Kapil Sao vs The State Of Bihar
2023 Latest Caselaw 2079 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.30 of 2016

  Arising Out of PS. Case No.-4 Year-2012 Thana- ARWAL MAHILA District- Jehanabad
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Kapil Sao, Son of Late Ramdas Sao, R/o Village-Angari, P.S.-Kinjar, District- Arwal.

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

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

For the Appellant/s : Mr. Indradeo Prasad, Adv. For the State : Mr. Abhimanyu Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 03-05-2023

We have heard Mr. Indradeo Prasad for

the appellant and Mr. Abhimanyu Sharma for the

State.

2. The appellant has been prosecuted for

raping his daughter even when she had not attained

the age of mensuration. He is also alleged to have Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

raped his other daughters, but no complaint in that

regard was ever filed against him.

3. Mr. Indradeo Prasad, the learned

Advocate for the appellant has taken an alliterative

plea that this kind of accusation is absolutely

unbelievable, especially in a country like India, and he

assigns a peculiar reason for such implication by the

own daughter of the appellant. He submits that the

appellant had complained the police sometimes in the

past that his daughter had been introduced to the

vocation of prostitution. Instead of visiting such

accusation by investigating the matter, the daughter

of the appellant was made to file a case against him.

4. In fact, this explanation itself is

unacceptable to us.

5. Be that as it may, we propose to

examine this case on the basis of evidence adduced

at the trial.

6. This appeal is directed against the Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

judgment and order of conviction and sentence dated

09.09.2015 and 11.09.2015 respectively, passed in

Sessions Trial Nos. 658/2012/01/2015 arising out of

Arwal (Mahila) P.S. Case No. 04 of 2012, whereby

the appellant has been convicted for the offence

under Section 376 of the Indian Penal Code and has

been sentenced to undergo rigorous imprisonment for

life, to pay a fine of Rs. 20,000/- and in default of

payment of fine, to further undergo imprisonment for

two years.

7. One of the daughters of the appellant

(hereinafter referred to as 'X') lodged a fardbeyan

before the Officer-in-Charge of Mahila Police Station,

Arwal on 21.06.2012, alleging that her father had

been subjecting her to sexual misdemeanors for the

last five years. When she had once complained about

this to her mother, she was rebuffed and was asked

to keep quiet. When the brother of the prosecutrix

was told about the incident, he too took a peculiar Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

view of matter and said that only because the victim

is asked to work at home, that she has come up with

such a weird allegation. It has also been alleged by

'X' that on one occasion, her younger sister

(hereinafter referred to as 'Y') had seen such act of

her father with her and had also complained to her

mother about the same, but she too was silenced by

the family members. 'X' has, therefore, alleged that

in this act of exploitation, her father, mother and the

brother are responsible.

8. On 20.06.2012, i.e., a day before the

F.I.R. was lodged, the father, mother and the brother

of 'X' had assaulted her for her refusal to marry a

person who was physically disabled and was also

double her age. This alliance was also opposed by

her sister (hereinafter referred to as 'Z') , who also

was a victim of the lust of her father, but she had

never complained about any one of such incidents in

her life to any one for fear of any public opinion and Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

social ostracisation of the family and particularly her.

9. On the basis of the afore-noted

fardbeyan statement, Arwal (Mahila) P.S. Case No.

04 of 2012 was registered for investigation for the

offence under Section 376 of the Indian Penal Code.

10. The police, after investigation,

submitted charge-sheet against the appellant, but did

not send up the mother and the brother of the

prosecutrix for paucity of any evidence against them.

It may also be noted here that on such report having

been lodged by 'X', the Officer-in-Charge/I.O.

immediately swung into action and requested for

constitution of a Medical Board for the medical

examination of 'X'.

11. On 23.06.2012, a Medical Board was

constituted under the chairmanship of Dr. Manjul

Kumar, Dr. Mahendra Sharma, Dr. Madhu Sinha

(P.W. 4) and Dr. Vijay Pratap Singh (P.W. 3).

Though the medical report does not indicate any Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

incriminating material against the appellant, but that

does not assume any significance as the allegation of

rape was of a much anterior date. Thus, no external

injuries were found on either labia majora or minora

and no signs of abrasion on inner thigh was also

available. The medical report indicated that the

hymen was ruptured, indicating that the victim was

subjected to sexual intercourse in the past. On the

basis of external signs, size of the tooth and

ossification test, she was found to be 17 to 18 years

of age. As noted above, even on those medical

findings, it was difficult to prove or determine any

sexual offense mark of any past incident.

12. At the trial, apart from 'X' and 'Z',

the prosecutrix and her elder sister, Dr. Vijay Pratap

Singh and Dr. Madhu Sinha were also examined. The

Judicial Magistrate (Ms. Rachana Raj), who had

recorded the 164 Cr.P.C. statement of 'X', has also

been examined as P.W. 6. Mr. Gajendra Kumar, the Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

I.O. of the case, has been examined as P.W. 5. The

164 statement of 'X' and the medical report of the

Board have been exhibited during the trial.

13. P.W. 1 ('X'), at the time of deposing

before the Court on 04th of June, 2013, had already

been married, which appears from the statement

made in her voir-dire. She has claimed herself to be

the wife of one Suresh Sao. By this time, she had

become eighteen years of age. She has given a

harrowing account of the experience which she had

while residing with her father/the appellant. She has

narrated the tale of the mother and brother also not

coming to her rescue when such a complaint was

made to them regarding the sexual overtures of her

father. Forced by this, she had to come to the police

station to lodge the case. She was made to see her

statement under Section 164 Cr.P.C., which she

admitted of having made before the Judicial Officer.

Her elder sister ('Z') had fixed her marriage with her Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

husband when she came to know that she was being

pressurized to marry a person of advance age and

with identifiable physical disabilities. She, ultimately,

got married on 09th of January, 2013 and ever since

then, she has been staying in her matrimonial home.

She has admitted in her deposition that she had

never raised any alarm when she was subjected to

such abominable act of her father and except for her

mother and brother, she did not speak about such

experience with any one, either in the family or

outside the family. She was raped for the first time

when she had not even attained the age of

mensuration. She has denied the suggestion to her

that she has lodged the case at the instance of her

elder sister.

14. 'Z' has been examined as P.W. 2,

who has stated before the Court that 'X' had told her

about a year ago about their father having committed

rape on her. She was also subjected to the same Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

treatment at the hands of her father, but she never

complained against such act of her father. She

admitted of having arranged the marriage of 'X' with

an acquaintance of hers. She was married about 12

to 14 years ago and, thereafter, she never visited her

father's place. Whenever she wanted to come to her

home, she chose to visit her aunt instead. She had

met 'X' about three years ago along with her other

family members in West Bengal. At that time, 'X'

had not narrated to her of any incident like that. But

when 'X' was assaulted, she had come for her rescue,

but that time she and her one year old son were also

assaulted by the appellant. It was at that time, that

'X' had narrated about such series of incidents to her.

15. The two doctors, namely, Vijay

Pratap Singh (P.W. 3) and Madhu Sinha (P.W. 4),

who were part of the Medical Board, have testified to

the medical report over which they had put their

signature. They have also denied that such report Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

was collusive or was for any other oblique purposes.

16. The I.O. of this case (P.W. 5) has

stated the sequence of events after the matter was

reported to him. Shortly after the F.I.R. was

registered, on his instance, a Medical Board was

constituted and only thereafter the appellant was

arrested. The house of the prosecutrix was visited by

the I.O., who found it to be a thatched house without

any amenities. He also recorded the statements of

Sujit Kumar, Ranjit Kumar, Saroj Singh etc., none of

whom have been examined at the trial. The

statement of the appellant also was recorded by him.

After finding the accusation to be correct, charge-

sheet was submitted against the appellant. By way

of supplementary report, the mother and brother of

the prosecutrix were found to be innocent.

17. Ms. Rachana Raj (P.W. 6) has further

testified that she had recorded the statement of the

victim on 25th of June, 2012, when the victim had Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

stated before her that her father/appellant had raped

her when she was only 12 to 13 years of age, but

this accusation of the victim was never believed by

her mother. She was again attempted to be raped on

16.05.2012, when she could any how save herself,

but that led to assault on her by the family members.

She narrated all this to her elder sister ('Z'), when

she also confessed before her that she was also

subjected to the same treatment and in her case also,

the mother never believed the accusation. On

20.06.2012, the victim went on to narrate, she was

assaulted by the appellant, whereafter the case was

lodged and the 164 statement was recorded.

18. We have also examined the

statement of victim recorded under Section 164

Cr.P.C., which has been exhibited in this case.

19. Mr. Indradeo Prasad has submitted

that an absolutely false case has been lodged against

the appellant who is a poor coster-monger and who is Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

in custody for the last ten years by now. He further

submits that had the accusation been true, his wife

and son would not have supported him. It has

further been argued that the victim/prosecutrix may

have approached the police station because she was

not desirous of marrying the person with whom the

appellant had fixed her marriage and in order to avoid

such marital proposal, such kind of false case would

have been lodged by her. He further submits that

the evidence, though not overtly, indicates that even

the elder daughter of the appellant was not happy

with him. The elder daughter, it has been argued,

was married about 14 to 15 years ago, who had also

taken to prostitution and the present case has been

lodged against him on the asking of his elder

daughter and the son-in-law.

20. It has further been urged by Mr.

Prasad that the accusation, on face of it, is

unbelievable as a father cannot resort to such lowly Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

act of raping her own daughters and in the present

case, a daughter who had not even come of age.

21. Though not part of the record of the

Trial Court, the counsel for appellant has submitted

that an application under Section 340 Cr.P.C. was

filed by him against the prosecutrix and other

witnesses of this case who have deposed falsely in

the trial proceedings, but that application has been

kept pending, which has really frustrated the effort of

the appellant to prove his bona fides.

22. Mr. Abhimanyu Sharma, the learned

counsel for the State, on the other hand only points

out the specific accusation against the appellant by

her own daughter.

23. After having heard the counsel for

the parties and having perused all the materials

available on record, we find that the accusation

against the appellant hurled by his daughter cannot

be brushed aside lightly. That she ('X') did not Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

complain when she was first subjected to such

abominable act of rape was because she was only 12

to 13 years of age at that time and her mother did

not support her. We do recon that the prosecutrix

comes from a poor family where the only bread-

earner would be the father and under such

circumstances, any misdeed of the father may not be

objected to by the other family members for fear of

being ousted from the home, but that does not

discredit the deposition of 'X'.

24. The converse situation also could be

correct, but we have no reasons to disbelieve the

accusation by the victim. Even if we assume that the

first flash-point for the victim to approach the police

station with such accusation was after the marriage

proposal, which had angered her, but such anger

would not have persisted in her mind when she had

deposed against her father a year later and by which

time she had already been married to a person of her Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

choice.

25. We have carefully examined the

accusation made by P.W. 1, the prosecutrix and her

elder sister, P.W. 2. One would be aghast at the

beastly behaviour displayed by a person who stands

in a special authority of being a father to the victim,

of having committed such an act. The promptness

shown by the I.O. in getting a Medical Board

constituted, where, even before the marriage of the

victim, there were signs of sexual intercourse in the

past, confirms the accusation.

26. The argument of the appellant that

there was no evidence with respect to any forcible

sexual intercourse in near past is of no consequence

as the accusation is of yesteryears and because of

the victim being a person of young age who had not

chosen to make any complaint at that time.

Nonetheless from the Medical Board's report, it

becomes obvious that the victim would not have been Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

stranger to any such sexual act as the hymen was

found to have been ruptured. This development in

the female anatomy could also be generated for other

factors, but we have taken into account the clear

deposition of P.W. 1 that she never came out of her

house and remained inside always, we have no

reasons to come to any other opinion.

27. We are also of the view that unless

forced to the brink, daughters of a father would never

allege such act against him.

28. After having examined the deposition

of the witnesses and having perused the records, we

have no reasons to interfere with the findings of the

Trial Court, whereby the appellant stands convicted

and sentenced for the offence under Section 376 of

the Indian Penal Code.

29. The act of the appellant is

unpardonable. He, instead of being the protector and

provider for her daughter, was over come with lust. Patna High Court CR. APP (DB) No.30 of 2016 dt.03-05-2023

He has made all his family members vulnerable. It is

more shocking than a game-keeper becoming a

poacher or a treasury guard becoming a robber. He

has betrayed the trust. He needs to be convicted and

sentenced appropriately for such a depravity, which

has been done by the Trial Court.

30. The appeal is, accordingly, dismissed.

(Ashutosh Kumar, J)

(Harish Kumar, J) Praveen-II/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          09/05/2023
Transmission Date       09/05/2023