Case Facts:
CRIMINAL APPEAL (DB) NO.55 OF 2005 (Against the judgment of conviction and order of sentence dated 04.01.2005 passed by 3rd Additional Sessions Judge, Naugachia, Bhagalpur in Sessions Trial No.590/1996) ======================================================= Sanjay Kumar Khemka, son of Mangal Chand Khemka, Resident of Dharamshala Road, P.S. Naugachhia, district-Bhagalpur. .... .... APPELLANT. Versus The State of Bihar .... .... RESPONDENT. ======================================================= For the Appellant : Mr. Akhileshwar Prasad Singh, Sr. Adv. Mr. Abha Singh Mr. Manish Kumar Mr. Praveen Kumar Mr. Satyendra Rai Mr. Pramod Kumar Pandey Mr. Gautam Kejriwal Mr. Sanil Kumar Mr. Gopal Prasad Gupta For the Respondent : Mr. Ashwani Kumar, A.P.P. ======================================================= P R E S E N T HON’BLE MRS. JUSTICE SHEEMA ALI KHAN AND HON’BLE MR. JUSTICE ADITYA KUMAR TRIVEDI A.K. Trivedi, J. The sole appellant Sanjay Kumar Khemka who has been found and held guilty for an offence punishable under [STATUTE] . and further been directed to undergo R.I. for life by 3rd Additional Sessions Judge, Naugachia, Bhagalpur vide judgment dated 4th January, 2005 in connection with Sessions Trial No.590/1996 filed instant appeal. 2. On 01.09.1990 at about 10 P.M. Deoki Nandan 2 Jalan, (P.W.4) gave his fardbeyan (exhibit 3) to the effect that at about 7 P.M. while he was returning to his house after closing his shop, he inquired about his daughter Amia, from his wife who disclosed that she has gone to the shop of Sanjay Kumar to purchase toffee. Hearing this he along with his wife proceeded towards shop of Sanjay and as soon as reached near his shop, Sanjay came out from his shop and slipped towards his house. Then he saw his daughter Amia @ Rekha Kumari aged about 4 years lying unconscious in the shop of Sanjay. The front door of shop was closed. Blood was oozing out from her private part. Her pant was soaked with blood. From the facts aforesaid he could decipher the Sanjay had raped his daughter. Thereafter he lifted his daughter and carried to his house in an unconscious condition. The informant changed his daughter pants. He has further disclosed the incident to other family members as well his neighbours. 3. On the basis of aforesaid fardbeyan, Naugachia P.S. Case No.212/1990 was registered under [STATUTE] . where under cognizance was taken on the basis of submission of charge sheet that led commitment of the case, followed by a trial, which ultimately culminated in conviction of the sole accused/appellant in a manner as stated above. 4. The defence case as comes out from the mode of 3 cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. coupled with examination of D.W. is that accused is innocent and has fallen victim of false implication in the background of the fact that there was some strained relationship amongst the parties on the factum of tenancy, where under the prosecution party was tenant of accused and was forced to vacate the premises. 5. Altogether 10 P.W.s have been examined on behalf of the prosecution out of whom P.W.1 - Arun Kumar, P.W. 2 - Ram Prasad Sah, P.W. 3 - Ghanshyam Singhania, P.W. 4 - Deoki Nandan Jalan, P.W. 5 - Manju Devi, P.W. 6 - Om Prakash Sharma, P.W. 7 - Rekha Kumari (victim), P.W. 8 - Pokhal Mal Jalan, P.W. 9 - Dr. Ira Jha who had examined the victim and P.W. 10 - Saryug Chaudhuri. The prosecution had also exhibited Ext. 1 – Formal F.I.R., Ext. 2 – Signature of P.W.4 over fardbeayn, Ext. 3 - fardbeayn, Ext. 4 - Signature of seizure list witness P.W.8, Ext. 4/A – Signature of P.W.9, Ext. 5 – Serological and Chemical Examiner report, Ext. 6 – endorsement over fardbeyan, Ext. 7- formal F.I.R., Ext. 8 – Seizure list. Side by side defence has also examined four D.W.s out of whom D.W. 1 is Mohan Kedia, D.W. 2 is Sanjay Kumar Chaudhuri, D.W.3 Santosh Kumar Chirania, D.W. 4 is Sita Ram Ravi as well as also exhibited Ext. certified copy of voter list. 6. Now coming to status of the witnesses, P.W.1 4 happens to be formal in nature while P.W. 2, P.W.3, P.W.6 are hostile while P.W.8 happens to be hearsay witness. P.W.4 is informant, father of victim, P.W.5 Manju Devi, mother of victim, P.w.7 Rekha Kumari victim, P.W.9 Dr. Ira Jha and P.W. 10 - Saryug Chaudhuri is the Investigating Officer of this case. 7. The evidence of victim gets priority and so first of all we would like to deal with the evidence of P.W.7. 8. P.W.7 was examined on 15-01-2001, on which date she had claimed herself to be aged about 14 years. In examination-in-chief, she had deposed that on 01.09.1990 at about 6-7 P.M. she had gone to the shop of Sanjay to purchase toffee. Sanjay made her sit by his side. Thereafter, he took off her undergarments and then began to ruff, over her vagina. She tried to get rid of him and also raise alarm, which the informant prevented by closing her mouth and said that he will give more toffee to her. She felt pain. Blood had oozen out. Thereafter, she became unconscious. She was subjected to medical examination. After going through the cross-examination minutely, it is evident that accused had not cross-examined the witness on this score. 9. P.W.4 is the informant. He had deposed that on 01.09.1990 at about 7 P.M. when he returned back to his house after closing his shop, he did not find Rekha @ Amiya over which he inquired from his wife who disclosed 5 that she has gone to the shop of Sanjay to purchase toffee. He thereafter proceeded towards the shop of Sanjay. As soon as he reached there, Sanjay slipped inside his house through northern door of his shop. Then he saw his daughter Rekha Kumar @ Amiya aged about 4 years lying unconscious over floor. Front door of shop was closed. Blood was oozing from her private part. Her panty was soaked with blood. Then he lifted his daughter and took her and changed her panty. Thereafter, he had given fardbeyan at police station, which he has identified

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.