Sanjeet @ Bhokaran Dom vs The State Of Bihar on 31 July, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.42 of 2015
Arising Out of PS.Case No. -15 Year- 2013 Thana -MAHILA PS District- JEHANABAD

1. Sanjeet @ Bhokaran Dom Resident of Village – Maya Bigha, P.S. – Ghoshi,
District – Jehanabad. …. …. Appellant/s
Versus

1. The State of Bihar …. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Nitya Nand Niraj, Adv
For the Respondent/s : Mrs. Abha Sinha, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 31-07-2017

Sole appellant Sanjeet @ Bhokaran Dom has been

found guilty for offences punishable under Sections 376(1) IPC, 307

IPC vide judgment of conviction dated 13.11.2014 and sentenced to

undergo RI for 10 years under each head as well as to pay fine of Rs.

10,000/- (composite) in default thereof, to undergo SI for 3 months

additionally, vide order of sentence dated 18.11.2014 passed by

Adhoc Additional Sessions Judge-1st , Jehanabad in Sessions Trial

No. 349 of 2013/153 of 2013.

2. (Name withheld) victim (PW-1) while was

admitted at Sadar Hospital, Jehanabad gave her Fard-e-beyan on

18.02.2013 at 2:00 P.M. disclosing thereunder that on the same day at

about 7 :00 A.M. she along with her sister, Soni Kumari had gone to

ease in a field lying east to her house. They both sat at two different

places. During midst thereof, Sanjeet @ Bhokaran Dom, who happens

to be relative of her villager, came, caught hold of her, threw her on

the ground, gagged her mouth and then raped her. After committing
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 2

the rape, he got up whereupon, she raised hue and cry attracting the

persons nearby whereupon, Sanjeet @ Bhokaran Dom gave Chhura

blow and then, ran away. She was taken to hospital by her family

members as well as villagers.

3. Jehanabad Mahila PS Case No. 15/2003 was

registered thereupon followed with an investigation and after

completing the same, charge-sheet was submitted under Section 376

IPC, 307 IPC which ultimately facilitated the trial before the court of

sessions with a finding adverse to the appellant, subject matter of

instant appeal.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 CrPC is

that of complete denial of the occurrence. However, neither any DW

nor any document has been exhibited on his behalf.

5. While assailing the judgment of conviction and

sentence, it has been submitted on behalf of the appellant that save

and except the victim herself examined as PW-1, none of the other

witnesses who, though claimed to be in the surroundings of the

alleged P.O. claimed to be an eyewitness to the occurrence. That

being so, the narration having been advanced at the end of the victim

happens to be uncorroborated and so, is fit to be rejected.

Furthermore, it has also been submitted that the place of occurrence as

alleged by the prosecution has not been substantiated properly
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 3

because of the fact that Investigating Officer, PW-6, had not found

any sign, much less the blood stain at the place of occurrence in spite

of the fact that there happens to be specific allegation against the

appellant that he had inflicted Chhura blow. In likewise manner, it

has also been submitted that on account of non examination of

surgeon who had treated the alleged victim is another circumstance to

which creates doubt over the genuineness of the occurrence. It has

also been submitted that PWs-2, 4 are the doctors who examined the

victim and during course of their evidence have not supported the

contention of the prosecution by way of finding that no injury caused

by sharp cutting weapon was ever found by them during course of

examination of the victim. So, the allegation has been purposely

introduced to give a slip to the prosecution witnesses as, victim being

a major was a consenting party, was seen by others having been in a

compromising position with the appellant and so, the evidence on

record lacks such kind of deficiency.

6. Apart from this, it has also been submitted that

the victim was examined on the same day but there happens to be

absence of spermatozoa which could not have been. Therefore, the

cumulative effect happens to be that the case of the prosecution is

found dimidiated. Consequent thereupon, appellant should be

acquitted.

7. Learned APP, while controverting the
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 4

submissions advanced on behalf of appellant, has submitted that

occurrence is said to have been committed in a Rahar Field. The

Investigating Officer during course of inspection had found the Rahar

plant duly trampled and so, the aforesaid eventuality is suggestive of

the fact that an occurrence had taken place and for that, the victim

detailed the same corroborated by the other witnesses. Furthermore, it

has also been submitted that neither the victim was suggested nor

there happens to be cross-examination on that very score at the end of

appellant that she was major and was a consenting party. So, neither

the court could infer on its own that she was a consenting party nor

the evidence available on the record suggests like so. Therefore, the

alternative argument having raised on behalf of appellant has got no

leg to stand. Furthermore, it has also been submitted that PW-2, a

Gynecologist has examined the victim and found injuries over the

private part of the victim suggesting that she was ravished and so, the

learned lower court had rightly convicted and sentenced the appellant.

8. In order to substantiate its case prosecution had

examined altogether 13 witnesses out of whom PW-1, is the victim

herself, PW-2, Dr. Mina Kumari, PW-3, Dr. Ranvijay Prasad, PW-4,

Dr. Ramadhar Sharma, PW-5, Dr. Deoraj Chaudhary, PW-6, Susma

Kumari, Investigating Officer, PW-7, Saheb Yadav, PW-8 Rakesh

Das, PW-9, Lalti Devi, PW-10, Soni Devi, PW-11, Baliram Yadav,

PW-12, Sonbarti Devi, and PW-13 is, Rajendra Ram. Side by side
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 5

had also exhibited Ext-1, Signature of victim over Fard-e-beyan, Ext-

READ  Both R/O Bhaskar Nagar, Pachora vs Ig on 15 March, 2012

1/A, Signature of victim over 164 statement, Ext-2, injury report

issued by PW-2, Ext-3, report of medical board, Ext-3/A, another

report issued by medical board, Ext-4, Fard-e-beyan, Ext-5, Formal

FIR, Ext-6, seizure list. As stated above defence had not examined

any DW nor exhibited any chit of paper.

9. Now coming to the status of the witnesses, it is evident

that save and except, the victim PW-1 none is an eyewitness to

occurrence. PW-11, Baliram Yadav, and PW-7, Saheb Yadav, though

corroborated the prosecution case but failed to identify the accused in

the dock. So, even substantiating the case of the prosecution, these

witnesses have given a lifeline by way of withdrawing themselves to

identify the appellant as cultprit.

10. PW-10 is Soni Devi, own sister of victim. From her

evidence it is evident that although, she was not declared hostile but

she had not supported the case of the prosecution relating to rape as

well as assault by means of Chhura though she had spoken that the

accused had come along with Chhura but did not do anything.

11. With regard to remaining witnesses, that means to say,

PW-8, Rakesh Das who happens to be brother of victim, PW-9, Lalti

Devi, PW-12, Sonbarti Devi, mother of victim and PW-3, Rajendra

Ram, they all have stated that they came to know about the occurrence

from the victim. Furthermore, excluding PW-8 as well as PW-12
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 6

other have also stated that they had seen the appellant fleeing from the

place of occurrence along with Chhura when they reached on an alarm

raised by the victim after the occurrence. From their respective cross-

examination, it is evident that they have not been sacked save and

except identifying their eagerness to say that they had accompanied

the victim from the place of occurrence to her house. PWs-8 and 12

who are brother and mother of the victim have stated that they came

to know with regard to the occurrence from the victim who had

narrated the incident regarding which, they stated and during course

of cross-examination also, the aforesaid event has properly been

substantiated.

12. Now coming to the evidence of the victim PW-1, it is

evident that she had categorically stated that while she was easing, the

accused came from behind, caught hold of her, threw her on the

ground, gagged her mouth and then raped her. When he got up, she

raised alarm attracting people of the surrounding whereupon, the

accused gave a Chhura blow over her vagina and then ran away.

Copious blood was there from the injury. She was taken to her house

and then to hospital where her Fard-e-beyan was recorded (exhibited).

During cross-examination, she had stated that the accused was not

known to her from before. Again she stated that the accused was the

relative of her villager. Then she said that who disclosed the name of

accused, she is not remembering. At para-4, she had stated that
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 7

accused after inflicting Chhura fled away. In para-8, she had stated

that there was no animosity prevailing in between. In para-9, she had

stated that the occurrence took place for an hour. In para-11, she had

stated that she had taken education up to Class-VII. In para-12, she

stated that the accused came from behind, caught hold of her, threw

her on the ground, gagged her mouth and then raped her. After

removing of hand as he stood after occurrence, she raised alarm

whereupon accused gave a Chhura blow. In para-13, she had stated

that she became unconscious and so, she is unable to say with regard

to subsequent event. In para-14, she had stated that Salwar was taken

away by Darogaji. When she regained her sense, she found herself

admitted in Jehanabad Hospital. In para-17, she had sated that the

place of occurrence happens to be Rahar Field. She is unable to say

whether the Investigating Officer had visited the place of occurrence

or not. Then had denied the suggestion that no occurrence had taken

place with her.

13. PW-6 is the Investigating Officer who had stated that

on the alleged date she was posted at Mahila Thana, Jahanabad. On

that day, she was entrusted with the investigation of Mahila Thana PS

Case No. 15/2012. Then she had exhibited the relevant documents.

She further stated that she also received seizure list (exhibited). Took

further statement of informant, statement of other witnesses, Soni

Kumari, Sonbarti Devi. Then came at the place of occurrence and
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 8

inspected the same. Then identified the place of occurrence i.e. Rahar

Field. Properly identified by the boundary. She had found eastern side

Rahar plant of the field trampled. She had also found excreta at one

place. She took statement of other witnesses. Seized Salwar of victim

(exhibited seizure list). Got the victim examined and received report.

Got the victim examined under Section 164 Cr.P.C. Accused has

surrendered whereupon took the accused on police remand and then

got him medically examined. After completing the investigation

submitted charge-sheet.

14. During cross-examination at para-8, she had stated that

she had not found blood stains at the place of occurrence. In para-9,

she had stated that she had not mentioned in the case diary whether

leaves of Rahar plant was attached with the body of the victim. She

had not mentioned the fact that soil was found over the body of

victim. In para-10, she had stated that save and except injury over

vagina no other injury was found over her body. In para-14, she had

stated that 8-10 villagers had stated that they failed to apprehend the

accused while fleeing after committing the occurrence. In para-17, she

had stated that she is unable to say whether the accused happens to be

lame. Further she stated that no one could perceive on bare perusal of

accused to be lame. In para-19, she had not found any injury over the

READ  Shripatrao vs State Of Maharastra on 4 August, 1999

person of appellant.

15. PW-3, Dr. Ranvijay and PW-5, Dr. Devraj apart from
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 9

others were members of the medical board who had examined

appellant, Sanjeet @ Bhokaran Dom on 02.03.2013 that means to say,

after 20 days of the alleged occurrence and so, rightly no external

injury was found. Furthermore, he was found capable of cohabitation

and his age was identified in between 20-23 years.

16. PW-2 had examined the victim on 18.02.2013 at 11.50

A.M. and found the following injuries:-

-Secondary cervical characters well developed.

-Profuse bleeding, P/V present.

-Lower 1/3rd of vagina lacerated. Tear extended posteriorly
up to anus. Anal splinter torn.

-Microbilogical report of vaginal swab given by Dr. Sanjay
Gupta.

-Spermatozoa —- Not found.

-RBCS —- Present.

-Radiological report given by Dr. B.S. Kashyap, the age of
pt. seems to be in between 16-17 years.

-M.I–Til on Rt. Cheek,

-Above injury suggests possibility of rape.

17. In the opinion of doctor, nature of injury suggests that

she was raped.

18. PW-4 is the doctor who along with others were

members of the Medical Board. During course of examination of the

victim including that of PW-2 and as per opinion regarding age of the

victim, the same was 16-17 years.

19. Before coming to analyze the evidence, it is apparent

from the prevailing circumstance that inspite of specific direction by

the Hon’ble Apex Court at different occasions that the victim of rape

should not be medically examined in order to ascertain the age. For
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 10

that purpose, the rules so prescribed under the Juvenile Justice Act for

determination of delinquent in conflict with law is to be followed as

held in the case of Jernail Singh v. Haryana 2013 Cr.L.J. 3976 as

reported in 2013 Cr.L.J and have directed under para-20 that the age

of victim should also be determined by exercising the same process

whereunder the age of juvenile in conflict with law is determined. For

better appreciation paragraph- 20 is quoted herein below:-

“20. On the issue of determination of age of a
minor, one only needs to make a reference to Rule 12 of
the Juvenile Justice (Care and Protection of Children)
Rules, 2007 (hereinafter referred to as the 2007 Rules).
The aforestated 2007 Rules have been framed under
Section 68(1) of the Juvenile Justice (Care and
Protection of Children) Act, 2000. Rule 12 referred to
hereinabove reads as under :

12. Procedure to be followed in determination of
Age.? (1) In every case concerning a child or a juvenile
in conflict with law, the court or the Board or as the case
may be the Committee referred to in rule 19 of these
rules shall determine the age of such juvenile or child or
a juvenile in conflict with law within a period of thirty
days from the date of making of the application for that
purpose.

(2) The court or the Board or as the case may be
the Committee shall decide the juvenility or otherwise of
the juvenile or the child or as the case may be the
juvenile in conflict with law, prima facie on the basis of
physical appearance or documents, if available, and send
him to the observation home or in jail.

(3) In every case concerning a child or juvenile in
conflict with law, the age determination inquiry shall be
conducted by the court or the Board or, as the case may
be, the Committee by seeking evidence by obtaining .

(a) (i) the matriculation or equivalent certificates,
if available; and in the absence whereof;

(ii) the date of birth certificate from the school
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 11

(other than a play school) first attended; and in the
absence whereof;

(iii) the birth certificate given by a corporation or a
municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii)
of clause (a) above, the medical opinion will be sought
from a duly constituted Medical Board, which will
declare the age of the juvenile or child. In case exact
assessment of the age cannot be done, the Court or the
Board or, as the case may be, the Committee, for the
reasons to be recorded by them, may, if considered
necessary, give benefit to the child or juvenile by
considering his/her age on lower side within the margin
of one year.

and, while passing orders in such case shall, after
taking into consideration such evidence as may be
available, or the medical opinion, as the case may be,
record a finding in respect of his age and either of the
evidence specified in any of the clauses (a)(i), (ii), (iii) or
in the absence whereof, clause (b) shall be the conclusive
proof of the age as regards such child or the juvenile in
conflict with law.

(4) If the age of a juvenile or child or the juvenile
in conflict with law is found to be below 18 years on the
date of offence, on the basis of any of the conclusive
proof specified in sub-rule (3), the court or the Board or
as the case may be the Committee shall in writing pass
an order stating the age and declaring the status of
juvenility or otherwise, for the purpose of the Act and
these rules and a copy of the order shall be given to such
juvenile or the person concerned.

(5) Save and except where, further inquiry or
otherwise is required, inter alia, in terms of
section 7A,
section 64 of the Act and these rules, no further inquiry
shall be conducted by the court or the Board after
examining and obtaining the certificate or any other
documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also
apply to those disposed off cases, where the status of
juvenility has not been determined in accordance with
the provisions contained in sub- rule(3) and the Act,
requiring dispensation of the sentence under the Act for
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 12

passing appropriate order in the interest of the juvenile in
conflict with law.

Even though Rule 12 is strictly applicable only to
determine the age of a child in conflict with law, we are
of the view that the aforesaid statutory provision should
be the basis for determining age, even for a child who is
a victim of crime. For, in our view, there is hardly any
difference in so far as the issue of minority is concerned,
between a child in conflict with law, and a child who is a
victim of crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of the
2007 Rules, to determine the age of the prosecutrix VW-
PW6. The manner of determining age conclusively, has
been expressed in sub-rule (3) of Rule 12 extracted
above. Under the aforesaid provision, the age of a child
is ascertained, by adopting the first available basis, out of
a number of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding effect
over an option expressed in a subsequent clause. The
highest rated option available, would conclusively
determine the age of a minor. In the scheme of Rule
12(3), matriculation (or equivalent) certificate of the
concerned child, is the highest rated option. In case, the
said certificate is available, no other evidence can be
relied upon. Only in the absence of the said certificate,
Rule 12(3), envisages consideration of the date of birth
entered, in the school first attended by the child. In case
such an entry of date of birth is available, the date of
birth depicted therein is liable to be treated as final and
conclusive, and no other material is to be relied upon.
Only in the absence of such entry, Rule 12(3) postulates
reliance on a birth certificate issued by a corporation or a
municipal authority or a panchayat. Yet again, if such a
certificate is available, then no other material whatsoever
is to be taken into consideration, for determining the age
of the child concerned, as the said certificate would
conclusively determine the age of the child. It is only in
the absence of any of the aforesaid, that Rule 12(3)
postulates the determination of age of the concerned
child, on the basis of medical opinion.

20. Moreover, during course of examination of PW-6, the
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 13

I.O., she was not at all examined by the prosecution on that very score

nor cross-examination at the end of defence that in spite of having

been disclosed by the victim to be student of Class-VII, the I.O.

during course of investigation did not care to procure the date of birth

from the admission register. However, in the present case, that has not

become the relevant factor as, while cross-examining the victim, PW-

1. Defence had not challenged her status to be major and further, she

was a consenting party. Absence of spermatozoa is not a condition

precedent for constituting an offence of rape as, defined under Section

375 of the IPC that slight penetration is sufficient to constitute the

rape. Neither PW-2 has been cross-examined on that very score nor

the victim and so, from the evidence on record, the factum of rape is

duly substantiated. Apart from this, still under Indian culture and

social panorama the prestige of a woman is measured with her

virginity. The event of rape in the present social atmosphere is a

stigma not against the physical body rather it happens to be a scar

over the sole of a female. Virtually, the incident of rape makes the

victim difficult to survive as, she has to carry stigma till her life. That

happens to be the reason behind that still the female, even being

victimized are reluctant to come forward to institute a case against her

rapist. Furthermore, no woman would allow her to carry the stigma by

way of instituting a false case and that happens to be the reason

behind that the evidence of victim has been found sufficient to
Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 14

constitute the conviction without corroboration, unless and until some

sort of infirmity is found whereupon the corroboration is needed. So

far present case is concerned, it is apparent that there happens to be no

animosity prevailing since before. It is further evident that no cross-

examination of victim has been made relating to previous

acquaintance. In likewise manner, she has not been cross-examined

that she happens to be a major and was a consenting party. Then in

that event, the veracity of her evidence neither should be doubted nor

even on flimsy grounds, should be discarded.

21. Consequent thereupon, her allegation against appellant

to be her rapist is found properly substantiated and for that, the

learned lower court had rightly convicted and sentenced.

22. So far offence relating to Section 307 of the IPC is

concerned, though there happens to be allegation at the end of the

victim that she was given Chhura blow over her vagina, as per

evidence of PW-2, the Gynecologist, tear was found up to anus but

she had not stated that the aforesaid injury was out of sharp cutting

weapon. That being so, it appears that while suffering from trauma of

rape, she could not perceive whether Chhura blow was given over the

vagina or she had sustained injury due to rape or due to Chhura blow

and so the conviction and sentence recorded against the appellant

relating to Section 307 of the IPC did not find favour and is

accordingly, allowed exanimate.

Patna High Court CR. APP (SJ) No.42 of 2015 dt.31-07-2017 15

23. With the aforesaid modification, the instant appeal is

dismissed. The appellant is under custody which he will remain till

saturation of sentence.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 02.08.2017
Transmission 02.08.2017
Date

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