Sita Ram Sahu Vs. State of Bihar (Now Jharkhand) - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - khatri, learned counsel appearing for the petitioner has mainly argued that in view of the statement of the victim sushila kumari herself in paragraph-12 of the evidence wherein she has admitted that after the first occurrence she used to go to the accused and accused used to have sexual intercourse with her with her consent and, therefore, his conviction under section 376, ipc was absolutely bad because it was a case of sexual relationship with consent of the victim. 7. i have carefully gone through the judgments of the trial court as well as of the appellant court and also the evidence of the prosecution witnesses.orderamareshwar sahay, j.1. the petitioners along-with two others namely, rudhu devi and ram prasad sahu were tried for the offences under sections 323, 366-a and 376 of the indian penal code. the petitioner sita ram sahu was convicted for committing the offence under section 376, ipc for committing rape on the minor sushila kumari, the daughter of the informant and was sentenced to undergo ri for a period of 7 years. he was further convicted for the offence under section 323, ipc but no separate sentence was passed for the said offence. the other co-accused rudhu devi was convicted for the offence under section 323, ipc and was sentenced to undergo ri for a period of six months. whereas the 3rd co-accused namely ram prasad sahu was convicted for the offence under section 323/114 of the ipc and was sentenced to undergo ri for a period of six months by the trial court by judgment dated 13.6.1997.2. the aforesaid judgment of conviction and sentence, passed by the trial court, was challenged by the convicts in appeal being criminal appeal no. 52/1997 before the sessions judge, gumla. the learned sessions judge by judgment dated 4.8.1997 affirmed the conviction and sentence passed against the petitioner and against the co-accused rudhu devi but he set aside the conviction and sentence passed against the 3rd co-accused namely, ram prasad sahu.3. this revision application has been filed only by the petitioner sita ram sahu challenging his conviction and sentence for the offence under sections 376 and 323 of the ipc.4. the prosecution case in short is that in the month of october, 1993 sushila kumari aged about 14-15 years, daughter of the informant, was mowing grass in jhariatand. at that time the petitioner came there caught hold of her and forcibly took her to the hedges near the mountain and then forcibly committed rape on her. after the rape the petitioner threatened the victim that if she disclosed the factum of rape to anybody she would loose her life. it is said that thereafter, the petitioner with promise to marry raped the victim several times due to which she became pregnant. in june, 1994 the fact was disclosed by the victim to her parent and then a pancnayari was held wherein the petitioner is said to have confessed his guilt. a panchnama was prepared but at the time of putting signature on the panchnama the petitioner is said to have fled away from that place. however, his father the other co-accused ram prasad sahu put his signature on the panchnama.5. the learned trial court, after considering the evidence of the eight prosecution witnesses, examined during trial and other materials on record, convicted the petitioner for the offence under sections 376 and 323 of the ipc as has already been stated herein above.6. mr. r.c. khatri, learned counsel appearing for the petitioner has mainly argued that in view of the statement of the victim sushila kumari herself in paragraph-12 of the evidence wherein she has admitted that after the first occurrence she used to go to the accused and accused used to have sexual intercourse with her with her consent and, therefore, his conviction under section 376, ipc was absolutely bad because it was a case of sexual relationship with consent of the victim.7. i have carefully gone through the judgments of the trial court as well as of the appellant court and also the evidence of the prosecution witnesses. it appears that pw 7 jena lakra medically examined the victim on 18.11.1995 and her age was assessed on that day to be 17-18 years. according to the prosecution the victim was forcibly raped in october, 1993, i.e, two years prior to the date on which the victim was medically examined by doctor pw 7 and, therefore, on the date of occurrence her age comes to about 15-16 years. therefore, apparently she was minor. even if it is said that after october, 1993 the petitioner was having sexual relationship with the victim on her consent, in my view the same was of no value as the victim was minor at that time and her consent was obtained with a false promise to marry. therefore, the submission of the learned counsel for the petitioner that it was a case of sexual relationship with consent is rejected.8. though no other points has been urged on behalf of the petitioner but even otherwise after going through the judgment of both the courts below, 1 find, on the basis of the materials on record, that the learned courts below have rightly convicted and sentenced the petitioner for the offence committed by him.9. accordingly, having found no merit in this application the same is dismissed. the petitioner, who is on bail, his bail bond is hereby cancelled and he is directed to surrender forthwith to serve out the sentence.

Judgment:
ORDER

Amareshwar Sahay, J.

1. The petitioners along-with two others namely, Rudhu Devi and Ram Prasad Sahu were tried for the offences under Sections 323, 366-A and 376 of the Indian Penal Code. The petitioner Sita Ram Sahu was convicted for committing the offence under Section 376, IPC for committing rape on the minor Sushila Kumari, the daughter of the informant and was sentenced to undergo RI for a period of 7 years. He was further convicted for the offence under Section 323, IPC but no separate sentence was passed for the said offence. The other co-accused Rudhu Devi was convicted for the offence under Section 323, IPC and was sentenced to undergo RI for a period of six months. Whereas the 3rd co-accused namely Ram Prasad Sahu was convicted for the offence under Section 323/114 of the IPC and was sentenced to undergo RI for a period of six months by the trial Court by judgment dated 13.6.1997.

2. The aforesaid judgment of conviction and sentence, passed by the trial Court, was challenged by the convicts in appeal being Criminal Appeal No. 52/1997 before the Sessions Judge, Gumla. The learned Sessions Judge by judgment dated 4.8.1997 affirmed the conviction and sentence passed against the petitioner and against the co-accused Rudhu Devi but he set aside the conviction and sentence passed against the 3rd co-accused namely, Ram Prasad Sahu.

3. This revision application has been filed only by the petitioner Sita Ram Sahu challenging his conviction and sentence for the offence under Sections 376 and 323 of the IPC.

4. The prosecution case in short is that in the month of October, 1993 Sushila Kumari aged about 14-15 years, daughter of the informant, was mowing grass in Jhariatand. At that time the petitioner came there caught hold of her and forcibly took her to the hedges near the mountain and then forcibly committed rape on her. After the rape the petitioner threatened the victim that if she disclosed the factum of rape to anybody she would loose her life. It is said that thereafter, the petitioner with promise to marry raped the victim several times due to which she became pregnant. In June, 1994 the fact was disclosed by the victim to her parent and then a pancnayari was held wherein the petitioner is said to have confessed his guilt. A panchnama was prepared but at the time of putting signature on the panchnama the petitioner is said to have fled away from that place. However, his father the other co-accused Ram Prasad Sahu put his signature on the panchnama.

5. The learned trial Court, after considering the evidence of the eight prosecution witnesses, examined during trial and other materials on record, convicted the petitioner for the offence under Sections 376 and 323 of the IPC as has already been stated herein above.

6. Mr. R.C. Khatri, learned Counsel appearing for the petitioner has mainly argued that in view of the statement of the victim Sushila Kumari herself in Paragraph-12 of the evidence wherein she has admitted that after the first occurrence she used to go to the accused and accused used to have sexual intercourse with her with her Consent and, therefore, his conviction under Section 376, IPC was absolutely bad because it was a case of sexual relationship with consent of the victim.

7. I have carefully gone through the judgments of the trial Court as well as of the appellant Court and also the evidence of the prosecution witnesses. It appears that PW 7 Jena Lakra medically examined the victim on 18.11.1995 and her age was assessed on that day to be 17-18 years. According to the prosecution the victim was forcibly raped in October, 1993, i.e, two years prior to the date on which the victim was medically examined by Doctor PW 7 and, therefore, on the date of occurrence her age comes to about 15-16 years. Therefore, apparently she was minor. Even if it is said that after October, 1993 the petitioner was having sexual relationship with the victim on her consent, in my view the same was of no value as the victim was minor at that time and her consent was obtained with a false promise to marry. Therefore, the submission of the learned counsel for the petitioner that it was a case of sexual relationship with consent is rejected.

8. Though no other points has been urged on behalf of the petitioner but even otherwise after going through the judgment of both the Courts below, 1 find, on the basis of the materials on record, that the learned Courts below have rightly convicted and sentenced the petitioner for the offence committed by him.

9. Accordingly, having found no merit in this application the same is dismissed. The petitioner, who is on bail, his bail bond is hereby cancelled and he is directed to surrender forthwith to serve out the sentence.