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