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2017 DIGILAW 1276 (PAT)

Lakshman Manjhi v. State of Bihar

2017-10-03

PRAKASH CHANDRA JAISWAL

body2017
PRAKASH CHANDRA JAISWAL, J.:–Heard learned counsel for the appellant as well as learned APP for the State and perused the record. 2. This appeal has been preferred against the Judgment and Order of conviction dated 21.09.2015 and order of sentence dated 23.09.2015 passed by the 1st Additional Sessions Judge, Jehanabad in POCSO case no. 07 of 2014 G.R. no. 420 of 2014 arising out of Jehanabad Mahila P.S. Case No. 12 of 2014, whereby the learned lower court convicted the appellant for the offence punishable under Section 376(2)(i) of the Indian Penal Code and Section 6 read with Section 5(m)(n) of the POCSO Act and sentenced him to undergo R.I. for ten years and also slapped him with a fine of Rs. 10,000/- and in default of payment of fine to undergo R.I. for one year under Section 6 read with section 5(m)(n) of the POCSO Act. While no sentence was awarded under Section 376(2)(i) of the Indian Penal Code. 3. The factual matrix of the case is that Jehanabad Mahila P.S. Case no. 12 of 2014 was instituted under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act against the appellant (Lakshman Manjhi) on the basis of fardbeyan of Sarita Devi W/o Sanjay Manjhi R/o Village-Dharmpur O.P. Kalpa P.S. Town District-Jehanabad recorded by S.I. Shivnandan Sahni on 26.02.2014 at 20:00 hrs. in village-Dharmpur with the allegation, in succinct that, on 26.02.2014 at about 12:00 O’clock, she had gone to bathan for grazing her cattle and when she regressed to her house at about 07:00 PM, she found her daughter Khusboo Kumari aged about 6 years weeping. On quizzing her, she divulged that her cousin Lakshaman Manjhi had taken her to the mustered field on the pretext of giving her peas and committed rape against her and then she observed private part of her daughter, disrobing her attire and found blood oozing from it. 4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the appellant (Lakshman Manjhi) under Section 376 of the Indian Penal Code and under Section 6 of the POCSO Act. 5. On receiving the chargesheet and the case diary and perusing the same, the learned trial court took cognizance of the offence against the accused person. 6. 5. On receiving the chargesheet and the case diary and perusing the same, the learned trial court took cognizance of the offence against the accused person. 6. Charge against the aforesaid accused was framed under Sections 376(2)(i) of the Indian Penal Code and under Section 6 read with Section 5(m)(n) of the POCSO Act. Charge was read over and explained to him to which he pleaded not guilty and claimed to be tried. 7. To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether eight prosecution witnesses namely, Sanjay Manjhi as PW-1, informant Sarita Devi as PW-2, Rachana Raj, Judicial Magistrate, 1st Class as PW-3, Victim Pushpa Kumari @ Khusboo Kumari as PW-4, Dr. Mina Kumari as PW-5, Dr. Ramadhar Sharma as PW-6, Dr. Balmiki Sharma Kasyap @ Dr. B.S. Kashyap as PW-7 and Sanjay Kumar as PW-8. Out of the aforesaid witnesses, PW-3 (Rachana Raj) and PW-8 (Sanjay Kumar) happen to be the formal witnesses. PW-3 is the learned Judicial Magistrate, 1st Class who has recorded the statement of the victim under Section 164 of the Cr.P.C. and has proved the said statement marked as Ext-1 while PW-8 is an advocate clerk and he has proved the formal F.I.R. marked as Ext-3. In documentary evidence, the prosecution has filed and proved certain documents. 8. The statement of the accused person was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming himself to be innocent. In buttress of its case, he has neither adduced any ocular nor documentary evidence. 9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed in the earlier paragraph. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convict has preferred the present Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellant beyond all reasonable doubts or not. 12. 10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convict has preferred the present Criminal Appeal. 11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charge levelled against the appellant beyond all reasonable doubts or not. 12. It is submitted by the learned counsel for the appellant that there are three material witnesses of the case out of which PW-1 (Sanjay Manjhi), who happens to be the father of the victim has turned hostile while there is vital contradictions between the statement of PW-2 Sarita Devi (mother of the victim) and PW-4 (victim) regarding the occurrence and medical examination of the victim. There is no eye witness of the occurrence and none has seen the victim taking away to the mustered field by the appellant and committing rape against her. The medical report also does not corroborate the ocular testimony of the victim. The doctor has also not given any definite opinion regarding committing rape against the victim by the appellant. I.O. of the case has also not been examined by the prosecution and for non-examination of the I.O., the place of occurrence does not stand established. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case by adducing consistent, trustworthy, reliable ocular and documentary evidence. Hence, the appellant is entitled to get the benefit of doubt. 13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence, submitted that though the father of the victim has turned hostile, but her mother has supported the prosecution case and moreover, the victim has also supported the offence of committing rape against her by the appellant. Hence, the prosecution case stands substantially established by the statement of the victim herself and that of informant. The doctor has also found injury in the private part of the victim and after rightly appreciating the facts, law and evidence on record, the learned lower court has passed the impugned Judgment and Order of conviction and sentence, and the same is liable to be upheld and this appeal has no substance in it and is liable to be dismissed. 14. 14. On perusal of record, it appears that there are only three material witnesses of the case, PWs-1, 2 and 4, out of them PW-1 (Sanjay Manjhi) happens to be the father of the victim, but he has turned hostile and has not supported the occurrence of committing rape by the appellant against the victim. PW-2 Sarita Devi who happens to be the mother of the victim and informant of the case though has supported the prosecution case by stating her in examination-in-chief that when she regressed to her house after grazing her cattle, she found her daughter Khusboo Kumari weeping. On quizzing, she divulged her that the accused Lakshman Manjhi committed rape against her by taking her in the mustard field. On observing her private part, the blood was found oozing from it. Then she rushed to the Sadar hospital, Jehanabad where she was treated, but in paragraph 6 of her cross-examination, she appears to have backtracked from the aforesaid statement given by her in examination-in-chief by stating that her daughter (Khusboo Kumari) fell down in the mustard field in the course of playing and sustained injury in her private part by means of mustard plant. Thus, the said witness has resiled from her earlier stand and appears to have demolished her earlier statement given in the examination-in-chief regarding committing rape against the victim by the appellant. Now, the only material witness left is the victim, PW-4 herself. From the statement of the victim, it appears that in her examination-in-chief, she has stated that the accused had put his finger in her vagina in the mustard field by taking her from her house on the pretext of giving her peas. From perusal of the testimony of the victim, I find that the aforesaid testimony of the victim is consistent and unblemished as the defence has failed to elicit any material contradictions in the testimony of the victim having potential to rule it out. The statement of the victim was also recorded under Section 164 of the Cr.P.C. marked as Ext-1. From perusal of the testimony of the victim, I find that the aforesaid testimony of the victim is consistent and unblemished as the defence has failed to elicit any material contradictions in the testimony of the victim having potential to rule it out. The statement of the victim was also recorded under Section 164 of the Cr.P.C. marked as Ext-1. From perusal of the said statement, it appears that in her statement, she has also stated that the accused Lakshman Manjhi took her in the mustard field in the lap, located behind her house on the pretext of according her peas and put off her pant and put his finger in her vagina and oscillated it and the blood was oozing from vagina. The aforesaid statement of victim recorded under Section 164 of the Cr.P.C. stands corroborated by the unblemished consistent testimony of the victim. 15. As per Section 375(b) of the Indian Penal Code, a man is said to commit “rape” if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person like wise as per Section 2(1)(a), Section 3 and Section 5 of the PoCSO Act, a person is said to commit “penetrative sexual assault” if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person. From perusal of the aforesaid provision of the IPC and POCSO Act, it appears that mere penetration of the finger by an accused in the vagina of a girl child tantamount to commit rape against her. 16. From perusal of the medical report marked as Ext-2/1 and testimony of the doctor PW-5 Mina Kumari PW-6 Dr. Ramadhar Sharma and PW-7 Dr. Balmiki Sharma Kasyap @ Dr. B.S. Kashyap, it appears that the victim was aged about 6-7 years at the time of occurrence. 17. Though, on medical examination, no external injury was found on the person of the victim but the doctor has found multiple vaginal tear with oozing blood of the victim. Albeit as per the cross-examination of the PW-5 (Dr. B.S. Kashyap, it appears that the victim was aged about 6-7 years at the time of occurrence. 17. Though, on medical examination, no external injury was found on the person of the victim but the doctor has found multiple vaginal tear with oozing blood of the victim. Albeit as per the cross-examination of the PW-5 (Dr. Mina Kumari) conducting the aforesaid medical examination of the victim, the multiple vaginal tear was not possible by penetration of the soft organ of the body and it would be possible only by penetration by hard and blunt object, but in my considered opinion, the said aspect of the case has no potential to shatter the aforesaid testimony of the victim. As the consistent and unblemished testimony of the victim of rape is far above the testimony of any other eye witness and it does not require any corroboration by either ocular or documentary evidence. 18. Though, I.O. has not been examined by the prosecution and place of occurrence does not stand established by the prosecution, but in such heinous occurrence of rape against minor girl aged about 6-7 years such lacuna of the prosecution, in my considered opinion is not going to affect the merit of the case. 19. Considering the facts and circumstances of the case, I find and hold that the prosecution has substantiated its case beyond all reasonable doubt. Hence, the impugned Judgment and Order of conviction does not warrant any intervention and accordingly, it is upheld. As the appellant is in custody since 28.02.2014 i.e. around 3 years 7 months, hence, considering the facts of the case, the period of sentence is reduced to the period of custody already undergone by the appellant. Accordingly, this appeal stand dismissed with the aforesaid modification in the order of sentence passed by the learned lower court.