IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.869 of 2016
Arising Out of PS. Case No.-356 Year-2012 Thana- CIVIL LINE District- Gaya
Md. Sunni, Son of Md. Gaffar, Resident of Mohalla- Purani Karimganj, Churi
Gali, Gaya, P.S.- Civil Lines, Gaya, District- Gaya.
… … Appellant/s
Versus
The State of Bihar
… … Respondent/s
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Ms. Nivedita Nirvikar, Adv.
Mr. Manishdhari Singh, Adv.
For the Respondent/s : Ms. Abha Singh, A.P.P.
For the informant : Mr. Baxi S.R.P.Sinha, Sr.Adv.
Mr. Arvind Kumar, Adv.
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 18-10-2019
Appellant Md. Sunny has been found guilty for an
offence punishable under Sectionsection 376 I.P.C. and has been
sentenced to undergo R.I. for seven years as well as to pay fine
appertaining to Rs.20,000/- and in default thereof, to undergo R.I.
for three years, additionally, under Sectionsection 384 I.P.C. and
sentenced to undergo R.I. for three years, under Sectionsection 420 I.P.C.
and sentenced to undergo R.I. for five years as well as to pay fine
appertaining to Rs.10,000/- and in default thereof, to undergo R.I.
for two years, additionally, under Sectionsection 67A of the Information
and SectionTechnology Act and sentenced to undergo R.I. for five years as
well as to pay fine appertaining to Rs.50,000/- and in default
thereof, to undergo R.I. for five years, additionally with a further
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direction that the sentences should run concurrently vide judgment
of conviction and order of sentence dated 19.9.2016 passed by the
9th Addl. Sessions Judge, Gaya in S.Tr.No. 159 of 2014/ 488 of
2014 arising out of Civil Lines P.S.Case No. 356/2012.
Name withheld (P.W.3) filed a written report on
23.9.2012 disclosing therein that her husband Md. Jafar Alam is
employed under Dr. B.H.Khan. One Md. Rashid happens to be her
tenant and Md. Sunny, who happens to be friend of Md. Rashid,
used to visit and also she used to call her Bhabhi. On 3.7.2012 at
about 12 noon, when her husband had gone to her place of
working, children were at the school, Sunny came at her house and
snapped her naked photo while she was taking bath. She, after
seeing this protested but he intruded inside the bathroom and then,
raped her. It has further been disclosed that at that very time he
was carrying one bottle and cotton and he committed rape after
having her unconscious. Since thereafter he used to sexually
exploit her on the pretext of photo. On 3.8.2012 he demanded
Rs.50,000/- and threatened that in case of non-payment of money
he will expose her naked photo being under pressure thereof, she
had paid Rs.50,000/- which was available with her (30,000/- from
her Naihar and 20,000/- from her husband. He on 5.9.2012 again
demanded Rs.1 lac on an assurance that after the payment, he will
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remove/ erase the photo. In the aforesaid background, she
apprehended blackmailing at his end on the pretext of photo
having snapped by him as well as sexually exploiting her. Then
thereafter, she has disclosed the incident to her mother as well as
her family members. She had intended to commit suicide but on
the consolation having at the end of her mother as well as her
family members, she left her intention.
After registration of Gaya Civil Lines P.S.Case No.
356/2012, investigation commenced and after concluding the same
charge sheet has been submitted which happens to be the basis of
the trial which ultimately concluded in recording finding of guilt
followed with sentence, subject matter of the instant appeal.
Defence case as is evident from the mode of cross-
examination as well as statement recorded under Sectionsection 313
Cr.P.C. is that of complete denial. It has also been pleaded that so
alleged victim happens to be accustomed to modern life and in
order to avail the same, exploited the appellant and used him and
during course thereof, also secured financially and lastly, when she
knew that her affair has been exposed, then thereafter, only to save
herself got this case filed with false and frivolous allegation.
However, nothing has been adduced in defence.
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In order to substantiate its case prosecution has
examined altogether 7 P.Ws. Who are P.W.1 Md. Jafar Alam,
husband, P.W.2 Sabana Khatoon, daughter, P.W.3 the victim
herself (name withheld). P.W.4 Md. Safraj, P.W.5 Dr. Sangeeta
Kumari, P.W.6 Yogendra Mishra and P.W.7 Imran Ahmad. Side by
side has also exhibited Ext.1 written report, Ext.2 injury report and
Ext.3 formal F.I.R. As stated above, nothing has been adduced in
defence.
Learned counsel for the appellant has raised many fold
argument while assailing the judgment of conviction and sentence.
In order to substantiate the same, it has been submitted that there
happens to be specific disclosure in the written report that the
mother and the family members were firstly acknowledged fact
but the mother has not been examined. No explanation is there.
From the evidence of the prosecutrix (P.W.3) as well as her
husband (P.W.1) it is evident that the house is multi-storied.
Ground floor is occupied by his one brother. Upper floor is
occupied by another brother and middle floor is occupied by the so
alleged victim. There happens to be no evidence that for the
middle floor there was separate stair. Neither members of the
ground floor nor upper floor have come to support the case of the
prosecution much less to the effect that some portion of the house
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of the victim was under tenancy nor to the effect that they have
seen the appellant in an unusual manner. P.W.7 is the main I.O.,
who had visited the place of occurrence and there happens to be no
description coming out at least during course of recording of
objective finding of the P.O. that any portion of the house of the
victim was on rent occupied by one Md. Rashid and in likewise
manner, presence of common stair unless and until there happens
to be the presence of Md. Rashid, presence of the appellant would
not as presence of appellant is on that score. Once Md. Rashid is
absent then, in that circumstance, presence of the appellant would
be only after having some sort of affectionate relationship amongst
them.
Then, it has been submitted that during course of
investigation the I.O. had not seized the mobile set nor the victim
P.W.3 had ever spoken during course of evidence that she had seen
her naked photograph in the mobile possessed by the appellant.
That means to say, unless and until there was naked photograph of
the victim, there would not be an occasion for coercing or
exploiting the victim. Once story of snapping of naked photograph
is found to be unreliable then in that circumstance, again story of
sexual exploitation goes away and if any, it was consensual and so,
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no offence could be as there was neither deception nor threat,
rather against two major opposite sex.
It has also been submitted that from the version of the
prosecutrix (P.W.3) it is evident that she was a consenting party
and on that very score her attention has been drawn up under
paragraph 46 and the same happens to be substantiated by the I.O.
(P.W.7) under paragraph 14. Apart from this, it has also been
submitted that when the evidence of the victim (P.W.3) is taken in
its totality, it is evident that she was a consenting party and that
happens to be the reason behind that a specific suggestion was
given to the victim that she was a consenting party but, after
coming to know that her extra marital relationship is found duly
exposed as a result of which, she could be divorced then in that
circumstance, only to save herself this false case has been
instituted. So, in the facts and circumstances of the case, the
finding so recorded by the learned lower court is not at all found
substantiated from the material available on record, whereupon is
fit to be set aside.
Learned Addl. P.P. assisted by learned Senior Counsel
representing the informant/ victim have vehemently opposed/
controverted/ repelled the submission made on behalf of the
appellant. It has been argued that unless and until there happens to
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be some sort of exposer identifying inter se relationship, in
ordinary course of nature, the evidence of the prosecutrix has to be
accepted without any corroboration. If the court, in the background
of nature of evidence may seek corroboration. So far, facts of
present case is concerned, apart from P.W.3 (prosecutrix) evidence
of other witnesses P.W.1, P.W.2 and P.W.4 is available to
corroborate. However, the evidence of P.W.3 inspires confidence
hence is reliable, acceptable. The most crucial thing is while a
woman is put to her married life at a stake by way of labeling such
kind of activity against an accused, she will dare only when she
has faced the exploitation at the end of an accused. It has also been
submitted that it is settled at rest that in cursory manner, the
evidence of the prosecutrix should not be brushed aside. That
being so, the judgment of conviction and sentence recorded by the
learned lower court is fit to be confirmed.
P.W.6 is part I.O., who had simply submitted charge
sheet. No active role has been played by him and so, his evidence
is of no consequence.
P.W.5 is the doctor, who had examined the victim.
Needless to say that the victim is enjoying her married life. She is
mother of six children and that being so, the ultimate finding
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whatsoever been at the end of P.W.5 is in toe therewith and so,
there happens to be nothing unusual.
Now remains evidence of P.Ws.1 and 2, who are
material witness being family members alongwith P.W.7 I.O. The
generic of the present scenario is presence of Md. Rashid as a
tenant in the house of the victim. I.O., P.W.7, had visited the place
of occurrence and had detailed in paragraph 2. He had not shown
any portion of the house occupied by the victim on hire under
occupancy of Md. Rashid nor on that very score, the I.O. was ever
challenged at the end of the prosecution. At the present moment,
evidence of P.W.1, husband of the victim, is to be seen who during
his examination-in-chief at para-2 has stated that Md. Rashid was
his tenant and Md. Sunny was on visiting term. During course of
cross-examination at para-20 has stated that Rashid, who was his
tenant, was residing in the flat occupied by him. At para-21 he has
stated that he had removed Rashid, after 3-4 months of the
occurrence. It is not evident from the record on which date they
came to know regarding occurrence, and on which date Rashid
was removed. It has not been adduced at the end of the prosecution
whether Rashid was removed earlier to visiting of the I.O. at the
place of occurrence or after visiting at the place of occurrence by
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the I.O., P.W.7. In likewise manner P.W.7 I.O. has not disclosed the
exact date on which he had inspected the house.
Now the status of Md. Sunny (appellant) is to be seen.
From the evidence of P.W.1 (husband), it is evident that he had not
found conduct of Md. Sunny suspicious nor derogant rather, he
came to know about the incident only after having been disclosed
at the end of the victim. However, during course of cross-
examination at para-6 he has stated that he knew Md. Sunny since
3-4 years. Then he said at para 22 that Md. Sunny has got shoe
shop at Mohalla Delha. In para-23 he has stated that he alongwith
his friends, namely, Sunil Kumar, Binod Kumar and Sanjay Kumar
has visited the shop of Sunny. In para-24 he has stated that 5-6
times he had visited the shop but he had not gone there alongwith
his wife. In para-25 he has stated that he has got no information
whether his wife had ever gone there alone, then has stated that he
had purchased shoe, Chapal from the shop of Md. Sunny which
the victim (P.W.3) has denied at paras 53, 54, 55, 56. 57, 59. 59. In
para-59 she has stated that she never purchased shoe, chapal from
the shop of Md. Sunny.
Learned counsel for the informant has rightly submitted
that it has been settled at rest that in case, there happens to be
reliability in the evidence of the victim, then in that circumstance
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neither the court will see for corroboration nor will see ultimate
finding of the Doctor/ medical report even given to the extent of
negativity the allegation of rape as, slight penetration is sufficient
to constitute the offence. Further ejaculation is not a condition
precedent for constitution of rape.
So far this case is concerned, it is apparent that none is
an eye witness to the occurrence irrespective of the fact that it was
not a one day affair and further, there was an exploitation as
alleged on the pretext of photograph having snapped by the
appellant Md. Sunny while the victim was taking bath, for quite a
long time.
In the aforesaid background, the evidence of the victim
has got primacy and so, first of all evidence of victim (P.W.3) is
taken up. She during her examination-in-chief has stated that the
occurrence had taken place on 3.7.2012. It was 12 noon. At that
very time, she was taking bath in her bathroom. None was present
inside her house. While she was taking bath, Md. Sunny came to
her house and snapped her naked photograph through his mobile.
Then, after showing photograph he committed rape. He also got
her unconscious by way of administering the sedative. He used to
commit rape on the pretext of that photograph. She has further
stated that on that very basis, apart from committing rape, he
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demanded Rs.50,000/- which she paid on the pretext of deleting
the photograph. Even after receiving money, he continued with
blackmailing her keeping the photograph. After a month, Md.
Sunny again demanded 1 lac rupees. She had not given the money.
She thought to commit suicide but subsequently, she disclosed the
event to her mother as well as husband. Then she had gone to the
police station alongwith her family members where she had filed
written report (exhibited). Also filed protest petition.
During cross-examination at para-9 she has stated that
she had paid on 3.7.2012. One month after giving of money, she
met Md. Sunny. At that very time, there was no talk. At para-10
she has stated that when he came one month thereafter, stayed for
an hour. At para-11 she has stated that at that very time her
husband was not there, her children were not there. The house was
vacant. In para-13 she has stated that he stayed about an hour. He
stayed in her room. The main gate was open. In para-14 he has
stated that his repeate visit to her place, was disclosed to her
husband. In para-16 she has stated that she had disclosed about 15-
20 days prior to institution of the case. She had disclosed to
Sarfaraj and Sadam. In para-18 she has stated that neither she
raised alarm nor she disclosed to anybody when Sunny visited at
subsequent time. In para-21 she has stated that she had taken bath
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in the bathroom being in naked condition. In para-22 she has stated
that on 3.7.2012 sin was committed. In para 23, 24, 25, 26 there
happens to be cross-examination relating to her posture during
course of commission of rape which she delicately answered. In
para 27 she has stated that she had not raised alarm after coming
out from the bathroom. At para 28 she has stated that she had
grappled with Md. Sunny and during course thereof, she had
sustained injury over her waist. In para 33 she has stated that she
had disclosed the incident to Sadam and Sarfaraj and before that,
she had already disclosed to mother and husband as is evident
from para-35. Then at para-39 she has stated that she was raped
second time one month thereafter but where she was raped, she is
unable to say. At para-40 she has stated that she was raped at third,
fourth time in a room but again said that she is unable to say
whether in a room, varandah. Her attention has been drawn with
regard to her previous statement made before the police that she
had indulged with physical relationship voluntarily. When her
husband came to know about the incident, she was directed to file
case and the same happens to be substantiated by P.W.7, para-14.
In para 49 she has stated that her naked phto was snapped by Md.
Sunny but she had not disclosed the same to her other family
members who were residing at ground floor as well as at upper
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floor. At para 51 she has stated that she was not possessing the
mobile and so, denied the suggestion having at para 52 that she
was in regular contact with Sunny. From para 53, 54, 55, 56, 57,
58, 59 there happens to be cross examination regarding status of
the accused Md. Sunny and whether her husband used to purchase
shoe, chappal from the shop of Sunny or not. In para 60 she has
stated that the railway line lies after 5-7 building from her house.
She had thought to commit suicide after coming over the railway
line but after having talk with her mother, she relinquished her
intention. In para 61 she has shown the accused to be young as
well as having sufficient means. In para 62 she has also claimed
herself to be smart. There happens to be contradiction with regard
to her previous statement under paras 63, 64, 65, 66, 67 but those
things have not been confronted to the I.O.. P.W.7. In para 68 she
has stated that she had not shown the sachets of medicine by which
she was made unconscioous. In para 69 she has stated that she had
shown the cloth by which she had cleaned her body, to the police.
At para 70, 71 she had denied the suggestion that she was a
consenting party and she exploited the accused. She developed
physical relationship with him voluntarily and in likewise manner
also snatched the money from him and then, having known to the
husband, got this case filed with false frivolous allegation.
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P.W.1 is the husband. Admittedly, he is not an eye
witness to the occurrence. He has deposed that after going to the
job and children to the school, his wife are to remain alone at his
house. One Md. Rashid was his tenant where Md. Sunny used to
visit. On 3.7.2012 at about 12 noon while his wife was taking bath
in her bathroom, none was present, at that very time Md. Sunny
snapped semi naked photograph of his wife and on that very
pretext, he had raped her. He had shown semi naked photo of his
wife and on that very score continued with sexually exploiting her.
His wife became very much perplexed over presence of the
photograph. Md. Sunny also succeeded in procuring Rs.50,000/-
on the pretext that after the money he will delete the photograph
but he had not deleted the same. After some time, Md. Sunny
demanded Rs. 1 lac. His wife disclosed that she had no money.
Then said that Rs.50,000/- was paid (20,000/- his money and
30,000/- mother’s money). Even thereafter, Md. Sunny continued
with sexually exploiting her. On account thereof, his wife intended
to commit suicide. However, she disclosed the event to her mother
and then, she disclosed to all of them. Thereafter all the family
members have come to the police station where his wife had filed
written report (Ext.1). He has further stated that after arrest of Md.
Sunny, his friends came at his shop and threatened him of dire
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consequences. All the events what he has deposed is based upon
information given by his wife. Identified the accused.
During cross-examination, at para-6 he has stated that
Md. Sunny is known to him for the last 3-4 years. He is unable to
say from which time his wife knew him. He is known to his wife.
Then at para-8, 9, 10, 11, 12 he has disclosed the photography of
his house being multi-storied. Ground floor is occupied by his
younger brother while upper floor is occupied by his elder brother.
Middle portion is occupied by him. Also disclosed that five
children and a wife of his elder brother is residing over the upper
house. At para 10, 11, 12 (there is wrong numbering) there
happens to be details of his house. Just after entering inside his
house there happens to be Varandah having 3′ width. The stair
leading to the upper floor is situated in the aforesaid Varandah.
Then, there happens to be bathroom. The door of bathroom is
towards Northern side. Both side of the bathroom, that means to
say, East and West there happens to be a room. Altogether four
rooms are in his possession. Then has disclosed that the bathroom
is opened. No door is affixed. Again said that at the time of taking
bath, the door of bathroom was opened. In para-17 he has stated
that he knew about the occurrence from his mother-in-law, wife
three months after the occurrence and during midst thereof, the
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accused used to visit his house. In para-18 he has stated that he
came to know about the sexual exploitation of his wife as well as
taking of Rs.50,000/- once. He had not informed the other family
members. His tenant Rashid was residing in the middle portion of
the house being allotted to his share. In para-21 he has stated that
about 3-4 months after the occurrence, he removed him. In para-23
he has stated that he had got no occasion to see naked photograph
of his wife. Then at para 24, 25 there happens to be cross-
examination with regard to constitution of the Committee in the
mohallah. In para 26, 27, 28, 29, 30 there happens to be cross-
examination with regard to identity of Md. Sunny as shopkeeper
and having his visit at his shop, alongwith friends as well as alone
having purchased the shoe and chapal from his shop. At para 32,
33, 34 his attention has been drawn with regard to previous
statement but from the evidence of P.W.7 (para-15) only one
statement has been confronted, that too with regard to presence of
Rashid. Then at para-36 he has stated that he is unaware with the
fact when sexual exploitation of his wife begin and when it ended.
Then at para- 37 and 38 there happens to be cross-examination
over the event of intention to commit suicide.
P.W.2 is the daughter. During her examination-in-chief,
she has reiterated the same version. During cross-examination at
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para-5 she has stated that no occurrence had taken place in her
presence. In para-7 she has stated that accused used to visit but
there was no cordial relation. At para-8 she has statd that she has
got no personal knowledge. At para 9, 10 she has stated that Md.
Sunny was not on visiting term. In para-11 she has stated that she
had not seen any photograph.
P.W.4 is Md. Sarfraz, who has disclosed that the
occurrence took place with the victim about 3 years ago. He came
to know about the occurrence just 15 days after the occurrence.
She had disclosed that while she was alone at her house and was
taking bath, Md. Sunny came and snapped her photograph and
then, committed rape on that very pretext, also managed to procure
Rs.50,000/- on the pretext of deleting the photograph and then also
demanded Rs.1,50,000/-. Identified the accused.
During cross-examination at para 11, 12 there happens
to be description with regard to presence of the family members of
the elder, younger brother of P.W.1 at the upper as well as ground
floor of the house respectively. In para-21 he has stated that the
victim had not disclosed how many times she was raped. He had
not seen the photograph. In Para-22 he has stated that he had not
seen visit of Sunny during day time. Then has denied the
suggestion.
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P.W.7 is the I.O. During his examination-in-chief he has
stated that after he was entrusted with the investigation of the case,
(exhibited all the relevant documents) he had taken further
statement of the informant, statement of the relevant witnesses.
Sent the victim to hospital. Inspected the place of occurrence
which happens to be the house of the victim. She resides in the
middle floor. At the ground floor as well as upper floor brother of
the husband of the victim resides. Then has disclosed the boundary
of the house. Conducted raid to apprehend accused who was found
absconding. He took proper step for proclamation. However, as
has been transferred, on account thereof, handed over the charge.
During cross-examination at para-5 he has stated that he had not
found broken bangle glass, cloth having spot at the place of
occurrence. He had not recorded statement of the brother of the
husband of the victim as well as their family members. In para-9
he has stated that he had not mentioned the length and width of the
bathroom. There was no door in the bathroom. It was open. He had
not seen dirty cloth in the bathroom. Then at para-13 has stated
that doctor had not found it a case of rape. Then para-14 there
happens to be contradiction relating to the victim, para-15 relating
to Jaffar Alam (P.W.1). At para-16 he has stated that during the
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course of investigation he had not been able to see naked
photograph of the victim.
From perusal of the evidence as discussed hereinabove,
it is abundantly clear that presence of the bathroom is found just in
front of Varandah which lies soonafter having entrance inside the
house. Although, during the course of examination-in-chief P.W.7
has not disclosed with regard to location of the bathroom, whether
door was affixed or not in front of the bathroom, no sketch map
has been to locate property the inner side of the house but during
cross-examination though he has not disclosed the location but has
disclosed that no door was affixed in the bathroom. However, there
happens to be inconsistency on that very score with the evidence
of P.W.1 (para-60). More over, the victim is completely silent with
regard to location of the bathroom as well as having door affixed
therewith or not. There also happens to be no evidence whether
there was door on the main entrance or not. Those things are very
much relevant because of the fact that the victim was knowing
since before that the door was not available, there happens to be
presence of stair to go to upper floor then in that circumstance,
there should have been proper precaution as to avoid any kind of
exposure. Further more, there happens to be no evidence that
accused came to bathroom and then snapped the photograph. So,
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snapping of photograph is a circumstance which would have been
properly explained. When she found that her conduct would
suggest otherwise, got the appellant in possession of sedative,
which he used and then raped. So, actually rape was commited
before snapping or after snapping. That means to say, whether rape
was committed on the pretext of naked photograph, mother after
being unconscious on account of sedative used by the accused.
Apart from this, from the evidence of the victim herself more
particularly at para-62, she has claimed herself to be a smart. Then
in that circumstance, even having been raped at that very moment
on that very pretext, would not have spared the culprit nor would
have allowed to be exploited at his end for such long period on the
pretext of photograph having been snapped by him in stead of
would have divulged the whole event more particularly to her
husband as well as other family members who were residing over
the ground floor as well as upper floor. Even at that very moment
had she taken proper step, then in that circumstance, the accused
would not have an opportunity to slip. Further more, from the
evidence of the victim, it is evident that she allowed herself to be
exploited without any protest, knowing fully well that the photo
happens to be inside the mobile of the accused which she never
tried to snatched even during such precarious stage or even at the
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time when Rs.50,000/- was paid. However, from her evidence
more particularly at para 21,22, 23, 24, 25 it is evident that she has
controverted or at least created doubt over her own version,
whether she was raped on the pretext of photograph or after
becoming unconscious.
It is the prosecution who has to prove its case. Had there
been a single incident of rape, then in that circumstance it would
have been a different colour but indulgence for such long period
and for that, there happens to be an allegation that after snapping
naked photograph while victim taking bath and then on that very
pretext continued with committing rape, speaks otherwise more
particularly when the house is occupied not only by the victim
herself rather two other family members who not only shown their
isolation by way of absence in becoming witness rather, would not
have allowed the appellant to commit such kind of occurrence
unless and until there would have been some sort of green signal at
the other end. Further more, had the victim not been a consenting
party, then in that circumstance, subsequent visit of accused would
have led him to custody being apprehended by her family member,
and in likewise manner relating of mobile, as the story of
snapping, in absence of mobile happens to be mere an imagination.
Apart from this, the most surprising feature is, presence of victim
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relating to Md. Rashid at the time of occurrence. In likewise
manner, during subsequent visit of accused. Not only this, when
Rashid was present inside the house, having no door at the
bathroom, would allow the victim to take bath nakedly. After
having minute scrutiny of the evidence of the victim, did not
inspire confidence, that being so, the appellant is found entitled for
acquittal.
Consequent thereupon, the judgment of conviction and
sentence recorded by the learned lower court is hereby set aside.
The appeal is allowed. The appellant is under custody. Hence, he is
directed to be released forthwith, if not wanted in any other case.
(Aditya Kumar Trivedi, J)
Surendra/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 25.10.2019
Transmission Date 25.10.2019
