1. This appeal arises out of judgment of conviction and the order of sentence dated the 17th of April, 2002, passed by the learned Presiding Officer, Fast Track Court No. 4, Samastipur, in Sessions Trial No. 99 of 1992. By the impugned judgment the solitary appellant Laxman Mahto was held guilty of committing offence under Section 376 of the Indian Penal Code and was directed to suffer rigorous imprisonment for seven years and as also to pay a fine of Rs. 5,000/- and in case of having defaulted to pay the fine, the appellant was to undergo simple imprisonment for three months.
2. The prosecution story emanates from the First Information Report lodged by P.W. 4 Samundari Devi on 10.07.1989. It was stated by P.W. 4 that she had gone out of her house into the shrubs for attending to the call of nature where the present appellant also came and caught her and dragged her inside a dilapidated house. The appellant thereafter administered to her Modak (a preparation of Bhang with some sweetner) and put her down on the ground and raped her. The appellant kept the prosecutrix with him for about two hours and thereafter left the place. The prosecutrix stated that she became inebriated and lost her senses as a result of which the appellant committed sexual intercourse with her. She was bleeding on account of the act and could not gain her consciousness for quite some time. She wandered around and she could reach a grove of guava trees at about 12 in the night when her father-in-law Sita Ram Sah (P.W. 2) and her Dewar Paras Sah (not examined) brought her to her house. It was stated that she narrated the whole story of being raped by the appellant to her family members after being administered stupefying substance. The prosecutrix further stated that a Panchayati was convened on Sunday, i.e., on 09.07.1989 and after people had advised her to file a case, she lodged the case.
3. Except the four witnesses the Investigating Officer and the doctor were not examined. Out of the four witnesses, P.W. 1 was a formal witness who proved the writings of the First Information Report Ext. 1. P.W. 2 Sita Ram Sah was the father-in-law of the prosecutrix P.W. 4 and he stated that her daughter-in-law went into the shrubs for attending to the call of nature and she did not return when he set out on search of her. P.W. 2 stated that he could find out the lady at about 12 in the night in the grove of guava trees and she was not in her full senses. She was brought to her house where she stated that this appellant Laxman Mahto had taken her inside the dilapidated house and raped her. The lady also stated to her family members including P.W. 2 that she was administered Modak and she was raped. The fact was disclosed to the villagers who convened a Panchayati, but nothing came out of it and finally the report was lodged. P.W. 3 Birendra Sah was the husband of the prosecutrix and he supported the prosecution story by stating the same facts which were stated by her to her father-in-law P.W. 2. P.W. 4, the prosecutrix stated that she left her house at about 3 P.M. for attending to the call of nature and went into the shrubs near the house of one Mohan Prasad. The appellant came there and caught her to take her in that dilapidated house where he thrusted Modak in her mouth and committed rape upon her in the manner as appears described by her in paragraph 2. The lady stated that after being fed with Modak she became inebriated and the accused remained with her for about two hours whereafter he left her alone. The prosecutrix remained lying there and she could regain her consciousness around 12 P.M. and came into the guava orchard where she was found out by her family members, like, her Dewar Paras Sah and father-in-law P.W. 2 Sita Ram Sah who brought her to her house. P.W. 4 clearly stated that on account of being administered the stupefying Modak, she could not narrate the whole incident to her family members and could tell them about the incident only in the morning whereafter a Panchayati was convened and some fine was imposed upon the accused, but he refused to pay the same whereafter the case was lodged. During cross-examination P.W. 4 stated that the accused came near her after she had reached the place and took her inside the house which was located only 4-5 houses away from her own house. P.W. 4 did not see as to when the appellant left her. P.W. 4 further stated that prior to that day there had never been a talk or any conversation between the appellant and herself and that the offence was committed inside the room which did not have any doors or door planks.
4. The submission on behalf of the appellant was that the whole incident appears unnatural. It was also submitted that the prosecutrix was married for about four years as appears from the evidence of P.W. 2 her father-in-law and also from her own evidence and she did not have any child. Submission was that she was probably a consenting party to the whole occurrence which was further indicated by the fact that even after being caught by a person who had never had any talk with her, she was not raising alarm though the place where she was raped was in the very vicinity of her house. Submission also was that the circumstances appear improbable and indicate consent.
5. While perusing the evidence of P.W. 4 and her family members like P.Ws. 2 and 3 what appears is that they were coming out with honest disclosures as regards the facts of the case. The witnesses stated that the lady had exited from her house for attending to the call of nature but did not return. A search was made for the lady on account of the anxiety due to her having not returned to her house and she could be found only at about 12 in the night and that too all alone in the guava orchard. Even if it could be urged that it is an act by consent, there does not appear any reason as to why the lady should remain wandering out of her house for such a long period of about nine hours or so. The fact suggests as if there have been any particular reason. The lady herself had stated that she was administered Modak which as per my personal knowledge is a substance which acts very fast to cause someone to loose his composure and consciousness. Many persons are often found falling ill by loosing their memory on account of taking Modak, the main ingredient of which is Bhang, i.e., Cannabis Sativum. The lady and her family members stated that she remained unconscious not only for that period but also for the whole night and regained consciousness only by the next morning when she narrated the whole incident.
6. Consent is a good defence in a case of rape, but when one considers the definition of rape as contained in Section 375 of the Indian Penal Code and the fifth clause, one may find that if a consent has been obtained by administering any stupefying substance so as to causing the loss of appropriate senses to the lady then it could not be a valid consent.
7. Here in the present case the lady as also her family members have been very forthright in admitting that the lady remained outside her house and she was administered Modak. The circumstance of long absence and non-return of the lady to her house was itself suggestive of the fact that she was not normal and as such, she could not move out of the place because she had lost the sense of direction, etc. In that view of the matter, it appears a case of no consent and the act being done against the will of the lady.
8. It appears that the doctor has not been examined but when I was considering the evidence of the lady and P.Ws. 2 and 3, I found that it inspired confidence and there was no reason for her to make false and unfounded allegation against an innocent person.
9. After having considered the evidence available on record, I find that the impugned judgment did not require any interference from this Court as the appellant appears rightly convicted and properly sentenced. The appeal stands dismissed. The appellant, namely, Laxman Mahto immediately surrender himself to the custody of the Court to be remanded to custody to serve out his sentence.