Against the judgment and order dated 15th and 19th May , 1997, passed by the 1st Additional Sessions Judge, Sitamarhi, in Sessions Trial No.114 of 1996/ 17 of 1996. ================================================== Criminal Appeal (SJ) No.159 of 1997 =========================================================== Dilip Singh s/o Nagender Singh, Resident of village- Matiyar Kala, under P.S.- Sahiyara, District- Sitamarhi .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s With Criminal Appeal (SJ) No. 172 of 1997 =========================================================== Ram Sanehi Mahto, son of Gulo Mahto, Resident of village- Adhkhani, P.S.- Parihar, District- Sitamarhi .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s With Criminal Appeal (SJ) No. 178 of 1997 =========================================================== Lal Babu Singh son of Ram Khilawan Singh, Resident of village- Adhkhanni, P.S.- Parihar, District- Sitamarhi .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance: (In CR. APP (SJ) No. 159 of 1997) For the Appellant : Mr. V. B. P. Ambastha, Amicus Curiae For the State : Mr. Choubey Jawahar, APP For the informant : Mr. Krishna Prasad Singh, Sr. Advocate with Mr. Manish Kumar Advocate (In CR. APP (SJ) No. 172 of 1997) For the Appellant : Mr. V. B. P. Ambastha, Amicus Curiae For the State : Mr. J. K. Singh, A.P.P. For the informant : Mr. Krishna Prasad Singh, Sr. Advocate with Mr. Manish Kumar Advocate (In CR. APP (SJ) No. 178 of 1997) Patna High Court CR. APP (SJ) No.159 of 1997 dt.06-07-2011 2 For the Appellant : Mr. V. B. P. Ambastha, Amicus Curiae For the State : Dr. Indiwar Kumari, A.P.P. For the informant : Mr. Krishna Prasad Singh, Sr. Advocate with Mr. Manish Kumar Advocate =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. All the appellants have been convicted under section 376 Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years and pay fine of rupees ten thousand each and in default of payment of fine further rigorous imprisonment for six months by the 1st Additional Sessions Judge, Sitamarhi, in Sessions Trial No.114 of 1996, by judgment dated 15.05.1997 and order of conviction dated 19.05.2007. 2. The case of the prosecutrix is that on 01.08.1994, when she was coming to her matrimonial home at Sutihara from her parents’ house in Pipra and reached near the Sutihara Chowk the appellants caught her and bodily lifted her and took her to adjacent building where she was raped by each of them. When the third appellant was raping her, some photographs were taken by them in that condition. Thereafter, she was let free, but threatened that if she would report the matter to anyone, her daughter would be kidnapped and photograph would be made public. She came to her house and narrated this incident to her husband. Soon thereafter, appellant Dilip Singh and Lal Babu Singh came to the house of the informant and further threatened her. Some other persons also came and told her not to make hue and cry about the occurrence because it would ruin the prestige of their community. This information was given to the police on 04.08.1994, but since no enquiry was done in the matter, the prosecutrix wrote to the Superintendent of Police, Sitmarhi, on 08.08.1994, which was forwarded to Parihar Police Station and the case was Patna High Court CR. APP (SJ) No.159 of 1997 dt.06-07-2011 3 registered on 10.08.1994. 3. During trial, the prosecution examined six witnesses, out of whom, P.W.5 is the doctor, who opined that the prosecutrix was aged about 27 years and apart from an abrasion on her left thigh there was no other injury. His evidence has no value since admittedly this medical examination was conducted on 15.08.1994 i.e. almost fifteen days after the occurrence. P.W.1 is the husband of the prosecutrix, who has stated that about 9.00 P.M. his wife came to the house weeping and told him that while she was coming home and reached Radour Chowk, she did not find any vehicle and, so, she was coming on foot and when he reached at the Darwaza of Ramkhelawan Singh, the three appellants surrounded her and on the point of pistol bodily lifted her and took her to the building nearby and committed rape. Photographs of the act were also taken by them. The husband corroborated the fact that all the accused thereafter came on the same day and threatened them of dire consequences, if the matter was reported to the police. He also stated that they were fearful they could not go out and three days later when the matter was reported no police enquiry was done in the matter and thereafter the letter was written to the Superintendent of Police at which First Information Report was instituted. P.W. 2, the daughter of the prosecutrix who was eleven years old, has been examined to corroborate the case. She has stated that after the occurrence the accused persons took her and showed her photographs of the act of the fateful day. But I do not find her evidence trustworthy since it does not stand to reason, that after the name of the accused persons were made known to her, she would accompany the accused willingly without resistance. Moreover, this fact has not been disclosed in the written statement of 08.08.1994. As for the evidence of P.W.3, who is the informant, I find that she has given a truthful corroboration of the initial report that she had made to the police. She gave full description as to how three accused persons had ravished her on the point of pistol and the fact that she Patna High Court CR. APP (SJ) No.159 of 1997 dt.06-07-2011 4 narrated to her husband about the incident after she reached home. She also stated that she had been continuously threatened by the accused persons on account of which she had not reported the matter for the first three days. The Investigating Officer has been examined as P.W.4 and he found the building next to the Chowk wherefrom the informant had been lifted. He further found that there were many rooms in the building and one of the rooms had a Chauki on which allegedly rape had been committed. 4. On behalf the appellants, only argument that has been raised is that there is undue delay in reporting the matter and that no independent witness has been examined as also that appellant Lal Babu Singh and Dilip Singh are uncle and nephew and it does not stand to reason that they would commit this act together. 5. As for late reporting of the case, the prosecution has fully satisfied this Court as to under what circumstances there was delay in the report and, therefore, the contention is rejected. 6. The next submission that no independent witness was examined has also to be rejected since it is often seen that in most cases of this nature there is no independent witness for the reasons which are not difficult to explain and comprehend. 7. The third submission that Dilip Singh and Lal Babu Singh are nephew and uncle respectively and it did not seem probable that they would commit the act together is also not fit to be accepted for the simple reason that both of them were of same age and it is quite possible that they were in a relationship of companion and friend and there was every possibility of them being together in this occurrence. 8. In view of such, these appeals are dismissed having no merit. 9. The Trial Court is directed to take effective steps to ensure apprehension of the appellants to serve out the rest of the sentences. Patna High Court CR. APP (SJ) No.159 of 1997 dt.06-07-2011 5 10. Let a copy of this judgment be handed over to the counsel appearing as Amicus Curiae for needful. (Anjana Prakash,J.) Patna High Court, Patna. Dated the 6th July, 2011 NAFR JA/-