1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.294 of 2008 - - - - Against judgment of conviction and order of sentence dated 13.12.2007 passed by Ist Assistant Sessions Judge, Darbhanga, in Sessions Trial No. 204 of 2001. - - - - Ramdeo Mahto, son of Shiv Lal Mahto, resident of Village Mabbi, P.O. + P.S. Sadar, District Darbhanga .... .... Appellant Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : For the Appellant : Shri Sunil Kumar Karn. For the Respondent : Shri Ajay Mishra, A.P.P.. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - The present appeal by solitary appellant Ramdeo Mahto is directed against judgment dated 13.12.2007 passed by the learned Ist Additional Sessions Judge, Darbhanga, in Sessions Trial No. 204 of 2001. By the impugned judgment the appellant was convicted of committing the offence under Section 376 of the Indian Penal Code and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs. 5,000/-, else, to suffer simple imprisonment for three more months. 2. The prosecution case is contained in the fardbeyan( Ext.1) of P.W. 4 the victim of the offence recorded on 25.3.2001 at about 1.30 P.M. at the house of her father. It was stated by the victim that when she was in the orchard of the village to pick up dried up leaves and when she was in the process of lifting it to keep it on her head, this appellant appeared all on a sudden there and pushed the basket down her head and after gagging her by putting cloth in her mouth raped her at the point of a Chhura. When 2 the appellant satisfied his lust, he ran away and the victim raised hulla and came to her house to narrate the incident to her mother, P.W. 3 Mira Devi. 3. On the basis of Ext.1, the F.I.R. of the case was drawn up by P.W. 6 S.I. Lal Bihari Paswan who was the Officer-in-charge of Mabbi Out Post of Darbhanga sadar Police Station and he took up the investigation himself. In fact, P.W. 6 stated that he had picked up some rumours that some incident of eves-teasing had occurred at Belan Chowk in an orchard, and in order to verify the correctness of the information he came to the said orchard in village Mabbi when he found people assembled and then learnt about the occurrence. He, thereafter, came to the house of the father of the victim where he recorded the fardbeyan(Ext.1) of the victim. P.W. 6 further stated that after recording the fardbeyan, he sent a copy of the same to the Police station for institution of the case and, accordingly, Ext. 4 was drawn up. P.W. 6 thereafter proceeded to investigate the case and during that course recorded the further statement of the victim and other witnesses who were acquainted with the facts and circumstances of the case and inspected the place of occurrence also. He sent the victim for her examination to DMCH and after completing the investigation sent up the solitary appellant for trial, which ended in the conviction and sentence of the appellant, as indicated above. 4. The defence of the appellant was complete denial of his participation in the commission of the offence or even the occurrence having taken place as alleged. It was suggested to P.W. 4 the victim of the occurrence that in fact a false case had been foisted at the behest of her mother P.W. 3 and nothing had happened with her as was alleged by the prosecution. 3 5. In support of the charge, the prosecution examined six witnesses. P.W. 1 Malti Devi alias Mira Devi who was one of the ladies who had been told about the incident by P. W. 4, the victim of the occurrence, did not support the story and rather stated that she was at all not knowing the victim and, as such, quite unaware of any part of the occurrence as was alleged by the prosecution. She was declared hostile and in cross- examination she was put some questions which were relating to her oral statement made before the police. P.W. 2 Murti Devi was one of the co- villagers of the victim and she stated that after having come back from scrapping grass when she reached the place of occurrence, i.e., the orchard, the victim clasped on to her. She was in a very bad shape and, accordingly, P.W. 2 sat with her whereafter P.W. 4 narrated to her as to how she had been violated by the present appellant. P.W. 2 was tested by being cross-examined as to what was the place she had gone to scrap the grass and what was the time she was coming back after scrapping the grass and when she did meet the victim when she clasped on to her. Certain questions which might have been within the knowledge of P.W. 3 were asked to her like as to for how long the victim was unconscious and whether she had ever gone after the occurrence to inform the family members of the victim and again who had brought her for deposing in court. She appears natural when she stated that she could not know as to whether the victim was unconscious because she did not visit her house again after the incident and also that she had been accompanied by the mother of the victim up to the court for deposing in the case. The veracity of P.W. 2 could be tested from her conduct when question was put to her as to whether she narrated the story as told to her by the victim. 4 In reply to the question she had deposed that she did not know anything about the occurrence nor she had stated anything about the occurrence to the villagers. The distance of the place of occurrence as given by P.W. 2 appears withstanding with that of the prosecution case which appears the case of the defence as well. 6. So far as the evidence of P.W. 3, the mother of the victim is concerned, she has stated hat her daughter had gone to pick up leaves in the orchard in between 12 Noon to 1 P.M. She came weeping to the house and narrated the incident when she was about to put the basket, full of leaves, on her head this appellant came, pushed the basket down her head and after stuffing her mouth with cloth, committed rape with her at the point of a knife. She further stated that the Sub-Inspector of Police came to her house at about 1.30 P.M. who recorded statement of her daughter( P.W. 4) which was signed by herself, her daughter and Chaudhary Yadav, elder brother of her husband which have been marked Exts. 1, 1/1 and 1/ 2 . The cross- examination part of P.W. 3 indicates that the defence was attempting to castigate the evidence of the witness which puts a ting as if the witness had been tutored by the Advocate. As such, a question had been asked as to whether P.W. 3 engaged a counsel to look after the trial and she answered ‘yes’ . A question was also put to her as to whether she was also tutored by the Advocate to say that her daughter was alone when she ( P.W.4) had been ravished by the appellant. But, while the appellant was castigating the evidence of P.W. 3, he was putting to her completely inadmissible misleading questions which was put in paragraph 4 of P.W. 3 as to whether due to being instructed by the Advocate to go to the Police Station she had gone there for lodging the 5 case. This Court feels that the learned counsel who had put that question in cross examination of P.W.3 was simply not putting the correct question, probably to mislead the court because the answer in paragraph 3 indicated that a counsel had been engaged by P.W. 3 for looking after the trial and, as such, there could not be any question which could have been put to P.W. 3 as was put to her, as may appear from paragraph 4. Sometimes in the lower court the Presiding Officers do not have the courage to controvert the counsel for putting such questions only to ensure that proceedings are taken to their logical end peacefully and smoothly and never objects to meaningless misleading question- so that he is not humiliated by a litigant by accusing him of bias for him. The lady appears intelligent enough to answer that misleading question when she was stating that she had not gone to the Police Station for lodging the report rather the S.I. of Police came himself to her house for recording her statement. P.W. 3 was cross-examined on the circumstances attending to the occurrence in paragraphs 7 and 8 and on consideration of the evidence I am satisfied about the credibility of her evidence as she appears quite aware and conscious about the circumstances in which the offence was committed. 7. So far as the other part of evidence of P.W. 3 is concerned, her conduct further lends credence to her evidence. She has stated that after being informed by P.W. 4 about the offence having been committed with her by the appellant, the lady and her family members went to lodge a complaint with the father of the appellant and in fact lodged a protest with him. Thereafter, she came back to her house and found the condition of her daughter serious and proceeded to the Government Hospital with the 6 victim to reach there where the victim was hospitalized and treated. P.W. 3 has stated that she reached in the evening at about 5 P.M. and the Doctor examined her daughter and treated her and her daughter remained in the hospital for three days and she also stayed there with a couple of her neighbourers also. The police had come to the hospital for recording her fardbeyan and that of her victim daughter. On the manner of occurrence P.W. 3 was deposing in paragraph 9 of her evidence that the thread of her paijama had been torn out which was bearing blood marks also. The victim was brought to the hospital in the same cloth which was on the body of the victim at the time of commission of rape. 8. So far as the evidence of P.W. 4, the victim is concerned, she has reproduced her statement which was made by her before the police at the time of recording of the fardbeyan. In her cross examination she stated that she had gone to pick up the leaves and she used to go to her orchard for that purpose and there was none around the orchard at the time of occurrence. She remained there for fifteen minutes and thereafter started for her house when the occurrence had taken place. The manner of occurrence has been narrated by P.W. 4 in paragraph 10 and she stated in paragraph 11 that so long the appellant continued committing rape with her, she attempted to free herself out of the clutches of the appellant by her hands but her hands had been caught by the appellant who fled away from there after completing the act. However, there was no scratch or any mark of injury on different parts of her person. 9. As regards the evidence of Doctor P.W. 5 Dr. P.K.Das who examined P.W. 4, it may appear from his evidence that he had found labia majora in opposite covering the labia minora and hymen showing three 7 recent tears and at three, seven and ten O’clock position with bruising of the margin which was red in colour and bled on touch. The vaginal orifice admitted one finger loosely and clitoris was small in size. P.W. 5 has further opined that the injury at the hymnal wall was consistent with introduction of firm and elongated object like erected penis into the vagina within 24 hours to 72 hours from time of examination. 10. It was contended by Shri Sunil Kumar Karn, learned counsel for the appellant that the evidence of P.W. 4 that the appellant had unclothed her and unclothed himself and thereafter had committed the offence of rape with her appears suggestive of the fact that the lady was the consenting party. It was further contended that if clothes were removed from her person there would not have been any reason for P.W. 5 the Doctor to record any injury on any part of her body especially when she had claimed to have struggled for freeing herself from the clutches of the appellant. It was contended that it is a case which appears foisted upon the appellant for some different reasons and no real occurrence appears having taken place as suggested by the prosecution.. 11. On consideration of the evidence of the victim, her mother and that of P.W. 5 Dr. P.K.Das, it is clearly established that the lady was subjected to sexual intercourse. It was rightly contended by the learned Additional Public Prosecutor in response to the argument advanced by the learned counsel for the appellant that for constituting the offence of rape mere penetration could be sufficient and the evidence of the victim was also not stating that there was any signs or some sort of stains which could have fallen on account of dropping of semen material. The victim has of course stated that she was undressed but she has also stated that the 8 appellant who could have been aged about 24 to 25 years on the date of occurrence had completely subjugated the victim as has been narrated by her by climbing upon her and completely clasping her hands and lower limbs. So in spite of having struggled for freeing herself from the clutches of the appellant it might have been impossible that she did not wriggle herself out of the clutches of the appellant. She has stated that she was undressed but, she was undressed by removing her top wearing apparels is not her evidence. If the wearing apparels of top upper part were left atop, which appears the probability, then it could be easily inferred that she would not have any injury on account of struggling for coming out of the clutches of the appellant. 12. Moreover, the medical report which has been referred to above indicates that there were three recent tears in the hymen of the victim at 3,7 and 10 O’clock. The evidence of the Doctor indicates also that there were three tears, but only at 3 and 7 O’ clock positions has been stated by him which appears a mistake either by the learned Judge who could have missed hearing 10th position or the Doctor who could have missed the same. However, the further description of vagina indicates as if it were a forcible act of sexual intercourse committed upon the lady by the appellant. The margin of vagina was bruised so much so that labia majora was found in opposite covering the labia minora. Not only that the margin was red in colour and bled even on mere touch. Thus, the injuries which were recorded by P.W. 5 after examining the private part of the victim clearly indicated as to how the lady was subjugated by a person like the present appellant and raped. 13. So far other part of evidence of P.W. 5 is concerned, the victim 9 was found 14 to 15 years of age and that could make it more probable that the appellant could have completely immobilized the lady so as to violate her in the manner as was stated by P.W. 3. 14. Learned counsel appearing for the appellant submitted that the lady was aged 19 years by reference to the evidence of P.W. 3, the mother of the victim who was stating that out of the four children born to her the victim was the eldest and further she was married about 23 years back and she had the first child in the form of the victim five years after. No attempt was made to clarify as to what was the duration between one child and the other as regards their birth. No document, in spite of having put certain questions in respect of the victim being enrolled in some school so as to getting some real evidence that the lady was aged 19 years was produced. The medical data which was collected by P.W. 5 the Doctor was suggestive of the fact that the lady was in between 14 to 15 years of age. Her physique also indicated towards that probability and even if assuming that she was about 16 years of age, her evidence is that she was forcibly raped and further evidence of any witness was suggestive of the fact that P.W. 4 had never been a consenting party, there is no reason for this Court to accept that submission. It is out and out a case of forcibly committing rape upon the lady and in that view of the matter, the submissions of the learned counsel for the appellant do not appear acceptable. 15. As regards the undressing of the lady it was submitted that no such offence could have been committed upon the lady unless she had consented the same which could not be acceptable in the light of the commission of the offence which the appellant could have committed in the case of the victim. 10 16. On an analysis of the evidence on the basis of which the appellant was convicted by the judgment, the same appears properly founded and properly passed as a result of which the appeal appears of no merit and stands dismissed. ( Dharnidhar Jha, J.) Patna High Court The 23rd November, 2011 Kanth/N.A.F.R.