IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.500 of 2016
Arising Out of PS. Case No.-96 Year-2011 Thana- MAHUA District- Vaishali
Ranjeet Kumar Paswan Son of Bindeswar Paswan Resident of Village
Madhaul, P.S Mahua, District Vaishali.
… … Appellant/s
Versus
The State Of Bihar
… … Respondent/s
Appearance :
For the Appellant/s : Mr.Ravi Ranjan, Adv.
For the Respondent/s : Mr. Sujit Kumar Singh, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
13-09-2019 Appellant, Ranjeet Kumar Paswan has been found
guilty for an offence punishable under Section 376 IPC and
sentenced to undergo RI for 10 years as well as to pay fine
appertaining to Rs. 2500/- in default thereof, to undergo RI for
one month vide judgment of conviction dated 04.06.2016 and
order of sentence dated 08.06.2016 passed by 3 rd Additional
Sessions Judge, Vaishali, Hajipur in Sessions Trial No. 221/2012
arising out of Mahua PS Case No. 96/2011.
2. Subodh Paswan (PW-5), father of the victim girl
(name withheld), gave his Fardbeyan on 16.03.2011 at about
1:00 PM at Mahua Hospital where the victim (PW 8) a kid, aged
about three years was admitted for treatment as she was brutally
ravished in an inhuman manner disclosing therein that while his
daughter was playing near about Jagi Baba Asthan, his
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
2/27
neighbour, Ranjeet Kumar Paswan came, allured her and then,
took her to a field by the side of Jogi Baba Asthan having a
‘Kara’ (a kind of thatch) where after lying her down committed
sin. Out of pain and trauma, his daughter shouted whereupon, he
being engaged at some distance, rushed and gone inside the
‘Kara’ where he has seen his daughter lying and was weeping.
He has also seen blood oozing out from her genital and spread
over from her waist to the legs. Her frock and panty were
soaked with blood. Seeing him, Ranjeet began to flee
whereupon, they have apprehended him.
3. After registration of Mahua PS Case No. 96/2011,
investigation commenced and completed by way of submission
of charge-sheet, facilitating the trial meeting with the ultimate
result, subject matter of the instant appeal.
4. 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. However, nothing has been
adduced in defence.
5. In order to substantiate its case, the prosecution
has examined altogether eight PWs who are PW-1, Ram Kishore
Rai, PW-2, Sanoj Paswan, PW-3, Rajgir Paswan, PW-4, Anita
Devi, PW-5, Subodh Paswan, PW-6, Dr. Sarita Shankar, PW-7,
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
3/27
Upendra Kumar and PW-8, Victim. Side by side, has also
exhibited Ext-1, Signature of informant, Ext-1/1, Fardbeyan,
Ext-2, Medical Report, Ext-3, Application filed by the I.O for
keeping the original seizure list on record. As stated above,
nothing has been adduced in defence.
6. Manifold arguments have been raised on behalf of
the appellant while assailing the judgment of conviction and
sentence. First of all, the status of the witnesses have been
challenged. It has been urged at the end of the learned counsel
for the appellant that none is the eyewitness to the occurrence
and that happens to be the reason behind presence of infirmity,
inconsistency amongst the PWs and that made their evidence
vulnerable, unreliable and unacceptable as they, during course
of trial tried to become any eye witness. Hence be rejected. It
has also been urged that two brothers i.e. PW-2 and the
informant PW-5 independently, claimed to have arrived at the
place of occurrence first. In likewise manner, there happens to
be claim at the end of PW-2 that first of all, his statement was
recorded at the hospital, so that statement would have been the
basis of prosecution. That statement has not been brought up on
record whereupon, it could be said that the prosecution has
concealed the initial version leading to complete rejection of the
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
4/27
case of the prosecution. In the same breath, it has been
submitted that from the evidence of PW-5, it is evident that
although, he had given Fardbeyan at the hospital but,
controverted the same by saying that his first statement was
recorded at the place of occurrence itself. So submitted that
when the evidences of each and every witness are taken
separately or conjointly, did not justify their status and that
being so, their evidences are fit for outright rejection. They have
simply apprehended the appellant on mere misrepresentation
that too, in the background of some sort of prevailing grudge.
7. It has also been arged that not even a single
independent witness has been examined. Had there been such
kind of occurrence, then in that event, presence of independent
witness would have been there. It has also been submitted that
from the evidence of the I.O., it is evident that place of
occurrence has not been affixed as, the witnesses have
categorically stated that though blood had oozen out and spread
over earth but, neither the I.O. has mentioned the fact that he
had seen the blood at the place of occurrence nor it was seized.
That being so, the ‘Kara’ field could not be accepted as a place
of occurrence. Over apprehension of the appellant at that place,
as, I.O. had failed to divulge the same.
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
5/27
8. Then it has been urged that there happens to be
consistent evidence on the record that appellant was
apprehended on chase near about the place of occurrence. Had
there been truthfulness in the evidence of the witnesses and
further, having profuse bleeding from genital of the victim, then
in that event, there would have been blood stain over the apparel
of the appellant and so, had there been proper investigation at
the end of the I.O., not only the blood stained cloth would have
been seized at his end rather the appellant would have also been
produced before the doctor as required under Section 53A of the
CrPC. Non production of the appellant before the doctor is a
circumstance which nullifies the allegation and in likewise
manner, non seizure of the pant and underwear happens to be a
serious lacunae in the prosecution version.
9. Thus, in any view of the matter, the judgment
impugned would not survive. As such, the same be set aside.
10. On the other hand, learned APP while supporting
the finding recorded by the learned lower court, has submitted
that the trial is not dependent upon the negligence, laches,
incompetency of the I.O. In order to justify the same, it has been
submitted that the victim’s panty and frock were taken out by
the doctor and were handed over to the I.O. for that, seizure list
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
6/27
was prepared but the I.O. had not sent the aforesaid seizure list
along with Fardbeyan and, in order to have some sort of excuse,
filed a petition before the learned CJM (Ext-3) that he be
allowed to furnish the original seizure list which he omitted to
tag with Fardbeyan.
11. It has also been submitted that it is needless to
say that a kid aged about three years had fallen prey at the hands
of the accused who could not resist, moreover, when the accused
was known since before, having house adjacent to the house of
the victim and was related therewith. There happens to be no
reason to falsely implicate as, nothing substantial has been
brought up at the end of the appellant. In the aforesaid
background, it has also been submitted that the accused has not
challenged his apprehension that too, at place of occurrence.
Had there been, then in that event, there would have been some
sort of version or plausibility with regard to false implication of
the appellant. Apart from this, the evidence of PW-5 in
consonance with other witnesses, it is apparent that save and
except minor discrepancy which was but natural on account of
efflux of time, they are firm over the activity of the appellant
and further apprehension of the accused, on chase, that too,
within close proximity. Consequent thereupon, the finding so
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
7/27
rendered by the learned lower court is fit to be affirmed.
12. So far status of the witnesses are concerned, PW-
1 is an independent witness, PW-2 is own uncle of the victim,
PW-3 is cousin uncle of the victim, PW-4 is mother of the
victim, PW-5 is the informant/father of the victim. PW-6 is
doctor and PW-7 is the IO and PW-8 is the victim herself.
13. PW-6, the doctor had examined the victim on
16.03.2011 itself and found the following:-
1. Blood stain on the inner side of both
the legs brown in colour. Petient was
weeping.
P/U exam- Blood stained discharge in
vagina, swab sent for path exam.
Fourchette was torn bleeding ++ PLV
examination was tender. Torn Fourchette
was subtused by caragut no. 1 under I.V.
Anesthesia by Dr. Ranjeet.
Report of Pathologist- No spermatozoa
R.B.C or foreign body present.
Report of Dentist- Age is about
between 5 to 6 yrs.
Final Opinion- Age is between 3 to 6
years.
14. From the cross-examination, it is evident that
nothing adverse to the prosecution has been elicited from her
mouth rather from para-4, it is evident that genital of the victim
was stitched and that happens to be an additional factor to
substantiate the allegation that too with regard to penetration.
15. Now coming to ocular evidence, it is manifest
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
8/27
that there happens to be three kinds of evidences having been
adduced at the end of prosecution. The first one is that of victim,
PW-8 who, at the time of occurrence was a kid aged about three
years. How her evidence is to be considered is a circumstance,
more particularly, her evidence has been recorded on 02.03.2016
while the date of occurrence happens to be 16.03.2011 that
means to say, approximately after five years. SectionIn Shamim v.
State (Government of NCT of Delhi) reported in (2018) 10
SCC 509 , it has been held as follows:-
“14. SectionIn State of U.P. v. Krishna Master and
Ors., (2010) 12 SCC 324, disagreeing with the High
Court which had doubted the credibility of a child
witness, it was observed:
36. … This Court fails to understand as to on
what principle and on which experience in real life, the
High Court made a sweeping observation that it is
inconceivable that a child of Madan Lal’s
understanding would be able to recapitulate facts in his
memory witnessed by him long ago. There is no
principle of law known to this Court that it is
inconceivable that a child of tender age would not be
able to recapitulate facts in his memory witnessed by
him long ago. This witness has claimed on oath before
the Court that he had seen five members of his family
being ruthlessly killed by the Respondents by firing
gunshots. When a child of tender age witnesses
gruesome murder of his father, mother, brothers, etc.
he is not likely to forget the incident for his whole life
and would certainly recapitulate facts in his memory
when asked about the same at any point of time,
notwithstanding the gap of about ten years between the
incident and recording of his evidence.
37. This Court is of the firm opinion that it
would be doing injustice to a child witness possessing
a sharp memory to say that it is inconceivable for him
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
9/27
to recapitulate facts in his memory witnessed by him
long ago. A child of tender age is always receptive to
abnormal events which take place in his life and would
never forget those events for the rest of his life. The
child would be able to recapitulate correctly and
exactly when asked about the same in future.
Therefore, the specious ground on which the reliable
testimony of PW 2 Madan Lal came to be disbelieved
can hardly be affirmed by this Court.
16. So, in light of principle enunciated by the
Hon’ble Apex Court as referred hereinabove, the evidence of the
victim is to be scrutinized in order to properly appreciate
whether she could be a reliable witnesses. The second kind of
witness happens to be of those persons who claimed to have
apprehended the accused/appellant at the spot when they arrived
after hearing shout of the victim, PW-8. As stated above the plea
as raised, at the end of the learned counsel for the appellant, that
on account of inconsistency, their evidence could not be
considered, could be seen in the background of principle as laid
down by the Hon’ble Apex Court in the case of SectionKhushwinder
Singh v. State of Punjab as reported in 2019(2) BLJ 340 SC
wherein it has been held as follows:-
“10. As held by this Court in a catena of
decisions, minor discrepancies are not to be
given undue emphasis and the evidence is to be
considered from the point of view of
trustworthiness. The test is whether the same
inspires confidence in the mind of the court. In
the case of SectionYogesh Singh v. Mahabeer Singh
(2007) 11 SCC 195 it is observed by this Court
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
10/27that every omission cannot take place of a
material omission and, therefore, minor
contradictions, inconsistencies or insignificant
embellishments do not affect the core of
prosecution case and should not be taken to be a
ground to reject the prosecution evidence. It is
further observed that the omission should create
a serious doubt about the truthfulness or
creditworthiness of a witness. It is further
observed that it is only the serious contradictions
and omissions which materially affect the case of
prosecution but not every contradiction or
omission.
17. The third kind of witness happens to be, who
have seen the victim after having been taken out from ‘Kara’
field (place of occurrence). There also happens to be perception
of defective investigation and on that very score in the case of
SectionGajoo v. State of Uttarakhand as reported in (2012) 9 SCC 532,
it has been held as follows:-
“19. …….A defective investigation,
unless affects the very root of the
prosecution case and is prejudicial to the
accused, should not be an aspect of material
consideration by the court. PW5 has duly
proved the recovery of Daranti, Ext. 2 and
the blood stained pyjama, Ext. Ka 5 and has
duly stood the test of cross-examination in
court. Both these articles were recovered by
the investigating officer Brahma Singh,
PW6 and the recoveries have been duly
established before the court. The recoveries
having been proved and the case of the
prosecution being duly supported by two
eye-witnesses, PW2 and PW3 and two
witnesses, PW4 and PW5 who were present
immediately after the occurrence, have
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
11/27proved the case of the prosecution beyond
any reasonable doubt.
In regard to the defective investigation,
this Court in the case of SectionDayal Singh and
Ors. v. State of Uttaranchal : 2012 (7) Scale
165 while dealing with the cases of
omissions and commissions by the
investigating officer, and duty of the Court
in such cases held as under:
22. Now, we may advert to the duty
of the Court in such cases. In the case of
SectionSathi Prasad v. The State of U.P. : (1972) 3
SCC 613, this Court stated that it is well
settled that if the police records become
suspect and investigation perfunctory, it
becomes the duty of the Court to see if the
evidence given in Court should be relied
upon and such lapses ignored. Noticing the
possibility of investigation being designedly
defective, this Court in the case of SectionDhanaj
Singh @ Shera and Ors. v. State of Punjab :
(2004) 3 SCC 654, held, “in the case of a
defective investigation the Court has to be
circumspect in evaluating the evidence. But
it would not be right in acquitting an
accused person solely on account of the
defect; to do so would tantamount to
playing into the hands of the investigating
officer if the investigation is designedly
defective.
23. Dealing with the cases of
omission and commission, the Court in the
case of SectionParas Yadav v. State of Bihar : AIR
1999 SC 644, enunciated the principle, in
conformity with the previous judgments,
that if the lapse or omission is committed by
the investigating agency, negligently or
otherwise, the prosecution evidence is
required to be examined de hors such
omissions to find out whether the said
evidence is reliable or not. The
contaminated conduct of officials should
not stand in the way of evaluating the
evidence by the courts, otherwise the
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
12/27
designed mischief would be perpetuated and
justice would be denied to the complainant
party. In the case of SectionZahira Habibullah
Sheikh and Anr. v. State of Gujarat and Ors.
: (2006) 3 SCC 374, the Court noticed the
importance of the role of witnesses in a
criminal trial. The importance and primacy
of the quality of trial process can be
observed from the words of Bentham, who
states that witnesses are the eyes and ears of
justice. The Court issued a caution that in
such situations, there is a greater
responsibility of the court on the one hand
and on the other the courts must seriously
deal with persons who are involved in
creating designed investigation. The Court
held that legislative measures to emphasize
prohibition against tampering with witness,
victim or informant have become the
imminent and inevitable need of the day.
Conducts which illegitimately affect the
presentation of evidence in proceedings
before the Courts have to be seriously and
sternly dealt with. There should not be any
undue anxiety to only protect the interest of
the accused. That would be unfair, as noted
above, to the needs of the society. On the
contrary, efforts should be to ensure fair
trial where the accused and the prosecution
both get a fair deal. Public interest in proper
administration of justice must be given as
much importance if not more, as the interest
of the individual accused. The courts have a
vital role to play.
(Emphasis
supplied)
24. With the passage of time, the
law also developed and the dictum of the
Court emphasized that in a criminal case,
the fate of proceedings cannot always be
left entirely in the hands of the parties.
Crime is a public wrong, in breach and
violation of public rights and duties, which
affects the community as a whole and is
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
13/27
harmful to the society in general.
25. Reiterating the above principle,
this Court in the case of SectionNational Human
Rights Commission v. State of Gujarat
(2009) 6 SCC 767, held as under:
The concept of fair trial entails
familiar triangulation of interests of the
accused, the victim and the society and it is
the community that acts through the State
and prosecuting agencies. Interest of society
is not to be treated completely with disdain
and as persona non grata. The courts have
always been considered to have an
overriding duty to maintain public
confidence in the administration of justice–
often referred to as the duty to vindicate and
uphold the ‘majesty of the law’. Due
administration of justice has always been
viewed as a continuous process, not
confined to determination of the particular
case, protecting its ability to function as a
court of law in the future as in the case
before it. If a criminal court is to be an
effective instrument in dispensing justice,
the Presiding Judge must cease to be a
spectator and a mere recording machine by
becoming a participant in the trial evincing
intelligence, active interest and elicit all
relevant materials necessary for reaching
the correct conclusion, to find out the truth,
and administer justice with fairness and
impartiality both to the parties and to the
community it serves. The courts
administering criminal justice cannot turn a
blind eye to vexatious or oppressive
conduct that has occurred in relation to
proceedings, even if a fair trial is still
possible, except at the risk of undermining
the fair name and standing of the judges as
impartial and independent adjudicators.
26. In the case of SectionState of Karnataka
v. K. Yarappa Reddy 2000 SCC (Crl.) 61,
this Court occasioned to consider the
similar question of defective investigation
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
14/27
as to whether any manipulation in the
station house diary by the Investigating
Officer could be put against the prosecution
case. This Court, in Paragraph 19, held as
follows:
19. But can the above finding
(that the station house diary is not genuine)
have any inevitable bearing on the other
evidence in this case? If the other evidence,
on scrutiny, is found credible and
acceptable, should the Court be influenced
by the machinations demonstrated by the
Investigating Officer in conducting
investigation or in preparing the records so
unscrupulously? It can be a guiding
principle that as investigation is not the
solitary area for judicial scrutiny in a
criminal trial, the conclusion of the Court in
the case cannot be allowed to depend solely
on the probity of investigation. It is well-
nigh settled that even if the investigation is
illegal or even suspicious the rest of the
evidence must be scrutinised independently
of the impact of it. Otherwise the criminal
trial will plummet to the level of the
investigating officers ruling the roost. The
court must have predominance and pre-
eminence in criminal trials over the action
taken by the investigation officers. Criminal
Justice should not be made a casualty for
the wrongs committed by the investigating
officers in the case. In other words, if the
court is convinced that the testimony of a
witness to the occurrence is true the court is
free to act on it albeit the investigating
officer’s suspicious role in the case.
27. SectionIn Ram Bali v. State of Uttar
Pradesh : (2004) 10 SCC 598, the judgment
in SectionKarnel Singh v. State of M.P. : (1995) 5
SCC 518 was reiterated and this Court had
observed that ‘in case of defective
investigation the court has to be
circumspect while evaluating the evidence.
But it would not be right in acquitting an
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
15/27
accused person solely on account of the
defect; to do so would tantamount to
playing into the hands of the investigation
officer if the investigation is designedly
defective’.
28. Where our criminal justice
system provides safeguards of fair trial and
innocent till proven guilty to an accused,
there it also contemplates that a criminal
trial is meant for doing justice to all, the
accused, the society and a fair chance to
prove to the prosecution. Then alone can
law and order be maintained. The Courts do
not merely discharge the function to ensure
that no innocent man is punished, but also
that a guilty man does not escape. Both are
public duties of the judge. During the
course of the trial, the learned Presiding
Judge is expected to work objectively and in
a correct perspective. Where the
prosecution attempts to misdirect the trial
on the basis of a perfunctory or designedly
defective investigation, there the Court is to
be deeply cautious and ensure that despite
such an attempt, the determinative process
is not sub-served. For truly attaining this
object of a ‘fair trial’, the Court should leave
no stone unturned to do justice and protect
the interest of the society as well.
29. This brings us to an ancillary
issue as to how the Court would appreciate
the evidence in such cases. The possibility
of some variations in the exhibits, medical
and ocular evidence cannot be ruled out.
But it is not that every minor variation or
inconsistency would tilt the balance of
justice in favour the accused. of course,
where contradictions and variations are of a
serious nature, which apparently or
impliedly are destructive of the substantive
case sought to be proved by the prosecution,
they may provide an advantage to the
accused. The Courts, normally, look at
expert evidence with a greater sense of
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
16/27
acceptability, but it is equally true that the
courts are not absolutely guided by the
report of the experts, especially if such
reports are perfunctory, unsustainable and
are the result of a deliberate attempt to
misdirect the prosecution. SectionIn Kamaljit Singh
v. State of Punjab : 2004 Cri.LJ 28, the
Court, while dealing with discrepancies
between ocular and medical evidence, held,
“It is trite law that minor variations between
medical evidence and ocular evidence do
not take away the primacy of the latter.
Unless medical evidence in its term goes so
far as to completely rule out all possibilities
whatsoever of injuries taking place in the
manner stated by the eyewitnesses, the
testimony of the eyewitnesses cannot be
thrown out.”
30. Where the eye witness account is
found credible and trustworthy, medical
opinion pointing to alternative possibilities
may not be accepted as conclusive. The
expert witness is expected to put before the
Court all materials inclusive of the data
which induced him to come to the
conclusion and enlighten the court on the
technical aspect of the case by examining
the terms of science, so that the court,
although not an expert, may form its own
judgment on those materials after giving
due regard to the expert’s opinion, because
once the expert opinion is accepted, it is not
the opinion of the medical officer but that of
the Court. {Plz. See Madan Gopal Kakad v.
Naval Dubey and Anr. : (1992) 2 SCR 921:
(1992) 3 SCC 204}.
18. In a criminal proceeding there happens to be
obligation upon the judge and there should always be thirst for
search of the truth as has been observed by the Hon’ble Apex
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
17/27
Court in the case of Shamim (supra) and for better appreciation,
relevant paragraph is quoted below:-
15. Each criminal trial is but a quest for search of
the truth. The duty of a judge presiding over a criminal
trial is not merely to see that no innocent person is
punished, but also to see that a guilty person does not
escape. One is as important as the other. Both are
public duties which the Judge has to perform. The trial
court had erred and misappreciated the evidence to
arrive at an erroneous conclusion.
19. PW-8, the victim during course of her evidence
has stated that the occurrence is of about five years ago. It was
mid-day. She was playing near Yogi Baba. Ranjeet took her to
‘Kara’. Thereafter, undressing her, he committed sin with her.
There was profuse bleeding from her genital causing blood stain
over her panty and frock. She perceived severe pain. She raised
cry whereupon, her father came. Ranjeet escaped. Identified the
accused. She was medically treated. During cross-examination,
she has stated that for the first time, she is deposing with regard
to the occurrence in the court. Police had come after the
occurrence. She had disclosed with regard to occurrence to her
parents after two-three days. At that very time, so many
villagers were there. Ranjeet is a farmer. There are five days in a
week. Her father has brought her to depose. He has instructed
her what to speak. On court’s question, she has disclosed that as
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
18/27
per instruction of her father, she has deposed.
20. PW-2 has stated that the occurrence is of about 1
year and 6 months ago. It was 12:00 Noon. His statement was
recorded by the police. At that very moment, he was sitting near
Yogi Baba. At that very time, he heard cry of a child. After
hearing the same, he proceeded in that direction and then, he
saw the victim unconscious in pool of blood lying there. He saw
Ranjeet having his pant unbuttoned. Finger of his both hands
were smeared with blood. This occurrence has taken place in a
‘Kara’ field. He after seeing the condition of the victim, shouted
attracting Rajgir Paswan, Subodh Paswan including so may
persons. They have lifted the victim and taken to hospital as, she
was raped. Ranjeet was apprehended at the spot itself. Identified
the accused. During cross-examination, he has stated that his
statement was recorded at the hospital on the same day. At that
very moment, statement of no other person was taken. At that
very moment, the mother of the victim, Subodh, Chowkidar
were present. It has also been disclosed that Jaisiyaram Paswan,
one of the Chowkidars happens to be his nephew. In para-5,
there happens to be contradiction but, the same has got no
relevancy in the background of the fact that attention of the I.O.
PW-7 has not been drawn on that very score. In para-6, he has
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
19/27
stated that he is unable to disclose the boundary of the place
where the victim was playing. He is also unable to disclose the
boundary of the place where occurrence took place. At para-7,
he has stated that first of all, he reached at the place of
occurrence. He has further stated that he has seen the victim at
the northern flank of the ‘Kara’ field. In para-8, he has stated
that his niece was unconscious. Within 5-7 minutes, she was
taken to hospital. Accused was not taken to hospital. In para-9,
he has stated that ‘Kara’ field belongs to Bindeshwar Paswan.
He is unable to disclose the length and breadth of ‘Kara’ field.
He has further stated that I.O. had visited the place of
occurrence and found blood in a dimension of 1 ½ hands area.
In para-10, he has stated that accused happens to be his nephew.
His house is adjacent to his house. Accused is a bachelor. At the
time of occurrence, he was aged about 27-28 years. Then he
denied the suggestion that it is not a fact that at the alleged time
of occurrence, he was not at the place of occurrence nor had he
taken away the victim to the P.O. It is not a fact that accused had
not committed rape on the victim.
21. PW-3 has deposed that on the alleged date and
time of occurrence, he was at his house. After hearing hue and
cry, he rushed towards the P.O. which happens to be ‘Kara’
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
20/27
field. When he reached there, he saw the villages having
apprehended the accused on the pretext that he has committed
rape on the victim/daughter of Subodh Paswan aged about 3-4
years. He has seen the victim in a pool of blood. There was
bleeding from her genital. Thereafter, police was informed and,
the villagers handed over custody of Ranjeet to the police.
Victim was taken to hospital. Identified the accused. During
cross-examination at para-3, he has stated that he happens to be
Ex-Sarpanch of Manjhaul Panchayat. His house lies at a
distance of 15 Rassi from the place of occurrence intervened by
field of so many persons. In para-4, he has stated that his
statement was recorded by the police a day after the occurrence.
at the P.O. At para-5, 6, his attention has been drawn up towards
his previous statement but, gone worthless on account of non
drawing of attention of the I.O., PW-7. In para-7, he has stated
that after hearing ‘hulla’, he reached at the P.O.. When he
reached at the P.O., there were 200 to 300 persons present but he
is unable to disclose the names of all of them. In para-8, he has
stated that he is unable to properly identify the presence who
disclosed about the occurrence because of the fact that there was
utterance by large number of persons with regard to the rape
committed by the accused over the victim. In para-9, he has
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
21/27
stated that he had not inquired from Ranjeet as, after reaching,
he got engaged in caring the victim. In para-10, he has stated
that at that very time, Ranjeet had worn full-pant of blue colour
and vest of green colour. He had seen blood over the earth at the
place of occurrence. He had not cared to see whether blood was
over the apparel of Ranjeet or not. At that very time, the victim
was unconscious. He had not talked with her at that very time.
He had not gone to the hospital with the victim. Then has denied
the suggestion that being the brother of Subodh, he has deposed
falsely.
22. PW-5 is the informant. He has deposed that on
the alleged date and time of the occurrence, Ranjeet after
alluring the victim, his daughter took her to ‘Kara’ field while
she was playing near Yogi Baba. When she shouted “Papa”, then
he rushed and, after arriving there, had seen Ranjeet committing
rape. When Ranjeet tried to flee, Subodh, Rajgir, Rajkishore and
he himself caught hold of him on chase and then, he was handed
over to the Chaukidar. His daughter was in pool of blood. Her
panty and frock were soaked with blood. He rushed to hospital
carrying his daughter where she was treated for days together.
Police had come at the hospital and recorded his Fardbeyan.
Police had also recorded his statement at ‘Kara’ field itself.
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
22/27
Exhibited his signature. Identified the accused. During cross-
examination at para-4, he has stated that first of all, his
statement was recorded in the ‘Kara’ field. Police had taken his
statement twice. In para-5, he has stated that police has also
recorded his statement at his house. In para-6, there happens to
be contradiction but, again that has gone worthless as the
attention of the I.O., PW-7, has not been drawn. In para-7, he
has stated that at the time while his daughter had shouted, he
was returning after doing menial work. He was returning
through the lane lying by the side of the P.O.. he was engaged
under Saburi Mian. He had gone there at 10.30 AM. He was
doing work at a distance of 1 Kilometre. In para-8, he has stated
that after hearing cry of his daughter, he rushed towards place of
occurrence. Gone inside the ‘Kara’ field. In para-9, he has stated
that he had seen his daughter unconscious. Rajkishore, Sanoj ,
Rajgir and others were present. First of all, he has seen Ranjeet
who was engaged in committing rape upon his daughter. He
with the help of others, chased and apprehended the accused.
They had chased about two Laggi. He ran towards east. In para-
10, he has stated that accused was not assaulted. He was
immediately, handed over to the Chaukidar. In para-11, he
denied the suggestion that the leg of accused had sustained
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
23/27
fracture at an earlier occasion. Steel plate was affixed. He has
further stated that after handing over the accused to Chaukidar,
they have rushed to hospital along with the victim, who was
unconscious. She regained sense after 4-5 days. The court has
recorded demeanor of the witness as illiterate and rustic. In
para-12, he has stated that after regaining sense, his daughter
had spoken. What would be expected from a girl aged about
three years to say about the occurrence. ‘Kara’ field belongs to
Bindeshwar Paswan. Then localized place of occurrence. In
para-12, he has stated that blood was at 2-3 places which was
shown to the police. He is not aware with the fact whether the
accused was medically examined or not? In para-13, he has
stated that cloth of the victim was handed over to the police. In
para-15, he has stated that none has house near the place of
occurrence. In para-16, he has stated that the house of the
accused is adjacent to his house. Accused is not mad. He
happens to be his brother. His father is a petty contractor. He
does not work under him. Then has denied the suggestion that
the accused has been falsely implicated. He had not committed
rape upon the victim.
23. PW-1 and PW-4, mother of the victim are the
persons who arrived at the place of occurrence much after, on
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
24/27
being informed and had seen the accused being apprehended as
well as, the victim being unconscious having bleeding from her
genital. They came to know about the occurrence as was being
discussed at the P.O., going to hospital along with victim.
During cross-examination, nothing substantial is there.
24. PW-7 is the I.O. He has stated that on
16.03.2011, he was S.I. at Mahual Police Station. On being
entrusted, he took up investigation. He recorded further
statement of the informant. He prepared seizure list. He
recorded statement of mother of the victim and then, visited the
place of occurrence. During course of inspection of the place of
occurrence, he had found ‘Kara’ (phoos) trampled. Then had
shown the boundary as North-Canal, South-Laxmi Singh, East-
Canal and then road, West-Baldeo Paswan. Then thereafter, he
recorded the statement of the other witness. Took custody of the
accused and brought him to the police station. Sent the victim to
Hajipur for treatment. Received injury report, supervision note
and then, after completing investigation, he had submitted
charge-sheet. Then has exhibited the relevant documents. He has
also exhibited the petition through which a prayer has been
made before the learned lower court to admit the original
seizure list which he left to transmit along with FIR showing
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
25/27
seizure of panty frock of the victm. During cross-examination
at para-5, has stated that he had not seized any article from the
place of occurrence. He has further stated that he had not got
Ranjeet medically examined. He has not mentioned the fact in
the case diary where he had arrested Ranjeet but, he was
arrested on the date of occurrence itself. He is not remembering
the clothes having worn by Ranjeet. He had not sent those
clothes for chemical examination. In para-6, he has stated that
he had not sent the clothes which was seized by him belonging
to the victim to the FSL examination. He has not examined the
persons whose field lies in the vicinity. In para-7, he has stated
that he had not got the victim examined under Section 164
CrPC.
25. The evidence as a whole is to be considered
during course of appreciation of the evidence as enunciated by
the Hon’ble Apex court. When the evidences have been properly
scrutinized in such a manner, it is apparent that presence of
witnesses, namely, PWs-2, 3 and 5 is found duly recognized at
the place of occurrence (‘Kara’ field) irrespective of who came
first where the victim, a kid aged about 3 years was found
unconscious being in pool of blood and, there was bleeding
from her genital. It is also apparent that appellant was
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
26/27
apprehended at the same place on being chased covering only
10 steps and, on that very score, there happens to be no denial at
the end of the appellant.
26. It is further evident that his both hands, at the
time of apprehension, were smeared with blood. There happens
to be failure at the part of the Investigating Officer at two
counts, the first one, he had not seized anything from the place
of occurrence, nor irrespective of seizure list with regard to
production-cum-seizure of the panty and frock of the victim
soaked with blood was transmitted to the court along with
Fardbeyan, coupled with non transmission of the same for
chemical examination and, the second event, having failed to
get the appellant/accused examined by the doctor in accordance
with Section 53A of the CrPC as well as non-
seizure/transmission to FSL the apparel of the
accused/appellant, could be seen adverse to the prosecution. It is
not that the aforesaid event has been intentional in order to give
benefit to the prosecution rather, it happens to be, from the
conduct of PW-7, the IO, on account of his ignorance or
incompetence. Moreover, the appellant has not pleaded that he
was an impotent nor he controverted that he was not
apprehended by the prosecution party at ‘Kara’ field where the
Patna High Court CR. APP (SJ) No.500 of 2016 dt.13-09-2019
27/27
victim was lying unconscious in the pool of blood and, even at
that very time, she was bleeding having no animosity since
before. Absence of spermatozoa does not rule out the factum of
rape as, the requirement is simply penetration to any extent and
not ejaculation. Furthermore, irrespective of the fact that
appellant could not be able to suggest prejudice having suffered
by him on that very pretext, it is settled at rest that for the fault
of I.O., prosecution could not be allowed to suffer unless and
until, the lapses happen to be intentional one in order to give
additional support to prosecution.
27. That being so, the instant appeal is found bereft
of merit, whereupon, the same is dismissed. Appellant is under
custody which he shall remain till the saturation of the period of
sentence.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 16/09/2019
Transmission Date 16/09/2019
