Criminal Appeal (SJ) No.81 of 1995 **** Against the judgment, dated 23rd May, 1992, passed in Sri Ram Viyas Ram, Additional Sessions Judge, I, Madhepura, in S. Tr. No. 212 of 1993 **** Md. Khalil, son of Md. Maqbool, resident of village Aurahi, Tola Chaingahi, P.S. Alamnagar (Puraini) in the district of Madhepura .. Appellant Versus The State of Bihar .. Respondent **** For the appellant .. Mr. Parveen Kr. Agrawal, Adv. For the respondent .. Mr. Parmeshwar Mehta, APP **** P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the learned counsel for the appellant and the State. 2. The appellant has been convicted for the offence under Section 376 of the Indian Penal Code for allegedly committing rape on the person of Bibi Nabisa and has been sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case, as alleged in the fardbeyan of the informant, Bibi Nabisa, wife of Mansoor that in between night of 11th and 12th of March, 1993, at about 12.00 to 01.00 a.m. she went out of the house to meet the call of nature by the side to the east of her house. In the meantime, Md. Khalil came, caught hold of her and thrown her on 2 the heap of straw and when the victim tried to make alarm then Md. Khalil threatened her to kill by fire arm and then he committed rape upon her and after committing rape while he was fleeing away then the informant make alarm on which the co-villagers and her cousins, Md. Seraj, Md. Ali, her uncle, Md. Shamsher came and saw the victim fleeing away from the place of occurrence. The further case is that the husband of the informant had been to Nepal to pursue his livelihood. The matter was considered in Panchayati in village, but, when the matter was not decided by the village Panchayati then she came to the Police Station to lodge the case. The fardbeyan was recorded on 17th March, 1993, at 04.00 p.m. and on the basis of the fardbeyan the first information report was lodged on 18th March, 1993, and the first information report was sent to the Chief Judicial Magistrate on 19th March, 1993. However, after lodging of the first information report, investigation proceeded and charge sheet was submitted against the appellant, Md. Khalil. After submission of the charge sheet the cognizance was taken and the case was committed to the Court of sessions and after commitment the charge was framed against the appellant for offence under Section 376 of the Indian Penal Code. 4. However, during the trial the prosecution adduced nine witnesses, who are P.W. 1, Chedi Sah, P.W. 2, Ganga Sah, P.W. 3, Shiv Nandan Prasad Singh, P.W. 4, Md. Sultan, P.W. 5, Md. Shamsher, P.W. 6, Md. Seraj, P.W. 7, Bibi Nabisa, the informant, P.W. 8, Dr. M.K. Rana, who examined the victim, and P.W. 9, Ravi Ranjan Dubey ‘Akela’. 3 5. The documentary evidences are Exhibit 1, the signature of Shiv Nandan Prasad Singh on the petition, Exhibit 2, the signature of Shamsher Alam on the fardbeyan, Exhibit 3, the injury report of Bibi Nabisa, Exhibit 4 the fardbeyan, Exhibit 5, the signature of Manoj Kumar on the formal first information report, Exhibit 6, endorsement of the Panchayat. 6. The defence has also adduced oral evidence of D.W. 1, Grish Sharma, D.W. 2, Kapileshwar Singh, D.W. 3, Md. Jabbar, D.W. 4, Md. Yunus, D.W. 5 Majid Mian and D.W. 6, Shyamdeo Sharma. 7. On considering the oral and documentary evidence and taking into consideration and the submissions made by the parties the learned trial Court convicted the appellant, as stated above against which the appeal has been filed. 7. The learned counsel for the appellant, however, contended that there is delay in lodging the first information report and the father-in-law and mother-in-law of the victim have not come to support the prosecution case. The doctor has not found any sign of rape and has asserted that the appellant has falsely been implicated and P.W. 3 has stated that the victim has illicit relation with P.Ws. 5 and 6 and since the appellant used to protest the illicit relation of the victim with P.Ws. 5 and 6 has caused the false implication of the appellant and, further, the investigating officer has not seized the lota and the clothes with which the victim had been at the time of off to meet the call of nature and, hence, the prosecution has failed to prove the charge and the charges were false and frivolous. 4 8. The learned counsel for the State, however, opposed the contention of the learned counsel for the appellant and submitted that the prosecution has been able to prove charge beyond reasonable doubts and there is explanation for the delay in lodging of the first information report and the victim has herself supported the prosecution case, which has been corroborated by P.Ws. 5 and 6. However, since the husband of the victim live at Nepal and matter was ceased in Panchayat and so there was delay in lodging the first information report and, hence, delay has been explained and prosecutrix herself has supported the prosecution case, which is corroborated by the oral evidence and there is no reason for false implication that whey the prosecutrix will put her character under jeopardy for mere false implication of the appellant and, hence, the prosecution has proved the case beyond reasonable doubts. 9. Hence, taking into consideration the respective submission the question for consideration whether the prosecution has been able to prove the charge and the conviction and sentence recorded by the learned lower Court is sustainable. 10. The prosecution case, as alleged in the fardbeyan by the informant, is that the occurrence took place in between the night of 11th and 12th March, 1993. However, the matter was reported on 17th March, 1993, the first information report was lodged on 18th March, 1993 and the first information report was sent to the Chief Judicial Magistrate on 19th March, 1993, and the prosecution case alleged by the informant, who is the victim, Bibi Nabisa, that while she was going out of the house to meet the call of nature then she was caught hold of Md. Khalil and was thrown on the ground and raped under the threat to kill so she 5 could not make alarm and when the accused was about to flee away then she raised alarm and the villagers came and saw the appellant fleeing away. P.W. 7 is the informant and she has supported the prosecution case as alleged in the fardbeyan that at the time of occurrence in the mid night of 11th and 12th March, 1993 at about 12.00 to 01.00 a.m. when the appellant was apprehended for raping the victim after threatening to kill by fire arm and after secretion of sperm, on raising alarm, the witnesses, Seraj, Shamsher, Sultan along with their father and mother came and saw the accused, Md. Khalil and the victim disclosed about the occurrence and also showed the sperm of the accused Md. Khalil on her clothes. It is further stated that on the next day there was Panchayati and while she was going to the Police Station then the people stopped her for doing Panchayati. However, the accused and his associates did not adhere to the decision of Panches and then she lodged the case. However, P.W. 6 supported the prosecution case and has stated that on alarm he rushed along with a torch to the place of occurrence and saw Khalil fleeing towards west and when he reached near the heaps of straw then saw Bibi Nabisa weeping there, here clothes were indecently dressed and she disclosed, on his query, that Khalil has raped her and he also saw sperm on clothes. He has stated that father-in-law and mother- in-law of Bibi Nabisa live with her and they have also supported the prosecution case and has stated that the time of occurrence is the mid night of 11th and 12th March, 1993 at about 12.00 p.m. to 01.00 a.m. and on hearing the sound of alarm when he went there he found the victim in indecently dressed stage and was weeping and she disclosed, on query, that while she was going to meet the call of nature she was raped by the 6 accused and he also saw a person fleeing away. P.W. 8 is the doctor and has stated that on 19th March, 1993, he examined Bibi Nabisa, the victim, and has assessed her on the basis of radiological examination as 15(1/2) to 16(1/2) years. However, he has not found any external or internal injury on the private part and stated that there is no sign of rape and has proved his report as Exhibit 3. P.W. 4 is Md. Sultan, who supported the prosecution case and has stated that it was a time of mid night and he had to take meal and saw Bibi Nabisa going out of the house to meet the call of nature and, thereafter, he heard the sound of alarm and when went there he found the victim lying on the heap of straw and she disclosed about the rape. However, P.Ws. 1, 2 and 3 have not supported the prosecution case and they have been declared hostile and has been crossed examined by the prosecution. 11. The learned counsel for the appellant has placed strong reliance on the evidence of Shiv Nandan Prasad Singh, P.W. 2 as he has stated that the victim was having illicit relation with P.Ws. 5 and 6 and the appellant used to protest, therefore, he has falsely been implicated by P.Ws. 5 and 6. However, P.W. 3 has been declared hostile and it does not stand to reason why the prosecution will put her character and moral at stake just for false implication. 12. However, taking into consideration the entire evidence, P.W. 7 is the victim and has supported the prosecution case about rape while she went to meet the call of nature at about 12.00 to 01.00 a.m. she was apprehended and raped by the appellant, Md. Khalil. P.Ws. 4, 5 and 6 corroborated the prosecution case that on alarm they went to place of occurrence and saw the appellant, Md. Khalil, fleeing away and the 7 victim disclosed about the rape and they found the victim weeping, sperm on her clothes and she was indecently dressed. She disclosed about rape by accused, Md. Khalil. Hence, the evidence of P.W. 7 is corroborated by the other witnesses, P.W.s. 5 and 6 and there is no reason why the victim will falsely implicate putting her character at stake. The victim is 15-16 years old and is a wife and there is nothing to show that she was of low character. 13. However, the point rose about the delay in lodging the first information report, which has well been explained that the matter was under the consideration in the Panchayat in the village and the matter of Panchayati has well been supported by Exhibit 1, the endorsement of Shiv Nandan Prasad Singh. Hence, delay has well been explained. 14. However, the strong reliance which has been placed by learned counsel for the appellant on the evidence of P.W. 3, who has himself been cross examined by the prosecution, but, there is no endorsement of declaring him hostile, but, the trend of cross examination, itself, suggests that he is a hostile witness having not supported the prosecution case. However, even if assuming that the victim was having illicit relation with P.Ws. 5 and 6 there was no occasion to file a rape case by jeopardizing her character in the Indian society for false implication of the appellant. The age of the victim has been assessed as 15(1/2) to 16(1/2) years and she has disclosed her age in her evidence as twenty years old. However, there is nothing in evidence to show that the victim is of a tender age or had a suspicious character and the question for the girl of twenty years of age or even less 8 will put her character at stake to make a false implication. However, it is true that the medical evidence does not show sign of rape, but, the occurrence is of the night of 11th and 12th March, 1993, and the victim was medically examined on 19th March, 1993, hence, naturally no finding of rape can be found after eight days, hence, non-corroboration of rape by the medical evidence is of not vital consequences to the prosecution case and there is no reason to disbelieve the evidence of P.W. 7, the victim and the other witnesses. 15. Hence, taking into consideration the entire facts there is nothing in the evidence of P.Ws. 4, 5, 6 and 7 to disbelieve the testimony and even though the medical evidence not having been corroborated the sign of rape there is reason for the same and there are sufficient materials in the evidence of P.W. 7 which has been corroborated by the evidence of P.Ws. 4, 5 and 6 supporting the prosecution case about the rape of the victim by the appellant, Md. Khalil and, hence, I do not find any infirmity in judgment of conviction and sentence recorded by the learned lower Court for offence under Section 376 of the Indian Penal Code and, hence, I do not find any merit in this appeal. This appeal is dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 23rd day of June, 2011, N.A.F.R., S.A.