Bhola Ram @ Bholi Ram vs State Of Bihar

Appellant, Bhola Ram @ Bholi Ram has been found guilty for an offence punishable under Section 376 IPC and sentenced to undergo R.I. for 10 years as well as to pay fine appertaining to Rs.10,000/- in default thereof, to undergo S.I. for six months additionally, by the First Additional Sessions Judge, Patna in Sessions Trial No.737 of 2012 vide judgment of conviction dated 27.07.2016 and order of sentence dated 02.08.2016.

Geeta Devi, PW.1 gave her fardbeyan on 02.03.2012 at about 05:10 PM at her house disclosing therein that she happens to be a labourer. Today, since morning hour she has been engaged in harvesting mustard crop of Bablu Singh. Her son Vijay Kumar aged about 10 years, daughter (victim) name withheld aged about 8 years and Jaut (son of Debar) Chotu Paswan were also there.

While she was carrying bundle of mustard to the house of Bablu Singh at about 2-3 PM, she directed her daughter, son and Jaut to go to house with firewood. After putting the bundle at the Darwaja of Bablu Singh, while she was in a way to her house her son Vijay and Chhotu came were weeping and they disclosed that while they were coming to house, Bhola Ram @ Bholi Ram met with them in midst of way who assaulted both of them with fist and slap and then, after gagging mouth of victim took her away towards land of Kishore Singh which he (Bhola) has taken of Batai. In that field, presently wheat crop is standing. After getting this information, she rushed to that plot where she found her daughter naked, unconscious, lying. Blood was oozing out from her private part. She lifted her. Then after sprinkling water she has brought to consciousness and on query, she pointed out towards the house of Bhola Ram. Then she has gone towards to house of Bhola Ram and during said course found the Bhola Ram going home whom she apprehended and then raised alarm. During midst thereof, her daughter also pointed out through sign. Seeing this, Bhola Ram began to assault her with fist and slap. Till then, so many villagers assembled and then, coming to know about the occurrence began to assault Bhola Ram as a result of which, he became injured. Then thereafter, with the help of the villagers Bhola Ram has been carried to her house where, has been handed over to the police after arrival along with recording of fardbeyan. It has also been disclosed that the victim has disclosed that she has been raped.

After registration of Athamalgola P.S. Case No.17/2012, investigation commenced and after concluding the same, charge sheet has been submitted facilitating the trial meeting with the ultimate result, subject matter of instant appeal.

Defence case as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. It has also been pleaded that both the parties were on strain relationship since before and in the aforesaid background, he has been victimized. To substantiate the same one DW has also been examined.

In order to substantiate its case, altogether seven PWs have been examined on behalf of prosecution who are PW.1-Rita Devi, PW.2-Bimla Devi, PW.3-Manju Devi, PW.4-Chandan Kumar, PW.5-Vijay Kumar, PW.6-Victim and PW.7-Dr. Anupama Kumari. Side by side has also exhibited Ext.1-Medical Report. On the other hand DW.1-Kameshwar Rai has been examined on behalf of defence. However, no documentary evidence has been adduced.

While assailing the judgment impugned, it has been submitted at the end of learned counsel for the appellant that irrespective of contrary finding by this Court over plea of juvenility of the appellant disbelieving the finding of the lower court, which the learned lower court submitted after conducting enquiry as directed and then, directing the appellant to be medically examined and further, on the basis thereof, holding that the age of the appellant on the alleged date of occurrence to be in between 18 years 2 months to 20 years 2 months, is not going to stale the submission having at the end of the appellant over the plea of juvenility. That being so, it has been submitted that appellant is a child in conflict with law on the alleged date of occurrence which, this Court should accept whereupon, irrespective of finding, appellant could not be sentenced. So submitted that on this score alone the appellant is entitled for release even having a finding adverse to him.

Now coming to merit of the case, it has been submitted that this case suffers from improbability. To justify the same, it has been submitted that on account of non-examination of the I.O. the interest of appellant is found prejudiced in the background of the fact that (a) there happens to be inconsistency amongst the witnesses with regard to proper identification of the place of occurrence, (b) the witnesses are inconsistent over the manner of occurrence and consequent thereupon, their evidence became unreliable, (c) the victim being minor, was prone to tutoring which, the learned lower court failed to appreciate more particularly, in the background of the fact that the victim has admitted that parties were not on good term, (d) the allegation happens to be false in the background of the fact that had there been commission of rape at the end of the appellant, then in that circumstance, appellant would not have been apprehended by the informant and others in a manner as claimed as, he might have escaped from the village and so, this part being admissible under Section 8 of the Evidence Act loan in favour of the appellant, (e) the appellant was arrested on the same day, right from initial version there happens to be specific disclosure that appellant was brutally assaulted, even then apart from mandate so prescribed under Section 53A of the Cr.P.C. whereunder an accused of a rape case is to be medically examined after his arrest, could not be examined and for that no explanation is there, (f) none of the independent witness has been examined in this case even having specific disclosure that appellant was apprehended by the villagers who also assaulted him, (g) the medical report did not suggest presence of dead or alive spermatozoa in spite of, having been examined on the date of occurrence itself that being so, after the cumulative effect did not justify the finding recorded by the lower court.

So, on account of non-examination of I.O. resulting prejudice to the interest of the appellant, coupled with the improbabilities, inconsistencies so persisting did not justify the conviction and sentence. Even in worst case, if the court comes to a conclusion contrary to the same, then in that circumstance also being a child in conflict with law no sentence could be passed against the appellant.

On the other hand, the learned APP while supporting the finding recorded by the learned lower court has submitted that there happens to be consistency amongst the witnesses over the occurrence properly pointed out by the witness against of the appellant during course thereof, and so, the finding recorded by the learned lower court is fit to be confirmed. Then submitted that the present trend of independent person withdrawing themselves from the main stream has been perceived by the court times without number and that happens to be reason behind consideration of the fact that who has not been examined is not material, material aspect is the witnesses who has been examined has substantiated the case or not where in the prosecution succeeds. Accordingly, this appeal is fit to be dismissed.

First of all plea of juvenility has to be seen. The court had tried at an earlier occasion to have the issue conclusively decided and for that, every effort has been taken up just after receiving the prayer at the end of the appellant. Appellant had prayed the plea of juvenility and on that very score the order dated 07.03.2017 speaks, "appellant is directed to file supplementary affidavit on that very score along with different Annexures, if any, to substantiate such plea." and in pursuance thereof, I.A. No.552/2017 with different annexures has been filed. After having counter affidavit at the end of the State as well as the reply on that very score, vide order dated 21.09.2017, it has been found and observed that the prayer of the appellant is tenable in accordance with Section 7A of the J.J. (Care & Protection of Children) Act and on account thereof, the learned lower court was directed to conduct an inquiry and transmit the same with his own finding on that very score. To facilitate the same, both the parties were directed to properly assist the lower court. After completing the exercise reports has been transmitted vide letter dated 363 dated 27.04.2018. Considering the submission raised on behalf of rival parties, original inquiry record was called for and after going through the same, it has been found that the procedure so followed by the learned lower court and appreciation of the document was contrary to the spirit of law whereupon, rejecting the same vide order dated 14.05.2009, appellant was directed to be medically examined by the medical expert and for that, civil surgeon was so instructed. After receipt of the medical report dated 15.06.2019 wherein appellant has been found to be in between 26 to 28 years, deducting 7 years and 3 months (as the date of occurrence happens to be 02-03-2012) the age has been found in between 18 years 9 months to 20 years 9 months, for the present purpose, keeping the chapter open furthermore.

The Hon'ble Apex Court in Gaurav Kumar @ Monu vs. State of Haryana reported in 2019(2) BLJ 419 (SC) has observed that date of occurrence is the crucial date to identify which of the act, will be applicable during course of entertainment of a prayer having at the end of the appellant regarding plea of 'child in conflict with law'. For better appreciation the relevant para is quoted below:-

"10. Even though applicant-appellant has withdrawn his application filed in the High Court for placing certain additional evidence to question the report submitted by District and Sessions Judge, we proceed to examine the submissions raised by learned counsel for the appellant on merits. The main thrust of the submission of learned counsel of the appellant is based on Rule 12 of 2007 Rules. Rule 12(3) on which reliance is placed is as follows: -

"12. Procedure to be followed in determination of age.-

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee by seeking evidence by obtaining-

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either(i), (ii) or (iii) of clause

(a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause(b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law."

This Court in Shah Nawaz case had considered Rule 12 of 2007 Rules and has held that preference has been given to the school certificate over the medical report. In paragraph 26, following has been laid down: -

"26. We are also satisfied that Rule 12 which was brought in pursuance of the Act describes four categories of evidence which have been provided in which preference has been given to school certificate over the medical report."

A Three-Judge Bench in Abuzar Hossain (Supra) while considering Rule 12 laid down following: -

"39.3.As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rules 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the voters' list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard-and-fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh and Pawan these documents were not found prima facie credible while in Jitendra Singh the documents viz. School leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellant's age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes of Section 7-A and order an enquiry for determination of the age of the appellant."

In his concurring opinion Justice T.S.Thakur while elaborating Rule 12 laid down following:-

"43.2. The second factor which must ever remain present in the mind of the Court is that the claim of juvenility may at times be made even in cases where the accused does not have any evidence showing his date of birth by reference to any public document like the Register of Births and Deaths maintained by the municipal authorities, panchayats or hospitals nor any certificate from any school, as the accused was never admitted to any school. Even if admitted to a school no record regarding such admission may at times be available for production in the court. Again, there may be cases in which the accused may not be in a position to provide a birth certificate from the corporation, the municipality or the panchayat, for we know that the registration of births and deaths may not be maintained and if maintained may not be regular and accurate, and at times truthful.

Rule 12(3) of the Rules makes only three certificates relevant. These are enumerated in sub-rules 3(a)(i) to (iii of the Rule which reads as under:-

"(3)(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;" Non-production of the above certificates or any one of them is not, however, fataal to the claim of juvenility, for sub-rule(3)(b) to Rule 12 makes a provision for determination of the question on the basis of the medical examination of the accused in the "absence" of the certificates."

The submission of learned counsel for the appellant was that school certificate filed by him with date of birth 17.08.1982 was not even challenged, hence, on the strength of Rule 12 the said certificate ought to have been accepted by the learned Sessions Judge.

The submissions raised by learned counsel for appellant based on Rule 12(3) of 2007 Rules could have been considered by us in detail but we notice that in the present case, there is no applicability of Rule 12 of 2007 Rules. The date of occurrence in the present case is 23/24.05.2000 on which date Rule 2007 were not enforced. Even on the date when learned District and Sessions Judge submitted his report 08.05.2003 after holding inquiry, Rule 2007 was not in force. Rule 100 of 2007 Rules repealed the earlier Rule of Juvenile Justice (Care and Protection of Children) Rules, 2001. Rule 100 of 2007 Rules is as follows: -

"100. Repeal. - The Juvenile Justice (Care and Protection of Children) Rules, 2001, notified vide F.No.1-3/2001-SD, dated the 22nd June, 2001 in the Gazette of India, Extraordinary, Part I, Section 1 of the same date is hereby repealed."

Thus, the relevant Rule occupying the field in the present case were 2001 Rules. Rule 22 of 2001 Rules dealt with "procedure to followed by a board in the holding inquiry in the determination of age." Rule 22 sub-sub-Rule (5) which is relevant for the present case is as follows: -

"22(5). In every case concerning a juvenile or a child, the Board shall either obtain, -

(i) a birth certificate given by a corporation or a municipal authority;

(ii)a date of birth certificate from the school first attended; or

(iii) matriculation or equivalent certificates, if available; and

(iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age; and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age."

We are of the view that the relevant Rules which were required to be looked into are the Juvenile Justice (Care and Protection of Children) Rules, 2001."

In the background of principle so decided by the Hon'ble Apex Court as referred herein above, the following documents have been found relevant for consideration of the plea and those are (a) birth certificate given by a corporation or municipal authority, (b) the date of birth certificate from the school first attended or, (3) matriculation or equivalent certificate if available and in the absence of all of three, the medical opinion by a duly constituted medical board.

From the record, it is evident that during course of inquiry only two witnesses have been examined, the first one father of the appellant, namely, Baleshwar Ram and the second one Arun Kumar Singh headmaster of one school Swami Vivekanand Ucch Vidyalaya, Bakhtiyarpur. From his evidence, it is evident that the victim was admitted in Class-VIth and he left the school while was student of Class-VIII. That means to say, the document relating to the aforesaid criteries (in preference) has not been adduced and so, the only option left was to be examination of the appellant by a medical team and the same has been done identifying the appellant to be more than 18 years on the alleged date of occurrence. That being so, the status of the appellant could not be recognized as a juvenile and is finally so declared.

Now coming to another aspect, admissibility of the evidence of a child. Section 118 of the Evidence Act takes care of prescribing all the persons to be a competent witness unless and until is found suffering from any kind of disability/deformity so perceived therein. From the deposition of the PW.6 the victim, it is apparent that before recording her evidence the court had tested her mental equilibrium and had found to be competent enough to depose.

In Alagupandi @ Alagupandian vs. State of Tamil Nandu reported in (2012) 10 SCC 451, it has been held:-

"36. It is a settled principle of law that a child witness can be a competent witness provided statement of such witness is reliable, truthful and is corroborated by other prosecution evidence. The Court in such circumstances can safely rely upon the statement of a child witness and it can form the basis for conviction as well. Further, the evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must be like any other competent witness and that there exists no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated by other evidence before a conviction can be allowed to stand but as a rule of prudence the Court always finds it desirable to seek corroboration to such evidence from other reliable evidence placed on record. Further, it is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. (Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] and Panchhi v. State of U.P. [(1998) 7 SCC 177].

The aforesaid PW.6 happens to be the victim. It is settled principle of law that in usual phenomena on account of minor variation or inconsistency the evidence of the victim would not be subject to rejection. Before dealing with the evidence of the PW.6, it looks appropriate to have the medical report and for that, the evidence of PW.7 could be looked into. She in her examination-in-chief had stated that a medical board consisting of three doctors including she herself was constituted at the instance of civil surgeon for examination of the victim and found the following:

"M.I.-Mole on right middle finger.

Height - 4 feet 1 ½ inch Teeth-Upper and lower 14/14

There is no external injury over her body, auxillary and public hair absent, breast not well developed. Blood stained underwear cloth which the victim was wearing. Cloths was preserved and handed over to S.I. Daya Kant Jha, for forensic examination.

Internal examination-Per vagina-Active bleeding++ Lacerated perineum tear present.

Length-1 cm x depth 1/8 cm. Mark tearing of tissue in Labia Majora and Labia Minora. Hymen rapture-Vaginal swab taken and sent for microbiological examination in Lab of SDM, Barh for presence of spermatozoa. Blood clot present in the vagina, active bleeding present. P/v admit one finger. As per history patient was not penetrate previously. Penetration normally start after thirteen years of age. By the nature of injuries on private of body suggest rape on the victim."

So from her evidence, it is crystal clear that the doctor has opined with regard to commission of rape over her. During cross-examination she had stated that no external injury simple or superficial or even scratch was found. She had further stated that though presence of external injury could be whenever there happens to be commission of rape but, it could not always be. In para-9 she had stated that she had seen the underwear of the victim which she was wearing at the time of examination and found soaked with blood. Therefore, the cross-examination as stated above did not adversely affect or cast doubt over the finding so recorded by the medical board.

Now oral evidence is to be seen. PW.6, the victim had stated that the occurrence is about 2 years ago, it was 2 PM. She was going towards her house along with Vijay and Chhotu.

Bhola chased away Vijay and Chhotu and then lifted her to a wheat field where, he undressed her, forced her to lie down, jumped over her body and then ravished her. She had further stated that he got his genital inserted in her genital. After sometime, her mother took her away. She was given water after which, she regain consciousness and then, she disclosed the name of the person who committed sin with her, is Bhola. She was medically treated. The I.O. had inquired from her whom she had disclosed the event. Identified the accused by saying that he is the person who had committed sin with her. During cross-examination, she had stated that Chhotu and Vijay were assaulted by fist and slap. Her mouth was gagged. The sign of gagging of mouth had appeared. On account of lying her down over earth, there was scratch at 3-4 places over back, hand, thigh. In para-3 she had stated that she tried to score herself over which she was assaulted when she caught. Subsequently her mother was also assaulted. There was sign which was shown to the Darogaji. When she regain sense, she found herself in her house where Bhola was. At para-4 she had stated that Darogaji had come to her place at about 03:00 PM on the same day. Darogaji had written down her statement and then had taken her signature. In para-5 she had stated that Bhola Ram is a wicked person always indulged in brawl. He had not quarreled with her but, they were on no good relation. In para-6 she had stated that on account of rape she had also sustained injury around her private part. Blood had oozen out. Then had stated that she had not tutored by the counsel. At para-7, she had stated that the P.O. belongs to the field of Sanjay Singh, Naresh Singh. She had visited that place at an earlier occasion. In para-8 she had stated that her cloth soaked with blood which was given to the Darogajee she had disclosed the occurrence to her mother, father. Then had said that as directed by her father, she narrated the incident to the police.

PW.1 is the mother who had stated that on the alleged date and time of occurrence, she was carrying bundle of harvested mustard crop to the darwaja of Babloo. At that very time, her daughter (victim), son Vijay, Chhotu have collected the firewood and were in a way to house as directed. Accused Bhola chased away Chhotu & Vijay and then lifted the victim to the field of Sanjay singh where after undressing the victim, committed rape. Her daughter became senseless. Both the son rushed to her and disclosed the event whereupon, she ran towards the P.O. After reaching there, she saw the victim. Blood was coming out from her private part. She lifted her to house. In the way they have seen Bhola whom she along with other co-villagers apprehended.

Police came, before whom she had made statement. Produced the accused. Also disclosed age of the victim to be 10 years. During cross-examination at para-3 she had stated that she was informed, regarding the occurrence while she was at the filed of Babloo Singh. She had harvested about the eight bundles of mustard. At that very time only one bundle was taken to the house of Babloo. At that very time victim along with Vijay, Chhotu and Chandan were present in the field. After the occurrence, bundle of mustard crop remained in the field. In para-4 she had stated that the I.O. had inquired from her, Vijay, Chhotu. In para-5, she had stated that victim was examined and treated by the doctor. She was treated for ten days or twelve days. She had shown the field wherefrom mustard crop was being carried to. In para-6 she had stated that she had seen sign of assault over Vijay and Chhotu. There was swelling over cheek. There was sign of all the five fingers over temporal region. She had seen scratch over back of victim. There was blood over her thigh. No blood was coming from stomach. In para-7 she had stated that blood had fallen over ground at the place of occurrence. Bloodstained cloth was taken away by the I.O. Shown the boundary of the P.O. as East-Sanjay Singh, West-Nawal Kishore Singh, North-South-she is unable to disclose. At para-10 she had stated that Sonu is her Bhasur. Then she said that she does not know whether field of Bhola lies contiguous to the land of Sonu and on account thereof, there was persisting land, dispute, this case has been instituted in the aforesaid background. In para-11 she had further stated that underwear became torn while frock was not torn. Then there happens to be contradiction under para-12 and 13 which did not go to the root. Then had denied the suggestion that on account of land dispute with her Bhaisur, at the instance of Bhaisur accused has been implicated in this case.

PW.2 is the Bimla Devi, Gotani of PW.1 and is mother of Chhotu. She was also engaged in the menial work along with PW.1. During her examination-in-chief she had substantiated story. During cross-examination at para-4, 5, there happens to be contradiction. At para-7 she had stated that she had seen field of Naresh but she is unable to disclose the length and width. Occurrence was committed at the north-east corner of this plot. 10-15 steps south from the ridge. At para-8 she had stated that there was blood at the place of occurrence. At para-9 she was suggested that land of her Bhaisur and Bhola lies contiguous to each other and in the background of other both are on strain relationship. In para-10 she had stated that blood was oozing out from the vegina of the victim. There was scratch over her back.

PW.3 is the another lady who was also engaged in harvesting of the mustard crop by Babloo Singh. During examination-in-chief she had reiterated the same version. During cross-examination at para-2 she had stated that while she was at the field of Babloo Singh, she got information regarding the occurrence. 5-7 labourers were also present. Then she had disclosed that at she along with Chhotu, Vijay, Bimla Chandan, Reeta and victim all were present in the field of Babloo. In para-3 she had stated that she reached at the place of occurrence after half an hour. She alone came. The mother of victim had already reached there. She was there. Apart from her, mother of the victim, so many villagers have also assembled. Mother of the victim took away the victim to her house. In para-4 she had stated that her statement was not recorded by the police but again said she had made statement before the police on the same day at evening hour. At para-5 she had stated that frock was not torn. She had not seen injury over her cheek. She had not seen scratch over the same. She had not seen any sign over her back, hand, thigh. She had further stated at para-7 that she is unable to disclose at which side of the field of Naresh Singh, the occurrence was committed. At para-8 she had shown the informant to her Gotni.

PW.4 is Chandan Kumar. During his examination-in-chief he claimed that he was also engaged in harvesting of mustard crop by Babloo Singh along with PW.1, PW.2 and PW.3 and in the aforesaid background, substantiated the evidence of PW.1, 2 and 3. During cross-examination at para-2 he had stated that the informant happens to be her aunt. His statement was recorded by the police on the same day. He had further stated at para-3 that he had disclosed before the police that victim had disclosed with regard to commission of rape by Bhola. Then there happens to be cross-examination over apprehension of Bhola by the informant, assault over informant by Bhola, presence of 10-12 persons at the place and then Bhola was apprehended. In para-7 he had stated that at the time of occurrence, the bundle of mustard was being carried to the Khalihan of Babloo Singh. In para-9 he had stated that he had occasion to go to wheat field of Kishori singh. In para-10 he had stated that the occurrence had taken place at the western flank of the field but he is unable to disclose the exact area. At para-11 he had stated that he had not seen injury over the person of Reeta Devi (informant). She was assaulted by slap. Then had stated that blood was oozing out from the private part of the victim. He had not seen any sign of hurt over other part of the body of the victim. He had not seen any sign over neck, cheek. Bhola was handed over to the police. In para-12 he had stated that he had not seen the exact place from where victim was lifted by Bhola.

PW.5 is Vijay, a minor aged about 11 years who was accompanying the victim in a way to house from the field of Babloo along with Chhotu Kumar as per instruction of PW.1. Durng his examination-in-chief he had stated that while he along with victim and Chhotu Kumar were going to their house, met with Bhola Rai in midst of way who chased away him as well as Chhotu Kumar by giving a blow. Thereafter, dragged his sister (victim) to a wheat field. Both of them rushed to mother disclosed the event. Mother along with them came to the field and then lifted the victim in her lap. Blood had fallen. Mother had wrapped the blood. Then, his sister had disclosed that Bhola Rai who is going has committed sin with her. Mother had apprehended Bhola whereupon, Bhola began to assault her. Villagers came and then apprehended. Identified the accused. During cross-examination he had stated at para-2 that he is unable to disclose the day, date, year. He had further stated that he used to go school. He further stated that school runs 10 AM to 4 PM. On the relevant day, he came from school at 12 noon because of the fact that his mother had directed not to go school, so had not gone. Also said that in case of non-attending, an application has to be filed. On that day, he had filed application. He had asked for excuse of absence on account of domestic work. In para-4 he had stated that school is at 20 steps away from his house, Rajesh Prasad Singh is the headmaster. In para-5 he had stated that he had gone to place of occurrence on the same day. He is unable to disclose how many times he had gone there since before. Then had stated that only once he had seen the place of occurrence on the alleged date of occurrence. Then at para-6 he had stated that he is unable to disclose the length and width of the field. He had seen the aforesaid field since before which lies 20-25 steps away from his house. At para-7 he had stated that wheat crop was not fully ripe. On account of dragging some plants got damaged which, the I.O. had seen. In para-9 his attention has been drawn with regard to previous statement. At para-10 he had stated that Bhola had assaulted him with slaps. Also assaulted his mother on back. In para-9 he had stated that blood had spread over in an area of one hand. He came to know regarding the occurrence from his mother.

DW.1 has been examined to say over the strain relationship in the background of land dispute but from cross-examination, is found completely demolished.

From the materials available on the record, it is evident that all the witnesses are own family members. Whether on account of being a family member evidence of the witnesses should be brushed aside, is not the accepted principle. Although DW-1 has been examined but he has not been able to substantiate the plea of strain relationship more particularly, with regard to having the land of the Bhaisur of the informant contiguous to the land of the accused/appellant nor any survey plot number or anything has been placed on that very score. Be that as it may, from the evidence of the doctor, it is evident that victim was ravished and from the evidence of PW.6, the victim it is evident that she categorically substantiated factum of rape, over which she has not been cross-examined. So, that part remained unshaken. The disclosure having made at her end under para-8 that the underwear which she was wearing had soaked with blood has been supported by the PW.7 the doctor who after taking it and handed over to the I.O. In likewise manner PW.5, Vijay has not been cross-examined over, assault having at the end of the appellant while she along with victim was coming to house and chasing him as well as Chhotu away while pouncing upon the victim.

Furthermore, it is evident that though, the learned counsel for the appellant has tried to challenge the veracity of the witness over place of occurrence but, after close scrutiny of the same, the same is not at all found under controversy. With regard to inconsistency amongst the evidence of the Pws, again the evidence has been minutely gone through and further, found that they are not going to root of the case.

So far non-examination of I.O. is concerned, in Lahu Kamlakar Patil v. State of Maharashtra reported in (2013) 6 SCC 417, it has been held by Hon'ble Apex Court:

"18. .......It is an accepted principle that non- examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar (1996) 2 SCC 317, this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar(2000) 9 SCC 153, it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar(2001) 6 SCC 407, Rattanlal v. State of J&K(2007) 13 SCC 18 and Ravishwar Manjhi v. State of Jharkhand(2008) 16 SCC 561, has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution."

Giving anxious consideration to the facts and circumstances of the case, as well as giving analytical approach thereto, it is evident that on account of non-examination of the I.O. the interest of the appellant is not at all found prejudiced, as neither material contradiction nor exaggeration has been found in the evidence of the PWs going to root of the case. Furthermore, the victim has substantiated the factum of rape having been at the end of the Bhola and the remaining witnesses have corroborated the same. Apprehension of Bhola, as stressed upon at the end of learned counsel for the appellant was not while passing through her house rather, he was in midst of way and so, the apprehension would not suggest his innocence more particularly, when it was just after the occurrence and was duly resisted which again the PWs have not been cross-examined. That being so, the judgment impugned needs no interference consequent thereupon, the appeal sans merit and is accordingly dismissed. Appellant is under custody which he will remain till saturation of the period of the sentence.