1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - - Criminal Appeal (SJ) No.811 of 2006 - - - - Against the judgment of conviction and order of sentence dated 20.9.2006 and 23.9.2006, respectively, passed by the Sessions Judge, Madhepura, in Sessions Case No. 170 of 2005. - - - - Md.Moin son of late Lal Mohammad, resident of Village Mathahi, P.S. and District Madhepura. .... .... Appellant Versus The State Of Bihar .... .... Respondent Appearance : For the Appellant : Shri Ajay Mishra, Amicus Curiae For the respondent : Shri S.N.Prasad, A.P.P. P R E S E N T THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- The solitary appellant Md. Moin, was charged under Section 376 of the Indian Penal Code and was put on trial in Sessions Trial No. 170 of 2005 and by judgment dated 20.9.2006 he was held guilty of committing the said offence by the learned Sessions Judge, Madhepura. After hearing the appellant on sentence on 23.9.2006, the learned Judge directed the appellant to suffer rigorous imprisonment for seven years. The appellant appeals to this Court against the above judgment of conviction and order of sentence. 2. The prosecutrix( P.W. 6) was coming from a village market after selling vegetables. Dulari Devi( P.w. 5 ) and Durga Devi( P.W.3 were also coming from the same Hatia after selling wet lime. When they reached at a particular place, they found two persons quarreling with a rickshaw puller who asked the three ladies to stop and forced them to sit on the rickshaw. After some distance, P.W.3, Durga Devi and P.W. 5 Dulari Devi were allowed to go, whereas P.W. 6 Tara Devi was taken into a field and was raped. The lady raised alarm and the village people 2 were attracted who apprehended the present appellant Md. Moin. The villagers took the lady and the appellant to a particular village where the police arrived and fardbeyan Ext. 2 of P.W. 6 was recorded on the basis of which the F.I.R. of the case Ext.3 was drawn up and the investigation was entrusted to P.W. 7 S.I. Binod Kumar Jha. 3. P.W. 7 has stated in his evidence that he inspected the place of occurrence and found that the newly grown up wheat plants were trampled in the place of occurrence field which was located in between the railways and roadways running from Saharsa to Madhepura. P.W.7 found the present appellant in the custody of persons and, accordingly, he formally arrested him. Besides, he seized the petticoat belonging to P.w. 6 by preparing seizure memo Ext.4 which was signed by P.W. 4 Bhedi Sah and another. He sent the lady for medical examination and after finding material sufficient sent the solitary appellant up for trial, which resulted into the impugned judgment. 4. The defence of the appellant was that of false implication by the lady at the instance of local Mukhiya, named Rajendra Mandal. 5. For proving the charge, the prosecution examined as many as eight witnesses whereas the defence also examined one witness in support of its suggestion which was given to P.W. 6. 6. Out of the eight witnesses, P.W. 1 Rabindra Yadav and P.W. 2 Surendra Prasad Yadav were declared hostile. P.W. 3 Durga Devi and P.W. 5 Dulari Devi both supported P.W. 6 the prosecutrix on the part of the prosecution story regarding the prosecutrix and the two witnesses coming back to their respective villages after having sold vegetable or wet lime. They have stated that when they were coming with the prosecutix the two criminals were found assaulting the rickhaw wala. When they 3 went ahead of the criminals and the rickshawwala they were also asked by the criminals to stop upon which they stopped and the criminals demanded lime from P.Ws. 3 and 5 which was given to them. The three ladies again started on their way head, when they were stopped and were asked to be seated in the rickshaw. The rickshaw was being pulled by a rickshaw wala and the criminals were following the same and were also striking it. When they had reached west of Village Mathahi, the rickshaw was stopped by the criminals and the witnesses, i.e., P.Ws. 3 and 5, were relieved of their sale proceeds and were asked to runaway whereas the informant P.W. 6 was dragged into the wheat field for being raped. Both P.Ws. 3 and 5 have stated that they had run away seeing the occurrence being committed and went inside the house of a person and narrated about the incident when people came and arrested the present appellant indulging in the act. The other criminal had run away from there. P.Ws. 3 and 4 identified the present appellant as the person who had taken away P.W. 6 for committing rape upon her. 7. P.W. 6 the prosecutrix has also corroborated the statements of P.Ws. 3 and 4 up to the state being brought into the field and identified the present appellant as the person who had sexually assaulted her. She has further corroborated that the two ladies, i.e., P.Ws. 3 and 5 went to inform the persons of the neighbourhood who came and arrested the appellant and took the victim and the appellant to village Mathahi when police came to record her statement and had carried out other parts of investigation including the formal arrest of the appellant. 8. It was contended by Shri Ajay Mishra, learned Amicus Curiae that the case suffers from inherent probbility inasmuch as it dos not appear reasonable as to why the appellant could commit such a high handed act 4 with an unknown lady who was many years senior to him in age and was also mother of four children. It was further contended that no sign of rape or any external or internal injury was found on the person of the prosecutrix and no one had come to support that the appellant was caught by him or anyone else of the vicinity. It was contended that the case suffers from inherent infirmities. 9. It was contended by Shri S.N.Prasad, learned A.P.P for the State that the appellant was caught at the spot and that was fully corroborated by the evidence of P.Ws. 3,5, 6. The Investigating Officer, P.W.7, also stated that he formally arrested the appellant when he had arrived after having been entrusted with the investigation of the case. The prosecutrix does not appear to have any grudge against the appellant to testify falsely for implicating the appellant, specially when she was mother of four children and was quite unknown to him. In order to implicating any innocent person falsely in such a serious charge, the defence must show some compelling reasons existing in the mind of the prosecutrix but no such reason has been established or brought on record. It was, as such, contended that the judgment of conviction and order of sentence were properly recorded. 10. As regards non-finding of any external or internal injury, there could be many reasons one of which has been identified by the learned trial Judge when he was recording that the lady was quite grown up, married and was mother of four children. The field had been shown with wheat. The soil of such a field is always quite smooth and whenever irregular soil had been there, the edge thereof would have been made ineffective due to the wheat plants, which must have acted as a smooth pad. Besides, what appears is that the occurrence had taken place in the 5 early evening of 30.12.2004 and the lady was being examined on 4.1.2005 sometimes in the day. Thus, there were three days intervening in between the incident and the medical examination of the lady and the bruises and abrasions which may be supposed to be caused on account of trampling could have vanished after seventy two hours. Moreover, the Doctor might have been a bit indifferent after finding that the lady was produced before her for her medical examination after so many days of the incident and she could not have been as alert as one could expect her to be and, as such, could not have been very careful in looking to all nook and corners of the person of the lady so as to finding any scratch which could have been indicative of the fact that the lady was dragged into a field. The learned trial Judge has already stated that on account of bearing four children and being married so many years before and the lady being aged about forty five years, she could not be carrying external or internal injury of being sexually assaulted. But, in absence of any clear evidence or even suggested motive for the lady for falsely implicating the appellant, this could be simply too remote to visualize that she could be coming out with a false story. 11. It is true that the defence was there that the Mukhiya wanted the appellant to indulge in many nefarious acts which the appellant was declining and, as such, by setting up the lady, a false case was instituted. For compelling the court to believe the defence it was necessary for me to look to the previous character of the lady at least of her action of doing the same thing by lodging false case so as to implicating an innocent person or at least it could have been shown by evidence that she was a bad character or of easy virtue who could have indulged in filing cases of serious nature for implicating innocent persons. There being no previous 6 history of enmity or ill-will or grudge in between the prosecutrix and the appellant and the appellant belonging to a community different from that of the lady, the Court could not find any compelling reason for the lady to implicate an innocent person or to substitute the real culprit. Nothing appears on record to justify these conjectures. On the contrary, the evidence of the witnesses get supported on most of its parts by two independent lady witnesses, P.Ws. 3 and 5, thus, leaving no room to doubt the veracity of the prosecution case. 12. It is true that no one had come forward to state that he was one of the persons who had arrested the appellant. Even PWs. 1 and 2 Ravindra Yadav and Surendra Prasad Yadav did not do it. But, the Investigating Officer has deposed to the effect that after he had arrived at Village Mathahi, he found the villagers assembled there along with the lady. The appellant was also present. He formally arrested the appellant. Even if a person is arrested by general public on account of being found indulging in the commission of cognizable non-bailable offence, he is supposed to be handed over to the Officer-in-charge of the police Station. If some police Officer arrives at such scene of occurrence or place of arrest then it is supposed that he should arrest such person as appears from the provision contained in Section 41 Cr. P.C. there is no reason for this Court to discard the record made by P.W.7 the Investigating Officer of the case about the formal arrest of the appellant who was already in custody of the villagers. None of the villagers as may appear from the evidence of P.W. 7 S.I. Binod Kumar Jha was coming forward to say that the appellant was not arrested. Nobody had come forward even during the defence evidence to testify that the story of arrest by the villagers was completely a figment of imagination and not true. These are some of the 7 circumstances which compel the Court to hold that the appellant was indeed arrested by the villagers at the scene of occurrence. 13. I do not want to multiply my observations which have been appearing regularly as regards the veracity of the prosecution case on such evidence. I have already indicated that there was no compelling reason shown to the Court as to why the lady P.W. 6 would testify falsely during the trial so as to supporting a false charge which was in respect of her. 14. After having gone through the evidence and after considering the arguments advanced before me, I hold that the appellant was rightly convicted and adequately punished. 15. In the result, I do not find any merit in this appeal and the same is hereby dismissed. 16. I must appreciate the assistance rendered by Shri Ajay Mishra, learned Amicus Curiae without which it could not have been possible for this Court to dispose of the appeal. In the opinion of the Court, Shri Mishra deserves a fee for argument to be paid by the Patna High Court Legal Services Committee. For that purpose, let a copy of first and last pages of the present judgment be made over to Shri Mishra. ( Dharnidhar Jha, J.) Patna High Court The 14th July, 2001 Kanth/N.A.F.R.