Jeetu Manjhi vs The State Of Bihar on 9 September, 2017

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

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