Sheema Ali Khan, J.
1. The above named three appellants have been convicted to undergo rigorous imprisonment for ten years under Section 376 of the Indian Penal Code. No separate sentence has been awarded under Section 342 of the Indian Penal Code.
2. The prosecution case is that the victim lady was going to ease herself on 26.08.1983 in the evening when it is alleged that the appellants dragged her to the in a brinjal field and raped her. It is further stated in the First Information Report that she returned to the house and narrated the entire occurrence to her husband and mother-in-law. Her husband went to meet one Rajendra Singh regarding the occurrence. There is also statement that a panchayati was held in the house of Lala Singh (appellant) where all the three appellants confessed their guilt and thereafter the case was instituted on the next date i.e. 27.08.1983 at 6 PM.
3. In support of the prosecution case, altogether ten witnesses have been examined. PWs 1, 3 and 9 are the formal witnesses. The victim lady, Anita Devi, has been examined as PW 7. PW 2 is Devendra Baitha, the husband of the victim lady. PWs 4 and 5, namely, Chander Singh @ Chanu Singh and Bipin Singh are the persons who had participated in the Panchayati. PW 6 Makhiya Devi is the mother-in-law of the victim lady. PW 8 is the doctor who examined the victim lady and PW 10 is the Investigating Officer of this case.
4. The defence has come out with a suggestion that there was rivalry between the Rajputs and Koeries castes and also that there was some sort of dispute with the appellants, and for this reason, the appellants have been falsely implicated in this case.
5. At the initial stage, a point has been raised on behalf of the appellants Deva Nand Singh and Upendra Singh that at the time of recording the statements of the aforesaid two accused persons under Section 313 of the Code of Criminal Procedure, the age of Deva Nand Singh has been assessed as 18 years whereas the age of Upendra Singh has been assessed as 21 years by the Court and similarly the Court has also assessed the age as 18 years and 21 years on the date on which the judgment was pronounced i.e. on 6.7.1988. It is, therefore, submitted that the appellant Deva Nand Singh was 13 years old on the date of the occurrence, whereas appellant Upendra Singh was 16 years old on the date of the occurrence. It is further submitted that the appellants were juvenile and are entitled to protection of the Bihar Children Act, 1960 and the subsequent amendment i.e. the Bihar Children Act, 1982. A child has been defined as a boy or a girl who has not attained 18 years of age. On the facts stated aforesaid it is clear that these two appellants were below 18 years of age. The Bihar Children Act, 1982 came into effect from 15.12.1983. Section 60 of the Bihar Children Act, 1982 saved any right, privilege, obligation or liability acquired, accrued or incurred under any previous law corresponding to provisions of the Act which stand repealed by the successor Act i.e. the Juvenile Justice Act, 1986. Section 63 of the Juvenile Justice Act provides that any law in force in a State corresponding to this Act shall stand repealed from the date on which the Act come into effect, provided that the repeal shall not effect the previous operation of any law so repealed or anything duly done or suffered thereunder. It also provides any right, privilege, obligation or liability required, accrued or incurred under the law so repealed shall be saved. The 1986 Juvenile Act was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 which similarly provides the saving of all acts done under the previous law which was in operation at the time when the proceeding was initiated or pending. The argument is that since the appellants were juveniles (child) and in conflict with the law, they were protected by the Acts aforesaid and ought to have been tried under the Juvenile Justice (Care and Protection of Children) Act, 2000. It is also well settled law that the question that the appellants were Juvenile can be raised at any stage of the case and therefore, it is argued that the judgment and order convicting the appellants Deva Nand Singh and Upendra Singh under Section 376 should be set aside if the Court finds on facts that the appellants are guilty of the aforesaid offence.
6. Having considered the arguments on behalf of the minor appellants, this Court will now examine the facts and evidence in this case for the purpose of determine whether the appellants are guilty of the offence under Section 376 of the Indian Penal Code.
7. PW 2 Devendra Baitha, is the husband of the victim lady. In his chief, he has supported the occurrence as revealed to him by his wife. He has also stated that he contacted Chander Singh @ Chanu Singh, Bipin Singh and Parikshan for holding a Panchayati. He specifically states that his wife disclosed the entire occurrence to the aforesaid Panches and the appellants accepted their guilt in front of the Panches. In the cross examination he claims that he was married 7 or 8 months prior to the occurrence. He claims that there are about 40 or 45 persons residing in the Tola in which he lives, out of which 25 to 30 houses belong to the Rajputs. He claims that he had a dispute with the appellants prior to the occurrence and the appellants did not visit his house. It is specifically alleged that appellant Deva Nand Singh had assaulted him about 3 or 4 years prior to the occurrence. According to this witness he had visited the place of occurrence where he found signs that the brinjal field was disrupted due to the occurrence. With respect to the Panchayati held, he claims that it was held on the next day i.e. 27.8.1983 at about 9-10 a.m. and several persons about 15 to 20 were present during the Panchayati. He states that he also showed the Panches the brinjal field where the occurrence had taken place and specifically states that the Panches had taken the statement of his wife.
8. PW 6, Makhiya Devi is the mother-in-law of the victim lady. This witness states that her daughter-in-law had disclosed the factum of rape to her. She also supported the story that the Panchayati was held in which the Panches were Chander Singh @ Chanu Singh, Bipin and Parikshan. She claims that she attended the Panchayati and the appellants accepted their guilt in front of the Panches. According to PW 6, her daughter-in-law is living in her house for the past 10 years. In the cross examination with respect to the Panchayati held, she states that several persons were present at the time when the Panchayati was held and her statement was recorded by the Panches and she also put her thumb impression on the statement given by her. She denies that the case has been instituted at the instance of the Rajputs of the village.
9. PW 7, the victim lady has supported the case in the First Information Report and said that all the three appellants have raped her. PW 7 states that the Panchayati took place at 12 O' Clock in the afternoon and she gave her statement before the Panches. The appellants accepted their guilt and advised her to file a case. In the cross examination she has stated that Upendra Singh lives about 9 or 10 'Laggis' from her house whereas Lala Singh lives at a distance of 10 'Laggis' and Deva Nand Singh is her next door neighbour. With respect to the place of occurrence she states that she was taken to the brinjal field which is 11 'Laggis' from her house (1 'Laggi' is equal to 8 to 10 feet). She has stated that there are several houses near the place of occurrence and specifically states that Chandeshwar, Raghunath Babu and Lal Nathuni have their houses just 10 to 11 'Laggis' from the place of occurrence. According to her she was at the place of occurrence for about two hours. PW 5 also states that she disclosed the occurrence to Dabbu and Shyam Nandan whom she met while she was returning from the field. On cross examination she accepts that a Panchayati is usually held in the presence of the Sarpanch and Mukhiya. According to her there were about 100 persons present at the time when the Panchayati was held. She denies the suggestion that the case has been filed because of a dispute between Rajputs and Koeries.
10. The two persons who are said to be the Panches in this case have to be examined as PW 4 and PW 5. PW 4 has stated that he was one of the Panches who went to the house of the appellant Lala Singh and he claims that the appellants accepted their guilt in his presence. With respect to holding the Panchayati he said that the Sarpanch and Mukhiya were present in the village but he was chosen to Act as a Panch because he lives close by. He states that he did not advise the complainant to lodge her protest before the Mukhiya or Sarpanch nor were the Mukhiya and Sarpanch called to attend the Panchayati. He claims that several persons were present at the time when the Panchayati was held and denies that the story of holding a Panchayati is false.
11. PW 5 Bipin Singh claims that he was one of the Panches and the appellants had accepted their guilt in front of him. Both PWs. 4 and 5 claim that Devendra Baitha had approached them to be Panches in this case. This witness also accepts that the Sarpanch and Mukhiya are considered to be qualified to call a Panchayati. According to PW 5 the victim lady was married 6 to 7 months prior to the occurrence. This witness states that he has the dispute with Ramjeevan Singh and Kewat Singh and a case was pending between Ramjeevan Singh and Kewat Singh and denies that he is supporting the case of the prosecution because of village politics and the aforesaid enmity.
12. PW 10 who is the Investigating Office of this case states that he did not visit the place of occurrence nor did he see the clothes of the victim lady. He had not examined Rajendra who is said to have been the first person to whom the occurrence was disclosed by the husband of the victim lady. The Investigating Officer also states that he did not examine the Mukhiya or Sarpanch or any other independent witnesses in this case.
13. On the basis of the aforesaid evidence the Court has convicted the appellants. This Court will not examine whether the case as made out by the prosecution is correct. The prosecution case has to be examined on the following aspects:
Whether the witnesses i.e. PWs. 2, 4, 5 and 6 are truthful witnesses? Whether it can be believed that the occurrence took place in the manner alleged? Whether a Panchayati was held in this case and the doctor's evidence on the factum of rape.
14. Considering the first aspect as to whether the witnesses can be believed, this Court finds that PW 2, the husband of the victim lady states that he was married 7 or 8 months prior to the occurrence whereas PW 6 the mother-in-law states that Anita Devi was living with them for the past 10 years. PW 5 on the other hand supports PW 2 and states that the marriage took place 6 to 7 months prior to the occurrence. It appears that all three witnesses have given conflicting evidence and do not appear to be very truthful inasmuch that they can be a difference of a few years in stating the time of marriage but there cannot be such a vast difference that it should vary from 8 months to 10 years. Moreover this Court cannot understand why the witnesses had to lie with respect to the year or time of marriage of the victim lady, PW 7. In this context it may be said that pains have been taken by PW 2, the husband of the victim lady to indicate that he visited the place of occurrence on the night when the occurrence took place. However, he did not care to show the place of occurrence to the Investigating Officer or the so called Panches. This aspect is important in view of the fact that it has been stated by the victim herself that the place of occurrence was a brinjal field which was surrounded by 10 to 12 houses hardly 400 feet from the place of occurrence. It is expected that the lady would have raised some hue and cry while she was being dragged or carried from the field where she was found by the appellants to the place of occurrence which is at a distance of about 500 feet. One cannot loose sight of the fact that in a village when ladies go to ease themselves, they usually go in groups. It is seldom that one would find that a lady would travel by herself to ease herself in a village, the reason is that because there is no source of light once it gets dark and there is always danger of snakes and other insects in the field, unless there is a field just behind her house. It has therefore been argued the fact that Anita Devi had left her house for the purpose of easing herself in the late evening seems to be unbelievable however, this fact cannot be taken into consideration in isolation and the Court has to consider other circumstances.
15. Since the prosecution has come out with a specific case that a Panchayati was held on the next day at 9 or 10 in the morning, the time also being in dispute, as PW 6 has stated that it was held at 12 O'clock in the afternoon, the Court will look into the evidence regarding this aspect of the case. PWs. 2, 4, 5, 6 and 7 have all stated that a Panchayati was held at the house of the accused Lala Singh. This Court finds it quite odd that the persons who were chosen to be Panches in this case should be chosen especially as they no special qualification for being chosen as Panches in view of the fact that the Panches i.e. PWs. 4 and 5 accept that the Mukhiya and Sarpanch were present in the village and were not approached much less called at the time of holding the Panchayati. There is also contradiction with respect to the manner in which the said Panchayati has been held. From the tenor of the evidence, it appears that only Lala Singh was present at the time of holding the Panchayati although one of the witnesses said that all three appellants were present. It has also been stated that 10 to 20 people had gathered at the time when the Panchayati was held. However, PWs. 2, 4, 5, 6 and 7 have not been able to disclose the name of even one of the persons who were present at the time when the Panchayati was held. The evidence of the witnesses on this aspect becomes unbelievable for the reason (i) PW 2 states that his wife's statement was not taken at the time when the Panchayati was held. (ii) PW 4 states that he did not record the statements of any of the persons present during the Panchayati nor has he given any judgment with respect to the Panchayati. (iii) PWs. 4 and 5 both accepted that the Mukhiya and the Sarpanch were present in the village and they are competent to hold a Panchayati. (iv) PW 7 the victim lady states that the proceedings of the Panchayati were recorded in writing and she had signed on the statement made by her which has not been brought on record. (v) The victim lady states that she was not present at the time when the Panchayati was held and that the Mukhiya and the Sarpanch were informed regarding the Panchayat. The conflicting evidence that has come on this issue indicates that in fact it is difficult for this Court to hold that a Panchayati was held and this aspect of the case has been created to explain the delay in lodging of the First Information Report. In this context this Court will not examine the medical evidence in this case.
16. The doctor naturally did not find any sign of rape as the lady was examined after two days of the occurrence. However, the doctor has specifically stated 'if the lady of the above nature is subjected to forceful intercourse by three persons successfully, there would be vaginal injuries in the normal course, after examination, I was not--whether she was raped or not?'
17. In view of the evidence of the doctor, it cannot be said that the doctor was wrong in concluding that a lady who is raped by three persons would receive injuries on her private parts, back and other parts of her body. The only injury found by the doctor was an abrasion on the chest which is not connected to the gravity of the offence.
18. In this case it does seem improbable that the three persons unconnected with each other and also of varying ages should have go together to rape the lady in question. Deva Nand Singh at the time of occurrence was 13 years of age. It is hardly believable that he could have indulge in such an act along with Lala Singh who is aged 27 years and Upendra Singh who was 16 years at the time of occurrence.
19. The question that arises is what could be the reason for false implication. It appears from the evidence led on behalf of the witnesses that there appears to be a rivalry in the village between the Rajputs and Koeries and due to village politics the appellants have been made accused. Besides which it has been stated by PW 2 the husband of the informant that he had some enmity with Deva Nand Singh and alleges that Deva Nand Singh had assaulted him 2 to 3 years back. This witness is obviously not a truthful witness as 3 or 4 years prior to the occurrence Deva Nand Singh was hardly 9 to 10 years old. The evidence of Bipin Singh one of the Panches also disclosed that there was enmity between the father of appellant Lala Singh and this witness Bipin Singh as Bipin Singh had deposed in a case against Ram Swarup Singh father of Lala Singh and his associates.
20. Learned Counsel for the State submits that the motive is not strong enough for implicating the appellants in this case however, that there appear to be a reason for filing this case and the motive has to be tested along with the other material that has come on record which has been discussed above. Learned Counsel appearing on behalf of the State has also argued that in a case of this nature, the evidence of the victim lady should be treated as sacrosanct and believed in full. Undoubtedly the evidence of the prosecutrix is of importance and cannot be thrown away by the Court. However, the evidence has to be tested along with the other facts in this case. It is specifically stated that a Panchayat was held in which the appellants have accepted their guilt. The prosecution has failed to prove that a Panchayat was held before the First Information Report was lodged, and therefore, this Court finds that the evidence of prosecutrix has to be tested along with the entire gannets of facts which has been put up by the defence.
21. Having held that the appellants are not guilty for the offences under Section 376 of the Indian Penal Code, it is not necessary to pass any order with respect to the plea on behalf of Deva Nand Singh and Upendra Singh regarding their plea of being a juvenile/child on the date of the occurrence.
22. In the result this appeal is allowed, the order of conviction is set aside and the appellants are discharged from the liabilities of their bail bonds.