Patna High Court CR. APP (SJ) No.893 of 2017 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.893 of 2017
Arising Out of PS.Case No. -73 Year- 2013 Thana -CHAPRA MUFFASIL District- SARAN
Mintu Manjhi, s/o – Bir Bhajan Manjhi, resident of village – Fakuli, P.S. Chapra
Muffasil, District – Saran (Chapra).
…. …. Appellant/s
Versus
The State of Bihar.
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Abhay Kumar Singh-Advocate
Mr. Bharat Bhushan-Advocate
For the Respondent/s : Mr. S. Ashfaque Ahmad-A.P.P.
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 9-10-2017
Appellant, Mintu Manjhi has been found guilty for an
offence punishable under Section 8 of POCSO Act and sentenced to
undergo R. I. for five years as well as fined appertaining to
Rs.25,000/- and in default thereof, to undergo S.I. for one year vide
judgment of conviction dated 17.02.2017, order of sentence dated
21.02.2017 passed by the 1st Additional Sessions Judge-cum-Special
Judge, POCSO, Saran at Chapra in connection with POCSO Case
No.02 of 2015 arising out of Chapra Mufassil P. S. Case No.73 of
2013.
2. Name withheld, PW-11 aged about 11 years gave her
fard-bayan while she was admitted at Sadar Hospital, Chapra on
27.03.2013 at about 3.00 p.m. in presence of her uncle Umesh Sharma
Patna High Court CR. APP (SJ) No.893 of 2017 2
alleging inter alia that on the same day at about 1.30 p.m. while she
had gone to field of Bhola Singh to ease herself and was to sit, Mintu
Manjhi appeared, caught hold her, threw her on the ground, undressed
her and then, committed rape. Out of severe pain, she raised cry
whereupon he thrust towel inside her mouth. After committing rape,
he escaped leaving her. Due to commission of rape, she was feeling
severe pain as well as difficulty in walking. Anyhow, she got up,
came to her house and then, disclosed the occurrence to her
grandmother as well as uncle, who along with co-villagers brought her
to Sadar Hospital for treatment, which was going on.
3. After registration of a case bearing Chapra Mufassil P.
S. Case No.73 of 2013, investigation commenced and after
completing the same, chargesheet was submitted under Section
376(2)(g)/34 of the I.P.C. against the appellant along with Mintu
Singh, Chandan Kumar, Ram Prakash Ram (since acquitted). Then
thereafter, cognizance was taken ultimately paving way for trial which
concluded in a manner, the 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. Furthermore, it has been pleaded
that appellant on the alleged date and time of occurrence was at his
house which lies away from the P.O. village and to substantiate the
Patna High Court CR. APP (SJ) No.893 of 2017 3
same, two DWs have been examined.
5. In order to substantiate its case, prosecution had
examined altogether 13 PWs, who are PW-1 Arun Sharma, PW-2
Umesh Sharma, PW-3 Kulwant Kumar Mahto, PW-4 Bimal Mahto,
PW-5 Dablu Singh, PW-6 Ajay Kumar Singh, PW-7 Janardan Singh,
PW-8 Babloo Kumar, PW-9 Sudhir Singh, PW-10 Dr. Kiran Ojha,
PW-11, the victim, PW-12, Chameli Devi and PW-13, Sujit Das as
well as had also exhibited viz. Exhibit-1 series, signature of informant
as well as witnesses over fard-bayan, Exhibit-2 signature of police
official over fard-bayan, Exhibit-3 medical report, Exhibit-4 signature
of victim over statement under Section 164 of Cr.P.C., Exhibit-5 fard-
bayan, Exhibit-6 endorsement over fard-bayan, Exhibit-7 formal
F.I.R., Exhibit-8 series, seizure list as well as signature of respective
witnesses, Exhibit-9 series, F.S.L. Report. As stated above, two DWs
have been examined, who are DW-1, Satish Kumar Singh and DW-2
Rajiv Kumar Singh as well as had also exhibited, Exhibit-A further
statement of the victim.
6. Before coming to merit of the case, it is apparent from
the L.C. Record that appellant was identified solely to be the rapist as
per initial prosecution version while during course of statement
recorded under Section 164 of the Cr.P.C., victim had alleged that she
was gang raped by four persons one by one and on account thereof,
Patna High Court CR. APP (SJ) No.893 of 2017 4
chargesheet was submitted against all of them and accordingly, charge
was framed under Section 376(2)(g)/ 34 of the I.P.C. After
examination of the witnesses, a petition was filed on behalf of
prosecution under Section 216 of the Cr.P.C. on 02.09.2015,
whereupon objection was filed and after hearing the parties, vide
order dated 15.09.2015, prayer of prosecution was allowed and in
terms thereof, the accused were further charged for an offence
punishable under Section 4 of POCSO Act. It is also evident from the
order dated 15.09.2015 that the witnesses so examined till then,
numbering upto PW-10 were re-summoned, but as is evident from the
L.C. Record neither summon was issued against them nor they turned
up on their own. That means to say, the evidence of PW-1 to PW-10
is found non-considerable relating to Section 4 of the POCSO Act.
The subsequent witnesses after amendment of the charge are PW-11
the victim, PW-12 Chameli Devi and PW-13 Sujit Das.
7. The first and foremost argument having been made on
behalf of learned counsel for the appellant while assailing the
judgment of conviction and sentence is that the learned lower Court
failed to appreciate the event visualizing from the L. C. Record in its
right perspective. To substantiate the same, it has been submitted that
the victim, PW-11 neither in her fard-bayan nor in her further
statement had disclosed the event of gang rape committed by four
Patna High Court CR. APP (SJ) No.893 of 2017 5
accused persons one by one, but when she was produced before the
Magistrate for her examination under Section 164 Cr.P.C., she had
developed the story and posed it to be an incidence of gang rape. In
the aforesaid background, considering the tender age of the victim, it
is apparent that she happens to be wholly unreliable as well as nicely
tutored as a result of which, the learned lower Court while
disbelieving her testimony relating to three others accused (since
acquitted) should have also rejected the same relating to appellant by
way of recording acquittal as once evidence of a witness is found de-
raised, it has to be in its entirety and not in piecemeal manner. That
means to say, learned lower Court should have treated the appellant in
same way like other co-accused and would have acquitted the
appellant.
8. Furthermore, it has also been submitted that now
coming to status of independent witnesses including F.I.R. attesting
witness, who happens to be uncle of the victim namely Umesh Singh
(PW-2), though had admitted his presence over the fard-bayan, but
disowned the occurrence and in the aforesaid background, apart from
adversely affecting testimony of PW-11, victim, it had also cast doubt
over reliability of evidence of Chameli Devi (PW-12), grandmother of
the victim. In likewise manner, other material witnesses i.e. PW-1,
PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 did not support
Patna High Court CR. APP (SJ) No.893 of 2017 6
the case of the prosecution, whereupon they all were declared hostile.
PW-13 is the I.O. and his objective finding relating to the alleged P.O.
did not match with the version of PW-11, victim. So, it has been
submitted that in spite of finding of the doctor (PW-10), who found
injury over private part of the victim did not illustrate the prosecution
case rather considering the prosecution case in its entirety suffer from
uncertainty. Consequent thereupon, the judgment of conviction and
sentence recorded by the learned lower Court happens to be perverse,
cryptic, erroneous and is fit to be set aside.
9. On the other hand, learned Additional Public
Prosecutor while supporting the finding of the learned lower Court
has submitted that being of tender age, there was every possibility to
left the names of other co-accused on account of suffering from
trauma while meeting with horrifying situation, wherefrom she came
out and under such situation she had detailed while examined under
Section 164 of the Cr.P.C. in spite of the fact that F.I.R. should not be
encyclopaedia, which the learned lower Court rejected without
assigning any cogent reason. However, so far status of appellant is
concerned, has been properly identified to be rapist, and is found
corroborated with the evidence of PW-10, the doctor. Furthermore,
recording of fard-bayan at Sadar Hospital, while she was admitted as
indoor patient, is another circumstance, which corroborates the event.
Patna High Court CR. APP (SJ) No.893 of 2017 7
It has further been submitted that though state has not challenged the
judgment impugned, but manner whereunder the learned lower Court
dealt with the evidence as well as in absence of vindicable reasoning,
did not justify the finding recorded by the learned lower Court, at the
other end, attracts remand after setting aside the same.
10. As is evident from the record, majority of witnesses
including uncle of victim Umesh Sharma (PW-2), who was one of the
attesting witness have become volte-face to the prosecution
whereupon, PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-8, PW-9
were declared hostile. So far evidence of PW-7 is concerned, it is
evident that he though supported the occurrence, but did not identify
any of the accused including the appellant to be author of the crime.
That means to say, prosecution case rest upon testimony of PW-10,
Dr. Kiran Ojha, PW-11 the victim, PW-12 her grandmother Chameli
Devi and PW-13 Sujit Das, the I.O. Before coming to the evidence of
respective witnesses, it is manifest that PW-10 was examined before
addition of charge under Section 4 of POCSO Act.
11. PW-10, the doctor had examined the victim on the
date of occurrence itself that means to say, on 27.03.2013 and found
following injury over her person:-
“There is no injury on her whole body.
Pubic hair, axillary hair absent. Breast not
Patna High Court CR. APP (SJ) No.893 of 2017 8developed. There is fresh lacerated wound
on post angle of vagina. Size 1.5 cm. depth,
0.5 cm upto mid of perineum. There is no
any other injury on her private part. Hymen
fresh teared, duration of injury within six
hours. Two vaginal swab taken and sent for
F.S.L. Chapra.
Report-Hishopathological examination done
by Dr. D. Kumar says that spermatozoa not
found either live or dead.
Opinion- On account of above fact we can
say that the age of victim 9-11 years.
Possibility of intercourse cannot be ruled
out.”
So, as per finding recorded by the PW-10, it is evident
that she was subjected to sexual intercourse. At the present juncture, it
looks desirable to have a glance over F.S.L. Report, which has been
submitted and exhibited attracting Section 293 Cr.P.C., which shows
presence of human blood over apparel as well as semen also.
12. PW-11 is the victim. Apart from her own disclosure
being minor aged about 10 years, the doctor (PW-10) had also found
her to be aged about 10 years coupled with the fact that her status also
not been challenged on behalf of appellant. So, minority that too of
Patna High Court CR. APP (SJ) No.893 of 2017 9
tender age is found out of controversy. During her examination-in-
chief, she had deposed that on the alleged date and time of occurrence
while she was going to ease herself in the field of Bhola Singh, she
saw four persons Pintu @ Mintu Manjhi, Prakash Ram, Chandan
Kumar Ram, Mintu Singh standing near Peepal tree and were
laughing. They have not spoken anything to her. She crossed them.
While she was about to sit, all the four came and forcibly lie her
down. Her paint was un-zipped by Mintu Manjhi as well as Mintu
Singh and then, all of them committed rape one by one. She raised
alarm over which Mintu Singh gagged her mouth as well as
threatened to commit murder in case she would disclose the incidence.
Till then, she already raised alarm whereupon all of them escaped.
She was not at all in a position to walk anyhow, she came to her house
and disclosed the occurrence to her grandmother, whereupon her
grandmother disclosed the event to his uncle, who was residing
adjoining to her house. He took her to hospital where she was treated.
Police came and recorded her statement. She put her signature. Her
further statement was recorded on the same day. Police had taken
away seized blood stain cloth. Her statement was also recorded under
Section 164 of the Cr.P.C., identified the accused. She had further
stated that out of aforesaid accused persons, only Mintu Singh was her
co-villager, rest were of different villages. As they used to come to her
village for menial work, on account thereof, she was able to identify
Patna High Court CR. APP (SJ) No.893 of 2017 10
them. During cross-examination at Para-6, she had stated that it was
Holi. She had not gone to ease carrying water. At Para-7, she had
stated that she was wearing Jeans, T-shirt and Panty. Crops were
already harvested from the field. She could not resist as all the
accused persons have caught hold her leg and hand. In Para-8, she had
further stated that there was trampling mark at the P.O. She had gone
to hospital in same cloth. In Para-9, she had stated that after half hour
of admission at hospital, police came and recorded her statement. At
that very time, whatever she memorized, stated before the police. In
Para-13, she had stated that it was not field of Bhola Singh rather
Bhola Sah. Her legs and hands were not tied rather caught hold by the
accused persons. She is unaware whether the towel, which was thrust
in her mouth was shown to the police or not. In Para-15, she stated
that she was not knowing since before father’s name of Mintu Manjhi.
Who had disclosed, she is not remembering. Then at Para-7, she had
denied the suggestion that she was not raped. On behalf of others
while she was cross-examined, she had stated that she is not
remembering the time during course of which, she was raped. In Para-
19, she had stated that first of all, Mintu Manjhi had committed rape
then Mintu Singh and then, Prakash Ram and then, Chandan Kumar
Ram. She had further stated that after commission of rape that
accused slipped and in successive manner, they committed rape. In
Para-22, she had stated that as soon as she came to the field, she was
Patna High Court CR. APP (SJ) No.893 of 2017 11
forced to lie down and then, they began to rape. She was crying. She
had sustained some injuries over her body. There was bleeding which
also fallen over her cloth. She had not sustained injury over any part
of body. In Para-24, she had disclosed the locations of houses of
different persons and the distance thereof from the P.O. Then had
denied the suggestion that only for the purpose of squeezing money
from the family of Mintu Singh, he has been named.
13. PW-12 is grandmother of the victim. She had said
that it was Holi. She was at her house. She was cooking. Her
granddaughter came and disclosed that she was going to ease. At that
very time, victim was aged about nine years. Even after 15 minutes,
when she did not return, she came out from her house. When she
came over road, she saw her granddaughter fallen down over the road.
Seeing her, She began to weep. On query, she could not say anything.
Then she began to see her minutely and during course thereof, had
found blood stain over her cloth. Blood was coming out from her
private part. On great persuasion, she disclosed that Mintu Singh,
Mintu Manjhi, Prakash Ram and Chandan Ram have raped her after
unzipping her paint and forcing her to lie down. They thrust towel in
the mouth, caught hold leg and hand. On hue and cry, villagers came,
who seeing condition of the victim, advised to hospitalize whereupon,
she was taken to Chapra Sadar Hospital by her uncle where she had
Patna High Court CR. APP (SJ) No.893 of 2017 12
made fard-bayan whereupon, she had also put her R.T.I. Victim was
admitted to Chapra hospital for eight days. During cross-examination,
she had stated that victim proceeded from the house at about 1.30 p.m.
She met with the victim after the occurrence at a place which happens
to be ten laggi away from her house. At that very time, she had seen
blood over her cloth. She had talked with her granddaughter about
two minutes. She was taken to hospital where they arrived to 2.30
p.m. Umesh happens to be her nephew. About 50 persons of her Tola
have accompanied them. Police came at the hospital, her statement
was also recorded by the police. In Para-13, there happens to be
contradiction.
14. PW-13 is Sujit Das, the I.O. He had deposed that on
27.03.2013, he was posted at Chapra Mufassil P. S. as A.S.I. As per
direction of the Officer-in-Charge, he had gone to Sadar Hospital
where recorded fard-bayan of victim. (exhibited). Also exhibited
endorsement over the fard-bayan, formal F.I.R. etc. He had also
deposed that he had seized blood stain panty, jeans having blood stain
and for that, prepared production-cum-seizure list (exhibited). Then
thereafter, he was entrusted with the investigation and on account
thereof, he had recorded statement of Umesh Sharma, Chameli Devi,
Dablu Singh. Then thereafter, visited the place of occurrence, which
happens to be the mango orchard lying adjacent west to the field of
Patna High Court CR. APP (SJ) No.893 of 2017 13
Bhola Singh where witnesses have disclosed the event of rape. He
identified the same as North-Mango Orchard of Lal Kishore Singh,
South-Road, East-field of Bhola Singh and then, Road and then, tent
house of Mintu Singh, West- field of Akhilesh Singh wherein maize
crop was standing. He had also recorded statement of Arun Kumar,
Bablu Kumar Singh. At that very moment, the Officer-in-Charge as
well as other police personnel also arrived. Accused Chandan Ram
and Prakash Ram, who were apprehended by the villagers since
before, were produced before them and brought to Sadar hospital
where they were examined. They were also interrogated. Then they
were remanded to judicial custody. On 29.03.2013, he had examined
Ajay Kumar Singh, Sudhir Singh, Kulwant Kamal Mahto, Ravindra
Singh, Janardan Singh and Bimal Mahto. He also apprehended Mintu
Manjhi. He received medical report of the victim on 31.03.2013. Got
the victim examined under Section 164 of the Cr.P.C. and then
thereafter, after completing the investigation, submitted chargesheet
under Section 376(2)(g) of the I.P.C.
During cross-examination, he had stated that Sanha Entry
was recorded over receiving of information regarding commission of
the occurrence. In Para-12, he had stated that after coming to Sadar
Hospital, he had prepared injury report relating to the injuries having
over the person of victim. He had further stated in Para-13 that fard-
Patna High Court CR. APP (SJ) No.893 of 2017 14
bayan was recorded at about 5.00 p.m. So many persons were present
there and signed over the same. Production-cum-seizure list was
prepared at about 5.30 p.m. Seized articles was not before him. He
had recorded further statement of victim at about 5.15 p.m. He had
prepared sketch map with regard to the P.O. However, he had not
mentioned presence of blood at the P.O. and in likewise manner,
presence of trampling mark. At Para-24, he had further stated that all
the seized articles were sent to F.S.L. for examination, but he is
unaware whether report has been received or not. In Para-25, he had
further stated that he is unaware with regard to duration of treatment
of the victim at the hospital. In Para-26, he had stated that during
course of recording of fard-bayan, victim had not stated that all the
four accused persons have committed rape. In Para-27, there happens
to be contradiction regarding Chameli Devi.
15. DWs have been examined on behalf of defence. DW-
1 is co-villager of appellant, Mintu Manjhi, who had deposed that on
the alleged date and time of occurrence, it was Holi. Mintu Manjhi
was present at his house along with him and had celebrated Holi. It
had further been disclosed that there was Election of Mukhiya and
during course thereof, they have voted in favour of Barsa Kumari. The
other candidate Maheshwar Singh was aggrieved thereby and on
account thereof, he managed the whole thing. During cross-
Patna High Court CR. APP (SJ) No.893 of 2017 15
examination, he had admitted that case has been registered for rape.
He had not made statement before the police.
16. DW-2 is the witness of the P.O. village, who had
deposed regarding topography of the P.O. stating that there happens to
be flow of people in its surrounding. He had further stated that victim
had instituted case against Mintu Manjhi. Later on, he came to know
that Mintu Singh and two others have also been implicated. He had
further stated that on the alleged date and time of occurrence, Mintu
Singh was along with them.
17. The learned lower Court, as is evident from finding
recorded under Para-19 that victim had not whispered with regard to
complicity of other co-accused (since acquitted) in the fard-bayan as
well as statement having made under Section 164 Cr.P.C. which
happens to be inconsistent with the material as, from the statement of
the victim recorded under Section 164 Cr.P.C., it is evident that she
had named Mintu Manjhi, Mintu Singh while two others were not
named. Moreover, as the state has not challenged the judgment of
acquittal relating to other co-convict as well as on account of non-
examination of the Magistrate, who had recorded statement of the
victim, the issue is left without any further discussion.
18. From the judgment impugned, it is manifest that the
learned court did not consider the medical report in consonance with
Patna High Court CR. APP (SJ) No.893 of 2017 16
F.S.L. Report, to arrive at right conclusion.
19. In Bhagwan Jagannath Markad and others vs. State
of Maharashtra reported in (2016) 10 SCC 537, it has been held:-
“17. Before considering this aspect with
reference to the evidence on record, we may
advert to the settled principles of law
dealing with the issues arising in the present
case. The approach to be adopted by the
court generally in appreciating the evidence
in a criminal case as also the approach of
the appellate court is discussed in several
decisions of this Court, some of which have
been cited by learned counsel for the
parties.
18. It is accepted principle of criminal
jurisprudence that the burden of proof is
always on the prosecution and the accused
is presumed to be innocent unless proved
guilty. The prosecution has to prove its case
beyond reasonable doubt and the accused is
entitled to the benefit of the reasonable
doubt. The reasonable doubt is one which
occurs to a prudent and reasonable man.
Section 3 of the Evidence Act refers to two
conditions – (i) when a person feels
Patna High Court CR. APP (SJ) No.893 of 2017 17absolutely certain of a fact – “believe it to
exist” and (ii) when he is not absolutely
certain and thinks it so extremely probable
that a prudent man would, under the
circumstances, act on the assumption of its
existence. The doubt which the law
contemplates is not of a confused mind but
of prudent man who is assumed to possess
the capacity to “separate the chaff from the
grain”. The degree of proof need not reach
certainty but must carry a high degree of
probability [(1990) 3 SCC 190]
19. While appreciating the evidence of a
witness, the court has to assess whether
read as a whole, it is truthful. In doing so,
the court has to keep in mind the
deficiencies, drawbacks and infirmities to
find out whether such discrepancies shake
the truthfulness. Some discrepancies not
touching the core of the case are not enough
to reject the evidence as a whole. No true
witness can escape from giving some
discrepant details. Only when discrepancies
are so incompatible as to affect the
credibility of the version of a witness, the
court may reject the evidence. Section 155
Patna High Court CR. APP (SJ) No.893 of 2017 18of the Evidence Act enables the doubt to
impeach the credibility of the witness by
proof of former inconsistent statement.
Section 145 of the Evidence Act lays down
the procedure for contradicting a witness by
drawing his attention to the part of the
previous statement which is to be used for
contradiction. The former statement should
have the effect of discrediting the present
statement but merely because the latter
statement is at variance to the former to
some extent, it is not enough to be treated as
a contradiction. It is not every discrepancy
which affects creditworthiness and
trustworthiness of a witness. There may at
times be exaggeration or embellishment not
affecting credibility. The court has to sift the
chaff from the grain and find out the truth. A
statement may be partly rejected or partly
accepted [(1999) 9 SCC 525]. Want of
independent witnesses or unusual behavior
of witnesses of a crime is not enough to
reject evidence. A witness being a close
relative is not enough to reject his testimony
if it is otherwise credible. A relation may not
conceal the actual culprit. The evidence may
Patna High Court CR. APP (SJ) No.893 of 2017 19be closely scrutinized to assess whether an
innocent person is falsely implicated.
Mechanical rejection of evidence even of a
„partisan‟ or „interested‟ witness may lead
to failure of justice. It is well known that
principle “falsus in uno, falsus in omnibus”
has no general acceptability [(2002) 8 SCC
381]. On the same evidence, some accused
persons may be acquitted while others may
be convicted, depending upon the nature of
the offence. The court can differentiate the
accused who is acquitted from those who
are convicted. A witness may be untruthful
in some aspects but the other part of the
evidence may be worthy of acceptance.
Discrepancies may arise due to error of
observations, loss of memory due to lapse of
time, mental disposition such as shock at the
time of occurrence and as such the normal
discrepancy does not affect the credibility of
a witness.
20. Exaggerated to the rule of benefit of
doubt can result in miscarriage of justice.
Letting the guilty escape is not doing justice.
A Judge presides over the trial not only to
ensure that no innocent is punished but also
Patna High Court CR. APP (SJ) No.893 of 2017 20to see that guilty does not escape.[(2002) 8
SCC 381].”
20. In State of Himachal Pradesh v. Sanjay Kumar alias
Sunny reported in 2017 CRI.L.J. 1443, it has been held:-
“30. By no means, it is suggested that
whenever such charge of rape is made,
where the victim is a child, it has to be
treated as a gospel truth and the accused
person has to be convicted. We have already
discussed above the manner in which
testimony of the prosecutrix is to be
examined and analysed in order to find out
the truth therein and to ensure that
deposition of the victim is trustworthy. At
the same time, after taking all due
precautions which are necessary, when it is
found that the prosecution version is worth
believing, the case is to be dealt with all
sensitivity that is needed in such cases. In
such a situation one has to take stock of the
realities of life as well. Various studies show
that in more than 80% cases of such abuses,
perpetrators have acquaintance with the
victims who are not strangers. The danger is
more within than outside. Most of the time,
Patna High Court CR. APP (SJ) No.893 of 2017 21acquaintance rapes, when the culprit is a
family member, are not even reported for
various reasons, not difficult to fathom. The
strongest among those is the fear of
attracting social stigma. Another deterring
factor which many times prevent such
victims or their families to lodge a
complaint is that they find whole process of
criminal justice system extremely
intimidating coupled with absence of victim
protection mechanism. Therefore, time is
ripe to bring about significant reforms in the
criminal justice system as well. Equally,
there is also a dire need to have a survivor
centric approach towards victims of sexual
violence, particularly, the children, keeping
in view the traumatic long lasting effects on
such victims.
31. After thorough analysis of all relevant
and attendant factors, we are of the opinion
that none of the grounds, on which the High
Court has cleared the respondent, has any
merit. By now it is well settled that the
testimony of a victim in cases of sexual
offences is vital and unless there are
compelling reasons which necessitate
Patna High Court CR. APP (SJ) No.893 of 2017 22looking for corroboration of a statement, the
courts should find no difficulty to act on the
testimony of the victim of a sexual assault
alone to convict the accused. No doubt, her
testimony has to inspire confidence. Seeking
corroboration to a statement before relying
upon the same as a rule, in such cases,
would literally amount to adding insult to
injury. The deposition of the prosecutrix
has, thus, to be taken as a whole. Needless
to reiterate that the victim of rape is not an
accomplice and her evidence can be acted
upon without corroboration. She stands at a
higher pedestal than an injured witness
does. If the court finds it difficult to accept
her version, it may seek corroboration from
some evidence which lends assurance to her
version. To insist on corroboration, except
in the rarest of rare cases, is to equate one
who is a victim of the lust of another with an
accomplice to a crime and thereby insult
womanhood. It would be adding insult to
injury to tell a woman that her claim of rape
will not be believed unless it is corroborated
in material particulars, as in the case of an
accomplice to a crime. Why should the
Patna High Court CR. APP (SJ) No.893 of 2017 23evidence of the girl or the woman who
complains of rape or sexual molestation be
viewed with the aid of spectacles fitted with
lenses tinged with doubt, disbelief or
suspicion? The plea about lack of
corroboration has no substance {See
Bhupinder Sharma v. State of Himachal
Pradesh[(2003) 8 SCC 551]}.
Notwithstanding this legal position, in the
instant case, we even find enough
corroborative material as well, which is
discussed hereinabove.
32. From the evaluation of the prosecution
material discussed above, it is abundantly
clear that the evidence brought on record
contains positive proof, credible sequence of
events and factual truth linking the
respondent with rape of the prosecutrix and
had criminally intimidated her. Hence,
respondent is found to be guilty for offence
under Sections 376(2)(f) and 506 of IPC
since he committed rape with a minor girl
aged nine years. It is pertinent to point out
at this stage that at the time of deposition of
the prosecutrix in the Court, the trial court
had an opportunity to see her demeanor. On
Patna High Court CR. APP (SJ) No.893 of 2017 24that basis, the trial court in the judgment
had commented as under:
“66. The statement of prosecutrix inspires
confidence even though a child witness since
while deposing in the Court her demeanor
appeared like that of competent witness and
no likelihood of tutor. I find her testimony
reliable since she was found competent to
depose after preliminary inquiry as she
understood questions and to give rational
answers. I have gone through her statement
with extra caution and full of
circumspection. Therefore, I have no
hesitation to believe her statement.”
33. At this juncture, we would also like to
reproduce the following passage from the
judgment of this Court in State of Rajasthan
v. Om Prakash[(2002) 5 SCC 745]:
“19. Child rape cases are cases of perverse
lust for sex where even innocent children
are not spared in pursuit of sexual pleasure.
There cannot be anything more obscene
than this. It is a crime against humanity.
Many such cases are not even brought to
light because of the social stigma attached
Patna High Court CR. APP (SJ) No.893 of 2017 25thereto. According to some surveys, there
has been a steep rise in child rape cases.
Children need special care and protection.
In such cases, responsibility on the
shoulders of the courts is more onerous so
as to provide proper legal protection to
these children. Their physical and mental
immobility call for such protection. Children
are the natural resource of our country.
They are the country’s future. Hope of
tomorrow rests on them. In our country, a
girl child is in a very vulnerable position
and one of the modes of her exploitation is
rape besides other modes of sexual abuse.
These factors point towards a different
approach required to be adopted. The
overturning of a well-considered and well-
analysed judgment of the trial court on
grounds like non-examination of other
witnesses, when the case against the
respondent otherwise stood established
beyond any reasonable doubt was not called
for. The minor contradiction of recovery of
one or two underwears was wholly
insignificant.”
21. Considering the evidence in its totality, it is found
Patna High Court CR. APP (SJ) No.893 of 2017 26
and held that though the other co-accused are found benefited on
account of wrong appreciation of the fact available on the record since
before and further, the status of the victim that of tender age facing
horrifying situation, soon after the occurrence, was shifted to Sadar
Hospital and so, the fard-bayan which she gave was under persistent
traumatic situation. Apart from this, the evidence of doctor clearly
speaks with regard to injury over private part of victim, tearing hymen
and the effort of accused is found substantiated by way of presence of
blood as well as semen over the apparel of the victim, which clearly
suggest an event of rape. As per definition of rape, slight penetration
is sufficient to constitute rape and not the ejaculation and that being
so, considering the overall situation, it could very well be considered
that the victim was raped. However, so far appellant Mintu Manjhi is
concerned, she happens to be consistent and even during course of
cross-examination, she has not been tested at the end of Mintu Manjhi
at least to his extent. The DWs are of no consequence as they have not
spoken that the distance in between, would not have possibility of his
presence at the place of occurrence. And so, the finding recorded by
the learned lower Court relating to him, appears to be non-
appreciation of the material available on record in its right
perspective. The learned lower Court as observed hereinabove did not
consider the medical evidence in consonance with F.S.L. Report,
which exclusively indicate commission of rape, coupled with
Patna High Court CR. APP (SJ) No.893 of 2017 27
evidence of victim, substantiate the same whereupon finding of the
learned lower Court that no offence under Section 376 I.P.C. is made
out, or Section 376 I.P.C. simplicitor is not the lesser offence of
Section 376 (2)(g) I.P.C. appears to be misnomer, apart from the fact
that no sound reasoning has been assigned therefor and on account
thereof, did not survive. That being so, the judgment of conviction
and sentence is set aside. Appeal is allowed. Matter is remitted back
to the learned lower Court to hear the argument of both sides and will
pass judgment in accordance with law. The aforesaid exercise must be
completed within four months from the date of receipt of L.C. Record.
Office to transmit the same at once.
(Aditya Kumar Trivedi, J)
Vikash/-
AFR/NAFR A.F.R.
CAV DATE 22.08.2017
Uploading Date 09.10.2017
Transmission 09.10.2017
Date
