sIN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.451 of 2015
Arising Out of PS.Case No. -405 Year- 2013 Thana -SAMASTIPUR MUFFASIL District-
SAMASTIPUR
1. Md. Aurangjeb @ Munnu son of Md. Shamshad, resident of village Bisanpur,
P.S. Samastipur Mufasil, District Samastipur. …. …. Appellant/s
Versus
1. The State of Bihar …. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Nafisuzzoha, Advocate
For the Respondent/s : Mr. S.A. Ahmad, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 21-07-2017
Appellant, Md. Aurangjeb @ Munnu has been found guilty
for an offence punishable under Sections 376 IPC and sentenced to
undergo RI for 10 years as well as fine of Rs. 25,000/- in default
thereof, to undergo imprisonment of 3 months additionally by the
Additional Sessions Judge-IV, Samastipur in Session Trial No.
02/2014 vide judgment of conviction dated 08.07.2015 and order of
sentence dated 09.07.2014.
2. Victim (name withheld), PW-4 gave her Fard-e-beyan
while she was admitted in emergency ward of Sadar Hospital,
Samastipur on 01.04.2013 at about 3:00 AM, in presence of her
brother Md. Javed and Bhabhi Azmati Khatoon (PWs-1 and 2)
respectively alleging inter alia that she along with her brother and
Bhabhi has come to visit Jitwarpur Mela over a vehicle driven by one
Aurangjeb @ Munnu. They remained there. At about 12:00 Midnight,
they came near the vehicle where all of a sudden Aurangjeb @ Munnu
pulled her inside the vehicle and sped away towards river. Then
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 2
thereafter, she was taken to near „Ikri‟ shrub where Aurangjeb @
Munnu began to undress her forcibly which was protested by her
whereupon, she was assaulted with fists and slaps as well as shoes.
Thereafter, she was ravished near about an hour. As a result of which
her physical condition deteriorated. She suffered from sever pain.
Blood began to ooze out from her private part. Thereafter, she was
lifted inside the vehicle and then Aurangjeb @ Munnu returned back.
At Chandni Chowk, he parked the vehicle and then informed her
brother that he is coming along with her. Then he came to Mela where
she was carried up to the place where her Bhabhi and Bhiya were
present, where she divulged the occurrence. Aurangjeb @ Munnu
threatened all of them and also tried to escape. However, his brother
with the assistance of Md. Sitare and Md. Feroz, co-villagers chased,
caught hold of Aurangjeb @ Munnu and then, brought him to the
police who was present in the Mela. Police took all of them to hospital
seeing her condition. She had further disclosed that at the time of
taking her away by Aurangjeb @ Munnu he had pushed her Bhabhi.
3. After registration of Mufassil PS Case No. 405/2013,
investigation commenced and concluded by way of submission of
charge-sheet under Section 376 of the IPC whereupon the trial
commenced and concluded before the learned lower court meeting
with ultimate result by way of recording conviction and sentence
against the appellant, hence this appeal.
4. Defence case as is evident from the mode of cross-
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 3
examination as well as statement recorded under Section 313 CrPC is
that of complete denial of the occurrence. It has also been pleaded that
father of alleged victim was inclined to get the victim married with
appellant and for that he had approached but on account of refusal at
the end of appellant, this false case has been instituted. To
substantiated the same, DWs have also been examined.
5. In order to substantiate its case prosecution had
examined altogether 8 PWs out of whom PW-1, Md. Javed, is the
brother, PW-2, Azmati Khatoon, Bhabhi of the victim, PW-3, Md.
Haleem, seizure list witness relating to seizure of Salwar, PW-4 is the
victim herself, PW-5 is Md. Sohrab, another seizure list witness along
with PW-3, PW-6, Md. Anwar is the seizure list witness relating to
Scorpio vehicle, PW-7, Dr. Lalita Singh who had examined the victim
and PW-8, Anil Kumar Singh, Investigating Officer.
6. Side by side prosecution had also exhibited Ext-1,
Signature of Md. Javed on Fard-e-beyan, Ext-2, Signature of Md.
Javed on seizure list, Ext-3, Signature of Md. Javed on seizure list,
Ext-1/A, Signature of Shabana Khatoon on Fard-e-beyan, Ext-2/A,
Signature of Md. Sohrab on seizure list, Ext-3, Injury report, Ext-1/B
Fard-e-beyan, Ext-1/C, Fard-e-beyan, Ext-4, FIR Ext-5, Seizure list,
Ext-6, Seizure List, Ext-7, Seizure list.
7. In likewise manner, defence had examined 3 DWs out of
whom DW-1 is Dr. Uday Kumar who had examined the
accused/appellant, DW-2 is Md. Maqsood Alam, DW-3 is Md.
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 4
Shamshad, father of appellant. Medical report relating to appellant
had also been exhibited as Ext-A.
8. The learned counsel for the appellant has submitted that
because of the fact that PW-4 was not at all raped nor she was ever
kidnapped for the aforesaid purpose from Jitwarpur Mela and that
happens to be reason behind that on that very score, there happens to
be inconsistency amongst the PWs. To substantiate the same, it has
been submitted that while the victim had deposed that she was pulled
by the appellant inside vehicle and at that very time her Bhabhi was
pushed away by the appellant while the evidence of PWs-1 and 2,
brother and Bhabhi of the victim deposed otherwise. They have
deposed that the victim got inside vehicle. While PW-2, Azmati
Khatoon was to board, the vehicle sped away. At that very time, it is
evident that PW-1, Md. Javed had a talk over mobile. Had there been
such kind of occurrence, at least, PW-1 would have dialed over the
mobile of appellant directing him to return or, would have inquired
why he had indulged in such kind of activity. Side by side, their
natural conduct would have been to raise alarm to attract the people
present in the Mela, the police was present there and further, having
sufficient vehicle parked since before would not have spared the
appellant to take away the vehicle and subsequently, an opportunity
to rape her. Keeping silence is an abnormal activity and if considered
in the facts and circumstances of the case, completely demolished the
prosecution case which has purposely been introduced and for that,
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 5
there happens to be plausible explanation at the end of the appellant.
9. It has also been submitted that had victim taken away by
the appellant and was raped, then in that circumstance, it was not at all
expected that appellant would have returned with the victim to the
Mela where her brother and Bhabhi were giving an opportunity of
being apprehended apart from the fact that Md. Sitare and Md. Feroz,
the co-villagers, who along with brother of victim got appellant
apprehended have not been examined nor there happens to be any
kind of explanation at the end of the prosecution over their non
examination during trial.
10. Furthermore, it has also been submitted that appellant
was apprehended at the Mela itself and had there been such kind of
activity, the police would have recorded those things which would
have gone against the appellant. In its continuity, it has also been
submitted that clothe, under garments of the appellant allegedly
containing stain were sent to FSL but, the report is awaiting
whereupon it could not be conclusively held that the stain whatsoever
found on the apparel, under garment of the appellant indicate to be
that of semen, blood. Furthermore, it has also been submitted that
Investigating Officer had visited the place of occurrence and from his
objective finding, it is evident that no sign was there which could have
corroborated the prosecution version with regard to any kind of
occurrence having been committed there.
11. Coming to over-all situation of the prosecution case, it
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 6
has been submitted that save and except brother, Bhabhi and the
victim, none is on material point. Had there been such kind of
occurrence, then in that event, the parents as well as other family
members, villagers would have certainly come forward to corroborate
the same and so, it has been submitted that the evidence of Dr. (PW-7)
is not going to save the prosecution case as it suffers from inherent
illegality. So submitted that in the facts and circumstances of the case,
it is apparent that the appellant has been victimized.
12. Controverting the submission made on behalf of the
appellant, it has been submitted by the learned APP that on account of
non examination of particular witness, the prosecution case would not
fail. This deficiency could be perceived as an additional ground in
case prosecution could not succeed in proving its case. On the other
hand, it has to be seen that the evidence coming out from the mouth of
a witness whoever been examined, the case is proved or not. So
submitted that from the evidence having been adduced on behalf of
prosecution, it is crystal clear that on the alleged date of occurrence,
the victim was raped which is found corroborated with the evidence of
PW-7, the doctor and so, the appellant has rightly been convicted and
sentenced.
13. Before coming to ocular evidence, first of all, the
finding of the doctor, PW-7 is to be considered who had recorded as
follows:-
“P/V. Lacerated wound of ¼” diameter in size on the
labia minor extending up to hymen in right side. There is
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 7
partial rupture of hymen. Blood clot present on the wound.
No active bleeding found in the private part. No stain of
semen found on her private parts. Blood stained clothe
preserved and handed over to constable for needful. Vaginal
swab taken for microscopic exam. Vagina admits 1 finger
and difficulty. No foreign hair found on the private parts.
Age of injury within 24 hours.”
14. Furthermore, from the aforesaid report it is evident that
the Medical Board had opined the age of the victim in between 13-14
years. Therefore, the status of the victim, PW-4 being a minor, could
not be ruled out.
15. Coming to the oral evidence, first of all, the evidence of
victim, PW-4 is to be taken up. She had deposed that the occurrence is
of about 1 year and 4 months ago. Her brother, Md. Javed had hired a
Scorpio vehicle to visit Mela from Aurangjeb @ Munnu who came at
9:00 PM along with the Scorpio vehicle. She along with her Bhaiya
and Bhabhi boarded and visited the Mela. They remained there. Then,
in order to return back, she came near the vehicle where, Aurangjeb
@ Munnu pulled her. At that very time, her Bhabhi was in process to
board. Then thereafter, she was taken to the bank of a river where she
was dragged near about „Ikri‟, shrubs where she was assaulted with
fists and slaps as well as shoe. Thereafter, he forcibly undressed her
and then committed rape as a result of which, blood oozen out. Blood
spot stained over her Salwar. Thereafter, she was taken in the vehicle
and during midst of way, she was threatened that in case of discloser,
she will be eliminated. After coming to Mela, he accompanied her to
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 8
her Bhaiya and Bhabhi where, she disclosed the whole event.
Aurangjeb @ Munnu began to flee but was apprehended by her
brother with the help of Sitare and Feroz and then was handed over to
Mela Police. Police took them to PS and then thereafter, to hospital
where she was treated. In Hospital, her Fard-e-beyan was recorded
whereupon she put her signature. She identified the accused in the
dock. During cross-examination at para-3, she had divulged that
Aurangjeb @ Munnu was not on visiting term. She had seen him for
the first time on the date of occurrence itself and then thereafter, in the
court. In para-4, she had stated that during course of visit to Mela, she
had not met with her co-villager. Aurangjeb @ Munnu was not
moving in Mela along with them. After an hour, they returned back
near the vehicle where more than 100 vehicles were parked since
before. In para-5, she had stated that at that very time none other than
her Bhabhi and Bhaiya were present near the vehicle. In para-6, she
had stated that she was taken about 1 kilometer. She was brought after
an hour. She had not sustained hurt over her body. She had raised
alarm but none came. In para-7, she had further stated that her Bhaiya
and Bhabhi had searched her in Mela. In para-9, there happens to be
suggestion with regard to denial of the occurrence as well as
institution of the false case on account of refusal by the appellant to
accept offer having made at their end for marriage.
16. PW-1 is the brother. He had deposed that in the night of
31.08.2013, he along with his wife came to Chandni Chowk to visit
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 9
Mela and for that purpose hired a vehicle. At about 12:00 Midnight,
they were to return back and for that, they came near the vehicle. At
that very time, he attend a call. His sister boarded the vehicle followed
by his wife who was about to board during midst thereof, Aurangjeb
sped away the vehicle. He became nervous whereupon, Sitare and
Feroz inquired. He had divulged the event. Subsequently thereof, he
received a call at the end of Aurangjeb who directed him to remain
stale as, he is returning along with his sister. After about an hour, he
returned back along with his sister. His sister came near his wife
slowly and then, began to weep. She further disclosed that Aurangjeb
has raped her. When he tried to apprehend him, he ran away but with
the assistance of Sitare and Feroz, was apprehended. Police arrived
there and then, they were taken to the police station wherefrom,
seeing the condition of his sister, she was referred to hospital where
her Fard-e-beyan was recorded and then exhibited the signature over
her Fard-e-beyan. Also proved seizure list relating to Salwar seized by
the police. Scorpio was also seized and for that another seizure list
was prepared. He had identified the accused in the dock. During
cross-examination, he had completely disowned that there was love
affair in between Aurangjeb and his sister. In para-5, he had stated
that he is known to Aurangjeb since before as he was being hired
since before. He had not gone to the place of Aurangjeb but mobile
number is there and through mobile negotiation was being finalized.
In para-7, he had stated that none of his co-villagers met during course
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 10
of Mela visit. Aurangjeb had not accompanied them, rather he was
sitting inside the vehicle. In para-8, he had stated that he had not
raised alarm when appellant drove the vehicle along with his sister.
10-12 vehicles were parked near about. In para-9, he had stated that
his sister was accompanied by Aurangjeb who was apprehended at
that very spot itself. In para-10, he had stated that he had not visited
the alleged place of occurrence. In para-11, similar kind of suggestion
is there.
17. PW-2 is the Bhabhi of the victim, PW-4 and wife of
PW-1. During examination-in-chief, she had reiterated the prosecution
version. During cross-examination, at para-4, she had stated that
Aurangjeb was not on visiting term. In para-5, she had stated that
Aurangjeb was not along with them in Mela. She had further stated
that first of all, the victim had boarded the vehicle. At that very time,
her husband was talking over mobile. In para-6, she had stated that
she had not raised alarm over taking away her Nanad by Aurangjeb.
Her Nanad had raised alarm or not, she could not hear. About an hour,
Aurangjeb returned back along with vehicle. During midst thereof,
they had not informed the police. When her Nanad returened,
Aurangjeb was along with her Nanad. Aurangjeb and her Nanad had
gone to the police station.
18. PW-3 is seizure list witness relating to search and
seizure of the apparel, hair, seized from the possession of appellant.
PW-5 is the witness who happens to be over seizure list relating to
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 11
seizure of Salwar. PW-6 is the seizure list witness relating to seizure
of Scorpio vehicle from Mela.
19. PW-8 is the Investigating Officer who had deposed that
on the alleged date and time of occurrence he was officer Incharge of
Samastipur Mufassil PS. Fard-e-beyan of Victim having been
recorded by R. N. Yadav was produced before him on the basis of
which Mufassil PS Case No. 405/2013 was registered (Ext-
endorsement, Formal FIR) and then took up investigation. During
course of which recorded further statement of the victim, recorded
statement of Md. Javed, Sitare and Feroz, accused was arrested and
then he was forwarded to hospital for examination, seized apparel of
the accused under seizure list (exhibited). Also seized Salwar of the
victim produced by the doctor, PW-7, Lalita Singh, exhibited the
seizure list, visited the place of occurrence which happens to be a
mango orchard belonging to late Jang Bahadur Ray and identified it as
north, road by the side of Bandh, South, mango orchard, East-
passenger shed at the distance of 50 Yard, West-Mango orchard.
Seized scorpio vehicle, recorded statement under Section 164 CrPC,
sent the apparel for FSL examination after taking permission from
learned CJM and then, concluding the investigation, submitted
charge-sheet. During cross-examination at para-8, he had stated that
after 11 hours of registration of the case, he had visited the place of
occurrence. He had not found broken bangle. He had not found any
other sign relating to commission of occurrence. He had visited the
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 12
place of Mela. Accused has got no criminal antecedents. Till
submission of charge-sheet, he had not received FSL report.
20. DWs-2 and 3 have come up in support of plea of
defence that the offer having at the end of father of victim for
marriage of victim with Aurangjeb was turned down. DW-2 in para-4
had stated that for the last two years, he is on visiting term with
Aurangjeb. DW-3 is the father of the appellant. In para-3 had stated
that this occurrence happens to be 1 ½ months after the negotiation
was offered. The occurrence was committed at about 11 PM. So from
the evidence of DW-3, father it is evident that he had admitted some
sort of occurrence having been committed at about 11 PM in the
night.
21. DW-1, one of the members of the Medical Board who
had examined the appellant on police requisition and found the
following:-
1. Bruise 4″ x 1″ on the right side of neck.
2. Bruise 7″ x 2″ on the right side of upper chest and the
aforesaid injuries were caused within 24 hours.
22. On external examination, the doctor had stated that no
stain of blood and semen was present on private part. However, hair
was present over shirt which was collected and handed over to the
police. Some stains were present over clothe which was seized by the
police as is evident from the evidence of PW-3 and 8. In para-3 of his
cross-examination, he had stated that the stain which was found over
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 13
clothe might be of blood as well as of semen subject to examination.
Furthermore, he had stated that after urinating, stains vanish. It has
also been divulged at his end that if the rapist is not examined soon
after the occurrence, then in that event, stain will not be located over
his private part.
23. After analyzing evidence available on the record, it is
apparent that the victim PW-4 was not at all cross-examined on the
score whether she was wearing bangles at the relevant time so non
presence of broken bangle at the P.O. goes out of consideration. In
likewise manner, neither PW-4 nor PW-8 was cross-examined with
regard to nature of land having at the P.O., whether it was hard, soft,
ploughed, and in likewise manner, whether herbs were present in and
around it. The victim was also not cross-examined whether during
course of resistance, she had used her nails by way of scratching or
given a bite upon her rapist. On the other hand, the appellant himself
examined DWs and in the aforesaid background, whatever been
deposed by the DWs would have an impact upon his fate. Injuries
were found over the person of appellant caused within 24 hours which
he failed to explained. When the evidence of the prosecution the
witnesses is taken together with the evidence of father of the
appellant, DW-3, it is apparent that he had admitted commission of
occurrence though some variance over timing.
24. Another circumstance as is visualizing from the
evidence of PW-4, victim is that she has not been cross-examined on
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 14
the theme of rape which happens to be the crux of allegation and for
that only prosecution sailed. In likewise manner, PW-4, victim had
not been cross-examined over her status being major one, and in
likewise manner, PW-7, the doctor who opined victim to be in
between 13-14 years has also not been challenged. So, it could be
conclusively held that PW-4, victim happens to be minor.
25. The allegation that victim was taken away from Mela
in presence of brother and Bhabhi who remained silent spectators as
they too had stated that they have not raised alarm nor taken any kind
of activity to chase, failed to inform the police present in Mela,
commission of rape after taking the victim away from Mela, and then
returning therefrom along with victim, informing the brother over
mobile (not substantiated by call detail though not cross-examined),
coming to Mela along with victim. Non examination of two co-
villagers who joined hand with brother of victim in apprehending the
accused/appellant suggest other different nature of incidence than as
projected, but those observation washed away when the status of the
victim is duly acknowledged being minor.
26. That being so, the victim is found minor one
whereupon, being a consenting party will not change fate of the
instant prosecution. As held by the Apex Court in Dilip v. State of
Madhya Pradesh as reported in 2013 AIR SCW 2538, it has been
held that there happens to be no relevancy of consent given by a
minor. For better appreciation relevant paragraph is quoted below:-
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 15
12/13. In case, the prosecutrix was below 16 years
of age at the relevant time, the issue of consent becomes
totally irrelevant. Even the issue of consent is no more res
integra even in a case where the prosecutrix was above 16
years of age.
In State of H.P. v. Mange Ram, AIR 2000 SC
2798, this Court, while dealing with the issue held:
“Submission of the body under the fear or
terror cannot be construed as a consented sexual act.
Consent for the purpose of Section 375 requires voluntary
participation not only after the exercise of intelligence
based on the knowledge of the significance and moral
quality of the act but after having fully exercised the choice
between resistance and assent. Whether there was consent
or not, is to be ascertained only on a careful study of all
relevant circumstances.” (Emphasis added)
27. In Gian Chand others v. State of Haryana reported
in 2013(4) PLJR 7 (SC) it has been held:-
11. The effect of not cross-examining a witness on
a particular fact/circumstance has been dealt with and explained by
this Court in Laxmibai (Dead) Thr. L.Rs. Anr. v. Bhagwanthuva
(Dead) Thr. L.Rs. Ors., AIR 2013 SC 1204 observing as under:
“31. Furthermore, there cannot be any
dispute with respect to the settled legal proposition, that if
a party wishes to raise any doubt as regards the
correctness of the statement of a witness, the said
witness must be given an opportunity to explain his
statement by drawing his attention to that part of it, which
has been objected to by the other party, as being untrue.
Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of
the statutory provisions enshrined in Section 138 of the
Evidence Act, 1872, which enable the opposite party to
cross-examine a witness as regards information tendered
in evidence by him during his initial examination in chief,
and the scope of this provision stands enlarged by Section
146 of the Evidence Act, which permits a witness to be
questioned, inter-alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to be
relied upon, for the reason that it is impossible for the
Patna High Court CR. APP (SJ) No.451 of 2015 dt.21-07-2017 16
witness to explain or elaborate upon any doubts as
regards the same, in the absence of questions put to
him with respect to the circumstances which indicate that
the version of events provided by him, is not fit to be
believed, and the witness himself, is unworthy of credit.
Thus, if a party intends to impeach a witness, he must
provide adequate opportunity to the witness in the witness
box, to give a full and proper explanation. The same is
essential to ensure fair play and fairness in dealing with
witnesses.”
28. That being so, no perversity is found in the finding
recorded by the learned lower court and so, needs no interference.
Furthermore, while appreciating the sentence having been inflicted by
the learned lower court in the facts and circumstances of the case, as
discussed hereinabove, the sentence of 10 years needs revisit
whereupon the minimum sentence so prescribed under Section 376
IPC is inflicted against the appellant and so, sentence inflicted by the
learned lower court is modified to the extent directing the appellant to
undergo RI for 7 years. So far fine is concerned, the same is also
confirmed with the default clause. Furthermore, period already
undergone will be set off in terms of Section 428 of the CrPC.
29. With the aforesaid modification in sentence, the appeal
is dismissed.
(Aditya Kumar Trivedi, J)
perwez
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