Lalan Singh and Others vs The State of Bihar

Abhijit Sinha, J.—At about 8 P.M. on 5.3.1992 Anita Kumari, aged about 14 years, accompanied by her elder sister Sunita Devi had gone to the river side, east of their house, to answer the call of nature and as they were returning therefrom they saw co-villagers Lallan Singh, Jepiya and Akhilesh Singh coming towards the river and on nearing them the triumvirate allegedly caught hold of the two sisters and with Jepiya holding Sunita and Lallan holding Anita they attempted to drag the sisters back to the river. It is said that the captive sisters raised cries of alarm but without any success as the blaring loudspeaker at the barat which had come to the village overshadowed their cries. Sunita, somehow is said to have freed herself from her captors and ran towards the village raising hulla but Anita was left at the mercy of the three some of whom Lallan slapped her several times as she attempted to raise alarm as a result whereof blood percolated in her mouth. She was then gagged with her orhni and the three dragged her into the river and whereas Lallan and Akhilesh kept hold of her Jepiya divested her of her salwar even as she wreathed in captivity but thankfully she had her underpants on. They also kept threatening her if she raised alarm and kept persuading her to accompany them towards the Project School with the evil intention of committing rape. However, Sunita accompanied by her brother Mahendra Sharma and bhabhi came running in the meanwhile and saved the situation for her and the accused fled. In the meanwhile other villagers and Anita''s mother also arrived and the accused were identified in the light emanating from the barat. A Panchayati followed on the next day where the prosecutrix and her family was requested not to approach the police. But on the following day (7.3.1992) the prosecutrix gave her fardbeyan to Sub-Inspector, D.N. Prasad at about 7 P.M. on the basis whereof Pariaya PS. Case No. 14 of 1992 under Sections 366A, 354, 307, 323/34 I.P.C. was registered. After due investigation the police submitted charge-sheet under Sections 366A, 376/511, 354, 307/34 and 323 I.P.C. and after the case was committed to the Court of Sessions charges under Sections 376/511 I.P.C, were framed against all the three accused and Lallan Singh was further charged for commission of offence u/s 323 I.P.C.

It will not be out of place to mention here that it will appear from the impugned judgment that after recording of the statement of the accused u/s 313 Cr.P.C. had been completed and the case was posted for arguments the accused persons were further charged u/s 366A of the I.P.C. and an opportunity was given to the prosecution as also the defence to produce any more evidence, if they so liked, but none of the parties availed of the opportunity.

Sri Akhilesh Chandra, the then 11th Additional Sessions Judge, Gaya by his judgment dated 1st December, 1992 convicted all the appellants for the commission of offences under Sections 354 and 366A I.P.C. and that apart accused Lallan Singh was also found guilty for committing the offence u/s 323 I.P.C. and by order of even date all the three accused persons were sentenced to undergo Rigorous Imprisonment for 2 years and a fine of Rs. 500/- for offence u/s 354 I.P.C, and Rigorous Imprisonment for 7 years with a fine of Rs. 500/-each for the offence u/s 366A I.P.C. and in default of payment of fine they were further to undergo Rigorous Imprisonment for 6 months on each count. Lallan Singh was further awarded Rigorous Imprisonment for one year for the offence u/s 323 I.P.C. There was a direction for all the sentences to run concurrently.

It appears that the prosecution in support of its case examined as many as 10 witnesses out of whom prosecutrix Anita Kumari figured as P.W. 1, Sunita Devi, the elder sister of the informant and Sumitra Devi, the bhabhi of the informant, were examined as PWs. 2, 3 and 4 respectively. That apart whereas Laxmi Mistri, father of the informant, (P.W. 6),. Nagendra Sharma, brother of the informant, (P.W. 8), and Piyaria Devi, mother of the informant, (P.W. 2) were tendered, Mahendra Mistri, brother of the informant, Dr. Ganesh Singh who examined prosecutrix and her sister and Dr. Nagendra Kumar Singh who examined the accused persons were examined as PWs. 7, 5 and 9 respectively. The Investigating Officer, Dina Nath Prasad, figured as P.W. 10. The prosecution also adduced documentary evidence to bolster its case.

Having considered the materials available on record and the submissions advanced by the counsel for both sides, the learned Additional Sessions Judge pronounced the judgment and order as stated hereinbefore.

P.W. 1 Anita Kumari, prosecutrix, in course of her deposition in Court while reiterating her statement in the fardbeyan stated that she accompanied by her sister went to the river side, 12 feet east of their house, to answer the call of nature and while they were returning therefrom they saw the three accused persons coming to the river and of them whereas Jepiya caught hold of sister Sunita, Lallan caught hold of her. She further stated that Sunita used her teeth on the right hand of Jepiya and succeeded in fleeing towards the house but she was dragged to the middle of the river and all her attempts to raise alarm were overshadowed by the blaring loudspeaker and the sound of generator being used in the barat which had arrived at the village. Later on Lallan allegedly slapped her and gagged her mouth with her orhni and she was thrown on to the ground even as Jepiya took of her salwar but she was saved by the fact that she was wearing underpants. She stated that in the meantime her sister, bhabhi, brother followed by her mother arrived whereupon the accused fled away towards the east through the river. The witness further stated that the accused persons were persuading her to go towards the Project School. She also stated that the police were not informed for two days since a Panchayati was held and since they were also being threatened. She gave her age as 14 years and in reply to a Court question she stated that she was a student of Class 8 at the time of the incident and that she had now left her studies. She was subjected to lengthy cross-examination but the defence could extract nothing so as to discredit the witness. In paragraph 10 of the cross-examination she stated that she had been assaulted with slaps as a result whereof she was bleeding from the mouth. She also stated that her clothes were wet and the accused persons were adamant to commit rape upon her but they could not succeed except for divesting her of her salwar.

Sunita Devi (P.W. 3), the sister who had accompanied the prosecutrix to the river side and was a victim of the initial stage of the occurrence corroborated the prosecution story in material particulars up to the stage of her setting herself free. She further stated that having run to their house she narrated the happenings to her bhabhi and then alongwith the bhabhi and brother she had come to the river side where she saw Anita lying on the ground with her salwar having been divested. She also detected some injury on her body. She, however, stated that she had not seen anybody fleeing. She too was subjected to lengthy cross-examination but nothing of any importance which could be of any help to the defence was extracted from her in course of her cross-examination. Even otherwise Sunita has only stated about the initial stage when the accused persons had come over and caught hold of her and her sister and were attempting to drag them towards the river side. She is not an eye witness to the fact of Anita being gagged in the mouth, being thrown on the to ground and of her being divested of her salwar.

P.W. 4 Sumitra Devi, the bhabhi of the prosecutrix, is a witness only to the latter part of the incident that is of seeing Anita lying on the river bed and the accused fleeing away. She is not an eye witness to the initial and the main occurrence. And to that extent she is merely a hearsay witness. Similar is the situation with the brother of the prosecutrix, Mahendra Mistri (P.W.7), who like his wife is a witness to seeing the accused fleeing towards the east and of Anita lying on the river bed with her divested salwar as also the injury on her body. Dr. Ganesh Singh (P.W. 6) had the occasion to examine the prosecutrix on 2.3.1992 and found the following injury:--

(i) Mild swelling on both cheeks without any obvious injury to patient.

(ii) Complaining of pain in both cheeks and in the mouth without any obvious external injury.

(iii) An abrasion about pin-head size just superior and lateral left angle of mouth.

(iv) Complain of pain in the neck region without any external injury.

(v) Complain of body-ache without external injury.

In the opinion of the doctor all the injuries were simple in nature and caused by violence, may be, by palm of hand or by rough hard substance or by finger nails. This doctor also examined Sunita and found following injury:--

(i) Swelling on cheek,

(ii) Swelling with abrasion on left side above upper lip of nasolabial fold.

(iii) Complain of pain on both side jaw.

(iv) Mild swelling on right wrist with complain of pain.

(v) Swelling (mild) and tiny wescentic abrasions on dorsum of left wrist.

According to doctor all the above injuries were simple in nature caused by violence by rough substance or by palm and nails.

Dr. Nagendra Prasad Singh (P.W. 9), the jail doctor, examined Lallan Singh, Akhilesh Singh and Jepiya on 16.3.92 and also found no injury upon the person of Lallan Singh and Akhilesh Singh, but he did detect two spot of scratches on the right wrist and one scratch at knee joint and scratches on the right hand. In the opinion of the doctor these injuries may have been caused by biting of teeth.

It was sought to be submitted by defence that in view of the nature of injuries detected on the person of Jepiya, it could not be said with certainty that they had been caused by biting.

I am not prepared to accept the submissions advanced by the learned counsel in view of the fact that the doctor has given the probable cause of the injury to have been caused by biting and both P.Ws. 1 and 3 have categorically asserted that Sunita had freed herself from the captivity of Jepiya by biting his hand.

That apart the prosecutrix herself has categorically stated of her sister and herself being caught by accused persons and after the sister had managed to flee, of the accused persons having gagged her mouth dragged her to the riverbed where they divested her of her salwar and also assaulted her. It is well settled that to constitute an offence u/s 354 I.P.C. there must be an assault or use of criminal force to any woman with the intention or knowledge that the woman''s modesty will be outraged. It is not the act of outrage the modesty that is made an offence under this Section. In order to constitute an offence u/s 354 I.P.C, there must be an assault or use of criminal force to any woman with the intention or knowledge that the woman''s modesty will be outraged. In the instant case there is sufficient evidence to show that the three accused persons had committed an offence of attempting to outrage the modesty of prosecutrix Anita and to that extent they have rightly been convicted by the learned trial Court.

So far as the offence u/s 366A I.P.C. is concerned prosecutrix Anita has given out her age as 14 years. There is evidence of her being seduced to go from one place to another. The ultimate intention of the accused persons was to seduce her into illicit intercourse. The ingredients of Section 366A having been completed an offence u/s 366A can be said to have been made out against the appellants and they have rightly been convicted.

So far as the offence u/s 323 I.P.C. is concerned, it has been established by cogent evidence that Lallan had resorted to slapping Anita on her cheeks and doctor examining her had found mild swelling on both the cheeks. The patient had also complained of pain in both the cheeks and the mouth but there was no external injury, although an abrasion about pin-head size just superior and lateral left angle of mouth was detected. In that view of the matter and with the corroboration by Sunita of Anita being subjected to assault by Lallan the learned Trial Judge has rightly convicted Lallan for commission of an offence u/s 323 I.P.C.

Having given my anxious thoughts to the materials available on record I am of the opinion that the conviction under Sections 354 and 366A I.P.C. of the three appellants in addition to the conviction of Lallan u/s 323 are justified and are accordingly upheld.

However, due regard being had to the facts and circumstances of the case as also to the fact that the case is of the year 1992, that is almost 15 years ago, and the appellants have suffered trauma and harassment of criminal litigation for about 15 years, I am of the opinion that the ends of justice will be served if the sentence for the aforesaid offences are modified to one of the period undergone. In the result the appeal is dismissed with modification in sentence as indicated above. The appellants are on bail vide order of this Court dated 31.5.1994 and 7.6.1994 respectively. They are discharged from the liabilities of their respective bail bonds.