1 Criminal Appeal (SJ) No.461 OF 2005 - - - - Against the judgment of conviction and order of sentence dated 30.7.2005 and 2.8.2005, respectively, passed by Ist Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 376 of 2005/33 of 2005. - - - - KAILASH MANDAL @ LULHA, son of Naurangi Mandal of Village Kundi Jaigaon, P.s. Jagdishpur, District Bhagalpur … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant Shri Pankaj Kumar Singh, A.C. For the State: Shri Ajay Mishra, A.P.P. - - - - P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - Dharnidhar Jha,J.- The solitary appellant Kailash Mandal alias Lullha was put on trial by the Ist Additional Sessions Judge, Bhagalpur, in Sessions Trial No. 376 of 2005/33 of 2005 by framing charge under Section 376 of the Indian Penal Code. The appellant was found guilty of committing the offence by the judgment dated 30.7.2005 and after hearing the appellant on sentence on 2.8.2005 he was directed to suffer rigorous imprisonment for ten years. The appellant questions the propriety of order of conviction as also the adequacy of the sentence passed against him. 2. The offence appears committed upon a deaf and dumb lady Bongi Devi, P.W.1, who was the wife of P.W. 2 Ishwar Mandal. This has also come in the 2 evidence of P.W. 3, her mother-in-law, Sudama Devi that she was the mother of three children. 3. It is stated in the F.I.R. of P.W. 2, Ishwar Mandal recorded on 30.11.2004 at 10 A.M. at village Kundi Jaigaon that while the informant was away from his house, the appellant came there where the victim was all alone and took her to his house on pretext of doing some household works. As soon as the victim, P.W. 1, had entered inside the house of the appellant she was forcibly put down on the ground in a room and after removing her wearing apparels she was sexually assaulted. When the informant came back to his house, the lady narrated the incident to him by signs as to how the appellant had raped her. 4. The occurrence appears committed on 29.11.2004 and the report in that behalf was made by giving fardbeyan on 30.11.2004 to S.I. Prakash Paswan, P.W.7 who has stated in his evidence that he registered the case by drawing up the F.I.R.(Ext.2) and took up the investigation himself. He recorded the statement of the victim who made statement through signs as regards the commission of the offence upon her and the manner in which she was subjugated by putting down on the ground and other details of the offence. He inspected the place of occurrence, recorded the 3 statements of other witnesses and, thereafter, sent her for medical examination and finding material sufficient against the appellant sent him up for his trial. 5. The defence of the appellant which was submitted before this Court was that the appellant had a brother Nawal Mandal and it has been admitted by both P.Ws. 2 and 3, i.e., the informant and his mother that there was some dispute between the informant and said Nawal Mandal and further that the informant had filed a criminal case also against the said brother of the appellant and, as such, it was a false case which was filed by the informant for putting criminal pressure upon his enemy. 6. In support of the charge, the prosecution examined seven witnesses out of whom P.W. 5 Preetam Mandal and P.W. 6 Ajay Mandal on account of having not supported the allegation were declared hostile by the prosecution. P.W. 4 Dr. Abha Sinha had examined Bongi Devi P.W. 1 and had issued the report(Ext.1). As per the evidence of P.W. 4, the victim was aged 18 years and there was no specific signs externally or internally present on her person indicating as if she had been raped but it was opined by P.W. 4 that it 4 could be very difficult to say whether rape had not been committed upon the lady. 7. So far the prosecution case is concerned, P.W.1 Bongi Devi deposed through signs by pointing out to the court as to how her neck was pressed, how her arms were twisted and how she was put down on the ground and by removal of her clothes the appellant committed rape upon her. P.Ws. 2 and 3 who are husband and mother-in-law, respectively, of P.W. 1 have stated that both of them were working in their field and in their absence the appellant came and took the victim to his house on some pretext, finally to ravish her. They have specifically stated as was stated by the lady that by twisting her arms, pressing her neck and putting her down on the ground the appellant committed rape upon her by removing her clothes. It was stated that P.Ws. 2 and 3, i.e., son and mother, were working in the chilli field and they came after hearing the cries of the lady and the lady pointed out to them the whole incident by signs. P.W.2 has stated that he took the lady to the Police Station and also produced her petticoat and sari but her clothes were not seized. When one considers the evidence of P.W.7 in paragraph 21 one could find that the Investigating Officer has stated that in fact the lady had appeared before 5 him after taking her bath and it was useless to seize the wearing apparels as they were not bearing any stains of committing rape upon her. 8. It was contended by the learned Amicus Curiae that the occurrence had taken place on 29.11.2004 but there is no explanation as to why the report was belatedly made and it could be made, lastly, on 30.11.2004. 9. The defence contention was that the land dispute is admitted by P.Ws. 2 and 3 and it was further admitted that the informant had lodged a Complaint case also against the full brother of the present appellant whose name was Nawal Mandal and, probably, in order to put criminal pressure upon him the couple had conspired to file a false case. It was contended that it has been admitted by P.W. 1 in her evidence that the appellant was the cousin of the informant which fact has also been admitted by the informant and it simply appears curious and absurd as to why the appellant who was handicapped by loss of one arm could go to commit such act and that too in the manner as alleged. 10. The learned Additional Public Prosecutor has placed reliance upon a decision of the Apex Court in State of M.P. Vs. Dayal Sahu reported in 2006(1)P.L.J.R.(SC)69 and has submitted that once 6 the court has accepted the evidence of the victim and found her trustworthy on account of her fairness, there was no reason to discard her evidence in a case of rape. It was contended that the victim was a deaf and dumb lady and she did not have any particular reason to falsely implicate the appellant who happens to be the cousin of the informant and her evidence holistically appears substantiating the charge. 11. The evidence of the victim P.W. 1 Bongi Devi appears under Section 119 of the Evidence Act which permits taking of evidence of such a person. If the person is capable of writing he is competent to give his evidence in writing the whole story of the incident or if he is not so capable of, in that case he could simply by signs and visible representation point out to the trial Judge as to how the offence had been committed upon her. The evidence of such a person given as evidence under Section 119 of the Evidence Act has the value of oral testimony of witness and, as such, the learned trial Judge while sticking up to the above provision of law has pointed out in his judgment that he was finding the victim fully reliable as she was relating answers to the questions put to her to the court from signs as regards different stages of the occurrence and the 7 manner thereof. The learned trial Judge has noted that the victim was pointing out to him as to how the appellant came while she was all alone in her house and took her to his house and thereafter pressed her neck, twisted her arms, gagged her, and by putting her down on the ground, committed rape upon her. 12. If the learned trial Judge had the occasion of observation the witness and if on such observance the learned trial Judge has placed explicit faith upon such a witness, this Court is not left with any further option to probe the competence of the witness. This Court as also the trial court has or had no reason to hold that such a witness had falsely implicated any person unless compelling reasons are shown to the court which are further shown to be over looked by the trial Judge. Nothing appears like that in the case of P.W. 1 Bongi Devi. Besides, what this Court finds is that a person who is deaf and dumb is generally immune to the vices of the world. He is least trained in tricks of life and tricking persons living in his/her surrounding. Such persons are pure hearted, they are pious minded and they readily believe others. This is almost the character of a person who is deaf and dumb. The reason is very simple as it appears to me, that on 8 account of having lost the capability of hearing, such a person is immune from picking up bad things which could be known to her after hearing the words and at the same time, observing the acts of characters whom we find all around us who have cropped up in recent times and whom we find indulging in all sorts of nefarious activities. 13. As regards the criticism of the prosecution case due to belatedly making report about the incident, one must first point out that the occurrence was taking place sometimes around 3 P.M. on a day of November when sun sets fast and it could be almost dark at about 5 P.M. It is not available to the court as to when P.Ws. 2 and 3 had come back from the field where they were working. The second reason which this Court may point out could be the shock and the sense of desperation which could have overtaken the souls residing in the house on account of the act of the appellant and they could have found themselves completely at a loss as to what to do. They could not have time to recollect themselves so as to taking a decision on whether to file any report about the incident or not to file it. This could be the reason that the F.I.R. was lodged only when they had decided during the whole of night and thereafter they had traveled up to the Police 9 Station for lodging the report. In a case of the present nature it is often found that the family members consider all the pros and cons of filing a report and above all the impact of making report ultimately upon their prestige in the society and loss of face among his relatives. This could probably be the reason that the informant was very slow in going to the Police Station for lodging the report. 14. As regards the medical report, it is not specifically stated that the lady had not been ravished. What P.W. 4 has stated in her evidence is that if the lady was the mother of 2-3 children then it could be difficult to find the internal sign of rape committed upon the lady. The Court fully endorses that view on account of the changes in the muscle structure on account of 2-3 children being borne to the lady. 15. It is true that the two witnesses, like P.Ws. 5 and 6 were not supporting the incident even as hearsay but the main witness, like, the husband and mother-in-law of the lady were very candid in making statement and were telling the court what they were told by P.W.1 just after the occurrence. If the evidence of the victim could not be discarded then it could be very difficult for the court to discard the evidence of P.Ws. 2 10 and 3 also in which they have very candidly stated to have learnt about the incident from P.W. 1. P.Ws. 2 and 3 have stated that the brother of the appellant had land dispute with the informant of the case but there is no material brought on record that on that account the informant was inimically disposed towards the appellant and that P.Ws. 2 and 3 and the brother of the appellant Nawal Mandal were litigating for the same land and they were holding interest in the land. There is complete lack of evidence in that behalf. As such, the suggestion of the defence that the informant foisted a false case upon the appellant, that’s the brother of his enemy Nawal Mandal appears far fetched. 16. Upon consideration of the evidence discussed by the learned trial Judge in the judgment what this Court finds is that the appellant was rightly convicted of committing the offence. It was contended at this stage that the appellant has remained in custody since 1.12.2004 and he has sufficiently been punished. But, considering the circumstances of the case, the status of the lady and the argument advanced, this Court is not inclined to lessen the sentence which was passed against the appellant. 11 17. In the result, the appeal fails and the same is dismissed. 18. Before parting with the present judgment the Court must record its appreciation towards the assistance rendered by Shri Pankaj Kumar Singh, who was requested to assist this Court in absence of the counsel whose names were appearing in the list but they were not appearing and without the assistance of Shri Singh, it could have been very difficult for this Court to dispose of the present appeal. Considering the labour invested and assistance rendered by Shri Singh, I am of the view that he deserves a fee of hearing to be paid by the Patna High Court Legal Services Committed. For that purpose, let copies of first and last pages of the judgment be handed over to Shri Singh. ( Dharnidhar Jha, J.) Patna High Court The 25th April,2011 Kanth/N.A.F.R.