Dismissed

Shailesh Yadav v. State of Bihar

Patna HC1 Aug 2013CR. APP (SJ)/1144/2010

Case brief

AI extract

What is this about?

In this criminal appeal under Section 376(F) IPC, the Patna High Court dismissed the appeal preferring to confirm the conviction and ten-year sentence. The bench held that minor discrepancies in prosecution testimony are natural and that delay in lodging the FIR in rape cases does not automatically vitiate the prosecution. There was no evidence to suggest false implication of the appellant.

What did the court decide?

The appeal filed by the appellant against the conviction and sentence was dismissed, upholding the lower court's judgment.

Shailesh Yadav Vs State of Bihar — Child Sexual Offences (POCSO) | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.1144 of 2010 =========================================================== Shailesh Yadav, S/O Late Mithu Yadav R/O Village- Baldiha, P.S. Kopa, DistrictSaran. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Mukesh Kumar Singh and Mrs. Anuradha Singh, . For the Respondent/s : Mr. S.A.Ahmad. =========================================================== CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL JUDGMENT Date: 01-08-2013

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The solitary appellant has preferred this appeal against his conviction for the offence under section 376 (F) of the I.P.C. and sentenced to undergo R.I. for ten years and pay a fine of Rs. 50,000/- which is to be paid to father of the informant (in fact victim), failing which further to undergo R.I. for six months.

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The prosecution case, as revealed from Ext.2, the written application of P.W.7 dated 12.10.2008 in the pen of Sunil Singh (not examined) is that in the previous noon around 12.00 his daughter Anjali Kumari aged five years was enticed to go with the appellant and during search around 3 P.M. the informant and others heard sound of weeping near an orchard behind Muzwani and when they arrived there found she was subjected to rape and the appellant sparing there arrival escaped, they could not get hold of him and subsequently after getting some treatment at Kopa Bazar they arrived with the victim at 9 A.M. to lodge the case which was instituted under section 376 of the I.P.C. and after investigation police submitted charge sheet and cognizance was taken.

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During trial prosecution examined altogether ten witnesses

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Patna High Court CR. APP (SJ) No.1144 of 2010 dt.01-08-2013

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besides producing the following documentary evidence:-

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Ext.1- Signature of Gambhira Sah on Fardbeyan. Ext.2- Fardbeyan. Ext.3- Medical report of Anjali Kumari. Ext.4- Seizure list. Ext.5- Aupcharik Prathmiki Ext.6- Charge sheet. Ext.7- Writing and signature of Sunil singh.

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There is no oral or documentary evidence in defence. However, from the trend of cross examination it appears that appellant has denied his complicity. The court below on consideration of the materials available convicted and sentenced him in the manner aforesaid.

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Out of ten prosecution witnesses, P.W.1. Dudhan Nath Shah has stated the prosecution version. During search found the victim necked and crying and there was bleeding from her private parts and the appellant inspite of their attempt successfully escaped. The victim was brought at house by her father and this witness left the place. P.W.2 Kalawati Devi, aunt of the victim almost stated the prosecution story, identified the appellant in Court like P.W.1. Further in cross-examination in para-9 states that near orchard and Muzwani there is canal and the search party including her heard sound of weeping and only thereafter arrived at the scene and found the victim necked crying and bleeding etc. Further inspite of efforts made the appellant successfully escaped. Almost similar is the position of P.W.3 Rinku Devi, mother of the victim, who further in crossexamination states about the victim being referred to P.M.C.H. for proper treatment after initial treatment by a private doctor and on the next day in local hospital. P.W. 4 Sunil Shah, cousin of the victim, almost stated the prosecution story with slight difference of time which has practically no bearing and on the major part of occurrence locating the victim in such a bad condition etc. stood test

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Patna High Court CR. APP (SJ) No.1144 of 2010 dt.01-08-2013

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of cross-examination. P.W.5 Gabhire Shaw also a member of search party and one of witness of Ext.2 and proved his signature Ext. 1 thereon and stated during cross-examination also about the miseries faced by the victim and the manner etc. of her recovery and physical conditions. P.W.6 Nand Lal Shah, another member of search party stated the prosecution version and with minor variation about distance and time etc. stood test of cross-examination. P.W.7 Thakur Shah, the informant, stated the prosecution case and search operation, recovery of the victim in such a bad state of affairs bringing her to house and after getting her under cloths to private doctor, who after giving some medicines advised for treatment in hospital by female doctor, but due to night it could not be done on the same day and on the following day arrived at P.S. thereafter Sadar Hospital, Chapra from where the victim was referred to P.M.C.H. In cross-examination he further admits that he is illiterate person and called one Sunil Singh to get the application scribed. In cross-examination in para-9 he states providing blood stained cloth to the police and further in para-13 he said about consultation with the family members and only thereafter got the case instituted. P.W. 8 Anjali Kumari is the victim who was tested by the trial court before recording her statement and identified the appellant and stated about wrongs committed with her of course in a guarded manner according to her capacity taking into consideration her age five years and even during her examination in chief itself she was not in a position to state further rather started weeping perhaps by remembering the miseries faced by her. Recording was deferred and on the next date it was resumed. She was further stated about enticement and other wrongs committed like penetration of something after getting unclothed, her bleeding and crying etc. P.W.9 Dr. Jai Shri Prasad examined the victim on 12.10.2008 and reported her physical conditions etc. proved Ext.3, medical report of victim Anjali

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Patna High Court CR. APP (SJ) No.1144 of 2010 dt.01-08-2013

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Kumari which is as follows:-

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“1. History of assault dt. 11.10.08 M/I (1) Two tie on right stand side of her back. (ii) One tie on lower part of her chest. Hight- 3”-5”, Weight- 13 Kg approx. Teeth- 6+6 upper Jam and 6+6 in down jaw. All together in 24 tooth (Milk tooth) Auxiliary heir & public hair are not developed. Brest not developed. External injury over her body.

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(i)There are abrasion over her back of the neck, back of the chest, back of the abdomen.

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Examination of private Part:-

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Drayed blood found her external genital and hedge. On swabbing of labia Meguro and lesbians minors. There are bruising and laceration which is red and edematous. Fourchette and posterion commeasure are turn to the extent to the amour (which is called in medical science 3 degree perennial tear) as patient is in pain and agony.

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Internal examination sailed

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(ii)Victim and her attendant advise for internal examination under general anesthesia on next day. As victim is not fasting. Next day under general anesthesia examination and repair of the part, a surgeon Doctor (M.P. Singh) was requested to kindly assist and help for surgical manovia on dated 13.9.08 and found the following

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(i)Bruising on labia Mesore.

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(ii)There is laceration along with whole length labies- minus. This laceration is continuous down wounds with a laceration of posterior- up to anus.

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(iii)hymen raptured. Hormonal margin red and

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edematous.

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(iv) Vegina admits right index finger.

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Investigation- Two veginal sawb has taken and sent to pathological department Sadar hospital Chapra for presence or absence of spermatozoa and pathological examination X-Ray report with its 4 x-Ray report with it 4 X-Ray plate are received on dt. 15.10.08 done by Dr. Shambhu Nath Singh at Sadar Hospital chapra which are as follows:-

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(i)Head of the radium appeared

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(ii)All Small bones of wrist not appeared.

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(iii)Ephysis of distal end of ulna not appeared.

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(iv)Head of radium appeared.

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(v)Ischacum and plvis not found. Age 6 to 7 years.

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Pathological report received on dated 14.10.08 done by doctor R.D.Singh pathologist Sadar hospital Chapra shows (1) Few motile and many dead spermatozoa found (ii)many ethithelia cells with few R.B.C. found.

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Opinion- On accounts of above facts rep on victim. Age of victim girl as 6 to 7 years. This report is bears with may pen and signature which is marked as Ext.3.

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Patna High Court CR. APP (SJ) No.1144 of 2010 dt.01-08-2013

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And the condition found by the doctor is sufficient to indicate the manner under which about 5 or 6 years old child was subjected to cruelty and sexual assault.

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P.W. 10 Sachive Niwas Rai the investigating officer proved remaining numbers of exhibits, i.e. Ext. 4 to 7 and after completing investigation submitted charge sheet. His attention was drawn towards some discrepancies in the statement of witnesses examined, but in fact such minor discrepancies carrying no purpose. This witness in para-14 states about the statement of the doctor (not examined) who examined the victim for the first time. Of course, this witness failed to get blood stained clothes examined by scientific experts.

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In face of materials stated and discussed above the contention of learned counsel for the appellant about delay caused in institution of the case which was done on the following day cannot be accepted. The law is clear on the point. In the case of “ State of Uttar Pradesh Vs. Manoj Kumar Pandey ” reported in (2009) 1 S.C.C. 72 it is held as follows:-

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“………………….Apart from that normal rule regarding the duty of the prosecution to explain the delay in lodging FIR and the lack of prejudice and/or prejudice caused because of such delayed lodging of FIR does not per se apply to cases of rape……………..”

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Learned counsel tried his level best to shift the time of occurrence/recovery of the victim from around 3 P.M. to 12.30 noon in view of statement of P.W 4, Sunil Sah, but that too is not acceptable in face of consistent evidence of all other witnesses. There is also nothing on record even by way of suggestion to surface any reason for false implication of the appellant that too at the cost of prestige of family including the child who had faced such a trauma on remembering after 4 to 6 months during trial she started crying.

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Patna High Court CR. APP (SJ) No.1144 of 2010 dt.01-08-2013

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There appears no reason to interfere in the findings of the court

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below. Hence this appeal is hereby dismissed.

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(Akhilesh Chandra, J) Abhay/-

Shailesh Yadav v. State of Bihar

Case brief

What is this about?

What did the court decide?

Shailesh Yadav v. State of Bihar

Case brief

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