IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.177 of 2007 Against the judgment of conviction and order of sentence dated 25.01.2007 passed by Additional Sessions Judge, Fast Track Court- IV, Biharsharif, Nalanda in Sessions Trial No.454 of 2006. SHARAN RAVIDAS, Son of Jaipati Ravias @ Rampati Ravidas Resident of village-Mora Talab, P.S.Rahui(Bhaganbigha O.P.)District-Nalanda. -------Appellant Versus State Of Bihar.... .... Respondent For the Appellant: S/Sri Santosh Kumar Sinha No.2, Arvind Prasad Singh, Dr. Vidya Nand Kumar, Suresh Singh, Dr. Ravindra Kumar, Advocates. 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 solitary appellant was charged with and tried for committing the offence under Section 376 IPC by the learned Presiding Officer, Fast Track Court-IV, Biharsharif in Sessions Trial No.454 of 2006 and was convicted of committing the offence by judgment dated 25.01.2007. After hearing the appellant on sentence on the same day, the learned trial Judge directed the appellant to suffer rigorous imprisonment for ten years. The appellant has preferred the present appeal to challenge his conviction and sentence passed upon 2 him. 2. Ext-1, the written report of P.W.7 Ashlok Ravidas, the father of the victim(P.W.6)who was aged about nine years was the basis for drawing up the FIR Ext-2/1. The case was investigated into by P.W.12, S.I. Siddheshwar Kumar Dubey. 3. It was stated in the written report that when the victim was returning after Holikadahan at about 10.30 P.M. on 14.03.2006, this appellant picked her up and took her into a wheat field and raped her. She cried out and people heard her cries. She was under immense pain and came to her house and narrated her incident to her parents. 4. As may appear from the evidence of P.W.12 and P.W.11, the investigation officer and the doctor respectively, the victim was found bearing a swelling and bruise measuring 1”x1” below left lower eyelid and another abrasion measuring ½” was present on her right cheek. It is true that there was no sign of injury on the perineum part of the body of the victim but the vaginal orifice was found wide and hymen was found lax as a result of which it admitted one finger. However, the hymen was found intact and the pathological report did not show presence of semen in the vaginal swab. The red-blood-corpuscles(R.B.C.) and white-blood- corpuscles(W.B.C.) were found in the swab as a result 3 of which the board of the three lady doctors which submitted Ext-3, its report, was of the opinion that the possibility of sexual assault upon the victim was there. 5. The investigating officer, P.W.12 after examining the witnesses and finding the material sufficient sent up the present appellant for trial. 6. The defence of the appellant was that one of his distant relatives had borrowed Rs.200/- from P.W.7, the father of the victim and there was a quarrel between the parties about 2-3 days prior to the Holi festival and as result thereof the present false case had been lodged. 7. The prosecution examined 12 witnesses in support of the charges whereas the defence produced two defence witnesses in support of the version I have just noted. Out of the 12 prosecution witnesses, P.Ws.8 and 9 were formal in character, having identified the signatures on certain documents. Out of the remaining witnesses, P.Ws.3 and 4 were of no consequence as they stated that they were sleeping in their house and they heard about the occurrence as may appear from the evidence of P.W.13 while P.W.4 stated that he learnt about the occurrence in the next morning. So far as P.W.1 Puna Paswan, P.W.5 Binay Ravidas and P.W.10 Arjun Paswan are concerned, P.Ws.1 and 5 stated that they 4 accompanied P.W.7, the father of the victim up-to the house of P.W.10 Arjun Paswan for hiring his Tonga for taking the victim to Biharsharif hospital. P.W.10 has stated that the informant along with P.Ws.1 and 5 had come to his house in the relevant night for borrowing the Tonga from him for taking the victim to the hospital and, accordingly, the victim was taken to the hospital by his Tonga. That part of the evidence is also corroborated by the evidence of P.W.6, the victim who has stated that she was taken to Biharsharif by her father after he had brought the Tonga from P.W.10 Arjun Paswan. Other witnesses, like, P.W.2 Shiv Balak Ravidas appears a witness who was in very close proximity to the victim. He had also gone to participate in the Holikadahan and he stated that after having taken his meal when he went there and when he was coming back, he heard the sound of “Bachaiye- Bachaiye” and on reaching near the wheat field, he found the victim who had been gagged with the help of Gamchha and who told him that she had been taken in the wheat field for being raped. P.W.5 has further stated that her pant was wet and he and others took the victim to the doctor for her examination. P.W.7, the informant of the case, has stated that his daughter came to his house and narrated the incident that the appellant had picked her up to take her to the wheat field and after 5 gagging her had committed rape upon her. The victim has narrated the story by telling that while she was coming back after Holikadahan, this appellant caught her and took her into the wheat field where she was undressed and raped as a result of which she was in great pain and her short was wet. She came to her house to narrate the story to her parents. It further appears from her evidence that she was not taken to the hospital or to the police station in the very night of the incident rather her father borrowed the Tonga from P.W.10 to take her to Biharsharif, where she gave her statement to the police and was also medically examined. 8. Thus, the prosecution witnesses who were examined appear coming in support of the charges. The fact that P.W.6 was raped has been supported by her own evidence and that is corroborated by the evidence of P.W.2 Shiv Balak Ravidas who was very much around the place of occurrence, the wheat field. Her father P.W.7 has also stated that he was told by his daughter about the occurrence. Witnesses, like, P.Ws.1, 5 and 10 have stated that the victim was taken by the Tonga of P.W.10 Arjun Paswan to Biharsharif where she was medically examined. 9. It was contended by Sri Santosh Kumar Sinha No.2, appearing on behalf of the appellant that there was no sign of rape found by the doctors as there 6 was no perceptible injury recorded by the board anywhere on the private part of the victim. It was contended that the two abrasions or bruises which were reported by the board of doctors through Ext-3 were not recorded by the investigating officer P.W.12 further did not find any trampling of wheat plant in the place of occurrence field. 10. It could not be said that there was no injury found on the private part of the victim. The medical evidence which has been brought on record by examining one of the three doctors, namely, Dr. Krishna(P.W.11)indicates that the vagina was wide and the hymen was lax though intact. These two findings clearly indicate that there was clear penetration of some hard and blunt substance so as to dilating the orifice as also the hymen. This could be sufficiently indicating that penetration was there. It might be on account of any other reason like the resistance coming from the nine year old child or her cries which had attracted persons who were around the place of occurrence that there had not been devastating penetration. But, some bleeding was there, may also be inferred from the very fact that the board of doctors found the presence of R.B.C and W.B.C in the vaginal swab. These two findings recorded by the board of doctors clearly lends support to the fact that the 7 appellant had successfully penetrated his organ in the private part of the little child of nine years which was the assessed age of the victim. 11. The evidence of the victim is sufficient in itself to indicate as to how she was ravished. I was taken through some of the paragraphs, like, 3, 5 onwards of the evidence of P.W.6. But, when I was perusing that part of her evidence, what I could conclude was that the learned defence counsel who was putting question to the victim was simply attempting to confuse her or bring on record some evidence which might be confusing the court in recording clear findings. Those parts of the evidence of P.W.6 in my opinion appears completely inadmissible because the questions were misleading and confusing which should not have been allowed to be put by the learned trial Judge. The defence has the right to cross-examine and the right to cross-examine a witness entitles the defence to put leading questions, but never the questions which could be confusing or misleading. This was the subtle difference that the learned trial Judge was missing out on recording the evidence of P.W.6 and that appears the reason that the learned counsel appearing before me was pressing hard by that part of the evidence of P.W.6 to submit that the little child was completely confused on the manner of occurrence. I 8 have already noted down the reason as to why and how the defence was putting those confusing questions. The other reason which I find is that the defence might also be a bit nervous finding the seriousness of the occurrence in which the appellant had indulged into, specially, when the board of doctors was so clearly furnishing its opinion on the commission of offence. At any rate, the evidence of P.W.6 was sufficiently indicative of the fact as to how she was picked up and taken into the wheat field for being sexually assaulted. 12. Submission was that the investigating officer was not finding any trampling mark in the wheat field. Submission also was that the victim had not stated before the police that her father had borrowed any Tonga from any one. It is true that the means of conveyance was not stated by the victim before the police as I have myself perused the part of the case diary containing the statement of the victim. But, that appears a simple omission because the victim had stated before the police that she was taken to Biharsharif. This fact could also be acceptable to any reasonable person because unless she was taken to Biharsharif and was admitted into the hospital, how could it be possible that the three lady doctors could be requested to form a board of doctors in Biharsharif to examine 9 the victim in Biharsharif unless she had been taken to that particular place. Over stretching the evidence is always antithesis to criminal trial and no finding could be obtained from any court on that premise. 13. The submission that the police was not recording the presence of injury on the person of the victim also appears hollow, when one considers the requisition which was issued by P.W.12. The requisition submitted by the police to the doctor clearly stated that the doctors were to give opinion regarding the presence of any other injury which could be found on the person of the victim. Requisition does not indicate that P.W.12 had himself observed the victim or her body for finding out the presence of any injury. If the police was failing in performing its duties or was at all not performing it, for that failure of the police the court must not throw the case of the prosecution out. 14. Witnesses have come out to state that the occurrence had taken place in a particular wheat field. The witnesses do not appear inimical towards the appellant. They appear to be the villagers of the appellant as also that of the informant or the family of the victim. They do not appear having any particular compelling reason to speak out untruthfully towards the appellant. There is no reason to discard their evidence 10 when they were saying that the occurrence had taken place in that particular wheat field. Inept handling of the investigation or over confidence in investigating a case of rape, might be the reasons for P.W.12 to have missed out that particular point. 15. After having gone through the evidence of the witnesses, the defence version which was put through D.Ws.1 and 2 appears a far fetched story which could hardly influence the mind of any reasonable person. The defence plea is fit to be rejected. 16. After having gone through the evidence and considered the findings recorded by the learned trial Judge on that basis, I find that the appellant was appropriately convicted, but was sentenced on the lower side of the desired quantum of punishment to be inflicted considering the circumstances and the nature of the offence. But, now that almost five years has passed off the incident and four years after preferring the appeal in absence of any notice to enhance his sentence, this Court does not intend to exercise that jurisdiction. The appeal fails and it is dismissed. Patna High Court, Dated, the 19th day of October, 2011, Brajesh Kumar, NAFR ( Dharnidhar Jha,J.)