Patna High Court
Tuntun @ Dharmendra Ravidas vs The State Of Bihar on 12 January, 2024
Author: Sunil Dutta Mishra
Bench: Arvind Srivastava, Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1156 of 2016
Arising Out of PS. Case No.-224 Year-2012 Thana- MASAUDHI District- Patna
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Tuntun @ Dharmendra Ravidas Son of Kedar Ravidas Resident of Village -
Sukachayia, P.S. - Masaurhi, District - Patna.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Parmeshwar Mehta, Advocate
Mr. Barun Prasad, Advocate
For the State : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA)
Date : 12-01-2024
Heard learned counsel for the appellant and learned
counsel for the State.
2. This criminal appeal has been preferred against the
judgment of conviction dated 14.09.2016 and order of sentence
dated 20.09.2016 passed by learned Additional Sessions Judge
VIII, Jehanabad in connection with Sessions Trial No.374 of 2013
arising out of Masaurhi P.S. Case No.224 of 2012 whereby and
whereunder the appellant has been convicted under Section 376 of
the I.P.C. and sentenced him to undergo rigorous imprisonment for
life and a fine of Rs.3 lakhs and in default thereof, the appellant
shall undergo simple imprisonment for three years. It has further
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
2/15
been directed that out of fine of Rs.3 lakhs, an amount of Rs.2.5
lakhs shall liable to be paid to the victim for her rehabilitation.
3. The victim's name has been concealed in the present
judgment and she has been referred to as the victim for maintaining
privacy of her identity to protect her dignity.
4. The prosecution case, in brief, is that the informant
(victim's father) gave his fardbeyan on 31.07.2012 before the
Masaurhi Police Station inter alia that his daughter (victim) aged
about 10 years, who is a student of Class IV, like other days had
gone to the Badhar of village for getting she-buffalo grazed and
playing. In the evening of the same day, Tuntun Ravidas @
Dharmendra Ravidas of the same village, on the pretext of talking
to her brother and feeding jalebi, took her to a lonely place of
Badhar where under the guise of alang near palm tree he (Tuntun
Ravidas) forcibly committed rape with her. The victim came to her
house writhing in pain as also the blood was oozing from her
private part and stated about the incident to her family members.
On the basis of the aforesaid fardbeyan, Masaurhi P.S. Case No.224
of 2012 under Section 376 of the Indian Penal Code was registered.
5. It is relevant to mention here that the Protection of
Children from Sexual Offences Act, 2012 brought into force on
14.11.2012
to protect the children from offences of sexual assault,
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
sexual harassment and pornography and the alleged incident on
child victim occurred before the POCSO Act, 2012 came into force,
accordingly, the said Act has not been made applicable in the
instant case.
6. The investigation of the case was carried out by the
Investigating Officer and after completion of the investigation, the
police submitted charge sheet against the appellant under Section
376 of the I.P.C. Thereafter, cognizance was taken on 06.10.2012
for the offences punishable under Sections 376 and 511 of the I.P.C.
Then the case was committed to the Court of Sessions on
04.02.2013 and charge was framed under Section 376 of the I.P.C.
against the appellant on which the appellant pleaded not guilty and
claimed to be tried.
7. To substantiate the charge levelled against the
accused/appellant, the prosecution has examined altogether six
witnesses, who are as follows:-
P.W.1 is Shyam Babu Das (Independent Witness)
P.W.2 is mother of the victim
P.W.3 is the victim
P.W.4 is the informant & father of the victim
P.W.5 is Dr. Malti Sinha (Medical Officer)
P.W.6 is Santosh Kumar Pankaj (I.O.)
8. The prosecution has also exhibited following
documentary evidences:-
Ext.1 is the signature of the victim's mother (PW-2) on
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
the seizure list.
Ext.1/1 is the seizure list.
Ext.2 is the signature of the victim on statement recorded
under Section 164 of the Cr.P.C.
Ext.3 is the Medical Report.
Ext.3/1 is Supplementary Medical Report.
Ext.4 is the Fardbeyan
Ext.5 is the Formal F.I.R.
9. After completion of oral and documentary evidences,
the statement of the accused/appellant was recorded under Section
313 of the Cr.P.C. bringing to his notice incriminating evidence
found against him from the evidence of prosecution witnesses for
which he denied and claimed innocence.
10. The defence has not adduced any evidence either oral
or documentary in support of his defence.
11. At the conclusion of trial, the Trial Court has
convicted the accused/appellant and sentenced him as aforesaid.
Being aggrieved by the judgment of conviction and order of
sentence, the present appeal.
12. Learned counsel appearing on behalf of the appellant
assailing the impugned judgment and order of the Trial Court has
submitted that the appellant has falsely been implicated in this case.
He has submitted that PW-2 and PW-4, who are parents of the
victim, are not the eye witnesses to the occurrence and they are
hearsay witnesses to whom the victim disclosed the occurrence.
The prosecution witnesses are close relatives and highly interested.
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
Their evidence has not been scanned carefully and cautiously. He
has further submitted that the prosecution has failed to prove the
place of occurrence, the factum of rape and the manner of
occurrence. It is next submitted that the victim girl was not
subjected to any sexual assault rather in course of playing, she fell
down and sustained injury. He has contended that the medical
evidence completely falsifies the prosecution case as the doctor
found hymen intact and no injury was found on other parts. Even
no foreign hair nor sperm was found on the body of the victim. It
is also contended that the appreciation of evidence by the Trial
Court is not proper and correct. The appellant ought to have been
acquitted of the charges but the court below committed an error in
convicting and sentencing the appellant.
13. On the other hand, learned counsel for the State by
filing its written objection has submitted that the prosecution has
been able to prove its case. The victim is a minor, who has stated
about the incident and the evidence of victim alone is sufficient to
prove the prosecution case as per settled position of law. The victim
and her parents have fully supported the prosecution case. The
evidence would suggest that the clothes worn by the victim were
drenched with blood. He has further submitted that the doctor
(P.W.5), who has examined the victim, found laceration to external
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
vaginal part, linear laceration 1 cm long present and old blood
discharge was present over private part, which corroborates the
prosecution story. He has contended that the Trial Court after
appreciating the whole facts and circumstances of the entire
evidence in a thorough trial convicted and sentenced the appellant
for rigorous imprisonment for life. Therefore, there is no perversity
in the impugned judgment. The impugned judgment is in
accordance with law and this appeal is liable to be dismissed.
14. We have perused the impugned judgment and Trial
Court records and given thoughtful consideration to the rival
contention made on behalf of the parties.
15. From perusal of the impugned judgment, it is clear
that the learned Trial Court convicted the appellant holding that the
victim and her parents have supported the factum of rape
committed by the appellant with her which was supported by the
medical evidence.
16. The learned Trial Court on considering the deposition
of victim (PW-3) that accused/appellant had taken her in his lap
and threw her down on Chhilka and had done wrong thing with her
after opening her pant and when she cried, he pressed her neck and
the blood was washed away by him and also threatened to kill her
in drain by pressing her neck. The said fact was immediately
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
narrated by the victim to her mother and father (PW-2 and PW-4)
after occurrence who had seen blood coming out from her private
part. The doctor (PW-5) has found injury of 1 cm length on the
private part of the victim which is evidence of insertion of penis.
Accordingly, on the basis of ocular and medical evidence, the Trial
Court came to the conclusion that rape was committed on the
victim. The Trial Court relied on judgments of Hon'ble Supreme
Court including the judgment in case of Madan Gopal Kakkad vs.
Naval Dubey and another reported in (1992) 3 SCC 204 = 1992
SCR (2) 921.
17. The Trial Court also gave finding that the appellant
had committed rape on the victim considering that the victim
without any contradiction stated the name of appellant immediately
after occurrence to her parents (PW-2 and PW-4) and in her
statement under Section 164 Cr.P.C. and in her evidence before the
Court, she had taken the name of appellant and even in Court she in
her weeping condition on seeing appellant stated that he had done
wrong thing with her. The learned Trial Court concluded that in the
instant case considering the statement of victim, the mark of injury
on her private part, when police came the appellant hide himself on
machan (store room) of his house clearly without any doubt proves
that the appellant had committed rape on victim.
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
18. The appellate Court is empowered to reappreciate the
entire evidence on record for the purpose of ascertaining as to
whether the appellant had committed the charged offence or not
and if the impugned judgment and order is ultimately found to be
clearly unreasonable and perverse then such judgment and order
can be set aside by the appellate Court.
19. To examine the correctness of the findings, we will
first assess the testimony of witnesses adduced by the prosecution.
P.W.3 is the victim of this case. The Trial Court by asking
preliminary question to her, tested her competency to understand
the occurrence and to speak the truth and thereafter being satisfied
recorded her evidence. She had deposed that on the day of
occurrence at about 04:00 p.m. she had gone to graze the buffalo
where Tuntun Bhaiya (accused/appellant) asked her to talk her
brother on phone but the victim refused to talk. Thereafter the
accused/appellant said her that her brother had come at Chhilka,
let's go but on refusal, the accused/appellant took her in his lap and
took away to Chhilka and threw her down and committed wrong
after removing her pant on account of which blood started oozing
which was washed away by Tuntun (accused/appellant). When she
started crying, the accused/appellant threatened her to throw in
nala by pressing her neck. Thereafter the victim came to her house.
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
She has further deposed that her statement was recorded under
Section 164 Cr.P.C. before the Magistrate and she put her signature
which is marked as Ext.2. She was not cross-examined on behalf
of the appellant.
20. PW-2 is the mother of the victim, who has supported
the prosecution case. She has deposed that the victim was 8-9 years
old and studied in Class IV. On the day of alleged occurrence, the
buffalo returned home but the victim did not return home then she
went in search of the victim. The boys told her that Tuntun took the
victim. She further deposed that she saw the victim coming
weeping and on enquiry, the victim narrated the whole incident
stating that Tuntun had taken her away on the pretext of call of her
brother and committed wrong by pressing her mouth due to which
blood was oozing. Tuntun had threatened her. Her undergarment
was drenched with blood which was seized by the police. PW-2 put
her signature on the seizure list which is marked as Ext.1. The
villagers searched Tuntun but he was not found. Someone of the
village informed the police thereafter the accused/appellant was
arrested from his house.
21. PW-4 is the informant, who is victim's father. He also
supported the prosecution case by deposing that on the date of
alleged occurrence, the victim had gone to Badhar for grazing
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
buffalo. Before the Sun set, buffalo of all came but the victim did
not come to her house. He further deposed that when he along with
his wife went in search of his daughter (victim), they found her in
khanda. The victim told him that Tuntun Ravidas had committed
wrong. The blood was found on her leg and undergarment
(janghia). Many villagers assembled there. Someone of the village
informed the police. Thereafter police reached and took his
statement on which he put his thumb impression. He was cross-
examined. During his cross-examination, he has admitted that he,
Mukhiya or Sarpanch or Chaukidar had not given information to
the police and the police came at about 10:00 p.m. in the village
and had taken his statement. He denied the suggestion of the
defence that no such occurrence had taken place but the victim got
injury during playing.
22. PW-1 is Shyam Babu Das, who is said to be the uncle
of the victim. He has deposed that on the day of occurrence, the
victim had gone to graze the buffalo. Tuntun Ravidas had took
away the victim towards Chhilka by alluring her and committed
rape with her. The victim had narrated the whole incident to him by
weeping. There was blood in her pant. He next deposed that
someone informed the police, thereafter the police came and
arrested Tuntun from machan of Tuntun's house. He was cross-
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
examined but nothing material contradiction came on record to
disbelieve him.
23. PW-6 is the I.O., who had submitted charge sheet
against the appellant. He deposed that he was informed about the
alleged incident and he also stated about the place of occurrence.
He has deposed that he arrested the accused/appellant from his
(appellant) house and produced the victim before the magistrate for
recording her statement under Section 164 Cr.P.C. The victim was
medically examined by Dr. Malti Sinha. He also took the
statements of witnesses. He has deposed that he had seized the
cloth of the victim and the seizure list was marked as Ext.5. In his
cross-examination, he has deposed that he had gone to place of
occurrence on 01.08.2012. He has further stated that he has no
knowledge about any land dispute between the parties.
24. PW-5 (Dr. Malti Sinha) is the Medical Officer, who
had examined the victim on 01.08.2012 at 03:30 p.m. She has
deposed that on body examination of victim, there was no mark of
violence over her body except private part of the victim. She found
linear laceration 1 cm long over external vaginal part. As per
radiological report, the age of the victim was assessed to be 9-10
years. There was old blood discharge present over private part. PW-
5 has proved the injury report and supplementary report, which
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
were marked as Exts.3 and 3/1 with respect to vaginal examination
of victim in which it has been stated as follows:
"Vaginal examination :-There is laceration to
external vaginal part (linear laceration present)
1 cm long, hymen intact, no injury seen over her
other part, no foreign hair present, no abnormal
discharge present except blood, no finger tip
can be admitted in her vagina.
25. There is nothing material to disbelieve the evidence of
victim. We have no reservation in accepting the evidence of victim
(PW-3) in its entirety which clearly makes out a case for an offence
under Section 376 I.P.C. It is well settled that corroboration is not
the sine qua non for conviction in a rape case. The evidence of a
victim of sexual assault stands on par with evidence of an injured
witness who is the best witness in the sense that she is least likely
to exculpate the real offender, the evidence of a victim of a sex-
offence is entitled to great weight, absence of corroboration
notwithstanding. The eye witness cannot be expected in sex
offences having regard to the very nature of the offence. If the
evidence of the victim does not suffer from any basic infirmity,
there is no reason to insist on corroboration except from the
medical evidence.
26. The evidence of victim is fully reliable and also
corroborated by the other evidence on record. There is no reason
that parents of the victim would tutor her to invent a story of rape
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
on the part of the appellant in order to implicate the appellant. It is
not alleged that the victim had any motive to falsely implicate the
appellant. The medical evidence plays crucial role to prove the
offence under Section 376 of the I.P.C. The medical evidence fully
supports the finding of rape on victim. The discrepancies pointed
by the learned counsel for the appellant do not go to the root of
matter and do not shake the basic version of the witnesses.
27. When the evidence of victim taken with the evidence
of medical officer, who found linear laceration (1 cm long) to
external vaginal part of the victim (aged 9 to 10 years) and found
old blood discharge present over private part, the Trial Court rightly
concluded that the rape was committed on the victim by the
appellant.
28. From the above discussion, we hold that the
prosecution has satisfactorily established its case that the appellant
has committed rape on victim (PW-3) by proving all the necessary
ingredients required to make out an offence of rape punishable
under Section 376 of the I.P.C.
29. In the result, the impugned judgment of conviction to
the appellant under Section 376 of the I.P.C. is confirmed.
30. The only question that now remains to be considered is
as regards the sentence. Learned counsel for the appellant submits
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
that the age of appellant on the date of occurrence was determined
as 18 years 2 months and he has no criminal antecedent and poses
no threat to society and he has undergone sentence for
approximately 11 years 5 months and prayed for leniency. Learned
counsel for the State has submitted that the appellant has done the
heinous crime of rape, a crime against human dignity. He has
submitted that mandatory requirement under Section 376 I.P.C. is
to impose the punishment of either description for a term which
shall not be less than 7 years but which may be life or for a term
which may extent to 10 years, provided that the Court may for
adequate and special reason to be mentioned in the judgment,
impose the punishment for a term less than 7 years.
31. It is well settled that protection of society to which the
criminal and the victim belong and deterring the criminal is the
avowed object of law and that is required to be achieved by
imposing an appropriate sentence.
32. In the State of Karnatka vs. Raju reported in A.I.R.
2007 SC 3225, the Hon'ble Supreme Court dealt with a case of
rape of minor girl below 12 years of age and observed that the
normal sentence in a case where rape is committed on a child
below 12 years of age, is not less than ten years rigorous
imprisonment though in exceptional cases, for special and adequate
Patna High Court CR. APP (DB) No.1156 of 2016 dt.12-01-2024
reasons, sentence of less than ten years can also be awarded.
33. Taking into account the facts and circumstances of the
case, age of the appellant and the period of his custody, we are of
the opinion that ends of justice will be satisfied, if the substantive
sentence impugned by the Trial Court for the offence under Section
376 of I.P.C. is reduced from life imprisonment to 12 years rigorous
imprisonment in jail custody by the appellant. The sentence of fine
and in default of fine will, of course, remain undisturbed. The
sentence is, accordingly, modified to the above extent.
34. The appeal is, accordingly, partly allowed to the above
extent.
35. The Trial Court records of the instant appeal be
returned to the Trial Court forthwith.
36. Interlocutory Application(s), if any, stands/stand
disposed off, accordingly.
(Sunil Dutta Mishra, J)
I agree
Arvind Srivastava, J
(Arvind Srivastava, J)
Harish/-
AFR/NAFR NAFR
CAV DATE 01.12.2023
Uploading Date 15.01.2024
Transmission Date 15.01.2024
