IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.469 of 2014
Arising Out of PS.Case No. -21 Year- 2012 Thana -MAHILA P.S. District- BANKA
1. Sitaram Raut S/o Late Harish Raut, Resident of village- Devda, P.S.- Banka,
District- Banka
…. …. Appellant/s
Versus
1. The State of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Sunil Prasad, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
C.A.V. JUDGMENT
Date: -10-2017
This appeal is directed against the judgment dated 17.07.2014
and order of sentence dated 19.07.2014, passed by Sri Akhilanand
Dubey, Adhoc Additional Sessions Judge, -IV, Banka, in Session
Trial No. 110/13, by which he has convicted the appellant under
section 376 of the Indian Penal Code and sentenced him to undergo
rigorous imprisonment for ten years with a fine of Rs. 2,000 and in
default of the payment of fine, further R.I. for two months.
2. Brief facts necessary for adjudication of the present appeal are
that the informant – Bindu Devi in her written statement filed before
the Banka, police had stated that she was the step mother of victim
girl -Fudo Kumari, who was a mentally challenged girl and the
appellant often used to secretly come with her in house and used to
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make physical relationship by pressing her mouth. It has also been
alleged that her nephew Nikku Jha and one Beauty Kumari had seen
the appellant making physical relationship with the victim girl in a
room of temple and were caught and on being asked, appellant denied
that he has done anything wrong with the victim girl and the boy
fetus, which was in the womb of victim girl was not his. Thereafter,
they asked the victim girl, who impliedly pointed out the finger at the
appellant. It has further been stated that after that a panchayati was
held and the informant was asked to put her signature on a blank
paper but she preferred to report the matter to the police.
3. On the basis of aforesaid written statement, Banka Mahila P.S.
Case No. 21/12 was registered against the appellant under Section 376
of the Indian Penal Code and the police after investigation submitted
charge -sheet against the appellant under Section 376 of the Indian
Penal Code. Cognizance of the offence was taken and, thereafter, the
case was committed to the court of sessions, which ultimately traveled
to the file of Sri Akhilanand Dubey, learned Adhoc Additional
Sessions Judge, -IV, Banka, for trial and disposal.
4. Charges were framed under Section 376 of Indian Penal Code
against the appellant.
5. In this case, altogether, seven witnesses have been examined
from the side of the prosecution and they are: P.W. 1- Bindu Devi
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(informant and step mother of the victim), P.W. 2- Fudo Kumari
(victim girl), P.W. 3- Dr. Indu Bala Prasad, who conducted medical
examination on the victim girl, P.W. 4- Laxmi Devi, P.W. 5 – Nikku
Jha, P.W. 6, Chandana Kumari (Investigating Officer) and P.W. 7-
N.K. Priyadarshi, (Judicial Magistrate, Banka). Apart from the above,
following documents have been admitted into evidence and marked as
; Ext. 1 – requisition for medical examination of Fudo Kumari, Ext. 2-
supplementary requisition for medical examination of Fudo Kumari,
Ext. 3- written statement of informant, Ext. 4 -formal F.I.R and Ext.
5- statement of Fudo Kumari, recorded under Section 164 of Cr.P.C.
6. From the defence side no evidence either oral or documentary
has been adduced and it appears from the suggestion given to the
witnesses and his statement under Section 313 Cr.P.C, the defence of
the appellant is of false implication at the instance of informant and
complete denial of the occurrence.
7. Learned Trial Court after conclusion of trial convicted the
appellant under Section 376 Indian Penal Code and sentenced him as
stated above.
8. Aggrieved by the said judgment, the appellant preferred the
present appeal.
9. Submission of learned counsel for the appellant is that P.W. -2,
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who is the victim girl Phudo Kumari is mentally not sound and the
trial court has also not found this witness competent to depose, giving
a finding that she is not a competent witness under Section 118 of the
Indian Evidence Act. Further submission is that from perusal of entire
evidence, it will appear that there is no eye-witness of the occurrence
and though informant P.W. -1, has lodged a case against the appellant
but it appears that she is not the eye witness of the occurrence and she
had deposed on the basis of hear say evidence of Beauty Kumari and
Nikku Jha, however, the Beauty Kumari has not been examined in this
case as she died during the pendency of the case and P.W. 5 – Nikku
Jha has not supported the prosecution case as he has stated that he has
not informed the police about the appellant entering inside the
“Kothari” (room) and making physical relationship with the victim
girl. It has also been submitted that so far other witnesses are
concerned, they are not the eye-witness of the occurrence. Further
submission is that so far statement of girl under Section 164 Cr.P.C.
is concerned; it appears that the same has been recorded by the
Judicial Magistrate on the basis of what he has gathered from the
gesture and sign of the victim girl though he is not an expert to
understand the sign language. It has also been argued that medical
report does not support the prosecution case of commission of rape
recently on victim – Phudo Kumari rather it suggests that the victim
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was carrying a pregnancy of 6 ½ months at the time of medical
examination and these facts clearly shows that once she was found
pregnant, appellant has been made scapegoat by the informant as it
cannot be believed that P.W 1 was not knowing about the pregnancy
of the victim girl at the time of lodging F.I.R, though she was carrying
pregnancy of six and half months. On the basis of above, learned
counsel for the appellant has submitted that the judgment of the Trial
Court convicting the appellant under Section 376 suffers from serious
infirmities and is not sustainable in the eyes of law.
10. Learned counsel for the State ,on the other hand, has submitted
that statement of victim girl under Section 164 Cr.P.C., which has
been recorded by Judicial Magistrate, supports the allegation of
commission of rape by the appellant though it was shown on the basis
of gestures and sign but the court is quite competent to record such
finding. However, he has also conceded the fact that during the course
of recording the evidence of P.W. -2, (victim girl), learned Trial
Court has given a finding that this witness is not competent to answer
questions and she could not been cross-examined. It has also been
contended by learned counsel for the State that there are other
evidences also available on record to prove the guilt of the appellant,
as such, there is no infirimity in the impugned judgment, convicting
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the appellant under Section 376 of the Indian Penal Code.
11. From perusal of the evidence of informant – P.W. 1, it appears
that according to her, P.W. 5, Nikku Jha and Beauty Kumari had
informed her on phone that they had seen the appellant committing
rape on the victim girl and also stated that victim girl was carrying a
pregnancy of 6 to 6 ½ months and a panchayati was also held for that
purpose. Her evidence also shows that the report was written in the
handwriting of P.W. 5 – Nikku Jha. However her evidence as well as
her cross-examination, clearly shows that she is not the eye-witness
of the occurrence, rather she appears to be hearsay witness Her
evidence in chief also shows that she has not narrated the prosecution
story in so many words in her chief, rather she has stated that she got
the report written by P.W. 5 – Nikku Jha.
12. P.W. 2 is the victim girl- Phudo Kumari and from perusal of her
evidence, it appears that she is enable to express anything. Though
trial court has recorded her evidence in part, on the basis of her
gesture and sign, that this appellant tried to strangulate and undressed
her. Thereafter, it is recorded by the Trial Court that in spite of best
efforts she could not answer the queries of the court, as to what else
was done by the appellant. The Trial Court has also recorded a finding
that this witness is unable to depose further in the court and her cross-
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examination is not possible, hence discharged her.
13. P.W. 5, Nikku Jha has not supported the case of prosecution
and has not stated anything to show that he is the eye witness of the
commission of rape on the victim girl by the appellant rather he has
stated that he has not stated so before the police. His evidence further
shows that he came to know about the same from Beauty Kumari and
Beauty Kumari has not been examined in this case and the said
Beauty Kumari had died during the pendency of the case.
14. P.W. 4, is one Laxmi Devi, She has also not supported the case
of prosecution and has been declared hostile.
15. Apart from the above, there is evidence of Investigating Officer
( P.W. 5) though he has stated about narration of Beauty Kumari and
other witnesses with regard to commission of rape on the victim girl
and also stated that victim girl by sign and gesture has stated about the
same but it is well established that the evidence of I.O. as well as
statement of girl under Section 164 Cr.P.C. can at best be used for the
purpose of corroboration and that cannot be used as substantive
piece of evidence.
16. Apart from him, Doctor ( P.W. 3 ) has also been examined in
this case and she has also stated in her evidence that no sign of recent
rape was found on the victim girl and her hymen was found ruptured
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from before and further the victim girl was carrying a pregnancy of 6
to 6 ½ half months. The evidence of doctor further shows that the
victim girl was suffering from unsoundness of mind or brain , which
is psychosis. Further stated that psychosis is vague term and it
includes many other disorders and the victim girl was not in a
position to express such type of act.
17. From the discussions of evidences, it appears that the learned
Trial Court after assessing the sign and gestures of the victim girl,
came to a conclusion that victim girl is not competent to depose in the
court under Section 118 of the Indian Evidence Act and further there
is absolutely no substantive evidence has been brought by the
prosecution side to prove its case of commission of rape on the victim
girl except her part evidence but she has been discharged without
cross-examination , hence defence has not got an opportunity to taste
as to whether those evidence is unimpeachable or not . On the other
hand the doctor, who conducted examination of the victim girl, has
also not found any sign of recent rape on the victim girl rather on
medical examination, it was revealed that the victim girl was carrying
a pregnancy of six and half months. Though it is as well settled
principle of law that even if the medical report does not support the
allegation of rape, conviction can be made only on the sole testimony
of the prosecutrix but in the present as discussed above, the victim is a
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mentally challenged girl and was not able to depose in the court and
defence has also not got opportunity to cross-examine her to test the
credibility of evidence of victim girl
18. It further appears that learned trial court has not tried to get the
assistance of any family members or any expert in recording her
evidence.
19. Further the witnesses, who have supported the case of
prosecution with regard to commission of rape on the victim girl by
the appellant are only hearsay evidence. Though her statement u/s
164 Cr. P. C. has been brought on record but that is of no value in the
eye of law. Learned trial court in spite to come to finding but in
absence of any credible substantive piece of evidence , she has not
been expressed herself and discharged her without cross-examination
and there is no other substantive piece of evidence available on record
convicted the appellant.
20. No doubt, commission of rape on a mentally challenged is a
very insensitive, inhuman and barbaric act of a polluted mind and that
has to be dealt with keeping in mind the helplessness of the victim,
who is often found unable to disclose the true facts but it has also to
be kept in mind, while deciding the facts as in the present case that
others may also not been allowed to take advantage of mental
condition of the victim for false implication of any particular person.
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21. This Court might have considered in remanding the case back
to the trial court for recording the evidence of victim girl with the
assistance of any expert, afresh for de novo trial, however occurrence
is of the year of 2012 and appellant is in custody for five years.
Moreover it seems, no useful purpose will be served after recording
her evidence after five years of occurrence when she is mentally
unsound and unable to express herself.
22. Considering the entire discussions made above, it appears that
the prosecution has failed to prove its charge against the appellant
under Section 376 of the Indian Penal Code.
23. Accordingly, this appeal is allowed and impugned Judgment
and order of sentence passed by Sri Akhilanand Dubey, learned
Adhoc Additional Sessions Judge, -IV, Banka, in Session Trial No.
110/13 is, hereby, set aside. As appellant is in custody, he is directed
to be released forthwith, if not required in connection with any other
case.
(Vinod Kumar Sinha, J)
sunil/-
AFR/NAFR AFR
CAV DATE 13.10.2017.
Uploading Date 17.10.2017
Transmission 17.10.2017
Date