Matiur Rahman vs The State Of Bihar
2021 Latest Caselaw 112 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.1429 of 2020
   Arising Out of PS. Case No.-16 Year-2004 Thana- AAJAM NAGAR District- Katihar
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Matiur Rahman, S/o Md. Khalil Ansari, Resident of Village- Barhmmain Beoggaon, P.S.- Azam Nagar, Distt- Katihar.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Sagir Ahmad, Advocate.

Mr. Suresh Prasad Sah @ Baranwal, Advocate. For the Respondent/s : Mr. Bipin Kumar, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 12-01-2021 The sole appellant Matiur Rahman has questioned

the correctness of his conviction by judgment dated 27.02.2020

and order of sentence dated 03.03.2020 passed by learned

Additional District Judge cum Special Court, Katihar in

Sessions Trial No. 548 of 2004 arising out of Ajam Nagar P.S.

Case No. 16 of 2004.

2. By the judgment under challenge, the appellant

was found guilty for the offences under Sections 450 and 376 of

the Indian Penal Code and has been ordered to undergo rigorous

imprisonment for seven years and to pay a fine of Rs. 10,000/-

for the offence under Section 450 IPC and to undergo rigorous Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

imprisonment for seven years and to pay a fine of Rs. 40,000/-

for offence under Section 376 IPC. The amount of fine would go

to the victim and the sentences have been ordered to run

concurrently. In default of payment of fine, rigorous

imprisonment of one year has been awarded.

3. The prosecution case as disclosed in the written

report, dated 26.02.2004 of PW-6 Md. Qurban Ansari, is that the

informant was away, from his home in village-Brahmain, P.S.-

Ajam Nagar, District-Katihar, in connection with his livelihood.

On 23.02.2004 at about eleven in the night, his daughter aged

about 15 years was in the house. The appellant, all of a sudden,

entered into the house and ravished her at the point of pistol and

dagger. The victim became unconscious. When the people of

nearby came there, the victim narrated the incident. The written

report is as exhibit-1 on the record.

4. During trial, the prosecution examined altogether

six witnesses. PW-1 Lomhar Khatoon and PW-3 Sabera

Khatoon, about whom the victim stated in her deposition that

they are her neighbours and they were also sleeping along with

her in the night of occurrence and they were expelled from the

house by the appellant before committing the rape, have turned

hostile. Likewise PW-2 Rukhsana Khatoon who had stated Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

before the police that she heard about the occurrence, also

turned hostile during trial. PW-4 Kaibul Nisha and PW-6 Md.

Qurban Ansari are parents of the victim girl and they have

supported what the victim had narrated to them.

5. PW-5 the victim girl who was examined on

22.08.2008 deposed that the occurrence took place about four

years ago. It was night at eleven. The victim was sleeping in her

house. The two girls of the neighbour hood Lomhar Khatoon

and Sabera Khatoon were also sleeping along with her. The

parents had gone to brick kiln where they were labour. At the

time of occurrence, the appellant came along with pistol and

dagger in his hand and threatened to kill her. The appellant

asked both the girls to go away and thereafter forcefully

ravished to the victim girl. Next day, the parents came to whom

she narrated the incident. The parents took her to the local

Mukhiya and thereafter to the police station where the case was

lodged.

6. In the cross-examination, the victim stated that

the parents had reached home at about 10:00 am following the

night of occurrence. When the parents had come, she was

unconscious and she could gain consciousness at 2 PM only.

She further stated that she had not sustained any injury on any Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

part of her body during the occurrence. The witness denied her

knowledge about any enmity between the local Mukhiya and the

appellant. In the cross-examination, PW-4 also stated that she

reached at home on the following day after hearing about the

occurrence and when she reached, the victim was unconscious

and she could gain consciousness at 2 PM. Thereafter, she went

to Md. Naimul, the local Mukhiya. PW-6 also deposed that he

reached home at about 10 am in the next morning and the victim

narrated about the incident to her mother from whom this

witness got the knowledge. There is nothing in the cross-

examination of these prosecution witnesses, especially the

victim girl and her parents to disbelieve their testimony.

7. Mr. Sagir Ahmad, learned counsel for the

appellant would submit that there is delay of three days in

reporting the matter to the police and in the meantime the

prosecution contacted the local Mukhiya with whom the

appellant had enmity, as such chances of deliberation and

concoction cannot be ruled out. The prosecution has not

examined the said Mukhiya as a witness. The testimony of the

victim is not corroborated by PW-1 to PW-3 nor any other

independent witness has supported the victim. The investigating

officer or the doctor, who allegedly examined the victim, were Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

not produced as prosecution witnesses. Due to the aforesaid

serious infirmities and lapses on the part of the prosecution, the

conviction on the sole testimony of the victim girl is not

sustainable. The learned trial Judge has not properly considered

the aforesaid infirmities in the prosecution evidence.

8. To contra, Mr. Shyam Kumar Singh, learned

Additional Public Prosecutor for the State would contend that

the law is well settled that in a case of rape, there is no need for

corroboration of the testimony of the victim unless the same

suffers from material contradictions or inherent improbabilities.

If the victim is consistent in her testimony, the law does not

require that there must be some corroboration for apparent

reason that a victim of rape would never speak anything false

against the appellant which would not only affect the appellant

rather would be looked upon as humiliating self statement

against herself.

9. The law is well settled by a catena of decision

that the testimony of victim of rape stands on a par with an

injured witness and there is no need for corroboration of the

same if the testimony of the victim is found to be consistent and

unshakable. Unless there is material contradiction or

exaggeration in her evidence, the Court should be reluctant to Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

seek for corroboration.

10. 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, 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 Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

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 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 Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

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 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 Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

strikes the judicial mind as probable."

11. 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.

12. In State of Himachal 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.

13. The victim of the present case is consistent in

her testimony. There is no material contradiction or infirmity in

her statement to doubt the veracity of the statement and to go for

corroboration. Moreover, the victim is corroborated by other

prosecution witnesses who stated that she disclosed about the

occurrence to them soon after gaining the consciousness.

14. In the case of Munna Vs. State of Madhya Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

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

Court observed that while absence of injuries or absence of

raising alarm or delay in FIR may not by itself be enough to

disbelieve the version of the prosecutrix in view of the statutory

presumption under Section 114A of the Evidence Act unless the

statement has inherent infirmities, creating doubt about its

veracity.

15. In the case of Tulsidas Kanolkar V. The State

of Goa reported in AIR 2004 SC 978, the Hon'ble Supreme

Court while considering the issue of delay in lodging the FIR

held:

"...............In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding prosecution case and rebutting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not.

In a case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case.

16. It does not inspire confidence that for aforesaid

uncertain and unproved plea of the defence that the local

Mukhiya had enmity with the appellant, hence the Mukhiya had

set up the victim against the appellant. A victim of rape would

not make such statement in public which would not only go

against the accused only rather would be self humiliating

statement against the dignity of the victim as well.

17. As the factual scenario of this case reveals the

victim was alone in her house at the time of occurrence. When

the illiterate parents who were labour at a distant brick kiln,

returned home next day, to the best of their wisdom,

complained to the local Mukhiya about the occurrence and

thereafter reported the matter to the police. The parents of the

victim of rape would naturally think twice over disclosure of

such incident to the public which would be humiliating for the

victim also. Therefore, in my view, the delay of three days in

reporting the matter to the police is satisfactorily explained in Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

absence of any material to suggest that the Mukhiya and the

appellant were on inimical term and the Mukhiya took undue

advantage of the situation. Only for the reason that PW-1 to

PW-3 turned hostile the testimony of the victim cannot be

doubted. The local Mukhiya was not a material witness of the

occurrence, hence his non-examination is not fatal for the

prosecution case.

18. Likewise non-examination of the Investigating

Officer or the Doctor has not caused any prejudice to the

appellant. Even at the time of argument nothing was brought to

the notice of the Court as to under what manner the defence of

the appellant has prejudiced due to non-examination of the

Investigating Officer. However, learned counsel for the

appellant had contended that non-examination of the doctor has

seriously prejudiced the appellant inasmuch as the doctor who

examined the victim on 27.02.2004 did not find any

spermatozoa in the vaginal swab rather the doctor was of the

opinion that the hymen of the victim was old ruptured and the

victim was a habitual sex user.

19. The original medical report is attached with the

case diary available on the record and for incidental purpose the

Court had gone through that. Even if the opinion of the doctor is Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

taken at its face value, it would not be treated as evidence that

no rape was committed. A doctor is not an expert of whether

rape was committed or not. Rape is defined in Section 375 of

the Indian Penal Code which contains different acts including

slightest penetration of the penis into the vagina to constitute the

offence of rape. In this case, the victim consistently stated that

she was raped by the appellant and she was not cross-examined

about the nature of rape committed. Hence her otherwise

trustworthy evidence cannot be doubted for non-examination of

the doctor. Moreover, this Court has already held that the law

does not require that victim of rape must be corroborated by

medical evidence or other evidence unless her testimony suffers

from inherent infirmities or contradictions.

20. Thus, this Court has no hesitation to concur

with the finding of the learned Trial Judge that the appellant

committed house trespass and rape on the victim. As such the

judgment of conviction passed against the appellant is hereby

affirmed. This Court does not find any reason to interfere with

the order of sentence as the learned trial Judge has awarded the

minimum sentence prescribed under the law for the offence of

rape and both the sentences awarded have been ordered to run

concurrently.

Patna High Court CR. APP (SJ) No.1429 of 2020 dt.12-01-2021

21. Therefore, this appeal stands dismissed as

devoid of merit.

Birendra Kumar, J)

Mantreshwar/-

AFR/NAFR              A.F.R.
CAV DATE              06.01.2021
Uploading Date        12.01.2021
Transmission Date     12.01.2021