Bhikhari Kuwar vs State of Bihar

Anjana Prakash, J.—The Appellant has been convicted u/s 376 I.P.C. and sentenced to R.I. for ten years by a judgment dated 5.12.2001 passed by the 3rd Additional Sessions Judge, Buxar in Sessions Trial No. 10 of 1996. The case of the prosecution briefly stated that on 30.8.1995 while she was cutting grass in the fields, the Appellant came there, threw her down and committed rape upon her. She reported the matter to the co-villagers and thereafter at the Police Station next day, upon which the present case was instituted.

During trial the prosecution examined six witnesses in all. Out of whom, P.W.1 Bijai Narain Rai is formal in nature having proved the First Information Report. The Investigating Officer has not been examined on behalf of the prosecution.

P.W.3 Chotak Yadav, the Choukidar, even though had admitted that the informant had come to the guard on duty and got recorded something but he did not support the prosecution case any further and hence he was declared hostile. P.W.4 Saryug Yadav has also been declared hostile.

P.W.5 is Dr. Girja Upadhya, who examined the prosecutrix on 31.8.1995 but did not find any injury or stains on the clothes. Hence he did not give any positive opinion in support of the prosecution case. She stated that the victim was aged 35 years of age. P.W.6 Dr. Ambika Prasad Mandal also examined the vaginal swab of the lady but did not find any spermatozoa dead or alive, which is normally available till 72 hours.

P.W.2 is thus the sole witness, who gives an eye witness account of the occurrence. She has stated that on the date of occurrence while she was cutting grass, suddenly the Appellant came upon her and pushed her from the back. She fell down and started thrashing around. However, the Appellant lifted both her legs and committed rape upon her. After the same he ran away. When she came home, she went to the Choukidar, who sent her to the Police Station, but she could lodge the case on the same day and hence on the next day it was instituted. In her cross examination she has stated in paragraph 7 that while she was protesting she had repeatedly fallen down and due to which she had sustained injuries on her arms, back, waist etc. She stated that the doctor had seen those injuries. She further stated that she had periods on the date of occurrence.

It has been urged by the Counsel for the Appellant that there is no objective corroboration of evidence of the prosecutrix inasmuch as even though the specific assertion of the victim is that she had sustained injuries, but independent witness P.W.5 the doctor has categorically stated that she did not find any mark of violence on her body. Had there been no allegation that any resistance had been made, such an opinion would not have mattered but once the definite case of the prosecution is that she had sustained injuries evidently the absence of the same suggests that the occurrence is doubtful.

The further submission is that the Investigating Officer has not been examined who could have furthered the cause of the prosecution and would have brought the objective evidence on record. In absence of the same the Appellant has been prejudiced and deserves to be granted benefit of doubt.

On a fair analysis of the prosecution case based on the solitary evidence of P.W.2, the prosecutrix, I find that its definite case was that on the date of occurrence she had been felled down by the Appellant. When she resisted his attempts she was repeatedly felled down on the ground, due to which she suffered injuries. It is then that she was raped by the Appellant. In such circumstances the crucial points of corroboration would be whether there were injuries and marks of sexual assault upon her. The Doctor (P.W.5) examined her on the very next day but did not find any injuries on her person. She also did not find any injuries in the private parts. When her vaginal swab was tested no spermatozoa was detected. Thus the objective evidence with regard to assault which was a major part of the occurrence remained discredited. Even though the prosecutrix, as regards not finding external injuries on private parts and absence of spermatozoa, in her evidence stated that she had started menstruation to probably dilute the evidence of the Doctor it is not believable since P.W.5, who had internally examined her, has not said so. Hence giving benefit of doubt to the Appellant, the appeal is allowed and the order of conviction and sentence passed against the appellant on 5.12.2001 by the 3rd Additional Sessions Judge, Buxar in Sessions Trial No. 10 of 1996 is set aside. The appellant is discharged from the liability of his bail bonds.