Rajendra Paswan @ Mauga vs The State Of Bihar
2022 Latest Caselaw 4208 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.265 of 2016
     Arising Out of PS. Case No.-128 Year-2012 Thana- BODHGAYA District- Gaya
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Rajendra Paswan @ Mauga, S/o Late Nanhak Paswan, R/v- Bodh Gaya Harijan Colony, P.S.- Bodh Gaya, Distt- Gaya.

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

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

For the Appellant/s    :       Mr. Vijay Kumar Sinha, Advocate
For the Respondent/s   :       None

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR CAV JUDGMENT Date : 03-08-2022

By this appeal, appellant/convicted accused,

Rajendra Paswan @ Mauga is challenging the Judgment and

order dated 12.04.2016 passed by the learned 9th Additional

Sessions Judge, Gaya in Sessions Trial No. 50 of 2016 between

the parties, thereby convicting him of the offences punishable

under Sections 376 and 323 of the Indian Penal Code and

sentencing him to suffer rigorous imprisonment for ten years

apart from imposition of fine of Rs.5,000/- and default sentence

of further rigorous imprisonment for two years for the offence

punishable under Section 376 of the Indian Penal Code. He is

sentenced to pay fine of Rs.500/- and in default to undergo

imprisonment for seven days for the offence punishable under

Section 323 of the Indian Penal Code. For the sake of Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

convenience, the appellant shall be referred to in his original

capacity as "an accused".

2. Facts leading to the prosecution of the accused

projected from the police report can be summarized thus:-

A. First Informant- P.W. 6 Mr. R. (identity

concealed) used to reside at village - Mohanpur under the

jurisdiction of Nalanda Police Station along with his family

members including his wife P.W. 1 Mrs. K. (identity concealed),

son P.W. 7 Mr. K. (identity concealed) and the victim of the

crime in question Ms. J. (identity concealed), who at the

relevant time was aged about five years.

B. The incident allegedly took place on 24.05.2012.

On that day, the accused enticed and took P.W. 4 Ms. J. to the

newly constructed latrine at the S.T. Stand of the village. There

he had committed forcible sexual intercourse with the victim

female child. Thereafter the accused gave a coin of Rs.1/- to the

victim for having eatables. The victim returned to her house and

told her mother P.W. 1 Mrs. K. that she is suffering pain at her

private part. Her mother checked and found that there was

injury to the private part of the victim and blood was oozing

from it. Upon being asked, the victim female child disclosed the

incident to her mother P.W. 1 Mrs. K. Thereupon, P.W. 1 Mrs. Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

K. went to the accused who used to reside in the neighbourhood

for questioning him. The accused then assaulted P.W. 1 Mrs. K.

and had beaten her by pulling her hair.

C. After returning of P.W. 6 Mr. R. from work, he

came to know about the incident of commission of rape on his

minor daughter. He, therefore, went to the Police Station Bodh

Gaya and lodged report against the accused which has resulted

in registration of Crime No. 128 of 2012 for the offences

punishable under Sections 376, 323 and 504 of the Indian Penal

Code.

D. The victim female child was then sent to

Prabhawati Hospital, Gaya, where P.W. 5 Dr. Punam Kumari

had examined her. Statement of witnesses came to recorded and

on completion of investigation, the accused came to be charge

sheeted.

E. The learned trial court framed and explained

the charges to the accused. He pleaded not guilty and claimed

trial.

F. In order to bring home the guilt to the accused,

the prosecution has examined in all nine witnesses. The defence

of the accused was that of total denial. He however did not enter

in the defeance.

Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

3. After hearing the parties, by the impugned

Judgment and order, the learned trial court was pleased to

convict the accused and to sentence him as indicted in the

opening para of this Judgment.

4. Heard the learned counsel for the

appellant/accused. In his submission, the prosecution has failed

to prove the guilt of the accused on the basis of evidence

adduced by it. None appeared for the State.

5. I have carefully examined the record and

proceedings and I have considered the submissions so advanced

by the learned counsel for the appellant/accused.

6. The case in hand is that of commission of rape

on the victim female child P.W. 4, Ms. J. By now, it is well

settled that rape is a ghastly act which leaves the victim

shattered for the life as it causes not only physical but emotional

and psychological trauma to the victim. Sexual activities with

young girls of immature age have a traumatic effect on them,

which persists throughout the life of such victims. It is also well

settled that the victim of offence of rape is not an accomplice,

but she is the victim of lust of another person. Her evidence,

therefore, stands on higher pedestal than the evidence of an

injured witness. Therefore, if totality of circumstances emerging Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

on record discloses that the victim of such offence does not have

any motive to falsely implicate the accused, then, it is absolutely

not necessary to search for any corroboration to the evidence of

the victim of such offence and the court is generally bound to

accept version of such victim. Let us therefore examine whether

the victim of the crime in question is a witness of truth and her

testimony can be relied upon her for blessing the conviction.

7. P.W. 4 Ms. J, at the relevant time was stated to

be a female child aged about five years. While in the witness

box on 03.12.2014, she had disclosed her age as seven years.

Therefore, the learned trial court had put some preliminary

questions to her in order to ascertain her competency to depose

and her understanding of questions which may put to her. The

learned trial court was satisfied regarding the intellectual

capacity of the victim female child and her ability to give

rational answers to the questions put to her. That is how

examination-in-chief of the victim commenced. It is in evidence

of P.W. 4 Ms. J. that on the day of the incident, she was playing

outside her house. The accused enticed her and took her beyond

the boundary wall. Then as per version of Ms. J., the accused

removed her panty and committed dirty act with her. Then the

accused gave a coin of Rs. 1/- to her. She returned to her house Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

and disclosed the incident to her mother. The victim female

child identified the accused in the dock as a person who had

committed dirty act with her and who had given a coin of Rs.1/-

to her. To test the veracity of her version, the victim female

child was cross-examined. In her cross-examination it is brought

on record that the accused used to reside in her neighbourhood

and her father used to work as Rajmistri. She had stated that

prior to the incident there was some quarrel between her parents

and the accused over the issue of grazing of a cow. She further

stated in her cross-examination that previously she had suffered

injury because of iron rod of the compound and that was a

bleeding injury. She was then taken by her parents to

Biharsharif.

8. From this evidence of the victim of the crime in

question, it is not possible to infer that she has been tutored to

depose a lie against the accused. No suggestion to that effect

was made to her. Sustaining of bleeding injury because of iron

rod of the compound previously cannot be attributed to the

incident of commission of rape on her by the accused. The

cross-examination on this aspect is a halfhearted cross-

examination. It was not suggested to the victim female child that

she sustained bleeding injury to her private part because of the Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

iron rod of the compound. This reference in the cross-

examination was to some other instance of sustaining wound by

the victim of the crime in question. Hence it is not possible to

doubt the version of the victim which is clear, cogent and

consistent since beginning.

9. P.W. 5 Dr. Poonam Kumari was the Medical

Officer of the Prabhawati Hospital, Gaya. She had examined

P.W. 4 Ms. J. on 26.05.2012. As per version of this witness,

upon internal examination of P.W. 4 Ms. J., she found that Ms. J.

had suffered an abrasion over labia minro and two posterior

commissure of size of 1/4" X 1/4" X skin deep. She further

deposed that the victim was having a tear of vestibule together

with hymenal tear extending from 8 O' clock to 11 O' clock

position. Internal examination of this tiny tot was conducted by

the Medical Officer under Anaesthesia. With this clinical

finding, the Medical Officer had opined that P.W. 4 Ms. J. was

subjected to rape. In cross-examination of P.W. 5 Dr. Poonam

Kumari, it is brought on record that a hymenal tear can be

caused by a pointed weapon or pointed nail. However it was not

suggested to the victim of the crime in question that she had

ever suffered an injury to her vagina by a pointed weapon or

pointed nail. Hence it cannot be inferred that such injuries to the Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

victim was attributed to the same weapon or nail and not to the

act of the accused. The injury to the private part of the victim as

such was certainly due to the act of forcible sexual intercourse

committed by the accused. Thus medical evidence certainly

corroborates evidence of the victim of the crime in question.

10. P.W. 5 Dr. Poonam Kumari had while noting

the general condition of P.W. 4 Ms. J. has noted that she was

having height of 3' and 4.5" and was weighing 14 kgs. This

finding of the Medical Officer coupled with the fact that the age

stated by P.W. 4 Ms. J. while in the dock is not disputed by the

accused, unerringly points out that the victim was minor female

child at the time of the incident in question.

11. P.W. 1 Mrs. K. in her evidence has stated that

on return of her daughter to the house, her daughter disclosed

that she was suffering from pain at her private part. This mother

checked the private part of the victim and found that there was

injury to the vagina and blood was oozing there. P.W. 1 Mrs. K.

has deposed about former statement of the victim i.e. P.W. 4 Ms.

J. to the effect that the accused had committed rape on her after

taking her to the newly constructed latrine of the S.T. Stand.

This former statement of the victim made to her mother is

certainly admissible under Section 157 of the Evidence Act and Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

is corroborating the evidence of the victim. There is nothing in

cross-examination of P.W. 1 Mrs. K. to doubt her version. On

the contrary, her cross-examination shows that she herself has

noticed blood on the vagina as well as legs of her daughter.

12. P.W. 1 Mrs. K. has further deposed that when

after hearing about the incident from her daughter she went to

the accused to question him, the accused had assaulted her by

pulling her hair. From her cross-examination it is seen that the

incident of assault on her by the accused continued for

sometime. Even in the evidence of this witness, nothing is there

to doubt her version or possibility of false implication.

13. P.W. 6 Mr. R. has stated that after return to the

house from work, he came to know about the incident and

therefore, he lodged the report Ext. 2 against the accused with

the police station.

14. P.W. 7 Mr. K. is brother of the victim. He has

witnessed the fact that the accused had assaulted his mother. He

has also spoken about former statement of the victim to the

effect that the accused had committed rape on her. The said

statement corroborates the version of the victim and is

admissible under Section 157 of the Evidenced Act.

15. P.W. 8 Ashish Paswan who is resident of the Patna High Court CR. APP (SJ) No.265 of 2016 dt.03-08-2022

that locality had witnessed the quarrel between P.W. 1 Mrs. K.

and the accused. P.W. 2 Musarina Khatoon and P.W. 3 Md.

Javed have turned hostile to the prosecution. P.W. 9 Dev Bihari

Sharan had proved his signature on the seizure list prepared by

the Investigating Officer.

16. This is the evidence adduced by the prosecution

in support of the charge against the accused. Evidence on record

as discussed in forgoing para unerringly points out that the

accused had committed forcible sexual intercourse with a minor

female child P.W. 4 Ms. J. and thereafter he had assaulted

mother of the victim namely P.W. 1 Mrs. K. Hence no infirmity

can be found in the impugned Judgment and order. The appeal is

devoid of merit and the same is accordingly dismissed.

(A. M. Badar, J) Bhardwaj/-

AFR/NAFR                NAFR
CAV DATE                29.07.2022
Uploading Date          04.08.2022
Transmission Date       04.08.2022