Criminal Appeal (SJ) No.716 of 2007 Against the judgment of conviction and order of sentence dated 07.06.2007 passed by Additional Sessions Judge, Fast Track Court No.I, Supaul in Sessions Trial No.80 of 2006 arising out of Triveniganj P.S.Case No.55 of 2005, G.R.Case No.258 of 2005. CHANDAN YADAV.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT With CRIMINAL APPEAL (SJ) NO. 758 OF 2007 LALAN YADAV.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellant: Sri Binit Kumar, Advocate (In CR. APP (SJ) No. 716 of 2007) For the Appellant: Sri Ajay, Advocate (In CR.APP(SJ)No.758 of 2007) For the Respondent: Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The two appellants have preferred the two appeals against the judgment dated 07.06.2007 passed by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court No.I, Supaul(Saharsa) in Sessions Trial No.80 of 2006 by which both of them were found guilty of committing an offence under Section 376 IPC and were directed to undergo rigorous imprisonment 2 for ten years each as also to pay a fine of Rs.10,000/- each, else to undergo simple imprisonment for six more months. 2. The fardbeyan of P.W.6 is the basis of initiation of the prosecution on which the FIR of the case, Ext-1, was drawn up. It is stated by P.W.6 that she along with her younger sister Jaimala Kumari(P.W.4)had gone to Baghla river area for picking up cow-dung-cakes on 19.04.2005 and when both the sisters were on way to their house at about 2 P.M., appellant Lalan Yadav made basket containing the cow- dung-cakes to fall and thereafter gagged her and fell her on the ground. It was stated that appellant Chandan Yadav had caught the hands of the prosecutrix and she was raped, firstly, by appellant Lalan Yadav by removing her trousers and also pressed her breasts. The same acts were enacted by appellant Chandan Yadav. 3. It was stated by P.W.6 that seeing the occurrence, her younger sister P.W.4 Jaimala Kumari went to call her mother who came there on which the two appellants ran away from there. The mother of the prosecutrix P.W.5 Bulanti Devi brought her to her house and when they were proceeding to the police station, some persons of the village requested them to agree for a Panchayati in the village itself so as to resolving the dispute, but nothing came out of it as a result of 3 which P.W.6 came to the police station and gave her fardbeyan. 4. The Investigating Officer has not been examined but what appears from the evidence of P.W.7 Dr. Nutan Verma, the prosecutrix was forwarded to her through the requisition appearing at the reverse page of Ext-1 the medical report, for examining P.W.6 and making the report on certain points. It is evident from the requisition which was submitted by the Investigating Officer who was then the officer-in- charge of Triveniganj police station that in spite of having recorded the fardbeyan on 21.04.2005 he was forwarding the victim for her medical examination by P.W.7 a day after, i.e., on 22.04.2004. The evidence of P.W.7 indicates that she had examined the lady P.W.6 on 22.04.2005 and had issued the medical report Ext-1. It may be noted that after the conclusion of the investigation the investigating officer sent up the two appellants for trial and that ended in their conviction and sentence as indicated earlier. 5. As may appear from the trend of cross- examination of the witnesses, the appellants were suggesting that the Mukhiya of the Gram Panchayat, namely, Rajendra Choudhary who had won the elections in spite of being opposed by the appellants and his family members were instrumental in getting the two appellants 4 implicated falsely through his men, i.e., the prosecutrix and her family members. Besides, it was suggested during the hearing of the two appeals by this Court that probability could be emerging from the evidence and admitted facts as if the family members of the victim were bent upon extorting some money from the appellants and the family members of the appellants were yielding to pressure. The prosecutrix was, set up to file a false case. So far as the specific defence of the appellants is concerned, they were making statement under Section 313 Cr.P.C. that they had been falsely implicated on account of enmity. 6. During the course of the trial, eight witnesses were examined out of whom P.W.3 Satya Narayan Yadav was declared hostile. Out of the remaining prosecution witnesses, it appears that almost of the witnesses were the family members of the prosecutrix. P.W.1 Sukumari Devi was the aunt of P.W.6, whereas P.W.2 Jitendra Kumar Sardar was the cousin brother of P.W.6 as he appears in paragraph-3 in his evidence. P.W.4 Jaimala Kumari admittedly is the younger sister of P.W.6 and P.W.5 as I have just noted is the mother of the prosecutrix and P.W.4. P.W.6 is the prosecution herself and P.W.8 Darshan Sardar is her father. 7. It was contended by Sri Binit Kumar, learned counsel appearing on behalf of the appellant 5 Chandan Yadav as also Sri Ajay, learned counsel appearing on behalf of appellant Lalan Yadav that there are certain circumstances which go unexplained and they are so eminent that they create a doubt regarding the veracity of the prosecution charges. It was next contended that the delay in lodging the FIR and the subsequent explanation regarding convening a Panchayati which allegedly ended taking a decision of imposing some fine by way of paying compensation by the appellants and there being no such story initially coming from any of the witnesses appears an after thought. The non-examination of the I.O. appears prejudicing the appellant in their trial. Contention further was that the witnesses alleged that there was a Panchayati and each of the appellants was directed to pay fine/compensation Rs.21,000/- each and that was refused to be paid and as such the delay in lodging the report appears not acceptable as there was no whisper any where at any stage right from the lodging of the fardbeyan up to the statements of witnesses before the police and that is highlighted by the cross-examination of the witnesses and their earlier statements and drawing their attention to the improvements they made in their evidence in the court. Contention as such was that the evidence itself appears not acceptable, may be that of the prosecutrix or of other witnesses. By 6 referring to the evidence of P.W.7 Dr. Nutan Verma who had medically examined the prosecutrix. It was contended that she was examining the prosecutrix on the 3rd day of the incident and she did not find any scratch any where on the person of the prosecutrix so as to lending any support to her story. Absence of the signs of struggles or commission of rape further created infirmities in the prosecution case and benefit thereof must accrue to the appellants. As regards the turn taken by the two appellants in committing the offence of rape upon the prosecutrix, the learned counsel appearing for appellant Chandan Yadav highlighted by referring to the evidence both of P.W.6 and P.W.4 and submitted that the conflict in the evidence appears only on account of the fact that nothing had happened as was alleged. 8. The basic prosecution story that the two sisters P.Ws.6 and 4 had gone out to pick up the cow dung cakes and were running at about 2 P.M. appears supported by all witnesses, even by witnesses, like, P.W.1 Sukumari Devi or P.W.2 Jitendra Kumar Sardar who have claimed to learn about the incident either from the prosecutrix or P.W.4 Jaimala Kumari who came back from the scene of occurrence as per the evidence of P.W.6 and herself. As soon as the basket which was containing the dung-cakes were pushed down by appellant 7 Lalan Yadav from the head of the prosecutrix and she was made to fall to be dragged to a place for being raped, the evidence of P.W.4 indicates that she ran to the rescue of her sister P.W.6 when she was calling her by shouting that she had been felled by the accused. This evidence is available in paragraph-7 of P.W.4. P.W.4 has stated in the same paragraph that she went near her sister and again ran back to her village after throwing her own basket and came to inform her mother and aunt with whom she again came back to the scene of occurrence. P.Ws.1 and 5 have stated that after having been informed about the acts of the appellants and specially the act that P.W.6 Sharmila Devi had been felled and was to be raped both of them and P.W.4 ran back to the scene of occurrence to find the lady P.W.6 lying on the ground. P.W.5 stated that she was senseless. There is some variance when P.W.4 stated that when they reached they found that appellant Lalan Yadav was still lying over the prosecutrix in the process of committing the offence. P.W.1 has stated that when she reached she found that the prosecutrix was lying on the ground, but by that time the two appellants had already made good their escape and the prosecutrix stated to her and others as to what had happened to her or what had been done by the two appellants. This much of variance appears in the 8 evidence of P.Ws.1, 4 and 5. P.W.5 who has also stated that she along with P.W.1 and 4 reached at the scene of occurrence, found that appellant Lalan Yadav had already put her daughter Sharmila Devi down on the ground and further that Lalan Yadav had caught the hands of Sharmila Devi, whereas appellant Chandan Yadav was committed rape upon her. 9. This conflict in the evidence of P.Ws.1, 4 and 5 does appear in their evidence, but one has always to keep it in ones mind that the evidence of a witness has to be scrutinized also keeping in view the background from which they come from. It may appear from the details of each and every witness that they were residents of the remotest area of the State of Bihar which boarders Nepal and is part of the revenue district-Supaul in the Judgeship of Saharsa. Community to which they belong to are the most primitive inhabitants of that particular area and they are still lagging far behind, due to not being touched by the rays of modernity and intelligence. The learned trial Judge has himself recorded in deposition of P.W.6 that the witness appear to be of low intelligence quotient and she was feeling difficulty in expressing as also in understanding the question to her by the learned Additional P.P. as also the learned defence counsel. This simple record about the demeanor of P.W.6, could 9 probably point out as to what could be the class of persons, who were deposing before the court below on such intricate issues of violation of the dignity of a lady by committing one of the heinous offences defined by the IPC. 10. It is true that the defence was taking a plea that they might have been set up by the Mukhiya Rajendra Chaudhary for foisting a false case. Besides, the appellants also stated to the court during their questioning under Section 313 Cr.P.C. that they had been falsely implicated on account of enmity but there was no single instance brought during the cross- examination of any of the witnesses which could indicate that they had any motive or grudge or any reason which could have compelled any of them to come to the witness box to depose falsely against the accused persons. There appear instant reasons from the record as to why the young lady from the family of P.W.5 or P.W.8 could be coming out with a false story which could be having an impact upon her own future life. 11. So far as the contention on the basis of the medical evidence is concerned, I simply want to point out that the evidence of P.W.7 Dr. Nutan Verma was of no use. In fact she was casual in examining the prosecutrix as she was not even indicating as to 10 whether her hymen was ruptured or it was intact or if there was any injury and what was the extent and nature of that injury. She has given a very general type of opinion that there was no sign of rape on the body or on the private part. In spite of that P.W.7 Dr. Nutan Verma was going to express that chances of rape being committed cannot be over ruled. The most curious aspect of the evidence of P.W.7 was that while deposing in court she was putting some time frame for existence or disappearance of injuries and some of the opinion of P.W.7 was quite contrary to the recognized opinions of eminent authors on medical jurisprudence. One such instance could be cited from paragraph-3 of P.W.7 wherein it was stated by her that spermatozoa cannot be found four days after the rape. What is indicated by this statement of P.W.7 is that spermatozoa could be traced in the visual track of a victim of rape within a period of four days and not beyond. This is quite contrary to the medical opinion expressed by authors, like, Modi and Others who have noted that no sperm mobile or non-mobile could be traced after 72 hours of the commission of rape. Not only that P.W.7 was going over board to define the offence of rape when she answered in cross-examination that molesting was also a kind of rape. This is quite contrary and astonishing a definition of rape P.W.7 was putting forth during 11 her cross-examination and on these reasons, I conclude that P.W.7 was not honest in examining P.W.6 or placing her opinion through her report Ext-1 before the court. The evidence of P.W.7 was of no use and it is useless to consider the evidence of P.W.7 on that account for any purposes. 12. It is true that the investigating officer has not been examined. It is also true that the attention of witnesses had been drawn to statements they were making before the trial court, but I have perused the case diary and I find that some basic facts were stated by them during the course of investigation as regards the holding of Panchayati. It might be a fact that they were not stating before the investigating officer about the final decision of the Punches regarding imposition of any fine which was refused to be paid by the parents of the appellants. In the above context I simply want to point out that rules regarding the manner in which the statements of witnesses have to be recorded by the Investigating Officer does not require a detailed or word by word recording of statements of witnesses, it simply requires the gist of it, to be recorded. 13. Reference may be made as regards the above manner of recording of statement of witnesses to Rule 170(d) of the Bihar Police Manual, 1978. As such 12 if the witnesses were magnifying their statements on the above fact of holding Panchayati by putting in the details, they may not be said to have embellished their evidence. In fact, those details appear to me necessary facts to be brought in the notice of the Court to appropriately comprehend the delayed lodging of report. 14. Sri Ajay, learned counsel appearing on behalf of the appellant Lalan Yadav was citing before me a decision reported in 2007(12)SCC 57 Radhu Vrs. State of Madhya Pradesh and was submitted that the facts of Radhu were inferior to the facts of the present case but still the Apex Court were passing an order of acquittal in favour of him. If one could have the glance of facts of that particular case one may find that some of the facts were found absurd in the background of the relationship between the prosecutrix and the accused persons. The accused persons were the Kaka and Baba of the prosecutrix besides there was a story of confining the lady for the whole night after gagging her mouth with a piece of cloth and thereafter to have sexually assaulted her by insertion of the male organ. Not only that there were glaring discrepancies in the evidence of some of the witnesses, like her parents. The medical evidence was not corroborating the story of sexual intercourse and there was minor injuries on the person of the prosecutrix which were by 13 themselves not sufficient to establish rape. I have already pointed that the evidence of P.W.7 the doctor is of no help and, rather, appears an influence and obtained report by the defence. I have also indicated the facts of the case and those facts clearly distinguish themselves from the facts of Radhu and in my considered view the case of Radhu is completely distinguishable under its own facts. 15. Considering the evidence on record, I find that the order of conviction and sentence passed upon the appellants was proper in the face of the evidence which was available to the trial court. In the result, I do not find any merit in the two appeals. They are dismissed. Patna High Court, Dated, the 16th day of August, 2011, Brajesh Kumar/AFR ( Dharnidhar Jha,J.)