Patna High Court
Mantun Nadaf vs The State Of Bihar on 22 January, 2024
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.813 of 2016
Arising Out of PS. Case No.-32 Year-2010 Thana- JAMALPUR District- Darbhanga
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Mantun Nadaf, son of Islam Nadaf, Resident of village- Jhagarua, Police
Station- Jamalpur and District- Darbhanga.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ali M. Ahmad, Adv.
Mr. A. Akhtar, Adv.
For the Respondent/s : Mrs. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 22-01-2024
1. Heard learned counsel for the appellant and learned
APP appearing for the State.
2. The instant appeal has been filed against the judgment
of conviction dated 11.08.2016 and order of sentence dated
18.08.2016 passed by the learned Additional Sessions Judge-II,
Benipur, Darbhanga, in connection with Sessions Trial Case No.
468 of 2010 arising out of Jamalpur P.S. Case No. 32 of 2010,
whereby and whereunder the appellant has been convicted for the
offences punishable under Sections 366 and 376 of the Indian
Penal Code (hereinafter referred to as IPC) and sentenced to
undergo rigorous imprisonment for ten years for the offence
punishable under Section 366 of IPC with a fine of Rs. 15,000/-
and has also been sentenced to undergo rigorous imprisonment for
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
2/18
ten years for the offence punishable under Section 376 of IPC with
a fine of Rs. 15,000/- and in case of default of payment of fine,
additional imprisonment for six months has been awarded upon
the appellant and both the sentences of imprisonment have been
directed to run concurrently by the convicting trial court.
3. The substance of the prosecution's case as appearing
from the written report filed by the victim's uncle namely Md.
Aslam Sah (informant) is that on 25.05.2010 at about 8:00 P.M.,
the informant's niece (hereinafter referred to as victim) went
outside of her home to attend call of nature in an open field
situated nearby her home then the accused/appellant forcefully
caught hold of her and thereafter, kidnapped her by putting her in
fear by showing a knife. The informant further alleged that when
the victim did not return back, he and others started searching for
her and made efforts to find her in their village but they could not
find out the victim and thereafter, they contacted their relatives
through phones who reside in nearby villages and after that, on
26.05.2010
, one of the informant's relatives, a resident of Khojari
village, P.S.- Bheja, District- Madhubani, informed him that the
appellant and the victim had been caught at Islampur village and
then they went to Islampur village and caught the accused and
brought the victim at their home. The informant disclosed the
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
victim's age as being 14 years at the time of commission of the
alleged offences and according to him, the victim had been
kidnapped by the appellant with an intention to take her
somewhere.
4. Describing the above allegations, the informant Md.
Aslam Sah filed a written application (Ext. 1) at Jamalpur police
station, on that basis, a formal FIR bearing Jamalpur P.S. Case No.
32 of 2010 was registered under Sections 366, 366A and 376 of
IPC against the appellant which set the criminal law in motion.
5. During investigation, the victim's statement (Ext. -
2/1) was recorded under Section 164 of Cr.P.C. and after the
completion of the investigation, the appellant was chargesheeted
for the offences punishable under Sections 366, 366A and 376 of
IPC and the learned Magistrate took cognizance of the said
offences and thereafter, committed the case of the appellant to the
court of Sessions.
6. The appellant namely, Mantun Nadaf stood charged
for the offences punishable under Sections 366, 366A and 376 of
IPC.
7. During trial, the following witnesses, including the
victim, were examined by the prosecution :
P.W. 1 - Kayum Sah;
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
P.W. 2 - Abdul Hakim;
P.W. 3 - Mokhtar Ahmad;
P.W. 4 - Md. Mustaque;
P.W. 5 - Md. Aslam Sah (informant);
P.W. 6 - Shamim Sah @ Shamshai;
P.W. 7 - Kamrai Alam;
P.W. 8 - Md. Musa;
P.W. 9 - Akhlak Ahmad Sah;
P.W. 10 - XXXXX (victim);
P.W. 11 - Tripurari Singh;
P.W. 12 - Dr. Bedanand Jha
8. In documentary evidence, the prosecution proved the
following documents and got them exhibited which are as
under :-
Ext. 1 - Written FIR
Ext. 2 - Signature of one namely Akhlak Sah upon the
written FIR.
Ext. 2/1 - Victim's statement recorded under Section
164 of Cr.P.C.
9. The appellant's statement was recorded under
Section 313 of Cr.P.C. in which he denied the main circumstance
appearing against him from the prosecution's evidences and he
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
claimed himself to be an innocent but he did not make any specific
defence in his statement.
10. The appellant did not give any evidence in his
defence.
11. It has been argued by learned counsel for the
appellant that the prosecution's story as described in the FIR is
completely improbable and unbelievable and the same has been
falsified by the medical evidence of the victim as any sign of rape
has not been found by the Doctor concerned who examined the
victim and victim's statement recorded under Section 164 of
Cr.P.C. is not reliable as she was in the custody of the police when
she was produced before the Magistrate and the victim is stated to
have been recovered from Islampur village and as per the
allegation, the victim and the appellant were found in the said
village and they were kept in the house of one namely Md. Enul
but the said person was not produced and examined before the trial
court and there is a serious contradiction regarding the number of
persons who are stated to have gone to Islampur village after
getting the information about the presence or recovery of the
victim and appellant at Islampur village and the factum of victim's
presence in Islampur village was not given in the knowledge of
police.
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
12. It has been further submitted that all the material
witnesses, except the victim, upon whom the trial court has placed
reliance are interested persons and none of them claimed to have
seen the appellant taking the victim away with him and the place
where the victim was raped by the appellant when she was on way
with the appellant could not have been established by the
prosecution and any resident of Islampur village was not produced
and examined before the trial court to prove the recovery of the
victim with the appellant from Islampur village.
13. It has been further submitted that the victim went
missing on 25.05.2010 but in this regard, no information was
given to the police by the informant or victim's other family
members and as per prosecution's story, the appellant along with
the victim was directly produced at the police station concerned
and the said conduct of the prosecution party raises a serious doubt
in the truthfulness of the allegation.
14. It has been further submitted that the appellant has
completed more than eight years in jail against the major
punishment of ten years and during trial, he remained in custody
since 26.05.2010 to 20.01.2011 and thereafter, since the date of
conviction i.e. 11.08.2016, he has been languishing in jail.
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
15. Learned APP has opposed the appeal and argued
that before the trial court, the prosecution succeeded to prove the
victim's recovery in the company of the appellant at Islampur
village and serious allegations of kidnapping and rape were made
by the victim against the appellant which were supported by the
victim in her statement recorded under Section 164 of Cr.P.C. as
well as in her court evidence and there was no reason on the part
of the victim to make a false allegation against the appellant and as
per the medical evidence, the victim was below 16 years of age
while the appellant was more than 25 years old and also a married
person, so there was no possibility of any type of relation in
between the victim and the appellant and the said fact is sufficient
to draw the inference that the victim was kidnapped by the
appellant with an intention to commit a wrong with her and the
allegation of rape made by the victim in her ocular evidence is
sufficient to convict the appellant for the alleged offence of rape
despite the victim's medical evidence going against the
prosecution as it is settled principle of law that ocular evidence, if
it is trustworthy, will prevail over the medical expert's opinion
given in sexual assault matter, hence, the appellant has been
rightly convicted by the trial court and there is no force in this
appeal and the same is liable to be dismissed.
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
16. Heard both the sides, perused the judgment
impugned and evidences available on the case record of trial court
and also gone through the statement of accused.
17. In the present matter, as per the allegation, the
victim who happens to be niece of the informant (Md. Aslam
Sah/P.W. 5) went to attend call of nature on 25.05.2010 at about
8:00 P.M. and then the accused/appellant finding her alone, firstly,
caught hold of her and thereafter, forcefully took her to Islampur
village and in that course, he put the victim in fear by showing a
knife and thereafter, the villagers of Islampur village noticed both
in their village on the same night of the occurrence and finding
them in suspicious condition, stopped them and kept in the house
of one namely Md. Enul and thereafter, informed one namely Md.
Musa/P.W. 8, who is a resident of another village and having
relationship at victim's village and he was informed because his
acquaintance with the victim's family was in the knowledge of
villagers of Islampur village and thereafter, the said person Md.
Musa informed the victim's family and after that, victim's uncle,
her relatives and some other persons went to Islampur village and
recovered the victim and the appellant.
18. In respect of the alleged recovery of the victim with
the appellant, the evidence of P.W. 8/Md. Musa is very relevant.
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
He deposed that one namely Md. Enul, a resident of Islampur
village informed him that the victim and the appellant had been
caught in his village and on asking, they revealed their names and
identity and the appellant revealed that he had been taking the
victim away. The victim's recovery along with the appellant was
also supported by the prosecution witnesses P.W. 5/Md. Aslam Sah
and P.W. 9/Akhlak Ahmad Sah and both the witnesses are said to
have gone to Islampur village after getting information about
victim's presence in the said village. Though the said witnesses are
relatives of the victim and some of their companions, who also
went along with them to Islampur village, turned hostile but the
facts deposed by them in their examination-in-chief in respect of
victim's recovery at Islampur village are supportive to the evidence
of P.W. 8/Md. Musa so their evidence appears to be credible and in
cross-examination, they remained firm to their stand. Accordingly,
the evidence of P.W. 8, P.W. 5 and P.W. 9 appears to be reliable in
respect of prosecution's allegation as to victim's recovery with the
appellant in another village Islampur and in this regard, the
victim's own evidence is also very relevant.
19. The victim deposed in her examination-in-chief that
in the night of the alleged day of occurrence when she was out
of her house to attend call of nature, the appellant caught hold of
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
her by showing a knife and on the way, she was raped by him. She
further deposed that the villagers of Islampur village noticed them
when the dogs started barking at them and thereafter, they were
caught by the villagers and after that, her uncle Md. Aslam Sah,
Akhlak Ahmad Sah, Mokhtar Ahmad and Md. Musa came there
and she and the accused were handed over to them and thereafter,
they were taken to Jamalpur police station. In this regard, the
evidence of the investigating officer who was examined as P.W. 11
is also relevant.
20. P.W. 11 deposed that the victim and the accused
were produced at the police station by the informant and at that
time, Shamim Sah, Mokhtar Ahmad, Akhlak Ahmad Sah, Abdul
Hakim and some others also came with the informant at the police
station and the said statement of the investigating officer is also
supportive to the above allegation to some extent.
21. Though in the present matter, one namely Md. Enul,
a resident of Islampur village in whose house the victim was kept
after recovery with the appellant, was not examined before the trial
court and also any of the villagers, who noticed the victim and the
appellant and caught them, was also not produced before the trial
court as witness but merely by this fact, the prosecution's
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
above allegation as to victim's recovery with the appellant at
Islampur village does not appear to be unreliable.
22. The non-official witnesses of the prosecution, who
are residents of the village of victim and appellant, did not reveal
any fact in their evidence regarding any kind of enmity or dispute
in between the victim's family and the appellant and from perusal
of their evidence, this Court does not find any reason on the part of
the victim and her family to make a false allegation of sexual
assault against the appellant and furthermore, there was a
considerable gap of age between the victim and the appellant who
was already a married person at the time of occurrence so there
was no probability of intimacy in between them. In this regard, the
prosecution's witnesses were cross-examined but none of them
revealed any kind of intimacy or love affair in between the victim
and the appellant.
23. Though, in the present matter, the medical evidence
in respect of the allegation of sexual assault given by P.W. 12/Dr.
Bedanand Jha goes against the prosecution as the witness deposed
that no any positive evidence to suggest the commission of recent
sexual intercourse with the victim was found but in the facts and
circumstances of this case, the said medical evidence does not help
the appellant as he was a fully developed man at the time of
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
commission of the alleged occurrence while the victim was a
minor girl and according to her allegation, the appellant firstly
caught hold of her and after that put her in fear by showing a knife
and thereafter, dragged and took her and on the way, he raped her.
When a physically strong person put a minor girl in fear by
showing a knife in darkness and overpowers her and thereafter,
establishes sexual relation with her then, in such a situation, there
is less possibility of any sign of forceful sexual intercourse. The
same situation is available in the present matter and victim's
evidence appears trustworthy and the appellant could not have
justified his presence with victim in the night in another village.
Accordingly, I am of the view that the non-supportive medical
evidence does not cast a serious doubt in the prosecution's
allegation and moreover, it is settled principle of law that in the
offence of sexual assault, the victim's ocular evidence, if
trustworthy, shall prevail over the medical opinion regarding the
allegation of rape or sexual assault and in the present matter, the
victim fully supported the allegations levelled by her against the
appellant and she remained firm to her allegation and did not say
anything contrary to her allegation in her cross-examination.
24. Here, it is important to mention that during
investigation, the victim was examined before the Judicial
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
Magistrate under Section 164 of Cr.P.C. where she also supported
the allegations levelled by her before the trial court.
It has been further argued by learned counsel for the
appellant that the said statement is not reliable as the same was
recorded by the victim under the influence of police. I find no
force in this submission as the victim was examined on 28.05.2010
before the Judicial Magistrate while she had been recovered on
26.05.2010 and as per the evidence of the investigating officer, she
was handed over to her family members on the same day of her
recovery.
25. The victim was examined as P.W. 10 and she
deposed that when she went out of her house in the night to attend
call of nature then the appellant caught hold of her by showing a
knife and thereafter, took her to Islampur village and on the way,
he raped her forcefully and in Islampur village, they were caught
by the villagers of the said village when the dogs started barking at
them and after that the villagers got their details (names and
address) from them and then informed her relatives by phone call.
She further deposed that after getting information of her presence
at Islampur vaillage, her uncle Md. Aslam Sah and some other
persons namely Akhlak Ahmad Sah, Mokhtar Ahmad and Md.
Musa arrived at Islampur village and thereafter, she and the
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
appellant were handed over to them and from there, they were
taken to Jamalpur police station and after that, her uncle filed a
written application at the police station and thereafter, her medical
examination was done and her statement was also recorded before
the Judicial Magistrate. The victim proved her statement recorded
by her before the Judicial Magistrate that was marked as Ext. 2/1.
The victim did not say anything in her evidence to show the
existence of any kind of intimacy in between her and the appellant
prior to the commission of the alleged occurrence and she denied
the suggestion that she fled away with the appellant on account of
having love affair with him, hence the victim's evidence, who is
the most important witness of the prosecution, goes in favour of
the prosecution's allegation and the same appears to be reliable
and there is no material to make the victim's allegations to be
suspicious.
26. So far as the victim's age is concerned, as per the
FIR, the victim is stated to be 14 years old at the time of
commission of the alleged occurrence. During trial, the victim's
father, uncle and other relatives who were examined before the
trial court supported the factum as to the victim being minor at the
time of alleged occurrence. As per the medical evidence, the
victim's age was between 16 and 17 years. Furthermore, one
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
independent witness P.W. 8/Md. Musa deposed that the victim was
appearing to be 13-14 years old when she was recovered. In the
light of these evidences, this Court has no reason to disbelieve the
factum as to the victim being minor as mentioned in the FIR.
27. Learned counsel for the appellant has placed
reliance upon the order of the Hon'ble Apex Court passed in the
Case of Yerumalla Latchaiah vs. State of A.P reported in (2006)
9 SCC 713. In this order, the Hon'ble Apex Court mainly observed
that "the age of the victim was only eight years at the time of alleged
occurrence and she was examined immediately after the occurrence by
P.W. 7/Dr. K. Sucheritha, who stated in her evidence that no injury was
found on any part of the body of the victim, much less on private part,
hymen was found intact and the doctor specifically stated that there
was no sign of rape at all and no sperm was detected in the vaginal
smears, accordingly, the evidence of the prosecution was belied by the
medical evidence, hence, the High Court was not justified in upholding
the conviction."
The facts and circumstances of the present matter are
completely different from the facts of above referred case as in the
cited case, the victim was only eight years old and her hymen was
found intact but in the present matter, the victim is said to be about
14 years old and her hymen was not found intact and moreover, in
the present matter, as per the allegation, the victim remained in the
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
custody of the appellant for some hours in the dark night and she
was put in fear by the appellant by showing a knife and the alleged
occurrence was committed in the night, so in view of these
circumstances, there was a less possibility of any sign of rape on
the person of the victim as she was under full clutch of the accused
during the relevant period of occurrence. Accordingly, the above
referred case of Hon'ble Apex Court does not help the appellant in
the present matter.
28. In view of the above discussion of the prosecution's
evidences, this Court forms the opinion that the appellant, who
was fully physically developed person at the time of commission
of the alleged occurrence, firstly, over-powered the victim by
showing a knife and thereafter, dragged and took her to Islampur
village in the night and on the way, he raped her also and these
occurrences took place in the night when the victim went outside
of her house to attend call of nature and the appellant was caught
with the victim at Islampur village by the villagers of the said
village and thereafter, the relatives of the victim were informed
and there is sufficient evidence to prove the victim's recovery with
the appellant in suspicious condition in the night at Islampur
village and at the time of commission of the alleged occurrence,
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
the victim was a minor girl and in respect of the allegation of rape,
the victim's evidence seems to be reliable and trustworthy.
29. Hence, the appellant's conviction by the trial court
for the alleged offences punishable under Sections 366 and 376 of
IPC appears to be proper and legal and this Court finds no reason
to interfere in the conclusion of the trial court.
30. So far as the quantum of punishment is concerned,
the appellant has completed more than eight years in jail against
the punishment of 10 years of rigorous imprisonment awarded
upon him for the alleged offences punishable under Sections 366
and 376 of IPC and in view of the background of the case, the said
undergone period appears to be sufficient to serve the ends of
justice. Accordingly, the conclusion of the trial court holding the
appellant guilty of the alleged offences punishable under Sections
366 and 376 of IPC is upheld but the punishment of imprisonment
awarded for the said offences is reduced to the period of custody
which the appellant has undergone till date.
31. In the result, the instant appeal stands dismissed
with the above modification in the quantum of sentence.
32. Let the judgment's copy be sent immediately to the
trial court as well as the jail authority concerned for compliance
and needful information.
Patna High Court CR. APP (SJ) No.813 of 2016 dt.22-01-2024
33. Let the LCR be sent back to the trial court
concerned forthwith.
(Shailendra Singh, J)
annu/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 03.02.2024
Transmission Date 03.02.2024
