Criminal Appeal (SJ) No.204 of 1998 **** Against the judgment, dated 28.04.1998, passed by Sri Subodh Paswan, Additional Sessions Judge, IV, Vaishali at Hajipur, in S. Tr. No. 19 of 1989 **** Lakhan Rai, son of Babulal Rai, resident of village Mahia Malpur, P.S. Pateypur, district Vaishali .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. M/S Shyam Sunder Sinha ‘Shyam’ & Ajay Kumar Sinha, Advs. For the Respondent .. Mr. Sujit Kumar Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 376 of the Penal Code and sentenced to undergo rigorous imprisonment for eight years and further convicted under Section 457 of the Penal Code and sentenced to undergo rigorous imprisonment for four years. 3. The prosecution case as alleged that the husband of the informant was a hawker in Kolkata and the victim was living in house with her old mother-in-law with two kids and in between the night of 7-8 December, 1986, the appellant, Lakhan Rai, along with co-accused, 2 Jai Lal, forcibly entered into the house when the mother of the informant had gone to Janakpur Dham and they committed rape by force by assaulting her at the point of dagger after closing the mouth of the victim and it is, further, alleged that the accused persons took away the tin boxes containing silver ornaments and goods. The further case is taht the informant raised alarm and the villagers assembled and saw the accused persons running away. It is further alleged that Chowkidar Parikchan Rai is brother of Lakhan Rai so no proceeding lodged, since, there was no guardian in the house and on 10.12.1986 when the mother-in-law of the informant returned from Janakpur Dham then she was disclosed and the complaint case was filed, the first information report lodged and after investigation the charge sheet submitted, cognizance taken and case was committed to the Court of sessions. After commitment the charge framed against the appellant, one co- accused was absconding. 4. However, during the trial four witnesses have been examined. P.W. 1 is Mina Devi, P.W. 2 is Maghiya Devi, P.W. 3 is Laxman Das and P.W. 4 is Raj Kumar Das and after considering the oral and documentary evidence the order of conviction is recorded, as stated above. 5. The learned counsel for the appellant contends that the appellant has falsely been implicated. The victim is mother of two children and there are various contradiction and inherent improbability in her evidence and the prosecutrix is not believable and there is no corroboration at all regarding the evidence as neither the doctor was 3 examined nor the saya was produced nor the investigating officer has been examined. 6. It has, further, been contended that the accused has remained in jail for about twenty months and at the time of judgment, itself, he was fifty years old and now he is sixty five years and, hence, a lenient view may be taken. 7. The learned counsel for the State, however, opposed the prayer and submits that the victim is mother of two small children hardly will depose and allege false in a rape case when the consequence of making allegation, itself, is serious and the probability of losing respect, love and affection of the husband and near and dear. 8. Hence, on the respective submissions the question for consideration whether the prosecution has proved it’s charges. However, P.W. 1 is the victim and has supported the prosecution case that on the date of occurrence her husband was not in house and was at Kolkata and the accused Lakhan Rai entered into the house by cutting the tati and committed rape. They started fleeing away after taking articles, Janki Devi and Savitri Devi have seen them. P.W. 2 is the mother-in-law, who supported the prosecution case when she returned from pilgrimage the victim disclosed and the case was filed. P.Ws. 3 and 4 have supported the prosecution case that on hulla they got up and saw Lakhan and Jailal fleeing away. 9. The learned counsel for the appellant, however, contended that the evidence of the victim is not reliable as she has stated in the evidence in cross examination that night was a dark night. 4 The accused person has closed her mouth for 4-5 hours. There was sign of sperm on saya, but, not produced in evidence. The appellant has not touched any part of the body of the victim. However, the discrepancies pointed out are minor in nature, which do not go to the root of prosecution case to disbelieve the prosecution case. The occurrence has been committed, both the parties came in close contact and coming in close contact can not be ruled out and when they came in close contact there is opportunity to identify. It was further pointed out that the victim in her evidence in paragraph 18 has stated that she was not knowing Lakhan Rai since before and has saw him for the first time at the time of occurrence and when he entered into the house then he asked whether she identifies him and disclosed his name as Lakhan Rai and had covered his face. However, the victim has identified in Court and the identification has not been challenged. However, it has been argued that a person will not disclosed his identity while has come to do a crime. However, in such type of act the persons come in contact while committing crime and there is opportunity to identify the accused and the victim has also identified the appellant in Court whereas there is n reason for false implication of such type of crime which indicts the prestige of the victim to be looked down in society. 10. However, it is true that the learned counsel for the appellant has challenged the identification by P.Ws. 3 and 4 as they claimed to have identified while the accused persons were fleeing away and it is alleged that the victim identified the accused from ten laggis. However, both the witnesses and the accused persons are co-villagers 5 even asserting that the identification of P.Ws. 3 and 4 are doubtful even then the identification of the victim when had opportunity to have in close contact can not be disbelieved or ruled out. The discrepancies pointed out are of minor nature and much importance can not be given to those minor discrepancies, which were pointed out by the learned counsel for the appellant and the discrepancies pointed out do not go to the root of the crime. However, it is a matter of common experience that a girl or a woman in traditional society extremely reluctant to allege rape or instance likely to reflect her chastity as by making such an allegation they fear that they may be looked down by the society and even may loose the respect and love of the husband and near and dear, hence, woman in traditional society will hardly make a false allegation regarding the rape as there is probability of loosing her respect and in such circumstance to ask the victim for corroboration is adding insult to her injury. However, the victim is a married lady having two children of tender age of four years and two years and, hence, in such a situation there is nothing in the evidence of the victim to disbelieve her allegation. However, the investigating officer has not been examined and nothing has been shown by non-examination of the investigating officer. However, none examination of the victim by a doctor and non- production of the saya hardly affects the prosecution case or the evidence as it has got the evidence of doctor and the evidence regarding saya is only a corroboration and a corroboration is not a rule of law, but, merely a rule of prudence. However, taking into consideration the entire evidence and identification the evidence of the 6 victim suffers from the defect. 11. Hence, taking into consideration the entire facts and circumstances, I do not find any illegality or irregularity in order of conviction recorded by the lower Court and the prosecution has been able to prove the charges. 12. However, so far the order of sentence is concerned, the occurrence is of the year 1986 and the appellant has also been convicted and lost the respect in society it has been submitted that the appellant has remained in jail for twenty months and the age of the appellant at the time of judgment was fifty years in the year 1998 and hence, at present he must be about 63 years old. The appellant has also suffered the rigour of prosecution and appeal for such a long time. 13. Hence, having regard to the facts and circumstances the end of justice shall meet by sentencing the appellant for period already undergone with payment of a fine of Rs.10,000/- to be paid within three months and, hence, the appeal is dismissed with modification in sentence. ( Gopal Prasad, J. J. ) The Patna High Court, The 04th day of August 2011, N.A.F.R., S.A.