IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.1156 of 2008 Against the judgment of conviction dated 17.11.2008 and order of sentence dated 24.11.2008 passed by Additional Sessions Judge, Fast Track Court-I, Samastipur in Sessions Trial No.888 of 2006. RAM SEWAK RAI, Son of Late Siha Sharan Rai, Resident of village-Bhirha, P.S.rosera in the district of Samastipur.... .... Appellant Versus State Of Bihar.... .... Respondent For the Appellant: Sri Akhileshwar Prasad Singh, Senior Advocate. Smt. Anita Kumari Singh, Advocate. 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 Ram Sewak Rai was indicted of committing the offence under Section 376 IPC on a child of about seven years on 11.07.2006 at 9:00 A.M. He was put on trial by the learned Presiding Officer of Fast Track Court-I, Samastipur and by judgment dated 17.11.2008 was held guilty of committing the said offence. After hearing the appellant on sentence the learned trial Judge directed him to suffer rigorous imprisonment for ten years as also to pay a fine of Rs.5,000/- without indicating as to what should be added to his imprisonment, if he had not paid the fine. The appellant had come before this Court through the present appeal. 2 2. Fardbeyan of victim P.W.6 is the basis of the FIR and that reads that her grand-mother had asked her to bring ‘Prasad’ from the nearby temple which was situated across the road opposite her house. The victim went there where the appellant was found sitting. It was alleged that the appellant caught her and took her to a lonely part of the same temple and committed rape upon her. The victim cried out. The appellant gagged her with his hand. The victim was bleeding from her private part. 3. She came weeping to her parents and it appears from the evidence that the villagers caught the appellant, assaulted him and brought the child to the police station for lodging the report. 4. P.W.5 S.I. Basudeo Mandal would say that after the FIR was drawn up he took up the investigation and the appellant was also produced by the villagers before him. P.W.5 found injuries on the person of the appellant and issued injury certificate for obtaining the opinion regarding the injuries which were present on the person of the appellant. That injury report has been marked as Ext-5 which indicated that the appellant had as many as four lacerations and bruises of different dimensions caused by hard and blunt substance within six hours of the examination of the appellant who was on that particular day 67 years 3 of age. 5. P.W.5 further stated that he finding that there was complain of rape having been committed on a child, he sent the child for her examination by P.W.4 Dr. Manju Sahay whose evidence and report Ext-2 indicates that there was no mark of violence found externally on any of the parts of victim. She was also not finding any mark of violence on the private parts, like, the thighs, vulva and perineum of the victim. The pubic hairs were not present and hymen was found intact. No external injury was found and in spite of these findings the swab was taken and the examination of the same revealed absence of motile or non-motile spermatozoa. Thus, what appears from the evidence of P.W.4 is that no violence had been done to the child P.W.6. However, the doctor was not certain as to whether rape had been committed upon P.W.6. 6. Witnesses who came to support the prosecution, like, P.W.1 Janki Sharan Rai was hearsay from the victim as also her parents, besides being a witness to the recording of the fardbeyan. P.W.2 Nitu Devi, the mother of the victim, was also supporting her daughter P.W.6 by stating that she learnt about the commission of the offence by the appellant on her daughter and further stated as did P.W.3, the father of the victim that the little child was bleeding 4 profusely and blood was all over her thighs, abdomen and other parts of the body. Similar is the evidence of P.W.6 when she was supporting her story of being caught by the appellant and raped so as to bleed from her private part profusely. 7. The occurrence was taking place on 9 A.M. and the fardbeyan was recorded on 12.30 P.M. Curiously, the investigating officer did not find any stain of blood or any mark of violence on P.W.6. He has very categorically stated that in spite of having not found any injuries or other circumstantial evidence supporting the charge that P.W.6 had been raped by the present appellant finding that the charge was of rape upon a child, he forwarded the child P.W.6 to P.W.4 for her medical examination. P.W.5 also stated that he did not see any stain of blood on clothes of the victim. 8. The contention of the counsel appearing for the appellant was that in similar set of facts the Supreme Court was acquitting the accused in 2006(9)SCC Yerumalla Latchaiah Vrs. State of Andra Pradesh. It was contended that the reasons could be best known as to why the appellant was roped by slapping a false charge. But, the circumstance which falsifies the charge, and which could further be seen beyond the evidence which was produced by the prosecution was 5 when the I.O. was admitting in his evidence that he did not specifically sought the opinion of the doctor after examining his genital organ as to whether evidence of commission of rape by the appellant was available or not. Reference was made in the above behalf of Section 53A Cr.P.C. 9. Sri Ajay Mishra, the learned A.P.P. resisted the submissions by submitting that the very definition of rape contained in Section 376 does not make it necessary that there could be perceptible injury or destruction and damage to the private parts of the victim, if sufficient evidence was there indicative of mere penetration, the offence could be committed and the charge could be established. Sri Mishra submitted that evidence did suggest that there was some penetration. 10. I could have upheld the submission of Sri Mishra if I had found the doctor telling the trial court that there was any damage to the vulva or perineum to any degree or extent. The hymen was found vertically intact and fully covered. The doctor did not find any inflammation or any other signs which may indicate that there was any pressure upon that particular part of the child exerted by any hard and blunt substance by an adult, grown up man. It is true that witnesses did not state that they found the child 6 bleeding, but the investigating officer who was sending the victim for her medical examination by P.W.4 did not find any stains of blood or even any cloth which could be stained with blood. The doctor’s evidence was very clear that there was neither any external nor any internal injury specially on some of the important parts, like, the vulva, perineum or thighs. Thus, the evidence of P.W.4 Dr. Manju Sahay runs contrary to the evidence of witnesses. 11. Here was the necessity that the provision of Section 53A Cr.P.C. would have been complied with. When one considers the history of that provision which was inserted after amending the Cr.P.C., it may be found that it was only with a view to eliminating any chances of false implication of a person in a charge of rape that the examination of the accused by a doctor was mandated. Medical opinion of experts invariably point out that male genital organ has a deposit around it and whenever a male enters into coitus with a female that deposit is removed which may be found, if the genital organ of the accused is examined by an expert. No accused could escape the charge of rape if he is examined under Section 53A Cr.P.C. The investigating officer has been very categorical that while forwarding the accused for his examination by doctor for obtaining Ext-5, the report 7 regarding the appearance of injuries on the person of the appellant, he did not specifically make a request to examine the genital organ of the appellant and make a particular report which is desired to be obtained under Section 53A Cr.P.C. This is one additional circumstance which further goes to weaken the prosecution charge. 12. It is true that consistency of judicial opinion is in favour of the prosecution that evidence of prosecutrix has never to be treated as that of an accomplish and it should not generally be rejected because a prosecutrix is at par with an injured witness. But that principle of law could never decide case. Cases turn on their special facts and the circumstances which attend on those facts. Here is a case in which the important circumstance which was appearing from the non-examination of the appellant as also the examination of the victim appear completely overlooked by the learned trial Judge as a result of which he was falling in an error of recording a verdict of guilt against the appellant and, thus, proceeded to pass the sentence upon him. 13. After considering the evidence available on the trial court record, I find that the appellant deserves to be acquitted on account of the fallacies I have pointed out. In the result, the appeal succeeds. 8 The conviction and the sentence passed upon the appellant are hereby set aside. If the appellant continues to be in custody, he shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 29th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)