Madan Sahani And Ors vs The State Of Bihar
2021 Latest Caselaw 1898 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (SJ) No.2459 of 2017
       Arising Out of PS. Case No.-118 Year-2015 Thana- NAUTAN District- West Champaran
     ======================================================

Sharma Sahani Son of Chhotelal Sahani, resident of Village- Telhua, Police Station- Nautan, District- West Champaran.

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s ======================================================

WITH

CRIMINAL APPEAL (SJ) No. 1850 of 2017 Arising Out of PS. Case No.-118 Year-2015 Thana- NAUTAN District- West Champaran ======================================================

1. Madan Sahani Son of Mangaru Sahani,

2. Munna Sahani Son of Palatu Sahani,

3. Jagdish Sahani Son of Chhotelal Sahani,

4. Nitish Sahani @ Niteesh Sahani Son of Madan Sahani, All are Residents of Village- Telhua, Police Station- Nautan, District- West Champaran.

... ... Appellant/s

Versus

The State Of Bihar ... ... Respondent/s

====================================================== Appearance :

     (In CRIMINAL APPEAL (SJ) No. 2459 of 2017)
     For the Appellant/s  :     Mr. Bashishtha Narayan Mishra, Advocate
     For the Respondent/s :     Mr. Z. Hoda, APP
     For the Informant    :     Mr. Sachida Nand Rai, Advocate
     (In CRIMINAL APPEAL (SJ) No. 1850 of 2017)
     For the Appellant/s  :     Mr. Bashishtha Narayan Mishra, Advocate
     For the Respondent/s :     Mr. Sujit Kumar Singh, APP
     For the Informant    :     Mr. Sachida Nand Rai, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 08-04-2021 Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

The above referred appeals are against the common

judgment of conviction dated 09.06.2017 and order of sentence

dated 14.06.2017 passed by learned Additional Sessions-I-cum-

Special Judge under POCSO Act, Bettiah, in connection with

Nautan P.S. Case No.118 of 2015, corresponding to SGR No.39

of 2015 and CIS No.14306 of 2015. The learned trial Judge

found all the appellants of Cr. Appeal (SJ) No. 1850 of 2017

guilty for offence under Section 17 of the Protection of Children

from Sexual Offences Act, 2012 (hereinafter referred to as the

POCSO Act) and ordered to undergo rigorous imprisonment for

ten years and to pay a fine of Rs. 25,000/- (Twenty five

thousand) each. In default of payment of fine further three

months imprisonment was ordered.

The sole appellant Sharma Sahani of Cr. Appeal

(SJ) No. 2459 of 2017 was found guilty for offences under

Sections 4, 6 and 8 of the POCSO Act and has been sentenced to

undergo rigorous imprisonment for ten years and to pay a fine of

rupees twenty five thousand for each of the offences under

Sections 4 and 6 of the POCSO Act. In default of payment of

fine three months further imprisonment has been ordered. For

offence under Section 8 of the POCSO Act three years rigorous

imprisonment and a fine of rupees five thousand has been Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

imposed. In default of payment of fine, the appellant was

directed to undergo 15 days imprisonment. The sentences are to

run concurrently.

By the same judgment the learned trial Judge

acquitted all the appellants of the charges under Sections 363,

365 and 201 of the Indian Penal Code. Appellant Sharma

Sahani was acquitted of the charge under Section 17 of the

POCSO Act.

2. On 03.05.2015 at 2:30 PM, the SHO of Nautan

Police Station recorded fardbeyan (Exhibit-1) of PW 3 Urmila

Devi, the mother of the victim girl, at M.J.R. Hospital, Bettiah.

According to FIR of PW 3, on 28.04.2015 the informant had

gone to Banaras for her own treatment. In the house only a son

and three daughters were there. At Banaras itself, she got

telephonic information that when the victim girl, aged about ten

years, was alone in the house, on 01.05.2015 at about 3:00 PM

appellant Sharma Sahani entered into the house and committed

rape against her. On 02.05.2015 when the informant returned to

her house she found the victim in a critical condition. She

wanted to go to the police station along with the victim.

However, appellant Madan Sahani, Munna Sahani, Jagdish

Sahani and Nitish Sahani did not allow her to go to the police Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

station saying that this is a family matter and they would settle it

in the panchayat. Thereafter, Madan Sahani and others took her

as well as to her daughter to Kaithwaliya where the daughter of

the informant was hospitalized in a private clinic. The appellants

were threatening not to lodge criminal case.

3. On the basis of report aforesaid Nautan P.S. Case

No.118 of 2015 was registered. After investigation the police

submitted charge sheet and the appellants were put on trial. The

prosecution examined altogether nine witnesses during trial and

the defence produced three witnesses who are extensively

referred in the trial Court judgment.

4. Mr. Bashishtha Narayan Mishra, learned counsel

for the appellants, contends that there is delay in lodging of the

FIR and there is no reasonable explanation for such delay which

creates serious doubt on the prosecution case. The prosecutrix

is not corroborated by the medical evidence. Due to old land

dispute between the agnates (i.e., prosecution side and the

accused), the false case was lodged. Besides there are material

contradictions in the testimony of the prosecutrix and other

witnesses. No offence under Section 17 of the POCSO Act is

made out against any of the appellants.

5. To contra, Mr. Sachida Nand Rai, learned Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

counsel for the respondent, contends that the law is well settled

that prosecutrix cannot be disbelieved for minor discrepancies

and there is no need for corroboration by medical evidence if

the prosecutrix is consistent on the manner of occurrence, place

of occurrence and identity of the perpetrator of the crime. The

learned trial Judge has considered, in threadbare manner, the

evidences on the record adduced by the parties and has recorded

the judgment of conviction. Unless there is error of record and

material irregularity in consideration of the prosecution

evidence this Court should not interfere with the judgment of

conviction.

6. 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, 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 Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

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 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 Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

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. Minor contradictions or insignificant

discrepancies in the statement of the prosecutrix, which are not

of a fatal nature, should not 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)11 SCC

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

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 before the court. The prosecutrix

should be in a position to withstand the cross examination of Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

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.

It is equally settled that while appreciating the

evidences on the record, the Court is competent enough to

separate the grains from the chaff unless they are intrinsically

mixed and inseparable. The victim girl was examined as PW 1

on 14th July, 2016. She deposed that the occurrence took place

about a year ago at 3:00 PM. She was in her house. At the same

time, appellant Sharma Sahani entered into the house tied her

mouth and ravished her. When PW 2 Pramila Devi reached on

alarm the appellant fled away. She further deposed that other

appellants did not allow her or anyone to lodge a criminal case;

rather took the victim and other family members to Kaithwaliya

to hide them. But the police came and took them to the Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

government hospital at Bettiah where the victim was treated.

There is nothing in the cross-examination of this witness to

doubt her trustworthiness. PW 2 Pramila Devi deposed that on

hearing alarm of the victim she went inside the house of the

victim and saw the appellant committing rape against the victim

by putting clothes into the mouth of the victim. On arrival of

Pramila the appellant fled away. The witness has stated that her

house is just by the side of the house of the victim. PW 2 was

confronted with her statement before the police that she had not

said that she saw the appellant committing rape against the

victim. When attention of the Investigating Officer (PW 4) was

drawn to this evidence of PW 2, the Investigating Officer stated

that though the witness had not said before him that she had

seen the appellant committing rape against the informant.

However, PW 2 had stated before the police that when she

reached in the house of the victim she saw clothes were put in

the mouth of the victim and the appellant was fleeing from

there.

PW 3 Urmila Devi, the mother of the victim, has

supported the allegation as hearsay witness. PW 5 Hari Sahani,

the father of the victim, supported the allegation as hearsay

witness and stated that at the time of occurrence he had gone to Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

work in the house of the referred co-villager. PW 6 Kishore

Sahani has supported the prosecution case as hearsay witness.

PW 7 Dr. Manju Jaiswal and PW 8 Dr. Rashmi

Nand Kuliyar are doctors, who were members of the Medical

Board constituted for medical examination of the prosecutrix by

order of the District Magistrate, and they had occasion to

examine the victim on 11.06.2015. PW 9 Dr. Akanksha had

examined the victim on 03.05.2015 itself i.e., on the date of

FIR. According to the doctors, there was no recent sign of rape

though the hymen was old torn. The doctors did not find any

external or internal injury on genitalia. The age of the victim

was assessed between 11 to 13 years.

The defence witnesses DW 1 Deo Kumar Sahani,

DW 2 Murlidhar Sahani and DW 3 Navin Baitha deposed that

the present one is a false case due to land dispute between the

parties.

7. From the evidence on record it is evident that the

delay in lodging of the first information report is well explained.

According to PW 5, when he got information about the

occurrence on telephone he readily return back to his house.

He wanted to go to the police station along with the victim but

other appellants locked him inside a room asking not to lodge a Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

case before the police. PW 5 informed to his wife at Banaras,

who returned on the next day. Thereafter, the accused persons

took the trio i.e., the victim and her parents to Kaithwaliya just

to prevent information of the occurrence to the police. When

the police got information, the police went to Kaithwaliya and

brought the victim and her parents to M.J.K. Government

Hospital, Bettiah, where victim was treated and fardbeyan of her

mother was recorded. Therefore, I do not find that the delay in

lodging of the FIR is material and unexplained one to doubt the

prosecution version.

8. Though there is suggestion to almost all the

prosecution witnesses that there is land dispute between the

parties but the prosecution witnesses have categorically denied

any land dispute between the parties. No material has been

brought on the record to substantiate any land dispute between

the parties or any apparent dispute. Exhibit-A is cognizance

order in Nautan P.S. Case No.41 of 2003, Exhibit-B is FIR and

Exhibit-C is charge sheet of Nautan P.S. Case No.41 of 2003,

Exhibit-D is a notice in a proceeding under Section 144 Cr.P.C.

and Exhibit-E is an order passed by the State Election

Commissioner. In none of the cases the victim or her parents

were party. Therefore, there is no substance in the submission Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

of learned counsel for the appellants that for land dispute/any

dispute the present case was lodged. Moreover, it is highly

unbelievable that for any hidden property dispute between the

agnates a girl would make a self-humiliating statement against

her own chastity, honour and dignity.

9. Appellants have hammered the prosecution case

on the basis of following discrepancies/ contradictions:-

According to the prosecutrix, her both parents had gone to

Banaras on the date of occurrence; whereas her mother has

deposed that she alone had gone to Banaras and her father

deposed that he had not gone to Banaras; rather he was in the

village itself.

10. The aforesaid minor discrepancy cannot be

taken as running contrary to the main allegation levelled by the

prosecutrix. Both the parents of the victim are illiterate. Hence,

if the mother states that she returned after two days of

occurrence from Banaras and her fardbeyan was recorded only

on the third day, the aforesaid is not going to make any

difference on the trustworthiness of the prosecution case.

PW 3 deposed that at Kaithwaliya no treatment was

given to the victim whereas the victim stated that she got

treatment at Kaithwaliya also. The victim says that she was Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

hospitalized in the government hospital for four days; whereas

her parents says that she was hospitalized for 15 to 20 days/20

to 25 days. The aforesaid exaggeration might be result of the

expectation of the illiterate parents that the perpetrator of the

crime would be meted out with severe punishment. The

aforesaid conflict is separable and cannot tell upon

trustworthiness of the main allegation levelled. The prosecutrix

and her parents are consistent that prior to the present

occurrence one Sudhir Sahani had ravished the same prosecutrix

and for that a criminal case was going on and Sudhir was in

custody on the date of examination of PW 5. Only for the reason

that the prosecutrix deposed that sudhir is trying to compromise

the case would not make the victim unbelievable.

11. On careful consideration of the prosecution

evidence, I am of the view that the prosecutrix is consistent in

material particular from very beginning, i.e., her statement

recorded under Section 161 Cr.P.C., 164 Cr. P.C. and thereafter

as prosecution witness No.1 during trial in the matter of place of

occurrence, manner of occurrence, date and time of occurrence

and identity of the perpetrator of the crime. The witness has

withstand the test of cross-examination and minor discrepancy

as to who reached first or where she was carried first for Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

treatment would not make her unworthy of credence. Her

testimony finds corroboration from the evidence of PW 2, who

reached at the time of incident, and from other witnesses who

claims to have heard about the occurrence. The medical opinion

is not totally inconsistent with the version of the prosecutrix.

Before information to the police or medical examination, the

victim was taken to different places. Hence, if some of the signs

of sexual assault, on physical observation, was not noticed on

the person of the victim by the doctor that cannot make the

victim unreliable. It is consistent case of the prosecution that

the victim was aged about ten years on the date of occurrence.

The doctor has assessed her age between 11 to 13 years. The

aforesaid evidence has not been contradicted or confronted by

the defence. Though the evidence of exact age of the victim is

not available on the record. However, the difference of the age

of the victim and age of getting majority is so wide that any

prudent person can come to the conclusion that the victim was a

child on the date of occurrence. Therefore, in my view,

conviction of appellant Sharma Sahani does not require any

interference. Since the learned trial Judge has awarded

minimum punishment prescribed under law to Sharma Sahani

the same also does not require any interference. Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

12. In the result, the impugned judgment of

conviction and sentence passed against appellant Sharma Sahani

is hereby affirmed and Cr. Appeal (SJ) No. 2459 of 2017 stands

dismissed.

13. So far appellants of Cr. Appeal (SJ) No. 1850 of

2017 are concerned, there is no evidence that their act is covered

by the definition of the offence under Section 17 of the POCSO

Act, 2012, which reads as follows:

"17. Punishment for abetment.-

Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence.

Explanation.- An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy or with the aid, which constitutes the abetment."

14. Evidently, there is no prosecution case that

these appellants had abetted any offence under the Act and the

offence was committed in consequence of the abetment. Hence,

conviction of these appellants under Section 17 of the POCSO

Act is not sustainable in law. Accordingly, the impugned

judgment of conviction and sentence passed against the

appellants of Cr. Appeal (SJ) No. 1850 of 2017 stands hereby Patna High Court CR. APP (SJ) No.2459 of 2017 dt.08-04-2021

set aside and the appeal is allowed. Appellants, namely, Madan

Sahani, Munna Sahani, Jagdish Sahani and Nitish Sahani @

Niteesh Sahani, are exonerated from the liability of their bail-

bonds.

(Birendra Kumar, J) Mkr./-

AFR/NAFR
CAV DATE                26.03.2021
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