IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.764 of 2009 Against the judgment of conviction and order of sentence dated 11.08.2009 passed by Additional Sessions Judge-XI, Patna in Sessions Trial No.184 of 2007 TUNTUN @ TULSI, Son of Swarath Lal Rai, resident of village-Ashopur, P.S.Danapur, District-Patna --------Appellant Versus State Of Bihar.... .... Respondent For the Appellant: S/Sri Rajeev Ranjan Sinha & Ganesh Prasad Yadav, Advocates For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant was indicted of committing the offence under Section 376(2)(g)IPC by the learned Additional Sessions Judge-XI, Patna for being put on trial of Sessions Trial No.184 of 2007 and by judgment dated 11.08.2009 was held guilty of committing that particular offence. By order of sentence passed on the same day, the appellant was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.2,000/-, else to suffer rigorous imprisonment for six more months. The appellant has preferred the present appeal to challenge the order of conviction and sentence. 2 2. The written statement of Rekha Devi(Ext- 4)is the foundation of the prosecution case in which it is stated that she was coming after having the eyes of her sister’s mother-in-law checked up by a doctor. She reached her sister’s house at Chulaichak and after that caught a bus to alight near Lekha Nagar-D.A.V. school and proceeded on foot to her house. When she had reached near the boring of Narendra Singh(P.W.3) in village Konhara, this appellant with three other unknown, took the lady into his embrace and further into the wheat field situated by the side of the boring house and put her down on the ground. The lady was undressed and the four accused, i.e., the present appellant and his three companions committed rape upon her, one after the other. 3. It is said that when the lady resisted the acts of the accused she was assaulted by the accused persons and was also threatened of being killed. Her throat and mouth was pressed so that she could not raise any alarm. While committing rape upon her the lady was beaten by the accused on her cheeks, breasts as a result of which she was seriously injured. At the same time she was also being assaulted by fist and slaps. In the meantime, 3-4 persons of her village, incidentally, happened 3 to pass by the same path way who heard the voice of the lady and were attracted to the scene of occurrence when the present appellant and his companions fled away. The lady claimed that she could identify the three unknown companions of the present appellant. 4. On the basis of Ext-4, the FIR of the case Ext-3, was drawn up and the investigation was taken up by P.W.8 S.I. Shekh Mujibur Rahman who stated that after having taken over the investigation which was handed over to him by the officer-in-charge, Rambachan Yadav, he came to the place of occurrence which was a wheat field situated by the side of the boring of P.W.3 Narendra Singh and found the wheat plants trampled. It was 7 P.M. at night, as such he could not do much about the inspection of the place of occurrence and went straightway to the house of the appellant and found a black colour pant and a shirt hanging from the tati to his house; the pant was found stained with mud and dust. The two clothes were seized by preparing seizure memo (Ext-6) in presence of the witnesses. 5. He again inspected the place of occurrence at 6 A.M. next morning and found the pieces of broken bangles, one pair of lady’s 4 Hawaichappal and another damaged pair of similar Hawaichappal which might belong to a man. Those articles were seized from the place of occurrence in presence of witnesses by preparing seizure memo Ext- 6/1. He, thereafter, came to the hospital, Danapur where Rekha Devi was found admitted. He seized a saree and petticoat by preparing seizure memo Ext- 6/2 and found that the lady was hospitalized in such a bad shape that she was not in a position to speak. Hence, he did not record the statement of the lady. He recorded the statement of witnesses, requisitioned the doctor to examine the victim and after obtaining the medical report (Ext-2) and finding the materials sufficient, sent up the appellant for trial which ultimately ended in the impugned judgment. 6. The defence of the appellant was that he was innocent and had not committed the offence and in fact the lady had implicated the appellant in a false case on account of an old enmity which appeared admitted by her(P.W.5)in paragraph-13 of her evidence. 7. It was contended by the learned counsel appearing on behalf of the appellant that four persons had committed the act with P.W.5. There would have been plenty of evidence by way of finding 5 of semen on the wearing apparel of the lady as also in her vaginal track. But, there is no evidence that the clothes of the lady which were seized were bearing any stain of semen. P.W.6 Dr. Sarita was categorical when she was stating that the chemical analysis did not indicate the finding of motile or non-motile spermatozoa in the vaginal swab taken for chemical analysis. It was contented that there was no perceptible injury found by the doctor on the private part of P.W.5 justifying the allegation. Contention further was that there were variance in the manner as to how the written report was presented and the place where it was presented as also by the person it was present. Submission was also that only interested persons came to support the charges and it appears that they were motivated only on account of the enmity which was pre-existing between the parties. 8. Sri S.N.Prasad, learned A.P.P., submitted that a prosecutrix has never to be treated as an accomplish when it comes to judging a case of rape and she has always to be treated at par with an injured witness and her testimony should not normally be rejected. It was contended by making reference to the evidence of P.W.6 that she had found some injury on the internal part of the vagina 6 of the lady which was opined to be caused by some hard and blunt substance and even if there was no finding of spermatozoa, that particular offence could be justified committed in the manner in which it was alleged. 9. The controversy as regards the presentation of the written report was on account of the evidence in cross-examination appearing in the deposition of P.W.8 in paragraph-11. P.W.8 stated that he had mentioned in paragraph-1 that the prosecutrix Rekha Devi herself came walking to the police station with her husband. P.W.4 Jogendra Singh presented the written report himself. It was pointed out that this evidence was completely contrary to the claim of P.W.8 in paragraph-4 when he stated that he came to the hospital and there he found that the victim was not in a position to make any statement. The whole controversy appears artificial and appearing on account of some sort of ineptness of P.W.8. Moreover, the question which was put to P.W.8 in cross-examination was ignoring the basic fact which was stated by P.W.8 in paragraph-1 that the case was registered by the officer-in- charge, Rambachan Yadav who had drawn up the FIR. P.W.8 does not say that he had personally and directly received the written report at the police 7 station. If one considers his evidence in paragraph- 1 the witness was stating that he went to Danapur Sadar hospital where he found the lady admitted in the hospital and lying in such a bad shape that she was not in a position to give her statement. This fact was not challenged by the defence in cross- examination. Moreover, the evidence of P.W.5 states that she got the report drafted in the hospital while she was hospitalized and handed over the same to the police officer. This had appeared in the evidence of P.W.5 in paragraph-3. On perusal of the evidence of P.W.5 what appears is that there is no cross-examination or even a suggestion that the draft of the written report was not completed in the hospital and it was not presented there. Moreover, filing of the written report at a particular place or its non-filing is not going to have any bearing on the merit of the allegation. The allegation has to be judged on the evidence and if the court finds the evidence inspiring its confidence then it has to accept the evidence and pass the judgment on that. 10. On consideration of the evidence of P.W.5 what appears is that while she was coming from the doctor after getting the mother-in-law of her sister checked up for some eye problem and when she had reached near the boring of P.W.3 Narendra Singh, 8 this appellant had caught her and had taken her to the wheat field with others where he and his three companions raped her one after the other. She stated that she was made completely naked and whenever she wanted or attempted to shout she was threatened of being killed and was also assaulted. She was bitten by the teeth on her breasts, chest and other parts of her body and stated that on account of the acts of the appellant both of committing rape and assaulting her, she became unconscious. Whether there was any injury which may be justifying the above statements of P.W.5, may be verified only after one considers the evidence of P.W.6 Dr. Sarita. P.W.6 stated that she had found the following injuries on the person of P.W.5:- (i)Defused swelling on right cheek and circular bruise mark of about 1/3” broad 2” diameter area. (ii)Lacerated wound ½”x1/8” just above bruised mark on right cheek. It was bleeding. (iii)Swelling of left eyelid, left side of face, extending upto left upper neck with one area of bruise about 1/3” broad in semicircular pattern about 2-1/4”x2”size. (iv)Two abrasions of about 1/3”x1/4” in 9 between bruised area. (v)Subjunctival haemorrhage of left eye present. (vi)Defused swelling of upper lip with abrasion of about 1/4”x1/6”. (vii) Linear abrasions three in number pencil tip size, broad in criss-cross manner on left lateral mid thigh. Each of about 2” size. The similar abrasions on right side of thigh 3” apart to each other. (viii)Abrasion of about ½”x1/2” on tip of nose. 11. In the opinion of the doctor all injuries were caused by hard and blunt substance. The bruises were possibly caused by oral bite. Not only that on examination of the physique of the lady what the doctor found was that both the breasts of the lady were found tender which indicated quite some violence with that part of the body of the lady. Thus, what appears from the above part of the evidence of P.W.6 is that the evidence of P.W.5 that when she attempted or while she was struggling to get out of the clutches of the appellant and others, she was assaulted badly so much so that her lip was cut and her eye was bearing a haemorrhage and further severe violence with her in commission of 10 rape could be appreciated by looking to the injuries which were found on both of her breasts, cheeks so much so that even her breasts were found tender. These injuries cumulatively indicate that the lady was not only beaten up but was severely assaulted sexually. 12. The lady stated that she was raped by four persons including the appellant, one after the other. It is true that there is no evidence regarding the finding of any semen stains either on the cloth or on the person of the lady and the doctor’s evidence indicates that the clothes which were worn by the lady were handed over the police for seizure. There is no evidence further that the clothes were sent for chemical examination to any laboratory. If at all it was done, there is no evidence as to what was the result of that chemical examination. But Sri Prasad, the learned A.P.P. was rightly drawing the attention of the court to one injury which was found by P.W.6 on the left labia minora which was measuring ¼”x1/4” and was skin deep. The injuries were caused by some hard and blunt substance and within six hours of examination of P.W.5 by P.W.6. This particular injury indicates that there was some sexual act committed with the lady by some persons. The doctor stated that the 11 evidence of finding of injuries on the person of the lady, was amply present which indicated that violence was there and further that injuries of struggle was also there. Signs of violence were present not only on the cheeks or on the face of the lady but also on her private parts. Those were also found in the form of abrasions on the two thighs as well which were bearing scratches in the form of abrasions and that further indicated as to how badly the accused persons had treated the lady while ravishing her. 13. None of the witnesses who have been examined could be a witness to the real act of rape when the victim was bearing as many number of injuries and that too on as many parts of her body, then one could hardly have any room to doubt the veracity of her evidence. No lady could have created those injuries on her eyes, lips, cheeks or even on her breasts so as to framing the facts for slapping a charge of rape on an innocent person. 14. P.W.5 does state in paragraph-13 that the mother of the appellant had filed a case against the husband of the prosecutrix and others. But, what was the year of filing of the case has not been brought on record to show whether it was so remote a case that it could hardly have any relevance or 12 was it so proximal so as to giving a lesson to the lady the act was perpetrated. When the facts are so tale-tall as may appear from the evidence of witnesses specially the doctor and the investigation officer who had also found wheat plants trampled in the field of P.W.7 Satyendra Prasad Singh, then one could hardly infer that the facts were presented after adultering them or after creating them. The learned trial Judge was perfectly justified in reaching the conclusion on guilt of appellant and inflicted the sentence. 15. In the result, I do not find any merit in the present appeal and the same is dismissed. Patna High Court, Dated, the 21st September, 2011, Brajesh Kumar/NAFR. ( Dharnidhar Jha,J.)