IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.270 of 2016
Arising Out of PS.Case No. -34 Year- 2008 Thana -BIKRAM District- PATNA
Jeetu Manjhi, Son of Lal Deo Manjhi Resident of village- Azad Nagar, P.S.-
Bikram, District- Patna
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Jay Prakash Singh, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP
CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT
Date: 09-09-2017
This is an appeal filed by the appellant under Sections
374(2) and 389(1) of the Code of Criminal Procedure calling in
question the tenability and legality of a judgment dated 13.12.2011
passed by Additional District Sessions Judge-V, Danapur in
Sessions Trial No. 10 of 1999/29 of 2011 convicting the appellant for
an offence under Section 376 of the Indian Penal Code.
2. It is the case of the prosecution that on the basis of
information received from one Janakiya Devi, PW 4, the F.I.R. in
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question was registered by the authorities of Police Station Bikram,
District Patna, on 08.03.2008 and according to the complaint made
by Janakiya Devi, on 04.03.2008 it is said that she had gone out for
doing her work as a labourer. When she returned to her house at 7.00
in the evening she found that her daughter, the prosecutrix, was not
available in the house. She was a small child aged between 4 to 6
years and she immediately saw that the appellant accused Jeetu
Manjhi brought back her daughter on his bicycle, dropped her in the
house and went away. It is stated that the daughter (prosecutrix) who
is also a dumb and mute child, started weeping and by indications
pointed out to her mother that the appellant Jeetu Manjhi has
committed rape on her. She found blood-stain and marks of injury on
her body and dress and when the prosecutrix girl started crying, the
informant informed the villagers, who in turn, advised her that
looking into the age of the child she should settle the matter in the
village Panchayat. It is said that due to the adamant attitude of the
accused and his family members, no settlement could have arrived at
Panchayat and, therefore, she lodged the report on 08.03.2008 based
on which the prosecution was initiated.
3. On behalf of the prosecution, six witnesses were
examined, namely, PW 1 Sukhiya Devi, PW 2 Bajrangi, PW 3
Ramsakal Rai – the Investigating Officer, PW 4 the informant and
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mother of the prosecutrix Janakiya Devi. The prosecutrix girl was
examined as PW 5, and the doctor who examined the prosecutrix was
examined as PW 6. Various documents, namely, FIR Ext.1, seizure
list Ext.2, and the medical examination report and supplementary
medical examination report Exts.3/1 and 3/2 were also marked and
based on the statements of the witnesses the conviction has been
ordered and the appellant sentenced to undergo 10 years of rigorous
imprisonment.
4. Learned counsel appearing for the appellant invited my
attention to the F.I.R. Ext. P/1, statement of PW 4 mother of the
prosecutrix and certain discrepancies in the statement of the mother,
referred to Section 119 of the Indian Evidence Act, 1872 and argued
that the prosecutrix being a dumb girl in the matter of examining her
the requirement of Section 119 of the Evidence Act has not been
complied with. He further argued that PW 1 Sukhiya Devi and PW 2
Bajrangi have not supported the case of the prosecution, they have
turned hostile and, therefore, the conviction is unsustainable. It is
further argued that the seized cloth was not sent for medical
examination and the same was never produced before the trial court
and this is a serious lacuna in the case of the prosecution which could
be viewed seriously. It was also argued that the police station is only
one kilometer away from the residence of the informant and there is
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no justification in four days delay in lodging the F.I.R. All this,
according to the counsel representing the appellant, are fatal to the
case of the prosecution and the appellant has to be acquitted. He
further submits that the appellant has been in custody for a period of
more than 6 to 7 years and, therefore, now he should be left free.
5. On the contrary, learned counsel appearing for the
State argued that there is only minor discrepancy in the statement of
PW 4 which does not materially affect the case of the prosecution.
He took me through the statement of PW 3 Ramsakal Rai, the
Investigating Officer, and the medical evidence of PW 6 Dr. Sarita,
to argue that injuries found on the body of the prosecutrix
particularly injury on the private parts are sufficient enough to
uphold the conviction and no indulgence into the matter is called for.
As far as breach of the provision of Section 119 of the Evidence Act
is concerned, learned counsel on behalf of the prosecution argued
that even if no interpreter or an expert witness was utilized for the
purpose of recording evidence of the witness (the prosecutrix), when
the evidence of PW 4 the mother available on record did support the
case of the prosecution, there is no need for interference on the
ground that PW 5 the prosecutrix was not examined in accordance
with the requirement of Section 119 of the Evidence Act.
6. I have heard learned counsel for the parties at length
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and find that PW 1 Sukhiya Devi and PW 2 Bajrangi who are family
members have pleaded ignorance about the incident and they have
been declared hostile. In his statement PW 3 Ramsakal Rai, I.O., has
indicated and proved recording the FIR vide Ext.1, seizure of the red-
colour undergarment and frock of the prosecutrix as is detailed in
Ext.2, medical examination of the girl by Dr. Sarita, PW 6, and PW 4
Janakiya Devi the informant and mother of the prosecutrix, supports
the case of the prosecution and there is nothing to disbelieve her
statement. PW 4 is the mother of the prosecutrix. She has been
staying with her since her birth and she categorically stated that even
though her daughter is dumb and cannot speak but she could
understand what she said from her sign language and had recorded
her statement based on the said sign language indicated by her
daughter. She also testified about the blood on her body and cloth,
bleeding from her urinal track and various other factors with regard
to physical injury on the person of the prosecutrix and if these factors
are evaluated in the light of medical examination and the evidence of
PW 6 Dr. Sarita, it is clear that the same is corroborated. Various
injuries like abrasion on the lumbar area, abrasion on various parts of
the body, injuries caused on the body being within 48 hours and
injuries on the private parts proved by the doctor are testimony of the
fact that the prosecutrix was put to some harassment and she was
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dealt with in a manner which indicates that she has been subjected to
rape. At least 48 hours before she was presented for medical
examination. The doctor further has assessed the age of the victim of
about 4 to 6 years based on the medical evidence that has been
produced. That apart, as per the supplementary medical report
Ext.3/2, the microscopic examination of the vaginal swab of the
prosecutrix by the Microbiology Department of Patna Medical
College also indicates that the prosecutrix has been subjected to the
offence in question.
7. The case of the defence is primarily based on the delay
in lodging of the F.I.R. PW 4 has clearly indicated that the incident
came to her notice after 7 p.m. on 04.03.2008. Thereafter, on the
advice of the villagers, efforts were made for settlement of the matter
through Panchayat, and when the same failed, the F.I.R. in question
was lodged. In the matter of delay in lodging of F.I.R. particularly in
cases pertaining to sexual offence and adverse effect on the same on
the case of the prosecution, the law is well settled to the effect that
mere delay in lodging of the F.I.R. cannot be a sole criteria for
disbelieving the case of the prosecution when corroborative medical
evidence are available suggesting commission of the offence and if
independent evidence available on record inspires confidence and is
sufficient enough to uphold the conviction mere minor discrepancy
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in the case of the prosecution cannot be a ground for disbelieving the
story put forth by the prosecution. Law is well settled that if the sole
testimony of the prosecutrix is sufficient enough to inspire
confidence into the mind of the Court the same is good enough for
upholding the conviction in an offence pertaining to sexual offence.
In this regard reference may be made to the following judgments,
where mere delay in lodging of F.I.R. is held to be not sufficient
enough for acquittal of an accused:-
(a) Satish Shetty vs. State of Karnataka
(2016) 12 SCC 759
(b) State of H.P. vs. Sanjay Kuamr
(2017) 2 SCC 51
8. In the present case, the delay in lodging of the F.I.R.
has been reasonably explained by PW 4 mother of the prosecutrix
and her statement is sufficient enough to believe the story put forth
by her. There is no reason and no evidence or justification as to why
her statement should be disbelieved. Even in his statement recorded
under Section 311 of the Code of Criminal Procedure,1973, the
accused does not say anything with regard to his false implication.
Even a suggestion is not made to PW 4 in her cross-examination to
indicate that she has falsely implicated the accused person. On the
contrary, her statement does show that when she was away from her
house and she returned back at 7 p.m. her daughter was not available
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at home and immediately after she came, the appellant brought her
back in a bicycle and immediately thereafter the daughter started
crying and she found the injuries and mark on the cloth. There is
nothing available on record to disbelieve the aforesaid statement of
PW 4. Even though the prosecutrix has been examined as PW 5, and
the statement and the observation made by the learned Judge
indicated that she was deaf and dumb when she was produced in the
court she could not speak, but when questions were put to her she
went to her mother and started weeping by catching hold her tightly.
If the statement of PW 4 and the Investigating Officer is evaluated in
the backdrop of the statement of PW 6 Dr. Sarita, it is clear that she
has seen various injuries on the person of the prosecutrix. She had
also seen injuries on her private parts and she speaks about the
injuries being caused 48 hours before the examination.
9. Taking note of all these circumstances, there is no reason
to disbelieve the case of the prosecution and interfere into the matter
merely on account of delay in lodging the F.I.R. or on account of the
prosecutrix, a dumb child, not being examined in accordance with
the requirement under Section 119 of the Evidence Act, the case of
the prosecution cannot be discredited or disbelieved. The ample
evidence available on record is sufficient enough to prove the case of
the prosecution and uphold the conviction. As the appellant is on
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bail, his bail bond be cancelled and he be taken into custody to
undergo the remaining period of the sentence.
10. Accordingly, finding no merit in the appeal the same
stands dismissed.
(Rajendra Menon, CJ)
mrl.
AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 12.09.2017
Transmission N.A.
Date