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
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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
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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.
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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
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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
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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
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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
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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.
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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.
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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