Dismissed

Rajendra Yadav v. State of Bihar

Patna HC13 May 2013CR. APP (SJ)/54/2001

Case brief

AI extract

What is this about?

The Patna High Court dismissed the criminal appeal against a rape conviction. The court held that the victim's testimony inspired confidence and did not require corroboration, rejecting arguments regarding the delay in lodging the FIR and lack of independent witness support.

What did the court decide?

Criminal Appeal dismissed; conviction and sentence affirmed; bail bonds cancelled and surrender directed.

Rajendra Yadav Vs State of Bihar — Patna HC (2013) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.54 of 2001 ========================================================= Rajendra Yadav, S/o Jaldhar Yadav, resident of village-Bhojalchak, P.S. Rajoun, District-Banka. .... .... Appellant . Versus The State of Bihar .... .... Respondent. ========================================================= Appearance : For the Appellant/s : Mr. Krishna Mohan, Advocate. Mr. Praveen Kumar, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. Dated/ the 13 th day of May, 2013. ========================================================= CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA C.A.V.JUDGMENT Hemant Kumar 1. This Cr. Appeal has been preferred by the above-named Srivastava,J. sole appellant against the judgment of conviction dated 24-01-2001 and order of sentence dated 25-01-2001 passed by learned Additional Sessions Judge-Ist, Bhagalpur in Sessions Trial No. 202 of 1985 by which and whereunder, he found the appellant guilty for the offence punishable under Section-376 of the Indian Penal Code and, accordingly, sentenced him to undergo rigorous imprisonment for ten years.

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The brief fact, giving rise to file this appeal, is that P.W. 7, namely, Sridhar Sah gave a written report to Officer-in-charge of Rajoun, Bhagalpur Police Station on 01-05-1984 stating therein that on 28-041984 at about 12.00 at noon, his daughter (P.W. 5) had gone on the bank of canal, situated east to his village, for collecting cow dung. The appellant

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was grazing his she-buffalo there from before and he committed rape upon his daughter. His daughter returned to her home weeping and at that time, he was not present in his house but when in the evening, he returned to his home, he came to know about the above said incident and after that, he along with his daughter was going to police station but Ganeshi Yadav stopped him and gave threatening to kill him, if, he dared to go to the police station. He further stated in his written report that later on, having got opportunity, he went to police station and gave the abovesaid written report. He also stated in his written report that the age of his daughter was 12 years at the time of alleged occurrence and the clothes of her daughter, was smeared with blood and her cloth was also turn. He gave the name of Jyotish Yadav, Keshori Das, Satish Das, Sudgeo Das, Surendra Jha, Sahdeo Jha, who had seen his daughter.

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On the basis of aforesaid written report, Rajoun P.S. Case No. 60 of 1984 under Section-376 of the Indian Penal Code was registered on 01-05-1984 and on the same day, formal FIR was drawn up against the appellant for the offence under Section-376 of the Indian Penal Code. The FIR and written report was dispatched to the concerned Magistrate on 02-05-1984 and the same were put up before the Additional Chief Judicial Magistrate on 03-05-1984.

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The matter was investigated by the investigating officer and after completion of investigation, he submitted charge sheet for the offence under Section-376 of the Indian Penal Code against the appellant. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way.

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The appellant stood trial and, accordingly, he was charged

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for the offence punishable under Section-376 of the Indian Penal Code on 01-08-1988. The appellant denied the charge and claimed to be tried.

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In course of trial, altogether, 9 prosecution witnesses were examined. Besides it, the prosecution also got exhibited written report as Ext. 1, injury report of the victim (P.W. 5) as Ext. 2 and formal FIR as Ext. 3. The statement of appellant was recorded u/S 313 of the Cr. P.C. in which, he reiterated his innocence. No evidence was adduced by the appellant in support of his defence but from perusal of the statement recorded u/S 313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses, it appears that the defence of the appellant was total denial of the prosecution story.

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Learned trial court, having relied upon the testimonies of P.Ws. 5, 6 & 7, convicted and sentenced the appellant in the manner as stated above.

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Learned counsel appearing for the appellant challenged the impugned judgment of conviction and order of sentence, arguing that the learned trial court failed to appreciate the materials, available on the record, in right perspective and committed error in convicting and sentencing the appellant. Continuing his argument, he submitted that except the victim as well as her parents, not a single prosecution witness supported the prosecution story and moreover, the statement of victim was also not corroborated by the medical evidence as the doctor who examined the victim after the alleged occurrence, did not find any sign of rape on the person of the victim. He further submitted that according to prosecution case itself, the written report was given by P.W. 7 after three days of the alleged occurrence and no sufficient and plausible explanation

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of the aforesaid delay was given by P.W. 7 in his written report. He submitted that in course of trial, P.W. 7 improved his statement with an intent to explain the delay saying that due to Panchayati, he could not lodge the case on the alleged date of occurrence but not a single witness on the point of Panchayati was produced on behalf of the prosecution and, therefore, prosecution could not succeed to explain the above-said inordinate delay in lodging the first information report. He also submitted that the I.O. was not examined by the prosecution in course of trial and, furthermore, blood stained clothes as well as torn clothes of the victim were not produced before the I.O. though P.W. 5 and P.W. 6 stated that the clothes of the victim were smeared with blood and, therefore, nonproduction of clothes of the victim also creates doubt about the genuineness of the prosecution story. He further submitted that in course of trial, a specific suggestion of false implication was given on behalf of the appellant and although the aforesaid suggestion was denied by P.W. 7 but in spite of that, learned trial court convicted the appellant on the testimonies of interested prosecution witnesses and, therefore, the impugned judgment of conviction and order of sentence cannot sustain in the eye of law.

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On the other hand, learned Additional Public Prosecutor appearing for the state supported the impugned judgment of conviction and order of sentence arguing that no doubt, only the victim as well as her parents supported the prosecution case and not a single independent witness came forward to support the prosecution story but it is well settled principle of law that the judgment of conviction can be passed even on solitary statement of victim of rape, if her statement inspires confidence.

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He submitted that in the present case, the defence could not succeed to shake the credibility of P.Ws. 5, 6 & 7 and, therefore, even if, the statement of P.W. 5 (victim) is not corroborated by any evidence then also, the court could have convicted the appellant only on the basis of sole testimony of the victim (P.W. 5) because according to P.W. 5 (victim) when the appellant committed rape upon her, none was present near the place of occurrence.

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As I have already stated, altogether, 9 prosecution witnesses were examined on behalf of the prosecution in course of trial. Out of them, P.Ws. 1, 2, 4 have been declared hostile and they have stated nothing about the alleged occurrence. Although P.W. 1 admitted in his cross-examination that police had taken his signature on the paper of seizure but the aforesaid paper of seizure was not brought on record by the prosecution. All the above said prosecution witnesses (P.Ws. 1, 2 & 4) denied to have made statement before the police.

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P.W. 9 is a formal witness. This witness proved formal FIR as Ext. 3 but admitted that the aforesaid formal FIR had not been prepared in his presence.

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P.W. 8 Dr. Smt. Bharati Sarkar had examined P.W. 5 on 02-05-1984 but she did not find any external or internal injury on the person of P.W. 5. This witness proved injury report of P.W. 5 as Ext. 2 and stated that after 48 hours of sexual intercourse, spermatozoa is not found in the private part. She also admitted in her cross-examination that there was no definite evidence of rape and vaginal swab did not show the presence of any spermatozoa and she did not find any injury on the internal genitalia.

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According to prosecution case, the alleged occurrence took place on 28-04-1984 and admittedly, the victim was examined on 0205-1984 i.e. after four days of the alleged occurrence. So, non-presence of spermatozoa was quite natural.

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Now the most important prosecution witnesses are; P.W. 5, P.W. 6 & P.W. 7.

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P.W. 5 is victim girl. She was examined by the trial court on 07-01-1990 i.e. after near about six years of the alleged occurrence. On the date of her examination, the learned trial Judge assessed her age as 22 years though she disclosed her age as 16 years. She stated that on the alleged date of occurrence, while she was returning to her home after collecting cow dung, the appellant committed rape upon her near canal which was situated at Kurumchak Bahiyar. She stated that on account of above-said forcible intercourse, blood oozed out from her private part and blood smeared on her Sari and Petticoat. She also stated that the place of occurrence was a lonely place and there was no other person near the place of occurrence at the time of alleged occurrence. She further stated that after the aforesaid occurrence, she came weeping to her home where she narrated the entire story to her mother (P.W. 6) and after that, villagers came there. She further stated that her father (P.W. 7) was not at home and he came in the evening and after that, she narrated the entire story to him also. She identified the appellant who was present in dock. On being cross-examined, she stated that police came to his village either on Sunday or Monday and after that, she was sent to Bhagalpur Hospital where her medical examination was done. She also stated that police recorded her statement. At paragraph-10 of her cross-examination, she

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narrated the manner in which, she was raped by the appellant and while narrating the manner of her rape, she stated that she had sustained some injuries. She frankly stated that on the alleged date of occurrence, she had not gone to police station but on the next day, she went to police station along with her father. She also stated that police recorded her statement at police station and prior to the aforesaid statement, police had inquired from her, in respect of the above said occurrence. She stated at paragraph-13 of her cross-examination that she had not given blood stained clothes to police. She denied the suggestion of the defence.

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The statement of P.W. 5 is corroborated by her mother (P.W. 6) who stated that on the alleged date of occurrence, she was at her home and her daughter came weeping to home. She further stated that she noticed blood on the clothes of her daughter and on query; her daughter replied that the appellant had committed rape upon her near canal, situated at Kurumchak Bahiyar. She further stated that when her daughter disclosed the above-said incident, Surendera Jha, Sahdeo Jha, Kishori Das, Sugdeo Das were present in her house and her daughter narrated the incident to the above-said persons also. She further stated that when her daughter narrated the aforesaid incident to her; her husband was not present in the house and he returned at about 6.00 p.m. and then her daughter as well as she disclosed the entire story to him. He further stated that villagers told that they would convene a Panchayati but they facilitated the appellant in fleeing from his house. She further stated that co-villagers as well as people of Yadav Community of her village gave threatening of dire consequences and on account of the aforesaid reasons; her husband did not visit the police station on the day of alleged

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occurrence. She further stated that no Panchayati was convened. She also stated that she washed the clothes of her daughter and after three days of the alleged occurrence, her husband went to police station and after that, police came to her village on Tuesday and recorded the statement of her daughter as well as villagers. She stated that her statement was recorded by police after three days and in between the aforesaid period; she did not disclose the aforesaid fact before Chowkidar and Mukhiya as well as others. She also stated that Chowkidar of her village did not visit her home after the alleged occurrence though he was residing in her village at the time of alleged occurrence. Although attention of this witness was drawn to her statement recorded u/S 161 of the Cr.P.C. but it appears to me that defence could not succeed to shake the credibility of this witness.

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P.W. 7 is informant and father of P.W. 5. This witness supported the contents of written report and stated that when he came to his house, her daughter narrated the entire incident of rape to him. He further stated that he was going to police station to lodge the case but the father as well as agnates of the appellant stopped him, giving threatening to kill him and they also stated that the Panchayati would be held but they did not convene any Panchayati and again, on the next day, when he tried to go to the police station, the above-said persons again stopped him. He further stated that after three days of the alleged occurrence, he, anyhow, managed and went to the police station where he gave written report. This witness proved his written report as Ext.A. He admitted in his crossexamination that after the alleged occurrence, he had informed the Chowkidar of his village and while he along with Chowkidar, was going to

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police station, the people of the Yadav community stopped them. He further stated that he did not give any information in his Panchayat because he could not get an opportunity to come out of his house. He also stated that he had not written the factum of Panchayati in his written report. He further admitted that he did not hand over blood stained clothes to police nor he had seen any blood stained cloth but he had shown the torn clothes to police. He denied the suggestion of defence that he had taken paddy on credit from the appellant and when the appellant demanded his money, he lodged false case against the appellant.

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On careful scrutiny of the evidence available on the record, I find that the victim, specifically, stated that it was the appellant who committed rape upon her and there is nothing in her deposition to suspect her credibility. So far as P.Ws. 6 & 7 are concerned, they came to know about the alleged occurrence from P.W. 5 and they explained almost all the circumstances, in which, the case was lodged.

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It has been argued on behalf of the appellant that not a single prosecution witness, came forward to prove the fact of Panchayati but I am not at all convinced with the aforesaid contention because P.W. 7 specifically, stated that no Panchayati was convened though the agnates of the appellant had given the assurance to arrange a Panchayati on the point of alleged occurrence and, therefore, it cannot be said that prosecution could not succeed to prove the fact of Panchayati because when the Panchayati was not convened, the question of witnessing the aforesaid Panchayati by any person, does not arise.

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It has also been argued on behalf of the appellant that no independent witness came forward to support the prosecution story and

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except the victim as well as her parents, there is none other to support the prosecution story but again, I am unable to accept the aforesaid contention, because it is well settled principle of law that the statement of victim of rape does not require any corroboration, if, the aforesaid statement inspires confidence. In the present case, the defence could not succeed to elicit anything from the deposition of prosecution witness Nos. 5, 6 & 7 to discard their testimonies and, therefore, it cannot be said that the testimonies of P.Ws. 5, 6 & 7 are not reliable in absence of any corroboration.

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So far as non-examination of investigating officer is concerned, there is nothing on the record to show that any prejudice has been caused to the appellant due to non-examination of the investigating officer.

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Although, there appears to be some contradictions in deposition of prosecution witnesses but the aforesaid contradictions are quite natural because, admittedly, P.Ws. 5, 6 & 7 were examined after six years of the alleged occurrence and, therefore, only on the basis of minor contradictions, the entire prosecution case cannot be thrown out.

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No doubt, the alleged occurrence took place in the year, 1984 and at the time of pronouncement of the judgment, the appellant was aged about 40 years and he is now aged about 52 years, but the offence committed by the appellant, is very serious and heinous in nature and, therefore, I am of the opinion that learned trial court rightly, sentenced the appellant to undergo rigorous imprisonment for ten years and there is no need to modify the aforesaid order of sentence, except to this extent that the period, already undergone by the appellant in course of trial as well as

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during pendency of this appeal, shall be set off to his period of sentence.

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On the basis of aforesaid discussions, I find no merit in this appeal and in my view, this appeal must be dismissed.

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Accordingly, this Cr. Appeal is dismissed and the impugned judgment of conviction and order of sentence is, hereby, affirmed.

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The appellant is on bail. His bail bonds is cancelled and he is directed to surrender before the learned trial court within a month from today, failing which, the learned trial court shall take all possible steps to procure the attendance of the appellant, so that, he could serve out his remaining sentences.

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Patna High Court Dated/ the 13th day of May, 2013. NAFR/A.K.V.

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(Hemant Kumar Srivastava, J)

Rajendra Yadav v. State of Bihar

Case brief

What is this about?

What did the court decide?

Rajendra Yadav v. State of Bihar

Case brief

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