Sekh Magan @ Md. S. K. Magan vs The State Of Bihar
2021 Latest Caselaw 1401 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.912 of 2017
  Arising Out of PS. Case No.-57 Year-2010 Thana- KAHALGAON District- Bhagalpur
======================================================

Sekh Magan @ Md. S. K. Magan, son of late Domi, R/o. Village- Dhanoura, P.S. Rasalpur, District- Bhagalpur

... ... Appellant Versus The State Of Bihar

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

CRIMINAL APPEAL (SJ) No. 1051 of 2017 Arising Out of PS. Case No.-57 Year-2010 Thana- KAHALGAON District- Bhagalpur ====================================================== Md. Nisar son of late Tasleem, resident of village- Dhanoura, P.S. Kahalgaon, Distt- Bhagalpur

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

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

(In CRIMINAL APPEAL (SJ) No. 912 of 2017) For the Appellant/s : Mr.Rajive Ranjan Singh, Advocate For the Respondent/s : Smt. Abha Singh, APP (In CRIMINAL APPEAL (SJ) No. 1051 of 2017) For the Appellant/s : Mr.Jyoti Ranjan Jha, Advocate For the Respondent/s : Mr.Abhay Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 12-03-2021

The appellants, above named, faced trial in

Sessions Trial No.1054 of 2010/785 of 2011, arising out of

Kahalgaon (Rasalpur) P.S. Case No.57 of 2010, before the

learned Additional Sessions Judge-I, Bhagalpur, for offences

under Sections 366A and 376 of the Indian Penal Code. Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

By the impugned judgment dated 31.01.2017 and

sentence dated 08.02.2017 both the appellants were found

guilty for offence under Section 366A of the Indian Penal

Code and were sentenced to undergo rigorous imprisonment

for five years and to pay a fine of Rs.2000/-. In default of

payment of fine the appellants were directed to undergo further

two months imprisonment.

Appellant Sheikh Magan was found guilty for

offence under Section 376 of the Indian Penal Code also and

was ordered to undergo rigorous imprisonment of seven years

and to pay a fine of Rs.5,000/-. In default of payment of fine

three months further imprisonment was ordered. Sentences

against Sheikh Magan were ordered to run concurrently.

2. The prosecution case as disclosed in the written

report of Md. Rahim, the father of the victim girl, is that on

10.02.2010 when the informant and his wife were not at the

village home, co-villager Sheikh Magan and co-villager Md.

Nisad (appellants herein) forcefully lifted to his daughter on a

motorcycle. Co-villager Md. Kalim (PW 1) and Md. Ansar

(PW 2) had witnessed the occurrence of kidnapping and on

their protest against the act of the appellants, the appellants

allegedly threatened them of dire consequences. The Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

informant kept on searching the victim at his own level.

Hence, the matter was reported to the police after delay of nine

days i.e., on 19.02.2010.

3. On the basis of statement aforesaid the above

mentioned P.S. case was registered and after investigation

police submitted charge sheet. During trial prosecution

examined altogether seven witnesses. PW 1 Md. Kalim and

PW 2 Md. Ansar were declared hostile by the prosecution and

attention of the witnesses aforesaid was drawn to their

statement under Section 161 Cr.P.C. made before PW 6

Mahesh Kumar. However, attention of PW 6 was not drawn

that PW 1 and PW 2 had made such statement before him.

PW 3 Bibi Sahana is mother of the victim girl.

She deposed that she got information about the occurrence of

kidnapping of her daughter from PW 1 Md. Kalim and PW 2

Md. Ansar. Identical is the statement of PW 4 Md. Rahim,

who is informant of this case and father of the victim girl. PW

3 and PW 4 are purely hearsay witnesses as they are not

corroborated as to from whom they had heard about the

occurrence inasmuch as neither PW 1 nor PW 2 stated that

they had disclosed about kidnapping to PW 3 or PW 4 nor the

victim (PW 5) has deposed that she had disclosed, about Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

whatever happen against her, to her parents. Thus, the

prosecution case is based on the sole testimony of PW 5 the

victim girl.

PW 6 Mahesh Kumar is Investigating Officer of

the case and PW 7 Dr. Pusp Sudha had medically examined the

victim. PW 6 supported the investigation done by him in a

routine manner. PW 7 Dr. Pusp Sudha deposed that she did

not find any sign of violence present in or outside the private

parts of the victim. No foreign hair was noticed around the

genital part or at the garment of the victim. The report of the

pathological swab did not show the presence of any

spermatozoa. According to the medical report submitted by

some other doctor the age of the victim was below 18 years.

The witness admitted that the victim was examined after five

days of the occurrence.

4. The defence also produced three witnesses.

DW 1 Sheikh Makbul and DW 2 Sheikh Mangla deposed that

they were working as labour along with appellant Magan and

the informant of this case at the N.T.P.C. Barh. There was

dispute for non-payment of the wages to these witnesses as

well as to Mangan by the informant and that is why the false

case was lodged. PW 3 Md. Tahir Hussein deposed that he Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

was never a teacher of the victim girl as claimed by her.

5. Learned counsel for the appellants would

contend that the testimony of the victim girl is shrouded with

suspicion and the conduct of the victim would make it

abundantly clear that she has not come up with clean hands.

Hence, in absence of corroboration conviction cannot be based

or sustained on the sole testimony of the victim of the case.

Reliance has been placed on the case of Santosh Prasad @

Santosh Kumar V. State of Bihar reported in (2020) 3

Supreme Court Cases 443. Learned counsel further contends

that defence put to the prosecution witnesses would reveal that

there was property dispute between the two families for

purchase of some land; whereas the defence witnesses have

stated that for non-payment of wages there was difference

between the appellants and the informant and for that reason

false implication is there. The learned trial Judge had not

considered the aforesaid infirmity in the prosecution case.

6. The learned counsel for the respondent

contends that the prosecutrix has fully supported the charge

against the appellants and in the matter of evaluation of

evidence of the prosecutrix it has been settled by a catena of

decision that the Court must remain alive to the fact that no Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

self-respecting woman will come forward just to make a

humiliating statement against her honour. Learned counsel

further contends that plurality of witness is not the requirement

of law to prove the charge of rape. The prosecutrix of the

present case is wholly reliable.

7. The law is well settled that the evidence of a

victim of sexual assault stands on a par with the evidence of an

injured witness. Corroborative evidence is not an imperative

component of judicial credence in every case of rape. The

Court while appreciating the evidence of a prosecutrix may

look for some assurance of her statement to satisfied its

judicial conscience, since she is a witness who is interested in

the outcome of the charge levelled by her. Reference may be

made to the State of Punjab V. Gurmit reported in (1996) 2

SCC 384.

However, in a case where the testimony of the

prosecutrix suffers from inherent and material improbabilities,

and her conduct depicts a case of suppression of material fact,

the Court may insist/look for corroboration to lend assurance

that no innocent is punished.

In Raju V. State of M.P. reported in (2008) 5

SCC 133, the Hon'ble Supreme Court said that it cannot be Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

lost sight of that rape causes the greatest 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. The accused must also be

protected against the possibility of false implication.

8. In the case on hand, the victim does not say that

she was kidnapped in presence of the villagers. According to

the victim, she was kidnapped when she was on the way to her

school; whereas her father reported to the police that the victim

was kidnapped from the house in presence of the villagers. At

one place the victim says that from 10.02.2010 to 18.02.2010

she was in village Tulsipur and appellant Magan ravished her

on each day. The witness is specific that the people who were

residing in the house at Tulsipur had disclosed the name of the

village as Tulsipur. In the house an old lady was there besides

two to four others. During cross-examination, she deposed that

the appellant Magan took her to village Mordiha from Tulsipur

on a motorcycle and she was kept in a hut-like room. The

appellant Magan disclosed that the people residing in the house

were his relatives. One man and two women including an old

lady were there in the house, besides some children. Here the

victim deposed that from 10th February to 18th February she Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

was in village Mordiha. She was in talking term with the

house inmates at Mordiha. She further deposed that the

appellant was keeping her, thereat, as wife and when appellant

Magan brought her to Kahalgaon for the purpose of

performance of marriage on 19.02.2010, both stayed in a hut

and taking advantage of situation of sleeping mode of Magan,

the victim escaped and went to Kahalgaon police station.

However, her statement was not recorded by the police till

20.02.2010 when Rasalpur Sub-Police Station was informed

and the victim was handed over to Rasalpur police.

9. Thus, the testimony of the victim reveals that

she is suppressing some material fact regarding her kidnapping

and rape inasmuch as she never made any protest or alarm

while travelling along with appellant Magan to different places

nor she made any protest when she was voluntarily going on

foot with Magan to marry with Magan at Kahalgaon.

The house inmates in whose house the victim was

kept in village Tulsipur or in village Mordiha were not

examined by the police nor produced during trial to lend

assurance about the claim of the victim.

10. Once the informant was noticed by PW 1 and

PW 2 that the victim has been kidnapped by the appellants on Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

10.02.2010 and the family members of the appellants showed

their inability to help; rather protested against the complaint of

the informant, the informant should have readily reported the

matter to the police and the delay on the pretext of search of

the victim at his own level creates serious doubt regarding

chances of consultation and concoction, which creates cloud

on the trustworthiness of the prosecution case. Moreover, the

informant is not corroborated by the witnesses from whom the

informant got information about the occurrence.

Thus, the totality of the factual scenario is that the

prosecutrix of this case is not wholly reliable due to sifting and

conflicting statement made by her in material particular as

referred above. There is non-corroboration of her testimony by

any evidence including the medical evidence. The prosecution

case gets shaky due to non-corroboration of the first

information report by the named witnesses or any other

witness as direct evidence. No reasonable explanation is there

as to why the statement of the victim was not recorded by

Kahalgaon Police Station though the victim at her own

appeared before Kahalgaon Police Station on 19.02.2010 and

claims to have narrated the incident to the police officer

thereat.

Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

11. In the case of Rai Sandeep V. State (NCT of

Delhi) reported in (2012) 8 SCC 21, the Hon'ble Supreme

Court said that before relying on the sole testimony of the

prosecutrix the Court must be satisfied that the prosecutrix is a

"sterling witness". Para 22 of the judgment is being

reproduced below:

"22. In our considered opinion, the

"sterling witness" should be of a very high quality

and calibre whose version should, therefore, be

unassailable. The court considering the version of

such witness should be in a position to accept it

for its face value without any hesitation. To test

the quality of such a witness, the status of the

witness would be immaterial and what would be

relevant is the truthfulness of the statement made

by such a witness. What would be more relevant

would be the consistency of the 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. It should be

natural and consistent with the case of the

prosecution qua the accused. There should not be Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

any prevarication in the version of such a witness.

The witness should be in a position to withstand

the cross-examination of 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 persons

involved, as well as the sequence of it. Such a

version should have co-relation with each and

every one of other supporting material such as the

recoveries made, the weapons used, the manner of

offence committed, the scientific evidence and the

expert opinion. The said version should

consistently match with the version of every other

witness. It can even be stated that it should be akin

to the test applied in the case of circumstantial

evidence where there should not be any missing

link in the chain of circumstances to hold the

accused guilty of the offence alleged against him.

Only if the version of such a witness qualifies the

above test as well as all other such similar tests to

be applied, can it be held that such a witness can

be called as a "sterling witness" whose version Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

can be accepted by the court without any

corroboration and based on which the guilty can

be punished. To be more precise, the version of the

said witness on the core spectrum of the crime

should remain intact while all other attendant

materials, namely, oral, documentary and material

objects should match the said version in material

particulars in order to enable the court trying the

offence to rely on the core version to sieve the

other supporting materials for holding the

offender guilty of the charge alleged."

12. As discussed above, in my view, the

prosecutrix does not pass the test of a "sterling witness". A

careful and deep scrutiny of the testimony of the victim it

cannot be completely ruled out that she was not a consenting

party. The prosecution has failed to prove that the victim was

below the statutory age limit to give consent. In State of

Madhya Pradesh V. Munna @ Shambhu Nath reported in

(2016) 1 SCC 696, the Hon'ble Supreme Court held that the

evidence on approximate age of the victim would not be

sufficient to any conclusion about the exact age of the victim.

In this case, prosecution has failed to prove the exact age of the Patna High Court CR. APP (SJ) No.912 of 2017 dt.12-03-2021

victim. Hence, conviction of the appellants would not be safe

in absence of corroborative evidence. Other infirmities in the

prosecution case, as notice above, adds to the doubt against

prosecution version. Hence, the appellants deserve the benefit

of doubt.

The learned trial Judge has overlooked the

aforesaid infirmities in the prosecution case. The ratio decided

in Santosh Prasad's case (supra) squarely covers this case as

the facts and circumstances of the case are identical to Santosh

Prasad's case.

13. In the result, the appellants are acquitted of the

charges levelled against them. Both the appeals, accordingly,

stand allowed.

14. Let appellant Sekh Magan @ Md. S. K.

Magan, who is in custody, be set free at once. Appellant Md.

Nisar is exonerated from the liability of his bail-bonds.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                08.03.2020
Uploading Date          12.03.2021
Transmission Date       12.03.2021