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Judgment
Pradeep Kumar, J.—This appeal is directed against the judgment of conviction dated 6.6.2002 and order of sentence dated 7.6.2002 passed by Shri Prabhu Tiwari, Special Judge, (C.B.I.)-cum-Addl. Judicial Commissioner, Ranchi, by which judgment he found the appellants guilty u/s 376(2)(g) of the Indian Penal Code and sentenced them to undergo R.I. for 10 years.
It is submitted by the learned Counsel for the appellants that it will appear from the evidence of the witnesses that there was a business transaction between the accused, Chamar Singh @ Raju Mahli and the informant and hence when the informant could not pay the dues the appellants they have falsely implicated in this case. He has further submitted that it will appear from the evidence of the doctor, who examined the victim girl on 20.5.2000 i.e. only after one day that there is no injury in her private part and her hymen was intacked and there was no sign of rape, in that view of the matter, the conviction of the appellants u/s 376(2)(g) of the Indian Penal Code is bad in law and fit to be set aside.
On the other hand, learned Counsel for the State has opposed the prayer and submitted that although the medical evidence does not support the prosecution case, but all the witnesses have stated that these two appellants finding the victim girl-P.W.4 alone in her house committed rape upon her and as such they have rightly been convicted.
After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a written report given by Sheonath Choudhary (P.W.1) on 19.5.2000 stating therein that he was residing in the house of Chamar Singh in Tiril Village under Sadar Police Station, Ranchi and Yesterday i.e. on 18.5.2000 in the morning at about 9 a.m. he along with his wife (P.W.2) left the house for attending the work leaving her daughter, Khusboo Kumari aged about 7 years was left alone in the house. He also stated that Yesterday i.e. on 18.5.2000 at about 1.30-2'' clock in day the appellants, Chamar Singh @ Raju Mahli and Paul Alexandeer entered into his house and said to his daughter, Khusboo Kumari that they will give her chocolate and biscuits and saying so committed rape upon her. In the evening he returned along with his wife then their daughter, Khusboo Kumari stated that Chamar Singh @ Raju Mahli and Paul Alexandeer had committed some wrong with her. Then he called his landlord, Champa Uraon and told her about the occurrence, who asked him not to disclose the matter since the matter relates to the prestige jof a girl. Then, he called the accused persons, but they were not ready to compromise the matter, Then, at the instance of his neighbours, namely, Anup Kumar, Ganesh Mahto and Champa Uraon went to the police station and gave written information.
On the basis of the said written report the police registered a case u/s 376/ 34 of the Indian Penal Code and after investigation police submitted charge-sheet against both the accused persons. Since the case was exclusively triable by a Court of Sessions the learned Magistrate after taking cognizance of the case, committed the same to the Court of Sessions and subsequently the case was transferred to the Court Special Judge, (C.B.I.)-cum-Addl. Judicial Commissioner, Ranchi, who found the appellants guilty as aforesaid.
In order to prove the charges the prosecution has examined as many as 8 witnesses. P.W.1. Shiv Nath Chaudhry, is father of the victim girl, P.W.2, Smt. Dharamsheela Devi, mother of victim girl, P.W.3, Ruby Kumari is elder sister of the victim, Khushboo, P.W.4, Khushboo Kumari is the victim girl, P.W.5, Suggi Kumari Hs neighbour, P.W.6, Anup Kumar is neighbour, P.W.7, Dr. Kusum Prasad and P.W.8, Ram Shakal Paswan, Investigating Officer of the case.
It is important to note that the neighbour, namely, Anup Kumar examined in this case, has not supported the prosecution case and he was declared hostile.
P.W.1, Shiv Nath Chaudhry, is father of the victim girl, stated in Court that on the date of occurrence when he came back then he came to know from his wife that Khusbhoo Kumari has beeii raped by the accused-appellants, Chamar Singh @ Raju Mahli arid Paul Alexandeer. On his inquiry, the neighbour also stated the same the two accused came to his house and said that they are sorry for wrong they have done. On the next day he gave the written report. He put his signature on the same, which is as Ext. 1.
In his cross-examination, he accepted that there was a dispute for payment of dues and he has not returned the same till date.
P.W.2, Smt. Dharamsheela Devi, mother of victim girl, has also supported the prosecution case that yesterday she also came to know that in their business transaction the accused persons came and committed rape upon her minor daughter.
P.W.3, Ruby Kumari is elder sister of the victim, Khushboo, who was present in the house stated when the two accused persons came and she has been asked to bring pen from the house of landlord. Then, she went there to bring pen. So this Khushboo Kumari was left alone in the house. Therefore, in absence of her sister, Rubi, the accused persons found Khushboo Kumari alone in the house and committed rape upon her.
In para 6, in her cross-examination, she stated that there is a business transaction between her father and the accused persons and there is some dues against her father there was a fight also.
P.W.4, Khushboo Kumari she stated in her statement that on the date of occurrence she was alone in her house since her parents had gone for work and the accused persons after entering into her house and asked her sister, Ruby Kumar to go to the landlord and bring a pen. Thereafter by closing the door the accused persons committed rape on her. She informed the occurrence to her parents.
In her cross-examination, she stated that the neighbour lived near about and there was a well in front of the house in which the villagers take water. She also stated in para 7 that there is some dispute with regard to the business.
P.Ws.5 & 6 were turned hostile.
P.W.7, Dr. Kusum Prasad, who examined the victim girl just after one day. She stated that she found no mark of any injury on any part of her body and no injury was found on the private part nor any foreign hair was fall. She also stated that hymen was intact. Slide made from the scanty discharge present outside the introitus and after Ex-ray examination the report found no spermatozoa or anything present. She proved her medical report, which is as ext. 2.
In her cross-examination, she stated that the victim girl says that rape was committed by a young man.
P.W.8, Ram Shakal Paswan, Investigating Officer of the case, has supported the investigation and stated that he submitted charge-sheet against the accused-appellants.
Thus, after going through the entire prosecution witness, it appears that although the victim girl, her sister and other witnesses have stated that two accused persons committed rape upon her, but since doctor found no sign of rape and even her hymen was intact. In that view of the matter, even if the case of victim girl is true then also relying on the judgment reported in Premiya @ Prem Prakash Vs. State of Rajasthan, wherein it was held that in a case where the doctor found no injury on the private part of her body or any part of the body then it will a case at best u/s 354 of the Indian Penal Code.
In the instant case also it appears that two accused persons finding the victim alone in her house must have tried to outrage her modesty. The mother has also accepted, in her cross-examination, that her sister who had gone to landlord was just by the side and it will take 2-4 minutes. The victim girl also stated in F.I.R. That some wrong was done to her.
In that view of the matter, the conviction of the appellants u/s 376(2)(g) of the Indian Penal Code is altered to that of Section 354 of the Indian Penal Code.
From the record, it appears that both the accused were granted bail by this Court on 27.2.2007 and they remained in custody for about 3 years and hence the custodian sentence shall be the period already undergone by them. Hence the appellants were discharged from the bondage of their bail bond.
With the alternation in the conviction and sentence the appeal is allowed in part.