Mintu Manjhi vs The State Of Bihar on 9 October, 2017

Patna High Court CR. APP (SJ) No.893 of 2017 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.893 of 2017
Arising Out of PS.Case No. -73 Year- 2013 Thana -CHAPRA MUFFASIL District- SARAN

Mintu Manjhi, s/o – Bir Bhajan Manjhi, resident of village – Fakuli, P.S. Chapra
Muffasil, District – Saran (Chapra).

…. …. Appellant/s
Versus
The State of Bihar.

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Abhay Kumar Singh-Advocate
Mr. Bharat Bhushan-Advocate
For the Respondent/s : Mr. S. Ashfaque Ahmad-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 9-10-2017

Appellant, Mintu Manjhi has been found guilty for an

offence punishable under Section 8 of POCSO Act and sentenced to

undergo R. I. for five years as well as fined appertaining to

Rs.25,000/- and in default thereof, to undergo S.I. for one year vide

judgment of conviction dated 17.02.2017, order of sentence dated

21.02.2017 passed by the 1st Additional Sessions Judge-cum-Special

Judge, POCSO, Saran at Chapra in connection with POCSO Case

No.02 of 2015 arising out of Chapra Mufassil P. S. Case No.73 of

2013.

2. Name withheld, PW-11 aged about 11 years gave her

fard-bayan while she was admitted at Sadar Hospital, Chapra on

27.03.2013 at about 3.00 p.m. in presence of her uncle Umesh Sharma
Patna High Court CR. APP (SJ) No.893 of 2017 2

alleging inter alia that on the same day at about 1.30 p.m. while she

had gone to field of Bhola Singh to ease herself and was to sit, Mintu

Manjhi appeared, caught hold her, threw her on the ground, undressed

her and then, committed rape. Out of severe pain, she raised cry

whereupon he thrust towel inside her mouth. After committing rape,

he escaped leaving her. Due to commission of rape, she was feeling

severe pain as well as difficulty in walking. Anyhow, she got up,

came to her house and then, disclosed the occurrence to her

grandmother as well as uncle, who along with co-villagers brought her

to Sadar Hospital for treatment, which was going on.

3. After registration of a case bearing Chapra Mufassil P.

S. Case No.73 of 2013, investigation commenced and after

completing the same, chargesheet was submitted under Section

376(2)(g)/34 of the I.P.C. against the appellant along with Mintu

Singh, Chandan Kumar, Ram Prakash Ram (since acquitted). Then

thereafter, cognizance was taken ultimately paving way for trial which

concluded in a manner, the 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. Furthermore, it has been pleaded

that appellant on the alleged date and time of occurrence was at his

house which lies away from the P.O. village and to substantiate the
Patna High Court CR. APP (SJ) No.893 of 2017 3

same, two DWs have been examined.

5. In order to substantiate its case, prosecution had

examined altogether 13 PWs, who are PW-1 Arun Sharma, PW-2

Umesh Sharma, PW-3 Kulwant Kumar Mahto, PW-4 Bimal Mahto,

PW-5 Dablu Singh, PW-6 Ajay Kumar Singh, PW-7 Janardan Singh,

PW-8 Babloo Kumar, PW-9 Sudhir Singh, PW-10 Dr. Kiran Ojha,

PW-11, the victim, PW-12, Chameli Devi and PW-13, Sujit Das as

well as had also exhibited viz. Exhibit-1 series, signature of informant

as well as witnesses over fard-bayan, Exhibit-2 signature of police

official over fard-bayan, Exhibit-3 medical report, Exhibit-4 signature

of victim over statement under Section 164 of Cr.P.C., Exhibit-5 fard-

bayan, Exhibit-6 endorsement over fard-bayan, Exhibit-7 formal

F.I.R., Exhibit-8 series, seizure list as well as signature of respective

witnesses, Exhibit-9 series, F.S.L. Report. As stated above, two DWs

have been examined, who are DW-1, Satish Kumar Singh and DW-2

Rajiv Kumar Singh as well as had also exhibited, Exhibit-A further

statement of the victim.

6. Before coming to merit of the case, it is apparent from

the L.C. Record that appellant was identified solely to be the rapist as

per initial prosecution version while during course of statement

recorded under Section 164 of the Cr.P.C., victim had alleged that she

was gang raped by four persons one by one and on account thereof,
Patna High Court CR. APP (SJ) No.893 of 2017 4

chargesheet was submitted against all of them and accordingly, charge

was framed under Section 376(2)(g)/ 34 of the I.P.C. After

examination of the witnesses, a petition was filed on behalf of

prosecution under Section 216 of the Cr.P.C. on 02.09.2015,

whereupon objection was filed and after hearing the parties, vide

order dated 15.09.2015, prayer of prosecution was allowed and in

terms thereof, the accused were further charged for an offence

punishable under Section 4 of POCSO Act. It is also evident from the

order dated 15.09.2015 that the witnesses so examined till then,

numbering upto PW-10 were re-summoned, but as is evident from the

L.C. Record neither summon was issued against them nor they turned

up on their own. That means to say, the evidence of PW-1 to PW-10

is found non-considerable relating to Section 4 of the POCSO Act.

The subsequent witnesses after amendment of the charge are PW-11

the victim, PW-12 Chameli Devi and PW-13 Sujit Das.

7. The first and foremost argument having been made on

behalf of learned counsel for the appellant while assailing the

judgment of conviction and sentence is that the learned lower Court

failed to appreciate the event visualizing from the L. C. Record in its

right perspective. To substantiate the same, it has been submitted that

the victim, PW-11 neither in her fard-bayan nor in her further

statement had disclosed the event of gang rape committed by four
Patna High Court CR. APP (SJ) No.893 of 2017 5

accused persons one by one, but when she was produced before the

Magistrate for her examination under Section 164 Cr.P.C., she had

developed the story and posed it to be an incidence of gang rape. In

the aforesaid background, considering the tender age of the victim, it

is apparent that she happens to be wholly unreliable as well as nicely

tutored as a result of which, the learned lower Court while

disbelieving her testimony relating to three others accused (since

acquitted) should have also rejected the same relating to appellant by

way of recording acquittal as once evidence of a witness is found de-

raised, it has to be in its entirety and not in piecemeal manner. That

means to say, learned lower Court should have treated the appellant in

same way like other co-accused and would have acquitted the

appellant.

8. Furthermore, it has also been submitted that now

coming to status of independent witnesses including F.I.R. attesting

witness, who happens to be uncle of the victim namely Umesh Singh

(PW-2), though had admitted his presence over the fard-bayan, but

disowned the occurrence and in the aforesaid background, apart from

adversely affecting testimony of PW-11, victim, it had also cast doubt

over reliability of evidence of Chameli Devi (PW-12), grandmother of

the victim. In likewise manner, other material witnesses i.e. PW-1,

PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 did not support
Patna High Court CR. APP (SJ) No.893 of 2017 6

the case of the prosecution, whereupon they all were declared hostile.

PW-13 is the I.O. and his objective finding relating to the alleged P.O.

did not match with the version of PW-11, victim. So, it has been

submitted that in spite of finding of the doctor (PW-10), who found

injury over private part of the victim did not illustrate the prosecution

case rather considering the prosecution case in its entirety suffer from

uncertainty. Consequent thereupon, the judgment of conviction and

sentence recorded by the learned lower Court happens to be perverse,

cryptic, erroneous and is fit to be set aside.

9. On the other hand, learned Additional Public

Prosecutor while supporting the finding of the learned lower Court

has submitted that being of tender age, there was every possibility to

left the names of other co-accused on account of suffering from

trauma while meeting with horrifying situation, wherefrom she came

out and under such situation she had detailed while examined under

Section 164 of the Cr.P.C. in spite of the fact that F.I.R. should not be

encyclopaedia, which the learned lower Court rejected without

assigning any cogent reason. However, so far status of appellant is

concerned, has been properly identified to be rapist, and is found

corroborated with the evidence of PW-10, the doctor. Furthermore,

recording of fard-bayan at Sadar Hospital, while she was admitted as

indoor patient, is another circumstance, which corroborates the event.
Patna High Court CR. APP (SJ) No.893 of 2017 7

It has further been submitted that though state has not challenged the

judgment impugned, but manner whereunder the learned lower Court

dealt with the evidence as well as in absence of vindicable reasoning,

did not justify the finding recorded by the learned lower Court, at the

other end, attracts remand after setting aside the same.

10. As is evident from the record, majority of witnesses

including uncle of victim Umesh Sharma (PW-2), who was one of the

attesting witness have become volte-face to the prosecution

whereupon, PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-8, PW-9

were declared hostile. So far evidence of PW-7 is concerned, it is

evident that he though supported the occurrence, but did not identify

any of the accused including the appellant to be author of the crime.

That means to say, prosecution case rest upon testimony of PW-10,

Dr. Kiran Ojha, PW-11 the victim, PW-12 her grandmother Chameli

Devi and PW-13 Sujit Das, the I.O. Before coming to the evidence of

respective witnesses, it is manifest that PW-10 was examined before

addition of charge under Section 4 of POCSO Act.

11. PW-10, the doctor had examined the victim on the

date of occurrence itself that means to say, on 27.03.2013 and found

following injury over her person:-

“There is no injury on her whole body.

Pubic hair, axillary hair absent. Breast not
Patna High Court CR. APP (SJ) No.893 of 2017 8

developed. There is fresh lacerated wound

on post angle of vagina. Size 1.5 cm. depth,

0.5 cm upto mid of perineum. There is no

any other injury on her private part. Hymen

fresh teared, duration of injury within six

hours. Two vaginal swab taken and sent for

F.S.L. Chapra.

Report-Hishopathological examination done

by Dr. D. Kumar says that spermatozoa not

found either live or dead.

Opinion- On account of above fact we can

say that the age of victim 9-11 years.

Possibility of intercourse cannot be ruled

out.”

So, as per finding recorded by the PW-10, it is evident

that she was subjected to sexual intercourse. At the present juncture, it

looks desirable to have a glance over F.S.L. Report, which has been

submitted and exhibited attracting Section 293 Cr.P.C., which shows

presence of human blood over apparel as well as semen also.

12. PW-11 is the victim. Apart from her own disclosure

being minor aged about 10 years, the doctor (PW-10) had also found

her to be aged about 10 years coupled with the fact that her status also

not been challenged on behalf of appellant. So, minority that too of
Patna High Court CR. APP (SJ) No.893 of 2017 9

tender age is found out of controversy. During her examination-in-

chief, she had deposed that on the alleged date and time of occurrence

while she was going to ease herself in the field of Bhola Singh, she

saw four persons Pintu @ Mintu Manjhi, Prakash Ram, Chandan

Kumar Ram, Mintu Singh standing near Peepal tree and were

laughing. They have not spoken anything to her. She crossed them.

While she was about to sit, all the four came and forcibly lie her

down. Her paint was un-zipped by Mintu Manjhi as well as Mintu

Singh and then, all of them committed rape one by one. She raised

alarm over which Mintu Singh gagged her mouth as well as

threatened to commit murder in case she would disclose the incidence.

Till then, she already raised alarm whereupon all of them escaped.

She was not at all in a position to walk anyhow, she came to her house

and disclosed the occurrence to her grandmother, whereupon her

grandmother disclosed the event to his uncle, who was residing

adjoining to her house. He took her to hospital where she was treated.

Police came and recorded her statement. She put her signature. Her

further statement was recorded on the same day. Police had taken

away seized blood stain cloth. Her statement was also recorded under

Section 164 of the Cr.P.C., identified the accused. She had further

stated that out of aforesaid accused persons, only Mintu Singh was her

co-villager, rest were of different villages. As they used to come to her

village for menial work, on account thereof, she was able to identify
Patna High Court CR. APP (SJ) No.893 of 2017 10

them. During cross-examination at Para-6, she had stated that it was

Holi. She had not gone to ease carrying water. At Para-7, she had

stated that she was wearing Jeans, T-shirt and Panty. Crops were

already harvested from the field. She could not resist as all the

accused persons have caught hold her leg and hand. In Para-8, she had

further stated that there was trampling mark at the P.O. She had gone

to hospital in same cloth. In Para-9, she had stated that after half hour

of admission at hospital, police came and recorded her statement. At

that very time, whatever she memorized, stated before the police. In

Para-13, she had stated that it was not field of Bhola Singh rather

Bhola Sah. Her legs and hands were not tied rather caught hold by the

accused persons. She is unaware whether the towel, which was thrust

in her mouth was shown to the police or not. In Para-15, she stated

that she was not knowing since before father’s name of Mintu Manjhi.

Who had disclosed, she is not remembering. Then at Para-7, she had

denied the suggestion that she was not raped. On behalf of others

while she was cross-examined, she had stated that she is not

remembering the time during course of which, she was raped. In Para-

19, she had stated that first of all, Mintu Manjhi had committed rape

then Mintu Singh and then, Prakash Ram and then, Chandan Kumar

Ram. She had further stated that after commission of rape that

accused slipped and in successive manner, they committed rape. In

Para-22, she had stated that as soon as she came to the field, she was
Patna High Court CR. APP (SJ) No.893 of 2017 11

forced to lie down and then, they began to rape. She was crying. She

had sustained some injuries over her body. There was bleeding which

also fallen over her cloth. She had not sustained injury over any part

of body. In Para-24, she had disclosed the locations of houses of

different persons and the distance thereof from the P.O. Then had

denied the suggestion that only for the purpose of squeezing money

from the family of Mintu Singh, he has been named.

13. PW-12 is grandmother of the victim. She had said

that it was Holi. She was at her house. She was cooking. Her

granddaughter came and disclosed that she was going to ease. At that

very time, victim was aged about nine years. Even after 15 minutes,

when she did not return, she came out from her house. When she

came over road, she saw her granddaughter fallen down over the road.

Seeing her, She began to weep. On query, she could not say anything.

Then she began to see her minutely and during course thereof, had

found blood stain over her cloth. Blood was coming out from her

private part. On great persuasion, she disclosed that Mintu Singh,

Mintu Manjhi, Prakash Ram and Chandan Ram have raped her after

unzipping her paint and forcing her to lie down. They thrust towel in

the mouth, caught hold leg and hand. On hue and cry, villagers came,

who seeing condition of the victim, advised to hospitalize whereupon,

she was taken to Chapra Sadar Hospital by her uncle where she had
Patna High Court CR. APP (SJ) No.893 of 2017 12

made fard-bayan whereupon, she had also put her R.T.I. Victim was

admitted to Chapra hospital for eight days. During cross-examination,

she had stated that victim proceeded from the house at about 1.30 p.m.

She met with the victim after the occurrence at a place which happens

to be ten laggi away from her house. At that very time, she had seen

blood over her cloth. She had talked with her granddaughter about

two minutes. She was taken to hospital where they arrived to 2.30

p.m. Umesh happens to be her nephew. About 50 persons of her Tola

have accompanied them. Police came at the hospital, her statement

was also recorded by the police. In Para-13, there happens to be

contradiction.

14. PW-13 is Sujit Das, the I.O. He had deposed that on

27.03.2013, he was posted at Chapra Mufassil P. S. as A.S.I. As per

direction of the Officer-in-Charge, he had gone to Sadar Hospital

where recorded fard-bayan of victim. (exhibited). Also exhibited

endorsement over the fard-bayan, formal F.I.R. etc. He had also

deposed that he had seized blood stain panty, jeans having blood stain

and for that, prepared production-cum-seizure list (exhibited). Then

thereafter, he was entrusted with the investigation and on account

thereof, he had recorded statement of Umesh Sharma, Chameli Devi,

Dablu Singh. Then thereafter, visited the place of occurrence, which

happens to be the mango orchard lying adjacent west to the field of
Patna High Court CR. APP (SJ) No.893 of 2017 13

Bhola Singh where witnesses have disclosed the event of rape. He

identified the same as North-Mango Orchard of Lal Kishore Singh,

South-Road, East-field of Bhola Singh and then, Road and then, tent

house of Mintu Singh, West- field of Akhilesh Singh wherein maize

crop was standing. He had also recorded statement of Arun Kumar,

Bablu Kumar Singh. At that very moment, the Officer-in-Charge as

well as other police personnel also arrived. Accused Chandan Ram

and Prakash Ram, who were apprehended by the villagers since

before, were produced before them and brought to Sadar hospital

where they were examined. They were also interrogated. Then they

were remanded to judicial custody. On 29.03.2013, he had examined

Ajay Kumar Singh, Sudhir Singh, Kulwant Kamal Mahto, Ravindra

Singh, Janardan Singh and Bimal Mahto. He also apprehended Mintu

Manjhi. He received medical report of the victim on 31.03.2013. Got

the victim examined under Section 164 of the Cr.P.C. and then

thereafter, after completing the investigation, submitted chargesheet

under Section 376(2)(g) of the I.P.C.

During cross-examination, he had stated that Sanha Entry

was recorded over receiving of information regarding commission of

the occurrence. In Para-12, he had stated that after coming to Sadar

Hospital, he had prepared injury report relating to the injuries having

over the person of victim. He had further stated in Para-13 that fard-
Patna High Court CR. APP (SJ) No.893 of 2017 14

bayan was recorded at about 5.00 p.m. So many persons were present

there and signed over the same. Production-cum-seizure list was

prepared at about 5.30 p.m. Seized articles was not before him. He

had recorded further statement of victim at about 5.15 p.m. He had

prepared sketch map with regard to the P.O. However, he had not

mentioned presence of blood at the P.O. and in likewise manner,

presence of trampling mark. At Para-24, he had further stated that all

the seized articles were sent to F.S.L. for examination, but he is

unaware whether report has been received or not. In Para-25, he had

further stated that he is unaware with regard to duration of treatment

of the victim at the hospital. In Para-26, he had stated that during

course of recording of fard-bayan, victim had not stated that all the

four accused persons have committed rape. In Para-27, there happens

to be contradiction regarding Chameli Devi.

15. DWs have been examined on behalf of defence. DW-

1 is co-villager of appellant, Mintu Manjhi, who had deposed that on

the alleged date and time of occurrence, it was Holi. Mintu Manjhi

was present at his house along with him and had celebrated Holi. It

had further been disclosed that there was Election of Mukhiya and

during course thereof, they have voted in favour of Barsa Kumari. The

other candidate Maheshwar Singh was aggrieved thereby and on

account thereof, he managed the whole thing. During cross-
Patna High Court CR. APP (SJ) No.893 of 2017 15

examination, he had admitted that case has been registered for rape.

He had not made statement before the police.

16. DW-2 is the witness of the P.O. village, who had

deposed regarding topography of the P.O. stating that there happens to

be flow of people in its surrounding. He had further stated that victim

had instituted case against Mintu Manjhi. Later on, he came to know

that Mintu Singh and two others have also been implicated. He had

further stated that on the alleged date and time of occurrence, Mintu

Singh was along with them.

17. The learned lower Court, as is evident from finding

recorded under Para-19 that victim had not whispered with regard to

complicity of other co-accused (since acquitted) in the fard-bayan as

well as statement having made under Section 164 Cr.P.C. which

happens to be inconsistent with the material as, from the statement of

the victim recorded under Section 164 Cr.P.C., it is evident that she

had named Mintu Manjhi, Mintu Singh while two others were not

named. Moreover, as the state has not challenged the judgment of

acquittal relating to other co-convict as well as on account of non-

examination of the Magistrate, who had recorded statement of the

victim, the issue is left without any further discussion.

18. From the judgment impugned, it is manifest that the

learned court did not consider the medical report in consonance with
Patna High Court CR. APP (SJ) No.893 of 2017 16

F.S.L. Report, to arrive at right conclusion.

19. In Bhagwan Jagannath Markad and others vs. State

of Maharashtra reported in (2016) 10 SCC 537, it has been held:-

“17. Before considering this aspect with

reference to the evidence on record, we may

advert to the settled principles of law

dealing with the issues arising in the present

case. The approach to be adopted by the

court generally in appreciating the evidence

in a criminal case as also the approach of

the appellate court is discussed in several

decisions of this Court, some of which have

been cited by learned counsel for the

parties.

18. It is accepted principle of criminal

jurisprudence that the burden of proof is

always on the prosecution and the accused

is presumed to be innocent unless proved

guilty. The prosecution has to prove its case

beyond reasonable doubt and the accused is

entitled to the benefit of the reasonable

doubt. The reasonable doubt is one which

occurs to a prudent and reasonable man.

Section 3 of the Evidence Act refers to two

conditions – (i) when a person feels
Patna High Court CR. APP (SJ) No.893 of 2017 17

absolutely certain of a fact – “believe it to

exist” and (ii) when he is not absolutely

certain and thinks it so extremely probable

that a prudent man would, under the

circumstances, act on the assumption of its

existence. The doubt which the law

contemplates is not of a confused mind but

of prudent man who is assumed to possess

the capacity to “separate the chaff from the

grain”. The degree of proof need not reach

certainty but must carry a high degree of

probability [(1990) 3 SCC 190]

19. While appreciating the evidence of a

witness, the court has to assess whether

read as a whole, it is truthful. In doing so,

the court has to keep in mind the

deficiencies, drawbacks and infirmities to

find out whether such discrepancies shake

the truthfulness. Some discrepancies not

touching the core of the case are not enough

to reject the evidence as a whole. No true

witness can escape from giving some

discrepant details. Only when discrepancies

are so incompatible as to affect the

credibility of the version of a witness, the

court may reject the evidence. Section 155
Patna High Court CR. APP (SJ) No.893 of 2017 18

of the Evidence Act enables the doubt to

impeach the credibility of the witness by

proof of former inconsistent statement.

Section 145 of the Evidence Act lays down

the procedure for contradicting a witness by

drawing his attention to the part of the

previous statement which is to be used for

contradiction. The former statement should

have the effect of discrediting the present

statement but merely because the latter

statement is at variance to the former to

some extent, it is not enough to be treated as

a contradiction. It is not every discrepancy

which affects creditworthiness and

trustworthiness of a witness. There may at

times be exaggeration or embellishment not

affecting credibility. The court has to sift the

chaff from the grain and find out the truth. A

statement may be partly rejected or partly

accepted [(1999) 9 SCC 525]. Want of

independent witnesses or unusual behavior

of witnesses of a crime is not enough to

reject evidence. A witness being a close

relative is not enough to reject his testimony

if it is otherwise credible. A relation may not

conceal the actual culprit. The evidence may
Patna High Court CR. APP (SJ) No.893 of 2017 19

be closely scrutinized to assess whether an

innocent person is falsely implicated.

Mechanical rejection of evidence even of a

„partisan‟ or „interested‟ witness may lead

to failure of justice. It is well known that

principle “falsus in uno, falsus in omnibus”

has no general acceptability [(2002) 8 SCC

381]. On the same evidence, some accused

persons may be acquitted while others may

be convicted, depending upon the nature of

the offence. The court can differentiate the

accused who is acquitted from those who

are convicted. A witness may be untruthful

in some aspects but the other part of the

evidence may be worthy of acceptance.

Discrepancies may arise due to error of

observations, loss of memory due to lapse of

time, mental disposition such as shock at the

time of occurrence and as such the normal

discrepancy does not affect the credibility of

a witness.

20. Exaggerated to the rule of benefit of

doubt can result in miscarriage of justice.

Letting the guilty escape is not doing justice.

A Judge presides over the trial not only to

ensure that no innocent is punished but also
Patna High Court CR. APP (SJ) No.893 of 2017 20

to see that guilty does not escape.[(2002) 8

SCC 381].”

20. In State of Himachal Pradesh v. Sanjay Kumar alias

Sunny reported in 2017 CRI.L.J. 1443, it has been held:-

“30. By no means, it is suggested that

whenever such charge of rape is made,

where the victim is a child, it has to be

treated as a gospel truth and the accused

person has to be convicted. We have already

discussed above the manner in which

testimony of the prosecutrix is to be

examined and analysed in order to find out

the truth therein and to ensure that

deposition of the victim is trustworthy. At

the same time, after taking all due

precautions which are necessary, when it is

found that the prosecution version is worth

believing, the case is to be dealt with all

sensitivity that is needed in such cases. In

such a situation one has to take stock of the

realities of life as well. Various studies show

that in more than 80% cases of such abuses,

perpetrators have acquaintance with the

victims who are not strangers. The danger is

more within than outside. Most of the time,
Patna High Court CR. APP (SJ) No.893 of 2017 21

acquaintance rapes, when the culprit is a

family member, are not even reported for

various reasons, not difficult to fathom. The

strongest among those is the fear of

attracting social stigma. Another deterring

factor which many times prevent such

victims or their families to lodge a

complaint is that they find whole process of

criminal justice system extremely

intimidating coupled with absence of victim

protection mechanism. Therefore, time is

ripe to bring about significant reforms in the

criminal justice system as well. Equally,

there is also a dire need to have a survivor

centric approach towards victims of sexual

violence, particularly, the children, keeping

in view the traumatic long lasting effects on

such victims.

31. After thorough analysis of all relevant

and attendant factors, we are of the opinion

that none of the grounds, on which the High

Court has cleared the respondent, has any

merit. By now it is well settled that the

testimony of a victim in cases of sexual

offences is vital and unless there are

compelling reasons which necessitate
Patna High Court CR. APP (SJ) No.893 of 2017 22

looking for corroboration of a statement, the

courts should find no difficulty to act on the

testimony of the victim of a sexual assault

alone to convict the accused. No doubt, her

testimony has to inspire confidence. Seeking

corroboration to a statement before relying

upon the same as a rule, in such cases,

would literally amount to adding insult to

injury. The deposition of the prosecutrix

has, thus, to be taken as a whole. Needless

to reiterate that the victim of rape is not an

accomplice and her evidence can be acted

upon without corroboration. She stands at a

higher pedestal than an injured witness

does. If the court finds it difficult to accept

her version, it may seek corroboration from

some evidence which lends assurance to her

version. To insist on corroboration, except

in the rarest of rare cases, is to equate one

who is a victim of the lust of another with an

accomplice to a crime and thereby insult

womanhood. It would be adding insult to

injury to tell a woman that her claim of rape

will not be believed unless it is corroborated

in material particulars, as in the case of an

accomplice to a crime. Why should the
Patna High Court CR. APP (SJ) No.893 of 2017 23

evidence of the girl or the woman who

complains of rape or sexual molestation be

viewed with the aid of spectacles fitted with

lenses tinged with doubt, disbelief or

suspicion? The plea about lack of

corroboration has no substance {See

Bhupinder Sharma v. State of Himachal

Pradesh[(2003) 8 SCC 551]}.

Notwithstanding this legal position, in the

instant case, we even find enough

corroborative material as well, which is

discussed hereinabove.

32. From the evaluation of the prosecution

material discussed above, it is abundantly

clear that the evidence brought on record

contains positive proof, credible sequence of

events and factual truth linking the

respondent with rape of the prosecutrix and

had criminally intimidated her. Hence,

respondent is found to be guilty for offence

under Sections 376(2)(f) and 506 of IPC

since he committed rape with a minor girl

aged nine years. It is pertinent to point out

at this stage that at the time of deposition of

the prosecutrix in the Court, the trial court

had an opportunity to see her demeanor. On
Patna High Court CR. APP (SJ) No.893 of 2017 24

that basis, the trial court in the judgment

had commented as under:

“66. The statement of prosecutrix inspires

confidence even though a child witness since

while deposing in the Court her demeanor

appeared like that of competent witness and

no likelihood of tutor. I find her testimony

reliable since she was found competent to

depose after preliminary inquiry as she

understood questions and to give rational

answers. I have gone through her statement

with extra caution and full of

circumspection. Therefore, I have no

hesitation to believe her statement.”

33. At this juncture, we would also like to

reproduce the following passage from the

judgment of this Court in State of Rajasthan

v. Om Prakash[(2002) 5 SCC 745]:

“19. Child rape cases are cases of perverse

lust for sex where even innocent children

are not spared in pursuit of sexual pleasure.

There cannot be anything more obscene

than this. It is a crime against humanity.

Many such cases are not even brought to

light because of the social stigma attached
Patna High Court CR. APP (SJ) No.893 of 2017 25

thereto. According to some surveys, there

has been a steep rise in child rape cases.

Children need special care and protection.

In such cases, responsibility on the

shoulders of the courts is more onerous so

as to provide proper legal protection to

these children. Their physical and mental

immobility call for such protection. Children

are the natural resource of our country.

They are the country’s future. Hope of

tomorrow rests on them. In our country, a

girl child is in a very vulnerable position

and one of the modes of her exploitation is

rape besides other modes of sexual abuse.

These factors point towards a different

approach required to be adopted. The

overturning of a well-considered and well-

analysed judgment of the trial court on

grounds like non-examination of other

witnesses, when the case against the

respondent otherwise stood established

beyond any reasonable doubt was not called

for. The minor contradiction of recovery of

one or two underwears was wholly

insignificant.”

21. Considering the evidence in its totality, it is found
Patna High Court CR. APP (SJ) No.893 of 2017 26

and held that though the other co-accused are found benefited on

account of wrong appreciation of the fact available on the record since

before and further, the status of the victim that of tender age facing

horrifying situation, soon after the occurrence, was shifted to Sadar

Hospital and so, the fard-bayan which she gave was under persistent

traumatic situation. Apart from this, the evidence of doctor clearly

speaks with regard to injury over private part of victim, tearing hymen

and the effort of accused is found substantiated by way of presence of

blood as well as semen over the apparel of the victim, which clearly

suggest an event of rape. As per definition of rape, slight penetration

is sufficient to constitute rape and not the ejaculation and that being

so, considering the overall situation, it could very well be considered

that the victim was raped. However, so far appellant Mintu Manjhi is

concerned, she happens to be consistent and even during course of

cross-examination, she has not been tested at the end of Mintu Manjhi

at least to his extent. The DWs are of no consequence as they have not

spoken that the distance in between, would not have possibility of his

presence at the place of occurrence. And so, the finding recorded by

the learned lower Court relating to him, appears to be non-

appreciation of the material available on record in its right

perspective. The learned lower Court as observed hereinabove did not

consider the medical evidence in consonance with F.S.L. Report,

which exclusively indicate commission of rape, coupled with
Patna High Court CR. APP (SJ) No.893 of 2017 27

evidence of victim, substantiate the same whereupon finding of the

learned lower Court that no offence under Section 376 I.P.C. is made

out, or Section 376 I.P.C. simplicitor is not the lesser offence of

Section 376 (2)(g) I.P.C. appears to be misnomer, apart from the fact

that no sound reasoning has been assigned therefor and on account

thereof, did not survive. That being so, the judgment of conviction

and sentence is set aside. Appeal is allowed. Matter is remitted back

to the learned lower Court to hear the argument of both sides and will

pass judgment in accordance with law. The aforesaid exercise must be

completed within four months from the date of receipt of L.C. Record.

Office to transmit the same at once.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE 22.08.2017
Uploading Date 09.10.2017
Transmission 09.10.2017
Date

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