Md. Sajid Alam vs The State Of Bihar on 14 September, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.682 of 2015
Arising Out of PS. Case No.19 Year- 2014 Thana -MAHILA P.S. District- BHAGALPUR

MD. SAJID ALAM, S/O MD. INSUL, R/O VILLAGE-UJANI (MUKHIYA
MOHALLA), P.S- NAUGACHHIA, DISTRICT-BHAGALPUR.

…. …. APPELLANT/S
VERSUS
THE STATE OF BIHAR …. …. RESPONDENT/S

Appearance:

For the Appellant/s : Mr. Shardanand Mishra, Adv.

Mr. Dhananjay Kumar Gupta, Adv.

Mr. Deepak Kumar, Adv.

For the informant : Mr. Ashok Kumar Malliak, Adv.

Mr. Murlidhar, Adv.

For the State : Mr. Binod Bihari Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 14-09-2017

1. Sole appellant Md. Sajid Alam has been found guilty

for an offence punishable under Section 341 IPC and sentenced to

undergo S.I. for one month, under Section 376 IPC and sentenced

to undergo R.I. for seven years as well as also slapped with fine

appertaining to Rs.10,000/-, in default thereof, to undergo S.I. for

six months, additionally vide judgment of conviction dated

15.09.2015 and order of sentence dated 19.09.2015 passed by

Third Additional District Sessions Judge, Naugachia, Bhagalpur

in Sessions Trial No.591/2014.

2. Name withheld PW.7 filed written report on

29.04.2014 disclosing therein that she happens to be orphan and

on account thereof, is living at her house alone. Today, i.e.

29.04.2014 at about 04:00 PM while she was alone at her house,

her neighbour Md. Sajid Alam made house trespass, gagged her
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 2

mouth and then, putting her under threat of murder, torned her

cloth, broken string of her Salwar and then committed rape inside

a room where she was lifted. Anyhow, she managed to raise alarm

whereupon, after breaking ventilator he managed to escape. On

her hue and cry, her sister Bibi Meharbano, brother-in-law Md.

Gulam Rabbani as well as persons of the locality came during

midst thereof, brother of Md. Sajid, namely, Md. Manovar Alam,

Sanouvar Alam, Kousar Alam, Md. Insul armed with lathi, danda

came and threatened her as well as her sister, brother-in-law that

in case of institution of any kind of prosecution will cost them

dearly. During course thereof, Md. Manovar Alam gave two blows

of danda. She, having been accompanied by her sister, brother-in-

law and others came at P.S. got the written report scribed by

Tawarej on her dictation and then presented the same about

10:10 PM.

3. On the basis of the aforesaid written report,

Naugachia (Mahila) P.S. Case No.19/2014 was registered followed

with an investigation as well as submission of charge sheet

whereupon trial commenced and concluded in a manner, subject

matter of instant appeal.

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

examination as well as statement recorded under Section 313 of

the Cr.P.c. is that of complete denial of the occurrence. It has also

been pleaded that at an earlier occasion there was an effort at the

end of the prosecution for getting marriage of victim with the
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 3

appellant and for that, prosecution took effort by entering into

negotiation but, on account of denial at the end of parents of the

appellant, could not materialized, which happens to be the reason

behind institution of this false case.

5. In order to substantiate its case, prosecution had

examined altogether nine PWs who are PW.1-Dr. Rubi Singh,

PW.2-Sahana Pravin @ Sahana Khatoon, PW.3-Chanda Khatoon,

PW.4-Md. Gulam Ravani, PW.5-Lela Khatoon, PW.6-Tawarej,

PW.7-Soni Khatoon (Victim), PW.8-Sipat Paswan, formal who

produced Chhapal in court allegedly that of appellant and PW.9-

Swayam Prabha, the Investigating Officer. Side-by-side also

exhibited Ext.1-Injury report, Ext.2-Signature of PW.6 Tawarej

over written report, Ext.2/A-Signature of informant over written

report, Ext.2/B-Signature of informant over statement recorded

under Section 164 Cr.P.C., Ext.3-Written report, Ext.4-Formal

FIR, Ext.5-Endorsement over written report, Ext.6 Series-

Production-cum-Seizure List. Chhapal is Material Ext.1. On the

other hand, nothing has been adduced in defence at the end of

appellant.

6. It has been submitted on behalf of appellant that the

judgment of conviction and sentence recorded by the learned

lower court happens to be cryptic as well as speaks a lot with

regard to non-application of judicial mind. In order to substantiate

the same, it has been submitted that witnesses have admitted

during course of cross-examination that there was sincere effort at
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 4

the end of the prosecution to get the victim married with the

appellant and for that, they have indulged in negotiation which

was refused by the family members of the appellant over which,

instant case has been filed. This event has completely been

ignored by the learned lower court. Had there been proper

appreciation of the evidence as well as conduct of the prosecution

then, in that circumstance, there was every likelihood of acquittal

instead of conviction and sentence so recorded against the

appellant.

7. It has further been submitted that probability of

false implication in the aforesaid background is corroborated with

other circumstances. Highlighting the same it has been submitted

that victim was examined by PW.1, doctor on the following day

who had not found any sign either externally or internally over

private part and whereupon she had ruled out rape. Therefore,

evidence of PW.1 completely negativates the allegation having

attributed on behalf of prosecution.

8. It has further been submitted that there happens to

be specific case of the prosecution that victim was taken inside a

room alone where she was raped and then, the appellant made his

escape after taking out brick from a ventilator but, the

Investigating Officer, during course of her objective finding relating

to the place of occurrence did not corroborate and so, the story of

the prosecution on that very score also happens to be dejected by

the objective finding of the Investigating Officer.
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 5

9. Apart from this, there happens to be consistent

evidence of the PW.7, the victim that she was alone at the time of

occurrence at her house while PW.3 had stated that she was

present when appellant came inside the house and his activity

was resisted by her. That being so, the evidence of prosecutrix

that seeing her alone appellant, Sajid entered inside her house

and then committed the sin, happens to be unreliable, as well as

also cast doubt over her genuine conduct. Apart from this, there

happens to be major inconsistency amongst the evidences of the

PWs putting severe dent upon the authority of the prosecution

hence, appellant is entitled to acquittal.

10. On the other hand, the learned Additional Public

Prosecutor while refuting the submission made on behalf of

learned counsel for the appellant has submitted that slight

penetration is sufficient to constitute rape. That being so, non-

presence of injury over the person more particularly, over the

private part of the victim as deposed by PW.1, doctor will not

adverse fully affect the prosecution case. Moreover, from the

evidence of PW.1, it is evident that she had not examined the

victim personally otherwise no such kind of incomplete injury

report would havebeen issued at her end. She had not described

with regard to physical feature of the victim as well as whether

there was presence of hymen or not. In likewise manner, it has

also been submitted that from the evidence of PW.9, Investigating

Officer, it is evident that she had got no deep knowledge with

regard to investigation of a serious nature of criminal case more
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 6

particularly rape case as, she blatantly narrated that during

course of inspection of the P.O. she had not seen ventilator which

was most important part of the investigation in the background of

specific allegation by the prosecutrix that accused made his

escape after breaking the same. In likewise manner, she would

have insisted for procurement of FSL report relating to seized

Salwar as well as seized Chhapal, sent for chemical examination.

11. It has also been submitted that the evidence of

rustic villagers should be considered in its entirety with some sort

of relaxation on account of their mental equilibrium. Furthermore,

it has also been submitted that from the evidence it is apparent

that there was no reason for false implication, as parties were not

on inimical terms. Even if considering that there was talk relating

to settlement of marriage, over which the defence did not opt to

cross-examine whether it happens to be five years old, ten years

old or a recent event and that has purposely been left out as, no

talk of negotiation was ever taken place. Furthermore, it has also

been submitted that considering the evidence of the victim, PW.7

it should be held that prosecution has succeeded in proving its

case whereupon judgment of conviction and sentence is to be

affirmed.

12. From the initial version of the victim, it is apparent

that her sister Bibi Meharbano along with others had come to the

place of occurrence after hearing cry of the victim but she

Meharbano has not been examined nor there happens to be any
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 7

kind of explanation on that very score. In its continuity, the other

witness so named who happens to be her brother-in-law, namely,

Md. Gulan Rabbani, has been examined as PW.4 who during

course of his evidence, had stated that he was sitting at the place

of his Sarhu. He rushed after hearing uproar and reached at his

house where he had seen Sajid escaping through ventilator while

victim was lying over bed in disorderly manner. Her Salwar was

torn. She disclosed that Sajid has raped her. During cross-

examination at para-4, he had stated that victim happens to be

her step sister-in-law. Victim happens to be three brothers and

sister. She has two brothers. Her parents is not alive. She does

not reside with her brothers. She resides alone with him in a room

adjacent to his room. Then had detailed the family event. In para-

8, he had stated that when he reached at his house, people were

inside the house. Then thereafter, he had gone inside the room

and seen accused fleeing therefrom. He fled away through roof.

People have not succeeded to apprehend him. In para-9, he had

stated that he had gone alone inside the room. Then at para-16,

he had stated that earlier she had threatened him that she will

implicate him and on account thereof, he had filed Sanha

No.29/2014 on 04.01.2014.

13. PW.5 is Laila Khatoon, she had disclosed that on the

alleged date and time of occurrence, she was at her house. On

hearing uproar, she rushed to the place of her father where she

had seen Chhapal kept there and Sajid coming out through

ventilator after breaking the same. She had seen the victim. Her
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 8

Salwar and Jumpher were torn. She has disclosed that Sajid has

raped her. Then thereafter, other family members of Sajid came

who assaulted as well as also threatened not to institute any case.

In para-3 she had disclosed that victim happens to be her step

sister. She had further stated that there was rumour in the village

that Sajid has entered inside the house. When she came, large

numbers of persons were assembled since before. At that very

time victim was inside the room. When she came, room was

closed. She got the room opened and then gone inside. All

remained outside. Only she had gone inside. She had seen victim

on the bed unconscious. She was taken to hospital where regained

sense. She had further stated that she had not gone to hospital.

Md. Rabbani had taken away. In para-7, she had disclosed that

two persons the victim as well as Rabbani reside at the place of

her father. Wife of Rabbani also resides. His son, daughter-in-law

reside outside.

14. PW.6 is Tawarej. Victim happens to be his Mausi. He

happens to be hearsay witness though he had scribe written

report on the dictation of victim who was taken to P.S. by him and

others. PW.3, had stated that victim happens to be her Mausi. On

the alleged date and time of occurrence she was at her house

doing domestic work. Victim was cooking in the Aagan. Md. Sajid

came inside, caught hold her, took her to room. She directed him

to get out but he declined. Then, he locked the door whereupon

she raised alarm attracting so many persons. Father of Sajid, Md.
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 9

Manovar, Insul, Md. Kousar came and began to assault her. Then

victim opened the door and said that Sajid committed sin. Md. Sajid

was present there. Villagers could not apprehended him as he escaped

through ventilator leaving behind his Chhapal. During cross-

examination she had stated that name of her father-in-law happens to

be Rabbani and victim happens to be his sister-in-law (Shali). In

para-5, she had further stated that there are two pukka rooms fenced

by a boundary wall. Parents of victim are not alive but, Bhabhi there.

In one room Rewani, his wife and in another room brother, Bhabhi of

victim mode. Victim resides with her brother. Her house happens to

be outside the house of the victim. In para-11, she had stated that

some sort of dispute arose in between victim and Rabbani before the

occurrence whereupon Rabbani had lodged Sanha in court against the

victim. In para-12 she had staed that about fifty persons have already

assembled before her arrival. In para-13, she had stated that Md.

Sajid fled in her presence. There was an attempt to apprehend him but

he managed to escape. In para-15, 16 she had disclosed the event of

talk for marriage of victim with Sajid at an earlier occasion.

15. PW.2 had stated that on the date and time of

occurrence there was uproar in the village that Sajid was in the house

of victim along with her. Then thereafter, he slipped after breaking

the window. She had seen the misdeeds having committed by Md.

Sajid and then escaping therefrom. In para-3, she had stated that
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 10

victim happens to be her Nanad (sister-in-law). The house of victim

is her house. Another house is situated in the village intervened by

ten houses. In para-5, she had stated that she resides at the house

situated in mohalla-Tokariya Tola. In para-6, she had stated that she

heard alarm raised by the victim while she was at the place of Nimi

whose house lies two houses away when she reached there she had

seen so many persons. When she reached she saw Md. Sajid inside

the room. About 10-20 persons have gone there and have seen and

during course thereof, victim had disclosed the incident. Furthermore,

victim had disclosed that Md. Sajid after breaking ventilator managed

to escape. She had also admitted under para-7 of her cross-

examination that there was talk of marriage negotiation.

16. PW.7 is the victim. She deposed that on the alleged

date and time of occurrence, she was in her court yard. Md. Sajid

came in the courtyard, caught hold her right hand and said either to

accompany him or he will commit sin with her. He had also said that

think over it. Then thereafter, he dragged her inside a room and then

forced her to lie over bed, torned her cloth, broken string of Salwar,

he also got undressed and then, committed rape against her will. She

raised hue and cry after the occurrence whereupon villagers

assembled. Seeing whom, Sajid after breaking ventilator slipped.

People opened the door after breaking latch and then came inside.

She was in perplexed condition. After regaining sense, she disclosed
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 11

the event and then thereafter, she was taken to P.S. along with them

where written report was filed. Then thereafter, she was taken to

hospital. Her statement before Magistrate was also recorded. Then

had identified the Chhapal belonging to Sajid which was produced by

her before the Investigating Officer left by Md. Sajid during course of

escape.

17. During cross-examination, she at para-15 stated that

Md. Sajid caught hold her by one hand and shut her mouth through

another and then, pulled. She tried to release herself but in vein. Then

had stated that whole event was disclosed before the police. She had

further disclosed that she tried to release herself through left hand.

She had further stated that her mouth was pressed whereupon she was

unable even to make grooming sound. She had also said that there

was dragging mark over the floor which was shown to the police.

While she was being carried inside the room, she had caught hold the

door as a result of which there was scratch mark. In para-16, she had

stated that after dragging inside the room, first of all, she was thrown

upon bed. Even at that very time her mouth was pressed and then, by

another hand cloth was torned, string of Salwar was broken and then

raped. At para-18 she had further stated that she was lifted by both

hands even then, she had not raised alarm. In para-19, she had stated

that at the time of occurrence neither her sister nor her brother-in-law

was present as they had gone to field. In para-20, she had stated that
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 12

accused had slipped away through ventilator after climbing. In para-

22, she had stated that during course of removing brick from the

ventilator by the accused, the same fallen over her as a result of

which she sustained injury which was shown to the police. She

shown ignorance with regard to any kind of talk over marriage.

18. PW.9 is the Investigating Officer, who had deposed

that after receiving the written report from town P.S., case was

registered, she took up investigation. She recorded further

statement of the informant, statement of Tawarej. Produced the

victim for medical examination. She visited the place of occurrence

and detailed the same. During course of which, she had shown

presence of ventilator in the room. Got the statement of other

witnesses, produced the victim before the Magistrate for her

statement under Section 164 Cr.P.C. Victim produced one pair

Chhapal belonging to Md. Sajid. After surrender of the accused,

she had taken effort for DNA test. Victim had also produced

Salwar. Exhibited. Awaiting reports from FSL submitted charge

sheet. During cross-examination at para-25 she had stated that

she had not seen any brick fallen from ventilator. In para-26, she

had further stated that she had not found latch of the door

broken. In para-27, she had further stated that she had not seen

whether ventilator was broken or not.

19. PW.1 is the doctor had completely negativated

incidence of rape on the basis of clinical examination of the victim,
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 13

during course of which she had not found any injury externally or

internally. Some sort of deficiency is there however, neither

prosecution nor accused had drawn attention over the same.

20. So far rape case is concerned, the evidence of victim

has got primacy. It has been settled at rest that in case there happens

to be consistency, reliability and truthfulness in the evidence of the

victim then no corroboration is required and conviction could be

recorded on the sole testimony of the victim. Certainly, a female

(unmarried or married) considering the Indian social atmosphere

would not dare to institute a case as, chastity happens to be

everything for her and in likewise manner the stigma which she will

follow till her death, making her life a hell. So, unless and until, the

victim is subject to rape, ordinarily prosecution for such offence is

not at all perceived as a tool to satisfy the personal vendetta as well as

grudge but exceptions are there and that happens to be reason behind

that the Apex Court has also settled that in case there happens to be

some sort of doubt over the authenticity of the version of the victim

then, in that circumstance, the court should see, corroboration. It is

evident from the evidence of PW.7, victim that appellant had come

inside her house, caught hold her hand, directed her to accompany

him and in an alternative he also threatened that she will be

victimized and so, giving a pause appellant had directed to think over

the same. She had not disclosed her response though subsequent
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 14

activity is found duly narrated. In the aforesaid background when the

other evidence have been considered, it is evident that some sort of

negotiation for marriage took initiative at an earliest which did not

materialize. Furthermore, when evidence of all the witnesses are

independently considered none of them have shown presence of other

at the house and in likewise manner, one had excluded the other

while approaching to the victim allegedly inside the room. It is also

surprising that once the Salwar was produced then why not a jumper

which, according to victim, was also torn. On the other hand, if the

evidence of all the witnesses are taken together in its entirety, each

have consistently narrated that when they reached inside the room of

the victim having seen her in perplexed condition but, for that PW.2

had stated that she got the room opened while PW.5, the brother had

said that door was broken. It is also surprising that in presence of so

many persons accused managed to escape without any sincere effort

at their end to apprehend. The objective finding of the I.O. is found

another circumstance. When the evidence of all the witnesses is taken

together in its entirety along with the medical evidence, it looks

unsafe to identify the appellant to be responsible for admitting rape

upon the victim and that being so, the finding recorded by the learned

lower court to the extent of Section 376 of the IPC extinguishes. But

considering the evidence of victim, it is found that an attempt was

there, and so appellant is found and held guilty for an offence
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 15

punishable under Section 376/511 of the IPC and in the aforesaid

background is sentenced to R.I. for five years maintaining the fine

amount as well as the default clause concerning thereto as well as

conviction and sentence relating to Section 341 of the IPC with a

further direction to run the sentences concurrently. Accordingly,

Appeal is partly allowed in terms thereof. Appellant is under custody

which he will remain till saturation of the period of sentence.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR A.F.R.
CAV DATE N.A.
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