Md. Nehal vs State Of Bihar

The sole appellant Md. Nehal faced trial before the learned Special Judge under POCSO Act, Samastipur, in connection with Singhia P.S. Case

No.76 of 2017, corresponding to Trial No.38 of 2020 for offences under Section 376(1) of the Indian Penal Code and under Section 6 of the POCSO

Act.

By the impugned judgment and order dated 18.02.2020 and 20.02.2020 respectively the appellant was found guilty for both the above offences.

However, only under Section 6 of the POCSO Act sentence was awarded considering provisions of Section 42 of the said Act. The learned trial

Judge directed the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- (Fifty thousand). In default of payment of

fine simple imprisonment of six months was ordered. The fine was ordered to be paid to the victim or her family members.

The prosecution case as disclosed in the written report of PW 10 Jannati Khatoon, the mother of the victim girl, is that on 11.05.2017 at about 4:30

PM, the victim aged about 13 years, had gone to answer the call of nature in the field-side. The appellant who is co-villager allegedly caught the victim

from behind and committed rape against her. According to the informant, the victim was suffering from mental disability. After return to the home the

victim disclosed everything what had happened with her. The people assembled for social resolution of the aforesaid act. However, the appellant

refused to go by their verdict. Hence, the matter was reported to the police on 15.05.2017.

After investigation the police submitted charge sheet against the appellant and charges under the aforesaid counts were framed by the learned trial

Judge.

The prosecution examined altogether 11 witnesses. PW 1 Dr. A.N. Sahi and PW 8 Dr. Kranti Kumari were Chairmen and Member of the Medical

Board constituted for the medical examination of the victim. PW 2 Md. Chhotan supported the prosecution case as hearsay witness. PW 3 Lalan

Prasad Singh and PW 4 Santosh Kumar Singh deposed that at the time of occurrence they were nearby the place of occurrence and no such

occurrence had taken place. The maize field wherein the rape was allegedly committed belongs to PW 3 Lalan Prasad Singh. Though PW 3 has been

declared hostile by the prosecution but the cross-examination of PW 3 by the prosecution does not reveal that in fact this witness was a hostile

witness or he had made statement in the Court contrary to what he had stated before the police. PW 5 Md. Aziz deposed that on the next day of

occurrence the villagers called Panchaity and it was decided that the appellant would marry with the victim girl. When the appellant refused, the

matter was reported to police. PW 6 Md. Azad is father of the victim and is a hearsay witness on the actual occurrence. PW 7 Md. Badruddin is a

co-villager who supported the prosecution case as hearsay witness and further deposed that he was one of the Punch in the matter and the Panchayat

asked the appellant to marry with the victim girl and to pay Rs.2,50,000/- to Rs.3,00000/- as fine to the victim. The appellant refused. Hence, the

matter was reported to the police. PW 9 is the victim girl herself. PW 11 Mantasha Praveen claims to be an eyewitness of the occurrence. However,

she is not consistent in her statement to that of her statement before the police nor she is corroborated by the victim girl that she was also present

along with the victim girl at the time of occurrence.

Mr. Ajay Kumar Thakur, learned counsel for the appellant, contends that the sole testimony of the victim girl is not reliable in view of the statement

of PW 3 and PW 4 that at the time of occurrence they were watching their field nearby the place of occurrence and no such occurrence had taken

place. These witnesses are prosecution witnesses and there is nothing in their deposition to doubt about the correctness of their statement. Learned

counsel contends that the doctor did not find any sign of rape; rather the doctors were of definite opinion that since hymen was old and healed rupture.

Hence, it was a case of old sexual relationship and no recent sign of rape was there. Contention is that PW 11 is not consistent with the statement

before the police. Hence, non-examination of the IO has prejudiced the defence of the appellant. Otherwise the defence could not have been

prevented from drawing attention of the I.O. to the statement of PW 11. Learned counsel further contends that there is no other proof of age of the

victim girl save and except the medical examination report of the doctors and the doctors have found her age in-between 17 to 18 years. Therefore,

there was scope of error of assessment in both sides and the benefit must go to the accused. The delay in lodging of the FIR led to the missing of the

evidence of the recent sexual assault and the delay was caused by the prosecution which creates serious doubt on the prosecution version.

Mr. Sujeet Kumar Singh, learned counsel for the State-respondent, contends that the victim girl has consistently supported the proved charges

against the appellant before the police and then before the Magistrate in her statement recorded under Section 164 Cr.P.C. as well as before the trial

Judge as PW 9. Submission is that a doctor is not an expert of rape. The word ‘rape’ is defined in the IPC and the act alleged by the victim

against the appellant clearly establishes a case of commission of rape. Learned counsel for the state-respondent contends that the evidentiary value of

a victim of rape is akin to that of an injured witness. Therefore, she cannot be lightly disbelieved for the reason that two of the prosecution witnesses,

namely, Pws. 3 and 4 said that nothing took place at the place of occurrence as alleged by the victim. His further contention is that since the victim

was a minor even according to the medical report her consent or no consent was immaterial to prove and establish the charge of rape.

PW 9, the victim girl, consistently supported that the appellant came and lifted her to the field of Lalan Prasad Singh (PW 3) and there he

committed rape. In the cross-examination, this witness said that she does not know whether any case was lodged or not in the matter of the

occurrence of rape committed six months back. The doctors, who were members of the Medical Board, namely, PW 1 and PW 8, deposed that

hymen of the victim was old and healed rupture, vagina admitted two fingers loose. No injury was found on her private parts nor any foreign body was

seen on her private parts. The report of the vaginal swab revealed that there was no spermatozoa. The victim was examined on 16.05.2017 by the

doctors. PW 1 is specific that he did not find the victim abnormal. In the cross-examination, the witnesses admitted that old healed ruptured hymen

means it may have happened 5-6 months back on the date of examination. Thus non-corroboration of the statement of the victim with medical

evidence is one of the doubtful circumstance of the prosecution case.

Likewise, PW 3 Lalan Prasad Singh deposed that on the date of occurrence he was watching his field from 10:00 AM to 5:00 PM as maize crop

was there. The witness is specific that no occurrence of rape took place in his field. Though this witness has been declared hostile by the prosecution.

However, the one sentence cross-examination of this witness by the prosecution, which this witness denied does not show that the witness was

making some contrary statement to that of his previous statement. PW 4 Santosh Kumar deposed that he was also at his field near the field of PW 3

from 10:00 AM to 6:00 PM on 11.05.2017. No occurrence of rape took place thereat. This witness stated that the victim is a lady of easy virtue and

she has physical relation with others also for getting money.

In Raja Ram V. The State of Rajasthan reported in (2005) 5 SCC 272 the Hon’ble Supreme Court held that if a witness is not declared hostile

by the prosecution, the defence can rely upon the evidence of such witness and it would be binding on the prosecution. In paragraph-9 of the judgment

the Court observed as follows:

“9. But the testimony of PW 8 Dr. Sukhdev Singh, who is another neighbour, cannot easily be surmounted by the prosecution. He has testified in

very clear terms that he saw PW 5 making the deceased believe that unless she puts the blame on the appellant and his parents she would have to

face the consequences like prosecution proceedings. It did not occur to the Public Prosecutor in the trial Court to seek permission of the court to heard

(sic declare) PW 8 as a hostile witness for reasons only known to him. Now, as it is, the evidence of PW 8 is binding on the prosecution. Absolutely

no reason, much less any good reason, has been stated by the Division Bench of the High Court as to how PW 8’s testimony can be sidelined.â€​

The aforesaid view was reiterated in Mukhtiar Ahmed Ansari V. The State (NCT of Delhi) reported in (2005) 5 SCC 25.8 In paragraphs 29 to 31 of

the judgment the Court observed as follows:

“29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from

Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the

prosecution. The prosecution never declared PW 1 “hostileâ€. His evidence did not support the prosecution. Instead, it supported the defence. The

accused hence can rely on that evidence.

A similar question came up for consideration before this Court in Raja Ram V. State of Rajasthan (supra). In that case, the evidence of the doctor

who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she

might have to face prosecution. The doctor was not declared “hostileâ€. The High Court, however, convicted the accused. This Court held that it

was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.

In the present case, evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in

which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that

evidence.â€​

In this case, the deposition of PW 3 and PW 4 are inconsistent with the claim of the victim. Hence, it cannot be ignored, to doubt the prosecution

version the benefit of inconsistency would go in favour of the accused.

It is trite law that promptness in lodging the FIR is assurance regarding truth of informant’s version. If there is delay in lodging FIR it loses

advantage of spontaneity.

However, in Tulsidas Kanolkar V. The State of Goa reported in AIR 2004 SC 978 wherein rape was committed on a girl whose mental ability was

under-developed. The Hon’ble Supreme Court in the matter of delay in lodging the FIR observed as follows:

“…………...In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging

the first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on

guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory

or not. In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution

version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of

false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had

befallen her. That being so, the mere delay in lodging of the first information report does not in any way render prosecution version brittle.â€​

In the case in hand the victim immediately reported the matter to her mother. However, the matter was not reported to the police. The explanation

offered by the prosecution that a Panchaity was convened to get both married, coupled with admission of the victim that no case was lodged in

respect of the occurrence of rape committed six months back goes to show that the victim was in consensual physical relationship and the prosecution

has suppressed the real fact. In this case the prosecution did not produce any other evidence of age of the victim girl save and except opinion of the

Medical Board based on radiological examination and the Medical Board was of the opinion that victim was in between 17 to 18 years.

In the Case of Rajak Mohammad V. State of Himanchal Pradesh reported in (2018) 9 SCC 248, relied upon by the learned counsel for the

appellant the victim was in between 17 to 18 years as per medical report. The Hon’ble Supreme Court observed para-9 of the judgment as

follows:

“9. While it is correct that the age determined on the basis of a radiological examination may not be an accurate determination and sufficient

margin either way has to be allowed, yet the totality of the facts stated above read with the report of the radiological examination leaves room for

ample doubt with regard to the correct age of the prosecutrix. The benefit of the aforesaid doubt, naturally, must go in favour of the accused.â€​

Thus, the prosecution evidence is not acceptable that the victim was a minor nor there is evidence that she was mentally disabled.

PW 11 Mantasha Praveen has deposed that she had gone along with the victim to answer the call of nature. In the meantime, appellant came

there and committed rape on the victim. On alarm of the victim, this witness reached there and saw that the appellant committing rape on the victim.

Thereafter, the appellant fled away. The victim put her on clothes and went to the village. The statement of this witness before the police in para-37

of the case-diary shows that this witness stated that the appellant lifted the victim and took her towards the maize field. However, when this witness

made alarm the appellant fled away. If the IO would have been examined in this case his attention to the statement of PW 11 before him might have

surfaced the improved version. Hence, non-examination of the IO certainly prejudiced the defence of the appellant. Moreover, the victim girl never

stated that PW 11 was there before, at the time or after the occurrence.

To conclude, it is well settled that the testimony of the victim of rape stands at par with an injured witness and there is no need for corroboration of

the same if the victim is found to be a sterling witness. However, the following circumstances create doubt on trustworthiness of the prosecution

version put forward. The prosecution claim of occurrence gets diminished by the deposition of prosecution witness Nos.3 and 4 as discussed above.

The overall available material on the basis of prosecution evidence would show that the victim was having old physical relationship as found by the

doctor. Since the prosecution was pressurizing to the appellant for marriage the consensual relation between the two cannot be ruled out, especially on

the admission of the victim that for the occurrence of rape which took place six months back no case was lodged. The conduct of the victim in not

making any alarm and in absence of any sign of physical resistance goes to show that the victim was a consenting party. Since her age was medically

found in between 17 to 18 years, the benefit of error in calculation of the age must be given to the accused. The explanation of delayed information to

the police does not inspire confidence and the attending circumstance creates a doubt on suppression of real fact by the prosecution. The learned trial

Judge has not considered the aforesaid infirmities in the prosecution case while recording the judgment of conviction. Rather it is a case of serious

doubt on the prosecution case and the benefit must go to the appellant.

Hence, the impugned judgment and sentence is hereby set aside and this appeal stands allowed.

Let the appellant be released at once.