Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.150 of 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION DATED 9.3.2000 AND ORDER OF SENTENCE DATED 14.3.2000, PASSED BY THE 2ND ADDITIONAL SESSIONS JUDGE, AURANGABAD IN SESSIONS TRIAL NO. 293 OF 1997/16 OF 1997 ARISING OUT OF OBRA P.S. CASE NO. 54 OF 1997. =========================================================== Nasim Mian, son of Hafizullah Mian, Resident of Village Obra, P.S. Obra, District Aurangabad. .... .... Appellant Versus The State of Bihar .... .... Respondent with Criminal Appeal (SJ) No. 155 of 2000 =========================================================== AGAINST THE JUDGMENT OF CONVICTION DATED 15.3.2000 AND ORDER OF SENTENCE DATED 23.3.2000, PASSED BY THE 2ND ADDITIONAL SESSIONS JUDGE, AURANGABAD IN SESSIONS TRIAL NO. 178 OF 1998/65 OF 1998 ARISING OUT OF OBRA P.S. CASE NO. 54 OF 1997. =========================================================== Jameel Mian @ Md. Jameel Mian, son of Amiruddin, Resident of Village Obra, P.S. Obra, District Aurangabad. .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellants : Mr. Krishna Prasad Singh, Sr. Advocate Ms. Meena Singh, Advocate Mr. Jharkhandi Upadhyay, Advocate Mr. Bhaskar Shankar, Advocate For the State : Mr. Sujit Kumar Singh, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 30-07-2012 S.A. Khan, J. These two appeals arise out of a case instituted by Patna High Court CR. APP (SJ) No.150 of 2000 dt.30-07-2012 2 / 16 2 Parshuram Singh, father of the victim girl Sangita Kumari. There are two separate judgments by the Trial Court convicting the appellant Nasim Mian and Jameel Mian @ Md. Jameel Mian. There are two sets of evidences in this case. However, this Court is considering the two judgments and the evidences together and disposing of these two appeals by this common judgment. The 2nd Additional Sessions Judge, Aurangabad by judgment dated 9.3.2000 has convicted Nasim Mian to undergo R.I. for a period of eight years for an offence under [STATUTE] . The appellant has also been convicted under [STATUTE] and he has been further directed to pay a fine of Rs. 5,000/-. By the judgment dated 15.3.2000 the 2nd Additional Sessions Judge, Aurangabad has acquitted Mokhtar Mian and convicted Jameel Mian @ Md. Jameel Mian for the offence under [STATUTE] to undergo R.I. for ten years and under Section 366(A) of the Indian Penal Code but no separate sentence has been awarded to him on this issue. 2. In Sessions Trial No. 293 of 1997/16 of 1997 which is with respect to Nasim Mian, 12 witnesses have been examined to support the prosecution case which took place on 27.5.1997. The prosecution case is that the informant was in his house along with his wife and children. After some time he came to know that his Patna High Court CR. APP (SJ) No.150 of 2000 dt.30-07-2012 3 / 16 3 eldest daughter was missing from the house, he began to search for her and in the said process went outside his house. His neighbour Suryadeo Ram and some other ladies disclosed to him that his daughter had been dragged by Nasim Mian. It is said that Nasim Mian was armed with a pistol and, therefore, the aforesaid persons were not successful in retrieving the girl. It is also said that about a month earlier to the occurrence, Md. Nasim had tried to kidnap the girl and it thus appeared to the informant that he was the person responsible for kidnapping his daughter. 3. The victim girl was recovered from a temple on the next morning by the police and was taken to the police station where her statement was recorded and thereafter she was sent for medical examination to the doctor. Her statement was recorded by the Judicial Magistrate (P.W. 6) under Section 164 of the Code of Criminal Procedure. In her statement under Section 164 of the Code of Criminal Procedure, she has stated that she heard the sound of a motorcycle and after sometime three persons entered her bed room, tied her mouth and dragged her down the stairs. She claims that she protested but was unable to save herself. It is further alleged by her that she was dragged to Bhabha school where she was raped by four persons. She fainted after the said act and she could only gain consciousness in the next morning. She was recovered from a Patna High Court CR. APP (SJ) No.150 of 2000 dt.30-07-2012 4 / 16 4 temple. 4. In this case it would be relevant to refer to the doctor’s evidence who is P.W. 7. The doctor has not assessed her age while examining her. He has not found any sign of external or internal violence on the body of the victim girl. According to the doctor her hymen was ruptured and she has opined that she was in the habit of having sexual intercourse. 5. The doctor’s report has been disbelieved by the Trial Court by relying on the oral statement that the girl was aged about 14 years of age and according to the Trial Court she could not have been used to sexual intercourse at such a young age and thus, the doctor’s report has been rejected. On the other hand, this Court noticed that the girl was examined on the same date and almost immediately after she was recovered, therefore, it cannot be said that the doctor was in any manner influenced to give report which would favour any party. Thus, this Court finds it difficult to understand and believe, especially if it is accepted that the girl was a minor, that there was no sign of violence after she was raped by four persons. 6. In any event, the Court has to examine the issues involved after taking into account the evidence of all the witnesses who have been examined and test the evidence of the witness to judge whether the case of rape made out by her is supported by other Patna High

Applicable IPC Section: 376

Statute Text:
Section 376 of the Indian Penal Code. Rape. Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.