Appeal against conviction and sentence for rape allowed on the ground that the specific direction for fine recovery from the convict's property was contrary to law. The conviction itself was upheld by the appellate court.
Conviction upheld; direction for fine recovery from movable/immovable property set aside as contrary to law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.229 of 2014
Arising Out of PS. Case No.-202 Year-2011 Thana- BARARI District- Katihar
====================================================== Saifuddin, S/o Late Usman Ali, resident of Village-Bari Raksi, P.O.-Madhura, P.S.-Korha, District-Katihar.
... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Pawan Kumar Singh-Advocate For the Respondent/s : Mr. Bipin Kumar-A.P.P. ======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT
01-08-2019
Appellant Saifuddin has been found guilty for an offence punishable under Section 376 of the I.P.C. and sentenced to undergo R.I. for seven years as well as to pay fine appertaining to Rs.50,000/- and in default thereof, to undergo R.I. for one year, additionally, with a further direction that in case of deposit of fine, 80 per cent will be given to the victim with a further direction that the fine will be realized from the movable or immovable property of the convict by the Sessions Judge, Katihar vide judgment of conviction dated 07.02.2014 and order of sentence dated 11.02.2014 passed in Sessions Trial No.314 of 2012 arising out of Barari (Semapur) P. S. Case No.202 of 2011.
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medically estimated in between 13-14 years resident of village-Jolda, A-Block, P. S.-Raghunath Polly, District-Sundergarh, Orissa gave her fard-bayan on 18.11.2011 at about 8.00 P.M. disclosing therein that at the morning while she was at Malda Station, one unknown person allured her and then, succeeded in having her company, who during course of conversation disclosed his identity as Saifuddin, son of Late Usman Ali of village-Bari Raksi, P. S. Korha, District-Katihar on the pretext of getting her to her house and at that very pretext, took her to Katihar and then, brought her to Semapur Station where he instructed to get down and then, threatened that now, you are under my clutch, so obey his instruction, otherwise she will be eliminated. On the other hand, also said that if she refused to accept, then in that circumstance, he will not accompany her to her house. Out of fear and being alone, she followed him. During course thereof, they have crossed one small market and then, took her towards a house having impression of temple lying full of darkness. He forcibly lie her down, untied her pazama, tied her mouth and then, committed rape. During course thereof, he threatened in case of raising alarm, she will be murdered. After rape, when he attempted to escape there from, she began to raise alarm attracting the persons of the surrounding, who apprehended the accused, who also assaulted the culprit, police was informed and then, after appearance of the police. Accused has been handed over side by side her statement is being recorded.
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apprehended at the spot by them, having been assaulted and then, was produced before the police. In the aforesaid background, evidence of PW-8, so alleged victim could not be relied upon in the background of the fact that manner whereunder she had disclosed name, parentage name, residence of the appellant speaks otherwise, when her other part of evidence are taken into consideration whereunder her mental incapability to perceive the surrounding, train by which, she had travelled from Delhi to Malda. She could not recognize the place where she was residing since before and so, this part clearly suggest that she was instrumental at the hands of others, whereupon the identification of the appellant did not find legally acceptable. That being so, the judgment of conviction and sentence is liable to be set aside.
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“Ab MI- A til on middle of a cheek.
ii) A til on right side of forehead ¼” lateral to midline.
About Age- Height 4 ft. 10 inches. Wt. 34 kgs. Breasts well developed. Auxiliary hairs not present. Pubic hairs were thin. Dental report given by Dr. Reena Kumari 7/7/7/7=28 teeth present. Radiological report given by Dr. M. K.
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Manish-(I) X-ray plate No.R-1173 dt. 19.11.11 shows that epiphysis of lower end of radius and ulna of both hands appeared but not fused. (II) X-ray plate No.R-1174 dt. 19.11.11 shows that epiphysis of iliac crests have started appearing. From the above findings in her opinion, her age was thirteen to fourteen (13-14) years.
About sexual intercourse- It was normal. No marks of injuries were present on her body. No foreign hairs was found around private part. No blood was found around or on the private part or on undergarment. There was redness around the introitus. Hymen was old torn. Vaginal orifice admitted one finger loose vaginal swab report given by pathologist Dr. R. Suman on M/E-multiple dead spermatozoa found. From the above findings hence I can say that recent sexual intercourse (within 24 hours) had been done. Vaginal swab report attached to office copy.”
During cross-examination whatever came from her mouth is to be taken note of. In Para-8, she has stated that she has found redness around the introitus and it may be caused by itching by nail. Except this no external or internal injury was found on her body.
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At Para-9, she has stated that in case of forceful rape injury may be found but due to fearness if rape has been done at that stage no sign of injury is made. That means to say, during commission of rape if the victim is to be under fear or overpowered, then in that circumstance, there would not be presence of no injury. The relevant part of finding is presence of dead of spermatozoa regarding which no cross-examination has been done and on the basis thereof, finding of rape to be within 24 hours, also remained unshaken.
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she slipped there from and then, through train, she got down at Malda Station where she met with the accused, who assured her to carry her to her village and on that very pretext, he brought up to Katihar and then, changed another train to Semapur and then, she was victimized. Up-till-now she has not gone to her place as she is residing at Mahila Help Line Katihar. The authority of the Mahila Help Line has stated that they have informed her parents, who have assured that they are coming. During cross-examination at the end of the accused, she has stated that she travelled from Delhi to Malda from Malda to Semapur. The accused had purchased the ticket. She met with the accused at Malda Station for the first time. On query, she had herself disclosed with regard to her identity and her desire to go to her house. However, when she got down at Malda Junction, she had not met with the police officials nor the Station Master. In Para-9, she has stated that she was assured by the accused. She followed him. Accused had taken her to Semapur. At that very moment, she had not complained. In Para-10, she has stated that after passing through Semapur Bazar, the accused had brought her to Kali Temple. It was distance of two minutes from Semapur Station. So many persons were present in the vicinity. She is unable to disclose their identity. At that very time, only priest was there, who was an old person. In Para-13, she has stated that accused had raped her in the temple campus. Police had come and took her to police station. She has not informed the police rather local inhabitants might have. She is unable
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to disclose the distance. She is unable to disclose the boundary of the temple.
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that P.O. is a temple. There happens to be a one room wherein deity is established, but rape was not committed in that room rather outside that room. Then has denied the suggestion that his investigation was faulty one.
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surrounding rather she happens to be of different State. So, neither there happens to be any occasion to them to have any opportunity over being a consenting party that too, when her status has not been challenged.
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saturation of the period of the sentence.
(Aditya Kumar Trivedi, J)
Vikash/-
| AFR/NAFR | A.F.R. |
|---|---|
| CAV DATE | N.A. |
| Uploading Date | 07.08.2019 |
| Transmission Date | 07.08.2019 |
3 issues framed by the court
Whether the appeal against conviction and sentence for rape under Section 376 IPC lacking merit based on the evidence recorded.
Whether the direction for realization of fine from the appellant's movable or immovable property was contrary to law.
Whether a single witness in rape cases requires corroboration when their evidence inspires confidence.
3 provisions across 3 enactments
Saifuddin, S/o Late Usman Ali
The State of Bihar
Aditya Kumar Trivedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
