Ahtesham Khan @ Atesham Khan @ ... vs The State Of Bihar
2021 Latest Caselaw 1867 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.2831 of 2019
      Arising Out of PS. Case No.-560 Year-2017 Thana- KATIHAR District- Katihar
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AHTESHAM KHAN @ ATESHAM KHAN @ AHTESHAM S/o Wasim Khan Resident of Village- Bhaghwa Bari, Katihar, P.S.- Katihar, District- Katihar.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s     :        Mr.Vikramdeo Singh, Advocate
                        :        Mr.Nafisuzzoha,Advocate
For the State           :        Mr.Binod Bihari Singh, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 06-04-2021 The sole appellant, above named, faced trial before

learned Additional Sessions Judge-I-cum-Special Judge under

POCSO Act at Katihar in connection with Katihar Town P.S.Case

No.560 of 2017 corresponding to G.R.No.3536 of 2017 and

C.I.S.No. 843 of 2017. The learned Trial Judge found the appellant

guilty for offence under Section 376 I.P.C. as well as under Section

4 of the POCSO Act by the impugned judgment dated 27.05.2019.

Ten years rigorous imprisonment besides fine of Rs.50,000/- was

awarded vide impugned order dated 30.05.2019. In default of

payment of fine, one month imprisonment was ordered for offence

under Section 376 I.P.C. However, no separate sentence was

passed for offence under Section 4 of the POCSO Act. On deposit

of the fine Rs. 40,000/- was ordered to be given to the victim. Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

2. The prosecution case, as disclosed in the written

report of Mr. Kishore Sah (P.W.6), the father of the victim girl, is

that on 04.08.2017 (Friday) at about 11.30 A.M., he had

telephonically called the appellant, a T.V. Mechanic, to his house

in Mohalla-Vivekanand Colony, P.S.-Town, Town & District-

Katihar for mending the Television. The informant left for the

market as he was in business of vegetables. Only the victim girl,

aged about 14 years, was there in the house. The victim was a

student of Shyama Sanskrit Middle School in Class-VI. The

appellant, taking advantage of the loneliness of the victim in the

house, ravished her. The victim disclosed about the occurrence to

the informant and on 08.08.2017 at 9.00 A.M., the appellant again

came to the house of the informant where the people caught and

assaulted to the appellant and handed over to the police.

The FIR of the occurrence was lodged on 08.08.2017.

After investigation, the police submitted chargesheet and the

appellant was put on trial.

The prosecution examined altogether eight witnesses to

prove the charges against the appellant and the defence produced

three witnesses, mainly to substantiate that this is a case of false

implication as appellant had money due with the informant, some Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

for mending the Television and the rest which was advanced as

loan to the informant.

3. Mr. Vikramdeo Singh, learned counsel for the

appellant contends that prosecutrix is not corroborated by medical

evidence vide medical report at Ext.1 and evidence of Dr.Kanak

Ranjan P.W.5 and rest of the witnesses namely, P.W.1, Pramila

Devi, the mother of the victim, P.W.2 Murari Chaudhary, P.W.3

Kishore Kumar, P.W.4 Kishan Pal, P.W.6 Kihore Shah, the father

of the victim, are hearsay witnesses. P.W.7 is the prosecutrix

herself and P.W.8 Nityanand Pandey is Investigating Officer of the

case, who has simply supported the investigation done by him.

Learned counsel for the appellant next contends that there is delay

of four days in reporting the matter to the police, hence chances of

deliberations and concoctions cannot be ruled out. Moreover,

appellant is in jail since 08.08.2017.

4. To contra, learned counsel for the respondent

contends that plurality of the witness is not the requirement of law

and conviction is permissible even on sole testimony of the

prosecutrix. For minor discrepancies a victim of rape cannot be

looked upon with suspicion. The victim is consistent in her

statement before the police, before the Magistrate under Section

164 Cr.P.C. and before the trial court. The medical report does not Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

suggest that the opinion was conclusive that no rape was

committed. Moreover, the Doctor is an expert of physical

observation noticed on examination and not an expert to say

whether rape was committed or not. The acts to constitute rape are

well defined in Section 375 I.P.C. Other witnesses have

corroborated the prosecutrix as hearsay witnesses of the

occurrence and the learned Trial Judge has considered the

evidences, in details, while recording the judgment of conviction.

Learned counsel further submits that a minor delay of four days in

reporting the matter to the police is immaterial. The offence was

committed against a girl, whose family belongs to rural area would

be more conscious to save prestige from social humiliation than to

choose and bring the perpetrator of the crime, under clutches of

Law.

5. The prosecution evidence discloses that the alleged

act of rape took place on 04.08.2017 whereas on 08.08.2017, the

appellant was apprehended by the villagers, brought to the house

of the informant and was assaulted thereat and thereafter handed

over to the police. P.Ws. 2, 3 and 4 are witnesses on the occurrence

dated 08.08.2017.

6. P.W.2 Murari Chaudhary deposed that he heard hue

and cry at the house of the informant. Thereafter he reached there. Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

The girl was weeping and the people there informed that the

appellant had ravished the victim girl. The police came and took

the appellant to the police station.

P.W.3. Kishore Kumar deposed that he heard alarm and

when came out the people were saying that the victim was

ravished by the accused. Likewise P.W.4 Kishan Pal has deposed

about what he saw on 08.08.2017 when the appellant was being

assaulted on allegation of commission of rape.

P.W.1 Pramila is the mother of the victim. P.W.6 Kishore

Sah is father of the victim. Both have stated that the victim

disclosed to them that she was ravished by the appellant. These

witnesses disclose the age of the victim as 14 years.

Thus the prosecution case is mainly based on testimony

of the prosecutrix P.W.7.

7. It is well settled by a catena of judicial

pronouncements that while appreciating the evidence of the victim

of sexual assault, it should be treated on a par with the evidence of

an injured witness. The reason is simple that a girl or a woman in

the tradition bound non-permissive society of India would be

extremely reluctant even to admit that any incident which is likely

to reflect on her chastity had ever occurred. She would be

conscious of the danger of being ostracized by the society. When Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

in face of these factors, the crime is brought to light, there is

inbuilt assurance that the charge is genuine rather than fabricated.

In normal course, the Indian Women has tendency to conceal such

offence even before her family members much less before public

or before the police. Therefore, testimony of the prosecutrix to

some extent, stands on higher pedestal than that of an injured

witness.

Corroboration is not an imperative component of

judicial credence in every case of rape. Refusal to act on the

testimony of the victim of sexual assault, in absence of

corroboration as a rule, is adding insults to the injury. If the

Doctor, who examined the victim, does not find sign of rape, it is

no ground to disbelieve the sole testimony of the prosecutrix. If

totality of the circumstances appearing on the record of the case

discloses that the prosecutrix does not have strong motive to

falsely implicate the person charged, the Court should ordinarily

have no hesitation in accepting her evidence as no self-respecting

women would come forward to make a self-humiliating statement

in casual manner.

The Court ought to be mindful that a rapist not only

violates the victim's privacy and personal integrity, but inevitably

causes serious psychological as well as physical harm in the Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

process. Rape is not merely a physical assault, it is often

destructive of the whole personality of the victim. A murderer

destroys the physical body of his victim, a rapist degrades the very

sole of the helpless female. The Court, therefore, shoulders a

greater responsibility and must deal with such cases with utmost

sensitivity. The broader probabilities of the case should be

examined and not the minor contradictions or insignificant

discrepancies in the statement of the prosecutrix, which are not of

a fatal nature, should come in the way to otherwise reliable

prosecution case. Reference may be made to State of Punjab Vs.

Gurmit Singh and Ors, reported in (1996)2 SCC 384 and

Motilal Vs. State of M.P., reported in (2008)11SCC 20.

At the same time in Raju & Ors Vs. State of Madhya

Pradesh, reported in (2008) 15 SCC 133, the Hon'ble Supreme

Court cautioned by saying that no doubt, rape causes the greater

distress and humiliation to the victim, but at the same time a false

allegation of rape can cause equal distress, humiliation and

damage to the accused as well. Therefore, the accused must also be

protected against the possibility of false implication. The Court

should carefully see that the prosecutrix is consistent in her

statement right from the starting point till the end, namely, at the

time when the witness makes the initial statement and ultimately Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

before the court. The prosecutrix should be in a position to

withstand the cross examination of any length and howsoever

strenuous it may be and under no circumstance should give room

for any doubt as to the factum of the occurrence, the person

involved, as well as the sequence of it. If other witnesses are there,

there must be consistent match with the version of every other

witnesses. If the testimony of the prosecutrix withstands the

aforesaid test, she would be treated as a "sterling witness" and no

corroboration is needed to base the conviction on the sole

testimony of the prosecutrix. Reference may be made to Rai

Sandeep @ Deepu Vs. State (NCT of Delhi), reported in (2012)8

SCC 21.

8. P.W.7 the prosecutrix deposed that the appellant

came to her house, asked to open the door. At that time, mother

had gone to bring fodder for the Goat and father had gone to sell

vegetables in the market. The appellant came inside dragged her

inside the room, thereafter tied her mouth with Dupatta and

ravished her. The appellant threatened her not to disclose about

the act of the appellant to anyone otherwise father of the victim

would be shot at in the market itself. Therefore, the victim could

not disclose about the occurrence to her parents rather disclosed to

her father a day after the occurrence. She further disclosed that her Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

statement was recorded in the Mahila Police Station as well as

before the Magistrate. She was medically examined by the Doctor.

She identified the appellant in court. In the cross examination, she

stated that appellant used to come to her house as and when

required to mend the Television. This time also father had

telephoned him for mending the television. He had come to mend

the television but ravished her. She stated that she could not

remember the date of occurrence but that was a Friday. During the

incident, she stated that, she had sustained injuries and had got

treatment before a Doctor. There is nothing in the cross

examination to say that she has improved her version or is

inconsistent with her previous statement in the matter of manner of

occurrence, place of occurrence or time of occurrence or in any

other material particular.

9. P.W.5 Dr. Kanak Ranjan had medically examined

the victim on 09.08.2017 at 5.20 P.M. The Doctor assessed her age

in between 16 to 17 years on the basis of ossification and other

testes applied. Finding regarding sexual assault is as follows:

" No marks of injuries were present on her body.

There was redness around the vaginal opening.

Hymen was not torn. Vagina was not loose. Vaginal

swab report was given by Dr. R.Suman. On Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

Microscopic Examination, no spermatozoa was

found.

From the above finding, I can say only attempt for

sexual intercourse might have been done."

While being cross examined the witness deposed that

there may be attempt to rape, it may not be also. There may be

other reasons of redness on vaginal opening.

10. Modi's Medical Jurisprudence and Toxicology, 24 th

Edition in Chapter-XXXI, opines that there is a distinction

between vulva penetration and vaginal penetration; and, vulval

penetration, with or without violence, is as much rape as vaginal

penetration. It is not necessary that hymen be ruptured in every

case. The statute merely requires medical evidence of penetration,

this may occur and the hymen may remain intact.

11. Absence of spermatozoa, on the date of

examination of the victim, after five days of the occurrence, is

obvious in absence of specific evidence that the victim had not

taken bath for five days. For the same reason, the victim cannot be

disbelieved that she had bleeded during the incident, for the

Doctor has not found any sign of bleeding.

12. In view of the aforesaid Medical Jurisprudence, it

cannot be said that only for non-rupture of the hymen, it can be Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

assumed that rape was not committed. The finding, of "redness

around the vaginal opening", suggests a case of vulval penetration

to constitute the offence of rape, which is consistent with the claim

of the prosecutrix that she was ravished. There is nothing on the

record to specify the nature of penetration meted to the victim.

Therefore, it cannot be argued that the testimony of the

prosecutrrix is totally inconsistent with the medical evidence.

13. P.W.1 Pramila Devi and P.W.6 Kishore Sah, who

are parents of the victim, have disclosed age of the victim as 14

years on their personal estimation. The Doctor assessed her age

between 16 to 17 years on medical examination.

The Investigation Officer P.W.8 collected certificate

from the school where the victim was studying and the same is

available on the record as Ext.5. As per Ext.5, the victim was born

on 02.09.2007. The genuineness of the certificate is not disputed in

this case. Therefore, there is evidence of exact age of the victim

which shows that she was a minor. In that view of the matter, even

if there is some suggestion that the appellant was called at the

house of the victim by the victim herself could not make any

difference as the victim was of the age making her incapable of

giving valid consent.

Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

14. The delay in lodging of the FIR is well explained

and the prosecutrix herself stated that due to fear, she did not

disclose about the occurrence to her parents till a day after the

occurrence. Thereafter, several other reasons including apparent

chances of social stigma might have prevented the parents of the

victim or the victim to report the matter immediately to the police.

In Mukesh Vs The State of Chhattisgarh, reported in (2014)10

SCC 327, the prosecutrix was wholly reliable, hence delay in

lodging the FIR was not taken as fatal to the prosecution case.

15. On scrutiny of the prosecution evidence referred

above, it is evident that the prosecutrix has consistently supported

the occurrence from initial report to the police, her statement

before the Magistrate under Section 164 Cr.P.C. and thereafter

before the Trial Judge as P.W.7. There is no material contradiction

or exaggeration in her testimony and she has fully stood the test of

cross examination. There is nothing on the record to substantiate

that the victim had strong motive to make an allegation which was

not only against the appellant rather a self-inflicting statement

against honour and dignity of the victim herself. As noticed above,

the victim is not totally inconsistent with the medical report or

other prosecution witnesses. Therefore, there is no reason to

disbelieve or discard the trustworthy testimony of the victim.

Patna High Court CR. APP (SJ) No.2831 of 2019 dt.06-04-2021

16. Since the learned Trial Judge has awarded minimum

punishment prescribed under the law, the same requires no

interference. In the result, the impugned judgment and order are

affirmed and this appeal stands dismissed as devoid of any merit.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR                NAFR
CAV DATE                23.03.2021
Uploading Date          06.04.2021
Transmission Date       06.04.2021