CRIMINAL APPEAL No.132 OF 2005 (Against the judgment and order of sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No.4, Katihar, in Sessions Trial No. 75 of 2004, dated 13th January, 2004.) MD.GYAS -------------APPELLANT VERSUS STATE OF BIHAR --------------RESPONDENTS ------------ FOR THE APPELLANT: MR. RAJ KUMAR, ADV. FOR THE STATE: MR. ASHWANI KR. SINHA, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE C.M.PRASAD C. M. Prasad, J. This appeal is against the judgment dated 13.1.2005 by Additional Sessions Judge Cum Fast Track Court No. 4, Katihar passed in Sessions Trial No. 75 of 2004 arising out of C.A. No. 335 of 2001 whereby the appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo R.I. for ten years and a fine of Rs. 1000/- and in default of payment of fine to undergo simple imprisonment for three months. 2. The complainant Anokha Khatoon lodged her complaint before the learned C.J.M., Katihar on 17.3.2001 alleging that on 10.3.2001 at 3:30 P.M. while she had gone into her maize crop field, the details of which is mentioned in the complaint, for Bukhla vegetable and she was plucking the same, the appellant Gayas came to the field on the pretext of attending call of nature and finding the complainant alone there, caught hold of the complainant from behind - 2 - and threw her down on the ground and then committed rape on her. Due to forcible commission of rape, the complainant felt pain and she cried. Hearing her cry, her mother and brother rushed to the field. Seeing them coming towards the field, the appellant fled away leaving behind his Badhana. The mother and the brother as well as some other co-villagers who had rushed to the P.O. had seen the appellant fleeing away from there and they also found the complainant in a state of her clothes torn and dispersed and she was not in her full senses. In such a condition, she was brought to her house and after some care, she was brought to consciousness and then she said about the occurrence to them. On the date of occurrence, the father of the complainant was out of village and the villagers also assured for a solution, hence, the complainant did not go to the police station that day. On third day of the occurrence, on arrival of complainant’s father to the village and learning about the occurrence and also on the request and advice of some relatives and respectable co-villagers, the complainant’s father convened a Panchayati in the village on 13.3.2001. In the Panchayati the well-wishers and the Punches convinced the complainant and her father that the appellant will marry the complainant and thus the matter would be resolved. The complainant also alleged that the punches also took the L.T.I. of the complainant and her father on a plain paper for preparing a decision of the Panchayati and decided the matter for a payment of Rs. 5051/- by the appellant to the complainant in stead of marriage but it was not acceptable to the complainant. Due to that attitude of the Punches, the complainant was forced to file a complaint before the learned C.J.M. and this caused a delay of a week - 3 - in the filing of the complaint. 3. After filing of the complaint, the learned C.J.M. examined the complainant on solemn affirmation. Thereafter, an enquiry was conducted and in course of enquiry, five witnesses were examined and on consideration of the materials as brought in enquiry, the learned C.J.M. found a prima facie case under Section 376 of the Indian Penal Code and he committed the appellant to the Court of Sessions for trial of offence punishable under Section 376 of the Indian Penal Code. Thereafter, the appellant was put on trial and he has been accordingly convicted and sentenced as above. As many as seven witnesses were examined by the complainant. The appellant also examined nine defense witnesses. P.W. 1, Md. Mubarak is brother of the complainant, P.W. 4 Asma Khatoon and P.W.5 Md. Israfeel are her parents. P.W. 6 Anokha Khatoon is complainant herself. P.W. 2, Md. Mojim and P.W.3 Md. Sirejil are the co-villagers. P.W.7 Sujit Kumar Choudhary is a formal witness who has proved the complaint petition marked as exhibit-1. 4. D.W.1, Md. Shafeer, D.W. 2 Md. Shakoor, D.W.3 Md. Muslim, D.W.4 Md.Jamal, D.W.5 Md. Mofal and D.W.7 Md. Mansoor as well as D.W.9 Md. Jabbar are the co-villagers. D.W.6 Md. Jalal claimed to be one of the Punches. They all deposed that the victim’s father had convened a Panchayati on the allegation that the complainant had got three months’ pregnancy from the appellant and that on this allegation, the Punches ordered her for getting medical check up and on medical check up, no pregnancy was found. Hence, the Panchayati did not find the allegation proved. Thus the D.Ws. - 4 - have simply tried to say that a Panchayati was held but they have stated about the occurrence in a different way stating that the allegation was that the complainant had got three months’ pregnancy from the appellant which on medical check up, was not found true. Be that as it may, the very evidence of the defense witnesses is indicative of the circumstances that the appellant was alleged to have indulged in sexual intercourse with the complainant. 5. The appellant also examined D.W.8, doctor Ranjana Jha who did not depose about any specific case. During her evidence, a photo copy of the prescription was produced before her and on looking to the prescription, she simply deposed that it was the photo copy of her prescription relating to a patient whom she might have examined. But she did not say as to whom she had examined. She simply deposed that the patient as mentioned in the photo copy of the prescription is mentioned to have no pregnancy. Thus, the evidence of the D.W.8 is quite vague and it is not based on any original prescription written by her nor she says that she had examined the complainant of this case. She has not even stated in her evidence the name of the patient. Thus the evidence of the doctor cannot be considered as a material to show that she had examined the complainant of this case and on examination, she had found a case of no pregnancy. 6. Out of the prosecution witnesses the complainant (P.W.6) deposed that while she was plucking Bakhla vegetable in her maize crop field, the appellant Gyas came there from behind and caught hold of her, threw her on ground. He tore away her - 5 - Frock and Salwar and then committed rape on her. She further deposed that at the time of commission of rape, she cried and on her cry her mother P.W.4 as well as Uncles Md. Sirejil (P.W.3) and Md. Muslim (P.W.2) came there. She further stated that due to commission of rape, she had become unconscious but when water was sprinkled on her face, she came to her senses and then she was brought from the field to her house. She also deposed that her father (P.W.5) returned to village after a day and then a Panchayati was convened. She and her parents were present in the Panchayati. She disclosed before Punches about the occurrence. The Punches assured that her marriage will be solemnized with the appellant and for writing out a decision, L.T.I. of her father and herself was taken on a plain paper but subsequently the Punches gave another verdict by saying that a compensation of Rs. 5051/- would be given by the appellant to the complainant but it was not acceptable to her. Hence, she filed a complaint in the Court. 7 She further deposed in Paras-9 and 10 that at the time when the appellant caught hold of and committed rape on her, she cried and became unconscious due to commission of the offence. There is nothing in her evidence to discredit her testimony on any material point. 8. The P.Ws. 2 and 3 who are the co-villagers of the complainant deposed that on hearing the cry of the complainant, they along with brother and mother of the complainant rushed to the maize crop field. When they approached there, they found that the appellant, wrapping his Lungi around his waist was fleeing away from there and his Lota (Badhana) was lying there in the filed. They - 6 - also stated that the Salwar of the complainant was found torn. They further stated that the complainant was not in her full senses and that she was brought to her house, water was sprinkled on her face and coming to her senses, she disclosed that the appellant had committed rape on her. These witnesses have also stated that a Panchayati was convened and the father of the appellant agreed in Panchayati that the appellant will marry the complainant and a fine of Rs. 5051/- was also levied but the appellant refused to marry the complainant, hence, complaint was filed in Court. 9 Thus the two witnesses stated about approaching to the maize field on hearing cry of the complainant and they have also seen the appellant fleeing away from that place leaving behind his Lota. They also said that the complainant disclosed that the appellant had committed rape on her and that the matter was tried to be resolved on the assurance of marriage but later on, the appellant refused to perform it with the complainant and hence the complaint was filed. 10. The P.W.4 Asma Khatoon, mother of the complaint deposed that on the date of occurrence at about 3.00 P.M. while she was in the Angan of her house, she heard complainant’s cry from maize field and then she, along with Mojim (P.W.2)) and Mubarak (P.W.1) went there and then found that the appellant was fleeing away from there carrying his Lungi in his arm. The complainant was lying on the ground in the field and her Sameej and Salwar was badly torn. She also stated that blood was coming from her private part. The complainant was found in unconscious state. She - 7 - was brought to her house and when water was sprinkled on her face, she came to her senses and disclosed that the appellant Gyas committed rape on her. She further deposed that on that day, her husband (complainant’s father) was not in the village, hence, she was not in a position to take any decision. She also deposed that she told the appellant’s father Sameer Mian about the occurrence and he asked her not to lodge a case saying that the matter would be resolved by solemnizing marriage of the appellant with the complainant. She further deposed that on arrival of her husband (complainant’s father) a Panchayati was convened in the village and the matter was settled by way of giving assurance of marriage but the appellant did not accept it. She also deposed that a fine of Rs. 5051/- was also levied in the Panchayati but it was also not paid to them. Hence, the complaint was filed. She deposed that the complainant was not taken to any doctor for any treatment. Thus, the evidence of this witness goes to corroborate that the appellant had committed rape on the complainant. Though, it appears further from evidence of this witness that the matter was tried to be resolved in the Panchayati by way of solemnization of marriage or even by way of payment of compensation but when it did not get resolved in that way, complaint was filed in Court. 11. The P.W.1 Md. Mubarak, brother of the complainant has claimed to have rushed to the P.O. on hearing the cry of the complainant and he states to have seen the appellant fleeing away carrying his Lungi from that field and complainant was found lying in the field with her clothes torn. He also deposed that the - 8 - complainant was brought to her house and on sprinkling water on her face, she was brought to her senses and then she disclosed that the appellant had committed rape on her. He also deposed that blood was found on the clothes of the complainant. 12. P.W.5 Md. Israfeel, the father of the complainant stated in his evidence that he was out of village and when he returned to his house on 12.3.2001- his wife, son and Mojim told him that on hearing the complainant’s cry from the maize crop field, they had rushed to the field and they had seen the appellant fleeing away carrying from the field his Lungi and leaving behind his Lota and they also found the complainant lying in the field with her clothes torn and that complainant’s mother putting clothes on the complainant, brought her to house in unconscious state and that when water was sprinkled on her face, she came to her senses and disclosed that the appellant had committed rape on her. He further deposed that on being asked by the villagers, he convened a Panchayati in the village and the Punches decided for performing appellant’s marriage with the complainant and also for payment of compensation of Rs. 5051/-. He further deposed that the appellant refused to marry the complainant and compensation was tried to be paid but it was not acceptable to the complainant and hence complaint was filed. 13. On consideration of the evidence as brought by prosecution, it is found established through the evidence of complainant and other witnesses that the appellant committed rape on her and that the witness had seen him fleeing away from there. The complainant’s mother and brother have stated about finding of blood - 9 - on her clothes which was also found to have been torn during the commission of the offence. It appears from the evidence of the witnesses that the matter was tried to be resolved through a Panchayati and Punches tried to settle the matter by way of performing appellant’s marriage with the complainant and for payment of a compensation of Rs. 5051/- but when the verdict of the Punches was not complied with, by the appellant, the complaint was filed. In any way, the commission of the offence stands proved. 14. Learned counsel for the appellant submitted that the complainant was not produced before any doctor and there is no medical evidence in support of the allegation of rape. No doubt, any medical evidence is not forthcoming in support of the allegation but evidence of the complainant is sufficient to prove the charge. The complainant is fully corroborated by the evidence of the other witnesses. The medical evidence is corroborative piece of evidence. The substantial evidence is the evidence of the victim /complainant which inspires confidence and it stands fully corroborated by the evidence of other witnesses. The learned counsel for the appellant also argued that there has been a delay of one week in the filing of the complaint. But there are circumstances to justify the delay. The complainant and the witnesses have stated that the matter was tried to be resolved through Panchayati and a Panchayati was also convened but when the decision of the Punches was not obeyed, complaint was filed. Thus, the delay is reasonably explained. 15. Thus, considering the facts, circumstances and evidence, I find that prosecution has been able to prove the case - 10 - Patna High Court, the 18th Feb.2010 N.A.F.R/Ravi/ beyond the shadow of doubt. In such view of the matters, conviction as done by the learned trial court is upheld. As to the quantum of punishment, the learned counsel for the appellant submitted that the appellant was a young man of 25 years only and the sentence is excessive. The leaned A.P.P. has argued that the minimum sentence to be awarded under Section 376 is R.I. for seven years. It was further submitted that the Court can give lesser sentence by assigning special reasons for it. But I do not find any special reasons to award a sentence below the minimum as prescribed under law. However, on consideration of the entire facts and circumstances of the case, I feel that a sentence of R.I. for seven years will meet the ends of justice. Therefore, the sentence of R.I. for ten years and fine of Rs. 1000/- is reduced to a sentence of R.I. for seven years only. Thus, this appeal is dismissed with modification of the sentence as indicated above. (Chandra Mohan Prasad, J.)