Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.186 of 1999 =========================================================== Bhikhari Rai son of Ram Nath Rai, resident of village Bishunpur Saraiya, P.S. Paru, District Muzaffarpur Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Rajendra Prasad Singh, Sr. Advocate Mr. Pramod Kumar, Advocate Mr. Ritesh Kumar, Advocate For the Respondent/s : Mr. Anil Kr. Singh, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT Date: 28-11-2013 The appellant has been convicted under Section 376 I.P.C. and sentenced to R.I. for five years by a judgment dated 24.7.1999 and 28.7.1999 passed by the 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No.419 of 1989. The case of the prosecutrix according to her fard beyan given on 6.9.1986 is that about 20 days back at about 5 P.M. while she had gone to answer the call of nature, the Appellant came near her and after tying her mouth with a towel took her to a nearby place and forcibly raped her. She started bleeding on account of such an act and also suffered pain. After the act, the Appellant ran away from there. On her way to her home she met her mother whom she told him about the occurrence and thereafter to the rest of her family members, such as, sister-in-law, aunt and others. The reason for delayed reporting
Legal Reasoning
Patna High Court CR. APP (SJ) No.186 of 1999 dt.28-11-2013 2 was that a Panchayati was held on account of which people had restrained them from going to the Police Station. During trial the prosecution examined thirteen witnesses in all. Out of whom, P.W.4 Maya Das and P.W.5 Mohan Thakur have been declared hostile, whereas P.W.2 Harendra Paswan, P.W.10 Digambar Prasad, P.W.12 Arun Choudhary and P.W.13 Ranjeet Kumar Gupta are formal police witnesses and proved the seizure list, fard beyan/First Information Report and such documents. P.W.11 is Dr.
Legal Reasoning
Madhuri Shrivastava, who examined the prosecutrix. P.W.1 Malti Devi is the mother of the Informant, whereas P.W.3 is the prosecutrix herself. P.W.6 Banshi Mahto is a hearsay witness. P.W.7 Gayatri Devi is the sister-in-law of the prosecutrix, P.W.8 Sudist Paswan is her father and P.W.9 Ramprit Paswan is her uncle. P.W.1 in her evidence in Court stated that on the date of occurrence her daughter narrated to her that the Appellant had forcibly committed rape upon her while she had gone to answer the call of nature. She further stated that her clothes was soaked in blood and she suffered pain in her private parts, on account of which she was medically treated. P.W.2 Harendra Paswan has proved the seizure of the blood stained Saree of the prosecutrix and the production list of the same. P.W.3, the prosecutrix, stated that on the date of occurrence at Patna High Court CR. APP (SJ) No.186 of 1999 dt.28-11-2013 3 5 P.M. when she went to the fields to answer the call of nature, suddenly Appellant came upon her and tied her mouth with a towel and dragged her to a nearby place where he raped her. When she screamed, the Appellant left her and ran away. On the way to her home she told her mother about the occurrence and also gave her blood stained clothes to the Investigating Officer. A Panchayati was held after which she gave her statement before the police officer. In her cross-examination there is nothing which would discredit her narrative in the examination-in-chief. P.W.6 Banshi Mahto was a Panch in the Panchayati held in regard to this occurrence and proved the documents and his signature as Exhibit 1/3. A suggestion was given to him that since the Appellant was a witness against him in a murder case hence he was an interested witness. P.W.7 Gayatri Devi is the sister-in-law of the prosecutrix, who stated that the prosecutrix had told her about the occurrence and she found objective evidence in regard to the act allegedly having been committed by the Appellant. She also stated that the blood stained clothes had been given to the Officer Incharge and that the prosecutrix had been medically examined. P.W.8 Sudist Paswan is the father of the prosecutrix, who stated about the occurrence as a hearsay witness and corroborated the Patna High Court CR. APP (SJ) No.186 of 1999 dt.28-11-2013 4 objective evidence of the same. He stated that on the next day he had gone to the Police Station but the police official advised him to hold a Panchayati in the matter and did not institute a case till such time as he made a complaint before the S.P. He thus explains the alleged delay in reporting the matter. P.W.9 Ramprit Paswan is the uncle of the victim, who also has given a hearsay account and also that a Panchayati was held in the matter in which the Appellant had been fined Rs.11/-. P.W.11 Dr. Madhuri Shrivastava examined the victim on 7.9.1986 i.e. almost 21 days after the occurrence and thus did not find any mark of injury on her person. She was of the opinion that P.W.3 was 13 years of age. The above mentioned particulars are the sum total of the evidence adduced on behalf of the prosecution. The Counsel for the Appellant submits that serious prejudice has been caused to the Appellant by non-examination of the Investigating Officer in view of the delay in institution of the First Information Report. It was the bounden duty of the prosecution to bring the first version of the occurrence before the court since the father of the victim had stated that he had gone to the Police Station on the very next day, whereas actual fard beyan has been recorded admittedly after twenty days. The medical report also does not support Patna High Court CR. APP (SJ) No.186 of 1999 dt.28-11-2013 5 the case of the prosecution and hence the Appellant should be given benefit of doubt. Moreover, none of the material exhibits were produced by the prosecution. The Trial Court also found discrepancies in the evidence of the witnesses and hence the Appellate Court should consider the same. On a fair appraisal of the evidence of the prosecution, it is found that undoubtedly the fard beyan has been recorded after much delay. Delay by itself is not a reason to discard the prosecution case and in certain situations it can be condoned. In the present occurrence I find that admittedly rustic villagers were involved. When the father of the victim went to the Police Station the Police Officer refused to record the statement suggesting that a Panchayati be held instead. The casual approach of the Police Officer of an offence of this nature though not for-givable is routine. The delay in reporting the matter in such circumstances is worth acceptance. Further since the victim was medically treated more than 20 days after the occurrence, it was only natural that there would be no objective remains on her person. Hence non-corroboration by way of any injuries is not significant. What is material in the present case is that the victim was aged only 13 years. The victim’s narration, which is natural, has been well corroborated by her parents and other family members which leave no room to doubt the prosecution case. Patna High Court CR. APP (SJ) No.186 of 1999 dt.28-11-2013 6 As for non-examination of the Investigating Officer, it is not fatal in all situations and in the present case when the eye witness and her corroborative evidence is trustworthy, non-examination of the Investigating Officer would be of no worth. Also the non-production of the material Exhibits in Court is not a major lapse which would fall in favour of the Appellant. Hence I find no merit in the appeal. The same is dismissed. The Trial Court is directed to take expedient steps to ensure arrest of the Appellant. NAFR/Narendra/- (Anjana Prakash, J)