Cr.Appeal No.72 of 1993 (Against the judgment and order of conviction dated 1.2.1993 passed by Shri R.C.Srivastava, Sessions Judge, Darbhanga in S.T. No.253 of 1991) Bindeshwar Mahto … Appellant Versus The State of Bihar … Respondent For the Appellant : M/s Amarendra Narayan, Sudhir Kumar Raj For the State : Mr.A.H. Motiur Rahman, A.P.P. P r e s e n t The Hon’ble Mr.Justice Samarendra Pratap Singh The instant appeal is directed against the judgment and order of conviction dated 1.2.1993 passed in S.T.No.253 of 1991 whereby the learned Sessions Judge, Darbhanga convicted the appellant under section 376 of the Penal Code and sentenced him to under go rigorous imprisonment for five years. 2. The prosecution case in brief are that one Yogendra Mukhiya, the informant, P.W.4, made a fardbeyan on 13.1.1991 to the Officer-Incharge of Balbhaddarpur P.S. giving rise to Balbhaddarpur P.S. Case No.3 of 1991 dated 13.1.1991 under section 376 of the Penal Code, that on 4.1.1991, his daughter Poonam Kumari, aged about 9 years, had gone out for attending the call of nature. When she did not return for half an hour, he and his wife went out in her search with lantern. In course of search they even took her name at the top of their voice. While they were returning from Gumti No.22 they saw their daughter Poonam Kumari coming from the side of Kumbi, which is about 4-5 laggi north of the house of Binod Chaudhary. On being asked about the delay of returning, she stated that accused Bindeshwar Mahto lifted her and took her away just by the side of the road in a lonely place, pulled her down on dry Khumhi where he raped her. She alleged that the accused Bindeshwar Mahto pressed her neck and mouth on account of which she became unconscious. It is alleged that on hearing parents voice she regained her consciousness and proceeded to return home. It is further alleged that the informant saw blood on her under paint and frock. He found her chick scratched and also saw blood oozing from her private part. It is further S.P.Singh,J 2 alleged that while the informant was bringing her daughter home, the latter pointed out at the Bindeshwar Mahto who was warming himself at the door of Dukhi Mahto. The informant’s daughter recognized him as the person who committed rape on her. The uncle and sister of Bindeshwar Mahto started beating him. The aforesaid Dukhi Mahto asked the informant and his wife to keep quite, as he was going to call a Doctor soon. In the meantime some villagers arrived and they said that they would take appropriate action for punishing Bindeshwar Mahto in the Panchayat. It is alleged that Dukhi Mahto brought one Dr. Binod Keshri (P.W.1) who treated the victim by giving injection and medicines. The following day Dr. Sushil Kumar (P.W.7) came and gave two stitches besides injection and medicine. 3. The police after investigation submitted charge sheet under section 376 of the Penal Code. After cognizance the case was committed to the court of sessions. In course of hearing the prosecution examined 8 witnesses namely P.W.1 Dr. Binod Keshri, P.W. 2 Ghurni Devi, the mother of the victim, P.W.3 Poonam Kumari, the victim herself, P.W. 4 Jogendra Mukhiya, the informant, P.W.5 Dukhi Mahto, uncle of the appellant, P.W.6 Dr. V.C.S. Verma, Prof. and H.O.D. of Forensic Medicine in D.M.C.H., P.W.7 Dr. Sushil Kumar and P.W.8 Binodanand Thakur, the Sub Inspector of Police who investigated the case. 4. The defence examined one witness namely Laxmi Mahto. Out of 8 P.Ws, P.W.1 Dr. Binod Keshri, a private practitioner of Herbal medicine, P.W.5 Dukhi Mahto, uncle of the appellant and P.W. 7 Dr. Sushil Kumar were declared hostile as they did not support the prosecution case. 5. P.W. 2 Ghurni Devi stated that she alone made search of victim girl and she found her lying at the Railway lines. She saw blood oozing from the private part of her daughter Poonam Kumari. She stated that she went to the house of Dukhi Mahto to lodge her complaint along with her daughter Poonam Kumari. She in her evidence says that the place of occurrence was a ploughed land near 3 the road. She, however, admitted that she did not open the under pant of her daughter Poonam Kumari in order to ascertain the allegation of rape. 6. P.W.4 Jogendra Mukhiya is the father of the victim Poonam Kumari as well as informant of the case. He in his evidence stated that it was raining that evening and as such he closed his shop early, and came to his house. He stated that when he returned home, he found his daughter Poonam Kumari regaining consciousness. She narrated him the entire occurrence. He stated that thereafter he went to the house of Dukhi Mahto along with his wife. 7. P.W.3, Poonam Kumari is the victim herself. She stated that on the fateful evening she had gone to the road side for attending the call of nature. In the meantime, accused Bindeshwar Mahto came and lifted her forcibly in her lap, took her to Chaur and committed rape on her. She felt pain all over her body and private part. The accused appellant had pressed her mouth and neck. She narrated the incident to her parents. She stated that it was a dark night. She further stated that on regaining consciousness she came home where she narrated the occurrence. She stated that she raised hulla while the appellant Bindeshwar Mahto was forcibly carrying her away. She stated that she was examined by the Doctor the following day and thereafter also. She stated that her cloths were smeared with blood and also oozing from her private part. She stated that her mother brought her home. In cross-examination she stated that she did not know the name of the appellant Bindeshwar Mahto from before. 8. P.W.6 is Dr. V.C.S. Verma, who examined the victim on 14.1.1991, 10 days after the date of occurrence. He proved the medical report marked Ext.2 in this case. His evidence and medical report show that the victim girl was aged about 9-10 years. He found following partially healed injuries on her person which is reproduced hereinbelow: “i) Four smaller partially healed scratch abrasions in front of neck curved in shape and covered with dried scab. 4 ii) Partially healed ½” long lacerated wound on right cheek. There was one ¼” scratch abrasion below the previous wound covered with dried scab. The injuries were simple in nature and appeared to be caused within 7 to 14 days of the examination. These injuries in the opinion of the Doctor are consistent with bites and nail scratches. 10. On her genital examination, the Doctor found that the labia majora were separated in the lower part exposing the vaginal orifice. The posterior commissure and fourchette were found ruptured and lacerated. The hymen was found ruptured and the Vaginal canal admitted one finger which was painful. The anterior wall of rectum was found communicating with the vagina, the dimension of wound being tip of little finger. All the wounds were fond infected with discharge of exudate. Vaginal smears and swabs were taken and immediately examined under the microscope on glass slide.” In the opinion of the Doctor, the vaginal injury indicated forcible panetration of some hard and blunt object to the vagina with backward and downward pressure, such as by erected genital part of male. He further stated that presence of injuries on face, neck and vagina, are suggestive of struggle and forcible sexual inter course with the girl within 7 to 14 days from the time of examination. The Medical Report of the Doctor has been marked Ext.2 in this case. 11. P.W.8 Binodanand Thakur is the Investigating Officer of the Case. He stated that the place of occurrence is the Jal Kumbhi, 50 yards from the Railway Lines and 40 yards north of road. He stated that place of occurrence is about 70-75 yards east of the house of the informant. He stated that he examined P.W.1, P.W.5 and P.W.7 apart from other witnesses also. He stated that the aforesaid witnesses who have now turned hostile have earlier stated before him that they came and examined the victim girl Poonam Kumari. 12. The accusations were explained to the appellant under section 313 Cr.P.C. to which they pleaded not guilty. 5 13. Shri Amarendra Kumar, learned counsel for the appellant submits that there is a delay of nine days in lodging the F.I.R. He further submits that there is material contradication in the statements of P.W.2, the mother of the victim, the P.W.3, the victim and P.W.4, the father of the victim in respect of the place of occurrence and other relevant facts. He submits that the statement of P.W.2 as well as P.W. 4 is not reliable and no credibility can be attached to their evidence. He submits that P.W. 1 Dr. Binod Keshri who treated the victim on the following day and P.W.7 Dr.Sushil who treated the victim on 5.1.1991 and on other days did not support the prosecution case. He submits that P.W.5 Dukhi Mahto, who is uncle of the accused appellant also did not support the prosecution case. He submits that the Doctor did not find any spermatozoa present in the private part of the girl but he found that the wound on her body was healing wound. He submits that one Braj Kishore Sahni, who was having grudge against the appellant, has roped the latter in the instant case. He submits that P.W. 2 was working as maid servant in the house of Braj Kishore Sahni, who owed a Medical shop. He submits that in fact Braj Kishore Sahni, has signed in the fardbeyan as a witness. 14. Learned counsel for the State submits that there has been no delay in lodging the F.I.R. as the informant was pursuing the matter with the Panchayat and having failed, the instant case has been lodged. He further submits that P.W. 3, the victim, has supported the prosecution case. 15. After hearing the rival contentions of learned counsel for the parties and on going through the materials on record, this court finds that there is an inherent contradiction in the statement of both P.W.s 2 and 4, mother and the father of the victim, and both seems quite unreliable. P.W.2 in her statement at one point stated that her daughter was raped near the Railway line whereas in paragraph 7 of her deposition she says that the place of occurrence is ploughed land. P.W. 2 has further stated that she went to the house of Dukhi Mahto along with her daughter, whereas P.W. 4 stated that they all went to the house of Dukhi Mahto. On the other hand, P.W.3 the victim stated that she did not go to the house of Dukhi 6 Mahto, uncle of the accused Bindeshwar Mahto, after the occurrence. P.W. 2 has stated that she alone went to look for her daughter whereas P.W. 4 stated in the F.I.R. that he along with P.W. 2 had gone to look for his daughter. P.W. 2 in her evidence had stated that she found her daughter lying at the place of occurrence in unconscious state, whereas P.W. 4 in the F.I.R. stated that after commission of the offence, their daughter, all by herself was coming from Kumbhi which is 4-5 laggi north to the house of one Binod Chaudhary. P.W. 2 admitted that she is a maid servant in the house of Braj Kishore Sahani and in fact he had gone along with the victim to the Doctor’s place. 16. Like wise P.W.4 in F.I.R. stated that he along with his wife (P.W.2) had gone to look for his daughter. He found blood on her frock and under pant. Her daughter who narrated the incident of rape to him. He stated that when he was returning with his daughter and wife then on seeing Bindeshwar Mahto at the door of Dukhi Mahto, his daughter (P.W.3) identified him as the person who raped her. However, in his evidence he stated that it was a rainy day and as such he closed the shop early and came home. On reaching home, he found his daughter lying in semi conscious state who subsequently stated that the appellant Bindeshwar Mahto raped her. 17. This court finds that the evidence of P.W. 4 in course of his deposition is at variance with the statements made in the F.I.R. 18. In view of the contradictions in statement of P.W. 2 and P.W. 4 in course of their deposition, I find their evidence not free of doubts on certain aspects. 19. This leaves only the evidence of P.W.3, the victim Poonam Kumari. Age of Poonam Kumari on 5.3.1992, the date of her deposition has been assessed as 10 years. As such her age would be roughly 9 years, at the alleged time of occurrence, which took place on 13.1.1991. She stated that in the evening she had gone to answer the call of nature. In the meantime the appellant forcibly lifted her and took her in the chaur and committed rape. She felt pain and blood oozed from her private part. P.W.2 and P.W. 4 had also stated that they had seen blood on her 7 under pant and frock. She stated that the local Doctors namely P.W.1 Dr. Binod Keshri and P.W.7 Dr.Sushil Kumar treated her. She immediately narrated the incident to her mother and father namely P.Ws 2 and 4. She further stated that she did not know the name of Bindeshwar Mahto from before. She, however, recognized the accused on seeing him at the door of Dukhi Mahto. 20. It is true that in the F.I.R. P.W.4 stated that on query P.W. 3, the victim, stated that one Bindeshwar Mahto raped her, whereas in evidence P.W.3 says that she does not recognize Bindeshwar Mahto byname. I prefer to believe the version of P.W.3 in preference to that of his father P.W.4. 21. The medical report of the Doctor also confirmed the factum of rape. The Doctor has found that the labia majora were separated in the lower part exposing the vaginal orifice. The posterior commissure and fourchetteewere found ruptured and lacerated. The hymen was found ruptured and the vaginal canal admitted one finger which was painful. The Doctor opined that the vaginal injury indicated forcible panetration of some hard and blunt object to the vagina with backward and downward pressure, such as by erected genital part of male. The Doctor has also found four smaller partially healed scratch abrasions in front of neck curved in shape and covered with dried scab. He further found partially healed ½” long lacerated wound on right cheek. 22. In view of the aforesaid definite findings of the Doctor it cannot be said that he did not find healing injury on the person of the victim as submitted by learned counsel for appellant. 23. P.W.8, Binodanand Thakur, who is the Investigating Officer of this case, stated that initially P.Ws 1, 5 and 7 also supported the factum of occurrence and giving treatment. However, they turned hostile. 24. This court finds that the evidence of victim stands fully corroborated by the evidence of Doctor, as well as the I.O. The I.O. has found the place of occurrence to be dried up Jal Kumbhi 50 yards from the Railway lines and 40 yards north of road. It further appears that the I.O. got the statement of victim 8 recorded under section 164 Cr.P.C. in which she has supported the occurrence.It is true that the statement of under section 164 Cr.P.C. cannot be taken to be substantive evidence. 25. This takes us to the other two submissions made by learned counsel for the appellant that there has been undue delay of 9 days in lodging the F.I.R. and the appellant has been falsely implicated in the instant case at the instance of one Braj Kishore Sahani. 26. It is true that it has come in evidence that P.W.2 was maid servant at the house of Braj Kishore Sahani. P.W. 2 in her statement stated that the appellant refused to cut wood for Braj Kishore Sahani, which infuriated him and consequently he took revange by way of institution of instant case. This would be too much of far fetched conjectures in absence of due evidence. 27. Even assuming that Braj Kishore Sahani was on inimical term with the appellant that is not sufficient to prove that he got him implicated in this case by influencing her mother P.W.2 who worked in his house as maid servant. For the same reasons that he accompanied P.W.4 to the police station or to the Doctor would not by itself be sufficient to prove that he has got the appellant falsely implicated. In fact the Doctor has found the forcible sexual inter course with the victim. 28. In view of the aforesaid circumstances, this court does not find substance in the case of defence that the appellant has been falsely implicated in the instant case on account of enmity with Braj Kishore Sahani. The motive for false implication as pleaded by appellant fails. 29. Now coming to the other submissions made by learned counsel for the appellant that the delay of 9 days in lodging the F.I.R. would be fatal in the facts and circumstances of the case. 30. It would appear from evidence of P.W. 4 that there was a talk of Panchayati. Though the statement of P.W.4 has not been found fully reliable nevertheless all his evidence cannot be discarded. He has stated that Dukhi 9 Mahto, who subsequently turned hostile, and other villagers who subsequently assembled had assured that a Panchayati would be convened, which may give appropriate punishment to the accused appellant. When Panchayati did not take place for 8-10 days, even after considerable wait, P.W.4 was not left with any alternative, but to lodge the instant case. In the circumstances, the delay in lodging the F.I.R. stands fully explained. 31. It is well settled that conviction in case of rape would be sustainable even on solitary statement of the victim if it is otherwise reliable and trustworthy. Similarly, in the case of Ramdas & Ors Vs State of Maharashtra, A.I.R. 2007 SC 155, the Apex Court has observed that the delay in lodging the case itself would not be fatal if there is valid explanation for the same. 32. On consideration of the materials on record, this court holds that the prosecution has been able to prove the guilt of the appellant under section 376 of the Penal Code. 33. So far quantum of sentence that has to be imposed, this court finds that the law provides that if the accused is found guilty under section 376 of the Penal Code, one would be sentenced for minimum period of 7 years, which may range up to life imprisonment. This court by order dated 7.4.1993 taking into the aforesaid situation issued rule of enhancement. There cannot be any denial regarding the aforesaid position of law that the convict under section 376 of the Penal Code cannot be awarded punishment less than 7 years as such rule of enhancement is made absolute. 34. After considering the fact that the occurrence took place 17 years back and the first offence of the appellant, this court is of the view that a sentence of 7 years imprisonment would be sufficient punishment in the facts and circumstances of this case. 35. In view of the aforesaid findings this court holds that the prosecution has succeeded in proving the guilt of the appellant under section 376 of the Penal 10 Code and as such the judgment and order of conviction passed by the learned court below is upheld with the aforesaid enhancement in sentence. 36. It goes without saying that the appellant would be entitled to necessary set off as well as remission which would be permissible in law. 37. With the aforesaid observations, the instant appeal is dismissed. The appellant is directed to surrender in the court below for serving out the remaining sentence as indicated above. (Samarendra Pratap Singh,J) Patna High Court Dated, the November 1, 2008 KHAN/NA.F.R.