criminal who was trying to commit evil acts upon them and that on learning from the two girls about the 5 escaping of the criminal, they had gone further for searching. Ultimately he was searched and he had disclosed his name Jawahar Nonia, the appellant and that on being produced before the two victims girls they had identified the appellant as the culprit who had tried to commit evil acts on them. The evidence of the P.Ws.6 and 7, the two victim girls is very important for the decision of the case. The P.W.6 Guria Kumari deposed that on 14.5.2004 at about 4 P.M. she, along with her cousin Punam Kumari had gone out towards Brahmsthan for cutting and bringing Datuwan. She further deposed that after cutting the datum when they were preparing to come back, one unknown person came there and he asked them to cut some more Datuwan for him and kept them engaged in it and in the mean time falling of darkness begun and at that time when they tried to return to their houses the person stopped them threatening that if they would go away he would kill them. As a result of the threats, they stopped there for a while and thereafter, when they again wanted to move towards their houses, the person asked them to go towards the old kiln but they disagreed to go in that side the person forcibly took them in that direction and taking them under a Bair tree put off their clothes and started doing evil acts on them. The darkness had fallen around at that time but after a little while, her father and uncle called them and that hearing their shouts, the criminal fled away towards west. She has also deposed that the criminal had asked them not to cry else he would chop off their heads with a Hasua but hearing the shouts of her father and uncle 6 they had raised their cry and that hearing their cry, the father and uncle had come to that place. She has also deposed that her father had brought her and her cousin to her house and that other persons had set out for search the culprit and that after some search, the culprit was apprehended in the village and thereafter, he had been produced before her and her cousin and they had identified him as the culprit (appellant) who had tried to commit evil acts upon them. In para-13 of her cross-examination, she has stated that tooth marks had appeared on her cheek. She also stated that she had put off her clothes on the dictates of the culprit (appellant). The P.W.7 Punam Kumari is the victim girl who has stated about the occurrence on similar lines as that of the P.W.6, her cousin. She has stated that hearing her cry her father and uncle had gone there and they rescued her and that on their arrival, the culprit (appellant) fled away but after some search, he was apprehended and produced before them and that she and her cousin had identified the person (appellant) who had committed evil acts on them. At para -5 of her cross-examination, she has stated that when she and her cousin had protested, the appellant in taking them on a different route he had threatened that he would chop off their heads if they continued their protests. At para-8, she stated that on hearing the shouts of their father and uncle, the criminal (appellant) had fled away from there but he was captured and produced before her and her cousin who had identified him as the criminal who committed evil acts on them. She also deposed at para-10 that the culprit (appellant) had dragged her on the ground 7 as a result of which, she had got scratches over her back and thus this witness fully corroborates the prosecution case on all the materials point. During hearing, the learned Amicus Curiae submitted that the appellant has not committed any offence of rape and that P.W.7 at para-1 simply stated that the appellant had tried to commit evil deeds on her. The learned A.P.P. replied that this is the case of the prosecution itself that rape was not committed but the appellant had tried to commit rape on the two girls. The learned A.P.P. referred to the various facts indicating that the appellant had put off the clothes of the two girls making them naked and had caused tooth marks on the cheek of one of the two victims. During kissing he had also pressed his body lying over the other victim and dragged her on the ground causing scratches over her back. The learned A.P.P. also submitted that as luck would have it was due to the arrival of the fathers of the two victim girls that they set out and called them and hearing their shouts, the appellant fled away and that had the fathers of the two girls not arrived at the place at that time there was nothing in the way of the appellant to stop him from completing the act of raping upon the two girls. The learned A.P.P. submitted that the appellant had done all what could have been done for the commission of rape on the two girls and it was only the arrival of the fathers of the two victims and the co-villagers at the opportune time which became intervening circumstance due to which the appellant could not be successful in raping the two victim girls. Considering these facts 8 and circumstances as pointed out by the learned A.P.P., I find that the appellant had done all what he could do for raping the two girls and that it was only a chance that the fathers of the two girls had come there along with some co-villagers and the two girls were saved from commission of the offence of rape at the hands of the appellant. The learned Amicus Curiae for the appellant submitted that P.W.6 has stated that some scratches had occurred on her back but any doctor has not been examined to support it. No doubt, any doctor has not been examined but the evidence of the witnesses is sufficient to prove the factum of the scratches in absence of any medical evidence. Learned Amicus Curiae also submitted that the P.w.7 at para-7 has stated that she had voluntarily put off her clothes on being asked by the appellant. The learned A.P.P. replied that the two victim girls have already stated that the appellant had threatened them to chop off their heads if they continued protesting the appellant’s acts in taking away on a different route. Considering this evidence of the threats as extended by the appellant it is clear that the two girls had put off their clothes due to being terrified of the threats given by the appellant. Thus hearing and considering the facts, circumstances and the evidence on record, I feel that prosecution has been able to prove its case beyond the shadows of reasonable doubt. The learned trial court rightly convicted the appellant and the conviction is fit to be upheld and accordingly the same is confirmed. As to the quantum of sentence, learned Amicus Curiae 9 Patna High Court, the 15th Feb.,2011, N.A.F.R./Ravi/- submitted that the appellant was apprehended in the very night of occurrence i.e. 14.5.2004 and since then he is in custody. It was also submitted that the appellant remains incarcerated for a period of six years and nine months. The learned Amicus Curiae further submitted that there is no previous conviction against the appellant. Thus considering the facts and circumstances of the case, I feel that a sentence of rigorous imprisonment for a period of seven years only will meet the ends of justice. Therefore, the appellant is sentenced to rigorous imprisonment for seven years. Thus, the appeal is dismissed with modification in the sentence as indicated above. The learned advocate, Ajay Mishra has argued the case as amicus curiae, his fees, as admissible, shall be paid by the Patna High Court Legal Services Committee. (Chandra Mohan Prasad, J.)