Amar Gosai vs The State Of Bihar
2023 Latest Caselaw 4464 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.718 of 2015
    Arising Out of PS. Case No.-14 Year-2014 Thana- KHIRHAR District- Madhubani
======================================================

Amar Gosai Son of Gulten Gosai Resident of Pehra, P.s Khirhar, District Madhubani.

... ... Appellant/s Versus

The State Of Bihar

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

For the Appellant/s : Ms.Shama Sinha, Advocate

For the Respondent/s : Mr.Ajay Mishra, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)

Date : 11-09-2023

1. This appeal is directed against the judgment of

conviction dated 20.07.2015 and order of sentence dated

23.07.2015 passed by learned 1st Additional Sessions Judge-cum-

Special Judge, Madhubani in G.R. No. 458/14, T.R. No. 4/14

arising out of Khirahar P.S. Case No. 14/ 14, whereby the sole

appellant has been held guilty for the offences punishable under

Sections 376(2)(i) and 323 of the Indian Penal Code (hereinafter

referred to as 'I.P.C.') and Section 6 of the Protection of Children

from Sexual Offences Act, 2012 (hereinafter referred to as the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

'POCSO Act') and has been sentenced to undergo rigorous

imprisonment for 14 years, to pay a fine of Rs. 10,000/- under

Section 376(2)(i) of the I.P.C; rigorous imprisonment for six

months under Section 323 of the I.P.C; and rigorous imprisonment

for 14 years and fine of Rs. 10,000/- under Section 6 of the

POCSO Act, 2012. In default of payment of fine, the appellant has

been directed to suffer further nine months simple imprisonment.

The sentences though have been ordered to run concurrently.

2. The names of the victim and PWs-3, 4, 6 and 9 (who

are informant's sister, mother, grand-father and father,

respectively) have been concealed in the judgment to protect their

prestige and dignity.

3. According to fardbeyan (Ext. 6) of informant (PW-1),

the occurrence took place on 19.02.2014 at about 4:00 PM for

which fardbeyan was recorded by S.I. Ramchandra Mandal,

S.H.O. of Khirhar police station on 20.02.2014 at 11:30 hours at

Sadar Hospital, Madhubani whereafter the FIR was registered.

4. The prosecution case, in brief, is that on the fateful

day i.e. 19.02.2014 at about 4:00 PM when the victim was

cleaning pots at the tubewell, the appellant came near the victim

and took her away to a cattle shed where she was thrown on cot.

The appellant thereafter started pressing her neck. She was gagged Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

by a piece of cloth. The appellant thereafter committed rape upon

her. He also threatened her of dire consequences. It is further

claimed by the informant/victim that when blood began to ooze

out from her body, the appellant while leaving the place again

threatened that if she would disclose about the incident to her

parents or anyone, she would be thrown after being cut into pieces

and theft would be committed in her house. The victim was alone

at the relevant time in her house. When her elder sister came after

washing clothes from the pond, the informant gestured her. Her

sister then freed her. Thereafter, the informant narrated about the

occurrence to her sister. After sometime, the parents of informant

also came to the house who were told about the occurrence.

Thereafter the father of the victim complained to the villagers. It is

further claimed by the informant that many persons gathered at her

house. They called the police. The victim was then brought to the

hospital where treatment was started. It is also claimed by the

victim that prior to this occurrence, the appellant had shown

indecent behaviour which was not communicado by the victim due

to shameness.

5. On the basis of fardbeyan of the informant, Khirhar

P.S. Case No. 14/ 14 dated 20.02.2014 was registered under

Sections 376, 323, 506 of the IPC. Routine investigation followed. Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

The statement of the witnesses came to be recorded and on

completion of the investigation, the appellant was charge-sheeted

under Sections 376(2)(i)(M), 323, 506 of the IPC and Section 6 of

the POCSO Act, 2012, whereafter cognizance was taken against

the appellant under the aforesaid sections. The learned Trial court

was pleased to frame charges against the appellant under Sections

376, 323, 506 of the I.P.C. and Section 6 of the POCSO Act, 2012.

Charges were read over and explained to the appellant to which he

pleaded not guilty and claimed to be tried.

6. In order to bring home the guilt of the appellant,

prosecution examined altogether twelve witnesses. PW-1

(victim/informant), PW-2 Karo Devi, PW-3 informant's sister, PW-

4 informant's mother, PW-5 Sagar Devi, PW-6 informant's grand-

father, PW-7 Jibeshwar Gosai, PW-8 Shiv Narain Gosai, PW-9

informant's father, PW-10 Manoj Kumar Srivastava (J.M., 1st

Class), PW-11 Dr. Rama Jha and PW-12 Ram Chandra Mandal

(I.O.).

Prosecution has relied upon following documentary

evidence on record:-

Ext. 1- Signature of informant/victim on fardbeyan. Ext. 2- Signature of informant/victim on statement of 164 Cr.P.C.

Ext. 3- Victim's signature on seizure list.

Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

Ext. 3/1- Signature of Jai Kumar Gosai on seizure list. Ext. 1/1-Signature of Jai Kumar Gosai on fardbeyan. Ext.4 -Statement under Section 164 Cr.P.C.

Ext. 5-Medical Report Ext. 6- Fardbeyan Ext. 7-Formal FIR.

Ext. 8- Seizure list.

Ext. 9- Charge sheet.

Ext. 10- F.S.L. report.

Prosecution has also proved the material exhibit I as packet of cloth (A), Ext. II as packet of cloth (B) and Ext. III as packet of cloth (C).

Defence of the appellant as gathered from the line of

cross examination of prosecution witnesses as well as from the

statement under Section 313 of the Cr.P.C. is that of total denial.

7. After hearing the parties, the learned Trial court

convicted the appellant and sentenced him as indicated in the

opening paragraph of the judgment.

8. We have heard Ms. Shama Sinha, the learned counsel

for the appellant at sufficient length of time. Following

submissions have been made on behalf of learned counsel for the

appellant:-

The learned counsel for the appellant submitted that the

incident took place on 19.02.2014 at around 4.00 P.M. and the

appellant was arrested from his house on the same day with the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

help of villagers who had detained the appellant in his house but in

spite of the arrest of the appellant and initiation of investigation

by the police on 19.02.2014, FIR was lodged the next day on

20.02.2014 at 11.30.A.M. and this delay has not been explained by

the prosecution which creates doubt regarding the story of

prosecution. The learned counsel further submitted that medical

report prepared by the Board of Doctors is ante-dated and does not

give clear opinion about rape but gives observation that injury may

be due to rape. She further submits that no spermatozoa and semen

was found on the body, private parts and clothes of the victim

which makes the story of prosecution doubtful. The version of

prosecution witnesses are quite inconsistent with the story of

prosecution and none of the prosecution witness is reliable

regarding the occurrence as alleged in the FIR as it is quite evident

from the version of prosecution witnesses that the appellant is

related as grand-father of the informant and defence version has

suggested that the appellant had given loan of Rs. 20,000/- to

father of the victim (PW-9) and when said money was demanded,

the appellant was framed as an accused in the present case though

suggestion has been denied by the prosecution witnesses. There

are glaring inconsistencies in the depositions of the witnesses

which makes the case of the prosecution doubtful. The learned Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

counsel further submitted that no semen or any foreign hair was

detected as per the FSL report of cloth of the victim. Keeping in

view all the aspects, the counsel for the appellant submitted that

prosecution has failed to prove its case beyond all reasonable

doubts and hence, benefit of doubt goes in favour of the appellant.

In this way, the judgment of conviction and order of sentence

passed by the concerned court is without any basis and same is

liable to be set aside.

9. On the contrary, Mr. Ajay Mishra, the learned

Additional Public Prosecutor submitted that from the testimony of

the victim, it would be evident that victim/informant is consistent

throughout regarding the place, manner and the date of occurrence

and the identity of the appellant. He has further submitted that the

victim has not been cross-examined, confronting her with previous

statements for evident reason that there is no contradiction. As

such, the victim is a sterling witness. He further submitted that

PW-1 is victim as well as the informant and sufferer of the said

occurrence herself and her evidence is totally reliable. Other

prosecution witnesses are PW-3 (sister of the victim), PW-4

(mother of the victim) and PW-9 (father of the victim). Though

they are not eye witness of the occurrence and when they came at

the P.O., the victim narrated the story as to how she has been raped Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

by the appellant and their version is quite consistent with the story

of prosecution. PW-11 is the doctor who has stated that according

to the Medical Board opinion, injury on the private part of victim

may be due to rape, in this way, statement of PW-11 is quite

consistent with the story of prosecution. He further submitted that

even the version of fardbeyan is quite natural that victim was alone

at her house at the relevant time and the appellant had entered into

her house taking advantage of her solitude and committed the

occurrence. The victim narrated the story on the arrival of her

sister. Again she narrated it to her parents when asked about the

discharge of blood from her private parts. The story as narrated by

the victim is quite natural and convincing. How the villagers have

reacted after hearing the said occurrence and the appellant has

been caught in his house and police was being informed and the

appellant was apprehended by the police on the date of occurrence

which is quite natural keeping in view the facts and circumstances

of the present case and the fardbeyan of the victim was recorded in

hospital while she was being treated. In this way, there is nothing

unusual regarding all the facts as stated by the victim herself.

Hence, there is no reason to disbelieve the version of victim. If

totality of the circumstances appearing on the record of the case

discloses that victim does not have strong motive to falsely Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

implicate the appellant, the court should ordinarily have no

hesitation in accepting her evidence as no victim would come

forward to make a self humiliating statement in a casual manner.

In this case on hand victim is a sterling witness as she is consistent

through out and has withstood the test of cross-examination and

therefore, there is no need for corroboration of her testimony. Even

the medical report does not negate the claim of the victim. Learned

APP further submitted that PW-12 (I.O) has also supported the

story of prosecution and he has specifically pointed out the place

of occurrence. The I.O. has supported the version of FIR that

appellant was apprehended by the villagers as he committed rape

upon the victim and condition of the victim was not well and she

was taken to hospital by her parents. In this way, the version of

PW-12 is quite consistent with the story of prosecution. Learned

A.P.P. further submitted that PW-1, PW-6, PW-9, PW-10 and PW-

11 have stated that age of the victim is 10-11 years and even in

radiological findings of the doctor, age of the victim has been

assessed as 10-11 year. In this way, as per statutory requirement,

prosecution has already proved that victim was below 18 year at

the time of occurrence and there is no dispute regarding the

determination of age of the victim by the defence and even no

suggestion was made on the said point. Learned APP further Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

submitted that judgment of conviction and order of sentence

passed by the concerned court is quite tenable and sustainable in

the light of given facts as well as evidences available on record

and hence, no interference is needed.

10. We have perused the impugned judgment and trial

court records. We have given our thoughtful consideration to the

rival contention made on behalf of the parties as noted above.

11. It is necessary to evaluate, analyze and screen out the

evidences of witnesses adduced before the trial court in the light of

the offence punishable under Sections 376(2)(i), 323 of the IPC

and Section 6 of the POCSO Act.

12. It is necessary to analyze the evidence of PW-1 who

is victim as well as informant of the present case. She has narrated

the facts by recording the fardbeyan at Sadar Hospital by giving

graphic description of entire facts. This witness has specifically

and categorically stated that how the appellant committed rape

upon her when no one was present at the relevant time. This

witness has stated that the manner of occurrence while rape was

committed by the appellant. She stated that her mouth and hand

were tied and gate was closed and pant was opened and one slap

was given upon her cheek, neck was pressed and blood was

discharged. She has further stated that how her sister gave water Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

for drinking and her sister untied the cloth from her hand and she

narrated the story to her father and she identified the appellant. Her

statement was recorded in the hospital and she put signature on it

and same stands marked as Ext.-1. Her statement was also

recorded in the court. During cross-examination, she has stated

that she was raped in a house and the said place was also used for

cattle. During cross-examination nothing is found which creates

doubt regarding the story of prosecution. The statement of PW-1 is

quite consistent regarding time of occurrence, place of occurrence,

manner of occurrence and identity of perpetrator of crime and her

version is quite reliable with regard to story of prosecution.

Nothing is elucidated in cross-examination of this witness which

makes dent in the story of prosecution.

13. Besides PW-1, there are three witnesses like PW-3,

PW-4 and PW-9 who are sister, mother and father of the victim

respectively. From perusal of fardbeyan itself, it is evident that

PW-3, PW-4 and PW-9 reached near the place of occurrence and

victim narrated the story of prosecution to them. So, it is necessary

to analyze the evidence of these three witnesses just after

analyzing the evidence of PW-1. PW-3, PW-4 and PW-9 though

they are not eye witness of the occurrence but the story of

prosecution has been narrated to them by the victim and all the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

three witnesses have supported the story of prosecution and

version of all the three witnesses are quite consistent with the story

of prosecution. Other witnesses like PW-2, PW-5, PW-6, PW-7

and PW-8 are factual witnesses but they are not eye witnesses of

the occurrence. They are hearsay witness but they have supported

the story of prosecution.

14. PW-10 is the Judicial Magistrate, 1st class who

recorded the statement of victim under Section 164 Cr.P.C. and

assessed the age of the victim between 10-11 years. In the cross-

examination of this witness, nothing is found to disbelieve his

testimony.

15. PW-11 is Dr. Rama Jha. This witness stated that on

19.02.2014 he was posted at Sadar Hospital, Madhubani as

Medical Officer and on that day medical board was constituted

under the Chairmanship of Dr. K.N. Prasad, Deputy

Superintendent of Madhubani and PW-11 is one of the members of

the said medical board. The medical board examined the victim

with the consent of her father on the same day i.e. 19.02.2014 at

about 9.15 P.M. and found the following:-

(i) Hymen ruptured all around margin lacerated colour red.

(ii). Small tear about 1/4" on right side of urethra with bleeding ++.

Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

(iii) 2nd degree penited tear length 1" depth 1/2" bleeding ++ colour red. Vagina orifice admitted two fingers.

All injuries within 12 hours. Wound repair done at O.T. on same day. Victim discharged on 26.02.2014.

2. According to radiological findings age of victim girl is about 10 to 11 year.

3. According to board opinion injury on the private part of victim may be due to rape.

This witness has stated that after board dictation, Dhanjay Kumar typed the report over which board signed and put dates by the Chairman and same is marked as Ext. 5.

From perusal of Ext. 5, it is clear that Ext. 5 is in

consonance with the story of prosecution regarding the occurrence.

Even the medical report does not negate the claim of the victim.

16. PW-12 Ram Chandra Mandal is I.O. of the case.

This witness has stated that on 19.02.2014 he was posted as S.H.O.

Khirhar thana and he got information through mobile from pahra

village that minor has been raped and on the said information, he

reached at the place of occurrence. He found that several people

were gathered at the house of the appellant and on query it was

found that appellant committed rape upon the victim and so he was

apprehended by the villagers. He found that condition of the

victim was not well and she was being taken to hospital by the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

parents. This witness stated that appellant was also arrested by this

witness after taking all necessary steps. He also stated that he went

to Madhubani hospital and recorded the statement of victim on the

second day as on first day her condition was not well and

statement was taken in the presence of her parents. This witness

further stated that fardbeyan and its endorsement bear his writing

and signature which stands marked as Ext. 6. Formal FIR is in the

writing of Baleshwar Tiwary which has been written at the behest

of this witness and this witness put signature on formal FIR. This

witness identifies the writing and signature which stands marked

as Ext. 7. This witness seized blood stained clothes of victim like

pant, salwar and dupatta and made seizure list of clothes of victim

upon which informant's father and Yogeshwar Gosai put their

signature. This witness further stated that he recorded the

statement of witnesses as well as restatement of the

victim/informant. This witness has pointed out the place of

occurrence. During cross examination, this witness has reiterated

the version of story of prosecution. This witness has stated that his

investigation is rightful as per rule. During cross examination this

witness has supported the story of prosecution and nothing is

found in cross examination which discredits the testimony of this

witness. Though some infirmities have been found regarding the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

investigation that appellant has not been medically examined by

the doctor.

17. If there is any faulty investigation, then it can be

treated as laches of I.O. which does not affect case of prosecution

adversely where direct, ocular and reliable evidence available on

record. On above point, Hon'ble Supreme Court has held in the

case of Allarakha K. Mansuri vs. State of Gujarat reported in

2002 Supreme Court Cases (Cri) 519 that defective investigation

by itself cannot be made a ground for acquitting the accused.

18. From perusal of fardbayan, it is evident that how the

fardbeyan has been recorded by PW-12 (I.O.) on 20.02.2014 at

11.30 hours at Sadar Hospital, Madhubani. It has been narrated by

the victim herself who happened to be informant of this case also.

The victim/informant (PW-1) gave graphic details regarding time

of occurrence, manner of occurrence and place of occurrence.

How the appellant made entry into the house in the solitary

presence of the victim and how the deposition of PW-12(I.O.)

specifically and categorically supported the story of prosecution

that the appellant has already been apprehended by the villagers

and how the villagers reacted after getting the information of said

occurrence and they surrounded the house of the appellant and

made call to the police. On the basis of fardbeyan, it is quite Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

evident that PW-3 who is sister of the victim came on the spot and

before reaching to her house she saw the appellant running away

and how she helped the victim by opening her hand and mouth.

The evidence of PW-3 though she is not eye witness of the

occurrence but her version is quite consistent with regard to the

story of prosecution and the contention of learned counsel for the

appellant regarding delay in lodging the FIR is not tenable and

sustainable in the light of the facts and circumstances of the

present case alongwith the evidence available on record and same

is manifested from the fardbeyan itself. The PW-12 (I.O.) in his

deposition has specifically and categorically stated that the

condition of victim was not well so her version was recorded in

presence of her parents next day after the occurrence and PW-9

(father of the victim/informant) has also stated that the fardbeyan

was recorded by Daroga next day after the occurrence in hospital

and on the point of discharge of blood from the body of the victim

the evidence of all the factual witnesses like PW-1, PW-2, PW-3,

PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 are quite consistent. It

is quite natural that how the victim narrated the story of

prosecution to her father, mother and sister and how her father

reacted after being heard the alleged occurrence from the mouth of

the victim. The father of the victim shared the said information to Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

villagers and had shown the discharge of blood from the body of

the victim to the villagers. It is quite obvious that how the villagers

reacted the alleged occurrence by encircling the house of the

appellant and made call to the police. PW-12 (I.O) has also stated

that he got information on mobile that minor girl has been raped

and he found that people were gathered at the house of the

appellant and it is found in query that the appellant committed rape

upon the victim, villagers apprehended the appellant and condition

of the victim was not well and she was being brought to the

hospital. PW-12 (I.O.) admitted that the statement of victim was

taken on second day as first day of the occurrence her condition

was not well. PW-11 (Dr. Rama Jha) has opined that injury on

private parts of the victim may be due to rape. In this way, the

medical evidence has not negated the story of prosecution.

19. It is well settled by a catena of judicial

pronouncements that while appreciating the evidence of the victim

of sexual assault, it should be treated on a par with the evidence of

an injured witness. The reason is simple that a girl or a woman in

the tradition bound non-permissive society of India would be

extremely reluctant even to admit that any incident which is likely

to reflect on her chastity had ever occurred. She would be

conscious of the danger of being ostracized by the society. When, Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

in face of these factors, the crime is brought to light, there is

inbuilt assurance that the charge is genuine rather than fabricated.

In normal course, the Indian Women has tendency to conceal such

offence even before her family members much less before public

or before the police. Therefore, testimony of the prosecutrix to

some extent, stands on higher pedestal than that of an injured

witness.

20. Corroboration is not an imperative component of

judicial credence in every case of rape. Refusal to act on the

testimony of the victim of sexual assault, in absence of

corroboration as a rule, is adding insults to the injury. If the

Doctor, who examined the victim, does not find sign of rape, it is

no ground to disbelieve the sole testimony of the prosecutrix. If

totality of the circumstances appearing on the record of the case

discloses that the prosecutrix does not have strong motive to

falsely implicate the person charged, the Court should ordinarily

have no hesitation in accepting her evidence as no self-respecting

women would come forward to make a self humiliating statement

in casual manner.

"The Court ought to be mindful that a rapist not only

violates the victim's privacy and personal integrity, but inevitably

causes serious psychological as well as physical harm in the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

process. Rape is not merely a physical assault, it is often

destructive of the whole personality of the victim. A murderer

destroys the physical body of his victim, a rapist degrades the very

sole of the helpless female. The Court, therefore, shoulders a

greater responsibility and must deal with such cases with utmost

sensitivity. The broader probabilities of the case should be

examined. Minor contradictions or insignificant discrepancies in

the statement of the prosecutrix, which are not of a fatal nature,

should not come in the way to otherwise reliable prosecution

case." Reference may be made to State of Punjab v. Gurmit Singh

reported in (1996) 2 SCC 384 and Motilal v. State of M.P. reported

in (2008) 11 SCC 20.

At the same time in Raju v. State of Madhya Pradesh

reported in (2008) 15 SCC 133, the Hon'ble Supreme Court

cautioned by saying that no doubt, rape causes greater 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. Therefore, the accused must also be protected

against the possibility of false implication.

"The Court should carefully see that the prosecutrix is

consistent in her statement right from the starting point till the end,

namely, at the time when the witness makes the initial statement Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

and ultimately before the Court. The prosecutrix 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

person involved, as well as the sequence of it. If other witnesses

are there, there must be consistent match with the version of every

other witnesses. If the testimony of the prosecutrix withstands the

aforesaid test, she would be treated as a "sterling witness" and no

corroboration is needed to base the conviction on the sole

testimony of the prosecutrix." Reference may be made to Rai

Sandeep @ Deepu v. State (NCT of Delhi) reported in (2012) 8

SCC 21.

21. However, in the present case, the victim/informant

(PW-1) has fully supported the case of the prosecution. She has

narrated in detail how the incident has taken place. She has been

thoroughly and fully cross-examined and PW-3 who is sister of the

victim arrived after the occurrence and saw the appellant running

away and she has untied the mouth and hand of the victim. PW-4

(mother of the victim) and PW-9 (father of the victim) who have

heard regarding the occurrence through the mouth of the victim as

same is evident from fardbeyan itself and they reached at the place

of occurrence. Their evidence are quite consistent with the story of Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

prosecution. The other factual witnesses i.e. PW-2, PW-5, PW-6,

PW-7 and PW-8 have supported the story of prosecution even

though they are not eye witness of the occurrence and medical

report does not negate the claim of the victim. PW-12 (I.O.) has

also supported the story of prosecution. Other material available

on record have also fully supported the story of prosecution. So far

as PW-1 ( informant) who is a sufferer of the occurrence and her

evidence is quite consistent on the core spectrum of crime and we

do not see any good reason not to rely upon the deposition of PW-

1(victim/informant). She is trustworthy and reliable. As per settled

proposition of law, even there can be a conviction based on the

sole testimony of the victim, however, she must be found to be

reliable and trustworthy.

22. In deposition column of PW-1 age of the victim

(PW-1) is mentioned as 10 year. PW-9 (father of the victim) in his

deposition stated that victim is aged about 10 year. PW-6 in his

deposition stated that victim is aged about 10 year. PW-10

(Judicial Magistrate, 1st Class) assessed the age of the victim

between 10-11 year. According to radiological findings of doctor,

the age of the victim is about 10-11 year which is best evidence

available on record in respect of age of the victim. In this way,

prosecution has proved that victim was minor on the date of the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

occurrence and no objection has been raised by the defence on the

said fact.

23. From perusal of record, it is found that radiological

finding of doctor clearly indicates that age of the victim was about

10-11 years and same is supported from the deposition of PW-9

(father of the victim). PW-10 (J.M., 1st Class) who recorded the

statement of PW-1 (victim) assessed her age as 10-11 year. PW-6

who is grand father of victim also stated that victim is 10 year old.

In this way, evidently the prosecution has proved age of the victim

below 18 years. Hence, offence for which conviction has been

recorded under POCSO Act is applicable in the facts and

circumstances of the case and contention of learned A.P.P. finds

force in the light of material available on record.

24. No doubt promptness, in lodging the first

information report, is assurance regarding truthfulness of the

informant's version. If there is delay in lodging the FIR and there

is no reasonable explanation for the same it looses advantage of

spontaneity. In Tulshidas Kanolkar v. The State of Goa reported in

(2003) 8 SCC 590 : AIR 2004 SC 978, the case was of sexual

assault and in the matter of delayed information, the Hon'ble

Supreme Court said as follows :-

".......... In any event, delay per se is not a mitigating circumstance for the accused when accusations Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting 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 satisfactory explain the delay and there is possibility of embellishment or 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 waity enough to reject the plea of false implication or vulnerability of the prosecution case."

25. In the case on hand, the victim was totally unaware

of the catastrophe which had befallen her. However, on the very

same day, she reported the matter to her parents and the fact

speaks itself that the manner in which she suffered the injuries and

blood was oozing out from her body and she was taken to hospital

by her parents. PW-12 (I.O.) has stated during the examination-in-

chief that fardbeyan of the victim/informant was not recorded on

the date of occurrence as she was not in a condition to record the

fardbeyan on the date of occurrence and it is evident from the

fardbeyan itself that she was being hospitalized by her parents.

PW-3 (sister of the victim/informant) reached at the place of

occurrence and helped the victim to open her hand and mouth. The

version of other witnesses though they are not eye witness of the Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

alleged occurrence but they have supported the version of story of

prosecution and the sequence of events that has taken place after

the occurrence has already been narrated in the version of PW-12

(I.O.). How the blood-stained cloth has been seized and same has

been sent to FSL for forensic examination and the medical

evidence does not negate the claim of the victim. The contention

of learned counsel for the appellant regarding delay in lodging

FIR, lack of proper investigation and inconsistencies found among

the version of prosecution witnesses are not tenable and

sustainable in the light of the fact as the version of

victim/informant on the core spectrum of crime has been found

intact along with other material available on record and on

evaluating the deposition of PW-1 (victim/informant) on touch-

stone of law laid down by Hon'ble Supreme Court in the decisions

as cited above, we are of the opinion that the sole testimony of

PW-1 (victim/informant) is absolutely trustworthy and

unblemished and her evidence is of sterling quality.

26. Keeping in view all the facts and circumstances of

the case available on record and the evidence discussed in the

foregoing paragraphs, to sum up, we can conclude that the

prosecution has proved its case beyond reasonable doubt under Patna High Court CR. APP (DB) No.718 of 2015 dt. 11-09-2023

Sections 376(2)(i), 323 of the I.P.C. and Section 6 of the POCSO

Act.

27. In the light of discussions made above, we find no

reason to differ with the findings given by the trial court on the

point of Sections 376(2)(i), 323 of the I.P.C. and Section 6 of the

POCSO Act. Accordingly, the impugned judgment of conviction

and order of sentence passed by the trial court is hereby affirmed.

28. In the result, this appeal stands dismissed.

                                                        (Alok Kumar Pandey, J)



                                                          (Ashutosh Kumar, J)




shahzad/-amit
AFR/NAFR                NAFR
CAV DATE                25.08.2023
Uploading Date          11.09.2023
Transmission Date       11.09.2023