IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.127 of 2009
Arising Out of PS.Case No. -136 Year- 2007 Thana -Sikandra District- JAM UI
Md. Shahabuddin son of Md. Jalal R/O Village-Mahadeo Simariya, PS-Sikandra,
Distt-Jamui. …. …. Appellant/s
Versus
State of Bihar …. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Baban Roy, Amicus Curiae
For the Respondent/s : Mr. Parmeshwar Mehta, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 19-11-2018
None appears on behalf of appellant on repeated
calls, whereupon, Sri Baban Roy, learned Advocate has been
requested to assist the court as an Amicus Curiae.
2. Appellant, Md. Shahabuddin has been found guilty
for an offence punishable under Section 376 of the IPC and sentenced
to undergo RI for 7 years as well as to pay fine of Rs. 5000/- in
default thereof, to undergo SI for six months additionally with a
further direction that the period of custody having been undergone
during course of trial be set off in accordance with Section 428 CrPC
vide judgment of conviction 21.01.2009 and order of sentence dated
22.01.2009 passed by Additional District Sessions Judge, Fast
Track Court No.V, Jamui in Sessions Trial No. 119 of 2008.
3. PW-2, the victim (name withheld) filed a written
report on 08.06.2007 disclosing therein that her father suffers from
ailment whereupon her mother cares her along with other sisters and
brothers on an earning from menial works. In the night of 19.05.2007,
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 2
while she was asleep in a room of her house, Md. Shahabuddin son of
Md. Jalal R/O Village-Mahadeo Simariya, PS-Sikandra, Distt-Jamui
intruded inside the room, pounced upon her as well as throttled her.
She tried to raise alarm whereupon her mouth was gagged. He put
pressure upon her neck and said that she would be murdered by
throttling and then thereafter, broken string of her Salwar and
committed rape forcibly. During course thereof, she wriggled
unsuccessfully, tried to raise alarm but, he let off only after
satisfaction of his lust. Then thereafter, he released. As soon as she
was released, she raised alarm whereupon, Md. Shahabuddin ran
therefrom having been chased by her mother, Rajina but, anyhow he
managed to escape. Because of the fact that all the male members of
the surroundings had gone to participate in a Jalsa and as her father
used to ply rickshaw at Jamshedpur, taking benefit of the situation,
accused committed rape after sneaking inside her room. On the
following day, her mother rushed door to door in order to seek justice
at the social level, whereupon Panchayati was convened but, as the
accused as well as his father declined to participate, lastly, as per
instruction of members of the community, the case is being filed and
that happens to be the reason of delay.
4. After registration of Sikandra PS Case No.
136/2007, investigation commenced followed and concluded by way
of submission of charge-sheet which happens to be the basis of trial,
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 3
meeting with ultimate result, subject matter of instant appeal.
5. Defence case as is evident from the mode of
cross-examination as well as statement recorded under Section 313
CrPC is that of complete denial. It has further been disclosed that at
an earlier occasion, the parents of the victim came to the place of
appellant/accused in order to settle the negotiation which they
declined and for that, the family members of the so alleged victim
have put forward a challenge threatening that for refusal, they will be
given a lesson. Apprehending their illegal activity, father of the
appellant/accused had already filed an informatory petition before the
SDJM on 24.05.2007 bearing Sanha No. 1119. In order to substantiate
the same, though no ocular evidence has been adduced but, the
information having been received at the end of appellant under the
Right Of Information Act relating to Sanha No. 1119, has been made
as Ext-A.
6. In order to substantiate its case, prosecution has
examined altogether 9 PWs who are PW-1, Mukesh Kr. Singh, PW-2,
victim, PW-3, Rajina Khatoon, mother, PW-4, Md. Habib, Nana of
the victim, PW-5, Md. Moin, father of the victim, PW-6, Dr. Vijay
Kumar member of the board who had estimated the age of the victim,
PW-7, Dr. Syed Naushad Ahmad, one of the members of the Medical
Board, PW-8, Dr. Veena Singh, Member of the Medical Board who
had examined the victim and PW-9, Jai Prakash Singh, Investigating
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 4
Officer as well as also exhibited Ext-1, Formal FIR, Ext-2, signature
of informant over written report, Ext-3 series, reports in pen of PWs-6
and 7, Ext-4 series, different X-ray plates, Ext-5 series, report issued
by Doctor (PW 8). Defence has also exhibited an information given
under Right to Information Act as Ext-A.
7. While assailing judgment impugned, learned
Amicus Curiae fairly submitted that in rape cases the evidence of the
victim has got priority unless and until it is found soaked with
falsehood and in the aforesaid background, it needs corroboration. So
far this particular case is concerned, the evidence of victim could not
be accepted nor she could be accepted as creditworthy witness
whereupon, the finding so recorded by the learned lower court did not
justify its relevancy.
8. In order to raise the specific points on that very
score, it has been submitted that the occurrence is alleged in between
night of 19/20.05.2007 while the written report has been filed on
08.06.2007 without any cogent, legal explanation. Then, it has been
submitted that because of the fact that the victim was adamant to
pressurize upon the appellant to marry, which he refused and for that,
after weaving the false and frivolous story, the prosecution has been
launched, that being so, in order to shield the corroborative evidence
to come on the record, in case would have come, completely
demolished the prosecution case and that being so, delay has
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 5
purposely been introduced. Furthermore, evidence of other witnesses
which taken together with the evidence of the victim coupled with the
medical evidence, it is crystal clear that appellant has fallen victim of
circumstance at the end of the prosecutrix. Consequent thereupon,
judgment of conviction and sentence could not survive. It has also
been submitted that for the evidence of remaining witnesses who are
own family members, did not corroborate the victim to such extent, to
justify the allegation. The subjective finding of the Investigating
Officer, as well as conduct of the prosecutrix rules out the allegation.
9. On the other hand, learned APP while supporting
the finding recorded by the learned lower court, has submitted that so
far rape case is concerned, delay is but natural, more particularly, in
the background of Indian social culture whereunder rape happens to
be a stigma upon the victim as well as also adversely affect upon the
prestige of the family. Then coming to the evidence on the record, it
has been submitted that witnesses have corroborated the evidence of
the prosecutrix and that being so, the judgment impugned is fit to be
confirmed. It has also been submitted that false acquisition at least
concerning rape is unknown as an unmarried girl will not sacrifice
herself knowingly and intentionally unless and until she is being
raped.
10. Now coming to the material placed at the end of
the prosecution, it is evident that PW-1 is the formal witness. PW-2 is
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 6
the prosecutrix herself. PW-3 is the mother of the victim, PW-4 is the
maternal grand-father of the victim, PW-5 is the father of the victim,
PWs-6, 7, 8 are the doctor and PW-9 is the Investigating Officer.
PWs, 6, 7 and 8 are members of the medical board which was
constituted for examination of the victim. In the opinion of the doctor,
age of the victim has been estimated in between 16 to 17 years on the
basis of the ossification report. PW-8 is the Gynecologist who
examined the victim and as per her opinion she was not at all
conclusive whether the victim was subjected to rape, more
particularly, in the background of the fact that vagina was admitting
one finger easily as well as she had not found any sign of rape.
Naturally on account of lapse of time.
11. PW-9 is the Investigating Officer who, after
registration of the case, investigated the same, got the victim
examined by the Medical Board, inspected the place of occurrence
which happens to be the house of the victim having boundary, East-
her own parents’ land, West- house of Md. Nazir Mian, North- barren
land of Mustakim Mian and South- barren land of Idris Mian.
Examined the witnesses. Procured the injury report and then,
submitted the charge-sheet. In para-4, there happens to be cross-
examination relating to previous statement of the victim whereunder
there was no discloser with regard to lantern as well as event of
Panchayati. Then had denied the suggestion that the table
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 7
investigation has been done.
12. PW-2, victim, during course of her evidence has
deposed that on the alleged date and time of occurrence she was
sleeping inside a room of her house. Shahabuddin came inside her
room, climbed over cot and then gagged her mouth. He had also
threatened that in case of raising of alarm, she will be done to death
and then, after untying the string of her Salwar, he committed rape.
She tried to raise alarm as well as also wriggled but accused had not
spared her. Then has stated that when Shahabuddin ran therefrom, on
her alarm, her mother chased him but, he managed to run away. She
has further stated that lantern was burning in the room whereupon, she
identified him. On the following day, there was Panchayati. 3-4 times,
dates of Panchayati was rescheduled but, accused persons failed to
participate. Lastly, she had gone to police station on 08.06.2007 and
filed written report. Exhibited the same. Also stated that she was
medically examined.
13. During cross-examination at para-4, she has
stated that the house of accused lies 100-150 yards away from her
house. She has further stated that the house of none lies in the
boundary of her house. In para-5, she has stated that there was door
affixed in the room in which she was sleeping, but it was opened. The
main entrance door was shut but, not bolted. She has further stated
that there happens to be Osara adjacent to that room in which she was
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 8
sleeping. He mother was sleeping over that Osara. On the alleged date
of occurrence, only her mother and sisters, Tarannum Parveen,
Gulabsa and Gulnar were present (not examined). Her sisters were
sleeping in another room. In para-6, she has stated that as door was
not closed so, there was no sound of opening of the door. When
accused came over her cot, then she woke up. She attempted to raise
alarm but till then, her mouth was gagged by the accused who also
threatened. She has further stated that during course of rape, the
accused kept gagging her mouth. However, her both hands were free.
She has not tried to resist by her hand, freely. She had not tried to pull
his hair. She had not indulged in clawing and tearing with her hands.
In para-7, she has stated that she had not tried to push the accused by
her leg. She had not tried to bite as the accused was persistently
threatening her. She tried to resist but without any injury over her
body. In para-8, she has stated that she had not sustained injuries over
her private part, though there was swelling. She had not visited the
place of the doctor. There was stain over her clothe but she had not
shown the same to the Investigating Officer. In para-7, she has stated
that after escaping of accused, she had raised alarm whereupon, none
other than her mother came. She had disclosed the occurrence to the
persons. In para-10, she has stated that none came even on the alarm
of her mother. She has further stated that Panchayati was scheduled 2-
3 days after the occurrence. Then there happens to be contradiction
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 9
with regard to the development relating to identification of accused in
lantern light as well as over Panchayati. In para-12, she had shown
genealogical table of her maternal grandfather wherefrom it is evident
that appellant happens to be son of brother of her maternal
grandfather. She had further disclosed that talk of marriage was not
initiated before the occurrence rather after the occurrence. Then had
denied the suggestion that because of the fact that the family members
of the appellant declined to marry whereupon this case has falsely
been instituted.
14. PW-3 is the mother of the victim. She has stated
that on the alleged date and time of occurrence she was sleeping at her
Osara while her daughter was sleeping alone in the room. When
Shahabuddin began to flee, during course thereof, she woke up and
tried to apprehend him but, the accused succeeded in his escape. Then
thereafter, her daughter had disclosed that Shahabuddin has ravished
her. On the following day, she had disclosed the occurrence to her
father, brother whereupon they tried to convene a Panchayati which
could not succeeded on account of absence of accused persons. Then
thereafter, police was informed. During cross-examination at para-3,
she has stated that on the alleged date and time of occurrence only she
along with victim was present in the house. It was a dark night.
Shahabuddin was 50 yards ahead from her and then managed to
escape. At para-4, she has stated that she had not disclosed to anybody
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 10
regarding the occurrence. She had raised alarm whereupon, the
neighbours came, out of whom, she recognized, Samua, Isudh Mian,
Manzoor, to whom, she had disclosed regarding the occurrence. In
para-5, she has stated that Panchayati was convened on the following
day wherein the accused persons declined to participate. On the same
day, she took the victim to the doctor who had examined her. In para-
6, she had admitted that there was talk of marriage but, as it did not
materialize, then thereafter, this case has been instituted.
15. PW-4 is the maternal grandfather of the victim.
He has deposed that on the alleged date and time of occurrence while
he was sleeping at his house, rushed towards the house of his
daughter, after hearing alarm. When he reached there, had seen his
daughter Rajina Khatoon and daughter’s daughter (victim) present
outside their house and were shouting. Then thereafter, his daughter
had disclosed that Shahabuddin has committed rape upon the victim.
Victim had also disclosed regarding occurrence. He has further stated
that the male members of the village had gone to another village to
participate in a Jalsa. On the following day, Panchayati was convened
but, on account of absence of the accused persons could not
materialized. Then thereafter, this case has been instituted. In para-3,
there happens to be cross-examination relating to location of his house
lying at the distance of 50-60 metres away from the house of his
daughter intervened by a river as well as houses of Narayan Mistri
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 11
and others. In para-4, he has stated that when he reached at the place
of his daughter, so many persons were also present but, he is unable to
disclose their names. In para-5, he has stated that there was no talk of
marriage in between Shahabuddin with the victim. Then has denied
the suggestion that on account of denial by the parents of the accused,
this case has been instituted. In para-7, he has stated that three times
date of Panchayti was fixed but, all the times there was absence of the
accused. Then on that very score, there happens to be contradiction. In
para-8, he has stated that the victim was taken to doctor by her
mother, maternal uncle but he is unable to divulge how many days
after the occurrence. Again said that it was about 10-15 days after the
occurrence.
16. PW-5 is the father of the victim. He has stated
that on the alleged date and time of occurrence he was at Tata
engaged in rickshaw pulling. 2-3 days after the occurrence, he was
informed by his family members regarding the occurrence whereupon
came to the village. Thereafter, his wife as well as the victim
disclosed about the occurrence. His daughter had stated that on the
alleged date and time of occurrence she was raped by Shahabuddin.
He tried to convene Panchayati but the accused persons declined to
participate whereupon, case has been instituted. During cross-
examination at para-4, he has stated that Panchayati was convened
even before his arrival. After his arrival, he again tried to convene a
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 12
Panchayati. He has also denied the suggestion that there was talk of
marriage which was turned down by the parents of the accused
whereupon this case has falsely been instituted in order to pressurize.
17. After going through the evidence available on
the record, it is evident that the occurrence is of mid-night. Place of
occurrence has been shown to be the room in which the victim was
sleeping. At the Osara of that room, PW-3, her mother was sleeping.
She has not said anything with regard to intervening eventuality.
During course of which, the victim was raped after hearing presence
of accused through door which was not bolted since before, rather she
woke up while the victim was 50 yards away from her. She has not
disclosed source of identification which, as is evident been introduced
at the end of the informant/victim, PW-2 subsequently during course
of trial. However, being relative the identification could not be under
dispute. From the evidence of PW-5, it is evident that he was not at all
present at his house rather he was away in order to earn his livelihood
and that also happens to be the version of the PW-3. Even presence of
PW-3, she had not claimed to be an eye witness, and the same status
also happens to be of PW-4. Furthermore, from the evidence of PW-4,
it is evident that victim was taken to doctor by her mother and
maternal uncle after 10 days of the alleged occurrence, while PW-3
had stated that victim was taken to doctor on the next day of the
occurrence. Had there been genuine conduct of the prosecution, the
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 13
name of doctor would have been disclosed, examined. In order to
corroborate the factum of rape, nor the said doctor was ever examined
by the PW-9, the Investigating Officer during course of investigation
and for that, prosecution has got no answer.
18. Now coming to the evidence of the victim, it is
evident that there happens to be some sort of deficiency at her end
whereunder at para-6 and 7, she had categorically admitted that
though her hands were free, she had not used the same in order to
ward off the incident nor she used her legs in order to thrash the
accused. There happens to be no discloser that accused was duly
armed with. Moreover, the doctors, PWs-6 and 7 estimated her aged
to be in between 16-17 years having variance of plus minus two years,
that means to say, the status of victim happens to be major along with
the finding of the PW-8, Gynecologist who was not at all conclusive
over the finding whether the victim was raped or not, more
particularly, in the background of vagina having admitted one finger
easily coupled with the fact of delay. Apart from this, from the
evidence of PW-2, victim it is manifest that not only door of her room
was not bolted, rather the main door of the house was also not bolted,
and the reason therefor has not been explained, which suggest
otherwise, more particularly, when the appellant happens to be distant
relative within permissible degree.
19. Consequent thereupon, the judgment of
Patna High Court CR. APP (SJ) No.127 of 2009 dt.19-11-2018 14
conviction and sentence recorded by the learned lower court is,
hereby, set aside. Appeal is allowed.
20. Since appellant is on bail, he is discharged from
the liability of bail bond.
21. The first and last pages of the instant judgment
be handed over to the learned Amicus Curiae for the needful.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 22.11.2018
Transmission 22.11.2018
Date