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