Hira Mahaldar vs The State Of Bihar on 30 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.701 of 2015
Arising Out of PS.Case No. -127 Year- 2011 Thana -RUPAULI District- PURNIA

Hira Mahaldar, Son of Jyotish Mahaldar, Resident of Village Kamp, P.S. Rupauli
(Mohanpur), District- Purnea.

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant : Mr. Bhola Prasad, Advocate.
For the Respondent : Mr. S.A. Ahmad, APP.

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT
Date: 30-11-2017

Heard Mr. Bhola Prasad, learned counsel for the

appellant and learned APP for the State.

2. Hira Mahaldar, the appellant has been convicted

under Section 376 of the Indian Penal Code vide judgment dated

31.08.2015 passed in Sessions Trial No. 444 of 2012/Trial No. 83 of

2015 by the learned 2nd Additional Sessions Judge, Purnea. By order

dated 04.09.2015, the appellant has been sentenced to undergo

rigorous imprisonment for ten years, to pay a fine of Rs. 50,000/- and

in default of payment of fine, to further suffer simple imprisonment

for three years. The trial court has also directed that out of the fine

amount Rs. 50,000/-, Rs. 25,000/- has to be given to the prosecutrix

for her rehabilitation.

3. A complaint was lodged by the prosecutrix
Patna High Court CR. APP (SJ) No.701 of 2015 dt.30-11-2017

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alleging that while she had gone to the maize field of one Darogi

Sharma, the appellant, with evil intention, came from behind and

dashed her on the ground. Without her consent, she was subjected to

sexual intercourse. The prosecutrix has also alleged that when she

started crying, she was told by the appellant that the incident should

not be reported to anybody and that he shall marry her later. Because

of such assurance of the appellant, the prosecutrix did not tell about

the occurrence to anybody at home. Later, it has been alleged that

taking advantage of the aforesaid situation, the appellant kept on

subjecting the prosecutrix to sexual intercourse and she ultimately

became pregnant. She was also pressurized for abortion but when she

refused, she was abused and assaulted. When the mother of the

prosecutrix protested, she too was threatened of dire consequences.

The aforesaid complaint of the prosecutrix was sent under Section

156(3) of the Cr.P.C. for institution of regular case whereafter

Mohanpur P.S. Case No. 127 of 2011 was registered against the

appellant for the offences under Sections 376 and 504 of the Indian

Penal Code.

4. The police after investigation submitted charge

sheet whereupon cognizance was taken and the case was committed to

the court of Sessions for trial.

5. The trial court, after examining eight witnesses on
Patna High Court CR. APP (SJ) No.701 of 2015 dt.30-11-2017

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behalf of the prosecution and none on behalf of the defence has

convicted and sentenced the appellant as aforesaid.

6. During the course of the trial, P.Ws. 1, 2, 4 and 5,

who are independent persons have not supported the prosecution

version. However, P.W. 6, the prosecutrix has completely supported

the prosecution case and has clearly stated that she was subjected to

sexual intercourse, firstly, in the maize filed of Darogi Sharma

without her consent but on the assurance of the appellant that he

would marry her, with her consent. Because of successive acts of rape

upon her, she had become pregnant. The prosecutix has also stated

that when she became pregnant for about three months, she was

pressurized by the appellant to get herself aborted. When she refused,

she was subjected to all kinds of pressure and she, her mother and

other family members were threatened and abused.

7. The mother of the prosecutrix has been examined

as P.W. 3 who has supported the prosecution version. She did not

know about the occurrence in the beginning but when she saw that

there were some bodily changes in the prosecutrix, she asked for an

explanation. Only then, she could realize that her daughter

(prosecutrix) is pregnant. The factum of rape and the prosecutrix

being pregnant has further been testified by the deposition of P.W. 7,

Dr. Poonam Prabha who had examined the prosecutrix. The P.W. 7
Patna High Court CR. APP (SJ) No.701 of 2015 dt.30-11-2017

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was of the view that there was no sign of rape at the time of

examination of the victim but the possibility of her having been raped

could not have been ruled out.

8. The age of the prosecutrix has been assessed to be

between 14-15 years.

9. The trial court, on taking into account that the

appellant did not agree for the DNA test of the child who was

delivered by the prosecutrix, came to the conclusion that the appellant

was guilty of the offence and hence convicted and sentenced him as

aforesaid.

10. Mr. Bhola Prasad, learned Advocate, in defence

of the appellant has submitted that none of the independent witnesses

have supported the prosecution version and the case stands supported

by only the prosecutrix and her mother, who have definite axe to grind

against the appellant.

11. He has further submitted that the appellant had

worked as a driver to one Manoj Gupta who had some kind of an

affair with the prosecutrix. Since the appellant had left the job at

Manoj Gupta’s place, he has falsely been implicated at the instance of

aforesaid Manoj Gupta by the prosecutrix for some monetary favour.

However, the aforesaid facts are not borne out by the records of the

case. The wife of the appellant had also lodged the case against the
Patna High Court CR. APP (SJ) No.701 of 2015 dt.30-11-2017

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prosecutrix and her mother vide Rupauli P.S. Case No. 214 of 2014

dated 07.10.2014 for the offences under Sections 302, 317 and 201 of

the Indian Penal Code alleging that both of them had killed the newly

born baby. In the aforesaid case, charge sheet has been submitted

against the prosecutrix and her mother P.W. 3 and cognizance also has

been taken.

12. This Court is of the view that the aforesaid facts

do not, in any way, mitigate the seriousness of the case against the

appellant.

13. No fault could be found with the judgment of the

trial court in convicting the appellant under Section 376 of the Indian

Penal Code. The conviction of the appellant under Section 376 of the

Indian Penal Code is therefore sustained and upheld.

14. However keeping into account the nature of the

accusation the circumstances under which the case was lodged, the

age of the appellant and the prosecutrix and other factors, it appears to

this Court that the sentence imposed upon the appellant is on the

harsher side. As such this Court deems it appropriate to modify the

sentence imposed upon the appellant to a period of seven years.

15. The sentence therefore, stands modified to the

extent indicated above. The appellant shall however, be required to

pay a fine of Rs. 50,000/- out of which Rs. 25,000/- shall be paid to
Patna High Court CR. APP (SJ) No.701 of 2015 dt.30-11-2017

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prosecutrix for her rehabilitation. In default of payment of fine, the

appellant shall further undergo simple imprisonment for one year.

16. The appeal is dismissed but the order of sentence

is modified to the extent indicated above. The period which the

appellant has undergone in custody shall be set off against the

substantive sentence.

17. A copy of the judgment be communicated to the

Superintendent of the concerned jail for information/record and

compliance.

(Ashutosh Kumar, J)

KKSINHA/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 01.12.2017
Transmission 01.12.2017
Date

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