IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.775 of 2015
Arising Out of PS.Case No. -206 Year- 2014 Thana -RAGHOPUR District- SUPAUL

Md. Nazeer son of Md. Jahiruddin, resident of Ganpatganj, Hata Tola, P.S.-
Raghopur, District- Supaul.

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

Appearance:

For the Appellant/s : Mr. Pranav Kumar Jha, Adv.

For the State : Smt. Abha Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 09-10-2017

1. Sole appellant Md. Nazeer has been found guilty for an

offence punishable under Section 376 of the IPC and sentenced to

undergo R.I. for ten years as well as to pay fine appertaining to rupees

ten thousand and in default thereof, to undergo S.I. for one year,

under Section 4 of the POCSO Act whereunder no separate sentence

has been inflicted against him vide judgment of conviction dated

20.11.2017 and order of sentence dated 25.11.2015 passed by

Additional Sessions Judge, Ist-cum-Special Judge, POCSO, Supaul in

POCSO Case No.02/2015 arising out of Raghopur P.S. Case

No.206/2014.

2. PW.6, victim (name withheld) gave her fardbeyan on

16.11.2014 at her darwaja before the police official disclosing therein

that on the same day at about 03:30 PM she had gone to bring her

she-goat. At that very time, Md. Nazeer came and said that you looks

beautiful and so, he wants to do something whereupon, she ran

therefrom chased by Md. Nazeer who caught hold and then committed

rape near bamboo cluster, after gagging her mouth. Anyhow, she got
Patna High Court CR. APP (SJ) No.775 of 2015 dt.09-10-2017 2

an opportunity and raised alarm whereupon Ayesha Khatoon, Neetu

Kumari came and had seen the accused committing rape, who, seeing

them, ran way. She came to her place and disclose the event to her

mother. Somebody has informed the police and after arrival of the

same, she got her fardbeyan recorded.

3. After registration of Raghopur P.S. Case No.206/2014

investigation commenced and charge sheet was submitted. After

taking cognizance, the case was committed as a result of which, trial

commenced and concluded in a manner, subject matter of instant

appeal.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is that of complete denial. However, neither ocular or

documentary evidence has been adduced on behalf of appellant.

5. In order to substantiate its case prosecution had

examined altogether twelve PWs, P.W.-1 Shambhu Sah, P.W.-2 Md.

Matin, PW-3 Neetu Kumari, PW.4-Md. Hasim, PW.5-Sahajadi

Khatoon, PW.6-Samina Khatoon, PW.7-Takimun Khatoon, PW.8-

Ramchet, PW.9-Dr. Mihir Kr. Verma, PW.10-Dr. Nutan Verma,

PW.11-Kaili Khatoon, PW.12-Ayesha Khatoon as well as had also

exhibited fardbeyan-Ext.1, Formal FIR-Ext.1/1, Ext.2-the medical

report issued by PW.9, Ext.3 Medical report issued by PW.10.

6. Now coming to status of the witnesses, it is apparent

that Ayesha Khatoon, PW.12 and Nitu Kumari, PW.3, were shown to

be an eye witness to occurrence in the fardbeyan who came at the spot

after hearing alarm of victim and seeing whom, the appellant escaped,
Patna High Court CR. APP (SJ) No.775 of 2015 dt.09-10-2017 3

leaving the victim have gone volte-face to the prosecution and so were

declared hostile. In likewise manner, the other witnesses PW.1, PW.2,

PW.4, PW.11 have also not been inclined in supporting the case of the

prosecution whereupon, were declared hostile.

7. PW.9 is the doctor who had examined vaginal swab of

the victim on 17.11.2014, on the next day of the alleged occurrence

and found absence of dead or live spermatozoa. PW.10 is the

Gynaecologist who had examined the victim on 17.11.2014 and as per

her objective finding no sign of rape was found over person of the

victim as neither any kind of injury has been over private part of the

victim nor over any part of her body.

8. Now remains the evidence of PW.5, PW.6 and PW.7.

PW.7 is the witness who had simply disclosed that he was informed by

PW.6, mother of the victim that her daughter was raped but, she is

not aware nor she has got personal knowledge regarding the

occurrence.

9. PW.6 is the mother of the victim, PW.5. During her

examination-in-chief she had stated that on the alleged date and time

of occurrence her daughter had gone to bring she-goat. She was chased

by Md. Nazeer and then, was raped. She had further stated that

victim after coming to house had disclosed the same. Side by side also

deposed that after hearing alarm she rushed and had seen Md. Nazeer

committing rape on her daughter. Then thereafter, she took her

daughter to police where her statement was recorded. During cross-

examination she had stated that she had seen the occurrence which

was committed for half an hour. During course thereof, she had seen
Patna High Court CR. APP (SJ) No.775 of 2015 dt.09-10-2017 4

her daughter was lied down over the earth by Md. Nazeer. She was to

shout whereupon, Md. Nazeer tied her mouth with towel. Md. Nazeer

himself tied the same. Thereafter, she brought the victim to her place.

She had informed Moti and police and then all of them carried the

victim to police station. As per para-5 she had stated that she along

with Shambhu Yadav, Neetu Kumari, Ayesha Khatoon, have seen the

occurrence. During course thereof, Shambhu, Neetu, Ayesha were

laughing.

10. PW.5 is the victim, she had disclosed that on the

alleged date and time of occurrence she had gone near pond to bring

her she-goat, where, Nazeer had committed rape on her. She came to

her house and disclosed regarding the occurrence to her mother.

Nazeer had raped her thrice. She had recorded her fardbeyan at the

police station whereupon, she put her RTI. She had also stated before

the Magistrate on produced by the police. She was medically

examined. She identified the accused in dock. During cross-

examination at apra-5, she had stated that as per instruction of her

father she had instituted this case. She on her own had not lodged the

case. She had further stated that Nazeer was known since before. He

had not indulged in any kind of activity with her since before. When

she had gone to bring she-goat Nazeer had committed rape. In para-6,

she had stated that there was blood stain over her cloth which was

handed over to the police. In para-7, she had disclosed that she was

raped in presence of Ayesha Khatoon, Neetu and Shambhu. They have

caught hold Nazeer but, later on released. She had further stated that

she was raped for one and half an hour in their presence. She was

raped thrice. Her mouth was gagged with handkerchief by Nazeer.
Patna High Court CR. APP (SJ) No.775 of 2015 dt.09-10-2017 5

She is unable to say whether he had taken away the handkerchief.

She had denied the suggestion that at the instance of Moti this case

has been instituted.

11. PW.8 is the Investigating Officer. He had deposed that

in his presence fardbeyan of victim was recorded by the Officer-in-

charge (exhibited). Formal FIR was drawn up (exhibited). He was

entrusted with the investigation during course of which, he had

examined the victim, visited the place of occurrence, got the victim

medically examined. Produced her before the Magistrate. Her

statement under Section 164 Cr.P.C. was recorded. Took statement of

the witnesses and then, after completing the investigation, submitted

charge sheet. He had also stated that P.O. happens to be the place

situated 200 steps west to house of the victim of bamboo cluster

belonging to Narayan Choudhary. He had further disclosed that

during course of investigation of the P.O., he had found trampling

mark. He had identified the boundary of the P.O. North- Narayan

Choudhary, South-Sitaram Choudhary, East-Narayan Choudhary,

West-Ramdev Singh. During cross-examination, he had stated in

para-6 that he had conducted investigation in routine manner.

12. After having analytical approach of the evidence

adduced on the record, it is evident that none other than PW.5 and

PW.6 that means to say the victim and her mother supported the case

of the prosecution including that of the doctor. PW.5, the victim had

not shown her mother, PW.6 to be an eye witness to occurrence but,

during course of evidence, PW.6 claimed so. Though, no cross-

examination on that very score happens to be in detail more
Patna High Court CR. APP (SJ) No.775 of 2015 dt.09-10-2017 6

particularly, challenging her status to be an eyewitness by way of

drawing her attention towards her previous statement recorded under

Section 161 of the Cr.P.C. but the fact remains that her conduct

appears to be suspicious in the background of the fact that in spite of

presence of Neetu Kumari, Ayesha Khatoon, Shambhu Sah she herself

seen the occurrence for half an hour without any activity at her end

even protesting, resisting, shouting in order to rescue PW.5 her

daughter. Her conduct is found abnormal in the background of the fact

that Neetu Kumari, PW.3 and Ayesha Khatoon, PW.12 both female

along with Shambhu Sah, father of PW.3 have been alleged at the end

of PW.6 that they were laughing seeing her daughter being raped by

Nazeer. It looks also improbable that a mother will see her daughter

being raped without any protest, or asking for help.

13. Now coming to the evidence of PW.5, victim, it is

needless to remind that in case of reliability of the evidence of the

victim her sole testimony happens to be sufficient to draw conviction

and sentence against the rapist irrespective of the fact that same does

not find corroborated by the medical evidence in the background of the

fact that slight penetration happens to be sufficient to instituted

offence of rape. From her evidence, it is evident that at an initial stage

she had simply disclosed that she was raped, but during course of

evidence disclosed that she was raped thrice which continued for one

and half an hour. The aforesaid eventuality which happens to be a

major development would not have been ignored at the end of doctor

had there been such kind of activity. Apart from this, from her

evidence it is apparent that her apparel sustained blood stain which

were handed over to the police however, from the evidence of PW.8,
Patna High Court CR. APP (SJ) No.775 of 2015 dt.09-10-2017 7

I.O. it is evident that victim had not produced apparel before him nor

he had seized apparel of the victim.

14. However, considering the evidence on record coupled

with the objective finding of the I.O. whereunder he found presence of

trampling mark at the place of occurrence the probability of push and

pull in between appellant as well as victim could not be ruled out,

whereupon appellant is found guilty of outraging modesty of PW.5 and

for that, is held guilty under Section 354 IPC. Coming to the score of

sentence, it is apparent from the record that he happens to be under

custody since 18.11.2014 and so, his sentence is modified as the period

already undergone, maintaining the quantum of fine having been

inflicted by the learned lower court along with default clause. In terms

thereof, this appeal is partly allowed.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR A.F.R.
CAV DATE N.A.
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