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2007 DIGILAW 6 (PAT)

Dharmendra Kumar v. State Of Bihar

2007-01-03

DHARNIDHAR JHA, SHIVA KIRTI SINGH

body2007
Judgment Shiva Kirti Singh and Dharnidhar Jha JJ. 1. The sole appellant Dharmendra Kumar was tried by the learned Additional Sessions Judge, 4th Court, Patna, in Sessions Trial No. 807/2000 for a charge u/s. 376 I.P.C. and by the judgment and order of conviction dated the 22nd day of September, 2004 was found guilty of committing the above offence and was directed to undergo Rigorous Imprisonment for life as also to pay a fine of Rs. 10,000/-. The learned Judge directed, in case of non-payment of the fine of Rs. 10,000/-, that the appellant shall suffer another term of rigorous imprisonment of one year. The above judgment and order of conviction is appealed against through the present appeal. 2. The prosecution story emanates from Ext. 3, the fardbeyan of P.W. 4 who happens to be the father of the victim and on which basis the F.I.R. of Digha P.S. Case No. 167 of 1999 under Ss. 376 and 342 of the I.P.C. was drawn up by P.W. No. 8, namely, S.I. Tarni Prasad Yadav. It is stated by the informant that his mother, suffering from Cancer, was advised saline dripping by a particular doctor named in the Fardbeyan and he remained busy in arranging the treatment on 10.11.99 in the night after he had returned from Patna. In the next morning, i.e., on 11.11.99, his wife P.W. 3 took him to the roof-top of his house and divulged to him that at about 6 p.m. in the previous evening the appellant had lured away the victim, daughter of P.W. 3 and P.W. 4, aged about eight years, on the pretext of being fed with sweets. Subsequently, the little girl returned and narrated to her mother that she was taken by the appellant to a house under construction in Fair Field Colony and was sexually assaulted. 3. The informant stated in Ext. 3 that he, having learnt about the acts of the appellant, stated the facts to his cousin Indradeo ( P.W. 2), Sheo Nandan Paswan (not examined), Md. Shafique (P.W. 7) and others on which the appellant was called and questioned. It is stated that the appellant confessed to his guilt before the abovenamed persons and he was ostracised from the community by the Panchas who held the Panchayati in the evening on 11.11.99. Shafique (P.W. 7) and others on which the appellant was called and questioned. It is stated that the appellant confessed to his guilt before the abovenamed persons and he was ostracised from the community by the Panchas who held the Panchayati in the evening on 11.11.99. The informant stated that he was still making up his mind about initiating a case when the police reached and recorded Ext. 3, the fardbeyan. 4. P.W. 8 S.I. Tarni Pd. Yadav got the F.I.R. recorded through S.I. Mithilanand Upadhyay and on return from the place-of-occurrence-village to the police station, got the F.I.R. drawn up by literate constable, namely, Raj Kumar Singh. The F.I.R. has been marked Ext. 4. Thereafter, P.W. 8 directed P.W. 9 S.I. Kashi Nath Mishra to investigate into the offence. 5. S.I. Kashi Nath Mishra, P.W. 9 came to the place of occurrence-village and recorded the further statement of the informant, the statement of the victim and other witnesses and also seized the undergarment of the victim by preparing a seizure memo, Ext. 5. He, thereafter, inspected the place of occurrence and after close of the investigation sent up the present appellant for trial. 6. The defence of the appellant does not appear clearly indicated to the Court in his statement u/s. 313 Cr.P.C. but having perused the evidence of different witnesses, specially the cross-examination of the witnesses what we find is that it is a case of complete denial of having committed the offence as appears from paragraph 11 of P.W. 4, the informant as also from paragraph 5 of evidence of P.W. 5. 7. The prosecution examined as many as nine witnesses including S.I. Tarni Prasad Yadav who drew up the F.I.R. As we have pointed out above the informant of thp case was examined as P.W. 4 and his wife was examined as P.W. 3. The victim was examined as P.W. 5. Three persons who claimed having participated in the Panchayati in which the appellant confessed to his guilt are P.W. 1 Subhash Prasad, P.W. 2 Indradeo Prasad Mehta and P.W. 7 Md. Shafique. P.W. 6 Dr. Bibhashini Prasad is the Medical Officer who was on the relevant date posted in Sub-Divisional Hospital, Danapur and who examined the victim on 12.11.99 and issued medical report Ext. 2. The defence did not examine any wit-ness, nor did it tender any documentary evidence. 8. Shafique. P.W. 6 Dr. Bibhashini Prasad is the Medical Officer who was on the relevant date posted in Sub-Divisional Hospital, Danapur and who examined the victim on 12.11.99 and issued medical report Ext. 2. The defence did not examine any wit-ness, nor did it tender any documentary evidence. 8. As generally appears in such type of cases, the victim has supported the case and she appears the only witness to the occurrence. She has stated that she was sitting at her Darwaza. The appellant, who was her class teacher in Nab Jyoti Academy, came there at about 6 P.M. At that particular moment she was playing. The appellant wanted the victim to accompany him so that he could feed sweets to her. The victim further states that she was taken to a house which was under construction and after unclothing her the appellant committed rape upon her. When the victim cried out the appellant fled away from there. The victim came back weeping to her mother, narrated to her the tale of her woes and the story was narrated to her father by her mother the next morning. On consideration of the cross-examination part of the victim, P.W. 5 we could not find out any infirmity in her evidence, rather from the evidence in cross-examination in para 4 of P.W. 5 we find as to what could be the reason for her to cry out. The victim stated that she was completely over powered and was under the clutches of the appellant who continued committing rape upon her in spite of the victim crying out. 9. P.W. 3, the mother of the victim was the next important witness who appears to us telling the truth. There are many reasons to accept her evidence and to act upon it, the first being that she was the mother of a little girl aged about eight years on the date of occurrence. The second reason which has weighed with us was that no mother or for that matter the father like P.W. 4 would fasten a false charge of rape upon any person when the daughter is so small a child. The second reason which has weighed with us was that no mother or for that matter the father like P.W. 4 would fasten a false charge of rape upon any person when the daughter is so small a child. The third reason which we could confront through the records was that there was not an iota of evidence, not even in the form of suggestion, that there was any enmity between the parties of such quality and depth as would impel the parents of the victim to tutor her to narrate the false story which could be transplanted in the mind of the little child. An attempt appears made during the cross-examination of P.W. 4 that there was some dispute between the appellant with his younger brother regarding some property but that appears a half-hearted effort by the defence because even suggestion could not be of such weight and force as to really make out a story as was attempted to be made by the defence. It was suggested that the appellant and his brother might have some land dispute and P.W. 4 wanted to grab the land of the appellant and his younger brother, but we find that if we could act upon such suggestion we would have wanted some heavier and compelling background of litigation or differences. Those are completely absent from the records of the present case. 10. Coming back to the evidence of P.W. 3, the mother of the victim, what she stated is that while she was sitting at her Darwaza, her little daughter was playing in the courtyard when this appellant took her daughter and after one and half hours the child came weeping to tell her mother as to how the appellant raped her. She has given a good reason as to why she did not divulge the story in the very evening of the occurrence. The reason is the same which we find in the fardbeyan and it is also pointed out by P.W. 4 the informant that his mother was critically ill that evening and it required immediate medical attention to be given to the old lady and, as such, the informant rushed to a doctor and saline dripping was administered to her ailing old mother. Both P.Ws. Both P.Ws. 3 and 4 have stated that P.W. 4 remained busy in getting the old lady treated and as such, P.W. 3 could not tell the story to P. W. 4. 11. P.Ws. 1, 2 and 7 have also stated that there was an "offence of rape committed upon the victim. They have further stated that after that there was a panchayati convened at the Darwaza of P.W. 7 who was a retired Manager of Bata India and appears commanding sufficient respect in the locality. P.W. 7 has stated that when he was contacted by P.Ws. 1, 2 and 4 and was told the story that the appellant had committed rape upon the victim, he wanted the matter to be hushed up at the village level and, accordingly, called the father of the appellant and appellant himself and accordingly the appellant and his father undertook that the same act shall never be repeated again. This appears stated by P.W. 1 in paragraph 1. This statement gets unfolded in the cross-examination as regards the details of the occurrence. P.W. 7 stated that the offence of rape was committed on 10.11.99 and he was informed about the occurrence on the next day. P.W. 7 stated that he reasoned with both the sides that they should reconcile and live together as good neighbours. These facts have been corroborated, we have pointed out, by P.Ws. 1 and 4. 12. There was some criticism of some part of the evidence of P.Ws. 1 and 4 as regards the factum of panchayati and the police action. The first criticism which was levelled before us was that there was some conflict between the evidence of P.Ws. 1 and 4 as regards the narration of the factum of the incident. It was pointed out that P.W. 1 in paragraph 5 stated that the victim stated about the occurrence in presence of two witnesses whereas P.W. 4 does not state like that, rather he says that he learnt about the incident from his wife P.W. 3. It was further, contended that P.W. 3 also says the same fact. Thus, it was pointed out that P.W. 1 could not be a reliable witness. 13. We are not concerned with what the victim said to whom. We have treated the evidence of P.Ws. 1, 3 and 7 as on the point of panchayati part of the story. It was further, contended that P.W. 3 also says the same fact. Thus, it was pointed out that P.W. 1 could not be a reliable witness. 13. We are not concerned with what the victim said to whom. We have treated the evidence of P.Ws. 1, 3 and 7 as on the point of panchayati part of the story. They were never witnesses to the occurrence, they were never witnesses who claimed that P.W. 3 had initially narrated anything to any of them. The prosecution is very much confined to the story being revealed by the victim, firstly, to her mother and through the mother to the informant, the father of the victim. So, it appears of no substance to us as to who is contradicting as regards narration of the victim. Moreover, after having gone through the evidence of the abovenoted witnesses we could not come across any part of the evidence even challenging the veracity of the prosecution story. 14. The most important contention which was raised before us was on two pointsfirstly, the recording of the fardbeyan and drawing up of F.I.R. by P.W. 8 and the evidence on that part of the investigation of P.W. 9 and, secondly, the facts not constituting an offence of rape. The second contention regarding the constitution of the offence of rape was made on the ground that even accepting the evidence to be true in its totality it could be only an attempt and not an offence of rape. Three citations were placed before us in support of the above contention, Aman Kumar V/s. State of Haryana, 2004 4 SCC 379 , Koppula Venkat Rao V/s. State of A.P., 2004 3 SCC 602 and, lastly, Dinesh alias Buddha V/s. State of Rajasthan, 2006 3 SCC 771 . 15. We first want to examine the first contention regarding the procedural error in drawing up of the F.I.R. Section 154 of the Code of Criminal Procedure is the relevant provision under which the F.I.R. in respect of a cognizable case is lodged. If one considers the provision con- tained in Section 154 Cr.P.C. one could very easily find that an information relat- ing to the commission of a cognizable offence is the First Information Report. It would further be revealed from the above provision that the information could be given either orally or in writing. If one considers the provision con- tained in Section 154 Cr.P.C. one could very easily find that an information relat- ing to the commission of a cognizable offence is the First Information Report. It would further be revealed from the above provision that the information could be given either orally or in writing. If it is given orally then the information has to be reduced to writing by the Officer Incharge himself or under his direction by anyone in the Police Station. It it is written either by the Officer Incharge or by any Officer on his direction then in that case the document has to be read over to the informant. This is the procedure set down by Section 154 of the Code of Criminal Procedure as regards the F.I.R. Now, coming to the evidence on record what we find is P.W. 8 reached the place of occurrence village on 11.11.99 and S.I. Mithilanand Upadhyay recorded the statement of the informant at his direction. S.I. Tarni Prasad Yadav was the Officer Incharge of Digha Police Station on the particular date. His evidence further reveals that he came back to the police station and directed his literate constable Raj Kumar Singh to draw up the F.I.R. and when the F.I.R. was drawn up he signed the document. His evidence would tell us that after drawing up of F.I.R. as well he had signed it. How the procedural error was pointed, it was on the basis of evidence of P.W. 9 S.I. Kashi Nath Mishra who stated that S.I. Tarni Prasad Yadav had written the fardbeyan, Ext. 3 of the informant and after instituting the case directed him to investigate the case. It was contended that the evidence of P.W. 8 and that of P.W. 9 does not go hand in hand. After having gone through the evidence of P.W. 8 in paragraphs 1 and 7 and that of P.W. 9 we do not find any inconsistency or any illegality which would go t the very root of the Fardbeyan and F.I.R. The fardbeyan is equally the F.I.R. and it could have been drawn up by S.I. Tarni Prasad Yadav or by any person on his direction. S.I. Mithilanand Upadhyay drew up F.I.R. at the direction of P.W. 8. The F.I.R. was drawn up at his direction by the literate constable. S.I. Mithilanand Upadhyay drew up F.I.R. at the direction of P.W. 8. The F.I.R. was drawn up at his direction by the literate constable. So, we do not find any irregularity much less any illegality in the documents. 16. Coining to the point that no offence of rape is made out, the Chief contention was that there was complete lack of oral evidence that indeed there was any penetration much less of telling us ejaculation of semen during the course of commission of rape. It was further pointed out that the evidence of P.W. 6 Dr. Bibhashini Prasad could not also lead us to an inference that indeed there was a penetration. At best it could be a case either of preparation or of attempt it was contended. Out of the three citations which we have been referred to, We propose to rely upon one of the citations placed be-fore us to point out as to how could the evidence of penetration be read if It is available to the Court in a given case according to the observation of the Apex Court in (2004)4 S.C.C. 379 . Before we do that we could better point out that the evidence of penetration could be of two types. One could read oral evidence in which one could find the victim saying as to how she was raped. The other source could be the medical evidence. The medi- cal person could, while narrating the result of the examination of the victim, could tell the Court as to which part of the private part of the victim lady was found in what condition. There might not be any external finding by the medical person as regards medical evidence in support of damage to lady but there may be in such cases some internal damages detected by the medical person which could clearly and sufficiently help in rendering a finding that there was indeed a penetration. 17. We want in the above light of our discussions to read the evidence of P.W. 6 Dr. Bibhashini Prasad. We do not want to extract the whole of her evidence but simply want to read para 6 of P.W. 6 who stated that on examination of the genitalia of the victim no mark of injury was revealed. No foreign hair or any foreign body was found in her private part. Bibhashini Prasad. We do not want to extract the whole of her evidence but simply want to read para 6 of P.W. 6 who stated that on examination of the genitalia of the victim no mark of injury was revealed. No foreign hair or any foreign body was found in her private part. Vagina admitted only the tip of a finger. There was an old but painful hymenal tear. To us it appeared sufficient evidence to suggest that there was penetration sufficient to constitute an offence. 18. However, learned counsel appearing for the appellant very stressfully wanted to impress upon us that it was an old rupture and that could not be co-related to the offence committed by the appellant. The stress was more on the old tear. The contention, to us, appears not acceptable on many grounds. Firstly, the victim was examined on 12.11.99 at 12.30 P.M., i.e., after about 42 hrs. or above that period. Secondly, the doctor in para 3 at page 38 of the Paper Book stated that if a victim of rape was produced for medical examination before a doctor after two days of the occurrence then many signs of rape could disappear. We have pointed out the period after which the victim was produced for her medical examination. We have also noted down the evidence of P.W. 6 regarding the tear which was old but one must not lose sight of the fact that it was still painful. Old in medical parlance could be of two hours, could be of two days or of two months. Medical science cannot be confined to exactitude and judgment could not be passed taking it as conclusive. Medical evidence is simply corroborative and never conclusive. We draw sufficient corroboration from the fact that there was some tear of the hymen. 19. Now coming to the decision of the Apex Court cited before us and which we also rely so as to recording as to how could the Court gather penetration from the evidence. Para 7 of the judgment in Aman Kumar V/s. State of Haryana (supra) is relevant. We quote: "Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter. We quote: "Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter. how little........The rupture of hymen is by no means necessary to constitute the offence of rape. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration...... In examination of genital organs, state of hymen offers the most reliable clue. While examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable.This variation, sometimes permits penetration without injury. This is possible because of the peculiar shapo of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic-. and gets stretched and lacerated ear- lier. Thus a relatively less forceful pen-etration may not give rise to injuries ordinarily possible with a forceful attempt. The anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora.These, viz. labia majora, are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending the vigour and force used by the accused and counteracted by the victim. Further examination of the female for marks of injuries elsewhere on the body forms a+ very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law," 20. We have already extracted the evidence of P.W. 6, the doctor. The Apex Court considered many facets of rape visa-vis act of sex as also the situation of private parts of a lady. We have already extracted the evidence of P.W. 6, the doctor. The Apex Court considered many facets of rape visa-vis act of sex as also the situation of private parts of a lady. Here, in the present case we gather from sub-para (vi) of P.W. 6 (at page 37 of the Paper Book) as to how the lady was feeling pain even on the third day of the oflence. That could have not been possible in our conscience without a full and forceful penetration. Thus, we are satisfied that it was a case of rape and could not be categorised merely as a case of attempt to rape. 21. Lastly, the learned counsel argued on the severity of the sentence. The learned trial Judge has passed sentence of rigorous imprisonment for life upon the appellant. In similar situation in Dinesh alias Buddha V/s. State of Rajasthan, 2006 3 SCC 771 the argument was raised before the Apex Court that even on an ordinary glance of the provision of Section 376(2) the Court should not have awarded the severe sentence for life. While dealing with the argument in para 12 it was pointed out by the Supreme Court in the above case that the sentence awarded in a case must depend upon the conduct of the accused, state and age of the victim and gravity of the criminal act. It was further pointed out that the socioeconomic status, race, caste or creed of the accused or the victim vere irrelevant considerations. The Apex Court further went on to say that the offence of rape need be severely dealt with. The object was to protect the society and deter the criminal and those ends could be achieved by infliction proper sentence. However, on perusal of para 16 of the judgment in Dinesh V/s. State of Rajasthan (supra) what one could find is that the provision contained in 376(2) was considered and it was noted that when the legislature itself provided alternative sentencing jurisdictions to the trial Judge, the minimum sentence of ten years in absence of any aggravating circumstances appeared to be the general rule. Going by the above observations and considering the contention of the learned counsel we also find ourselves inclined to reduce the sentence. Accordingly, the sentence of life imprisonment inflicted by the trial Judge is reduced to rigorous imprisonment for ten years which the appellant has to suffer. Going by the above observations and considering the contention of the learned counsel we also find ourselves inclined to reduce the sentence. Accordingly, the sentence of life imprisonment inflicted by the trial Judge is reduced to rigorous imprisonment for ten years which the appellant has to suffer. As regards the fine of Rs. 10,000.00 which was imposed upon the appellant and suffering of one years further rigorous imprisonment in case of non-payment, we uphold that part of sentence with some amendment that if fine is realised the same be paid to the informant or the next of kin in case the informant is no more. 22. With the above modification in the sentence we find no merit in the appeal which is, accordingly, dismissed.