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Dabloo Singh vs The State Of Bihar on 11 October, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.122 of 2013
Arising Out of PS. Case No.-54 Year-2007 Thana- BARAHIYA District- Lakhisarai

Dabloo Singh S/o Late Cheno Singh Resident of Village Pratappur, P.S
Barahiya, District- Lakhisarai.

… … Appellant/s
Versus
The State of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Mr. Pankaj Kumar Sinha
Mr. Rabi Bhushan
Ms. Rakhi Kumari
For the Respondent/s : Ms. Abha Singh (App)

CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT
Date : 11-10-2018

Heard learned counsel for the appellant and learned

APP for the State on this Criminal Appeal.

2. This criminal appeal has been preferred against

the judgment and order of conviction dated 31.01.2013 and

order of sentence dated 05.02.2013 passed by learned

Additional Sessions Judge, Lakhisarai in Sessions Trial no. 08

of 2008 arising out of Barahiya P.S. Case No. 54 of 2007

whereby the learned trial court convicted the accused Dabloo

Singh for the offence punishable under Sections 376 of the

Indian Penal Code and sentenced him to undergo R.I. for seven

years and also slapped him with a fine of Rs. 10,000/- and in

default of payment of fine to further undergo R.I. for one year
Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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under the aforesaid Section.

3. The factual matrix of the case is that Barahiya

P.S. Case No. 54 of 2007 was instituted under Section 376 of the

Indian Penal Code against accused Dabloo Singh on the basis of

statement of Pardesi Das S/o Late Harkhit Das recorded on the

P.S. Barahiya on 12.03.2007 at 03:30 PM with the allegation, in

succinct that in the morning of 12.03.2007, he along with his

wife Anar Devi and daughters, namely, Vina Kumari aged about

10 years and Kajal Kumari aged about 8 years had gone to the

field of Lago Singh to harvest Khesari crop. At around 1:00 PM,

he asked his daughters to go to the house and fetch potable

water as there was no arrangement of water there. In the

meantime, Pankaj Das and Pravin Das arrived at him and

informed about committing of some occurrence against his

daughter in the hump located at 30-40 yards of his house. On

the said information, he along with his wife rushed to his house,

on the way, he learnt that his daughter Vina Kumari was lying

senseless in the field of Niranjan Singh and wife of Company

Paswan took her to his house. Then he and his wife arrived at

his house and grilled Vina. On grilling, she divulged that when

she had gone outside of her house in search of her sister Kajal

after keeping firewood at her house, Dabloo Singh met her near
Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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the wheat filed of Niranjan Singh and he dragged her inside the

wheat field forcibly and gagging her mouth shoved her on the

ground, striped off her salvar and committed rape against her.

He also inflicted injury on her cheek. by means of nail and

pressed her neck. There was stain of blood and semen on the

frock and salvar of his daughter. After committing rape, Dabloo

Singh made good his escape and his daughter fell senseless,

who was taken to his house by the wife of Company Paswan.

4. The aforesaid case was investigated by the police

and on conclusion of the investigation, I.O. submitted charge-

sheet under Section 376 of the Indian Penal Code against the

accused Dabloo Singh.

5. On receiving the charge-sheet and the case diary

and perusing the same, the learned Magistrate took cognizance

of the offence and committed the case to the court of sessions

and after commitment and on transfer finally the case came in

seisin of the learned Additional Sessions Judge, Lakhisarai for

trial.

6. Charge against accused Dabloo Singh was

framed under Section 376 of the Indian Penal Code. Charge was

read over and explained to the accused by the court to which he

pleaded not guilty and claimed to be tried.

Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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7. To substantiate its case, in ocular evidence, the

prosecution has examined altogether six prosecution witnesses

namely, Anarwa Devi as PW-1, Mogel Yadav as PW-2, victim

Vina Devi as PW-3, Raj Muni Devi as PW- 4, informant Pardesi

Das as PW-5, and Sidheswar Das as PW-6. Out of the aforesaid

witnesses, PW-2 happens to be formal witness, who has proved

the formal FIR. One more witness, namely, Dr. Rajkishori

Singh, who had examined the victim, has been examined by the

court as CW-1.

8. The statement of the accused was recorded under

Section 313 of the Code of Criminal procedure. The case of the

defence is complete denial of the occurrence. The accused has

neither adduced any ocular nor documentary evidence in

buttress of his case.

9. After hearing the parties and perusing the record,

the learned trial court passed the impugned judgment and order

of conviction and sentence as detailed in the earlier paragraph.

10. Being aggrieved and dissatisfied with the

aforesaid judgment and order of conviction and sentence, the

convict has preferred the present Criminal Appeal.

11. The point for consideration in this case is, as to

whether the prosecution has been able to bring home the charge
Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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levelled against the appellant beyond all reasonable doubts or

not.

12. It is submitted by learned counsel for the

appellant that the informant does not happen to be eye witness

of the occurrence. Likewise, other witnesses examined by the

prosecution barring the victim, also do not happen to be eye

witness of the occurrence as they had not witnessed the

occurrence of committing rape against the victim by the

appellant. It is further submitted that doctor, who had examined

the victim, has not found any internal or external injury on her

person or any sign of rape allegedly committed against her.

Thus, the prosecution has utterly and miserably failed to

substantiate the prosecution case against the appellant beyond

all reasonable doubt by adducing trustworthy, convincing and

reliable evidence. Hence, the impugned judgment and order of

conviction and sentence passed against the appellant by the

learned trail court is liable to be set aside and the appellant is

entitled to be acquitted.

13. On the other hand, learned APP advocating the

correctness and validity of the impugned judgment and order of

conviction and sentence submitted that the prosecutrix has

supported the prosecution case intoto and other witnesses have
Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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also corroborated the factum of finding the victim senseless,

stain of blood and semen on her attire and divulgence of the

occurrence by the victim to them. Doctor has also found hymen

of the victim ruptured and the learned trial court correctly

appreciating the facts and evidence on record has rightly passed

the impugned judgment and order of conviction and sentence

which is liable to be upheld and this appeal is shorn of merit and

is liable to be dismissed.

14. From perusal of record, it appears that to substantiate

its case, prosecution has examined altogether five material

witnesses in the case, namely, PW-1 Anarwa Devi, PW-3 victim

Vina Devi, PW-4 Raj Muni Devi, PW-5 Pardesi Das and PW-6

Sidheswar Das. From perusal of testimony of PW-1, PW-4,

PW-5 and PW-6, it appears that they do not happen to be eye

witness of the occurrence of committing rape against the victim

by the appellant as they had not seen the aforesaid occurrence.

But, from perusal of testimony of PW-1 Anarwa Devi, who

happens to be mother of the victim, it appears that she has stated

that on information of occurrence against her daughter, when

she arrived at her house, she found her daughter upset. There

was scratches and blood stain on her cheek. Her daughter

divulged her inter alia that Dabloo Singh took her in the wheat
Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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field and shoving her in the field committed rape against her.

PW-4 Raj Muni Devi has stated in her examination-in-chief that

she had found Vina Devi senseless in the wheat field. There

was blood stain on her frock and trouser, while she started

lifting her, she divulged her occurrence of committing rape

against her by Dabloo Singh. PW-5 informant Pardesi Das has

stated in his examination-in-chief that at the time of occurrence,

he sent his daughters Kajol and Vina taking firewood to fetch

water from the house, but as Kajal was left behind, Vina started

making search of her and in the course of search, Dabloo Singh

took her in the wheat field of Niranjan Singh gagging her mouth

and shoved her in the field and after stripping off her salvar

committed rape against her, resultantly, Vina fell senseless and

then Dabloo Singh made good his escape. Raj Muni Devi took

Vina to his house in the state of senseless and on regaining

sense, Vina divulged him the entire occurrence of committing

rape against her by the appellant in the wheat field of Niranjan

Singh. He has also stated that her nose and mouth was bleeding

and there was stain of blood on her pant. PW-6 Sidheswar Das

has stated in his examination -in-chief that he also arrived at the

house of the informant and found Vina Kumari weeping. On

grilling, the wife of Company Singh divulged him about
Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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occurrence of committing rape against Vina by Dabloo Singh.

Vina was also taking the name of Dabloo Singh.

15. From perusal of testimony of the aforesaid

witnesses, it appears that barring PW-6, all the aforesaid

witnesses have stated about divulgence of the occurrence of

committing rape against the victim by the appellant in the wheat

field of Niranjan Singh by the victim to them. Victim PW-3

Vina Devi has stated in paragraph 6 of her examination-in-chief

that she had divulged the occurrence of committing rape against

her to the wife of Company Paswan, her mother and her father.

Thus, the aforesaid statement of PW-1, PW-4 PW-5 about

divulgence of occurrence of committing rape against her by the

appellant in the wheat field of Niranjan Singh by the victim

stands corroborated by the victim.

16. Victim PW-3 Vina Devi in her examination-in-

chief has stated that on the date of occurrence, she, her parents

and her sister Kajal had gone to harvest Khesari crop. Her

parents at around 01:00 PM, asked her to take the firewood to

house and fetch the water from the house, then she and Kajal

rushed to the house taking firewood to fetch the water. But as

Kajal did not arrive at the house, she stepped out of her house in

search of Kajal, but in vain and while she was regressing to the
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house, on the way, Dabloo Singh met her. He caught her hold

and shoved her in the wheat field of Jogo Singh and after

stripping off her salvar committed rape against her and made

good his escape. After the occurrence of rape, she was lying in

the field. In the meantime, wife of Company Paswan arrived

there and took her to her house. In paragraph 9 of her cross-

examination, she has further stated that the accused had pierced

his nail on her cheek and neck. She was subjected to lengthy

cross-examination, but from perusal of the cross-examination of

the victim, I find that nothing convincing and cogent has been

elicited in her cross-examination having potential to rule out and

create doubt about the sanctity of the aforesaid testimony of the

victim. Thus, the aforesaid testimony of the victim appears to

be unblemished and wholly reliable.

17. The victim (PW-3) has stated in paragraph 6 of

her examination-in-chef that her salvar was stained with blood

in the course of occurrence of rape and PW-4 and PW-5 have

also found the blood stain on the attire of the victim. From

perusal of record, it appears that the attire of the victim was sent

to the F.S.L. for its chemical examination. F.S.L. report is on

record, but the same has not been got exhibited by the

prosecution. Hence, for want of exhibition, the aforesaid F.S.L.
Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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report cannot be looked into and considered as the defence has

been deprived of the opportunity of making cross -examination

on the aforesaid report. But despite of that, victim and other

witnesses have unanimously stated about finding of blood stain

on the attire of the victim.

18. From perusal of medical evidence, it appears

that the victim was examined by the Dr. Rajkishori Singh after

24 hours of the occurrence. Though, doctor has not found any

internal or external injury on the person of the victim and no

evidence of rape, but has found her hymen ruptured and has

opined that intercourse cannot be ruled out. Thus, in my

considered opinion, the aforesaid ocular evidence also stands

corroborated by the medical evidence. Though, doctor has not

found any blood stain or semen on the person of the victim, but

as the victim was examined after 24 hours of the occurrence, in

the meantime, she might have done urination several times and

washed her face, so the possibility of finding the blood stain or

semen on the person of the victim appears to be very bleak and

not finding of any blood stain or semen on the person of the

victim by the doctor examining the victim after 24 hours of

occurrence, in my considered opinion, is not going to affect the

merit of the case by any stretch of imagination.

Patna High Court CR. APP (SJ) No.122 of 2013 dt.11-10-2018
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19. In the facts and circumstances of the case, I

find and hold that the prosecution has succeeded to bring home

the charge leveled against the appellant under Section 376 of

I.P.C. beyond all reasonable doubt by adducing consistent,

trustworthy and reliable ocular and medical evidence. Hence,

the impugned judgment and order of conviction and sentence

passed by the learned trial court does not warrant any

interference by this Court and is upheld. Accordingly, this

appeal is dismissed. As the appellant is on bail, his bail bond is

cancelled and is directed to be taken into custody forthwith.

(Prakash Chandra Jaiswal, J)
rohit/-

AFR/NAFR N.A.F.R.
CAV DATE N.A.
Uploading Date 14.10.2018
Transmission Date 14.10.2018

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