IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.480 OF 2007 Against the judgment of conviction dated 30.03.2007 and order of sentence dated 03.04.2007 passed by Ist Additional Sessions Judge, Khagaria in Sessions Trial No.121 of 2002. RAM NATH YADAV, Son of late Ram Jeewan Yadav, Resident of village-Jhakhara, P.S.Alauli, District-Khagaria.... .... Appellant. Versus State Of Bihar.... .... Respondent For the Appellant: Sri Om Prakash Pandey, Amicus Curiae 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 Ram Nath Yadav was charged with committing the offence under Section 376(2)(g)IPC by the learned Additional Sessions Judge, Khagaria in Sessions Trial No.121 of 2002 and by judgment dated 30.03.2007 was held guilty of committing that offence. After hearing the appellant on sentence on 03.04.2007 the learned Judge directed him to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.10,000/- in default of payment of which the appellant had to suffer rigorous imprisonment for a further period of six months. The appellant has preferred the present appeal to question 2 the appropriateness of findings and sentences passed upon him. 2. When the appeal was called out for hearing, the learned counsel who holds power on behalf of the appellant attempted to withdraw the appeal on the plea that the appellant might have served out the sentence and arguing the appeal was useless. But, this Court finding that the ends of justice would suffer immensely, sought his views on engaging an Amicus Curiae so as to finally thrashing the facts of the case for examining the vires of the findings recorded by the learned trial Judge and with the consent of the counsel who holds power requested Sri Om Prakash Pandey, Advocate to assist it who readily agreed to address submissions on the facts of the case. Before I examine the submissions and in that light findings recorded by the learned trial Judge I feel it pertinent to notice the brief facts. 3. The victim P.W.1 who was said to be aged 15 years and was assessed aged in between 15 and 16 years by P.W.7 Dr. Bimla Kumari, was out of her house to attend to call of nature on 10.08.2000 at about 4 P.M. She went towards the pond and when she reached near it, as per the written report Ext-2, the present appellant along with co-accused Ghantulia Yadav who were sitting there captured the lady to drag her into 3 the nearby orchard situated south west to the pond at gun point and is said to have committed rape upon her one after the other. 4. After being freed from the clutches of the accused, the lady in a distressing condition came to her house to narrate the incident to her parents. The informant who happened to be her father lodged the report in the next day, i.e., on 11.08.2000 and on that basis the FIR of the case was drawn up and the investigation was proceeded with. 5. The investigating officer did not appear to depose in court. However, the lady doctor who was requested to examine P.W.1 for injuries in the light of the allegation of being raped by the accused persons has stated that the lady was forwarded to her with requisition and, accordingly, she examined P.W.1 and issued Ext-3, the injury report. During her examination P.W.7 found the victim aged in between 15 and 16 years and further found that her hymen was ruptured, red, inflammed, and tender. The vagina was admitting two fingers easily and red grainulation of tissues were present on the post vaginal wall on hymen. P.W.7 stated that she extracted the vaginal swab and sent the same to the Pathologist of Sadar Hospital, Khagaria for examination and that report appears in the form of Ext-4. 4 6. Even without the evidence of the I.O., it could be safely said that he had examined the witnesses who had come in any manner to support the allegations and finding the materials sufficient, sent up the present appellant Ram Nath Yadav for his trial. What further appears from the impugned judgment is that probably the investigation against co-accused Ghantulia Yadav was kept pending and, as such, in spite of a provision under Section 209 Cr.P.C. that the case in its entirety has to be committed, the Chief Judicial Magistrate, Khagaria split up the case of the present appellant for being committed to the court of Sessions and this is how the trial proceeded which ended in the impugned judgment. 7. The defence of the appellant was that one of his relatives had filed a complaint case alleging kidnapping of one of the family members of the appellant against one of the witness, i.e., P.W.3 and that was the reason that the informant had foisted a false case by falsely implicating the appellant. To be précised, it must be noted that the defence was not seriously challenging that the lady was ravished. What the defence had in fact challenged was the false implication of the appellant. 8. In support of the charges, the prosecution examined as many as seven witnesses which included 5 P.W.1, the victim and her parents P.W.5 Chandrakanta Devi and P.W.6 Dinesh Prasad Singh, her father. P.W.4 Abhay Kumar Singh was the brother of the informant. P.W.2 Lali Sada did not support the prosecution case and he was declared hostile. P.W.3 Dhirendra Kumar Singh simply statd that he had not seen any part of the occurrence nor was he told about the incident by the victim rather he heard the story when P.W.1 was narrating it to her parents. I have already discussed the evidence of P.W.7 Dr. Bimla Kumari who had medically examined P.W.1, the victim of the case. 9. It was contended by Sri Om Prakash Pandey, the learned Amicus Curiae that it is true that the evidence of victim has alleged commission of rape by the present appellant and the co-accused Ghantulia Yadav but some of the findings recorded by P.W.7 Dr. Bimla Kumari indicated as if the lady was habituated to sexual intercourse and as such the admission of two fingers in her vagina. What Sri Pandey was indirectly attempting to impression upon this Court was that the lady who was not married might be of easy virtue and may be that she had confronted some other male partner so as to purchase the injuries which was recorded by P.W.7. Sri Pandey was further castigating the prosecution case on the ground of delayed report by P.W.6 who was none-else than the father of the victim 6 and was further castigating the delayed dispatch and receipt of the copy of the FIR by the Magistrate. It was submitted that incident had occurred not in the later part of 10.08.2000 rather at quite some convenient time, i.e., 4 P.M. and it may be true that the police station was at a distance of about 20 kilometers from the place of occurrence village- Jhakhara, but the lodging of the written report at 2 P.M. on the next day, i.e., 11.08.2000 without any legitimate explanation creates some doubt as to why it was not a bit prompt. It was further contended that the belated lodging of the report and the doubt arising on that account is further compounded by the receipt of the copy of the FIR by the Chief Judicial Magistrate, Khagaria on 13.08.2000, i.e., after two days of the institution of the report. The third contention was that P.W.5, the mother of the victim was stating in paragraph-3 of her evidence that the sugarcane field which was the place of occurrence and the surrounding paddy fields were bearing water and if the offence was committed at such a place after dragging the lady who was at quite some distance then it could safely be presumed that her clothes could be bearing the evidence of dragging in the form of mud marks but no such cloth was produced or appears seized during the course of investigation. Sri Pandey was 7 further enforcing his first contention about the lady being sexually habituated by drawing the attention of the court to the evidence of P.W.6 in para-4 in which he stated that all his four children were major and thereby indirectly suggesting this court that the theory which he had propounded may not be brushed aside. 10. Sri S.N.Prasad, learned A.P.P. has submitted that the delayed lodging of a report in a case of rape may not be very significant as the family members are very slow in the matters of the present nature to publicise it by lodging the report. It was contended that they ponder over the situation many times before they come out with a report of the nature as was filed in the present case. It was further contended that there may not be many witnesses to an occurrence of the kind. The court may consider that because, the only witness could be the victim or the accused and it could be too much to seek corroboration from other sources of the allegations as are levelled against the present appellant. However, it was contended by Sri Prasad, that it could not be said that the victim was going uncorroborated. The very medical opinion of P.W.7 was a good corroboration and the solitary evidence of P.W.1 could be sufficient to sustain the conviction. Submission also was that 8 circumstantial corroboration also comes from other witnesses. 11. While I was going through the records and hearing Sri Pandey, the learned Amicus Curiae, I was simply searching for one evidence as to whether there was any serious enmity between the parties so as to inferring some semblance of chance of false implication of the appellant. The solitary complaint petition which was admittedly filed by one of the relatives of the appellant against the informant and others was related to an occurrence of 14.08.2000 and as such P.W.6 was candidly admitting that he along with others was made an accused for the alleged kidnapping of one of the relatives of the appellant. Even if it may be accepted, the defence could not have derived any benefit out of it simply for the reason that the particular complaint related to an occurrence which had taken place four days after the victim was complaining being raped by the appellant and another three days after written report Ext-2 had been lodged with the police. In addition to the above, the victim was an unmarried young girl. The injuries which were found by P.W.7 were of such serious proportions that the same could not be framed by any other source voluntarily by such a young unmarried lady and as such she could not have any particular 9 motive or purpose for falsely implicating innocent persons because ultimately it was not only her credibility which would have been at stake but her whole future could have been jeopardized by foisting a false charge upon the appellant but also that she would have been branded as a lady who was of such easy virtue as to slapping false allegations. This is one reason upon which the evidence of P.W.1 has to be accepted. The other reason is too well-known to be reiterated that a victim of rape is not an accomplish rather she stands on a footing of an injured witness and her testimony could not be brushed aside. 12. The lady P.W.1 has stated in her evidence that when she had come out of her house to attend to the call of nature and had gone towards the pond the two accused persons were sitting there and as soon as she reached there this appellant put a pistol upon her and other co-accused Ghantulia Yadav whose trial was separated dragged her towards the orchard and thereafter this appellant undressed her and the two accused persons committed rape upon her one after the other. In her cross-examination, the lady has stated that on the date of occurrence she was a student of class-VIII in a primary school of her village and that she could not appear at the examinations on the date of occurrence. She appears cross-examined in 10 paragraph-3 and she has stated that she used to go all alone for attending to the call of nature towards the pond and there was no fixed time and she further stated in paragraph-4 that as soon as she had reached the pond she was captured by the accused persons from behind and a pistol was put upon her by one of the accused while the other dragged her towards the place of occurrence. She was put questions on the description of the arms and the manner in which she was suffocated as to how she was targeted and on consideration of the evidence which has appeared in paragraphs-4, 5 and onwards of P.W.1, I am satisfied that her version which was narrated by her appears quite natural and there is no element of artificiality so as to inferring false implication of any accused. 13. So far as other evidence on record is concerned, P.W.6, the informant who happens to be the father of P.W.1 and her mother P.W.5 stated that their daughter P.W.1 came in a highly distressed condition and narrated the incident to both of them. There is some minor variance between the evidence of P.Ws.5 and 6 when P.W.6 was stating to the court that the victim was narrating about the incident, to her mother, i.e., P.W.5. P.W.5 was stating that the victim was stating about the story as to how she was ravished to her father when she heard the whole story. It was this 11 minor conflict in the evidence of P.Ws.5 and 6 which was being highlighted by Sri Pandey so as to impressing upon me on their untrustworthiness. One has always to be very practical in appreciating the evidence of witnesses specially when they are the parents whose ward had been raped. The mental state of parents in such a situation could be so disturbing that it could be very difficult for them to disclose the facts exactly in the manner in which it could have been narrated or in which they could have perceived them. Besides, the human conduct and the frailty on such minor details could never be ignored while appreciating the evidence of witnesses specially the parents of the victim of rape. At any rate, it is the admitted position that the victim was narrating the story to her parents. Even if it would not have come from the mouth of the victim or any witness it could safely be presumed that the victim must have narrated the story to her family members then only it could have been possible for any of them to file a report. Moreover, the consistency of the evidence of the victim with that of the report Ext-2 lends more credence to the veracity of the prosecution version specially when they were narrating that story as was told to them by P.W.1. 14. P.W.3 Dhirendra Kumar Singh and P.W.4 12 Abhay Kumar Singh are witnesses who stated that they picked up the story while P.W.1 was narrating it to P.Ws.5 and 6. Thus, the statement of the victim which was made to her parents just after the incidents had occurred and which was picked up by P.Ws.3 and 4 could not be ignored to hold that there was no circumstantial support to the story which was narrated by P.W.1. 15. I have already discussed the evidence of P.W.7, Dr. Bimla Kumari. While highlighting the findings of P.W.7, specially when she was stating to the court that red grainulated tissues were found present on post vaginal wall and hymen, Sri Pandy was making an argument that the lady was sexually habituated and grainulated tissues which were reduced in colour could have been only on account of the fact that the lady had sex earlier as well. I must appreciate the ingenuity of Sri Pandey in framing the argument but that argument ignores the medical views. It may be found in any authentic medical text that as soon as a lady who had never been subjected to sexual intercourse is subjected to such an act, the hymen and the adjoining tissues get ruptured and the tissues get grainulated. This was the finding which was being recorded by P.W.7 and that was more by way of supporting the case of the prosecution that the two 13 grown up persons, like the present appellant and his accomplice Ghantulia Yadav had committed the act. The evidence of P.W.7 clearly lends support to the act which was complained of by P.W.1 and there could not be any doubt about it that the appellant and his companion accused had committed the act of rape upon the victim. 16. After having discussed the evidence and the materials available on record, I find that the appellant was rightly convicted of the offence and was appropriately sentenced by the learned trial Judge. The appeal appears of no merit and the same is dismissed. 17. This court records its sincere appreciation of the assistance which it got from Sri Om Prakash Pandey, Amicus Curiae and directs that one fee of hearing should be paid to him by the Patna High Court Legal Services Committee. Patna High Court, Dated, the 4th of November, 2011, Brajesh Kumar, NAFR ( Dharnidhar Jha,J.)