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Md. Ganiya @ Md. Jainya vs State Of Bihar on 25 June, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.316 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BHAGALPUR

Md. Ganiya @ Md. Jainya S/O Md. Kashim
Resident of Mohashamunda, P.S. Rahalgaon, District- Bhagalpur.

…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant : Ms. Sweta Raj, Advocate
For the Respondent : Mr. Bipin Kumar, A.P.P.

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 25-06-2018

Heard the parties.

2. In spite of repeated calls, nobody appears on behalf of

the appellant in this case, as such Ms. Sweta Raj, Advocate has been

appointed as the Amicus Curiae to assist this Court.

3. This appeal has been preferred by the sole appellant

against the judgment and order 19.4.2003 passed by Sri Vijay Kumar

Sinha, Additional District and Sessions Judge, Fast Track Court,

Bhagalpur in Sessions Case No.62 of 2001/

Trial No.150 of 2002 by which he has convicted the appellant under

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

R.I. for ten years.

4. The prosecution story in short is that while the

informant was sleeping along with her mother and Bhabhi in her
Patna High Court CR. APP (SJ) No.316 of 2003 dt.25-06-2018

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house on 15.10.2000 at about 10.00 P.M. the appellant entered inside

her house armed with Pistol and on the point of pistol taken her away

to nearby cow-shade and subjected to her rape for two hours. It is also

the prosecution case that she returned and thereafter informed the

same to her mother and Bhabhi. It is also the case of the prosecution

that in the morning, they had gone to the house of the appellant but

the family members of the appellant abused and also tried to assault

them, thereafter they went to the Mukhiya (P.W.4) who advised her

to lodge a case.

5. On the basis of the written report of the informant, a

case bearing Kahalgaon P.S.Case no.341 of 2000 was registered,

post investigation, the charge-sheet has been submitted and

cognizance of the case has been taken and eventually after committing

the case, it was transferred to the file of Sri Vijay Kumar Sinha,

Additional District and Sessions Judge, Fast Track Court, Bhagalpur

for trial and disposal.

6. During trial it appears that altogether six witnesses have

been examined and they are – P.W.1Bibi Rajda @ Bibi Bagata

(prosecutrix), P.W.2 Md. Jaisan (mother of the informant) P.W.3 Dr.

Dr. Jaya Padma Sinathu Tigga (Doctor who has examined her) ,

P.W.4 Md. Fateh Alam, P.W.5. Bibi Bilkis (Bhabhi of the

prosecutrix) and P.W.6 Ram Krishna Paswan, S.I. who has
Patna High Court CR. APP (SJ) No.316 of 2003 dt.25-06-2018

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investigated the case.

7. Apart from the above, writing and signature of the

Doctor on the injury report is marked as Annexure ‘1’, endorsement

on the fardbeyan is marked as Annexure ‘2’ and formal FIR is marked

as Annexure ‘3’.

8. On behalf of the defence, no evidence has been adduced

either oral or documentary and their simple defence is of not guilty

and of innocence.

9. The learned trial court on conclusion of the trial has

convicted the appellant under Section 376 of the IPC.

10. The learned Amicus Curiae has assailed the judgment

on the ground that in this case P.Ws. 1, 2 and 5 are the family

members of the prosecutrix and so far P.W.4 is concerned, he is

Mukhia of the village and he was informed in the morning that

appellant is not ready for marry and he advised for lodging the case,

and evidence of P.Ws. 1, 2 and 5 who are relatives of the prosecution

have not supported by the P.W.4, who is independent witness as he

has stated that she had come and told that the appellant is not ready to

marry her. Further contention of the learned Amicus Curiae is that in

this case it is alleged that she was subjected to rape for two hours by

thrashing on the ground but in spite of that no injury was found on the

private person or any part of the body of the prosecutrix and further
Patna High Court CR. APP (SJ) No.316 of 2003 dt.25-06-2018

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the Doctor has not found any sign of rape upon her or not. Further

submission is that it is alleged that she was taken to cow shade and

there she was subjected to rape but the I.O. (P.W.6) who has

investigated the case has found the place of occurrence empty place

of nearby Baithka of Jalim Khan and that disbelieve the prosecution

story of commission of rape in the cow-shade.

11. On the basis of submission as made, the learned

Amicus Curiae has submitted that the learned trial court has not

considered the aforesaid inconsistencies and infirmities while

convicting the appellant under Section 376 of the IPC. Moreover the

written report itself shows that she was major aged about 18 years

though later on in her statement she had stated that she was aged

about 16 years, on the other hand the Doctor has assessed her aged

below 18 years but it is well established that the error of margin in

the medical test can be Minus-Plus of two years and considering the

same in favour of the accused, it appears that she was major at that

time and as such even if it is assumed, it appears it was consensual.

12. Heard learned counsel for the State. He has supported

the impugned judgment and order of conviction of the appellant and

also submitted that the victim girl has narrated the whole story and

P.W.2 and 5 who are natural witness as being mother and bhabhi of

prosecutrix (P.W.1). It has further been submitted that just after the
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occurrence the prosecutrix came and stated about the commission of

rape to them as such there are sufficient material in support of the

prosecution case, hence conviction of the appellant does not require

any interference.

13. In the background of the submissions of the rival

parties, on perusal of the evidence, it appears that P.W.1 is the

prosecutrix and she has supported the prosecution case in her

evidence in chief and her evidence further shows that on the point of

pistol the appellant had taken her to the cow shade and subjected her

rape.

14. Evidence of P.W.1 found support from evidence of

P.W.2 and 5 who are mother and bhabhi of the prosecutrix as they

have stated that after the occurrence, the prosecutrix came and

informed about the commission of rape, however, in this case, the

prosecution case is that in the morning they had gone to the house of

the appellant where they abused and tried to assault the prosecutrix

and her mother and thereafter they went to P.W.4 Mukhia to inform

about the same who had asked them to lodge the case, however, on

perusal of the evidence of P.W.4 Mukhia it appears that he has not

supported the evidence of P.W.1 and 2 and stated that P.W.2 had

come to his house to say that the appellant is not ready to marry her,

on which he asked the appellant why he is not marrying her on which
Patna High Court CR. APP (SJ) No.316 of 2003 dt.25-06-2018

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the appellant refused to marry her and from perusal of the whole

evidence, it appears that he had not supported the story that P.W.2 has

informed that P.W.1 was subjected to rape by the appellant. This

witness has also not been declared hostile and his evidence has

remained intact. Apart from that the Doctor has been examined as

P.W.3 in this case and the evidence of the Doctor who has examined

the girl on 17.10.2000 disclosed that he has not found any external

injury over her body and further stated that there was no sign of rape

so it is difficult to say whether she has been subjected to rape or not.

The Doctor has assed her aged below 18 years.

15. On perusal of the evidence of P.W.1 and 2 it appears

that the prosecutrix had stated that she was thrashed on the ground

and subjected to commission of rape for two hours; in spite of that not

finding any injury on the person of prosecutrix creates serious doubt

about the prosecution version and raise reasonable doubt. Even if

prosecutrix is considered to be minor, the case of the prosecutrix does

not find support from the P.W.4. Further the medical evidence also

does not support the prosecution case of rape as not any sign of rape

was found. Hence, evidence of prosecutrix does not appear to be

impeachable, as such the appellant is entitled for benefit of doubt.

16. Considering the entire aspect of the matter, the

impugned judgment and order does not appear to be sustained in the
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eye of law.

17. Accordingly, this appeal is allowed and the impugned

judgment and order is set aside as the appellant is in jail, he is directed

to be discharged from liabilities of his bail bond.

(Vinod Kumar Sinha, J)

chn/-

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 28.06.2018
Transmission 28.06.2018
Date

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