IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (DB) No.289 of 2013
Arising Out of PS.Case No. -2 Year- 2012 Thana -BHADAURA District- PATNA

Sunil Paswan S/O Sri Jugal Paswan Resident of Village and Post – Dabhawan,
P.S.- Bhadaur, District- Patna.

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

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Neeraj Kumar Sanidh
Mr. Sanjay Kumar
Mr. Mrityunjay Kumar Jha
For the State Mr. S. N. Prasad

CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
And
HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL)
Date: 18 -05-2017

Bereft of unnecessary details, the prosecution case as embodied in

written report lodged on 16.01.2012 at 7.00 A.M. by Dinesh Prasad (P.W.1)

being the father of the victim (P.W. 3) is that on the alleged date of occurrence

they had taken meal together with the victim whereafter the informant went to

sleep in one room of his house along with his wife (P.W.2) whereas the victim

went to sleep in the adjoining room. At the dead of night, the appellant entered

into the room of P.W.3 as the door of the room was unlocked, forcibly stuffed

her mouth and lifted her in his arm and went to the adjacent place under a tree

and forcibly committed rape on her. Her mouth was stuffed with a Gamcha

(Scarf). Her garments were also torn. After the rape was committed the victim

could remove the Gamcha from her mouth and raise an alarm which attracted the

informant and his wife (P.W.2). An attempt was made to overpower the appellant
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who was hiding in the nearby bush, but he managed to escape by scaling over the

wall and jumping into the courtyard of the neighbour Sadhu Yadav. Lodging of

the FIR ignited investigation by P.W.8, who on finding the accusations true laid

the charge-sheet whereon cognizance was taken and the case was committed to

the court of sessions which gave rise to S.T.No. 502 of 2012 on the file of the

learned 2nd Addl. Sessions Judge, Barh, Patna wherein charges were famed and

read over/explained to the appellant to which he pleaded not guilty and claimed to

be tried. The defence is complete denial of his implication in the crime. A

suggestion was given to all the witnesses by the defence that both the appellant

and the victim were locked in love affairs and they wanted to marry each other.

2. In order to bring home the guilt, the prosecution examined 09 witnesses.

P.W. 1 is the father of the victim and the informant of the case. P.W. 2 is the

mother of the victim. P.W.3 is the victim herself. P.W. 4 Dr. Kiran has examined

the victim on 16.01.2012 at 2.30 P.M. and furnished the medical report (Ext.3)

based on the finding on radiological test provided by the Dr. Bikash Chand

Choudhary (P.W. 5). The result of the medical examination of the victim made by

P.W. 5 is Ext. 4. P.W. 6 Karu Yadav, P.W.7 Madan Paswan and P.W. 9 Ram Prit

Paswan were produced as independent witnesses to support the circumstances

attending the prosecution case. However, the prosecution did not rely on them

and they were tendered. P.W. 8 is the I.O. of the case who not only recorded the

FIR but also visited the place of occurrence and made seizure of certain

incriminating articles from the place of occurrence as well as recorded the

statements of the witnesses. The trial court, on critical analysis of the evidence

of P.Ws 1,2 3 8, found the charges levelled against the appellant proved

beyond shadow of reasonable doubts and accordingly convicted the appellant

under section 376 IPC and ordered to undergo life imprisonment besides
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directing to pay a sum of Rs. 50,000/- to the rape victim. The present appeal is

directed against the said judgment of conviction dated 05.02.2013 and order of

sentence dated 06.02.2013.

3. We have heard Mr. Neeraj Kumar Sanidh in support of the appeal and

Mr. S. N. Prasad for the State.

4. On behalf of the appellant following submissions have been advanced:-

1. As per the testimony of P.W.4 read along with the

report furnished by her (Ext.3) as well as the evidence of

P.W. 5 read along with his report (Ext.4) indisputably the

victim was aged between 17 to 18 years. If the ratio laid

down on this aspect by the Supreme Court in the case of

Jaya Mala vs. Home Secretary, Government of Jammu

Kashmir Ors. [(1982) 2 SCC 538] is applied, the margin

of error in age ascertained by such examination is two

years on either side. The victim was definitely major.

2. It is a case where the victim had also accompanied

the informant. Narration of the prosecution case by the

victim could have been made by the prosecution. Instead of

doing so a written report (Ext.1) prepared by the informant

(P.W.1) was presented. The victim was not even produced

for her statement u/s 164 Cr. P.C.

3. The prosecution case as projected at the trial gets

completely shaken by the medical examination of the victim

made by P.W. 4 on the same day within hours wherein no

sign of rape or mark of violence on the person of the victim

was found. The written report does not disclose vital/material
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part of the prosecution case which was narrated by the victim

as well as the informant in their respective depositions. These

omissions of material/relevant part of the prosecution case in

the first prosecution version cuts severely on the significance

or legal value attached to FIR.

4. The prosecution relied on seizure of the shawl

(Ext.2) allegedly belonged to the appellant at or near the

place of occurrence. If this was the incriminating

circumstance, the prosecution ought to have put this

incriminating circumstance to the appellant while his

statement under section 313 Cr. P.C. was recorded. No such

incriminating circumstance was put to the appellant

providing him an opportunity to explain or deny. This part

of the evidence therefore cannot be employed by the

prosecution to prove the guilt of the appellant.

5. Counsel for the State, on the contrary, supported the prosecution case.

He highlighted the significance and importance generally attached to the

deposition of the rape victim.

6. We shall scan the relevant evidence in the light of the rival submissions

of the parties. The appellant is the co-villager of the informant. The trial court

found him 20 years of age at the time of recording his statement on 07.12.2012

under section 313 Cr. P.C. The informant (P.W.3) was examined on 16.01.2012 at

2:50 P.M. immediately after the incident was reported when on physical

examination of her body and after obtaining the radiological/orthopedics tests

conducted by P.W. 5 found her between the age of 17 to 18 years. Turning to the

evidence of P.W.5, it is found that a medical board was constituted to ascertain
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her age of which this P.W.5 was one of the members. Radiological/orthopedics

tests were carried on the relevant part(s) of her body. On the basis of those

findings, the victim was assessed between 17 to 18 years. The Medical Board,

however, also found that a margin of two years in the finding of age would be

permissible. In the face of aforesaid finding of the Medical Board, it may not be

necessary, yet relying on Jaya Mala‟s case (supra) wherein the Hon‟ble Apex

Court in the matter of ascertainment of age held the court can take a judicial

notice that margin of error in age ascertained by such examination is two years

on either side the victim was also a young major girl. The result of granting such

margin which goes in favour of the accused shall be taken into account as in a

criminal trial the court proceeds on the assumption that the accused is innocent

until the circumstance(s) proved at the trial prove otherwise. Thus both, the

appellant as well as the victim were, young and enthusiastic persons by dint of

their age. It can also be presumed that they were not very mature.

7. Turning to the written report (Ext.1 ) of the informant, it appears that he

has narrated the entire incident as an eye-witness to major part of the allegation.

When his evidence in court is contrasted with the statements made by him in the

written report, it is found that several relevant and material facts were not

disclosed by him in the FIR. If the court has to believe his evidence in court then

the informant when reached near the place of occurrence found her daughter

completely naked and she was queried by him for about half an hour whereafter

they started looking for the appellant who was hiding in the nearby bush and was

actually caught by him and he too was questioned by him for sometime

whereafter he managed to escape but after leaving his shawl near the place of

occurrence.

8. It has been argued on behalf of the defence that the presence of shawl
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of the appellant at or near the place of occurrence may be an incriminating

circumstance against the appellant but the prosecution is precluded from relying

on the same as this incriminating circumstance was not put to the appellant u/s

313 of the Cr. P.C. providing him an opportunity to explain or deny. In the case

of Sharad Birdhichand vs. State of Maharashtra/AIR 1984 SC 1622), the

legal position on this aspect has been clarified when the Apex Court relying on

various judgments on the point in para 142 observed as under:-

“142. Apart from the aforesaid comments there is
one vital defect in some of the circumstances mentioned
above and relied upon by the High Court, viz,
circumstances Nos. 4,5,6,8,9,11,12,13,16 and 17. As these
circumstances were not put to the appellant in his
statement under section 313 of the Criminal Procedure
Code they must be completely excluded from
consideration because the appellant did not have any
chance to explain them. This has been consistently held by
this Court as far back as 1953 where in the case of Hate
Singh Bhagat Singh v. State of Madhya Bharat AIR 1953
SC 468 this Court held that any circumstance in respect
of which an accused was not examined under section 342
of the Criminal Procedure Code cannot be used against
him. Ever since this decision, there is a catena of
authorities of this Court uniformly taking the view that
unless the circumstance appearing against an accused is
put to him in his examination under section 342 or
section 313 of the Criminal procedure Code, the same
cannot be used against him.”

9. We have carefully examined the statements of the accused-appellant

recorded under section 313 Cr. P.C. The recovery of the shawl (woolen cover)

belonging to the appellant at or near the place of occurrence seized under Ext.2
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as an incriminating circumstance appearing on record against the appellant was

not put to him enabling the accused-appellant to deny and/or explain. In the

circumstances discussed above, we shall exclude from our consideration Ext.2 as

a circumstance incriminating the appellant in the crime. P.Ws. 6, 7 and 9,

although tendered and permitted to be cross-examined but they have spoken

about the strong rumour afloat in the village that the victim and the appellant

were romantically involved since last two-three years and wanted to marry each

other which was not being heeded to by the informant and his family members.

10. Having outlined the background in which the incident occurred, we

shall evaluate the three relevant witnesses, namely, PWs 1,2 and 3 (victim) who

have spoken about the occurrence and the involvement of the appellant. As

noticed above, the victim was accompanying her father when the written report

was lodged by P.W. 1 alleging that while the victim was sleeping alone in a

separate room, the appellant intruded into the room at the dead of night, shut her

mouth by stuffing a gamcha(scarf) into it, lifted her and took to the close

by/nearby tree which is very adjacent to the courtyard where she was dumped.

Her clothes were torn and put aside and rape was committed on her. After the

commission of rape, the victim managed to take out the scarf stuffed into her

mouth and raised an alarm for few minutes whereafter the appellant fled away

from the place of occurrence by scaling over the wall of the courtyard of Sadhu

Yadav which was seen by his wife (P.W.2). From his cross-examination, it is

explicit that he had reached the place of occurrence only after the rape was

committed on the victim and an alarm was raised by the victim. P.W. 2 is the

wife of P.W.1 (mother of the victim). In her examination-in-chief, she has stated

that only after hearing the alarm of her daughter, she and her husband awoke and

thereafter they went to the victim near the tree. She could see the appellant
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hiding in the nearby bush. The victim narrated to them the horrific incident and

in the meanwhile the appellant took to his heels by scaling over the wall of the

neighbour. Her evidence apparently runs contrary to the evidence of P.W. 1 in

many ways. P.W. 1, in his examination-in-chief, has projected himself as an eye-

witness to the entire sequence of events/storyline. He has also stated about the

questioning of the victim for several minutes and thereafter catching hold of the

appellant and again questioning him for few minutes when he managed to

escape. What was the physical condition of the appellant was disclosed by him

which has not been stated by P.W. 2. In para 3 of her cross examination, P.W. 2

has admitted that on hearing the alarm she along with P.W. 1 awoke and rushed to

the victim who was standing and after 4-5 minutes of their stay there they took

the victim inside the room and remained there till morning when they all went

to the police station where her husband presented the written report.

11. Turning to the evidence of P.W. 3(victim) it is seen that in her

examination-in-chief she has narrated the incident as spelt out by her father. On

seeing her completely naked, her mother (P.W.2) started weeping. She was

queried by them when she disclosed the entire incident befallen on her. They took

her inside the room. Few minutes thereafter the appellant, who was hiding in the

nearby bush, fled away by scaling over the wall of the neighbour. Her mother had

noticed the appellant scaling over the wall. She has presented her torn clothes she

was wearing at the time of the occurrence. On such presentation, the same was

admitted in evidence as material Ext.1. She, however, admitted that she knew the

appellant from before. What has further come in the evidence of the victim

(P.W.3) is that the appellant, being a co-villager, had lived in Mumbai for some

years and had returned back to the village. What strikes us is non-mentioning of

some relevant facts by her which have been spoken by her father. These are
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material facts considering the nature of the crime. Non-disclosure thereof in the

written report shakes the credibility of the FIR. If any credence is to be given to

the evidence of P.W. 3(victim), then as per her statements at para 8 stiff

resistance was offered by her for about one or two minutes before the appellant

could stuff her mouth by a Gamcha (scarf) inside the room and she was lifted by

the appellant in his arms and taken to the nearby tree where she was dumped on

the ground, her clothes were torn and removed and rape was committed. In para

11 she has admitted that she knew Sunil Paswan since her childhood and that he

was the resident of the same village. A suggestion was put to her by the defence

that they were well acquainted from before which, however, she denied. In para

12 she has stated that the victim and the appellant belong to two different castes.

She has also denied the suggestion that the appellant had offered to marry her

which was spurned/rejected by her father and that in order to put undue

pressure on the appellant the case was lodged. Surprisingly, no one from the

village or neighbourhood has been produced to support any part of the allegation.

As noted above, the independent witnesses P.Ws. 6,7 and 9, although produced,

but the prosecution got them tendered. The Court can reasonably presume that

had they been permitted to be examined they could have narrated the case

going adverse to the prosecution case.

12. Having noticed and highlighted the incoherent parts of the prosecution

case, we advert to the evidence of the doctor (P.W.4) who examined the victim

the same day at about 2.50 P.M. On physical examination of her body, the

doctor found her a well-grown girl aged about 17 to 18 years. She did not find any

injury or mark of violence on her body and even on her private parts. The victim

had the menstrual cycle/period some 12-13 days back. Vaginal swab was taken

for pathological examination and on the basis of the pathological report she has
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opined that the same did not show the presence of spermatozoa either dead or

alive. In her cross-examination, she has candidly stated that on the basis of the

examination(s) made by her of the victim she could not find any shred of mark of

violence on her private parts or any sign of commission of rape. We have noted

from the evidence of P.W.3 that she had offered resistance before being

subjected to rape and further that she was made complete nude when the

appellant satiated his sexual appetite by ravishing her. Modi in his text titled

„Modi‟s Medical Jurisprudence and Toxicology‟ (twenty-third Edition) dealing

with such circumstance observed as under (at page 926):-

“Medical experts opine that it is very difficult for any
person to single-handedly rape a grown-up and
experienced woman without meeting the stiffest possible
resistance from her. If a girl had struggled and put up
resistance at the time when she was raped, she would have
received some injuries on her buttocks, hips, back, elbow
and thigh. Medical evidence is valuable for proving the
presence or absence of marks of struggle. The presence of
marks of struggle on the body and clothes, and marks of
injury on the person, particularly the private part, should
be evidence supporting the allegation of rape. When rape
is denied, one looks for corroborative evidence of rape in
medical evidence showing injury to the private parts of
the victim, injury to the other parts of her body which may
have been caused in resistance, seminal strains on her
clothes or the clothes of the accused or on the places
where the offence is alleged to have been committed.”

13. The medical report (Ext.3) and the testimony of the doctor (P.W.4)

provide to court the circumstance which corroborates the prosecution case but

we find that they categorically disprove the commission of rape on the victim or
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even subjecting her to physical violence. Although, the evidence of the rape

victim is of intrinsic value but if the court entertains/casts doubt on the veracity

or probability on the narration of the prosecution case it is always prudent for

the court to look for some corroboration. For this purpose, we have minutely

examined the injury report (Ext.3) and the entire deposition of the doctor

P.W.4). If the victim had offered resistance, both at the time of her being lifted

from inside the room and at the time of commission of rape when she was made

naked, some sign of violence or struggle on her body, in all likelihood, should

be there. We are mindful of the fact already delineated above that both of

them were young persons having fascination for each other. They were bubbling

with the aspirations of youthfulness. The defence of the appellant is also that

both of them were having love affairs and wanted to marry each other, but the

parents of the victim were not agreeable. In order to put pressure and

distract/discourage the appellant, he was framed falsely in the case. Surprisingly,

the doctor found no such mark of violence on her body as well as on her private

parts. The injury report completely negates the possibility of the victim

subjected to rape.

14. In the light of the discussions of the relevant evidence(s) manifesting

from the record, we entertain/cast serious doubt on the prosecution case as

disclosed in the written report lodged by the father of the victim. Whatever

happened on the date of occurrence may be a consensual one which was obliquely

painted/portrayed as a case of rape by her father. Why the informant withheld

the victim from lodging the Fardbayan and instead a written report depicting

himself as an eye witness to the entire occurrence was filed? Why the statement

of the victim was not recorded u/s 164 Cr. P.C. which normally is done in such

case? Why no witness from the adjoining houses was presented to support at
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least the fact that an alarm was raised by the victim for about one to two

minutes and that the tussle between P.W. 1 and the appellant was seen which

continued for sometime outside the house when the appellant managed to escape.

At least three independent witnesses to depose on the circumstance

corroborating the prosecution case were chosen and produced by the prosecution

but they all were tendered. The Court can reasonably presume that had they been

examined, the narration of the case by them would have completely discredited

the prosecution case. These are the questions surrounding the prosecution case

which have not been satisfactorily answered/explained by the prosecution.

15. For the forgoing reasons, the Court is unable to accept the prosecution

case duly proved at the trial. The appeal is allowed. The judgment of conviction

and order of sentence dated 5th and 6th February, 2013, respectively, passed in

S.T.No. 502 of 2012 against the appellant are set aside and appeal is allowed. The

appellant Sunil Paswan shall be set at liberty forthwith, if not wanted in any other

case.

(Kishore Kumar Mandal, J)

I agree (Sanjay Kumar, J)
HR/-

AFR/NAFR NAFR
CAV DATE 10.05.17
Uploading Date 18.05.17
Transmission 18.05.17
Date