IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.682 of 2015
Arising Out of PS. Case No.19 Year- 2014 Thana -MAHILA P.S. District- BHAGALPUR
MD. SAJID ALAM, S/O MD. INSUL, R/O VILLAGE-UJANI (MUKHIYA
MOHALLA), P.S- NAUGACHHIA, DISTRICT-BHAGALPUR.
…. …. APPELLANT/S
VERSUS
THE STATE OF BIHAR …. …. RESPONDENT/S
Appearance:
For the Appellant/s : Mr. Shardanand Mishra, Adv.
Mr. Dhananjay Kumar Gupta, Adv.
Mr. Deepak Kumar, Adv.
For the informant : Mr. Ashok Kumar Malliak, Adv.
Mr. Murlidhar, Adv.
For the State : Mr. Binod Bihari Singh, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 14-09-2017
1. Sole appellant Md. Sajid Alam has been found guilty
for an offence punishable under Section 341 IPC and sentenced to
undergo S.I. for one month, under Section 376 IPC and sentenced
to undergo R.I. for seven years as well as also slapped with fine
appertaining to Rs.10,000/-, in default thereof, to undergo S.I. for
six months, additionally vide judgment of conviction dated
15.09.2015 and order of sentence dated 19.09.2015 passed by
Third Additional District Sessions Judge, Naugachia, Bhagalpur
in Sessions Trial No.591/2014.
2. Name withheld PW.7 filed written report on
29.04.2014 disclosing therein that she happens to be orphan and
on account thereof, is living at her house alone. Today, i.e.
29.04.2014 at about 04:00 PM while she was alone at her house,
her neighbour Md. Sajid Alam made house trespass, gagged her
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 2
mouth and then, putting her under threat of murder, torned her
cloth, broken string of her Salwar and then committed rape inside
a room where she was lifted. Anyhow, she managed to raise alarm
whereupon, after breaking ventilator he managed to escape. On
her hue and cry, her sister Bibi Meharbano, brother-in-law Md.
Gulam Rabbani as well as persons of the locality came during
midst thereof, brother of Md. Sajid, namely, Md. Manovar Alam,
Sanouvar Alam, Kousar Alam, Md. Insul armed with lathi, danda
came and threatened her as well as her sister, brother-in-law that
in case of institution of any kind of prosecution will cost them
dearly. During course thereof, Md. Manovar Alam gave two blows
of danda. She, having been accompanied by her sister, brother-in-
law and others came at P.S. got the written report scribed by
Tawarej on her dictation and then presented the same about
10:10 PM.
3. On the basis of the aforesaid written report,
Naugachia (Mahila) P.S. Case No.19/2014 was registered followed
with an investigation as well as submission of charge sheet
whereupon 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 of the occurrence. It has also
been pleaded that at an earlier occasion there was an effort at the
end of the prosecution for getting marriage of victim with the
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 3
appellant and for that, prosecution took effort by entering into
negotiation but, on account of denial at the end of parents of the
appellant, could not materialized, which happens to be the reason
behind institution of this false case.
5. In order to substantiate its case, prosecution had
examined altogether nine PWs who are PW.1-Dr. Rubi Singh,
PW.2-Sahana Pravin @ Sahana Khatoon, PW.3-Chanda Khatoon,
PW.4-Md. Gulam Ravani, PW.5-Lela Khatoon, PW.6-Tawarej,
PW.7-Soni Khatoon (Victim), PW.8-Sipat Paswan, formal who
produced Chhapal in court allegedly that of appellant and PW.9-
Swayam Prabha, the Investigating Officer. Side-by-side also
exhibited Ext.1-Injury report, Ext.2-Signature of PW.6 Tawarej
over written report, Ext.2/A-Signature of informant over written
report, Ext.2/B-Signature of informant over statement recorded
under Section 164 Cr.P.C., Ext.3-Written report, Ext.4-Formal
FIR, Ext.5-Endorsement over written report, Ext.6 Series-
Production-cum-Seizure List. Chhapal is Material Ext.1. On the
other hand, nothing has been adduced in defence at the end of
appellant.
6. It has been submitted on behalf of appellant that the
judgment of conviction and sentence recorded by the learned
lower court happens to be cryptic as well as speaks a lot with
regard to non-application of judicial mind. In order to substantiate
the same, it has been submitted that witnesses have admitted
during course of cross-examination that there was sincere effort at
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 4
the end of the prosecution to get the victim married with the
appellant and for that, they have indulged in negotiation which
was refused by the family members of the appellant over which,
instant case has been filed. This event has completely been
ignored by the learned lower court. Had there been proper
appreciation of the evidence as well as conduct of the prosecution
then, in that circumstance, there was every likelihood of acquittal
instead of conviction and sentence so recorded against the
appellant.
7. It has further been submitted that probability of
false implication in the aforesaid background is corroborated with
other circumstances. Highlighting the same it has been submitted
that victim was examined by PW.1, doctor on the following day
who had not found any sign either externally or internally over
private part and whereupon she had ruled out rape. Therefore,
evidence of PW.1 completely negativates the allegation having
attributed on behalf of prosecution.
8. It has further been submitted that there happens to
be specific case of the prosecution that victim was taken inside a
room alone where she was raped and then, the appellant made his
escape after taking out brick from a ventilator but, the
Investigating Officer, during course of her objective finding relating
to the place of occurrence did not corroborate and so, the story of
the prosecution on that very score also happens to be dejected by
the objective finding of the Investigating Officer.
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 5
9. Apart from this, there happens to be consistent
evidence of the PW.7, the victim that she was alone at the time of
occurrence at her house while PW.3 had stated that she was
present when appellant came inside the house and his activity
was resisted by her. That being so, the evidence of prosecutrix
that seeing her alone appellant, Sajid entered inside her house
and then committed the sin, happens to be unreliable, as well as
also cast doubt over her genuine conduct. Apart from this, there
happens to be major inconsistency amongst the evidences of the
PWs putting severe dent upon the authority of the prosecution
hence, appellant is entitled to acquittal.
10. On the other hand, the learned Additional Public
Prosecutor while refuting the submission made on behalf of
learned counsel for the appellant has submitted that slight
penetration is sufficient to constitute rape. That being so, non-
presence of injury over the person more particularly, over the
private part of the victim as deposed by PW.1, doctor will not
adverse fully affect the prosecution case. Moreover, from the
evidence of PW.1, it is evident that she had not examined the
victim personally otherwise no such kind of incomplete injury
report would havebeen issued at her end. She had not described
with regard to physical feature of the victim as well as whether
there was presence of hymen or not. In likewise manner, it has
also been submitted that from the evidence of PW.9, Investigating
Officer, it is evident that she had got no deep knowledge with
regard to investigation of a serious nature of criminal case more
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 6
particularly rape case as, she blatantly narrated that during
course of inspection of the P.O. she had not seen ventilator which
was most important part of the investigation in the background of
specific allegation by the prosecutrix that accused made his
escape after breaking the same. In likewise manner, she would
have insisted for procurement of FSL report relating to seized
Salwar as well as seized Chhapal, sent for chemical examination.
11. It has also been submitted that the evidence of
rustic villagers should be considered in its entirety with some sort
of relaxation on account of their mental equilibrium. Furthermore,
it has also been submitted that from the evidence it is apparent
that there was no reason for false implication, as parties were not
on inimical terms. Even if considering that there was talk relating
to settlement of marriage, over which the defence did not opt to
cross-examine whether it happens to be five years old, ten years
old or a recent event and that has purposely been left out as, no
talk of negotiation was ever taken place. Furthermore, it has also
been submitted that considering the evidence of the victim, PW.7
it should be held that prosecution has succeeded in proving its
case whereupon judgment of conviction and sentence is to be
affirmed.
12. From the initial version of the victim, it is apparent
that her sister Bibi Meharbano along with others had come to the
place of occurrence after hearing cry of the victim but she
Meharbano has not been examined nor there happens to be any
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 7
kind of explanation on that very score. In its continuity, the other
witness so named who happens to be her brother-in-law, namely,
Md. Gulan Rabbani, has been examined as PW.4 who during
course of his evidence, had stated that he was sitting at the place
of his Sarhu. He rushed after hearing uproar and reached at his
house where he had seen Sajid escaping through ventilator while
victim was lying over bed in disorderly manner. Her Salwar was
torn. She disclosed that Sajid has raped her. During cross-
examination at para-4, he had stated that victim happens to be
her step sister-in-law. Victim happens to be three brothers and
sister. She has two brothers. Her parents is not alive. She does
not reside with her brothers. She resides alone with him in a room
adjacent to his room. Then had detailed the family event. In para-
8, he had stated that when he reached at his house, people were
inside the house. Then thereafter, he had gone inside the room
and seen accused fleeing therefrom. He fled away through roof.
People have not succeeded to apprehend him. In para-9, he had
stated that he had gone alone inside the room. Then at para-16,
he had stated that earlier she had threatened him that she will
implicate him and on account thereof, he had filed Sanha
No.29/2014 on 04.01.2014.
13. PW.5 is Laila Khatoon, she had disclosed that on the
alleged date and time of occurrence, she was at her house. On
hearing uproar, she rushed to the place of her father where she
had seen Chhapal kept there and Sajid coming out through
ventilator after breaking the same. She had seen the victim. Her
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 8
Salwar and Jumpher were torn. She has disclosed that Sajid has
raped her. Then thereafter, other family members of Sajid came
who assaulted as well as also threatened not to institute any case.
In para-3 she had disclosed that victim happens to be her step
sister. She had further stated that there was rumour in the village
that Sajid has entered inside the house. When she came, large
numbers of persons were assembled since before. At that very
time victim was inside the room. When she came, room was
closed. She got the room opened and then gone inside. All
remained outside. Only she had gone inside. She had seen victim
on the bed unconscious. She was taken to hospital where regained
sense. She had further stated that she had not gone to hospital.
Md. Rabbani had taken away. In para-7, she had disclosed that
two persons the victim as well as Rabbani reside at the place of
her father. Wife of Rabbani also resides. His son, daughter-in-law
reside outside.
14. PW.6 is Tawarej. Victim happens to be his Mausi. He
happens to be hearsay witness though he had scribe written
report on the dictation of victim who was taken to P.S. by him and
others. PW.3, had stated that victim happens to be her Mausi. On
the alleged date and time of occurrence she was at her house
doing domestic work. Victim was cooking in the Aagan. Md. Sajid
came inside, caught hold her, took her to room. She directed him
to get out but he declined. Then, he locked the door whereupon
she raised alarm attracting so many persons. Father of Sajid, Md.
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 9
Manovar, Insul, Md. Kousar came and began to assault her. Then
victim opened the door and said that Sajid committed sin. Md. Sajid
was present there. Villagers could not apprehended him as he escaped
through ventilator leaving behind his Chhapal. During cross-
examination she had stated that name of her father-in-law happens to
be Rabbani and victim happens to be his sister-in-law (Shali). In
para-5, she had further stated that there are two pukka rooms fenced
by a boundary wall. Parents of victim are not alive but, Bhabhi there.
In one room Rewani, his wife and in another room brother, Bhabhi of
victim mode. Victim resides with her brother. Her house happens to
be outside the house of the victim. In para-11, she had stated that
some sort of dispute arose in between victim and Rabbani before the
occurrence whereupon Rabbani had lodged Sanha in court against the
victim. In para-12 she had staed that about fifty persons have already
assembled before her arrival. In para-13, she had stated that Md.
Sajid fled in her presence. There was an attempt to apprehend him but
he managed to escape. In para-15, 16 she had disclosed the event of
talk for marriage of victim with Sajid at an earlier occasion.
15. PW.2 had stated that on the date and time of
occurrence there was uproar in the village that Sajid was in the house
of victim along with her. Then thereafter, he slipped after breaking
the window. She had seen the misdeeds having committed by Md.
Sajid and then escaping therefrom. In para-3, she had stated that
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 10
victim happens to be her Nanad (sister-in-law). The house of victim
is her house. Another house is situated in the village intervened by
ten houses. In para-5, she had stated that she resides at the house
situated in mohalla-Tokariya Tola. In para-6, she had stated that she
heard alarm raised by the victim while she was at the place of Nimi
whose house lies two houses away when she reached there she had
seen so many persons. When she reached she saw Md. Sajid inside
the room. About 10-20 persons have gone there and have seen and
during course thereof, victim had disclosed the incident. Furthermore,
victim had disclosed that Md. Sajid after breaking ventilator managed
to escape. She had also admitted under para-7 of her cross-
examination that there was talk of marriage negotiation.
16. PW.7 is the victim. She deposed that on the alleged
date and time of occurrence, she was in her court yard. Md. Sajid
came in the courtyard, caught hold her right hand and said either to
accompany him or he will commit sin with her. He had also said that
think over it. Then thereafter, he dragged her inside a room and then
forced her to lie over bed, torned her cloth, broken string of Salwar,
he also got undressed and then, committed rape against her will. She
raised hue and cry after the occurrence whereupon villagers
assembled. Seeing whom, Sajid after breaking ventilator slipped.
People opened the door after breaking latch and then came inside.
She was in perplexed condition. After regaining sense, she disclosed
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 11
the event and then thereafter, she was taken to P.S. along with them
where written report was filed. Then thereafter, she was taken to
hospital. Her statement before Magistrate was also recorded. Then
had identified the Chhapal belonging to Sajid which was produced by
her before the Investigating Officer left by Md. Sajid during course of
escape.
17. During cross-examination, she at para-15 stated that
Md. Sajid caught hold her by one hand and shut her mouth through
another and then, pulled. She tried to release herself but in vein. Then
had stated that whole event was disclosed before the police. She had
further disclosed that she tried to release herself through left hand.
She had further stated that her mouth was pressed whereupon she was
unable even to make grooming sound. She had also said that there
was dragging mark over the floor which was shown to the police.
While she was being carried inside the room, she had caught hold the
door as a result of which there was scratch mark. In para-16, she had
stated that after dragging inside the room, first of all, she was thrown
upon bed. Even at that very time her mouth was pressed and then, by
another hand cloth was torned, string of Salwar was broken and then
raped. At para-18 she had further stated that she was lifted by both
hands even then, she had not raised alarm. In para-19, she had stated
that at the time of occurrence neither her sister nor her brother-in-law
was present as they had gone to field. In para-20, she had stated that
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 12
accused had slipped away through ventilator after climbing. In para-
22, she had stated that during course of removing brick from the
ventilator by the accused, the same fallen over her as a result of
which she sustained injury which was shown to the police. She
shown ignorance with regard to any kind of talk over marriage.
18. PW.9 is the Investigating Officer, who had deposed
that after receiving the written report from town P.S., case was
registered, she took up investigation. She recorded further
statement of the informant, statement of Tawarej. Produced the
victim for medical examination. She visited the place of occurrence
and detailed the same. During course of which, she had shown
presence of ventilator in the room. Got the statement of other
witnesses, produced the victim before the Magistrate for her
statement under Section 164 Cr.P.C. Victim produced one pair
Chhapal belonging to Md. Sajid. After surrender of the accused,
she had taken effort for DNA test. Victim had also produced
Salwar. Exhibited. Awaiting reports from FSL submitted charge
sheet. During cross-examination at para-25 she had stated that
she had not seen any brick fallen from ventilator. In para-26, she
had further stated that she had not found latch of the door
broken. In para-27, she had further stated that she had not seen
whether ventilator was broken or not.
19. PW.1 is the doctor had completely negativated
incidence of rape on the basis of clinical examination of the victim,
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 13
during course of which she had not found any injury externally or
internally. Some sort of deficiency is there however, neither
prosecution nor accused had drawn attention over the same.
20. So far rape case is concerned, the evidence of victim
has got primacy. It has been settled at rest that in case there happens
to be consistency, reliability and truthfulness in the evidence of the
victim then no corroboration is required and conviction could be
recorded on the sole testimony of the victim. Certainly, a female
(unmarried or married) considering the Indian social atmosphere
would not dare to institute a case as, chastity happens to be
everything for her and in likewise manner the stigma which she will
follow till her death, making her life a hell. So, unless and until, the
victim is subject to rape, ordinarily prosecution for such offence is
not at all perceived as a tool to satisfy the personal vendetta as well as
grudge but exceptions are there and that happens to be reason behind
that the Apex Court has also settled that in case there happens to be
some sort of doubt over the authenticity of the version of the victim
then, in that circumstance, the court should see, corroboration. It is
evident from the evidence of PW.7, victim that appellant had come
inside her house, caught hold her hand, directed her to accompany
him and in an alternative he also threatened that she will be
victimized and so, giving a pause appellant had directed to think over
the same. She had not disclosed her response though subsequent
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 14
activity is found duly narrated. In the aforesaid background when the
other evidence have been considered, it is evident that some sort of
negotiation for marriage took initiative at an earliest which did not
materialize. Furthermore, when evidence of all the witnesses are
independently considered none of them have shown presence of other
at the house and in likewise manner, one had excluded the other
while approaching to the victim allegedly inside the room. It is also
surprising that once the Salwar was produced then why not a jumper
which, according to victim, was also torn. On the other hand, if the
evidence of all the witnesses are taken together in its entirety, each
have consistently narrated that when they reached inside the room of
the victim having seen her in perplexed condition but, for that PW.2
had stated that she got the room opened while PW.5, the brother had
said that door was broken. It is also surprising that in presence of so
many persons accused managed to escape without any sincere effort
at their end to apprehend. The objective finding of the I.O. is found
another circumstance. When the evidence of all the witnesses is taken
together in its entirety along with the medical evidence, it looks
unsafe to identify the appellant to be responsible for admitting rape
upon the victim and that being so, the finding recorded by the learned
lower court to the extent of Section 376 of the IPC extinguishes. But
considering the evidence of victim, it is found that an attempt was
there, and so appellant is found and held guilty for an offence
Patna High Court CR. APP (SJ) No.682 of 2015 dt.14-09-2017 15
punishable under Section 376/511 of the IPC and in the aforesaid
background is sentenced to R.I. for five years maintaining the fine
amount as well as the default clause concerning thereto as well as
conviction and sentence relating to Section 341 of the IPC with a
further direction to run the sentences concurrently. Accordingly,
Appeal is partly allowed in terms thereof. Appellant is under custody
which he will remain till saturation of the period of sentence.
(Aditya Kumar Trivedi, J.)
Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE N.A.
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