IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.225 of 2013
Arising Out of PS.Case No. -30 Year- 2011 Thana -KURSELA District- KATIHAR
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Siko Singh S/O Budhu Singh Resident Of Village- Koshkipur, P.S.- Tikapaati,
District- Purnea
…. …. Appellant
Versus
The State Of Bihar
…. …. Respondent
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Appearance :
For the Appellant/s : Mr. V.D. Singh
Mr. Bijendra Kumar Singh
For the State Mr. S. N. Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
And
HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL)
Date: 06-03-2017
The sole appellant was charged under sections 376 and 511 as
well as 377 IPC for having sexually assaulted/ravished 08 year-old-daughter
(P.W.9) of the informant (P.W.7) while she was at the maize field in the
evening of 10.03.2011 to cut grass. The learned Ad hoc Additional Sessions
Judge-II, Katihar by his judgment of conviction dated 18.01.2013 passed in
S.T. No. 189 of 2011 held him guilty under sections 376 and 511 IPC as well
as section 377 IPC. By the order of sentence dated 22.01.2013 the appellant
was sentenced to undergo R.I. for life under section 377 IPC and to pay a fine
of Rs. 20,000/- with default clause. He was also sentenced to undergo R.I. for
10 years under section 376/511 IPC and was imposed a fine of Rs. 10,000/-
with default clause. Both the sentences were directed to run concurrently.
2. On 10.03.2011, at about 9.00 P.M., the informant (P.W.7),
presented a written report signed by him (Ext.1/4) before the Station House
Officer, Kursela (P.W.13) that while the victim was cutting grass in Takua
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Bahiyar along with her cousin (P.W.14) in the maize field of Janardan
Mandal @ Chulahi Mandal (P.W.6), the appellant came there, overpowered
the victim, scared away P.W.14 and thereafter she was taken into the maize
field where she was subjected to rape/sexual assault. On Hulla, the witnesses
arrived including Suresh Mandal (P.W.3) and with the help of his son Pramod
Kumar Mandal (P.W.4) the appellant was overpowered. On such filing of
written report, a formal FIR (Ext.5) was drawn and the investigation was set in
motion where the victim was sent to the doctor for her medical examination.
The SHO was also the I.O. of the case. He is said to have arrested the appellant
on the same evening and the seizure of the undergarments of both the victim
and the appellant was made in presence of Bhola Mandal (P.W.1), Pinku Ram
(P.W.2) and Suresh Mandal (P.W.3). The following morning, he visited the
place of occurrence and seized a Gamcha allegedly belonging to the appellant
under seizure memo (Ext.9) in presence of P.W.5 and P.W.8. The
undergarments of the victim and the accused were not sent for the forensic
examination by the I.O. Those articles were, however, preserved in Malkhana
and were produced as material exhibits at the trial vide Exts. I, II III. On
conclusion of the investigation, the charge-sheet was submitted/laid
whereafter cognizance of the offence was taken and the case was committed
to the court of sessions for trial which subsequently came on the file of the 1st
Additional Sessions Judge where charges were framed on 13.07.2011 which
were read over/explained to the accused. He abjured the guilt and claimed to
be tried. The statement of the victim was recorded on 18.03.2011 which has
been brought on record duly proved by P.W.11 as Ext. 3.
3. At the trial, the prosecution, with a view to prove the case beyond
shadow of reasonable doubt, produced 14 prosecution witnesses. P.W.1 Bhola
Mandal, P.W. 2 Pinku Ram, P.W. 3 Suresh Mandal, P.W.4 Pramod Kumar
Mandal and P.W.14 Soni Kmari were produced as the eye-witnesses to the
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occurrence. P.Ws 6, 7 8 are the hearsay witnesses. P.W. 10 is the doctor
who medically examined the victim and proved her medical report (Ext. 2).
P.W. 11 is the Judicial Magistrate, 1st Class who has proved the statement of
the victim recorded by him. P.W.12 is a formal witness (police personnel)
who has proved the material exhibit. P.W. 13 is the I.O. of the case.
4. On analyzing the evidence adduced at the trial, the learned trial court
found and held that the charges framed against the appellant were proved
beyond shadow of reasonable doubts and the appellant was convicted and
sentenced in the manner stated above.
5. We have heard Mr. V. D. Singh, the counsel for the appellant as
well as Mr. S. N. Prasad, APP for the State.
6. The commission of the crime at the hands of the appellant on the
relevant date and time of the occurrence has not been challenged before us. We
are, therefore, not delving deep into the evidence on record produced by the
prosecution to prove that the occurrence was committed by the appellant on
the alleged date, place and time of the occurrence. The evidence of P.W.2,
P.W.3, P.W.4, P.W.9 (victim) read with the objective findings of the I.O.
(P.W.13) clearly establishes that on the relevant date and time of the
occurrence the appellant was present at the place of occurrence and finding
the victim (P.W.9) alone with another small girl P.W.14, she was forcibly
taken to the nearby maize field and after scaring P.W. 14 away, he sexually
assaulted the victim. The learned trial court, on appraisal of the evidence
particularly the statement of the victim, the objective findings of the doctor
(P.W.10) and in the light of the other circumstances proved at the trial held
that the appellant was guilty of having committed rape on the victim.
However, considering the evidence produced at the trial, he was also held
guilty under section 377 IPC.
7. On behalf of the appellant, it has been urged that on the strength of
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the evidence on record, the conviction of the appellant under section 377 IPC
is wholly uncalled for. The learned trial court erred in law in overlooking the
evidence on record and convicted the appellant under section 377 IPC. The
evidence produced by the prosecution to prove the charges under sections
376/511 IPC would also be fully applicable insofar as the charge under
section 377 IPC is concerned. In this connection, our attention has been drawn
to the medical report of the doctor (P.W.10) available on record as Ext. 2
wherein she has stated that no medical examination of the anus part of the
victim was examined by her as the I.O. had not requested for such
examination of the injury, if any, on her anus. In the written report which
was lodged at least 04 hours after the occurrence it is not alleged that the
victim was subjected to carnal intercourse against the order of nature by the
appellant. We have carefully perused the evidence of the victim, the doctor
and the I.O. The I.O., in his cross-examination, has stated that the victim has
not stated about subjecting her to unnatural offence at the hands of the
appellant. The doctor who could not find any injury sustained by the victim
on her anus part has given an explanation in her evidence that as the I.O. did
not request for examination of the anus part of the victim she did not examine
the same and reported her finding to the I.O. This would create a doubt in the
mind of the court. In order to lend assurance to us with regard to the said
charge, we have cautiously perused the statement that was made by the
victim under section 164 Cr. P.C. (Ext. 3) as well as her deposition in court.
The victim in her statement under section 164 Cr. P.C. (Ext.3) has vividly
explained the manner in which the appellant behaved with her on the relevant
date. Similar statement has been given by her in course of her deposition as
P.W.9. We cannot undermine the fact that the victim was a girl child of 08-09
years. There is nothing substantial on record even to suggest with some
amount of credibility that there was any strained relationship between the
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prosecution and the defence. It was a clear lapse on the part of the doctor in
not examining other aspects of the criminal assault when it was reported her a
case of rape on minor. The I.O. of this case, although has given explanation
that in his understanding rape would include unnatural offence, in our
considered opinion, he should have proceeded cautiously as he was dealing
with the case of sexual assault on a child. The trial court has noticed and
recorded the demeanor of the victim while she was deposing in the case. Her
statement made under section 164 Cr. P.C. (Ext. 3) and evidence in Court as
P.W.9 clearly gives an impression that an attempt was also made by the
appellant to commit carnal intercourse against the order of nature on the
victim on the relevant date and time of the occurrence. The evidence of the
victim particularly if she is a child of tender age cannot be brushed aside for
some lapses on the part of the prosecution. She has consistently stated both in
her statement under section 164 Cr. P.C. as well as in her deposition that the
appellant had made an attempt to commit unnatural offence on her. We find an
element of truth in her statement. Nothing has been shown to us by the
appellant to discredit her evidence.
8. In the light of the discussions made above, we find that the appellant
was guilty of having committed offence punishable under sections 377/511
IPC besides the offence punishable under sections 376 and 511 IPC which
was recorded by the leaned trial court and no serious challenge thereagainst
has been raised before us.
9. It is submitted that the appellant was in the prime of his life when
the occurrence is said to have been committed and there is every likelihood of
his settling well in the society and contributing productively to the society. It
has further been submitted that there is nothing on record to suggest that the
appellant has committed any such offence against the order of the nature
previously. Conversely, it has been urged on behalf of the State that the
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appellant is guilty of unnatural crime.
10. Considering all aspects of the matter, in our view, the ends of
justice shall be subserved if the appellant is sentenced under both counts to
serve R.I. for a period of 10 years. He shall also be imposed a fine of Rs.
10,000/- under sections 377 and 511 IPC in default of payment whereof he
shall further undergo S.I. for 04 months. In case the fine is realized the same
shall be payable to the victim. Both the sentence(s) imposed upon the appellant
shall run concurrently.
11. With the aforesaid modification in the findings of judgment of
conviction and order of sentence passed against the appellant, the appeal
stands dismissed.
(Kishore Kumar Mandal, J)
(Sanjay Kumar, J)
HR/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 10.03.17
Transmission 10.03.17
Date
