Gulli Sah vs The State Of Bihar
2021 Latest Caselaw 791 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.3119 of 2017
        Arising Out of PS. Case No.-55 Year-2015 Thana- PIRO District- Bhojpur
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Gulli Sah S/o Ganesh sah, R/o Village-Bambhawar, P.S.-Piro, District- Bhojpur at Ara.

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

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

For the Appellant/s : Mr.Ravindra Kumar, Advocate For the Respondent/s : Mr.Sri Zeyaul Hoda, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 10-02-2021 The sole appellant-Gulli Sah has questioned the

correctness of his conviction in POCSO Case No.03 of 2015

arising out of Piro P.S.Case No.55 of 2015. The appellant,

abovenamed, was charged for offences under Sections 341,376

and 504 I.P.C. as well as under Section 4 and under Section 6 of

the POCSO Act. The appellant was found guilty for offences under

Sections 341 and 376 I.P.C. and 4 of POCSO Act and by a

necessary implication, has been acquitted of the charges under

Section 504 I.P.C. and 6 of POCSO Act, by the impugned

judgment dated 18.08.2017.

2. The learned Trial Judge (A.D.J.-I, Bhjojpur Ara)

awarded 10 years rigorous imprisonment and fine of Rs. 25,000/-

for offence under Section 376 I.P.C. and 10 years rigorous

imprisonment and a fine of Rs.10,000/- for offence under Section Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

4 of the POCSO Act. The sentences would run concurrently. In

default of payment of fine, one year imprisonment has been

ordered. The fine amount is to be paid to the victim, vide

impugned order of sentence dated 23.08.2017.

3. The prosecution case, as disclosed in the fardbeyan of

the victim girl, aged about 13 years, is that at about 8.00 P.M. on

10.02.2015 she had gone to the house of Bindeshwar Sah where

marriage ceremony was going on. At about 12.00 night while she

alongwith her friend Nisha Kumari (P.W.4) was returning to her

house, she slipped in a drain and was cleaning her legs at the

available Hand Pump and Nisha proceeded forward. At the same

time, the appellant came, forcefully took her towards the west side

of village and finding a lonely place, tied her hands with rope and

after opening her garments, ravished her and thereafter the

appellant fled away. Anyhow the victim got herself rid off the

ropes and came to her house, disclosed about the incident to her

Brother and Bhabhi. The parents were at Amarpurt orchard at that

time, hence they were informed. On their return in the morning of

11.02.2015 at 7.00 A.M., they went to complain at the house of the

appellant. The appellant and co-accused-Shravan Sah, who had

been acquitted of the charge under Sections 323,341 and 504 I.P.C. Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

by the same judgment, allegedly abused and Shravan Sah assaulted

with Khanti to her father.

4. The fardbeyan was recorded at 2.00 P.M. on

11.02.2015 and on the basis thereof, the aforesaid police station

case was registered. On the same day at about 8.10 P.M., the

victim was medically examined vide report at Ext.3. On the very

next day on 12.02.2015, the FIR was received by the learned

Special Judge and statement of the victim under Section 164

Cr.P.C. was recorded. A copy of the fardbeyan is Ext.2 and a copy

of the statement of the victim under Section 164 Cr.P.C. is as

Ext.1. After investigation, the police submitted chargesheet vide

Ext.4.

5. During trial. The prosecution examined altogether

eight witnesses. P.W.1 the victim girl has consistently supported, in

material particular, the charge against appellant. P.W.2-Kasturi

Devi, the mother of the victim, who has also put her L.T.I. on the

fardbeyan, has deposed that on getting information, she returned

back to the village. She also protested the act of the accused

appellant. Co-accused-Shravan Sah committed assault against her.

Thereafter she alongwith the victim and her son Mantu Pasi-P.W.7

went to the police station where the victim gave her statement to

the police and put her L.T.I. This witness also put her L.T.I. Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

alongwith her son- Mantu Pasi-P.W.7 on the fardbeyan. P.W.3-

Punam Kumari is Investigating Officer of the case. She has

supported the initial part of investigation done by her. P.W.5-Nisha

Kumari has been declared hostile by the prosecution as she resiled

from her statement before the police. P.W. 4-Dr. Pushpa had

medically examined the victim. P.W.6- Ajay Kumar Pasi and

P.W.7- Mantu Pasi have supported the prosecution case as hearsay

witness of the occurrence. Mantu further deposed that the

fardbeyan of the victim was recorded in his presence. He had put

his L.T.I. on the fardbeyan. The seizure list was prepared and this

witness put his L.T.I. thereon. P.W.8-Kumari Anchal is the second

Investigating Officer, who completed the investigation after

transfer of P.W.3-Punam Kumari.

6. Learned counsel for the appellant contends that

there is material contradiction in the fardbeyan and statement

recorded under Section 164 Cr.P.C. to the extent that in the

fardbeyan it is stated that the victim had gone to see marriage

ceremony in the house of Bindeshwar Sah whereas in her

statement under Section 164 Cr.P.C. she has not named the person

in whose house she had gone to Barat, though she claimed to have

gone in the Barat. Second contradiction is that in the FIR she has

stated that P.W.5 Nisha Kumari was also alongwith her just before Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

the occurrence but in her statement under Section 164 Cr. P.C. she

has not stated like that. He next contends that the victim's

allegation is not corroborated by medical evidence-Ext.3 or

testimony of Dr. Pushpa-P.W.4.

Learned counsel for the appellant contended that seized

cloths were not sent for forensic examination. The seized cloths of

the victim were not sent for forensic examination, however, the

Trial Court judgment reveals that the same was sent for forensic

examination but FSL report was not received. Learned counsel for

the appellant next contends that the conviction is not sustainable in

view of the delayed report of the matter to the police and, in the

meantime, chances of deliberation and concoction can not be

ruled out. Learned counsel for the appellant would contend that

there was previous dispute as goat of the victim's family had

grazed the crop of the appellant's family and that is why false

implication is there.

7. Learned counsel for the appellant has placed reliance

on the case of Santosh Prasad @ Santosh Kumar Vs. State of

Bihar , reported in (2020) 3 SCC 443.

8. Learned counsel for the State-respondent contends

that the law is well settled that the testimony of a victim of rape is

at par to that of an injured witness rather the victim of rape is more Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

reliable, for the reason that she not only speaks against the accused

rather exposes herself for self-humiliation and social disrespect in

the Indian scenario. Moreover, the law does not require

corroboration and conviction is sustainable on the basis of

testimony of the sole witness who is victim of rape unless the

deposition of the prosecutrix suffers from material contradiction,

exaggeration and improvement. The Court may seek for

corroboration, if there is strong motive supported by material on

the record for false implication with such charges. According to

learned counsel the case in hand stands on different footing to that

of Santosh Prasad Case (Supra) as there is no material

contradiction in the deposition of the prosecutrix, she is

corroborated by independent witnesses even the medical evidence

does not completely go against the prosecution case. There is no

evidence of any enmity or dispute between the parties, which were

there in the case of Santosh Prasad Case (Supra).

9. P.W.1, the victim girl deposed that the occurrence

took place seven months ago (she was examined to 20.09.2016). It

was 12.00 night when she alongwith Nisha Kumari was returning

to her house after participating in the Barat which had come in the

house of Bindeshwar Sah a co-villager. On the way, she slipped

into a drain and she went to the Hand Pump to clean her legs. The Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

hand pump was just near her house. In the meantime, the appellant

came and lifted her to a lonely place and tied her hands, opened

her garments and ravished her. After committing rape, appellant

fled away. She opened the ties with her tooth and went to her

house and disclosed everything to her brother-Ajay Kumar Pasi-

P.W.6. Thereafter the parents were informed. They came on the

next morning. The family members had gone to the house of the

appellant to complain where they were abused and assaulted.

Thereafter she went to Piro police station where Daroga recorded

her statement whatever she stated and the same was read over and

she put her L.T.I. on that. Thereafter, the police carried to her for

examination. The Doctor examined her. Ten she gave her

statement in the court (Magistrate) whatever she stated before the

Magistrate was recorded and read over to her and thereafter she

put her L.T.I.

10. On careful scrutiny of the fardbeyan, statement

recorded under Section 164 Cr.P.C. and deposition of this witness,

there does not appear any material contradiction. If she has not

named Bindeshwar Sah in the statement under Section 164 Cr.P.C.

that is immaterial because she had stated that she had gone to see

marriage ceremony in the village on the said night and there is no

evidence that any other marriage was there in the village. Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

Claim of the defence is that there was dispute between

the parties for grazing the crops of the appellant by the goat of the

family of the prosecution. P.W.1, in para-14, denied that she has

any goat. Likewise, her mother-P.W.2 clearly stated that she does

not keep goat rather she keeps cow. There is no other evidence to

substantiate that there was dispute between two families for the

aforesaid reason. Moreover it does not appeal to the judicial

conscience that for such trivial dispute, the victim would make

such a false allegation against the appellant which would not only

be self humiliation rather it would amount to a stigma against her

in the society wherein she lives.

11. On medical examination of the victim, P.W.4-Dr.

Pushpa recorded that the hymen was not intact. Slight bleeding

was noticed from the private parts, however, no other injury was

seen on private part or other parts nor the vaginal swab depicted

any spermatozoa dead or alive. On radiological examination, age

of the victim was between 13 to 16 years. P.W. 4 has not

mentioned in the medical report at Ext.-3, however, for the first

time in the court, she stated that the blood was coming due to the

fact that the victim was undergoing menstrual period. The victim

girl in her deposition in para-13 clearly stated that till date of the

occurrence she had never come to menstrual period. Thus the Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

clinical finding of the Doctor does not lead to the only conclusion

that no sexual assault what committed against the victim. A Doctor

is not an expert to say whether rape was committed or not rather

terms is defined under Section 375 of the I.P.C. and the

Explanation thereof clearly says that non-resistance by the victim

at the time of penetration would not make her a consenting party.

12. The victim is corroborated by trustworthy

evidence of other prosecution witnesses as stated above. Thus the

prosecution case as discussed above clearly shows a different

factual position than that which was available in Santosh Prasad

Case (Supra). In Santosh Prasad case, the Hon'ble Supreme

Court had noticed material contradictions in the deposition of the

prosecutrix. There was not corroboration from any independent

witness or even the medical evidence. Variation in the prosecutrix

version about giving complaint was there. She was not found to be

a "sterling witness" there was delay in lodging the FIR in that case

besides enmity arising out of the land dispute between the parties.

In the present case, there is no infirmity as noticed in Santosh

Prasad Case (Supra) aforesaid.

13. The delay of few hours in lodging of the first

information report, in this case, finds explanation from the

evidence of the Investigating Officer-P.W.3. The Investigating Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

Officer says that she was summoned from Mahila Police Station,

Ara to Piro Police Station. She got this information for recording

statement of the victim at 12.15 P.M. After making entry in the

station diary she proceeded and reached village-Bambhawar

(village of victim) at 2.00 P.M. and recorded fardbeyan of the

victim. Therefore, the delay in lodging of the FIR is well explained

in this case. Evidently no female police officer was there at Piro

Police Station, hence P.W.3 was called on from a distant place.

14. 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 case 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 case or even discrepancies

in the statement of the prosecutrix should not, Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

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 be

viewed with doubt, disbelief or suspicion? The

court while appreciating the evidence of a

prosecutrix may look for some assurance of Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

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 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 Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

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 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 Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

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.

15. Thus it is evident that the victim of rape of this

case is wholly reliable witness as there is no material contradiction

in her testimony and she is consistent throughout to prove the

charges against the appellant. In the aforesaid circumstances, there

is no need for corroboration of her evidence nor the law so

requires. However, for her trustworthiness there is corroboration

by other prosecution witnesses who are wholly reliable. The

medical evidence as discussed above does not totally goes against

the prosecution case. For the laches of the Forensic Science

Laboratory in not sending the report on the bloodstains, the

trustworthy evidence of the victim cannot be brushed aside.

Patna High Court CR. APP (SJ) No.3119 of 2017 dt.10-02-2021

16. Therefore, in my view, the judgment of conviction

requires no interference. Likewise minimum punishment

prescribed under the law has been awarded by the learned Trial

Judge. Hence, the sentence also does not require any interference.

17. Accordingly, this appeal stands dismissed. The

appellant is already serving out the sentence.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR                NAFR
CAV DATE                05.02.2021
Uploading Date          10.02.2021
Transmission Date       10.02.2021