IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.368 of 2015

Arising Out of P S. Case No. -117 Year- 2011 Thana -Muzaffarpur T own District- Muzaffarpur

Rajesh Mahato, Son of Late Arjun Mahato, resident of Mohalla-
Akharaghat Jheel Nagar, P.S. Town, District – Muzaffarpur.

…. …. Appellant/s
Versus
The State of Bihar …. …. Respondent/s

Appearance:

For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae
For the Respondent/s : Mr. S.A. Ahmad, APP.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 31-07-2018

As the learned counsel for the appellant failed to

appear on account thereof, Mr. Arun Kumar Tripathi, learned

advocate has been requested to assist the court as an Amicus

Curiae.

2. Appellant, Rajesh Mahato has been found guilty for an

offence punishable under Section 376/511 of the IPC and sentenced

to undergo R.I. for seven years as well as to pay fine appertaining to

rupees five thousand in default thereof, to undergo R.I. for six

months, additionally vide judgment of conviction dated 16.05.2014

and order of sentence dated 25.05.2014 passed by Second

Additional Sessions Judge, Muzaffarpur in Sessions Trial

no.519/2011.

3. Succinctly the case of the prosecution as is evident

from the fardbeyan of Mukul Mahato (PW.6) recorded on 01.03.2011

at 02:45 PM before the police officials of Town P.S. is that on the

same day at about 01:00 PM his daughter (name withheld) aged

about four years had gone to ease herself at the bank of Burhi
Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 2

Gandak north to her house but, did not return. Perceiving delay, he

proceeded in search during course thereof, his neighbour Nilu

Kumari wife of Arun Mandal disclosed that Rajesh Mahato has taken

away the victim in his lap towards his house whereupon he along

with his wife Meena Devi gone to house of Rajesh. His door was

shut. He pressed whereupon, door opened. Just coming inside the

room, they have seen victim lying naked from her backside while

Rajesh Mahato was over her in naked condition and was attempting

to commit rape. They raised alarm attracting the mohalla people who

apprehended the Rajesh. At that very moment his daughter was

restless, began to weep. There was bleeding from her nose. He lifted

her. The enraged mohalla people began to assault Rajesh during

midst thereof, police came whereupon, accused was handed over.

4. Town P.S. Case No.117/2011 was registered under

Section 376 IPC whereupon, investigation commenced and after

concluding the same charge sheet was submitted which happens to

be the basis of trial meeting with the ultimate result, subject matter

of instant appeal.

5. 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. It has further been pleaded that

all the events has been managed by cousin brother-in-law (Bahnoi)

of the appellant namely Balram Patel who wants to forcibly evict the

accused/appellant from his house which has been constructed over

the government land wherein, his kith and kin stood as a witness.

However, nothing has been adduced in defence.

6. In order to substantiate its case, prosecution had
Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 3

examined altogether eight PWs who are PW.1-Dinesh Mahto, PW.2-

Baby Devi, PW.3-Janak Nandani Devi, PW.4-Nilu Devi, PW.5-Umesh

Mahto, PW.6-Mukul Mahto, PW.7-Kumari Vibha Rani, PW.8-Dr.

Shobha Rami Singh as well as had also exhibited Ext.1-Fardbeyan,

Ext.2-Formal FIR, Ext.3 Series-Injury/supplementary injury report

relating to the victim. As disclosed, nothing has been adduced in

defence.

7. While assailing the judgment of conviction and

sentence it has been submitted at the end of learned amicus curiae

that while recording finding of the guilt, learned lower court had not

appreciated the evidence in its right perspective and so suffers from

conjecture and surmises. Furthermore, it has been submitted that

the mother of the alleged victim has not been examined. There

happens to be no explanation at the end of the prosecution and in

likewise manner, irrespective of the fact that victim has been shown

to be aged about four years, at least would have been produced

before the learned lower court in order to ascertain authenticity in

the prosecution version.

8. Then it has been submitted that from the evidence of

the witnesses presence of Balram Mahto is found duly established.

Some of the witnesses have disclosed that he resides along with the

appellant while some had deposed having his house adjacent to the

house of the appellant. From the evidence, as suggested he happens

to be instrumental as well as, there happens to be probability in

getting the appellant removed from that place and for that, as has

been admitted by the witnesses, being kith and kin of the aforesaid

Balram Mahto, deposed falsely.

Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 4

9. Furthermore, it has also been submitted that from the

evidence of the witnesses it is crystal clear that none had claimed to

have wear the cloth to the victim nor, during course of her

examination PW.8 had found any kind of injury over her person.

Had there been any effort at the end of the appellant more

particularly over a kid aged about four years then, in that

circumstance, violence by way of injury would have found suggesting

the misdeeds of appellant. That being so, the finding recorded by the

learned lower court happens to be unsustainable in the eye of law

whereupon, is fit to be set aside. The objective finding of the

Investigating Officer regarding the P.O. also negativates the

allegation. It has also been submitted that appellant was liable for

medical test as provided under Section 53A of the Cr.P.C. which is

found not at all complied with, hence the story as propounded, is fit

to be disbelieved.

10. On the other hand, the learned Additional Public

Prosecutor while supporting the finding recorded by the learned

lower court has submitted that after going through the judgment

impugned it is manifest that the learned lower court had minutely

gone through the evidences having adduced on behalf of prosecution

and after proper scrutinizing thereof, came to the conclusion. So, did

not require interference.

11. Allegation has been attributed against the appellant to

have attempted upon to ravish the victim, aged about four years

after lifting her from the place where she had gone to ease herself, to

his house. Furthermore, there also happens to be disclosure that

appellant was caught hold red-handed at the spot (his house) and,
Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 5

after arrival of the police was handed over. During course of his

statement under Section 313 of the Cr.P.C., it is apparent that he

had admitted to be apprehended on the alleged date but, explained

as on account of animosity. Therefore, to that extent there happens

to be an admission at the end of the appellant. Coming to remaining

part, as per fardbeyan Nilu was the person who had disclosed to the

informant regarding lifting, carrying of the victim by the appellant in

his lap towards his house. Aforesaid Nilu happens to be PW.4.

During her examination-in-chief she had stated that on the alleged

date and time of occurrence while she was at the bank of river, she

had seen as soon as victim got up after carry Rajesh Kumar lifted

her in his lap and took her towards his house. After sometime her

parents came in search of and inquired from her whereupon, she

disclosed that victim has been lifted away by Rajesh towards his

house. Then thereafter, parents of the victim proceeded towards the

house of the Rajesh followed by them. When they came at the house

of Rajesh found his door shut. Door was pushed and then all of

them gone inside the room where they saw Rajesh in naked

condition. Victim was also naked. He was trying to ravish her. Just

after seeing them Rajesh gave a blow over the victim whereupon,

blood began to ooze out from her nose. Victim began to cry. They

along with others apprehended Rajesh, whereupon Rajesh was

assaulted. Victim was taken to hospital. Identified the accused. It

has further been disclosed at her end that Rajesh happens to be

accustomed in such kind of activity. At an earlier occasion also he

had indulged but, got rescued himself in such kind of activity.

During cross-examination at para-3 she had stated that the

informant happens to be her maternal uncle but, in distant
Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 6

relationship. She had further stated that when she had seen the

victim for the first time, she was in frock, pant. In para-4, she had

disclosed the boundary of the house of the accused and further, it

happens to be a hut constructed over a government land having

single room. His sister resides by the side of his house. In para-5 she

had detailed the physical feature of the room having a chowki. She

had further stated that she is the person who had disclosed to the

parents of the victim regarding Rajesh having lifted the victim and

carried towards his house. In para-6 she had stated that she had

seen blood coming out from the nose of the victim. Then had denied

the suggestion that no such type of occurrence had ever taken place

rather, informant being her maternal uncle on account thereof, she

has deposed falsely.

12. PW.6 is the informant/father of the victim. He had

deposed that on the alleged date and time of occurrence, his

daughter (victim) had gone towards bank of the river to ease herself.

Age of the victim happens to be four years. When she did not return

for a considerable time, then thereafter they gone towards river to

search her out and during course thereof, Nilu Devi had disclosed

that she had seen Rajesh Mahto taking away the victim in his lap.

They all have gone to the house of Rajesh Mahto and gone inside the

room after removing the door, They found the victim naked. They

have also seen Rajesh to be naked. He was over the victim and was

trying to rape. Victim was restless. Blood was coming out from her

nose. All of them caught hold Rajesh. There was swelling over the

vagina of the victim. Police arrived. They handed over Rajesh to the

police. Recorded his fardbeyan. Victim was taken to Sadar hospital
Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 7

for treatment. Identified the accused. During cross-examination at

para-2 he had stated that Nilu Devi is not directly related to him.

Her house lies nearby to his house which lies 15-20 steps away from

the house of the accused. Then had disclosed the boundary of the

house of the accused as East-house of Ram Sakal Mandal, West-

Bridge, North-Road, South-Rameshwar Mahto. In para-4 he had

stated that his daughter had gone to meet nature’s call at about

01:00 PM. In para-5 he had disclosed that when she did not return

within 15-20 minute then thereafter, they gone in search of her. He

had not seen blood spot over her dress. There was bleeding from her

nostril. In para-6 he had stated that there happens to be two rooms

in the house of Rajesh. There was one chowki kept in one room. In

para-7 he had disclosed that he happens to be a cook. He denied the

suggestion that accused Rajesh was working under him. Then had

denied the suggestion that as Rajesh demanded his due amount on

account thereof, he has been falsely implicated.

13. PW.7 is the Investigating Officer. She had deposed that

on the alleged date she was posted at town police station. After

getting information, she along with other police personal gone to the

P.O. where recorded fardbeyan of Mukul Mahto (exhibited) in

presence of his wife Meena Devi as well as Nilu Devi. She had found

one Rajesh Mahto having been apprehended by large number of

person who was handed over to her. Then thereafter, she refered the

Rajesh as well as the victim to hospital along with other police

personnel. She returned back to P.S. where case was registered.

Investigation was entrusted to her. Accordingly, she took further

statement of the informant, statement of witnesses Meena Devi, Nilu
Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 8

Devi, Dinesh Mahto. Inspected the place of occurrence which

happens to be the house of the accused having boundary East-

thatched house of Sanjay Mahto, West-Bridge, North-thatched house

of Raushan Mahto, South-Hanuman Mandir. It is a hut having two

rooms. One room is occupied by cousin sister of the accused while

the room lying at northern side is being occupied by the accused

having a folding cot like chowki. Recorded statement of other

witnesses procured injury report from the Sadar Hospital of the

victim as well as the accused. Accused was forwarded to custody.

Because of the fact that victim was aged about four years on account

thereof her statement was not taken. After concluding the

investigation submitted charge sheet. During course of cross-

examination at para-6 she had stated that she had visited the place

of occurrence twice. In para-7 she had stated that victim was

incompetent in her understanding so her statement was not

recorded. Then had denied the suggestion that her investigation

happens to be faulty.

14. PW.8 is the doctor who had examined the victim on

01.03.2011 and had found scar mark on left hand below elbow. She

had found bleeding from nose. On vaginal examination she had not

found scar mark on private part nor there was bleeding. Vaginal

swab was taken and sent for pathological examination having

absence of spermatozoa. During cross-examination she had further

stated that she had not found swelling on the private part of the

victim.

15. The remaining witnesses namely PW.1-Dinesh Mahto,

PW.2-Baby Devi, PW.3-Janak Nandani Devi, PW.5-Umesh Mahto
Patna High Court CR. APP (SJ) No.368 of 2015 dt.31-07-2018 9

have categorically supported the case of the prosecution and even

during course of cross-examination, evidence of none of them have

been demolished save and except, from the evidence of PW.3 at para-

4, it is evident that one Balram Patel has been identified to be cousin

brother-in-law of the accused who at para-5 of her cross-

examination admitted to be the son-in-law of her sister. Although,

with regard to previous statement of PW.1 at para-3 her attention

has been drawn up but, that had gone fruitless as, the same was not

at all confronted to the Investigating Officer, Pw.7.

16. Giving anxious consideration to the evidences available

on the record, it is evident that prosecution has succeeded in

proving its case beyond all reasonable doubt whereupon, this appeal

is found sans of merit and is accordingly dismissed. Appellant is on

bail. His bail bond is hereby cancelled directing him to surrender

before the learned lower court within fortnight to serve out

remaining part of sentence failing which, the learned lower court will

be at liberty to proceed against him in accordance with law. First

and last page of judgment be handed over to the learned amicus

curiae for the needful.

(Aditya Kumar Trivedi, J.)

Prakash Narayan
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 03.08.2018
Transmission 03.08.2018
Date