Santosh Bind @ Santosh Bin vs State Of Bihar

Appellant, Santosh Bind @ Santosh Bin has been found guilty for an offence punishable under Section 376 IPC and sentenced to undergo R.I. for ten years as well as to pay fine appertaining to Rs.10,000/- in default thereof, to undergo S.I. for six months, additionally, vide judgment of conviction dated 06.12.2013 and order of sentence dated 09.12.2013 passed by the First Adhoc Additional Sessions Judge, Bagaha, West Champaran in Sessions Trial No.22/2003.

Victim (name withheld), PW.6 gave her fardbeyan on 18.12.2001 disclosing therein that on 14.12.2001 while her father was not present, she was sleeping along with her brother in her house. After removing the wooden door, Santosh Bind intruded inside her room, broken the string and then committed rape. Out of pain she raised alarm attracting her brother, Bhabhi seeing whom, Santosh ran away.

After registering Bagaha (Bhairoganj) P.S. Case No.235/2001 investigation commenced and concluding the same, charge sheet has been submitted, facilitating the trial, meeting with the ultimate result, subject matter of instant appeal.

Defence case as is evident from mode of cross- examination as well as statement recorded under Section 313 of the Cr.P.C. is that the brother of the victim had committed rape upon Bhabhi of the appellant and for that a case has been registered. In retaliation this case has been instituted putting false and frivolous allegation. However, nothing has been adduced in defence.

In order to substantiate its case altogether eight PWs have been examined at the end of the prosecution who are PW.1-Ramchandra Mukhiya, father of the victim, PW.2-Basant Mukhiya, PW.3-Reeta Devi, PW.4-Raghunath Bind, PW.5- Singhashan Mukhiya, PW.6-Victim, PW.7-Surendra Kumar Mani, PW.8-Binod Kumar Yadav as well as has also exhibited Ext.1- Formal FIR, Ext.2-Fardbeyan, Ext.3-Signature and writing of Dr. N. Yadav on medical report of victim. As stated above, nothing has been adduced on behalf of appellant.

Heard learned counsel for the appellant, learned APP as well as also gone through the record.

From perusal of the record, it is evident that PW.1, PW.2 and PW.3 are father, broher, Bhabhi of the victim while PW.6 is the victim. PW.4 and PW.5 did not support the case of the prosecution whereupon, declared hostile. Because of the fact that doctor has died on account thereof, PW.7, a formal witness has been examined to exhibit the medical report and in likewise manner, I.O. has not been examined and for that PW.8 a formal witness has been examined to have relevant documents exhibited.

It is evident from the deposition of the PW.1, PW.2, PW.3 that they have not claimed themselves to be an eyewitness to occurrence. They had stated that the victim had disclosed that after opening 'Chachara' the accused intruded inside and then committed rape (Balatkar) after breaking open the string of the salwar. PW.6, the victim while was examined was already married. She during her examination-in-chief also stated that coming inside her room after opening 'Chachara' Santosh began to commit 'Balatkar' whereupon, she raised an alarm. Her brother had also raised alarm whereupon her elder brother and others also came till then, Santosh after committing 'Balatkar' escaped. During cross-examination at para-9 there happens to be specific question put before her "बलात्कार किसे कहते है, मैं जानती हूँ घर मे कोई घुस जाय तो उसे बलात्कार कहते है।" The aforesaid theme is found properly explained from her under para-10 wherein she had stated that "मुझे पकड़ लिया तो मैं चिल्लाने लगी। तो अभि0 भाग गए। उसके बाद भैया आए। अगल-बगल के कैलाश, छोटना, वगैरह आए।"

Although, PW.1, PW.2 have not admitted presence of case at the end of wife of Rajdeo against Basant but, at para-15 the victim PW.6 had admitted that wife of Rajdeo namely Maina Devi, has instituted a case against her brother Basant and Thagait. Rajdeo is the brother of Santosh but, she is not knowing what kind of case has been instituted. Defence, the best reason known to it has not cared to file the copy of the FIR to suggest whether case has been instituted prior to the occurrence or after to the occurrence and further, nature of the offence.

Be that as it may, it is evident from the evidence of PW.6 at Para-9, Para-10 have not been challenged and in the aforesaid background certainly, considering the disclosure explaining the word 'Balatkar' in a manner which ultimately will attract Section 354 of the IPC due to outraging modesty and so, the conviction and sentence recorded by the learned lower court with regard to Section 376 of the IPC is hereby set aside. However, the appellant is found and held guilty for an offence punishable under Section 354 of the IPC and is sentenced to undergo R.I. for three years. Instant apeal is dismissed with aforesaid modification. Because of the fact that since after judgment impugned appellant remained under custody exhausting the period of sentence on account thereof, is directed to be released forthwith, if not wanted in any other case.