Nandu Sah, son of Sri Ram Chandra Sah vs The State of Bihar

The present appeal has been directed against the judgment

and order dated 27.2.2012/28.2.2012 passed by Sri Nand Kishore

Prasad Gupta, Additional District and Sessions Judge, First Track

Court-III, West Champaran, Bettiah in Sessions Trial No. 395 of

2011, arising out of Majhaulia P.S.Case No. 193 of 2011,

corresponding to G.R.No. 1909 of 2011, by which the sole appellant

has been convicted under Section 376(2)(f) of the Indian Penal Code

and sentenced him to undergo rigorous imprisonment for 10 years and

also imposed a fine of Rs.25,000/- and in default to undergo

imprisonment for one year.

The prosecution case, in short, is that the informant

Rinki Kumari (P.W.8) has lodged a fardbeyan (Ext.3) before

Majhaulia Police Station stating, inter alia, that on 21.6.2011 at 8

A.M. while she was going to school on way, the accused appellant

called her on the plea that her elder sister is there and when she went

there and did not see her elder sister she enquired about her sister

from the appellant of which appellant had caught hold her hand and

forcefully dragged her and taken to his room and got her fell down

and committed rape upon her, by putting cloth in her mouth and tiding

her hands. It is also the prosecution case that due to forceful rape

blood was oozing out from her private part and she was weeping

because of pain and the appellant threatened her to dire consequence

if she told anybody about the same. It is the case of prosecution, as

per her fardbeyan, that appellant left the victim girl near her house and

fled away.

On the basis of fardbeyan of the victim, Majhaulia

P.S.Case No. 193 of 2011 was registered against the appellant under

Section 376(2)(f) of the Indian Penal Code and police after

investigation submitted charge-sheet under the above section against

the appellant. Thereafter cognizance was taken against the appellant

and the case was committed to the Court of Sessions, which,

ultimately came to the file of Sri Nand Kishore Prasad Gupta,

Additional District and Sessions Judge, FTC-III for trial and disposal.

It appears from the perusal of the record that in this

case charge was framed against the appellant under Section 376(2)(f)

IPC.

It further appears from the record that in course of trial

altogether 11 witnesses have been examined on behalf of prosecution,

they are Shubh Narayan Pandey ( P.W.1), Brahmanand Pandey

(P.W.2), Diwakar Pandey (P.W.3), Jagdish Narayan Pandey (P.W.4),

Jai Narayan Pandey (P.W.5), Pradeep Kumar Pandey (P.W.6),

Sangeeta Devi (P.W.7) (mother of the victim), Rinki Kumari (P.W.8)

(the victim), Dashrath Prasad (P.W.9) (I.O.), Narendra Pal Singh

(P.W.10) (Judicial Magistrate) and Dr. Meera Chaudhary (P.W.11).

Apart from that the following documents have been

admitted into evidence on behalf of the prosecution:- Exts. 1 to 1/C,

signatures of witnesses on statement of the witnesses under Section

164 Cr.P.C., Ext.2 -2/B, signatures of witnesses, Exts.3-3/A,

signature of Rinki Kumari on "fardbeyan" and signature of Rinki

Kumari on fardbeyan, Ext.4 is seizure list, Ext.5 is requisition for

injury report, Ext.6 is charge-sheet, Ext.7, is formal FIR, Ext.8 is

fardbeyan, Ext.9 is endorsement of fardbeyan to the Officer-in-charge,

Majhauliya Police Station, Ext.10-10/G are the statements of

witnesses before the Magistrate under Section 164 Cr.P.C. and Ext.11

is injury report.

No specific defence has been taken by the appellant

and as per his statement under Section 313 Cr.P.C. and his evidence

and cross examination it appears that defence of the appellant is of

innocence, complete denial and false implication, due to previous land

dispute. However, neither any oral nor any documentary evidence has

been adduced on behalf of defence.

Learned Sessions Judge after trial has convicted the

appellant under Section 376(2)(f) IPC and sentenced him, as stated

above.

The accused appellant has filed this appeal against the

aforesaid order of conviction and sentence passed by the learned

Sessions Judge.

The ground taken by the appellant for assailing the

judgment is that no such occurrence was taken place and he has been

falsely implicated in this case and further ground taken by him is that

the whole prosecution case has been lodged against him, due to land

dispute and that is why there is no injury report of any Government

Hospital with respect to victim (P.W.8), rather the report is of a

private Doctor and no explanation has been given for the same.

On the other hand, it has been argued by learned APP

that in this case P.W.8 is the victim, aged about 8 years at the time of

occurrence and she has supported her case as stated in her fardbeyan

in her evidence in court. It is also submitted that in spite of her cross

examination at length, there is nothing in her cross examination to

create even a shadow of doubt about her evidence regarding the

commission of rape by the appellant. Further it has been submitted

that the above evidence of the victim has found corroboration by the

medical evidence of Dr.Meera Chaudhary (P.W.11) as well as from

the injury report (Ext.11) and it has also come that she was aged about

7-8 years on the time of occurrence and the aforesaid evidence of the

victim found further corroboration from the evidence of other

witnesses. Though there is no eye-witness but they have stated that

after occurrence she came to her house and narrated everything to her

mother and at that time they were present, as such, there is evidence

that immediately after the occurrence and the story has been narrated

by the victim before them, as such, there is cogent and reliable

evidence against the appellant.

In the aforesaid background, let me test the evidences

and the findings of the learned trial court. P.W.8 is the informant as

well as the victim in this case and she has stated in her evidence in

court that six months prior, while she was going for study, appellant

called her and further stated that her elder sister is in his house. Her

evidence in chief further disclosed that the appellant pulled her inside

the house and when enquired about her sister, she was slapped and

pushed clothes in her house and committed rape upon her, on which

she became unconscious due to pain but when she regained her

consciousness, she found blood was oozing out, anyhow she came to

her house and appellant fled away after locking his house. Her

evidence further shows that she disclosed everything to her mother,

who started crying and then her grandfather Jagdish Pandey and

Brahmanand Pandey and many others assembled there and she was

taken to Majhauliya hospital, from where she was referred to Doctor

of Bettiah and she was taken to the clinic of Dr.Meera Chaudhary for

treatment. Her evidence also disclosed that the police has recorded her

evidence there and taken her signature. She has identified her

signature on fardbeyan as Ext.3. She has also stated in her evidence

that her statement was recorded in court and she has identified her

signature in her statement before court as Ext.3/A. She has been cross

examined at length by defence and in her cross examination she has

categorically stated in paragraph-14 that she was not treated at

Majhauliya hospital. No doubt in her evidence in paragraphs-12 and

13, she has stated that she does not know the meaning of rape and

since how long she became unconscious she cannot say. On close

scrutiny of the evidence it appears that there is nothing in her evidence

to create a doubt about credibility of this witness. This witness at the

time of occurrence was aged about 8 years.

It further appears that her statement was recorded

under Section 164 Cr.P.C. before the Magistrate after the occurrence

and her evidence further found corroboration except for minor

contradiction from her statement under Section 164 Cr.P.C.(Ext.10/F)

P.W.8, Rinki Kumari, has been examined by Dr.

Meera Chaudhary (P.W.11) and she has categorically stated in her

evidence that on 21.6.2011 at 10 P.M. she examined P.W.8, Rinki

Kumari and also informed Bettiah police, who gave requisition for

treatment and injury and on examination she found lacerated injury on

lateral vaginal wall and perineum which was bleeding profusely and

vaginal tear and perennial were repaired and she has prepared injury

report which has been marked as Ext.11. She has also been cross

examined and in her cross examination, she has stated that as a private

doctor she had treated her on being sent by the Government hospital.

No doubt she has stated in paragraph-3 that injury on her private part

may be caused due to the fall but the internal injury cannot happen.

She has also stated that she has not found spermatozoa and also not

found any sign of protest. Her aforesaid evidence has also found

corroboration by injury report which has been proved by the doctor.

Before discussing the other evidence, let me discuss

the submission of learned counsel for the appellant as he has

vehemently argued that appellant has been falsely implicated in this

case and evidence of doctor itself shows that such type of injury is

possible on fall and family members of the victim ought have taken

her to any Government hospital for her treatment, rather she was

taken to a private doctor and that fact has not been explained as to

why she has been treated by private doctor. Mere perusal of evidence

of doctor it appears that she has stated that victim was referred by

Government hospital. Furthermore, the evidence of victim shows that

she was taken to Majhauliya hospital first wherefrom she was referred

to Dr. Meera Chaudhary.

The evidence of doctor shows such type of injury may

be caused due to the fall. It appears from the evidence of doctor that

she has categorically stated that internal injury cannot be caused on

the person of the victim on fall. One more submission has been

advanced by the appellant that doctor has also not found spermatozoa

in her private part and that falsifies the story of rape. However, it is

well established that mere penetration is enough to prove the

commission of rape and in present case, doctor has found internal

injury on the private part and that can only be caused due to

penetration. Though she has not categorically stated about the cause

of injury but being a minor girl aged about 8 years, it is not expected

that she would tell in detail. Had she stated in detail about commission

of rape, she must be tutored witness. But she has not stated so and

simply stated that she became unconscious that clearly suggest about

her innocence.

Apart from that large number of witnesses have been

examined on behalf of prosecution and from the evidence it appears

that they are not eye-witnesses to the occurrence but their evidences

show that just after the occurrence the victim girl came and narrated

the occurrence to her mother and at that time they were present and in

spite of their cross examination there is nothing in their evidences to

create any doubt about their presence when victim girl came to the

house after the occurrence. On the other hand, P.W.1 has stated that

Rinki was disclosing the same to her mother and his further evidence

is that blood was oozing out from her private part and this witness in

his cross examination has stated that he had not gone to Majhauliya

but he had gone to private doctor and he reached there at about 2 to

2.30 P.M. in the clinic of Dr. Meera Chaudhary. In paragraph-14 in

his cross examination he has stated that he had not seen the victim at

her house and at that time village women were present and his

evidence found corroboration from his statement under Section 164

Cr.P.C. before the Magistrate. Evidence of P.W.2 also shows that he

has also come to know about the occurrence when she came and

disclosed the occurrence to her mother and he had also stated that he,

along with others, had taken her to doctor and from there she was

referred to Bettiah hospital. In spite of his cross examination there is

nothing in his evidence to doubt credibility about the same rather his

evidence found corroboration from his statement under Section 164

Cr.P.C. before Magistrate. P.W.3 has also narrated about the

occurrence but it clearly appears from his evidence in paragraph-2 that

on hulla, he went there and Rinki disclosed everything and blood was

oozing out at that time and thereafter she was sent for treatment and

his evidence further shows that his statement has been corroborated

before the Magistrate under Section 164 Cr.P.C. and he has identified

his signature over the statement also. Even in his cross examination

this witness has stated that he was not called rather he had gone to her

house of his own after her hulla about the rape and he heard

everything from the mother of Rinki. His evidence in paragraph-8

further disclosed that till he was there she was conscious. P.W.4 has

also stated about the occurrence but he is also not an eye-witness,

rather his evidence in chief itself shows that he came at her house

while she was disclosing everything and he heard the same and he has

stated before the Magistrate also in his statement under Section 164

Cr.P.C. This witness is the grandfather of the victim and even in spite

of his cross examination he has stated that he has a talk with Rinki

and her mother and they have disclosed everything. His further

evidence found corroboration by his statement under Section 164

Cr.P.C. before the Magistrate. Similarly, P.W.5 is also not an eye-

witness to the occurrence but he has also stated that Rinki disclosed

the same to her mother and he heard about the same and he has taken

her to Majhauliya hospital and from there he came to his house. The

statement of this witness has also been corroborated before the

Magistrate under Section 164 Cr.P.C. and he has also identified his

signature over the statement and his statement also corroborated by

the evidence of this witness. P.W.6 also does not appear to be an eye-

witness and claims himself to have come to know about the same

while Rinki was disclosing the same to her mother and at that time he

was present. He has also stated that when he had gone to Majhauliya

hospital, doctor has disclosed that her condition is serious, as such, he

had taken her to Dr. Meera Chaudhary and police was informed and

she was treated there. He has also stated about the statement before

the Magistrate and identified his signature. In his cross examination in

paragraph-12 he has categorically stated that wife of appellant did not

live in the house and Ramchander Sah lived outside and other

members used to live there. Even in his cross examination this witness

has stated that he had first taken the victim to Majhauliya Government

hospital. A suggestion has been given to this witness that in order to

remove appellant from the village, conspiracy was hatched up to

implicate the appellant in this case and the aforesaid suggestion has

been denied by this witness.

P.W.7 is the mother of victim and she has also

categorically stated that she came and disclosed everything to her and

when she started crying whole family members and others assembled

there. She has further stated that Jai Narayan Pandey, Shubh Narayan

Pandey, Diwakar Pandey, Brahmanand Pandey assembled there and

she disclosed about the same to them and victim was taken to

Majhauliya hospital and doctor informed that her condition was

serious, as such, they have taken to her to Dr. Meera Chaudhary. She

has also stated that her statement was also recorded and her evidence

in paragraph-11 she disclosed that stitch was given by Dr. Meera

Chaudhary to her daughter.

P.W.10 is the Magistrate, who has recorded the

statement of the victim as well as the witnesses under Section 164

Cr.P.C. and he has categorically stated that he had recorded statement

of the witness Rinki Kumari, Sangeeta Devi, Jai Narayan Pandey,

Pradeep Kumar Pandey, Brahmanand Pandey, Shubh Narayan

Pandey,Jagdish Pandey and Jai Narayan Pandey and he has proved the

same as Exts. 10 to 10/G. There is nothing worthwhile in his cross

examination to mention here.

P.W.9 is the I.O. in this case and he has clearly stated

that he had received the fardbeyan and on that he had registered the

case and taken over the investigation and recorded the statement of

Rinki Kumari and also recorded the statement of other witnesses. His

evidence also shows that he visited the place of occurrence, prepared

seizure list, recorded statements of Rinki Kumari and other witnesses

under Section 164 Cr.P.C., obtained injury report and thereafter

submitted charge-sheet under Section 376(2)(f) IPC against the

appellant. He has proved the fardbeyan and handwriting of PSI,

Pramod Prasad.

From the evidence discussed above, it clearly appears

that P.W.8 has supported her prosecution version in her evidence in

court and in spite of her cross examination there is nothing in it to

doubt and credibility of it about the same, rather her evidence has

been corroborated by her statement recorded under Section 164

Cr.P.C. before the Magistrate and found further corroboration from

the evidence of Doctor (P.W.11) as well as the injury report (Ext.11).

There are some discrepancies in her evidence, which are bound to

occur as she is 8 years old and it is quite natural that she cannot

understand the meaning of rape that that is not enough to discard her

evidence. Her evidence also shows that she has narrated about the

occurrence to her mother just after the occurrence and the doctor has

even found injury on her person. Apart from that there are several

other witnesses, who have been examined in this case, including

grandfather of the victim and though they are not the eye-witnesses to

the occurrence but their evidences show that just after the occurrence

the victim has narrated about the occurrence and at that time blood

was oozing out from her private part and thereafter she was taken to

Majhauliya hospital, from where she was referred to Dr. Meera

Chaudhary and the aforesaid evidences of P.Ws. found corroboration

by their statement before the Magistrate under Section 164 Cr.P.C.

and there is nothing in their evidences to show that they have falsely

deposed in this case.

As I have discussed above, a plea has been taken by

learned counsel for the appellant that the victim was not taken to

Government hospital rather to a private doctor in order to create doubt

about the credibility of the same and there was enmity from before

due to land dispute. Further defence has been taken that father of the

victim in a conspiracy tried to get the appellant removed from the

village and lodged the false and concocted case against him but

neither any evidence has been adduced on behalf of defence in order

to show that there was any land dispute prior to the occurrence nor

brought any evidence to show that conspiracy was hatched to remove

the appellant from the village, rather there are consistent evidences in

support of the prosecution case. So far taking her to private Doctor is

concerned, the evidence of witness clearly shows that she was taken

Government Hospital, Majhauliya but as her condition is serious, she

was referred to Bettiah and hence she was treated by Dr. Meera

Chaudhary (P.W.11).

From the entire discussions made above, it appears

that there are consistent evidence available on record that the victim

(P.W.8) was aged about 8 years and even the court assessed her age as

8 years, as such, she was below the age of 16 years. It further appears

that there is evidence of P.W.8 that after thrashing on her bed he

opened her zip and come over her body and thereafter she was feeling

pain and became unconscious. She has also stated that when she

regain her consciousness she saw herself without having

undergarment (kachhi) and she was bleeding and the witnesses have

also stated that they had seen her bleeding soon after occurrence and

further evidence of Doctor shows that there were injuries on the

external as well as interior portion of her private part and the Doctor

has found lacerated injury on lateral vaginal wall and perineum which

was bleeding profusely and vaginal tear and perennial were repaired

and the evidence of Doctor shows that internal injury is not possible

on fall. It is well established that in case of rape evidence of victim

does not require corroboration only when the evidence of victim is

found to be cogent, reliable and free from any influence and, that too,

corroborated by Medical evidence. Considering the same, conclusion

can safely be drawn that appellant has committed rape upon P.W.8,

Rinki Kumari.

Considering the entire discussions made above, it

appears that conviction of the appellant under Section 376(2)(f) IPC is

sustainable and the same is upheld. So far sentence is concerned, the

appellant has been sentenced to undergo R.I. for ten years, which is

the minimum sentence prescribed under Section 376(2)(f) IPC and

further fine of Rs.25,000/- and in default imprisonment for one year

and, as such, while passing the sentence the learned court below itself

has passed the minimum sentence as prescribed, hence no interference

is required.

Considering the entire discussions made above, the

appeal is dismissed and the conviction and sentence of the appellant

passed by the learned court below are affirmed. It is also made clear

that fine of Rs.25,000/-, if deposited, shall be released in favour of the

victim, Rinky Kumari, forthwith.