IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.47 of 2015

Arising Out of PS.Case No. -219 Year- 2012 Thana -MEERGANJ District- GOPALGANJ

LAKSHMAN CHAUHAN @ LAXMAN CHAUHAN SON OF LATE
JAGARNATH CHAUHAN, RESIDENT OF VILLAGE – BIGAHI BARISHAL,
TOLA DIGHAPAR, P.S. – MIRGANJ, DISTRICT – GOPALGANJ.

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

Appearance:

For the Appellant/s :
Mr. Ranjeet Kuamr Pandey, Adv.
Mr. Ojaswee Kumar, Adv.
Mr. Radhe Shyam Kumar, Adv.
For the Respondent/s : Mr. Z. Hoda, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 17-07-2017

1. Sole appellant Lakshman Chauhan @ Laxman Chauhan

having been found guilty for an offence punishable under Section 376 IPC

and sentenced to undergo R.I. for ten years as well as to pay fine

appertaining to Rs.20,000/- and in default thereof, to undergo R.I. for two

years by the First Additional Sessions Judge, Gopalganj in Sessions Trial

No.57/2013, has challenged the same under present appeal.

2. Father of victim, namely, Ashok Chauhan (PW.5) filed

written report on 19-10-2012 disclosing therein that he was engaged in

manual work at Barka Digha while Sangeeta Devi and daughter Rubi

Kumari aged about 6-7 years remained at his house. In usual manner, his

daughter Rubi Kumari took she-goat towards brick-kiln of Rameshwar

Singh lying eastern-southern direction from his house for grazing where,
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 2

his co-villager Lakshman Chauhan aged about 55 years has also gone with

his she-goat. The aforesaid Lakshman Chauhan allured his daughter, took

her in a sugarcane field and committed rape. Wife of Kamlu Chauhan and

Baleshwar Chauhan (PW.3, PW.4) have gone towards brick-kiln of

Rameshwar Singh for cutting thatch found his daughter senseless lying over

which, they done few exercise and after regaining sense on query, Rubi has

disclosed that Laxman Baba has raped her. Then thereafter, both two

women accompanied his daughter to his house and disclosed the event. His

nephew Om Prakash Chauhan came to his place and informed whereupon

he rushed to his house and found his daughter in awkward position who, on

query has disclosed event. Thereafter, he along with the victim, wife and

co-villager Pramod Chauhan and others came to the P.S.

3. After registration of Mirganj P.S. Case No.219/2012, the

police took up investigation and found the allegation duly substantiated,

submitted charge sheet. The offence being exclusively triable by the court

of Session allowed the trial before the court of Sessions which ultimately

concluded with a verdict of guilt and sentence.

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

informant, father of alleged victim had borrowed substantial amount from

the appellant which, appellant was insisting upon to re-pay but as informant

was not inclined to repay getting an opportunity on account of injury having

over person of his daughter, victim misused by him by way of institution of

instant case only to digest the amount. However neither oral nor

documentary evidence on that very score been adduced on behalf of
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 3

appellant.

5. In order to substantiate its case, prosecution had examined

altogether ten PWs out of whom PW.1 is Sangeeta Devi, PW.2 is Daroga

Chauhan, PW.3 is Jagdamba Devi, PW.4 is Chanda Devi, PW.5 is Ashok

Chauhan, PW.6 is Rubi Kumari, PW.7 is Balister Chauhan, PW.8 is

Pramod Chauhan, PW.9 is Dr. Manju Kumari and PW.10 is Devendra

Prasad Yadav.

6. Side- by-side had also exhibited Ext.1- Series-Signature of

respective witnesses over seizure list, Ext.2-Injury report, Ext.3-Formal

First Information Report Ext.4 Series- Seizure List, Ext.5-FSL report. As

stated above, neither oral nor documentary evidence has been adduced on

behalf of defence.

7. The learned counsel for the appellant while challenging the

judgment of conviction and sentence impugned has raised manifold

argument. The first and foremost argument happens to be that prosecution

has failed to substantiate the place of occurrence which goes to the route of

the prosecution case. That being so, on account of deficiency persisting in

the prosecution case on that very score would nullify not only the manner

of occurrence rather demolish the prosecution case in its entirety as well as

also cost deer to the prosecution over reliability of the witnesses. To

substantiate such plea, it has been submitted that save and except the

victim, PW.6 none is an eye witness to occurrence and so, they were not at

all competent enough to affix in conformity to each other the place where

offence of rape, allegedly was committed. That being so, even their status

being corroborative in nature would not be in favour of the prosecution.
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 4

8. It has also been submitted that apart from exclusion of status

of other witnesses, when the evidence of victim PW.6 is taken together with

the evidence of PW.10, Investigating Officer, it is crystal clear that there

happens to be vital inconsistency amongst them and so, not only makes the

objective finding of the Investigating Officer redundant rather it also

disinrigorate the authenticity of the evidence of the victim (PW.6).

9. Further, it ahs also been submitted that evidence of victim

would not be admissible in the eye of law in the background of the fact that

Investigating Officer, during his cross-examination had categorically stated

that he had not recorded statement of the victim during course of

investigation so, the evidence of victim was for the first time during course

of trial whereupon, as the prosecution failed to explain her absence during

course of investigation, would be considered with suspicious eye and

creates doubt over its authenticity, reliability, admissibility.

10. It has also been submitted that admittedly, from the evidence

of the doctor, it is evident that victim was 6-7 years of age and on account

thereof, being a resident of country side certainly, will have lower I.Q. that

too being an illiterate coming from lower strata of the society apart from

minor vulnerable to tutoring and so, before her examination, the learned

lower court should have tested whether she was carrying normal

understanding or not as well as should have also considered whether she

had an opportunity of tutoring. Such eventuality is found duly

acknowledged under Section 118 of the Indian Evidence Act. The non-

exercise at the end of the court appears to be fatal in the background of the

fact that when she was tested by the defence counsel, she became blank and
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 5

that suggest that she was of below normal understanding and on that very

score, was an incompetent witness in terms of Section 118 of the Indian

Evidence Act. That being so, her evidence would not be, admissible, as well

as legally entertainable.

11. Apart from this, it has also been submitted that after

amendment of the Cr.P.C. whenever an accused relating to sexual offences

are being apprehended, he is bound to be examined by the medical

practitioner in order to search out the corroborative evidence which could

be gathered by the doctor on his physical examination as laid down under

Section 53A thereof. Admittedly, appellant was arrested on the same day

and by such omission, the prosecution frustrated an opportunity for the

appellant to prove his innocence as, has been pleaded his end with regard to

false implication.

12. Furthermore, the learned counsel for the appellant also

submitted that right from initial version of the prosecution, there happens to

be presence of one Om Prakash nephew of informant (PW.5) who was the

person gone to the place of informant for having him acknowledged with

the incident. During course of evidence PW.5, informant himself admitted

that Om Prakash had not disclosed regarding commission of an occurrence

rather he had disclosed that victim had sustained hurt. The aforesaid Om

Prakash, the reason best known to the prosecution, has not been examined

nor any kind of explanation has been furnished for his non-examination.

Had there been an occurrence of rape then, in that event, Om Prakash, being

a family member would not have disclosed with regard to victim sustaining

hurt rather would have disclosed definitely regarding the occurrence having
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 6

been committed over the victim by the appellant.

13. It has also submitted that in the background of aforesaid

eventualities, infirmities, it is apparent that the suggestion whatever been

given by the appellant by cross-examination the informant PW.5 as well as

victim PW.6, happens to be more probable and so, the cumulative effect did

not justify the finding recorded by the learned lower court whereupon,

appeal is fit to be allowed.

14. The learned Additional Public Prosecutor while controverting

the submission raised on behalf of appellant has submitted that victim

happens to be categorical with regard to commission of rape over her by the

appellant. Because of the fact that save and except victim none happens to

be an eye witness to occurrence therefore, some sort of inconsistency has

been found in the prosecution case regarding place of occurrence relating to

other witnesses however, the defence could not be able to challenge nor

intended to challenge the place of occurrence which lies adjacent to the

brick-kiln of Rameshwar Singh. Furthermore, the act of rape is found duly

substantiated by the medical evidence as deposed by PW.9 as well as from

the FSL report coupled with the seizure of the apparels blood stain earth

from the P.O. which also substantiate the same. So, the evidence of PW.6

victim, PW.9 doctor and PW.10 Investigating Officer along with

documentary evidence duly substantiate the occurrence corroborated by

other PWs. PW.3 Jagdamba Devi and PW.4 Chanda Devi, who lifted the

victim from brick-kiln where she was lying in disorderly supported by

parents PW.1 as well as PW.5 along with villagers, the remaining

witnesses.

Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 7

15. Furthermore, it has also been submitted that defence is free to

suggest in a manner as it feels but, such suggestion is to be duly

substantiated if, the defence intends to stick over the same for the purpose

of controverting the prosecution version otherwise, the suggestion would be

merely for defence sake. It has been suggested to the PW.5 that he was

borrower and as there was insistence to repay the loan on account thereof,

this case has been falsely instituted in the aforesaid background the defence

would have shared the burden by way of substantiating the same wherein,

failed so, the judgment of conviction and sentence recorded by the learned

lower court is found fit for confirmation.

16. So far, incidence of rape is concerned that too under the

Indian social paronam, it not only happens to be a physical assault rather it

happens to be an assault over the whole personality of a woman shaking her

identity and that happens to be reason behind that the evidence of victim is

being considered above board. In normal course, evidence of victim is

found sufficient to record conviction without any corroboration it inspires

confidence when, shown a doubt is found then in that event corroboration is

needed. Therefore, the evidence of the victim is to be tested at first glance

in order to search out truthfulness at her end.

17. So far this case is concerned, before going to do such

exercise, the status of the victim is also to be duly acknowledged.

Admittedly, victim happens to be aged about 6-7 years. From the deposition

it is apparent that court had not taken due exercise to test her IQ and in

likewise manner the order dated 07.08.2013, the date on which she was

examined suggests so. Defence had tried to test her mental IQ and during
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 8

said course, she had crossed the first barrier by deposing that she happens to

be student of Class-II. School lies at Barka Digha, she was examined by the

police while at second step she failed to disclose how many days a month

constitute, how many days a week constitute, she was unable to say what

treatment denotes but again on other aspect, she faced cross-examination

properly by saying that she had come along with her parents. Her school

runs from 10 AM to 03:00 PM then thereafter she remains at her house. In

the aforesaid background, the defence had taken a risk by not cross-

examining the victim on the factum of occurrence. Whether aforesaid

eventuality could be perceived as sufficient to identify the victim to be

intellectually deficient one , after taking together the other parts of cross-

examination whereunder she had categorically answered. That being so, she

could not be found to be incompetent in terms of Section 118 of the Indian

Evidence Act and that being so her evidence is found fit to be accepted.

18. In the aforesaid background, now the evidence of the victim

PW.6 is taken up whereunder, she had categorically stated the activity of

appellant how he acted before commission of the rape, committed rape, the

post rape condition which never been contested challenged at the end of the

appellant, and that being so, the factual aspect relating to occurrence as

deposed by the victim, is found uncontroverted.

19. In Gian Chand others v. State of Haryana reported in

2013(4) PLJR 7 (SC) it has been held it has been held that when no cross-

examination has been made to an witness on a particular point the same

would be accepted to be admitted at the end of the appellant. For better

appreciation, the relevant para is quoted below:-

“11. The effect of not cross-examining a witness on a
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 9

particular fact/circumstance has been dealt with and
explained by this Court in Laxmibai (Dead) Thr.

L.Rs. Anr. v. Bhagwanthuva (Dead) Thr. L.Rs.
Ors., AIR 2013 SC 1204 observing as under:

“31. Furthermore, there cannot be any
dispute with respect to the settled legal proposition,
that if a party wishes to raise any doubt as regards
the correctness of the statement of a witness, the
said witness must be given an opportunity to
explain his statement by drawing his attention to that
part of it, which has been objected to by the other
party, as being untrue. Without this, it is not
possible to impeach his credibility. Such a law has
been advanced in view of the statutory provisions
enshrined in Section 138 of the Evidence Act, 1872,
which enable the opposite party to cross-examine a
witness as regards information tendered in
evidence by him during his initial examination in
chief, and the scope of this provision stands enlarged
by Section 146 of the Evidence Act, which permits a
witness to be questioned, inter-alia, in order to test
his veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that
it is impossible for the witness to explain or
elaborate upon any doubts as regards the same, in
the absence of questions put to him with respect
to the circumstances which indicate that the version
of events provided by him, is not fit to be believed,
and the witness himself, is unworthy of credit. Thus, if
a party intends to impeach a witness, he must
provide adequate opportunity to the witness in the
witness box, to give a full and proper explanation.
The same is essential to ensure fair play and fairness
in dealing with witnesses.”

(Emphasis supplied)

20. Therefore, the evidence of victim PW.6 remained intact

whereupon does not need additional help by way of corroboration even

though, there happens to be bunch of witnesses more particularly PW.3 and

PW.4 who lifted the victim PW.6 from the brick-kiln of Rameshwar Singh

to her house while was lying disorderly there, for which on query disclosed

the narration of occurrence.

21. In this regard the evidence of doctor, PW.9 is also to be
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 10

considered who was one of the member of the board relating to estimation

of age of the victim whereunder, victim was estimated to be aged about six

years. She being a Gynecologist had examined the victim and found

following injuries over her person:-

“There was second degree posterior perineal tear. There was

also tear in post vaginal wall and let vaginal wall extending up

to vault. The apex of tear could not be visualized and repaired

by above mentioned doctors. Vagina admits two fingers (with

2nd degree perineal tear ) MI- A small mole on chest just above

angle of twice.

Investigation.

(1) Vaginal swab for microscopic examination of

spermatozoa. Report shows not spermatozoa.

(2) X-ray wrist A/P and lateral view of elbow joint for the

age determination.

and so opined to have intercourse.

22. Investigating Officer had visited the place of occurrence,

found blood at the place of occurrence which was seized, in likewise

manner blood stained Ganghia was also produced, seized, got examined by

the FSL and further, its report happen to be pointing out not only presence

of blood of another group rather semen also. Apart from this, blood of same

group was also over the soil which was taken from the place of occurrence

and this part, when is considered along with the evidence of victim, PW.6,

duly interconnect.

23. In the aforesaid background, the non-examination of the
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 11

appellant by a medical officer is not at all found adverse to the prosecution

in the background of the fact that appellant had not suggested even to the

victim that he was physically incapable to indulge in sexual intercourse.

Had there been, then in that circumstance, none examination of the

appellant would have adversely affect upon the prospect of the prosecution

case.

24. So far, deficiency in the evidence of PW.10 to the extent of

proper identification of P.O. has got no relevancy in the background of own

lapses of the appellant whereunder event of rape has not been questioned

while cross-examining the victim as well as no cross-examination relating

to place of occurrence as deposed by the victim as well as Investigating

Officer have been confronted. Therefore, merely some sort of variance will

have no adverse impact more particularly having been supported with

ancillary evidence, i.e. presence of blood stain, seizure of blood stained

earth.

25. In likewise manner, non-examination of Om Prakash and

further the disclosure having made by PW.5, informant relating to an

information given by Om Prakash happens to be a genuine conduct as, it

was not expected to have such kind of disclosure before others which could

have malign his family prestige as well as a stigma, a scar over future of a

minor girl.

26. Considering the totality of the event as well as giving anxious

consideration over the materials available on the record, it is apparent that

prosecution has succeeded in proving its case beyond all reasonable doubt.

Consequent thereupon, this appeal lacks merit and is accordingly dismissed.
Patna High Court CR. APP (SJ) No.47 of 2015 dt.17-07-2017 12

27. So far sentence part is concerned, that needs no interference

in the background of the fact that the lecherous activity of the appellant

could not be condoned that too when a minor 6-7 years have been subjected

for the aforesaid purpose. Appellant is under custody which he remain till

saturation of sentence.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 22.07.2017
Transmission 22.07.2017
Date