Criminal Appeal (SJ) No.244 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 22.07.1999 respectively passed by Sri Shyam Deo Singh, learned Sessions Judge, Nawada in Sessions Trial No. 286 of 1998. ~~~~~~ Rajesh Dom @ Gujja Dom, Son of Sri Rajendra Dom, resident of Village – Warisaliganj, Musahritola, Police Station – Warisaliganj, District – Nawada. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mr. Ramesh Prasad Singh, Advocate. Mr. Singh Sanjay Kumar, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged in the First Information Report lodged by the informant Geeta Devi (P.W 4) the mother of the victim is that on 18.09.1998 at about 6:30 P.M. while she was cooking food, Rajesh Dom @ Gujja Dom, the son of the brother of her husband (Jayut) enticed the victim (Puja Kumari) the daughter of the informant aged about five years. On cry of the victim she rushed to the place of occurrence and saw Rajesh Dom doing something. On seeing the informant Rajesh Dom fled away. She saw her daughter unconscious and blood oozing out from the private part of the victim. On cry of the victim the neighbours rushed but Rajesh Dom fled away and saw the blood oozing out from the private part of the victim. She reported the matter to the police on which the First Information Report was drawn which is marked as Ext. 3. The victim examined by the doctor P. W. 6 on 19.09.1998 at about 11:30 A.M. The doctor found the age of the victim 2 as five years and hymen ruptured, second degree perennial tear in mid line in posterior aspect with oozing of blood. However, the medical examination suggests that no spermatozoa alive or dead were found. The doctor opined that the rape has been committed on her. 4. The police after investigation submitted charge-sheet, cognizance taken and the case committed to the court of Sessions. 5. During the trial seven witnesses were examined. P. W. 1 Shravan Kumar declared hostile as not supported the prosecution case and denied to have stated before the police that on 18.09.1998 Rajesh Dom committed rape on Puja Kumari. 6. P. W. 2 is the victim. She has also been turned hostile as not supported the prosecution case and denied to have stated that the appellant took her on hand in the lap and took in the galli and did commit an illegal act causing blood oozing out from the private of the victim. 7. P. W. 3 is Sanju Kumari the sister of the victim. She has also not supported the prosecution case and declared hostile and denied to have stated before the police that Rajesh Dome enticed Puja Kumari and took her in galli and raped her. 8. P. W. 4 is the informant. She has stated that she has filed a case against Rajesh Dom. Puja Kumari is the youngest daughter of the informant. At the time of occurrence while she was cooking food Rajesh Dome took Puja Kumari towards the market. Her daughter Sanju Kumari disclosed that Rajesh Dom has taken the victim towards the market. Thereafter she rushed to the market and saw Rajesh Dom taking Puja Kumari and on inquiry disclosed that he has gone to give sweets for her. She saw sweets in the hand of Puja Kumari and blood oozing out from the private part of the victim. She has further stated that Daroga took her statement and put her Left Thumb Impression and her treatment was done by the doctor. In her cross-examination she has stated that there was prior enmity with Rajesh Dom and on the date of occurrence he enticed away the victim. She has further stated that he did not commit rape. Puja Kumari fall and Rajesh Dom was 3 taking her and she was crying out of the injury. She has further stated that the case has been compromised with the accused. 9. P. W. 5 Meva Lal Dom has stated that he heard Hulla about the rape of Puja Kumari by Rajesh Dom. 10. P. W. 6 is the doctor who examined the victim and has proved the medical report marked as Ext. 1 and has also proved pathological report marked as Ext. 2. On examination he found hymen ruptured, second degree perennial tear in mid line in posterior aspect with oozing of blood and opined that the rape has been committed on her. However, in cross-examination he has stated that the injury is not possible by fall on pointed wooden piece and it is not fact that the injury report is manufactured. 11. P. W. 7 is the I.O. and has stated that he recorded the further statement of Geeta Devi. He found the place of occurrence is Chabutra. He got the victim checkup medically and has proved the First Information Report in the writing of the Officer-In-Charge Digambar Prasd which is marked as Ext. 3. In his cross-examination he has stated that the First Information Report was not recorded before him. 12. The trial court taking into consideration the evidence of Geeta Kumari that the informant has supported the prosecution case to the effect that the accused person took Puja Kumari and he was found causing her with sweet and blood oozing out on her private part. 13. The evidence of P. W. 6 the doctor and the defence version about the injury by fall having been ruled out held under the facts and circumstances of the case that the prosecution has been able to prove the charges under Section 376 of the Indian Penal Code and convicted and sentenced the appellant as mentioned above. 14. Learned counsel for the appellant, however, contended that the First Information Report has not been proved by the informant and the primary evidence regarding the commission of rape is missing as neither the victim nor the informant has specifically stated about the commission of rape on the victim and the evidence of the doctor is only 4 secondary and hence it has been submitted that there is no evidence with regard to the rape and hence the prosecution has not been able to prove the case. It has further been contended that the appellant is the cousin of the victim and the victim is only five years old and hence the case is of false implication. It has further been contended that a lenient view may be taken under the facts and circumstances of the case. 15. Learned counsel for the State, however, contended that this is one of the most of heinous crimes and though there is no direct evidence, in the facts and circumstances of the case, the prosecution story has fully been established by circumstantial evidence. 16. However, having regard to the submissions of the parties the prosecution case that in the fardbeyan of the informant Geet Devi that the accused appellant Rajesh Dom came enticed away the victim and on Hulla she rushed and found the victim with the accused and on seeing, Rajesh Dom fled away and found the blood oozing out. She has also stated that the appellant Rajesh Dom has enticed away the victim and when she learnt she rushed to Bazar found the victim with the accused with sweets in her hand and blood oozing out from the private part of the victim. 17. However, the informant P. W. 4 in his evidence has specifically stated that she has made statement before the police on which the case was lodged. P. W. 7 the I.O. has also proved the First Information Report recorded by the Officer-In-Charge and the First Information Report has marked as Ext. 3. It is true that First Information Report is not substantive evidence and can only be used either for contradiction or corroboration. But before taking contradiction the evidence of the informant with the First Information Report the attention of the informant is required to be drawn to give her explanation for the contradiction. However, the defence has not drawn any attention and hence is not allowed to take contradiction. However, taking into consideration the evidence of the informant, it is apparent that the victim was taken by Rajesh Dom and immediately the informant rushed and found the victim with the accused with sweets in her hand and the blood oozing out from private part. Thereafter fardbeyan was recorded. She reported the matter to the 5 police on which the First Information Report drawn and the victim was examined by P. W. 6 the doctor during investigation and the doctor found that the victim was raped hence it is true that there is no direct oral evidence of rape. But the circumstance that the appellant took the victim to Bazar and just thereafter the victim was found along with the accused with sweets in her hand and the blood oozing out from the private part of the victim and the opinion of the doctor that she has been raped with injuries on her private part hymen raptured, second degree perineal tear in mid line in posterior aspect with oozing of blood and hence the circumstantial evidence itself sufficient for which the accused has given no explanation. Hence, on the basis of this circumstantial evidence it can well be inferred that the prosecution has been able to establish the charges leveled against the accused person beyond reasonable doubt with recording the offence under Section 376 of the Indian Penal Code. Hence, I find and hold that the prosecution has able to prove the charges and I do not find any illegality and irregularity in the order of conviction recorded by the trial court to come an irresistible conclusion about the commission of rape on the evidence adduced by the parties. However, though the discrepancies pointed out in the evidence of the informant, her evidence as well as in the First Information Report is minor which do not go to the root of the prosecution to disbelieve the prosecution case in the facts and circumstances of the case. 18. However, having regard to the facts and circumstances of the case that the parties are closed agnates as well as taking into consideration that the occurrence is of the year 1998, the order of sentence is reduced from ten to five years and hence with this modification in sentence this appeal is dismissed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 22nd November, 2011. N.A.F.R./Kundan.