Md. Aurangjeb @ Munnu vs The State Of Bihar on 21 July, 2017

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

U T

Leave a Comment

Your email address will not be published. Required fields are marked *