Arun Yadav, Vs. the State of Bihar and ors. - Court Judgment

Excerpt:
- - 3 as well as p. 6. the learned trial court has discussed the evidence in correct perspective and also rightly held that considering the nature of the offence which can be committed on the prosecutrix only from close quarters, her claim of identification cannot be doubted because she knew the accused persons well from before. but they have not been so released because the copy of the judgment and order sent to the jail authority is defective and does not clearly show that both the sentences are to run concurrently. shiva kirti singh, j.1. this appeal is directed against the judgment dated 20th june. 2001 and order dated 21st.june. 2001 passed by learned 1st. additional sessions judge special judge. saharsa in g.r. case no. 737/1999 arising out of salkhua p.s. case no. 62 of 1999 whereby all the three appellants have been convicted for the offence under section 376 of the i.p.c. and awarded rigorous imprisonment for ten years each. they have also been convicted for the offence under section 3(i)(xi) and (xii) of the scheduled caste and scheduled tribes (prevention of atrocities) act and awarded rigorous imprisonment for one year each. both the sentences have been ordered to run concurrently.2. the occurrence in question took place in the mid-night of 6-7th july 1999 inside the residence of manju devi where her niece tejrani devi (p.w.4) the prosecutrix was also residing. the f.i.r. was lodged on the information of the prosecutrix recorded at salkhua police station on 7-7-1999 at 5.30 p.m. the fardbeyan discloses that the prosecutrix has been residing with her marai maniu devi in village baldahi in a basa where some yadavs of village salkhua goath are also residing after constructing their basa. in the night of 6-7th july, 1999 the prosecutrix slept in the basa along with maniu devi after having food. there was no door in the said basa. at about 12 in the night when somebody tried to catch hold of the prosecutrix. she woke up. she found the three appellants present there. she succeeded in awakening maniu with her cries but mukesh yadav pointed a (country made fire arm) 3 nought at maniu and forced her to keep quiet. on hearing the cries of prosecutrix culten yadav (p.w.3) arrived and wanted to chastise the appellant but he was assaulted by mukesh yadav with the butt of a 3 nought on his nose and knee. after receiving injuries culetan was forced to escape because of firing of a shot by arun yadav. thereafter all the three appellants forced maniu devi to so to another room and at the point of fire arm the prosecutrix was raped by all the three appellants one after another. after giving her threat; not to disclose the occurrence the appellants went away.3. the aforesaid fardbeyan led to salkhua p.s. case no. 62/99 which was investigated by shri rum sarovar rai (p.w.7). sub-inspector of police. he prepared injury report of the prosecutrix and sent her to sadar hospital for medical examination which was conducted by dr. rita singh (p.w.6), he also prepared injury report of guletan yadav and sent him for examination by medical officer. salkhua. after recording evidence of witnesses and completing investigation he submitted charge sheet against all the three appellants. on that basis cognizance was taken and the case was committed to the special court competent to try offences under the s.c.s.t.(prevention of atrocities) act. the appellants pleaded not guilty to the charges leading to their trial and ultimately their conviction by the impugned judgment and order.4. the prosecution has examined altogether ten witnesses in support of its case. as noticed earlier p.w.4. teirani devi is the victim while p.w.3. gulten yadav and p.w.5 manju devi are eye witnesses of the alleged occurrence. p.w.6. rita singh is the doctor who had examined the victim on being referred by police. p.w.7. ram sarovar rai is the i.o. of this case. p.w.8. dr. raghubansh mani pandey is the doctor who had examined culten yadav and found injuries on his person. p.w.9 and p.w.10 are formal witnesses who have proved some documents. p.w.1. sivaram yadav and p.w.2. ratan yadav have turned hostile and are of no help to the prosecution.5. on going through the evidence of prosecutrix (p.w.4) it is found that she has withstood the test of cross-examination successfully and has supported the prosecution case in all material aspects. she has named the three appellants as the persons who committed rape upon her and she has alleged that they committed such henious offence on her because she belongs to mushar caste which is a scheduled caste. the doctor. rita singh has proved the medical reports which show the age of the prosecutrix to be around 17 years. although she found no positive sign of rape but she has opined that commission of rape on the prosecutrix. who was a married lady, cannot be ruled out. at the relevant time the presence of p.w.3 who allegedly received injuries in course of the occurrence is supported by injury report proved by p.w.8. this witness i.e. p.w.3 as well as p.w.4. teirani devi have also supported the prosecution case in all material aspects. however, they have for some reason tried to help appellant bhopal yadav by avoiding to name him in their examination-in-chief, however, they have also stated that the offence was committed by three persons and out of those three they have named appellants arun yadav and mukesh yadav. from their cross-examination it is apparent that they have seen the occurrence in which three persons committed rape upon the prosecutrix and their depositions amply corroborate the prosecution case. there is nothing on record to show that the prosecutrix has named bhopal yadav as one of the accused who committed rape on account of any enmity or similar reasons. she has identified all the tree appellants in dock also.6. the learned trial court has discussed the evidence in correct perspective and also rightly held that considering the nature of the offence which can be committed on the prosecutrix only from close quarters, her claim of identification cannot be doubted because she knew the accused persons well from before. they could be easily identified by her even in absence of any source of light, because she had opportunity to see them from very close distance in course of commission of the offence of rape.7. learned counsel appearing for the appellants could not urge any substantial point to doubt the prosecution case or to hold the judgment under appeal fit to interfered with. he submitted that all the appellants are young persons and the punishment of ten years rigorous imprisonment for the offence under section 376 i.p.c. was excessive. considering the nature of the offence which is in fact a gang rape. it is not deemed reasonable to interfere with the sentences of ten years r.i. the sentence awarded for the offence under the scheduled caste/scheduled tribe (prevention of atrocities) act is only for one year r.i. and that also requires no interference.8. on behalf of appellants it was lastly submitted that the appellants have remained in custody for about two years i.e. from 21-7-90 to 21-6-2001 as under trial prisoners and since trial they have remained in actual custody for more than 6 years as convict and by now in view of permissible remission under law. they should have been released, on account of completion of ten years r.i. but they have not been so released because the copy of the judgment and order sent to the jail authority is defective and does not clearly show that both the sentences are to run concurrently. this court has no mean of verifying and finding out whether the copy of the -judgment and order under appeal sent to the jail authority suffers from any defect or not. however, in the interest of -justice it is clarified that both the sentences i.e. sence under section 376 i. p.o. for ten years r.i. and sentence of one year r.i. under the provisions of the scheduled caste/scheduled tribe (prevention of atrocities) act awarded to the three appellants are to run concurrently. if on grant of permissible remission to the appellants it is found that they have completed the period of ten years r.i. under law then the jail authority should not have any difficulty in releasing the appellants on the ground of having completed the period of sentence awarded to the appellants.9. with the above clarification the appeal stands dismissed.

Judgment:

Shiva Kirti Singh, J.

1. This appeal is directed against the judgment dated 20th June. 2001 and order dated 21st.June. 2001 passed by learned 1st. Additional Sessions Judge Special Judge. Saharsa in G.R. Case No. 737/1999 arising out of Salkhua P.S. Case No. 62 of 1999 whereby all the three appellants have been convicted for the offence under Section 376 of the I.P.C. and awarded rigorous imprisonment for ten years each. They have also been convicted for the offence under Section 3(i)(xi) and (xii) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act and awarded rigorous imprisonment for one year each. Both the sentences have been ordered to run concurrently.

2. The occurrence in question took place in the mid-night of 6-7th July 1999 inside the residence of Manju Devi where her niece Tejrani Devi (P.W.4) the prosecutrix was also residing. The F.I.R. was lodged on the information of the prosecutrix recorded at Salkhua police station on 7-7-1999 at 5.30 P.M. The fardbeyan discloses that the prosecutrix has been residing with her Marai Maniu Devi in village Baldahi in a Basa where some Yadavs of village Salkhua Goath are also residing after constructing their Basa. In the night of 6-7th July, 1999 the prosecutrix slept in the Basa along with Maniu Devi after having food. There was no door in the said Basa. At about 12 in the night when somebody tried to catch hold of the prosecutrix. She woke up. She found the three appellants present there. She succeeded in awakening Maniu with her cries but Mukesh Yadav pointed a (country made fire arm) 3 nought at Maniu and forced her to keep quiet. On hearing the cries of prosecutrix Culten Yadav (P.W.3) arrived and wanted to chastise the appellant but he was assaulted by Mukesh Yadav with the butt of a 3 nought on his nose and knee. After receiving injuries Culetan was forced to escape because of firing of a shot by Arun Yadav. Thereafter all the three appellants forced Maniu Devi to so to another room and at the point of fire arm the prosecutrix was raped by all the three appellants one after another. After giving her threat; not to disclose the occurrence the appellants went away.

3. The aforesaid Fardbeyan led to Salkhua P.S. Case No. 62/99 which was investigated by Shri Rum Sarovar Rai (P.W.7). Sub-Inspector of Police. He prepared injury report of the prosecutrix and sent her to Sadar Hospital for medical examination which was conducted by Dr. Rita Singh (P.W.6), He also prepared injury report of Guletan Yadav and sent him for examination by Medical Officer. Salkhua. After recording evidence of witnesses and completing investigation he submitted charge sheet against all the three appellants. On that basis cognizance was taken and the case was committed to the Special Court competent to try offences under the S.C.S.T.(Prevention of Atrocities) Act. The appellants pleaded not guilty to the charges leading to their trial and ultimately their conviction by the impugned judgment and order.

4. The prosecution has examined altogether ten witnesses in support of its case. As noticed earlier P.W.4. Teirani Devi is the victim while P.W.3. Gulten yadav and P.W.5 Manju Devi are eye witnesses of the alleged occurrence. P.W.6. Rita Singh is the doctor who had examined the victim on being referred by police. P.W.7. Ram Sarovar Rai is the I.O. of this case. P.W.8. Dr. Raghubansh Mani Pandey is the doctor who had examined Culten Yadav and found injuries on his person. P.W.9 and P.W.10 are formal witnesses who have proved some documents. P.W.1. Sivaram Yadav and P.W.2. Ratan Yadav have turned hostile and are of no help to the prosecution.

5. On going through the evidence of prosecutrix (P.W.4) it is found that she has withstood the test of cross-examination successfully and has supported the prosecution case in all material aspects. She has named the three appellants as the persons who committed rape upon her and she has alleged that they committed such henious offence on her because she belongs to Mushar caste which is a scheduled caste. The doctor. Rita Singh has proved the medical reports which show the age of the prosecutrix to be around 17 years. Although she found no positive sign of rape but she has opined that commission of rape on the prosecutrix. Who was a married lady, cannot be ruled out. At the relevant time the presence of P.W.3 who allegedly received injuries in course of the occurrence is supported by injury report proved by P.W.8. This witness i.e. P.W.3 as well as P.W.4. Teirani Devi have also supported the prosecution case in all material aspects. However, they have for some reason tried to help appellant Bhopal Yadav by avoiding to name him in their examination-in-chief, However, they have also stated that the offence was committed by three persons and out of those three they have named appellants Arun Yadav and Mukesh Yadav. From their cross-examination it is apparent that they have seen the occurrence in which three persons committed rape upon the prosecutrix and their depositions amply corroborate the prosecution case. There is nothing on record to show that the prosecutrix has named Bhopal Yadav as one of the accused who committed rape on account of any enmity or similar reasons. She has identified all the tree appellants in dock also.

6. The learned trial court has discussed the evidence in correct perspective and also rightly held that considering the nature of the offence which can be committed on the prosecutrix only from close quarters, her claim of identification cannot be doubted because she knew the accused persons well from before. They could be easily identified by her even in absence of any source of light, because she had opportunity to see them from very close distance in course of commission of the offence of rape.

7. Learned Counsel appearing for the appellants could not urge any substantial point to doubt the prosecution case or to hold the judgment under appeal fit to interfered with. He submitted that all the appellants are young persons and the punishment of ten years rigorous imprisonment for the offence under Section 376 I.P.C. was excessive. Considering the nature of the offence which is in fact a gang rape. it is not deemed reasonable to interfere with the sentences of ten years R.I. The sentence awarded for the offence under the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act is only for one year R.I. and that also requires no interference.

8. On behalf of appellants it was lastly submitted that the appellants have remained in custody for about two years i.e. from 21-7-90 to 21-6-2001 as under trial prisoners and since trial they have remained in actual custody for more than 6 years as convict and by now in view of permissible remission under law. They should have been released, on account of completion of ten years R.I. but they have not been so released because the COPY of the judgment and order sent to the Jail Authority is defective and does not clearly show that both the sentences are to run concurrently. This Court has no mean of verifying and finding out whether the COPY of the -Judgment and order under appeal sent to the Jail Authority suffers from any defect or not. However, in the interest of -Justice it is clarified that both the sentences i.e. sence under Section 376 I. P.O. for ten years R.I. and sentence of one year R.I. under the provisions of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act awarded to the three appellants are to run concurrently. If on grant of permissible remission to the appellants it is found that they have completed the period of ten years R.I. under law then the Jail Authority should not have any difficulty in releasing the appellants on the ground of having completed the period of sentence awarded to the appellants.

9. With the above clarification the appeal stands dismissed.