Research › Search › Judgment

Patna High Court · body

2017 DIGILAW 1104 (PAT)

Md. Tohid, son of Md. Sabir v. State Of Bihar

2017-08-23

KISHORE KUMAR MANDAL, MADHURESH PRASAD

body2017
JUDGMENT : KISHORE KUMAR MANDAL, J. Both the appellants have been charged and held guilty under Section 376/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with fine having default clause and rigorous imprisonment for 10 years and fine having default clause under Section 307/34 Indian Penal Code. 2. The victim, in the present case, is a minor daughter of P.W.1 and P.W.7. The fardbeyan of P.W.7 (mother) was recorded on 01.03.2010 at 8.45 a.m. at the Referral Hospital, Triveniganj. The daughter had gone to school in the morning. She also used to work in the house of Ignosh. On 28.02.2010, when she did not return even late in the evening, she reported to her husband(P.W.1). As they had set out in search of victim in the wee hours of 01.03.2010, P.W.2 informed about lying of the victim in the brinjal field. The informant along with P.W.2 went to the field and found her daughter lying in a state of unconsciousness. She was brought home and thereafter taken to the Triveniganj Sub-Divisional Hospital where P.W.6 first attended on her. He referred her for medical examination by a lady doctor. On the following day i.e. 02.03.2010 at 11.15 a.m., the victim was medically examined by P.W.5 (Dr. Nutan Verma). She furnished the medical report (Ext.1). The doctor found multiple scratches over left face as also on the forehead. There was swelling of left eye lids. The upper lip was swollen having three teeth like lacerated impressions. Three lacerated (penetrated) wounds caused by teeth bite over inner surface of lower lip was also found. There was defused swelling over right and front neck. The doctor further noticed mild swelling of right front of left chest. Two linear longitude abrasions each 1” to 1 ½” long with gap of 2 ½” each over front of upper chest. On further examination, she found blood stain U shaped multiple clots over labia. The hymen was found ruptured. On the basis of the aforesaid findings, the doctor opined it a case of rape. According to the fardbeyan, the victim while in a state of semi-unconscious, had given out the names of the two appellants who had ravaged her and also assaulted on different parts of her body. The hymen was found ruptured. On the basis of the aforesaid findings, the doctor opined it a case of rape. According to the fardbeyan, the victim while in a state of semi-unconscious, had given out the names of the two appellants who had ravaged her and also assaulted on different parts of her body. Upon conclusion of investigation, the charge-sheet was laid whereon cognizance was taken and the case, on the commitment proceeding having been levied, was placed on the file of the learned Trial Judge for disposal. Charges were framed and explained to the accused/appellants who abjured their guilt and claimed trial. 3. To bring home the charges, the prosecution examined 07 P.Ws. P.W. 1 Md. Mukhtar is the father of the victim. P.W.2 Md. Abbas is the co-villager who had first spotted the victim lying in the brinjal field and informed the mother (P.W.7). P.W.3 Md. Manir is again a co-villager who had helped the victim to go to hospital. P.W.4 Afsana is the victim herself. P.W.5 Dr. Nutan Verma was then posted as the lady doctor at the referral Hospital, Triveniganj where she medically examined the victim on being referred by Dr. I.D. Yadav (P.W.6). P.W.7 Shamsha Khatoon is the mother of the victim to whom, as per F.I.R., the victim had whispered and disclosed the names of these two appellants who had followed and captivated her near the place of occurrence and then forcibly committed rape on her. The prosecution also exhibited the two medical reports furnished by P.W.6 (Ext.1/1) and P.W.5 (Ext.1). The defence of the appellants was their false implication in the case. 4. The learned Trial Court analyzed the evidence and found that the victim, in her evidence, had supported the prosecution case naming these two appellants as the perpetrators of the crime which found support from the medical report (Ext.1) and the evidence of P.W.5. The evidence of father (P.W.1) and mother (P.W.7) lent credence to the prosecution case. Having held so, the conviction was recorded. 5. Heard Mr. Ansul for the appellants and Mr. S.N. Prasad, APP for the State. 6. In a case of rape and that too on the minor, the Court has to bear in mind that the victim of sexual assault is not treated as an accomplice. Having held so, the conviction was recorded. 5. Heard Mr. Ansul for the appellants and Mr. S.N. Prasad, APP for the State. 6. In a case of rape and that too on the minor, the Court has to bear in mind that the victim of sexual assault is not treated as an accomplice. If her evidence is found cogent and trustworthy, no corroboration of her evidence is to be looked into, even that of a doctor. By catena of decisions, the aforesaid legal principle of appreciation of evidence, in such case, has been firmly established. If the evidence of the victim and the attending circumstances, prove the case even though the doctor did not find an apparent sign of a rape, the Court shall accept the evidence of the rape victim. This is because in our society, a victim of sexual assault normally hesitates to disclose such offence even to her family members. There is a tendency of concealing such offence as it involves her prestige and honour as well as the prestige of the family. Accepting this social philosophy, the Courts have always leaned in favour of the evidence of the rape victim, in some cases, even undermining the evidence of the doctor which has an advisory character. 7. It is submitted by Mr. Ansul that from the evidence of the mother and father, it shall appear that the victim was unconscious till she was given medical aid at the Referral Hospital, Triveniganj. It is, therefore, unlikely for the victim to disclose the name of the appellants. The F.I.R. has not been formally proved. He also submits that the I.O. of the case has not been examined which has caused prejudice to the defence. Taking us through the two medical reports, (Exts. 1 and 1/1), he would argue that the first doctor (P.W.6) did not find any sign of rape on the victim inasmuch as he had also not disclosed about any lacerated wound present on the body of the victim whereas P.W.5 has found at least 04 lacerated wound/injuries on the victim. He next submits that the prosecution is also not very much clear as to who picked up the victim from the field. It was P.W.-2 Md. Abbas or the mother (P.W.7) or both. He next submits that the prosecution is also not very much clear as to who picked up the victim from the field. It was P.W.-2 Md. Abbas or the mother (P.W.7) or both. Lastly, it is argued that on the basis of the evidence available on record, the conviction of the appellants under section 307/34 IPC is wholly unsustainable in law. No injury found on the person of the victim was found either grievous or dangerous to life. He has also raised a submission with regard to the identification of the appellants. 8. Mr. S.N. Prasad, APP, in contra, submits that the case of the prosecution is well proved as the victim in her deposition has fully supported the prosecution case. Although, in a case of rape victim, no corroboration is called for but in the case at hand, the evidence of the doctor (P.W.5) and her report (Ext. 1) fully corroborates the prosecution case. There is nothing on record to suggest even by way of suggestions that the victim or the parents (P.Ws. 1 and 7) of the victim had any reason to falsely implicate the appellants in the case. 9. The entire case of the prosecution is founded on the first version of the case made before the I.O. The prosecution led evidence in the light of the case spelt out in the fardbeyan. The defence also contested the prosecution case as grounded in the F.I.R. Formally non-proving of the fardbeyan, in such circumstance, would not be of much consequence. The purpose of recording fardbeyan is to set criminal law in motion. It is not a substantive piece of evidence. Only the maker thereof can be contradicted with reference to her statement in the fardbeyan. Soon after recording the fardbeyan of the mother, the Station House Officer, Triveniganj sent the victim for her medical examination as deposed by P.W.5. No suggestion was even given to the informant with regard to non-recording of fardbeyan by her. We do not find much substance in the contention of the defence that the formal non-proving the fardbeyan is a serious blow to the prosecution case. 10. It has been argued that there is contradictory evidence as to who brought the victim to the house. In a case of such nature, any such contradiction would be not very material so long as the prosecution is able to prove the charge with reliable evidence. 10. It has been argued that there is contradictory evidence as to who brought the victim to the house. In a case of such nature, any such contradiction would be not very material so long as the prosecution is able to prove the charge with reliable evidence. However, on going through the evidence of the mother (P.W.7), it is apparent that P.W.2 first informed her about the girl lying in the brinjal field in an injured condition whereafter both of them went there and brought her home. We do not entertain any doubt on the prosecution case on this score. 11. Another submission of the defence is that the victim was unconscious until she was afforded medical care at the Referral Hospital and, as such, the informant had no information about the accuseds who had committed the crime when the fardbeyan was recorded by her on 01.03.2010 at 8.45 a.m. This is a crucial flaw in the prosecution case. Keeping in view the aforesaid criticism, we closely perused the evidence of the victim (P.W.4) and her mother (P.W.7). The victim has stated that in the morning, she regained consciousness then she started calling her mother. She was then carried to home and thereafter to hospital. In the hospital, she gained consciousness and thereafter again her statement was recorded by the Police. The mother (P.W.7), in her deposition, has stated that the victim had become conscious and disclosed name of the two appellants as the perpetrators of crime. She had noticed the stains of sperms on her undergarments. The victim was taken to Triveniganj Hospital and from there to the Referral Hospital, Supaul where her statement was recorded. There is nothing in her cross-examination to discredit her evidence. What is conclusive on this point is the evidence of P.W.2. Although, this witness was declared hostile but in his examination-in-chief, he has clearly stated that the victim was conscious when he spotted her and on query, she gave out her name and her father’s name whereafter he informed to her mother (P.W.7). P.W. 2 was cross examined by the defence but was unable to discredit him on what he stated in his examination-in-chief. Situated thus, we see no merit in the said criticism of the defence. 12. Mr. Ansul has vehemently argued that identification of the appellants was not possible as the victim remained unconscious. P.W. 2 was cross examined by the defence but was unable to discredit him on what he stated in his examination-in-chief. Situated thus, we see no merit in the said criticism of the defence. 12. Mr. Ansul has vehemently argued that identification of the appellants was not possible as the victim remained unconscious. The said contention merits notice only to be rejected. It is not the case that she was unconscious from before when the crime was committed. The prosecution case is that while she was coming along with another friend, the appellants intercepted and lifted her and brought to the nearby field where she was subjected to rape by them and also beaten. She had ample opportunity to identify the perpetrators of the assault. 13. He has also argued that in the facts of the case, the possibility of false implication cannot be completely ruled out. Although, no tangible evidence is placed on record to show any hostility between the parties but, in order to assure us, we perused the statement made by the two appellants under Section 313 Cr.P.C. No such defence was taken by them while answering the questions put to them by the Court. Recording of the statement under Section 313 Cr.P.C. is not a mere formality. While interacting with the Court, it is expected of the accused to take his possible defence while denying the charges. In our considered view, the prosecution case cannot be brushed aside merely on speculation of false implication. 14. It is a case where the victim was produced for medical examination soon after the occurrence. P.W.5, the lady doctor, found several marks of violence present on the body of the victim which demonstrate the manner she was ravaged. She found sufficient evidence of rape on the victim. 15. One of the contentions of the defence Counsel is that P.W.5 in her report (Ext.1) has noted that when asked, the victim gave out the name of only one appellant. Harping on the said part of the injury report, it has been urged that the prosecution is not consistent on the complicity of both the appellants in the crime. We turn to the evidence of the doctor given in Court wherein no such statement has been made by her. There is not even a cross-examination on this point by the defence. We turn to the evidence of the doctor given in Court wherein no such statement has been made by her. There is not even a cross-examination on this point by the defence. It is difficult for the Court to accept the said contention of the defence. 16. In the light of discussions made above, we have no iota of suspicion in our mind that prosecution proved the case of commission of rape on the victim by the appellants beyond shadow of reasonable doubts. The evidence of the victim supported by the medical findings of the doctor conclusively prove the guilt of the appellants under Section 376/34 IPC. The conviction recorded against the appellant under Section 376/34 IPC by the learned Trial Court is upheld. 17. However, the contention of the appellants on the charge under Section 307/34 IPC has some legs to stand. The other injuries sustained by her (victim) were not such as to possibly cause death. They were minor in nature. Further, there is nothing on record to show that these injuries were inflicted with intention to cause her death. The conviction of the appellants under Section 307/34 IPC is set aside. 18. The appeal succeeds in part.