Badruddin Mian vs The State of Bihar (Now Jharkhand)

Dilip Kumar Sinha, J.—The Instant appeal is directed against the judgment of conviction dated 30.06.1998 and order of sentence recorded by the 4th Additional Sessions Judge, Dhanbad in Sessions Trial No. 117 of 1988 by which the sole Appellant was convicted u/s 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a term of 7 years.

The prosecution case, as it stands narrated on 18.06.1985 in the Fard Bayan of the prosecutrix Pewasi Kamarin before Tundi Police Station was that a day prior i.e. on 17.06.1985 she was asked by her mother to take away food for her father, who was fishing at the Khudin rivulet along with other villagers. Pursuant to such instruction, she went there carrying food but she was asked by her father to return back as he was likely to come soon in course of her return journey when she reached near Deritarn, she spotted Badruddin Mian of her village, who suddenly appeared before her coming from behind the Neem tree and caught hold her hand to which she resisted and tied to get rid of him by raising alarm. The prosecutrix further alleged that the Appellant Badruddin Mian then gagged her mouth with the help of his towal, pushed her on the earth and committed rape and then fled away. She anyhow came to the place where her father was fishing and fell down on the earth unconscious. She regained her senses after about half an hour and then she narrated the occurrence to her father in presence of the villagers. The occurrence took place at about 2.30 p.m. and on Information, her mother also arrived there or the bank of river to whom also she narrated the occurrence. She was then taken to home and from there to the Police Station on a cot where her statement was recorded. Tundi Police registered Tundi P.S. Case No. 48 of 1985 for the alleged offence u/s 376 of the Indian Penal Code against Badruddin Mian. She was medically examined by P.W. 10 Dr. Rita Gupta and during examination her age was determined as 14 years on the alleged date of occurrence. The police after investigation submitted charge-sheet u/s 376 of the Indian Penal Code against the Appellant, who was put on trial after framing of charge. The defence of the Appellant was of false implication on account of an incident that a day prior to the alleged occurrence there was altercation between the father of the victim and the father of the Appellant and at that time the father of the victim had threatened to implicate the accused in a false case.

Altogether 10 witnesses were produced and examined on behalf of the prosecution and a formal witness D.W. 1 Hardayal Prasad Sao was examined on behalf of the defence, who proved the station diary entry No. 397, based upon the written information of Piru Mian i.e. the father of the accused-Appellant, received at the Police Station on 18.06.1985 at about 1.00 p.m. with respect to the alleged altercation, which took place on 17.06.1985. P.W. 1 Sheolal Hazra and P.W. 2 Kali Charan Mandal were unfavourable to the prosecution and hence they were declared hostile. Nothing material could be elicited from their evidence. P.W. 3 Rajan Kamar is the father of the victim, who categorically supported the prosecution case and the statement of his daughter Pewasi Kamarin. P.W. 4 Durjan Kamar, P.W. 5 Budda Kamar, P.W. 6 Ramesar Kamar were the uncles of the prosecutrix who have corroborated the prosecution case. P.W. 7 Pumi Kamarin was the mother and P.W. 8 Pewasi Kamarin was the prosecutrix. P.W. 9 had investigated the case and P.W. 10 Dr. Rita Gupta had medically examined the prosecutrix. Besides, the prosecution has proved the Fard Bayan of the prosecutrix Ext. 1. Signatures of the witnesses Kali Charan Mandal and Sheolal Hazra thereon Ext. 2 and 2/1 respectively. The production-cum-seizure list of the undergarments of the girl was proved and marked Ext.3 whereas injury report of the victim was proved Ext. 4.

P.W. 3 Rajan Kamar is the father of the prosecutrix. He testified that the occurrence took place some 4 1/2 years ago. He had been to the river side at about 1.30 p.m. along with Durjan Kamar, Kali Charan Mandal and Ramesar Kamar etc. for fishing. His daughter Pewasi Kamarin carried food for him but he asked her to return back, as he had almost completed fishing and was about to return back and expressed that ha would take his food at the home. She than proceeded but returned back almost running to his utter surprise and simultaneously he witnessed the accused (Appellant) running away from that place. His daughter apprised that the accused Badruddin Mian to whom he identified in the dock had sexually assaulted her. She was taken to home and from there to Tundi Police Station on a (sic) as she was suffering pain in movement. She was sent to Dhanbad for medical check up from the Police Station. Her Sari and Petticoat was collected by the police: He identified the Appellant in the dock. In the cross-examination, the witness admitted that several co-villagers were there at the rivulet including the father of the Appellant engaged in fishing. The rivulet was situated at the distance of about 11/2 miles from his village. He further admitted that the accused was his co-villager and the occurrence took place by the side of the foot path which led to Khudin river from the village. He denied the suggestion that on account of previous enmity as his cattle had grazed the field of the Appellant, he instituted the false case against him. The witness explained that the tiffin containing his food had fallen at the place of occurrence and his daughter had returned back without collecting the tiffin but later on it was collected and brought to his home. He further testified that his daughter became unconscious at the river side and gained her senses after about half an hour on the bank of Khudin river. Her mother came there later on and took her to home. The victim narrated the occurrence on the bank of Khudin river itself. The village Mukhia was informed about the occurrence but he did not come. The police arrived at the village after about a day or two of the occurrence to whom the place of occurrence was shown. The place of occurrence was surrounded by bushes and trees. She could not say as to on which part of her body she had sustained injuries. There were blood shins in her Sari and that Sari was delivered to the police at the Police Station, The witness testified that it took six hours to reach at the Police Station but he could not say the distance, however, he explained that he had to cross the hillocks on foot while coming to Police Station.

P.W. 4 Durjan Kamar supported the occurrence and testified that at the relevant time, he was also there at the bank of Khudin river engaged in fishing where Pewasi Kamarin carried food for her father to which the latter asked her to return back expressing that he would take his meal at the home itself. His daughter proceeded to home but returned back from mid way, fell on the bank of the river and became unconscious. She narrated the occurrence after gaining senses that Badruddin Mian had sexually assaulted her after putting her on the earth and gagging her mouth with clothes. She was taken to home and from there to the Police Station. He identified the accused in the dock. In the cross-examination, the witness admitted that amongst the villagers engaged In fishing there were Jagamath, Rameser, Kali Charan, Rajan and Kamruddin In whose presence she narrated the occurrence. Upon being asked the witness deposed that there was no enmity between Rajan (father of the victim) and the father of the accused. The witness was the uncle of the victim.

P.W. 5 Buddu Kamar is the hearsay witness. He testified that he came to learn about the occurrence when he returned back after attending his duty that Badruddin Mian had committed rape on her niece Pewasi after gagging her mouth with the clothes. He derived information about the occurrence from the father of Pewasi. He accompanied the victim and others to the Police Station where statement of Pewasi was recorded. The victim girl was taken to Police Station on a cot. He witnessed scratch on the knee and hand of the girl.

P.W. 6 Ramesar Kamar is the full brother of P.W. 4 and P.W. 5 and first cousin of the father of the victim. In his deposition he claimed that he was also present amongst the villagers on the bank of river engaged in fishing when Pewasi carried food for her father and she was asked to return back with the food as he- father expressed that he would take his food in the home itself. The witness corroborated that the girl proceeded but returned back soon and fell unconscious. She narrated the occurrence after she regained senses that Badruddin Mian had committed rape on her. The mother of the girl came there and took her away to home. He identified Badruddin Mian in the dock. In the cross-examination, the witness admitted that Pewasi returned after about half an hour. The place of occurrence was shown by the victim and she had sustained some scratches in her limbs and her clothes were smeared with dust. He did not find the tiffin at the place of occurrence but found the cooked rice scattered on the earth there. No blood was visible at the place of occurrence but her clothes were blood stained. He did not visit the Police Station along with the witnesses. P.W. 7 Pumi Kamarin is the mother of the victim, who daposed that the occurrence took place some 4 1/2 years ago at about 1.30 O''clock in the day hours. Her husband had been to the river bank for fishing. She had asked her daughter to take away food for her father and accordingly she proceeded after some time. One Kali Charan came to her and informed that some untoward incident had taken place with her daughter on the bank of river and pursuant to such information, she went there. She found her daughter there in the lap of her Kaka and when called upon she narrated that Badruddin Mian had committed rape on her by gagging her mouth with the help of towel. The witness identified Badruddin Mian in the dock by pointing out. Her victim daughter was brought to home and from there to Police Station. Her Sari and Petticoat were blood stained and she was complaining pain in her arms. Her mouth was found swollen. The witness found nail marks on the breasts of her daughter with scratches on the other parts of the body.

P.W.8 Pewasi Kamarin the prosecutrix of the case testified that the occurrence took place some 4 years 6 months ago at about 1.30 O''clock in the day hours. Her father and "Kaka" had been to the Khudia rivulet for angling fishes. Her mother had cooked rice and she asked bur to serve the rice to her father by taking it to his place. She then carried cooked rice to the place where her father was angling fishes on the bank of rivulet. She was asked there by her father to return back as he expressed that he would come home and have his food there. She then undertook returning home and when arrived near the Neem tree after covering some distance way back to home, she was caught hold by Badruddin Mian from her behind and in the same sequence during deposition she pointed out finger towards Badruddin Mian in the dock. He gagged her mouth with the towel and ravished her. She then went to the place where her father was angling where she fell down unconscious.

After a short while she regained her senses and narrated the occurrence to her father and uncle in presence of several people there that Badruddin Mian ravished her. She could not identify some of the villagers who were present there on the bank of the rivulet. On hearing alarm, her mother came and took her away to her home as she was suffering pain and she was laid on a cot. The village "Chaukidar" was informed, who came and advised to inform the police. As she expressed her inability to move as she complained of pain in her private parts, she was carried to the Police Station on a cot where her statement was recorded by the Police Officer and she put her thumb impression on her statement She had visited the Police Station in the same clothes which she was wearing at the time of occurrence, the police collected her clothes and a different Sari was given to her for wearing. She was went to Dhanbad Sadar Hospital where she was examined by a lady Doctor and her X''ray was also taken, in the cross-examination, she deposed that she was carrying food in the "Thali" made of alloy containing rice and pulse covered with cloth with the drinking water pot The Neem tree was standing mid way between her house and the rivulet where her father was angling fishes. She was caught hold by Badruddin Mian from her behind who forcibly put her down on the earth and gagged some cloth in her mouth, she had sustained some injury, on her back portion when he committed rape on her. Consequently there started bleeding which stained her Sari and Petticoat He molested her and torn her blouse. Her chick was pressed and she suffered unbearable pain. His semen fell on her Sari was shown to the police at the Police Station. She denied the suggestion that there was enmity between Piru Mian and her father as such accused was falsely implicated at the instance of her father.

P.W. 9 was the Investigating Officer, who in his testimony proved the statement of the victim Ext 1 and the signatures of the witness Kali Charan Mandal and Shiv Lal Hazra thereon Ext 2 A 2/1. Ha prepared the production-cum-seizure list of the garments of the prosecutrix Ext. 3 and sent the victim to the Doctor at Sadar Hospital, Dhanbad. The I.O. visited the place of occurrence, recorded the statements of the witnesses. In his objective finding he described the place of occurrence where there was a Neem tree surrounded by the bushes of "Puttush" and a small tree of" Akashi". it was by the side of foot path and the river was situated at about distance of 700 yards from the said foot path. There was slope towards river side. Accused was arrested by him.

P.W. 10 Dr. Rita Gupta had examined the victim on 18.06.1985 at about 1.00 p.m. and found the following:

Height- 4''9"

Teeth 14/14

Secondry sex Character

Breast not developed

Axillary hair and public heir not present

Hymen- ruptured

Sign of Injury not seen externally In the private parts.

X-ray examination

II Iac crest did not appear.

Epiphysis of all the metacarpals and lower end of radius and ulna were quite apart fusion not started.

Age: appeared to be 14 (fourteen) years.

No spermatozoa could be found In the veginal swab.

The lady doctor proved the Injury report Ext. 4.

The sole witness D.W. 1 Hardayal Prasad Sao was produced and examined on behalf of the defence after the statement of the Appellant Badruddin Mian was recorded u/s 313 Cede of Criminal Procedure. D.W. 1 Hardayal Prasad Sao simply proved the station diary entry No. 397 dated 18.06.85 Ext. A in the pen and signature of S.I. of police Arjun Hebru of Tundi Police Station. He admitted acquaintances with Piru Mian father of the accused Badruddin Mian. The witness admitted such entry in the station diary was not made in his presence. He further admitted that he had no personal knowledge about the fact that was made in the station diary entry. He denied the suggestion that he deposed false evidence. The station diary entry No. 397 was substituted by filing its Xerox copy in the Court. Ext. A was marked with objection. In his statement recorded u/s 313 Code of Criminal Procedure the accused-Appellant Badruddin Mian was confronted with the incriminating materials brought on the record in course of trial but he simply denied his guilt explaining his false implication.

Learned Sr. Counsel Mr. Jai Prakash at the outset submitted that the Appellant Badruddin Mian was falsely implicated in the instant case on account of old enmity between his father and the father of the prosecutrix. The learned Sr. Counsel advanced his argument by submitting that the medical evidence of P.W. 10 Dr. , Rita Gupta completely negatived the commission of rape on the prosecutrix Pewasi Kamarin as no external Injury could be seen by the doctor In her private part though she was consistent in her statement that she suffered unbearable pain and there was excessive bleeding from her private part after she was ravished. Even no spermatozoa was found in her private part when her veginal swab was examined by the pathologist. Mo scratch/injury/laceration could be found on her body in the medical examination although it was the consistent case of the prosecution that she suffered some scratches. It was a definite case of the prosecution that her blood stained petticoat and Sari were given to the police at the Police Station but there was no report of Forensic Science Laboratory could be brought on the record as to whether such garments were semen stained or not as such charge of rape could not be established against the Appellant.

Advancing his argument the learned Sr. Counsel Mr. Jai Prakash further submitted that the independent witnesses such as P.W. 1 Sheolal Hazra and P.W. 2 Kali Charan Mandal since did hot support the prosecution case, were declared hostile, yet, the other material witnesses were withheld from the witness box during the course of trial and that only the related and partisan witnesses were produced in the Trial Court on behalf of the prosecution as such their testimony should have been discarded. P.W. 3 Rajah Kamar was the father of the victim whereas P.W. 4, 5 and P.W. 6 were her uncles and P.W. 7 Pumi Kamarin was the mother but none of them was the eye-witness of the occurrence and they all admittedly derived information from P.W. 8 Pewasi Kamarin that she was ravished by the Appellant. As a matter of fact, there held altercation between the father of the accused and the father of the prosecutrix a day prior to the alleged occurrence as the cattle of the father of the prosecutrix had entered into the field of the father of the Appellant to which the father of the Appellant Piru Mian had given information to the Police Station at Tundi and station diary entry was made thereof, which was brought on the record as Ext. A. The instant case was sequel to the anguish that was carried by the father of the prosecutrix on whose instance this false case was instituted. The altercation took place on 17.06.1985 during the day hours which could be reported to the Police Station on 18.06.1985 at about 1.30 p.m. far that an explanation was given that the Police Station was situated at the distance of 20 kms from the place of occurrence. Learned Sr. Counsel submitted that the Trial Court grossly erred by observing on the basis of fiction that in such society it was not expected or probable that for a petty quarrel on the issue of grazing by the cattle a father would involve his minor daughter by planting her to institute a case of rape which would put stigma for all time to come in future and might also adversely affect the prospect of her marriage.

Finally, Mr. Jai Prakash, the learned Sr. Counsel submitted that the medical evidence clearly negatived the commission of rape on the victim girl and her testimony did not Inspire confidence so as to cell for conviction of the Appellant Badruddin Mian for the charge of rape. The prosecution evidence brought on the record wee not fool proof as such benefit of doubt may be given to the Appellant.

On the other hand, learned A.P.P. Mr. Sanjay Prasad submitted that the prosecutrix P.W. 3 Pewasi Kamarin consistently narrated the occurrence by giving the sequence of event as to how she was caught hold by the Appellant and overpowered while she was returning back to her home with the food she was carrying for her father and was forcibly pushed down on the earth. She testified that she was ravished by the Appellant Badruddin Mian by gagging her mouth with the towel and sexually assaulted by inflicting injuries on her breast, chick and other parts of her body which resulted into injuries on various parts of her body. The witnesses were consistent that her Sari and petticoat were blood stained and semen stained which were delivered to the Police and that her age was determined by the Doctor to be only 14 years at the relevant time of occurrence in the medical evidence. Much was argued on behalf of the Appellant that the medical evidence did not commensurate the allegation of rape as no spermatozoa was found in the private part of the victim or that no injury was seen externally in her private part, yet, the Doctor opined that her hymen was found ruptured to which the prosecutrix had given explanation that the Appellant Badruddin Mian had committed rape on her against her will and for constituting an offence of rape only penetration was sufficient.

Having regard to the facts and circumstances of the case, argument advanced on behalf of the parties, I find that the Appellant was convicted u/s 376 of the Indian Penal Code of ravishing a minor girl Pewasi Kamarin on 17.06.1985 and at that time her age was determined as 14 years. I have carefully gone through the statement of the prosexutrix Pewasi Kamarin which I find to be consistent and trustworthy. She has narrated the minute of the details narrating the sequence of occurrence. The other witnesses claimed having seen food that she was carrying back to her home on the instruction of her father scattered at the place of occurrence which established the place of occurrence in the proximity of a Neem tree surrounded by "Puttus" bushes. The Neem tree was mid way between her home and the place where the father of the prosecutrix was angling fishes in company with others. It could be evident from the statement of the witnesses referred to hereinbefore that the prosecutrix narrated the occurrence when she gained senses to her father and uncles in presence of many other co-villagers on the bank of river that she was ravished by the Appellant Badruddin Mian and the father of the prosecutrix P.W. 3 Rajan Kamar claimed having seen the Appellant Badruddin Mian running away from the place of occurrence when his daughter returned to his place and fell down on the earth unconscious. Credibility of her testimony could not be shaken in her cross-examination and I find that the Appellant Badruddin Mian demonstrated extreme form of brutality while ravishing a minor girl by putting nail marks on her breast tearing her blouse by gagging her mouth with the help of towel with the clear Intention that she may not cry for help. These all facts cannot be disbelieved on the ground that no injury could be seen externally on the private part of the victim girl. I have reason to rely upon the evidence of the witnesses, who claimed having seen blood stains and other white stains on the Sari and Petticoat of the girl soon after the alleged occurrence and she was taken to the Police Station in the same dress where she delivered her garments to the police and in lieu thereof a San was given to her and in that Sari she went to the Patliputra Medical College, Dhanbad. It would be relevant to mention that in the requisition made by the police to the Superintendent of the Patliputra Medical College, Dhanbad the I.O. had requested to give an opinion as to whether the woman was raped or not and in compliance to that the lady Doctor concentrated on examination of her private part. I find substance in the argument advanced on behalf of the Respondent-State that finding of spermatozoa in the private part/veginal swab of the victim girl cannot be the conclusive proof of commission of rape rather the law prescribes that penetration would be sufficient to constitute such offence. Even in absence of specific finding in the medical examination the Trial Court rightly relied upon the statement of the witnesses including the statement of the mother P.W. 7, who could be the natural witnesses. I find from the statement of the mother P.W. 7 that she testified having seen blood stains on the Sari and Petticoat of the girl. Her cheek was swollen with pain in her arm, legs and thigh and nail marks on the breast with scratches on the parts of her body. She was cross-examined at length but her statement that has been made with respect to the injuries she had witnessed on the body of her daughter Pewasi Kamarin were intact and could not be demolished. I, find that the prosecutrix was consistent in her statement and she identified the Appellant Badruddin Mian in the dock as the person, who committed rape on her while she was returning to her home from the bank of the rivulet. She narrated the occurrence to her father and uncle in presence of the co-villagers within no time after she gained senses. It would be relevant to discuss Ext A which is the station diary entry No 397 dated 18.06.1985 received at about 1.00 p.m. The entry was made on the basis of written application with the thumb impression of Piru Mian at the bottom communicating about the altercation which took place on 17.06.1985 at about 2.30 p.m. on the issue of grazing by two buffalos of the father of the prosecutrix Rajan Kamar which was protested by his son Badruddin Mian and consequently Badruddin Mian was assaulted, abused and threatened of dire consequences. I find from the said Ext. A (exhibited under protest) that after hall an hour of the said entry in the station diary at about 130 p.m. the prosecutrix Pewasi Kamarin was brought at the Tundi Police Station In Injured condition on a cot where she delivered her statement Admittedly, the Information that was made by the father of the Appellant namely Piru Man at the Tundi Police Station was made first point In time did not communicate any cognizable offence which took place a day prior to the entry made in the station diary but I find from the same station diary vide entry No. 398 which contained that the victim was brought in an injured condition at the Police Station. There was no intervening circumstance before the father of the Appellant to immediately inform the police on the same day whereas the prosecutrix had reasonable explanation for the delay as such, I have reason to believe that the information made by the father of the Appellant on 18.06.1985 giving rise to the station diary entry was nothing but an eye wash created in self defence in favour of his son which does not inspire confidence. The learned Sr. Counsel Mr. Jai Prakash failed to satisfy the Court that the Appellant Badruddin Mian was falsely implicated so as to call for interference in the judgment of his conviction and order of sentence recorded against him. I do not find merit in this criminal appeal as such, the judgment of conviction and order of sentence recorded by the 4th Additional Sessions Judge, Dhanbad in Sessions Trial No. 117 of 1988 against the Appellant is upheld and affirmed. The Appellant Badruddin Mian is directed to surrender forthwith, failing to which the Trial Court would take effective steps procuring his arrest to serve out remaining period of imprisonment.

Accordingly, this Cr. Appeal is dismissed.