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2011 DIGILAW 1193 (PAT)

Sanjay Sah alias Sanjay Shaw v. State of Bihar

2011-06-24

DHARNIDHAR JHA

body2011
JUDGMENT Dharnidhar Jha. -The solitary appellant Sanjay Sah having been found guilty under Sections 376 and 450. IPC. assails the judgment dated 21.1.2006 passed by the 1st Additional Sessions Judge. Bhojpur in S.T. No. 292 of 2003. As regards quantum of sentence the appellant was directed to suffer RI for ten years and pay a fine of rupees ten thousand else to suffer simple imprisonment for three months for his conviction under Section 376. IPC and rigorous imprisonment for seven years for being found guilty of committing offence under Section 450 IPC. 2. The charges related to an occurrence dated 18th October 2002. The prosecution story is contained in written report dated 18.10.2002 of Jairam Yadav who happened to be the father of the victim Reshma Kumari (PW 3) on the basis of which FIR (Ext. 2) of the case was drawn up. It was stated by Jairam Yadav (PW 5) that on 18.10.2002 at about 9 a.m. he and his wife were away into the fields for cutting grass and his daughter Reshma was all alone there. After having returned at 1.30 p.m. he found his daughter weeping and many persons assembled there. He made enquiries from PW 3, who stated that about half an hour ago this appellant had come to her house to request for a file (reti) and in that course took PW 3 by catching hold of her hands into the angan and closed the entry doors. He thereafter took Reshma in the southern room of the house put her on a cot and raped her as a result of which, she started bleeding from her private parts. The victim (PW 3) raised a halla and on that the appellant scaled the ladder to go over the roof of the house and after jumping from there fled away. 3. On the basis of the written report. ASI Mahabir Ram (PW 7) investigated into the case and during that course he recorded the further statement of the informant and also the statement of the victim and prepared her medical report to send her to Dr. Madhubala Sinha (PW 6) for her medical examination. He inspected the place of occurrence and also seized the wearing apparels of the victim (PW 3) by preparing seizure memo and sent the same for chemical analysis to the FSL. Madhubala Sinha (PW 6) for her medical examination. He inspected the place of occurrence and also seized the wearing apparels of the victim (PW 3) by preparing seizure memo and sent the same for chemical analysis to the FSL. After receiving the report of the chemical analyst from FSL and finding sufficient material, he sent up the appellant for trial. 4. The defence of the appellant was a complete denial of the allegations and his, participation in commission of the offence. It further suggested that no occurrence had really taken place on 18.10.2002. After considering the evidence, available on record, the learned trial judge passed the impugned judgment. 5. it was contended by Shri Tuhin Shankar, the learned amicus curiae that it remains the moot point to be decided as to whether rape was committed upon PW 3 as the circumstances appearing both from oral evidence as also the evidence of doctors, i.e., P.Ws 6 and 8, it could not be conclusively said that there were any signs indicative of the commission of sexual assault upon PW 3. The contention further was that the support is lacking as regards the testimony of PW 3 and witnesses who have been examined including the father of the victim, i.e., PW 5 for his giving hear say account. It was contended that there was room to entertain reasonable doubt regarding the falsity of the prosecution evidence and the learned trial judge missed to consider that important aspect of the trial and went on to convict the appellant and inflicted the sentence upon him. 6. Shri S.N. Prasad, the learned APP resisted the submission and pointed out that the evidence of PW 3 could itself be sufficient to record a conviction inasmuch as she stands out as the only witness to the real part of the occurrence and it could be simply over stretching the evidence of two doctors for submitting that there was no support coming from the evidence of the two witnesses to the oral testimony of PW 3. It was pointed out that even hear say evidence of the witnesses supports one aspect of the case that in fact there had been an incident and what was the incident, description thereof comes cleanly from the evidence of PW 3. 7. There are some offences which to me render the victim of those offences the most competent witnesses. It was pointed out that even hear say evidence of the witnesses supports one aspect of the case that in fact there had been an incident and what was the incident, description thereof comes cleanly from the evidence of PW 3. 7. There are some offences which to me render the victim of those offences the most competent witnesses. One such offence of that class is the offence of commission of rape because by the very nature of the offence the offender attempts to commit that offence in such a way as not to be seen indulging in that particular act. All precautions are taken by the offenders of such offence in order to escape the gaze as also being identified and in some of the cases as experience may point out the victims are strangulated to death or are caused serious injuries. That appears done only to eliminate the only witness of such an offence. The other offence which comes to my mind is that of kidnapping and abduction. In that class of offence the victim could be the real witness whose testimony could not be brushed aside lightly and so easily. The third offence which could render the victim of that offence a competent witness are the offences punishable under Sections 392, 394, 395, 396 and 397, IPC. that is of dacoity robbery, etc. or attempt of committing those offences. In that class of cases, victims and culprits are mostly unknown to each other but the Courts, after considering that the victims had the occasion of seeing the real culprits the time of commission of the offence and specially at that particular time when the property was snatched or the person was being assaulted or he was being threatened to be killed if he was not ready to point out the property or to deliver it then that particular moment leave an imprint upon the mind of the victim making it easy for him to point out towards the culprit. The evidence of there witnesses in that view of the, matter become important evidence for picking up the id1cntifying feature of the culprits and reproducing them after seeing the man in dock during trial. 8. The victim of the offence of rape could be traumatized on many counts. The evidence of there witnesses in that view of the, matter become important evidence for picking up the id1cntifying feature of the culprits and reproducing them after seeing the man in dock during trial. 8. The victim of the offence of rape could be traumatized on many counts. Firstly she is subjugated to submit herself to the carnal desire of the man and to the act of the man of being ravished. Further traumatization is by causing injuries. In most of the cases there is no motive for the victim or her family members to falsely implicate the offender of rape. The victims are targeted and they are made preys to the carnal desire of a male and that is the motive and intent. This is the reason that the Courts have always placed implicit reliance upon the evidence of victims of such offences. 9. Coming to the evidence of PW 3 and the background under which she was complaining of the act committed by the appellant the fact appears established that she was alone in her house. Her father (PW 5) and his wife were away into the fields for scrapping grass and when he came back he found an assembly of persons before whom the victim was weeping and narrating her tale of woes during which course PW 5 claimed to know as to how the appellant had trespassed into his house with the intent to ravish her. PW 3 has narrated the sequence of events in a very detailed manner and that is revealed by her evidence in paragraph 1 of her deposition. She appears being subjected to lengthy and searching cross-examination as appears from that part of evidence of PW 3 and I find that she has not faltered to describe the whole part of the incident in any manner. The manner of occurrence has also been attempted to be tested by the defence in paragraph 2 of the cross examination in which she has stated that she was put on the cot and when she wanted to raise a cry she was gagged by the appellant with his one hand and thereafter, she was raped. The lady attempted to free herself from the clutches of the appellant and during that course, she had assaulted him also but there was no injury caused to him on that account. The lady attempted to free herself from the clutches of the appellant and during that course, she had assaulted him also but there was no injury caused to him on that account. The victim has stated that so as to immobilizing her both of her hands were pressed by the appellant by his two knees so that she could not do much in order to rescue her or to resist the act. She has stated that on account of the act of the appellant she started bleeding and that she was feeling great pain in her private parts. 10. Argument was placed by the learned counsel for the appellant by pointing out to medical evidence of Dr. R.D. Ranjan, who was the Civil Surgeon, Bhojpur and was heading the medical board and which examined the victim on 8.11.2002 for submitting a report (Ext.5). It was contended that the report of the medical board was finding the hymen healed up and it was not certain as regards the opinion of the board as to whether rape was committed on her or not. The argument misses one of the most important aspects of the case which is that the date of occurrence was 18.10.2002 and the medical board was examining PW 3 on 8.11.2002. that, after about -twenty days or so. The victim has stated that she bled from her private parts and she was feeling great pain there. The evidence of PW 6 Dr. Madhubala Sinha indicates that she found the hymen ruptured and the vagina was admitted the little finger. It is true that PW 6 did not find any sign of rape. but that aspect of the evidence of PW 6 has to be appreciated by considering the fact that when the hymen was found ruptured on account of the act of the appellant, the lady must have been treated for repairing the ruptured hymen and for that purpose, her private parts must have been washed erasing any chance of finding motile or non-motile spermatozoa. It may be argued that it could be yet another contradiction between the evidence of PW 6 and PW 8 that PW 6 found vagina admitting little finger only whereas PW 8 found the vagina admitting the middle finger. It may be argued that it could be yet another contradiction between the evidence of PW 6 and PW 8 that PW 6 found vagina admitting little finger only whereas PW 8 found the vagina admitting the middle finger. The Court finds that the lady was ravished and most of the internal orifice of her private parts would have been swollen as may appear from the evidence of the lady as also from the evidence of FSL which had examined the wearing apparels of the lady which was soaked with blood. As regards non-finding of the sign of rape by the doctors who were constituting the Board, it is worth mentioning that the medical examination of the victim was done after twenty days of the occurrence and during that course most of the swellings must have subsided satisfactorily and that could have allowed the admission of middle finger into the vagina. Rupture was also found by PW 8. which might have healed up during that course so, it could not be said that there was no injury in the hymen which was ruptured on account of the act of the appellant of penetrating his genital into it. The girl PW 3 has stated in categorical terms that the appellant forcibly committed rape upon her and on that account she started bleeding. 11. As regards support to the evidence of PW 3, I have already discussed the evidence of PW 6 and PW 8 and their evidence in substantial part support the evidence of PW 3. The father of the girl PW 5 has stated as do PWs 1, 2, 3 and 4 that the victim was narrating to them as to how the appellant had committed rape upon her. The written report states that she was making narrations only half an hour after the incident. PW 5 has stated that she narrated the whole incident to the witnesses and the witnesses in their turn, have stated that they were told by PW 3 as to how the appellant had raped her. This evidence is admissible as per Sections 6 and 60 of the Evidence Act. There is virtually no time lapse between the occurrence and the evidence. As such, the evidence of PW 3 gets support from the oral evidence of hear say witnesses whose evidence on hearing about the occurrence from PW 3 is admissible. 12. This evidence is admissible as per Sections 6 and 60 of the Evidence Act. There is virtually no time lapse between the occurrence and the evidence. As such, the evidence of PW 3 gets support from the oral evidence of hear say witnesses whose evidence on hearing about the occurrence from PW 3 is admissible. 12. It was lastly contended by Slui Shankar that the appellant was 25 years of age at the time of judgment and he remained in custody for more t Ian eight and half years and as such the ends of justice shall be met if he is sentenced to the period already undergone. Shri Shankar was considering only the age of the appellant and he was missing to consider the age of the victim who was nine years of age on the date of occurrence. She was not known to the worldly affairs specially the relationship between a man and a woman. It was an act which was simply brutal. It was further an act which could have left a permanent scar on the mind of a young girl and she must be carrying a monstrous image of a man after having undergone the trauma. In my considered view the circumstances and the nature of offence and the manner in which it was committed a more serious punishment should have been inflicted upon the appellant. Learned Court below has inflicted a sentence of ten years under Section 376, IPC and that was too lenient. 13. In the facts and circumstances of the case, I do not find any merit in the present appeal and the same is dismissed. 14. Shri Shankar learned amicus curiae has assisted this Court and he deserves one fee of argument which is directed to be paid by the Patna High Court Legal Services Committed for which purpose let a copy of the first and the last page of the judgment be made over to him. Appeal dismissed.