IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.575 of 2011
Arising Out of PS.Case No. -0 Year- null Thana -null District- MUZAFFARPUR
1. Lakhinder Rai S/O Late Deo Narain Rai R/O Vill-Bardiha, P.S.-Patepur, Distt-
Vaishali
…. …. Appellant/s
Versus
1. The State Of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Sanjay Parasmani, Adv.
For the Respondent/s : Mr. Binod Bihari Singh, APP
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
C.A.V. JUDGMENT
Date: 12-09-2017
This appeal is directed against the judgment dated 30.03.2011
and order of sentence dated 05.04.2011 passed by Sri Ram Daras,
Additional Sessions Judge, Fast Track Court No. -3, Muzaffarpur, in
Session Trial No. 56 of 2010, by which he has convicted the appellant
under section 376 of the Indian Penal Code and sentenced him to
undergo rigorous imprisonment for ten years with a fine of Rs. 5,000
and in default of the payment of fine, further imprisonment of one
year.
Brief facts necessary for adjudication of the present appeal are
that the informant Asha Kumari (P.W. 2), filed her written
information before the Brhampura police station stating that she was a
student of class -IX and was living with her father, mother and
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-2-
brother in the campus of M.I.T and her father was posted as peon in
the said M.I.T and her mother was working as nurse in Kejriwal
Hospital. She further alleged that whenever her mother and brother
were not on home, her father used to molest her. It has also been
alleged that five months ago, when her mother was on night duty in
the hospital, her father – appellant, forcibly raped her and when her
mother came back in the next morning, she narrated whole incident to
her mother and on insistence of her mother, appellant apologized to
her and the matter was kept secret as the prestige of family was
involved. It has also been alleged that thereafter, the appellant started
torturing both mother and daughter and continued to molest her.
On the basis of aforesaid written statement, Brahmpura P.S.
Case No. 120 of 2009 was registered against the appellant under
Section 376 of the Indian Penal Code and the police after
investigation submitted charge -sheet against the appellant under
Section 376 and 511 of the Indian Penal Code. Cognizance of the
offence was taken and, thereafter, the case was committed to the court
of sessions, which ultimately traveled to the file of learned Sri Ram
Daras, Additional Sessions Judge, Fast Track Court No. -3,
Muzaffarpur, for trial and disposal.
Charges were earlier framed under Section 376 and 511 of
Indian Penal Code against the appellant, however, later on fresh
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-3-
charge has been framed under Section 376 of the Indian Penal Code.
In this case altogether five witnesses have been examined from
the side of the prosecution and they are: P.W. 1- Indu Devi (mother of
the victim), P.W. 2- Asha Kumari (victim girl), P.W. 3- Raj Kishore
Rai (maternal grand father of victim girl), P.W. 4- Manju Singh
(Investigating Officer) and P.W. 5 – Dr. Suman Prasad (doctor who
conducted examination on the victim girl).
Apart from the above, following documents have been admitted
into evidence and marked as ; Ext. 1 – Signature P.W. 1 (Indu Devi)
on written information, Ext. 2- Signature of victim Pooja Kumari on
the written information, Ext. 3- Charge-sheet, Ext. 4 -Medical report
of victim girl.
From the defence side also four witnesses have been examined
and they are;- D.W. -1, Dilip Kumar, D.W. -2, Shivendra Rai, D.W. 3
– Ratan Kumar.
It appears from the suggestion given to the witnesses and his
statement under Section 313 Cr.P.C, the defence of the appellant is of
false implication and complete denial of the alleged occurrence and of
innocence.
Learned Trial Court after conclusion of trial convicted the
appellant under Section 376 and sentenced him as stated above.
Aggrieved by the said judgment, the appellant preferred the
present appeal.
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-4-
Learned counsel for the appellant has challenged the impugned
judgment and has submitted that the judgment of Trial Court
convicting the appellant under Section 376 of Indian Penal Code,
suffers from serious infirmities, as in this case, there is delay of five
months in lodging the F.I.R, and no satisfactory explanation for the
delay has been offered by the prosecution side. It has also been
submitted by learned counsel for the appellant that the appellant has
falsely been implicated in this case at the instance of his own wife, as
he did not had good terms with his wife as the appellant used to
restrict her free movement with other persons, which was not
acceptable to her and further a day before the registration of the F.I.R,
there was a quarrel between the husband and wife, which has
prompted her to instigate her daughter to file this present false case. It
has also been submitted that as per the evidence of P.W. 1 -, in para 6
and 7, they used to live in a hut and on the alleged date of occurrence,
P.W. 2 (victim girl) and her brother were present at home and were
sleeping on the same cot and P.W. 2 has been raped by the appellant
but surprisingly, the brother, who was present and sleeping on the
same cot, was not examined, which casts a serious doubt on the
prosecution story coupled with the fact that the medical report does
not support the allegation of rape. It has also been submitted that the
prosecution evidence that on the alleged date of occurrence, P.W. 1
(mother of the victim) was not present at home as she was on night
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-5-
duty, appears to be quite doubtful as the evidence of D.W. 3, (the
person, who used to maintain the attendance of nurses of Kejriwal
Hospital) clearly shows that P.W. 1, was on leave from 14.04.2009 to
11.05.2009 and the learned Trial Court without considering all these
vital facts has convicted the appellant under Section 376 of the Indian
Penal Code, which is not sustainable in the eye of law.
On the other hand, learned counsel for the State has submitted
that there are sufficient materials available on record, showing that the
appellant has committed rape on P.W. 2 -(prosecutrix). It has also
been submitted that though in the medical report, no sign of rape has
been found, however, this fact cannot be ignored that the victim girl
was examined in this case after a lapse of more than five months as
such if no sign of rape or injury was found, there is nothing abnormal
in it. It has also been argued that it is now well settled that conviction
under Section 376 Indian Penal Code can be based only on the sole
testimony of prosecutrix even in absence of corroboration of medical
evidence and in this case P.W. 2 (prosecutrix) has stated about
commission of rape by appellant and in spite of her cross-
examination, there is nothing to doubt about the genuineness of her
evidence. It has further been argued that the victim girl is a student of
IX th class and no girl would make such false allegation against her
own father and would ruin her and her family’s prestige. Further so
far delay in lodging the F.I.R is concerned, the same has sufficiently
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-6-
been explained as the appellant had apologized for the said incident
and considering the prestige of family, the matter was kept secret,
however, when appellant continued molesting her (P.W.2), they were
left with no option but to report the matter to police. Hence, on the
basis of the above submission, it has been argued by learned counsel
for the State that the impugned judgment convicting the appellant
under Section 376 of the Indian Penal Code is just and proper and the
same does not require any interference.
In view of the submission of parties, this court finds it
necessary to examine the evidences available on behalf of both sides.
P.W. 1, is the mother of P.W. 2 (victim girl) and she has stated
in her evidence that she was working as a nurse in Kejriwal Hospital
and on the date of occurrence i.e. on 22.04.2009, she was on night
duty in the hospital and when she came back in the next morning,
P.W. -2 informed her that father has committed rape on her. Her
evidence further shows that when she asked the appellant about the
incident, he accepted the same and apologized for the incident and,
thereafter, the matter was resolved but since the appellant continued to
molest P.W. -2, then they found no option but to report the matter to
police. Further in her cross-examination in para -5, she has stated that
she does not know the date of occurrence but again stated that rape
was committed on 22.04.2009. Her cross-examination, in para -7 also
shows that on the date of occurrence, her son and P.W. – 2 (victim
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-7-
girl) was present at home and they both were sleeping on the same
cot, when appellant committed rape on P.W. 2. Further in her re-cross
examination, she has stated that on the date of alleged occurrence, she
has prepared food for her family and had not gone on duty, after
serving food to her family members.
P.W. 2, is the victim girl and she in her evidence has stated that
on the alleged date of occurrence at 9.30 P.M., she was sleeping in her
house and her mother had gone to her duty to Kejriwal Hospital, then
her father – appellant, committed rape on her. Her evidence shows
that the next morning when her mother came to house, she narrated
whole incident. Her evidence also shows that on being asked by the
mother, appellant accepted his guilt and apologized for the same and
on promise of the appellant that he would not repeat such incident, ,
the matter was kept secret, considering the prestige of family in the
society. Her evidence further shows that in spite of the promise made
by the appellant, he continued to molest her and on protest by mother,
he used to beat her and when left with no other option filed the
present case against him.
P.W. 3 is the maternal grand father of the victim girl – P.W. 2
and he has supported the prosecution story with regard to commission
of rape on P.W. 2, by the appellant and except that there is nothing
important in his evidence.
P.W. 4 is the investigating officer of this case and she has stated
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-8-
in her evidence that she had registered an F.I.R on the written
application filed by P.W. 2 and recorded the statement of P.W. -2 and
apprehended the appellant and got the victim girl medically examined.
P.W. 5. is Doctor Suman Prasad, who examined P.W. 2 and her
evidence shows that Hymen of the girl was found intact and no
foreign particles on her private part was found. Further no injury was
found on the victim girl. Her evidence further shows that vaginal
smear and slide was taken and sent for microscopical examination for
presence of spermatozoa. Her evidence further shows that in
pathological report, no spermatozoa was found. In her cross –
examination, this witness has stated usually during sexual
intercourse, hymen got ruptured.
On behalf of defence, oral evidence has been adduced and one
Dilip Kumar, D.W. 1 has stated in his evidence that on 21.09.2009 a
day before the registration of F.I.R, there was a quarrel between P.W.
1, and the appellant and P.W. 1 has threatened her that he would
implicate the appellant in false case and, thereafter, he came to know
that a case has been filed against the appellant.
D.W. 2 in his evidence has also stated that the relationship
between the P.W. 2 and the appellant was not good and on 21.09.2009
a scuffle had taken place between them and P.W. 1 had threatened the
appellant that she would put him behind the bars.
D.W. 3 was an employee of Kejriwal Hospital, who used to
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
-9-
look after the attendance of nurses and he has stated in his evidence
that during the period from 14.04.2009 to 11.05.2009, P.W. 1 – Indu
Devi was absent from the duty.
As discussed above, learned counsel for the appellant has
assailed the judgment vehemently on the ground that in this case,
there is delay of five months as the occurrence is of the month of
April 2009, whereas the F.I.R was lodged in the month of September
2009, for which no satisfactory explanation has been offered and on
this score alone, the whole prosecution story appears to be absurd,
improbable and not free from reasonable doubt.
No doubt, delay in lodging F.I.R, gives a chance of
manipulation and false implication, which goes to create doubt about
the veracity of prosecution story but in a case of sexual offence, it has
been held by Hon’ble Apex in a catena of decisions that in the cases
of sexual offence, delay in lodging the F.I.R, is not material, when the
same is properly explained. Further the Hon’ble Supreme Court in the
case of State of Punjab v. Gurmit Singh and Others reported in
[AIR 1996 SC 1393] has held that ” the courts cannot overlook
the fact that in sexual ofences delay in the lodging of the F.I.R.
can be due to variety of reasons particularly the reluctance of the
prosecutrix or her family members to go to the police and
complain about the incident which concerns the reputation of the
prosecutrix ad the honour of the family. It is only after giving it a
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
– 10 –
cool though that a complaint of sexual offence is generally
lodged”.
In the present case also, the informant/prosecutrix is the
daughter of the appellant and P.W. 2 – prosecutrix as well as P.W. 1,
mother of the prosecutrix has stated in their evidence that as the
prestige of their family was involved and the appellant had also
assured that he would not repeat the said act in future, the case was
not lodged earlier. However, when the appellant continued to behave
in the same manner, the present case was lodged. As such, it appears
that a plausible explanation has been given by the prosecution for not
lodging the case soon after the occurrence, which requires a great
courage and strength as the accused in this case is the own father of
the prosecutrix but the evidence has come that due to persistent
misbehave by the appellant to the prosecutrix, she left with no other
option but to report the matter to police.
It has also been argued by learned counsel for the appellant that
as the appellant used to oppose the free movement of P.W. 1, mother
of the prosecutix and one day prior to lodging of the F.I.R, appellant
has assaulted P.W. 1, due to which P.W. 1 instigated her daughter
P.W. 2 to file the present false case against the appellant with a view
to teach him a lesson. However, as stated above, it is very rare that a
minor girl goes to lodge a case of rape against her own father, which
is one of the hardest steps to be taken by her and it requires the
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
– 11 –
courage and strength but when, she left with no other option, she was
forced to lodge the case as the evidence has come that the appellant
continued to molest her.
It has further been argued that medical report did not support
the case of prosecution with regard to commission of rape on the
prosecutrix as her evidence shows that blood started oozing out but
medical report did not show any sign of rape and no injury was found.
However, it is an admitted fact that the prosecutrix was medically
examined in this case after lapse of more than five months and if no
injury or any sign of rape was found, there is nothing abnormal in it
and on that score, prosecution story of rape cannot be disbelieved. It is
also pertinent to mention that evidence of P.W. 1 clearly shows that
P.W. 2 – prosecutrix was aged about 15- 16 years at the time of
alleged occurrence, as such, some exaggeration and improvement in
her evidence cannot be ruled out.
Hon’ble Apex Court in the case of Gurcharan Singh v. State
of Haryana reported in [ AIR 1972 SC 2661] has held that ” the
absence of injury or mark of violence on the private parts or
elsewhere on the person of prosecutrix is of no consequence when
the prosecutrix is minor and that would merely suggest want of
violent resistance on the part of the prosecutrix. Further absence
of violence or stiff resistance in the present case may well suggest,
helpless surrender to the inevitable due to sheer timidity. In any
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
– 12 –
event, her consent would not take the case out of the definition of
rape”. Further Hon’ble Apex Court in the case of Devinder Singh
Vs. State of Himachal Pradesh reported in [AIR 2003 SC 3365] the
Hon’ble Apex Court while considering the case of similar nature, had
come to conclusion that when no injury was found on the body of the
prosecutrix, there was no presence of matting of pubic hair with
discharge. No injury was found in the genital area, as the prosecutrix
was used to sexual intercourse that no injury was found on her body
only goes to show that she did not put up resistance.
The decisions cited above clearly shows that there is no force in
the contention when there was any forcible sexual intercourse, it
would have resulted in some injuries upon the prosecutrix’s person
are not always sine qua non to prove a charge of rape.
Further in this case, learned counsel for the appellant has also
submitted that hymen of the prosecutrix was found intact in the
medical examination and there was no sign of rape on the private part
of the prosecutrix. However, rupture of hymen depends on many
circumstances and it is not necessary ingredients of rape, as mere
penetration is sufficient for offence of rape as such on this score, it
cannot be said that rape has not been committed upon the prosecutrix,
whereas, the evidence of prosecutrix in para -8 of her cross-
examination shows that after the rape, she came to know about the
meaning of rape.
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
– 13 –
It has further been argued on behalf of the appellant that in this
case evidence of P.W. 1 shows that at the time of rape the victim girl
and her brother was sleeping on the same cot and in spite of that the
said brother has not been examined. In this context, on examination of
the evidence of P.W. 3, maternal grandfather of the prosecutrix clearly
shows that as the brother was quite young as such, he has not been
involved in this case and further so far sleeping on same cot is
concerned, evidence of P.W. 2 – prosecutrix, in para -5 shows that
there were two cots in the room, in which the rape was committed
and P.W. 1 is not the eye witness of the case as such, on the evidence
of P.W. 2, prosecution story of rape cannot be doubted.
The appellant has further argued that appellant has been made
accused in this case on account of previous grudge of P.W. 1 agaisnt
the appellant as the appellant used to restrict her free movement and
one day prior to lodging of the F.I.R., there was a quarrel between the
P.W. 1 and the appellant, due to that P.W. 1 had also threatened the
appellant that she would get him behind the bars and D.W. 1 and
D.W. 2 has also stated so in their evidences and Investigating Officer
has also stated in para -3 of her cross examination that appellant and
P.W. 1 used to quarrel and earlier a bond was also executed for not
making quarrel and as such due to the aforesaid grudge appellant has
falsely been implicated in this case. It has also been argued that D.W.
3, who was an employee of Kejriwal Hospital proved the attendance
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
– 14 –
register to show that P.W. 1 was on leave from 14.04.2009 to
11.05.2009 and this fact clearly makes the prosecution story false and
concocted about the commission of rape on 22.04.2009. Learned
counsel for the appellant has also drawn the attention of this Court
towards the evidence of P.W. 1, on record that on 22.04.2009, she
prepared food and she had not gone to duty after preparing the food.
However, on perusal of evidence of P.W. 1, it appears that in
her cross-examination she has stated that after serving food, she had
not gone to duty, however, it has also been stated by her that it is not
true that prior to five days from 22.04.2009 to ten days after, she has
not gone out of her house and as such this evidence does not show
that on 22.04.2009, she was present in the house. So far the evidence
of D.W. 3 is concerned that P.W. 1 was on leave during the period
from 14.04.2009 to 11.05.2009, D.W. 3 has himself admitted that
there is no signature on the attendance register as to who has prepared
the register. He has also stated that on the attendance register, there is
no signature of P.W. 1- Indu Devi or any other signature and in such a
situation, no reliance can be placed on the register produced by D.W.
3. There is positive evidence of P.W. 1 that she was on duty on
22.04.2009 and not present in the house.
It has also been argued that there is no independent witness of
the case even circumstantial in nature so as to show that P.W. 2 has
stated about commission of rape to anybody and further there are
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
– 15 –
several inconsistencies and contradictions in between the evidence
and statement recorded before the police and the Investigating Officer
has also admitted the said fact in her evidence in para -5.
However, as I have noticed above, P.W. -2, prosecutrix, at the
time of alleged occurrence was aged about 15 to 16 years and in such
a situation, if there is any inconsistency in her evidence or any
contradiction from her previous statement and the same does not go to
the root of the case in such a case. Those inconsistencies and
contradictions do not make the prosecution story of commission of
rape by the appellant upon the prosecutrix false and concocted. On
the other hand, the evidence of P.W. 2 has been corroborated by the
evidence of P.W. 1, who has stated that on the very next day in the
morning, the prosecutrix had told her about commission of rape by
her own father and the above evidence is admissible under Section
157 of the Indian Evidence Act.
Considering the entire discussions made above, the evidence of
P.W. 2 about the commission of rape by appellant to her in the night
appears to be convincing and corroborated by evidence of P.W. 1
under Section 157 of Indian Evidence Act. Apart from that P.W. 3,
who is the maternal grand father of P.W. 2 has also supported the case
of prosecution and has stated that he came to know about the incident
from his daughter (P.W. 1). As such, this Court finds no illegality in
the judgment dated 30.03.2011 and order of sentence dated
Patna High Court CR. APP (SJ) No.575 of 2011 dt.12-09-2017
– 16 –
05.04.2011 passed by Sri Ram Daras, Additional Sessions Judge, Fast
Track Court No. -3, Muzaffarpur, in Session Trial No. 56 of 2010,
convicting the appellant under Section 376 of the Indian Penal Code.
Accordingly, this appeal is dismissed, impugned judgment and
order is hereby upheld.
(Vinod Kumar Sinha, J)
sunil/-
AFR/NAFR AFR
CAV DATE 01.09.2017
Uploading Date 13.09.2017
Transmission 13.09.2017
Date