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1991 Supreme(Pat) 447
PATNA HIGH COURT
S.B.Sinha and D.Sinha JJ.
Biren Mukhi
Versus
State Of Bihar
Criminal Appeal No. 142 of 1987 ;
Decided On : NOVEMBER 2, 1991
The main legal point established in the judgment is the application of Section 376/511 of the Indian Penal Code to alter the conviction and determine the punishment for the attempted offence of rape.
Headnote:
Section 376 - Rape - Indian Penal Code - Section 375, Section 376, Section 511
Fact of the Case:
The appellant was convicted for committing rape on a minor girl and sentenced to four years of rigorous imprisonment. The court admitted the appeal and directed issuance of notice to show cause upon the appellant for possible enhancement of the sentence.
Finding of the Court:
The court found the prosecution had proved its case beyond all shadow of doubt, despite contentions raised by the appellant's counsel regarding non-examination of investigating officer, delay in lodging the first information report, lack of independent witnesses, and absence of definite opinion on rape from the doctor. The court altered the conviction to an offence under Section 376/511 of the Indian Penal Code and enhanced the sentence to five years of rigorous imprisonment and a fine of Rs. 2000.
Issues: The issues included non-examination of investigating officer, delay in lodging the first information report, lack of independent witnesses, absence of definite opinion on rape, and the possibility of altering the conviction and enhancing the sentence.
Ratio Decidendi: The court considered the medical evidence, the victim's testimony, and the circumstances surrounding the case to conclude that the appellant was guilty of an offence under Section 376/511 of the Indian Penal Code. The court also applied Section 511 to determine the punishment for the attempted offence.
Final Decision: The appeal was dismissed, and the appellant's conviction was altered to an offence under Section 376/511 of the Indian Penal Code. The appellant was sentenced to five years of rigorous imprisonment and a fine of Rs. 2000, with a direction to pay the fine to the victim.
S.B.SINHA, J.
1. The sole appellant Biren Mukhi has been convicted by the impugned judgment, dated 18-7-1987 passed by Sri Paras Nath Singh Ist Additional Sessions Judge, Jamshedpur in Sessions Trial No. 489 of 1985, for commission of an offence under Section 376 of the Indian Penal Code for committing rape on Dayamanty at her house situated at Bhalubasa Harijan Basti, P. S. Sitaramdera, District Singhbhum on 2-10-1984 and has been sentenced to undergo rigorous imprisonment for four years.
2. By an order, dated 24-7-1987 a learned single Judge of this Court while admitting the appeal also directed issuance of notice to show cause upon the appellant, as to why, in the event of the success of the prosecution case, the sentence imposed against him shall not be enhanced.
In this situation, this appeal has been placed before this Bench for hearing.
3. The fact of the matter lies in a very narrow compass.
4. A first information report was lodged at about 13.45 hours on 3-10-1984 at Tata Main Hospital by Lila Mukhi (P.W. 4) alleging inter alid therein that on 2-10-1984 while she and her husband (Sahadeo Mukhi) had gone out of their house leaving behind their son Romesh (P.W. 3) and three daughters including the victim girl namely, Dayamanti (P.W. 6) at their residence being Qr. No. 177, Harijan Basti, Bhalubasa, P. S. Sitaramdera.
5. At the relevant time P.W. 3 had gone out of the house for a bath and at about 11.30 A.M. when the daughters of the informant were alone in their house the appellant came there, caught hold of the hands of victim, tied up her hands with a dhoti, pressed her mouth with his hands and fell her on a palang and thereafter he stripped off her panty shirt and criminally assaulted her.
6. While P.W. 6 started crying, Romesh (P.W. 3) came back and seeing him the appellant fled away.
7. Allegedly when the informant and her husband returned home they came to learn the aforementioned occurrence and took her to Tata Main Hospital.
8. It appears that on the same day Dayamanty was examined by Dr. R. Tata, Associate Specialist Gyenechology of Tata Main Hospital at about 6.30 P.M.
9. It is alleged that the doctor of the Tata Main Hospital advised them to admit the victim in the hospital but Sahadeo Mukhi (husband of the informant) preferred to take her back to house and to admit her in the hospital of an occasion arises therefor.
On 3-10-1984 when the victim complained of pain in her private parts, the informant again took her to Tata Main Hospital for treatment and got her admitted.
10. The fardbeyan of P.W. 4 (Lila Devi) was recorded by A.S.I. at Tata Main Hospital at about 12 noon on 3-10-1884.
11. In support of its ease the prosecution examined seven witnesses. P.W. 1 Dr. Mrs. R. Tata is Associate Specialist in Gyenechology of the Tata Main Hospital. She stated in her deposition that on 2-10-1984 at about 6.30 P.M. she examined P.W. 6 and she found the following injuries :
"Imflamation of hymen. Slight brownish stains on underwear. Hymen intact, but inflamed and tendey. She was aged about 8 years. Mark of identification was pigmentation on skin of epigastrium 1" x 1/2". The injury report prepared by her was marked an Ext. 1.
12. In cross-examination she stated that she had not given any opinion about the rape in her report.
She further stated that she got the stains examined by a pathologist but the original report of the pathologist was not on the record.
13. P.W. 2 is Sahadeo Mukhi. He supported the prosecution case and categorically stated that when he and her wife came back they learnt about the entire occurrence from P.W. 6.
He stated that he informed the Mukhia (Kurtul Mukhi) of the area who did not take down his complaint in writing and stated that he was busy in puja. He allegedly waited for the Mukhia (Kurtul Mukhi) till about 3 P.M. and as the condition of his daughter was serious he took her to the Tata Main Hospital.
He further stated that he went to the Sitaramdera P. S. at about 11.30 A.M., on th
