CRIMINAL APPEAL No.240 OF 2006 ( In the matter of an application under sections 374(2) and 389(1) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 02nd March, 2006 passed by Shri Ravindra Prakash Sinha, Additional Sessions Judge I, Katihar in Sessions Trial No. 61 of 1988 arising out of Katihar Police Station Case No. 04 of 1988) ********* MD.RAHMAT, SON OF LATE WASIR, RESIDENT OF VILLAGE CHAKHMAN TOLA, POLICE STATION BALIA IN THE DISTRICT OF BEGUSARAI, PRESENT RESIDING NEAR BUS STAND, KATIHAR, POLICE STATION KATIHAR IN THE TOWN AND DISTRICT OF KATIHAR……………………………………….APPELLANT Versus THE STATE OF BIHAR ……………………………..………………………RESPONDENT FOR THE APPELLANT :- MR. BIMAL KUMAR, ADVOCATE MR. BIRENDRA KUMAR, ADVOCATE FOR THE S T A T E :- MR. SATYA NARAYAN PRASAD, A.P.P. *********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. This appeal is directed against the judgment and order dated 2nd March, 2006 passed by the Additional Sessions Judge I, Katihar in Sessions Trial No. 61 of 1988. The prosecution case in short is that the informant Amina Khatoon who is the mother of the five - years victim girl had gone to purchase some clothes on 01.01.1988. When she returned home, she found that her daughter Rajida Khatoon was crying. Rajida Khatoon - 2 - disclosed that she had fallen down and refused to eat that night. In the next morning, it is said that the elder sister of Rajida Khatoon found Rajida hiding her under- garments and when the elder sister examined the under- garment, she found that it was stained with blood. With great difficulty, the mother and sister were able to decipher that the child was taken behind the beetle shop and the child disclosed that the appellant had undressed her and ravished her. Several witnesses have been examined in this case on behalf of the prosecution. P.W. 1 Moti Lal Jaiswal is a witness to exhibit-1. He is a hearsay witness with respect to the occurrence. He has said that he does not know the person responsible for t he occurrance. P.W. 2 Sk. Tahir is the father of the victim girl. He has stated that on enquiry he came to know that his daughter was crying because she had hurt herself. It was only in the next day that he learnt that the underpants of Rajida Khatoon were stained with blood and he also learnt from his wife that Md. Rahmat had raped his daughter. His evidence is only important for the reason that a suggestion has been given on behalf of the appellant that this witness had borrowed Rs. 1800/- from the appellant and in order to pressurize the appellant, this false case has been instituted. The - 3 - independent witnesses P.Ws. 3, 8 and 9 claim that they have no knowledge with respect to the occurrence and they have not heard anything in the village regarding the said occurrence. P.W. 4 Hazra Khatoon is the elder sister of the victim girl. The Court has estimated her age to be 11 years at the time of giving of the said deposition. According to Hazra Khatoon she saw that her younger sister was hiding her undergarments. On examination of the undergarments she found that it was stained with blood and her sister Rajida Khatoon, the victim girl is said to have told her that Md. Rahmat had committed a wrong act with her one day earlier. The mother of the victim girl has been examined as P.W. 6. This witness found that her daughter was crying when she returned from the market. On questioning it is said that she did not disclose reason for her distress. It was only when her elder daughter disclosed the reason for crying that she came to know that her daughter had been raped. This witness has given in some detail the story as revealed by her daughter. According to P.W. 6 Md. Rahmat had given some money to the child to buy ‘Paan’ and thereafter followed her to the ‘Paan’ shop. It is said that he took her behind the ‘Gumti’ and is said to have committed rape. - 4 - P.W. 5 aged 8 years at the time of deposition is the victim girl who has also been examined in this case. She confirms that she has been raped by Md. Rahmat. According to the victim girl it is said that there are several shops at the alleged place of occurrence. She claims that she fainted after the occurrence and thereafter Md. Rahmat carried her to her home. She denies that she has given evidence on the pressure and under the influence of her father and mother. The important witness in this case is the Doctor who has been examined as P.W. 7. She has stated that there was no mark of injury on the body of the girl. The Doctor also does not find any injury on the external genetalia. On internal examination the Doctor has found that the hymen was recently torn. The Doctor find that there is a lacerated wound ½” x ¼” x ¼” however, spermatozoa was not found on pathological examination. According to the Doctor penetration did not take place as that would obviously lead to grievous injuries. Learned counsel for the appellant submits that the evidence that has been brought on record ought not to be believed by this Court as the entire story is improbable. The contention of the learned counsel for the appellant is based on the reason mentioned hereinafter i.e. firstly, it is submitted that the occurrence - 5 - took place on 1.1.1988 in the day time in a crowded place i.e. just behind the shop and Gumtis situated in the market place and yet there is not a single witness who has come forth to state that they heard the sound of the child crying. It has been submitted that even according to the informant and her mother the occurrence took place behind a ‘Paan’ shop and not at a lonely place. The evidence of the victim girl in Court also makes the prosecution case unbelievable. According to Rajida Khatoon she fainted and was carried home by the appellant. It is submitted that if this was true it would have been noticed by the persons present at the place of occurrence and certainly the ‘Paan’ shop owner would have noticed that an unconscious child being carried in someone’s arms. It is further contended by the counsel appearing on behalf of the appellant that the entire prosecution case appears to be based on the statement of a child who is 5 years of age and her sister who was 8 or 9 years of age at the time of occurrence. It is unimaginable that the victim child did not disclose the incident to her sister or mother as soon as she saw them. The natural and immediate reaction of a child should be to go to the mother and narrate whatever had taken place with her. It is submitted that even if a child of 5 years falls down or has a fight with her pears or sisters and - 6 - brothers, she immediately goes to make a complaint, the natural conduct would be that she would immediately run to her mother to make a complaint about the said incident. In fact the story made out by the prosecution that the child cried the entire night and did not disclose the reason for her distress appears to be cooked up by the informant. It is pointed out that a child of 5 years can have no knowledge about right and wrong, she would not hide the fact that her underpants was stained with blood from her mother rather she would have gone to her mother to express herself and display her injuries. Learned counsel has attacked the manner and behaviour attributed to the child. Similarly it is not expected that a child of 8 or 9 should know the facts of life, would be aware that some untoward incident had taken place when she found that her younger sister’s underpants was stained with blood. Moreover, it is pointed out that in the incident of this type would have become the talk of the village and persons would have come forward to protest against such a heinous act. The fact that the independent witnesses appear to be completely unaware regarding the incident of rape goes to show that no occurrence had taken place in the manner alleged. This Court finds that the evidence and the conduct of the parties cannot be held to be above board and there are - 7 - serious anomalies regarding the narration of the incident by the witnesses aforesaid. As indicated above the medical evidence shows that the hymen of the girl was torn and she has some injuries. The Doctor has not specified the exact part of the body where the injuries were found. However, it cannot be ignored that the hymen of the young girl was torn. On behalf of the appellant it has been contended that if the child had been raped then she would have received injuries on her body as it cannot be believed that the child would have not protested or cried specially when she was raped on a hard surface. It is further submitted that in a case of this type even an attempt to penetrate the vagina of the young child could cause severe injuries and the hymen could have been torn because the child has fallen down and met with an accident. It is further submitted that the use of the word MAY in giving the opinion that the injuries may have been caused on account of sexual assault indicate that the Doctor was not sure that rape was committed on the child in question. I may point out in the case of this type where rape is said to have been committed on a child, there is no question of doubt being created regarding the factum of rape whether full penetration took place or not. Any sexual assault on a child would result in serious - 8 - injuries. The submission on behalf of the appellant therefore, is that in this case the medical evidence by itself cannot lead this Court to conclude that the girl in question was raped by the appellant specially in view of the evidence lead by the witnesses regarding the manner of the occurrence. The evidence led in the Court with respect to the manner of the occurrence does not inspire confidence as there are several serious lacunas in the evidence and if the Court had to consider the oral evidence it would not be possible to convict the appellant for the offence under Section 376 taking into account keeping in mind the fact that there is a suggestion that there was the reason for implicating the appellant in the occurrence. The medical evidence does not conclusively prove the factum of rape but at the same time, the Court finds that the child was sexually assaulted and this Court cannot completely ignore the fact that the Doctor found that the hymen of the child was torn whatever to be the reason for such an injury. In the circumstances, after considering both the oral evidence and the medical evidence, I find that the conviction of 10 years is harsh in the special circumstances made out in this case. Considering the - 9 - fact that the appellant has remained in custody for 4 years and 4 months and that the occurrence has taken place in the year 1988 i.e. 21 years ago, this Court feels that it would meet the end of justice to reduce the sentence of 10 years to 7 years. The appeal is dismissed with the aforesaid modification in sentence. ( Sheema Ali Khan, J. ) Patna High Court July, 8th, 2009 N.A.F.R./Anand/Sanjay