IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.23 of 2015
Arising Out of PS.Case No. -11 Year- 2012 Thana -BALIGAON District- VAISHALI(HAJIPUR)

1. Tufani Paswan son of Late Sakkal Paswan resident of village – Bisunpur Kawa,
P.S. – Baligauw, District Vaishali.

…. …. Appellant/s
Versus

1. The State of Bihar.

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Baban Roy, Amicus Curiae
For the Respondent/s : Mr. Binod Bihari Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 15-09-2017

Yesterday, i.e. on 14th of September 2017 learned counsel

for the appellant was present who was insisting upon granting of a

long adjournment but the same was declined whereupon requested to

argue the instant appeal. He took up the matter and then at his request,

the hearing was adjourned.

2. Today, i.e. on 15th of September 2017, having the appeal

been called out and keeping the file pending for half an hour awaiting

presence of learned counsel for the appellant went in vain, whereupon,

Sri Baban Roy, learned counsel, who is present in the court, has been

requested to assist the Court as an Amicus Curiae.

3. Appellant, Tufani Paswan has been found guilty for an

offence punishable under Section 376(f) of the IPC and sentenced to

undergo RI for 10 years as well as to pay fine of Rs. 20,000/- in

default thereof, to undergo SI for six months, additionally vide
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 2

judgment of conviction dated 19.11.2014 and order of sentence dated

21.11.2014 passed by Additional Sessions Judge-3rd, Vaishali at

Hajipur in Sessions Trial No. 278/2012.

4. Mother of victim, Rangila Devi (PW 5) lodged FIR on

28.02.2012 at about 4.30 PM after coming to Baligaon PS along with

the victim (name withheld) aged about 5 years alleging inter alia that

on the same day she had gone to do menial work at Village-

Bahauddinpur under Azhar Mian leaving behind her daughter, victim

(name withheld) along with two other minors. Her cousin father-in-

law, Aklu Paswan came to the field along with her daughter (victim)

who was weeping at about 2:00 PM and disclosed that Tufani Paswan

has committed rape on her on account of which, blood is oozing out

from her vagina. Then thereafter, she had seen vagina of her daughter

and found the blood still coming out. She had not worn pant. On

query, she disclosed that while she was playing in front of her house,

Tufani Baba came and gave a coin of Rs.1/- as well as provided

Kurkuria (an edible item) and took her away inside his house where,

put off her pant and then put her penis inside her vagina as a result of

which, she felt severe pain, cried, whereupon he choked her mouth.

As profuse bleeding started, he had wiped the same with his Gamchha

and slipped from the room. She came out from the room weeping

whereupon, Aklu Baba accompanied her to me. Then thereafter, she
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 3

had returned back to her house along with victim where Deepak

Kumar, aged about 12 years disclosed that after hearing cry of the

victim, he had gone to the house of Tufani Baba and saw the victim

coming out from his house. He had also seen bleeding from her

private part whereupon he rushed and informed Aklu Baba and others.

5. After registration of a case bearing Baligaon PS Case

No. 11/2012, investigation proceeded, victim was medically

examined, raid was conducted at the house of accused wherefrom

articles were seized and for that, search-cum-seizure was prepared,

presence of accused was procured, followed with submission of

charge-sheet on the basis of which trial commenced and concluded in

a manner subject matter of the instant appeal.

6. 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. It has further been pleaded that there was talk

in between the appellant as well as Rambabu and Rangila Devi

(parents of the victim) relating to a land which did not finalize and on

account thereof, the parents of the victim became aggrieved and in the

aforesaid background, a month thereafter, in a pre-planned manner,

the instant case has been filed. To substantiate the same DWs have

also been examined.

7. In order to substantiate its case, prosecution had
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 4

examined altogether 15 PWs out of whom PW-1, Aklu Paswan, PW-

2, Dipak Kumar, PW-3 Rita Devi, PW-4, Suman Kumari, PW-5,

Rangila Devi, PW-6, Ganesh Paswan, PW-7, Lakhindra Paswan,

PW-8, Phul Kumari, PW-9, Ramsagar Paswan, PW-10, Yogendra

Paswan, PW-11, Sangita Devi, PW-12, Sheela Dev, PW-13, Dr.

Vinita Kumari, PW-14, Ajay Kumar Singh and PW-15, Mangal

Prasad. Side by side had also exhibited Ext-1, FIR, Ext-1/1, Signature

of informant over the same, Ext-2 Series, medical report, X-ray report,

report of the medical board, Ext-3, Seizure list, Ext-4 series, FSL

report. As indicated above, defence had also examined 4 DWs,

namely, DW-1, Bhola Paswan, DW-2- Babul Das, DW-3- Ram

Chandra Paswan and DW-4- Bhutti Devi.

8. Learned Amicus Curiae, while challenging the finding

recorded by the learned lower court, has submitted that false

implication is duly exposed on account of inconsistency prevailing in

the prosecution case. To substantiate the same, it has been submitted

that doctor (PW-13) had examined the victim on the following day

but, she had not found any injury over person of victim including over

private part, externally or internally. That being so, the story of rape

propounded by the prosecution appears to be gutted down as well as it

also suggests probability of the defence case for which, four DWs

have been examined that on account of breakage of negotiation
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 5

relating to sale of land, the prosecution party became aggrieved

whereupon, instant case has been filed.

9. It has also been submitted that none is an eyewitness

to occurrence. Deepak Kumar who happens to be PW-2, a lad aged

about 12 years, while was returning from his school claimed to have

heard cry of the victim whereupon had gone to the place of appellant

where he saw the victim coming out from his house having profuse

bleeding from her private part but improbability is visualizing from

his evidence as it was the month of February and there was no

occasion for him to visit his place leaving the school. Therefore, his

evidence happens to be unreliable. Discarding his testimony, the

evidence of other PWs are liable to be rejected in similar way as apart

from being not an eyewitness to the occurrence, they came to know

from PW-2, Deepak Kumar. It has also been submitted that none of

the witnesses, save and except, informant, Rangila Devi (PW 5) had

deposed that they left their house on account thereof, their presence

remained at their respective places. Had there been some sort of

activity at the end of appellant, Tufani Paswan, then in that event,

certainly, they would have deposed that they have seen Tufani Paswan

alluring the victim and taking her away inside his house. That being

so, considering the nature of the evidence having adduced on behalf of

prosecution, it is apparent that they have conspired to teach a lesson to
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 6

the appellant whereunder projected a minor who, on account of her

tender age, could not be in a position to perceive meaning of Ganda

Kam (sin). Furthermore, the manner whereunder the victim had

deposed before the court clearly suggests that she has been tutored to

depose like so, otherwise her tender age would not have allowed the

same and in its entirety coupled with the evidence of the doctor, no

case of rape is made out whereupon, conviction and sentence recorded

by the learned lower court is fit to be set aside.

10. On the other hand, learned APP while supporting the

finding recorded by the learned lower court has submitted that true it

is, that none of the witnesses had claimed to have seen the appellant

alluring the victim, taking her away to his house where such kind of

disgustful activity was taken up but, the circumstances are there which

conclusively proves the activity of the appellant. Place of occurrence

was visited by the Investigating Officer (PW 14) on the same day and

from a room belonging to the appellant, bed-sheet, Gamchha and

Dhoti was found whereupon blood was there. Over bed-sheet, there

was spot which, during course of FSL examination had been detected

to be semen. The blood having been found belong to one group.

Neither the appellant nor the DWs out of whom DW-1 is full brother

of appellant, DW-2 is cousin brother of appellant and DW-4 is

daughter-in-law of appellant had explained. Even during their
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 7

evidences, all the DWs have not spoken to the effect that they have

not seen the victim in company of appellant nor inside the room

rather, they deposed on other aspect i.e. with regard to breakage of

negotiation for sale of the land. In the aforesaid background and

further scrutinizing evidence of the prosecution witnesses in its

entirety, it is apparent that the prosecution has succeeded in

substantiating its case whereupon, the judgment of conviction and

sentence happens to be fit to be affirmed.

11. After going through the evidence available on

record, apart from examination of official witnesses who are PW-13,

the doctor, PW-14, the Investigating Officer and PW-15 who had

exhibited the FSL report, the evidence is found of three categories.

The first one happens to be the victim herself. The second belongs to

the evidence of Deepak Kumar PW-12, Aklu Paswan, PW-1 and

remaining are of third category. Before coming to the ocular evidence,

first of all, evidence of PW-13, is to be considered.

12. PW-13 who happens to be one of the members of the

medical board including others, namely, Dr. Pushpa Lata Mishra, had

examined the victim on 29.02.2012 and found the following:-

(a) On general examination, she was found
conscious. There was no external injury
on her body.

(b) For pelvic examination, she was
examined under general anaesthesia in
O.T. of Sadar Hospital, Hajipur. Her
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 8

secondary sexual characters are not
developed. There is not injury on her
external genitalia. Posterior fourchette is
intact, No injury on labia majora or
minora. Hymen is intact. There is
redness at the inner side vaginal introits.

Vaginal swab is taken and sent to
Pathologist, Sadar Hospital, Hajipur. For
age estimation, she was sent to the
Radiologist. Report of Pathologist
received. No spermatozoa was seen;

Report of Radiologist received and her
age has been estimated in between 3 to 5
years and then it has been concluded (1)
her age is about five years, (2) Clinically
and pathologically there is no evidence
of sexual assault.

13. Now in its continuity the evidence of the victim,

PW-4 is taken together. The court had tested her and found competent

enough to give evidence. She had deposed that the occurrence is about

one year ago. She was playing at her Darwaza. Tufani Baba caught

hold her and took her to his house. He paid Rs. 1. He pressed her

mouth and then said that if she would disclose the event to anybody

then she will be murdered. Then thereafter, he undressed her. As soon

as, he put his penis, she began to cry. He had committed sin with her.

There was profuse bleeding from her private part. Deepak came and

accompanied her to Aklu Baba who carried her to her mother. She

was admitted in the hospital. Had identified the accused. During

cross-examination at para-3, she had deposed that Ram Babu Paswan
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 9

happens to be her father. She had talked with him on the date of

occurrence. At para -4, she had stated that she was playing along with

her brother Shivam, Sister Sonali Kumari, Neha, her neighbour.

Deepak was also present there. In para-5, she had deposed that others

had not joined while Tufani was carrying her to his room. Tufani had

caught hold of her and then, took her. At that very time, she had worn

frock (red colour) and pant (black colour). In para-6, she had stated

that her father took her to the hospital. On court question, she had

stated that she had also gone to the police station. Her statement was

also taken by the police while she was admitted at the hospital. She

had further stated that none had seen the occurrence. In para-8, she

had stated that there was blood over her pant. In para-9, there happens

to be suggestion that no occurrence was committed with her. On the

tutoring of her mother, this case has been filed.

14. PW-2, Deepak Kumar who was also tested by the

Court on account of his tender age. In his examination-in-chief, he

had stated that while he was returning from his school, he saw his

sister (victim) weeping at the house of Tufani Paswan. He had gone

there. He had seen blood oozing out and then disclosed the locations

before the court which the court had noted down. Then thereafter, he

took the victim to his house where his mother had seen her private

part after removing the pant and on account thereof, she was taken to
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 10

the place where her parents were engaged in menial work. He had

further stated that Tufani had committed sin with her. Identified the

appellant. During cross-examination, he had deposed that he had to

come to the court along with Ram Babu (father of victim). During

course of returning from his school, he was alone. There are 4-5

houses near his house. At that very time, he had not met with any

inmates of the aforesaid houses. He had further stated that police had

taken his statement. Then at para-8, he had stated that he is not

knowing the persons who have got their house in the boundary of

Tufani Paswan. In para-9, he had stated that husband of Rangeela

Devi had not instructed him. House of Rangeela Devi as well as that

of himself is not common but adjacent to each other. Family members

of all the houses conjointly had gone and during course thereof, he

had disclosed. In para-10, he denied the suggestion that at the instance

of his father Aklu, he has falsely deposed.

15. Other kind of evidence, i.e. PWs- 3, 5, 7, 8, 11 and

12 have deposed that after having the victim carried by the PW-2,

Deepak Kumar, they had seen the physical condition of the victim,

weeping, oozing out of blood from her private part and on query,

disclosure made by the victim with regard to activity having at the end

of Tufani Paswan.

16. PWs-6 and 10 have become hostile. PW-9 is one of
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 11

the seizure list witnesses, namely, Ram Sagar Paswa, though shown

his presence over the seizure list, but stood under same category.

17. PW-14 is the Investigating Officer, who had deposed

that after registration of case, he took up investigation. He recorded

further statement of the informant, Aklu, statement of victim and then

proceeded towards place of occurrence, inspected the same which

happens to be the house of Tufani Paswan having eastern front and

then identified the same with boundary. He had gone inside the room

and there he found one Dhoti having blood stain, one Gamchha (red

colour) having blood spot, blood over earthen floor, blood over bed-

sheet and all were seized for which seizure list was prepared in

presence of Ganesh Paswan (PW 6) and Ram Sagar Paswan (PW 9).

Sent the aforesaid items to the FSL. Recorded statement of other

witnesses. Arrested Tufani Paswan. Received medical report from

Sadar Hospital, Hajipur and then after completing investigation

submitted charge-sheet. During cross-examination, he had disclosed

in para-7 that the victim was sent to Sadar Hospital, Hajipur on

29.02.2012. He had further stated that all the articles were seized from

a room which was under the occupation of the accused. He had further

stated that he had not inquired from the accused whether those items

were belonging to him or not. He had further stated that the accused

put his LTI over the search-cum-seizure list. In para-8, he had denied
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 12

the suggestion that the items which were seized from the room were

not belonging to the accused. He had further deposed that the accused

was not medically examined after his arrest. It has further been

suggested that in presence of Ram Sagar Paswan and Ganesh Paswan

(declared hostile), nothing was recovered nor seized. He had further

stated in para-10 that after receiving medical report, he had

incorporated the same with the finding that no evidence of rape was

found.

18. From the FSL report (Ext-4 Series), it is evident that

on all the articles, the blood was found was of the same Group „A‟.

Furthermore, over the bed-sheet, apart from blood, semen was also

found.

19. Now coming to the DWs, it is evident that DW-1 is

own brother, DW-2 is cousin brother and DW-4 is the daughter-in-law

of the appellant. Neither DW-1 nor DW-2, nay DW-3 had deposed

that police had come, inspected the house of Tufani Paswan, arrested

Tufani Paswan and during course thereof, inspection of the place of

occurrence, room occupied by the appellant, had recovered the

articles, were not at all recovered. They have simply deposed that

there was negotiation relating to sale of the land at an earliest which

did not materialize and on account thereof, prosecution party carried a

grievance. So far DW-4, Bhutti Devi is concerned, she had deposed
Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 13

that nothing was recovered from her house while visited by the police

but during cross-examination at para-2, she had deposed that she

along with her husband and children remained at Karnal. After

commission of the occurrence, she had come to her Sasural and so,

her arrival happens to be after the occurrence and in the aforesaid

background, she was not a competent witness to depose on that very

score, though, admitted presence of police at her place.

20. For attracting Section 376 IPC penetration to any

extent is sufficient, neither the full penetration nor ejaculation is a

condition precedent though found over the bed-sheet and it might be

on account of ejaculation outside the vagina.

21. From the evidence of PW-13, it is evident that

medical report had negativated the incident of rape but has found

redness at the inner side of vaginal introits and that indicates some

sort of external activity. If slight penetration is made, then in that

event, hymen would not rupture, more particularly, in case of child

where it happens to be deeply embedded.

22. Modi has observed that “where the hymen, the

posterior commissure and fourchette were intact, but there was

congestion of the vaginal wall outside the hymen and there was

redness underneath the labia majora, though no contusions” even

then, it may be held to be an instance of rape.

Patna High Court CR. APP (SJ) No.23 of 2015 dt.15-09-2017 14

23. That being so, the finding rendered by the learned

lower court is found to be based upon the evidence available on the

record as well as having observed by the Modi in the text book

“Medical Jurisprudence and Toxicology” and on account thereof, is

affirmed.

24. Consequent thereupon, the appeal sans merit and is

accordingly, dismissed.

25. Appellant is under custody wherein he will remain

till saturation of the sentence.

26. The first and the last pages of the instant judgment

be handed over to the learned Amicus Curiae for the needful.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE NA
Uploading Date 21.09.2017
Transmission 21.09.2017
Date