IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.566 of 2012
Arising Out of PS.Case No. -1 Year- 2010 Thana -null District- SASARAM (ROHTAS)

Kanhaiya Kumar @ Kanhaiya Soni, son of Sri Bhagwan Seth, resident of Vill-
Mirjapur Bhadokhara, P.S.-Tilauthu, Distt-Rohtas

…. …. Appellant
Versus
The State of Bihar

…. …. Respondent

Appearance :

For the Appellant/s : Mr. Praveen Kumar, Advocate (amicus curiae)
For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date: 25-04-2017

This appeal is directed against the judgment dated

23.5.2012 and order dated 25.5.2012 passed by Sri Sajal Mandilwar,

1st Additional Sessions Judge, Rohtas at Sasaram, in Sessions Trial

No. 127 of 2010, arising out of G.R.No. 01 of 2010, Rohtas P.S.Case

No. 01 of 2010, by which the sole appellant has been convicted under

Section 376 of the Indian Penal Code and sentenced him to undergo

rigorous imprisonment for ten years and a fine of Rs.20,000/-, in

default of payment of fine, appellant was further sentenced to undergo

imprisonment for two years.

2. The prosecution case, in short, is that a written report

was filed by Ainul Haque (P.W.6) before the Officer-in-Charge of

Rohtas Police Station stating, inter alia, therein that on 2.1.2010 at

about 3 P.M. his daughter was playing outside the house and after

some time she was not there and later on his wife started searching her

and then she heard the weeping of her daughter from the Baithaka of
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Mohan Soni, situated in front of door of the informant and thereafter

she went there and knocked the door and when the door was not

opened she along with others tried to open the door but it was not

opened as the door was closed from inside and thereafter she along

with others went inside the room through narrow way and found the

appellant committing rape on her daughter and also saw her daughter

naked and the appellant after opening his pant was trying to penetrate

his penis into the private part of her daughter. Thereafter the

informant and others caught hold the appellant and pulled him out and

separated him from her daughter. It is also prosecution case that the

appellant was brought outside the room and thereafter he was taken to

police station.

3. On the basis of aforesaid written report Rohtas

P.S.Case No. 01 of 2010 was instituted against the sole appellant

under Section 376 IPC and after investigation police submitted

charge-sheet against the sole appellant under the above section,

accordingly, cognizance was taken up. Thereafter the case was

committed to the court of sessions for trial and disposal, which

ultimately came to the file of Sri Sajal Mandilwar, 1st Additional

Sessions Judge, Rohtas.

4. During trial, charge has been framed against the

appellant under Section 376 IPC and after trial the appellant was

convicted under Section 376 IPC and sentenced as stated above.

5. Being aggrieved by the aforesaid judgment and order,
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the present appeal has been filed on behalf of the appellant.

6. Learned counsel for the appellant has submitted that

appellant has falsely been implicated as except father and mother of

the so-called victim none has come forward to support the prosecution

case though a large number of witnesses have been examined and they

have been declared hostile by the prosecution. It is also submitted that

there is vital contradiction in the evidences of P.W.5 and P.W.6, who

are father and mother of the victim and apart from that the evidence of

Doctor clearly rules out the case under Section 376 IPC as he has

clearly stated in his cross examination that no case is made out under

Section 376 IPC. Hence, the conviction of the appellant is not

maintainable.

7. On the other hand, learned APP has submitted that it is

a case under Section 376(2)(f) of the IPC as offence of rape has been

committed upon a three and a half years minor girl of the informant

(P.W.6), and P.Ws. 5 and 6 both have supported the prosecution case,

which is also corroborated by the evidence of Doctor (P.W.8). In the

facts and circumstances of the case, it is argued that the conviction

and sentence of the appellant are quite sustainable, which does not

require any interference by this Court.

8. In this case, altogether 8 witnesses have been examined

and they are Altaf Hussain (P.W.1), Khalil Hazam (P.W.2), Mannan

Khan (P.W.3), Gulam Mustafa (P.W.4), Ajmeri Bibi, wife of

informant (P.W.5), Ainul Haque, informant (P.W.6), Ayodhi Paswan,
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Investigating Officer (P.W.7) and Dr.Bhagwan Singh (P.W.8), out of

which P.Ws. 1 to 4 have been declared hostile by the prosecution and

attention has been drawn towards their statements before the police.

So far P.W.5 is concerned, she happens to be mother of the victim and

P.W.6 happens to be father of the victim. P.W.7 is the Investigating

Officer and P.W.8 is the Doctor, who was one of the members of

Medical Board, had examined the victim.

9. P.W.6 is the informant in this case and he has

supported the prosecution case about commission of rape by the

appellant to his minor girl apart from some minor discrepancy in his

evidence in chief. He has further stated that he has filed a written

report to the Darogaji and he has proved the signature on the written

report as Ext.1. Further he has stated that he had given the

undergarments of the girl to the Darogaji which have been sent for

medical examination. He has further proved the signature on the

seizure list and the signatures of seizure list witnesses as Exts.1/1, ½

and 1/3 respectively. This witness has also been cross examined and

in his cross examination he has stated in paragraph-9 that he went

inside the room alone and he has further stated that there were two

doors in the room. His evidence further discloses that in Janani Kita,

Mohan Soni along with family members were residing but there was

no door inside the room. His evidence also discloses that he had not

seen any of the family members of Mohan Soni present at that time.

In his cross examination in paragraph-2 he further stated that he went
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inside the room and saw the appellant committing rape and there was

no cloth on the body of the victim and there was no cloth on the body

of the appellant except shirt and thereafter he had brought him outside

the room and at that time he was provided clothes and at the same

time the victim was taken out of the room. In his cross examination,

there is nothing to doubt about his credibility.

10. P.W.5 is the mother of the victim and wife of the

informant and her evidence in chief shows that she heard sound of

weeping of her daughter coming from the Baithaka of Mohan Soni,

she reached at his door and knocked the door but the door was not

opened, then she raised alarm and villagers and her husband came

and got the door opened. It further discloses that they entered inside

the room and she saw appellant committing rape upon her daughter.

Her evidence further shows that her husband took out her daughter

from the room and went to the police station. However, in her cross

examination she has stated in paragraph-3 that when she knocked the

door, she found the crying stopped. Her cross examination further

shows that in that house family members of Mohan Soni, including

son, daughter-in-law and also granddaughter reside there. There are

some discrepancies in her cross examination in paragraph-4 that she

went to Baithaka of Mohan Soni but she has stated that she has not

gone to the Baithaka of Mohan Soni and stated that her daughter was

inside the room and from the darwaja, she heard sound of weeping of

her daughter. Again in paragraph-5 this witness has stated that
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appellant opened the door and thereafter they went inside and her

daughter came crying from the room. This witness has further stated

that her daughter was wearing frock, underwear and pajama and the

boy was wearing pant and sweater.

11. Apart from the aforesaid ocular evidence other

witnesses have been declared hostile by the prosecution, as they have

not supported the prosecution case, though their attention has been

drawn towards the statements made before the police.

12. P.W.8 is the Doctor in this case and he has stated that

on 3.1.2010 at 2.20 P.M. a Medical Team was constituted consisting

of Dr. Jai Shri Chandra, Dr. Bhagwan Singh (himself) and Dr. K.K.P.

Srivastava to examine Afsana Praveen, daughter of Ainul Haque and

she was brought and identified by S.I. Ayodhi Paswan of Rohtas

Police Station. His evidence shows that there is no injury abnormal

stain or foreign particles seen on any part of her body except inflamed

area on private part. He has also stated that hair is inflamed area with

tenderness in lower part of vulva, hymen intact and it was difficult to

introduce tip of little finger in vagina and vaginal swab taken and sent

for microscopic examination to Pathologist Dr. Pandey B.K.Sahai

Sadar Hospital, Sasaram. He has stated that on the basis of medical

examination possibility of attempt to rape cannot be ruled out and

according to opinion of Medical Board, she was about three years of

age. His evidence also shows that no spermatozoa either alive or dead

was found. This witness has also been cross examined and in his cross
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examination he has categorically stated in paragraph-6 that on the

basis of clinical examination and pathological test of the victim there

is no possibility of rape. However, he has further stated in his cross

examination that inflammation on her private part may be caused by

pressure of any type on it. However, since hymen was intact and tip of

little finger cannot be introduced into vagina, so there is no possibility

of rape. He, however, has stated that there is possibility of attempt of

rape.

13. P.W.7 is the Investigating Officer of the case and he

has taken over the investigation of the case and also recorded re-

statement of informant, P.W.6 and he has proved carbon copy of

production-cum-seizure list which was prepared in the same process

as Ext.1/4. Thereafter he has recorded the evidence of different

witnesses. His evidence further shows that he has sent the

undergarments to the Forensic Science Laboratory after obtaining

order of Chief Judicial Magistrate and after the medical report he has

submitted charge-sheet in this case and his attention has been drawn

towards the statements made by the witnesses before him then he

stated that they had supported the occurrence.

14. Considering the discussions made above, it appears

that in the present case prosecutrix has not been examined as she was

aged about three years at the time of occurrence and it cannot be

expected from a girl of three years to explain the occurrence as per the

prosecution version. It further appears that except P.Ws. 5 and 6 all
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other witnesses have been declared hostile as they have not supported

the prosecution case. So far P.W.6 is concerned, there is nothing on

record to discard his evidence both in chief and cross examination.

However, it appears from perusal of the record that though in the FIR

he has stated about the penetration by the appellant inside the private

part of the victim but in his examination in chief he has stated about

attempt of commission of rape only. It further appears from his cross

examination that when he entered inside the room he saw the

appellant lying over the body of victim and his evidence further shows

that both were in naked condition. His evidence also discloses that at

the time of occurrence there was no cloth and undergarments on the

body of victim and when they were takenout of room, they were

provided with clothes. His evidence shows that he is the only an eye-

witness of the occurrence. P.W.5, who is mother of the victim, has

also supported the prosecution version in her evidence in chief.

However, from her cross examination it appears that she is not an eye-

witness but she has stated that when she went inside the room, they

both were in naked condition and then both the victim and appellant

came out and at that time they were provided clothes. From all these,

it can be concluded that appellant carried the victim girl aged about 3

years in the room, removed the undergarments of victim girl and also

became naked. He further tried to ventilate the girl and caught red-

handed.

15. Defence has come with a story of false implication
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due to some dispute but except suggestion given to the witness that

appellant has falsely been implicated, there is nothing on the record

and even in the statement under Section 313 Cr.P.C. the appellant has

not stated any specific defence in this regard. Appellant is a person of

other village and he was the relative-cum-villager of Mohan Soni, in

whose Baithka the alleged occurrence was committed. Even as per

suggestions given to the P.Ws. it has been suggested that there was

dispute in between Mohan Soni and informant (P.W.6) due to tying of

goat and hence appellant being a relative of Mohan Soni has falsely

been implicated. This defence did not inspire confidence and does not

appear to be believable at all. If there was enmity between Mohan

Soni and family members of the informant, why the appellant being

relative of another village will be implicated. Furthermore, defence

has not adduced any evidence to prove the reliability of defence

version.

16. Contention of the defence is that appellant has falsely

been implicated in this case as there is contradiction in the statement

of P.W.5, the mother of the victim, and the evidence of P.W.6, the

informant, as such, the evidence of P.W.6 cannot be believable. His

evidence further discloses that appellant was lying over the body of

victim for five minutes and pressed her body and he got them

separated. Further it has been submitted that the evidence of Doctor

has ruled out any possibility of rape and according to Doctor at best it

is a case of attempt to commit rape.

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17. No doubt, as stated above, there is contradiction in the

statement of P.W.5 and she does not appear to be an eye-witness to

the actual occurrence. So far P.W.6 is concerned, there is categorical

evidence that he saw the appellant lying over the body of victim and

committing rape and he has also stated that appellant was lying over

the body of victim for five minutes and he got them separated. There

are some discrepancies in the statements of both P.W.5 and P.W.6 as

regards occurrence, but they are not sufficient enough to brush aside

the whole prosecution case. Evidence of P.W.6 shows that he caught

hold the appellant and evidence of P.W.5 shows that she saw the

victim and appellant just after the occurrence and thereafter both of

them were taken to police station. Apart from that, the Doctor has

ruled out the possibility of rape on the ground that it was not possible

to enter even tip of little finger inside her private part and he has

found only inflammation on her private part. However, Doctor has

stated that possibility of attempt of rape cannot be ruled out.

18. No doubt, for constituting of offence of commission

of rape it is not necessary that there should be complete penetration of

the penis with emission of semen and rupture of hymen and partial

penetration within the labia majora of the vulva or pudendum with or

without emission of semen is sufficient to constitute the offence of

rape. However, in the present case, prosecutrix being a minor girl

aged about three years has not come forward to depose in this case.

However, P.W.6 has stated about the commission of rape and stated in
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the FIR about the penetration but in his evidence in court he has not

stated about penetration, rather his evidence discloses that both the

appellant and victim were in naked condition at that time and

appellant was lying over the body of victim and the evidence of

Doctor only shows about inflammation on her private part.

19. In this case, appellant was convicted under Section

376 IPC. However, after coming into force the amendment of Section

376, Section 376(2)(f) was introduced by Criminal Law

(Amendment) Act, 1983, which provides for commission of rape on

a woman when she is under twelve years of age, the learned court

below has not considered this aspect of the matter. However,

considering the discussions made above, it appears that at best it is a

case under Sections 376(2)(f)/511 IPC.

20. So far Section 376(2)(f) IPC is concerned, minimum

sentence as provided therein is 10 years imprisonment but in the

present case from the findings made above it appears to be a case

under Section 376(2)(f)/511 IPC. Section 511 IPC reads as follows :

“S. 511.Whoever attempts to commit an offence
punishable by this Code with imprisonment for life or
imprisonment, or to cause such an offence to be
committed, and in such attempt does any act towards
the commission of the offence, shall, where no express
provision is made by this Code for the punishment of
such attempt, be punished with imprisonment of any
description provided for the offence, for a term which
may extend to one-half of the imprisonment for life or,
as the case may be, one-half of the longest term of
imprisonment provided for that offence, or with such
fine as is provided for the offence, or with both.”

21. In the present case, appellant was aged 21 years when
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he was examined under Section 313 Cr.P.C. on 26.4.2012 and further

it appears that last seven years he is facing trial and he is in custody

for about seven years four months and prosecution has not brought on

record any past criminal antecedent of the appellant.

22. Considering the discussions made above and also

considering the young age of the appellant and the fact that he has

remained in custody for about seven years four months, to my

opinion, it would be reasonable and sufficient that conviction of the

appellant be modified under Section 376(2)(f)/511 IPC and his

sentence be modified to the period already undergone. However,

sentence of fine shall remain intact and in default of payment of fine,

he has to undergo further sentence of R.I. for six months.

23. Accordingly, with the modification in the order of

conviction and sentence to the extent indicated above, this appeal is

disposed of.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE 17.04.2017
Uploading Date 26.4.2017
Transmission 26.4.2017
Date