Birju Thakur vs The State Of Bihar
2021 Latest Caselaw 725 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.1534 of 2018
                               In
                 CRIMINAL APPEAL (DB) No.282 of 2018
     Arising Out of PS. Case No.-306 Year-2015 Thana- MALSALAMI District- Patna
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Birju Thakur, S/o Shankar Thakur @ Shiv Shankar Thakur, resident of mohalla Sahadra, Ramdhani Road (Near Devi Mandir), P.S. Malsalami, Patna City, District Patna ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Sandeep Kumar, Advocate Mr. Rohit Raj, Advocate For the Respondent/s : Mr. Ajay Mishra, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 08-02-2021 The sole appellant herein Birju Thakur faced trial

before the learned Additional Sessions Judge-I-cum-Special

Judge under POCSO Act, Patna in connection with Malsalami

P.S. Case No. 306 of 2015 corresponding to Special Case No.

161 of 2015.

2. By the impugned judgment dated 23.01.2018, the

appellant was found guilty for offences under Section 376 of the

Indian Penal Code and under Section 4 of the Protection of

Children from Sexual Offenses Act, 2012. By order dated

29.01.2018, the learned Trial Judge awarded ten years rigorous

imprisonment and a fine of rupees ten thousand for the offence

under Section 4 of the Protection of Children from Sexual

Offenses Act, 2012. Six months simple imprisonment was Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

ordered in case of default of payment of fine. No separate

sentence was awarded for offence under Section 376 of the

Indian Penal Code.

3. The learned Trial Judge transmitted a copy of the

judgment to the Bihar State Legal Services Authority for

deciding appropriate compensation for the victim under

Scheme, 2014.

4. The prosecution case as disclosed in the written

report (Ext. 1) of P.W. 1 Manju Devi is that on 17.12.2015, at

about 05:00 p.m., her daughter aged about 12 years had gone to

the house of the appellant, to bring cake of cow dung, in

Mohalla Sahadra Ramdhani Road, P.S. Malsalami, District

Patna. In a room, where cake was there at the roof of the house,

the appellant took her in his clutches and forcefully ravished

her. The victim came to her house and narrated everything to her

mother, who is informant of this case.

5. On the basis of written report aforesaid,

Malsalami P.S. Case No. 306 of 2015 was registered on the

same day, at about 07:30 p.m., for offence under Section 376 of

the Indian Penal Code and Section 4 of the Protection of

Children from Sexual Offenses Act, 2012 (Ext. 5).

6. The FIR was sent to the Court on the very next

day i.e. 18.12.2015 and the request was made to the Court Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

below for recording statement of the victim under Section 164

Cr.P.C. The learned Sessions Judge authorized a female

Magistrate for the purpose and statement of the victim was

recorded on 19.12.2015, a copy is at Ext-2. The victim was

medically examined on 18.12.2015 and the Doctor submitted

medical report on 27.12.2015. A copy of the medical report is

Ext. 7. Ext. 6 is seizure list disclosing that undergarments of the

victim was seized by the police which was containing stains of

the offence. After investigation, the police submitted charge-

sheet and the learned Trial Judge framed charges under Section

376 of the Indian Penal Code and Section 4 of the Protection of

Children from Sexual Offenses Act, 2012.

7. The prosecution examined altogether seven

witnesses and the defence produced two witnesses.

8. Mr. Sandeep Kumar, learned counsel for the

appellant submits that the testimony of the victim-girl (P.W. 5)

is not corroborated by the medical evidence of P.W. 7. Other

prosecution witnesses of the occurrence are hearsay witnesses.

Hence, the uncorroborated testimony of the victim should not

have been relied upon in the facts and circumstances of this case

because the prosecution had failed to prove the case against the

appellant beyond reasonable doubt.

Next submission is that P.W. 1, the informant of Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

this case has admitted that from the date of lodging of the first

information report till examination of the victim under Section

164 Cr.P.C., the victim and the informant were all along at the

police station, hence, chances of deliberation and concoction

cannot be ruled out.

Learned counsel next contends that the appellant is

first offender and no further complaint was ever received.

Hence, the learned Court below should have awarded minimum

sentence under the law. However, disproportionate sentence has

been passed by the learned Trial Judge.

9. Mr. Ajay Mishra, learned counsel for the State

contends that the law is well settled that the testimony of the

victim is treated on par with that of an injured witness and she

cannot be disbelieved only for the reason that her testimony is

not corroborated by medical evidence, especially, when the

medical evidence is itself shaky one. Learned counsel further

contends that victim is corroborated by other evidences. She is

consistent through out and there is no motive for false

implication by making such allegation which would be taken as

a social stigma against the victim also.

10. P.W. 1 Manju Devi is informant of this case.

She has deposed in Court what she had stated before the police

in the first information report. She is specific that the victim Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

returned weeping and disclosed that the appellant had ravished

her. Thereafter, the informant went to the house of the appellant

to complain but the family members asked to do whatever the

informant wants. Then the matter was reported to the police.

The cross-examination of the witness reveals that the appellant

is a neighbour. At the time of occurrence, the father of the

appellant was cutting fodder for the animals on the ground floor.

She stated that till statement of the victim was recorded under

Section 164 Cr.P.C. she along with the victim was at the police

station. No reason, nor any suggestion from the defence is there,

as to why the victim was at the police station. Might be due to

fear of the appellant or for any other reason not brought on the

record.

11. P.W. 2 Yogendra Kumar Pandit is father of the

victim-girl. He has supported the allegation of rape as a hearsay

witness from his brother Ravindra Pandit.

12. P.W. 3 is Ravindra Pandit. This witness has also

supported the prosecution case as a hearsay witness. The

witness denied that there was any dispute between the two

family for some ornaments.

13. P.W. 4 Mamta Devi has been declared hostile

by the prosecution. She had supported the prosecution case as

hearsay evidence before the police.

Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

14. P.W. 5 the victim-girl deposed that on

17.12.2015 in the evening, she had gone to bring cake of cow

dung from the house of the appellant. When she was about to

return after taking the cow dung, the appellant caught her and

thrashed her on the ground and ravished her. She disclosed

about the occurrence to her mother. She has given her statement

under Section 164 Cr.P.C. before the Magistrate. She was

medically examined by the Doctor. In the cross-examination,

she clearly stated that what she had stated in her statement

before the police was the same which she stated before the

Magistrate. There is nothing in the cross-examination of this

witness to suggest that she has improved her version,

exaggerated in material particular or there is anything to make

false allegation against the appellant. Rather the victim appears

to be a consistent witness in the matter of allegation against the

appellant without any bias or motive against the appellant and,

as such, is a wholly reliable witness.

15. P.W. 6 Parvati Kumari is the Investigating

Officer of the case. She has supported the investigation done by

her.

16. P.W. 7 Dr. Pavita Rai is the Doctor who had

occasion to examine the victim on 18.12.2015 itself. During

clinical examination of the victim, the Doctor found hymen Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

ruptured, though old. No external trauma on private parts or

other parts of body was found and no spermatozoa was found in

the vaginal swab.

Final opinion was inconclusive. There was no

evidence of physical assault clinically. No sign of injury over

any part of body including private parts. The probable

radiological age of the victim was approximately 14 years.

17. It is worth to be noticed that the victim

disclosed her age as 12 years on the date of her examination on

19.12.2015 (Ext. 2) and the learned Trial Judge also assessed

her age as 12 years. She has not been confronted that she is

making wrong statement of her age. The mother of the victim,

who is a competent witness to say on the age of the victim, has

also stated that the victim was of 12 years. P.W. 1 was also not

confronted regarding the age of the victim. The Magistrate, who

recorded the statement of the victim, under Section 164 Cr.P.C.,

assessed the age of the victim as 11 years whereas the victim

had disclosed her age as 12 years. Thus, available evidence

shows that the victim was below 15 years of age on the date of

occurrence.

18. The defence witnesses D.W. 1 Shiva Narayan

Chaudahry and D.W. 2 Kishori Lal have denied that any such

occurrence took place as alleged by the prosecution. According Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

to D.W. 1, for dispute of an ear-ring (Jhumaka) between the

parties, the case was lodged. According to D.W. 2 for dispute

arising out of business of milk between the parties, the false

case has been lodged.

19. For the aforesaid uncertain and unproved plea it

does not inspire confidence that the victim would make a false

statement knowing well that the statement would not go only

against the accused, rather would amount to a self humiliating

statement against the honour and social dignity of the victim.

20. In the case of State of Punjab V. Gurmit

Singh reported in (1996) 2 SCC 384, the Hon'ble Supreme

Court while dealing with the appreciation of evidence of a

victim of rape observed as follows:

"The courts must, while evaluating

evidence, remain alive to the fact that in a

case of rape, no self-respecting woman

would come forward in a court just to

make a humiliating statement against her

honour such as is involved in the

commission of rape on her. In cases

involving sexual molestation, supposed

considerations which have no material

effect on the veracity of the prosecution Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

case or even discrepancies in the

statement of the prosecutrix should not,

unless the discrepancies are such which

are of fatal nature, be allowed to throw

out an otherwise reliable prosecution

case. The inherent bashfulness of the

females and the tendency to conceal

outrage of sexual aggression are factors

which the courts should not overlook. The

testimony of the victim in such cases is

vital and unless there are compelling

reasons which necessitate looking for

corroboration of her statement, the courts

should find no difficulty to act on the

testimony of a victim of sexual assault

alone to convict an accused where her

testimony inspires confidence and is found

to be reliable. Seeking corroboration of

her statement before relying upon the

same, as a rule, in such cases amounts to

adding insult is to injury. Why should the

evidence of a girl or a woman who

complains of rape or sexual molestation Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

be viewed with doubt, disbelief or

suspicion? The court while appreciating

the evidence of a prosecutrix may look for

some assurance of her statement to satisfy

its judicial conscience, since she is a

witness who is interested in the outcome of

the charge levelled by her, but there is no

requirement of law to insist upon

corroboration of her statement to base

conviction of an accused. The evidence of

a victim of sexual assault stands almost on

a par with the evidence of an injured

witness and to an extent is even more

reliable. Just as a witness who has

sustained some injury in the occurrence,

which is not found to be self inflicted, is

considered to be a good witness in the

sense that he is least likely to shield the

real culprit, the evidence of a victim of a

sexual offence is entitled to great weight,

absence of corroboration not with

standing. Corroborative evidence is not an

imperative component of judicial Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

credence in every case of rape.

Corroboration as a condition for judicial

reliance on the testimony of the

prosecutrix in not a requirement of law but

a guidance of prudence under given

circumstances. It must not be overlooked

that a woman or a girl subjected to sexual

assault is not an accomplice to the crime

but is a victim of another person's lust and

it is improper and undesirable to test her

evidence with a certain amount of

suspicion, treating her as if she were an

accomplice. Inferences have to be drawn

from a given set of facts and

circumstances with realistic diversity and

not dead uniformity lest that type of

rigidity in the shape of rule of law is

introduced through a new form of

testimonial tyranny making justice a

casualty. Courts cannot cling to a fossil

formula and insist upon corroboration

even if, taken as a whole, the case spoken

of by the victim of sex crime strikes the Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

judicial mind as probable."

In Ranjit Hazarika V. The State of Assam

reported in (1998) 8 SCC 635, the victim was aged about 14

years and her testimony was corroborated by other evidences.

The evidence of the prosecutrix corroborated by other evidences

was found trustworthy, even though the doctor had opined that

there was no sign of rape. The Hon'ble Supreme Court held that

on the facts corroboration of testimony of prosecutrix by

medical evidence was not essential.

In State of Himanchal Pradesh V. Manga Singh

reported in (2019) 16 SCC 759, the victim was aged about nine

years and she had levelled allegations of rape against her cousin.

The medical opinion was not supporting the factum of rape,

however, the victim was found consistent and corroborated by

other evidences. The Hon'ble Supreme Court dismissed the

appeal against conviction.

21. In the case of Munna Vs. State of Madhya

Pradesh reported in (2014) 10 SCC 254, the Hon'ble Supreme

Court held that the testimony of prosecutrix is on a par with an

injured witness and can be acted upon without corroboration.

Paragraph 11 of the judgment is being reproduced below:

"11. Thus, while absence of injuries or

absence of raising alarm or delay in Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

FIR may not by itself be enough to

disbelieve the version of prosecutrix

in view of the statutory presumption

under Section 114A of the Evidence

Act but if such statement has inherent

infirmities, creating doubt about its

veracity, the same may not be acted

upon."

22. Promptness in reporting the matter to the

police, and completion of all the material exercise at the earliest,

as noticed above, gives an assurance to the correctness of the

prosecution allegation. Only for the reason that till before

medical examination or statement under Section 164 Cr.P.C., the

victim and the informant were at the police station it cannot be

inferred any foul play, especially, when the prosecution case is

consistent from the very beginning pointing the accusation

against the appellant without any deviation, exaggeration or

manipulation.

23. On careful consideration of the prosecution

evidence briefly noted above, it is evident that the victim has

consistently supported the charge against the appellant. There is

no material contradiction or shifting or exaggeration in the

statement of the victim. The victim finds corroboration from Patna High Court CR. APP (SJ) No.1534 of 2018 dt.08-02-2021

other witnesses, who claims to knew about the occurrence, soon

after the occurrence; if the Doctor was of no definite opinion it

could not have concluded that there was no sign of recent rape

as there was no physical injury. The definition of the word

"rape" under Section 375 of the Indian Penal Code itself

explains that non-resistance by the victim during the

perpetration of the crime would not amount to consent of the

victim. Therefore, in my considered view, the conviction against

the appellant is sustainable on the trustworthy evidence of the

victim. In the result, this appeal against conviction stands

dismissed.

24. Since the offence proved is squarely covered

under Section 376(2)(i) of the Indian Penal Code and minimum

punishment prescribed thereunder is ten years. The learned Trial

Judge has awarded ten years rigorous imprisonment i.e.

minimum punishment prescribed under the law. Hence, the

sentence awarded requires no interference.

25. Accordingly, this appeal is dismissed as devoid

of any merit. Appellant is already serving out the sentence.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR                   N.A.
CAV DATE                   02.02.2021
Uploading Date             08.02.2021
Transmission Date          08.02.2021