Sipahi Sah vs The State Of Bihar
2021 Latest Caselaw 22 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.2891 of 2017
  Arising Out of PS. Case No.-185 Year-2015 Thana- BAIRIYA District- West Champaran
======================================================

Sipahi Sah Son of Late Nathuni Sah, R/o Village- Hat Saraiya, P.S.- Bairiya, District- West Champaran.

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

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

For the Appellant/s : Mr. Arvind Kumar Singh, Advocate Mr. Brij Kishor Mishra, Advocate For the Respondent/s : Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 05-01-2021

The sole appellant Sipahi Sah faced trial before the

learned Special Judge under the Protection of Children from

Sexual Offences Act, 2012, at Bettiah the District Headquarter

of West Champaran, in connection with Bairiya P.S. Case

No.185 of 2015 corresponding to S.G.R. No.62 of 2015 for

offences under Section 376 of the Indian Penal Code as well as

under Sections 4 and 6 of the POCSO Act.

2. By the impugned judgment dated 17.08.2017 the

learned trial Judge found the appellant guilty under each of the

aforesaid heads and by order dated 21.08.2017 sentenced the

appellant to undergo rigorous imprisonment for ten years and to

pay a fine of Rs.25,000/- (Twenty five thousand) for each of the

aforesaid offences and the sentences were ordered to run Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

concurrently. In default of payment of fine three months simple

imprisonment was ordered for each of the aforesaid offence. The

fine amount was directed to be paid to the victim.

3. The prosecution case as disclosed in the

fardbeyan of the victim girl, aged about ten years, recorded at

her house on 07.07.2019 at 11:15 AM by Sub-Inspector, Sanjay

Kumar, in presence of her mother, is that on the same day i.e.,

07.07.2015 at about 7:00 AM the victim had gone to answer the

call of nature near the Tower by the side of cold storage. The

appellant, aged about 45 years, came and caught her and

thrashed her on the ground, opened her lower garments and

ravished her and thereafter fled away. The informant came to

her house and narrated the incident to her mother. The mother of

the victim along with victim went to the house of the appellant.

The wife of the appellant started weeping and bowed down on

the feet of her mother praying for excuse. In the meantime, the

police came and the fardbeyan was recorded. Fardbeyan is

available on the record as Exhibit-3.

It is worth to be noted here that PW 7 the

Investigating Officer in para-21 of his deposition stated that the

Officer-in-Charge of the police station heard rumour that in

village Santghat a female child has been ravished. Then the Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

police reached the village and recorded the fardbeyan of the

victim.

4. After investigation the police submitted charge

sheet against the appellant. Before examining the evidence on

the record it would be apt to note the contention of learned

counsel for the parties for and against the impugned judgment.

5. Mr. Arvind Kumar Singh, learned counsel for the

appellant, contends that the impugned judgment and sentences

are not sustainable in law for the serious infirmities in the

prosecution case. Learned counsel would submit that the victim

appears to be a tutored witness as her statement does not find

corroboration from the medical evidence inasmuch as the doctor

did not find any recent sign of rape as on physical observation

there was no injury on the private parts or any other parts of the

body of the victim nor the pathological examination revealed

any spermatozoa on examination of the vaginal swab. Learned

counsel contends that medical examination was done on the date

of occurrence itself which would be evident from the medical

report at Exhibit-2 as well as evidence of the doctor i.e., PW 6.

Learned counsel next contended that there is material

contradiction in between the statement of the victim girl

recorded under Section 164 Cr.P.C. vide Exhibit-A and her Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

statement as PW 1 and the learned trial Judge has ignored both

the aforesaid infirmities in the prosecution evidence.

6. To contra, Mr. Sujeet Kumar Singh, learned

Additional Public Prosecutor for the State, contends that the

occurrence took place on 07.07.2015 at 7:00 AM. The

fardbeyan was recorded on the same day at 11:15 AM and the

statement of the victim was recorded before the Magistrate on

09.07.2015. The victim was medically examined on the date of

occurrence itself at 2:00 PM. The victim is all along consistent

on the allegation against the appellant. Learned counsel

contends that the law is well settled that a victim of rape need

not require corroboration unless there is sufficient material to

doubt the veracity of the victim. Learned counsel has referred in

details to the statement under Section 164 Cr.P.C. of the victim

and her statement in Court for his submission that the victim is

consistent in her statement and is as such a trustworthy witness.

Her deposition is wholly reliable against the appellant. Learned

counsel next contends that doctor is not an expert of rape; rather

the "word" rape is defined under Section 375 of the Indian Penal

Code. The Medical report does not suggest as to what medical

test was adopted for coming to the conclusion that there was no

recent sign of sexual assault. Other material available on the Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

record especially the statement of the victim girl recorded under

Section 164 Cr.P.C. would suggest that the conduct of the doctor

was not fair; rather hostile to the victim. The testimony of the

victim is consistently corroborated by other prosecution

witnesses who have stated that soon after the occurrence victim

disclosed about the occurrence to them and one of the witnesses

stated that he had seen the appellant fleeing from the place of

occurrence just after the occurrence.

7. The prosecution examined altogether seven

witnesses. PW 1 the victim girl deposed that about eight months

ago in the morning at 7:00 AM she had gone to attend the call of

nature. The appellant was hiding there in a Kharol. The

appellant came and caught her and pressed her mouth and

thereafter opened her clothes and ravished her. The victim came

to her house and disclosed everything to her mother. The mother

took her to the police and her statement was recorded. The

fardbeyan was read-over to her and thereafter she put her LTI on

that. In the cross-examination she stated that on the date of

occurrence itself she was examined by the doctor but she does

not know what the doctor has written in the report. If the doctor

says that no case of rape was found that is a false report. She

admitted that she has no enmity with the doctor. Her attention Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

was drawn to her statement under Section 164 Cr.P.C. which

does not reveal any material contradiction. She had stated before

the Magistrate that the appellant had ravished her. The witness

clearly stated in para-19 that the appellant thrashed her on the

dry leaves (Khar) and opened her clothes and ravished her after

pressing on her mouth.

8. I do not find any merit in the submission of

learned counsel for the appellant that the appellant is not reliable

only for the reason that at one place in her statement under

Section 164 Cr.P.C. she stated that her nephew had told her that

appellant ravished her. The witness was not confronted with

this statement at the time of her deposition in Court. Hence,

legally the earlier statement cannot be looked into as required by

Section 145 of the Evidence Act. Moreover, the statement

cannot be looked into in peace meal manner and a complete

reading of the statement of the victim under Section 164 Cr.P.C.

would reveal that she had supported the allegation of rape

against the appellant before the Magistrate also. Thus, this Court

finds that there is no material contradiction or exaggeration to

disbelieve the testimony of the victim, especially when she finds

corroboration from evidence of PW 2 Anwar Dewan who has

supported that the victim disclosed everything, what the Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

appellant had done with her, in his presence and when this

witness reached at the place of occurrence he found the

appellant fleeing. PW 3 Aaysa Khatoon has been declared

hostile by the prosecution for the reason that she had supported

the prosecution case before the police. PW 4 Samphul Khatoon

is mother of the victim girl and she has corroborated that the

victim disclosed about the occurrence to her and she got the

matter reported to the police. PW 5 Abbas Dewan is a witness

on the seizure list whereby the seizure of the apparels of the

victim at the time of occurrence was made by the police. PW 6

Dr. Manju Jaiswal has deposed that on 07.07.2015 at about 2:00

PM she has examined the victim and found a case of old tag of

ruptured hymen present. There was no any external or internal

injury on her private parts. According to pathological

examination there was no spermatozoa found on vaginal swab

examination. According to above physical and pathological

finding there was no recent sign of sexual assault. PW 7

Deepak Kumar Singh is the Investigating Officer of this case.

The witness besides supporting the investigation done by him

deposed that the prosecution witnesses had supported the

prosecution case during investigation. The witness admitted that

he had not sent the clothes of the victim for forensic Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

examination.

9. The defence also produced two witnesses. DW 1

Sabitri Devi deposed that she had heard that a quarrel had

taken place between the two families for picking up mangoes

from the orchard. DW 2 Angad Sah has deposed that for dispute

arising out of plucking the mangoes the present case was

lodged.

10. From the records it is evident that the defence

has put forward three stories as reason for false implication.

First as suggested to PW 1 in para-21 that the appellant is a

neighbour and there is dispute between the parties for house

property that is why false case has been lodged. The victim

categorically stated that the appellant is not her neighbour;

rather he is resident of a different place. PW 4 the mother of

the victim got a different suggestion from the defence in

paragraphs 6 and 10 of her cross-examination that the appellant

is in a business of sale of fruits and vegetables and for payment

of dues of the vegetables and fruits a quarrel had taken place and

false case was lodged. The defence witnesses stated that for

picking up mangoes from the orchard the false case was lodged.

It does not inspire confidence that for aforesaid

uncertain and unproved pleas of the defence, the victim would Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

make a false statement knowing well that the statement is not

only against the accused rather a self-humiliating statement

against the honour of the victim as well.

11. 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 Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

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 her statement to satisfy Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

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 Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

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

judicial mind as probable."

In Ranjit Hazarika V. The State of Assam Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

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.

12. The conduct of the doctor in not mentioning

the physical injuries on the person of the victim in her earliest

report and mentioning the same only after direction by the

Magistrate for re-examination of the victim depicts serious

unfairness against the victim. In her report dated 07.07.2015

the doctor initially stated that no external or internal injury was

noticed on the private parts of the victim. However, the victim,

before the Magistrate, alleged that the concerned doctor is not Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

fair in her case. She was threatening to the Investigating

Officer, when he had carried her for medical test, by saying that

the I.O. may loose his job as there was no apparent injury on the

person of the victim. The victim requested the learned

Magistrate to get her medically re-examined at his level or at the

level of some other Magistrate. After recording her statement

on 09.07.2015 the learned Magistrate re-sent the victim before

the same doctor and the doctor noted on the same injury report

as follows:

"Patient again examined and found three

linear old scratch about 1" in length on left

arm and two very small scratches on

forearm. Age of the injury was more that 48

hours and the injury was caused by hard and

blunt substance."

Evidently, the period of 48 hours corresponds to the

time of occurrence and it was negligence or deliberate act of the

doctor in not mentioning the injuries aforesaid at the time of

first examination. Moreover, the law does not require that there

must be some injury in case rape is committed.

13. Law is well settled that the testimony of the

victim of rape stands at par with an injured witness and there is Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

no need for corroboration of the same if the victim is found to

be a sterling witness. In the present case, the victim has

consistently supported the allegation of rape against the

appellant and there is no material contradiction or exaggeration

in her evidence. The testimony of the prosecutrix leads to

assurance as the occurrence was immediately reported to the

police. The police immediately came into action. The victim

was medically examined on the same day and her statement

under Section 164 Cr.P.C. was recorded within two days. The

promptness in lodging the FIR is an assurance regarding truth

of informant's version. Moreover, the victim finds

corroboration from other prosecution witnesses as referred to

above whose testimony are wholly reliable.

14. Thus, I find that the victim of rape is a wholly

reliable witness and there is no need for corroboration of her

evidence nor the law require so. Moreover, she is corroborated

by other prosecution witnesses. As such, her evidence cannot be

disbelieved even if she is not corroborated by the medical

evidence. Moreover, it has been noticed above that the Medical

Officer was not fair in the matter of proper reporting of the

injuries found on the victim. A doctor is not an expert of rape.

Even a minor penetration would constitute the offence of rape Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

and there is no evidence on the record as to what extent the

penetration was committed or medically found. The inaction of

the Investigating Officer in not sending the seized clothes of the

victim for forensic examination is negligible in the facts and

circumstances of this case as there is no evidence on the record

that stains of offence, i.e., blood or sperm, was there on the

clothes of the victim. Therefore, for aforesaid lapses of the

Investigating Officer, the victim cannot be disbelieved. The

learned trial Judge has elaborately discussed the evidence and

has assigned reason for acceptance of the prosecution evidence.

Therefore, I do not find any reason to interfere with the trial

Court judgment. Accordingly, the same is affirmed.

15. There is no need for interference with the

sentences awarded for simple reason that minimum sentence

prescribed under the law has been imposed by the learned trial

Court. There is no challenge on the age of the victim girl. Even

the doctor before whom she was produced or the learned

Magistrate who had occasion to see her at the time of statement

under Section 164 Cr.P.C. as well as the learned trial Judge are

consistent with the age of the victim disclosed by her or by her

mother that she was a minor on the date of occurrence. Mother

of the victim is a competent witness on the age of the victim.

Patna High Court CR. APP (SJ) No.2891 of 2017 dt.05-01-2021

Therefore, the only trustworthy evidence available on the record

is that the victim was aged about ten years on the date of

occurrence. Therefore, offence of sexual assault committed

against her is covered by Section 376(2)(h) of the Indian Penal

Code as well as under Section 5(m) of the Protection of

Children from Sexual Offences Act, 2012, which defines

aggravated penetrating sexual assault. For both the aforesaid

offences minimum punishment of ten years imprisonment is

there and the learned Court-below has awarded the minimum

sentence. Though sentences were imposed for each of the

aforesaid heads, however, sentences have been directed to run

concurrently. Therefore, the sentences awarded by the learned

trial Judge are hereby affirmed.

                                       The     appellant      is    already   serving   out   the

                      punishment.

16. Accordingly, the trial Court judgment is hereby

affirmed and this appeal stands dismissed.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                21.12.2020
Uploading Date          05.01.2021
Transmission Date       05.01.2021