Patna High Court
Subhan Mansoori & Ors vs State Of Bihar on 6 November, 2012
Author: Amaresh Kumar Lal
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.818 of 2006
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1. Subhan Mansoori son of late Jumman Mansoori.
2. Subharati Mansoori son of Kailu Mansoori
3. Idrish Mansoori @ Md. Idrish son of Nazir Mansoori
All residents of village- Sijaulia P. S. Phulparas District Madhubani.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
with
Criminal Appeal (DB) No. 1020 of 2006
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Md. Kasim Mansoori son of Anwar Mansoori, resident of village Sijaulia P. S.
Phulparas P. O. Sijaulia, District- Madhubani.
.... .... Appellant/s
Versus
State Of Bihar
.... .... Respondent/s
===========================================================
{Against the judgment of conviction dated 14.8.2006 and order of
sentence dated 19.8.2006 passed by Sri Ram Dhani Sah, learned
Additional Sessions Judge, FTC-V, Madhubani in Sessions Trial No.
389 of 2003}
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Appearance :
(In CR. APP (DB) No. 818 of 2006)
(In CR. APP (DB) No. 1020 of 2006)
For the Appellant/s : Mr. B. P. Pandey, Sr. Adv.
Mr. Jagnnath Singh, Adv.
Mr. S. C. Giri, Adv.
Mr. P. K. Sinha, Adv.
For the Respondent/s : Mr. Ashwini Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE AMARESH KUMAR LAL
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)
Date: 06-11-2012
Cr. Appeal (D.B.) No. 818 of 2006 filed by Subhan
Mansoori, Subharati Mansoori and Idrish Mansoori @ Md. Idrish
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 2
and Cr. Appeal (D.B.) No. 1020 of 2006 filed by Md. Kasim
Mansoori have been preferred against the judgment of conviction
dated 14.8.2006 and order of sentence dated 19.8.2006 passed by
learned Additional Sessions Judge, FTC-V, Madhubani in
Sessions Trial No. 389 of 2003 by which they have been convicted
and sentenced to imprisonment for life and a fine of Rs.5000/-
each for the offence punishable under Section 376 (2)(G) i.e.
376/34 of Indian Penal Code (hereinafter referred to as 'IPC') and
in default of payment of fine to undergo further rigorous
imprisonment for a period of one year.
2. Since both the appeals arise out of Phulpras P. S.
Case No. 43 of 2003 corresponding to G. R. No. 298 of 2003, they
have been heard together and are being disposed of by this
common judgment.
3. The prosecution case, in brief, is that on 7.4.2003 at
about 6.30 p.m. Sushila Kumari aged about 14 years (P.W. 7),
daughter of the informant Ram Swaroop Bhur (P.W. 8) was
coming back to her house with her three friends, namely,
Sakuntala Kumari (P.W. 4), Binita Kumar (P.W. 9) and
Kaushalaya Kumari (P.W. 5) after worshiping at Durgasathan,
Bajraha. When they reached at a distance of three and a half
kilometer north from Bajraha Tola, the appellant Subhan Mansoori
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 3
aged about 30 years, Idrish Mansoori aged about 28 years,
Shobharati Mansoori aged about 27 years and Md. Kasim
Mansoori aged about 25 years chased them and caught hold of the
victim (P.W. 7), took her in the wheat crop field and all of them
committed rape one after another. Her three friends (P.Ws. 4, 5
and 9) came running to the village and informed about the
occurrence to the informant. The informant (P.W. 8) and others
came to the place of occurrence where they found the victim (P.W.
7) lying unconscious in the wheat field and the accused had fled
away. Brahmadeo Rai (P.W. 2) told that he had seen the
occurrence. Other witnesses have also seen the occurrence.
4. On the basis of written report of the informant (P.W.
8) Phoolparas P. S. Case No. 43 of 2003 dated 17.4.2003 was
registered against the appellants for the offence punishable under
Section 376/34 IPC. After investigation charge-sheet was
submitted. Cognizance was taken. The case was committed to the
court of session. The charge was framed against the appellants
which they denied and claimed to be tried, as such, the trial
proceeded against them.
5. The defence of the appellants is complete denial of
the occurrence and false implication in the case. After trial all the
appellants have been found guilty and have been sentenced as
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 4
aforesaid.
6. This Court is required to reappraise the evidence
and to consider as to whether the prosecution has been able to
substantiate its case beyond shadow of all reasonable doubts or
not ?
7. Learned counsel for the appellants has submitted
that the appellants have been falsely implicated in this case due to
land dispute. The informant was bataidar of the accused and when
the land was taken back, they have been falsely implicated in this
case. He has also submitted that the alleged occurrence has taken
place on 7.4.2003, whereas, the complaint case has been lodged by
the father of the victim on 17.4.2003 and there has been no
explanation for such delay.
8. Learned counsel for the State has submitted that the
victim is a minor unmarried girl. She has been gang raped by the
appellants who are the influential person of the locality and due to
their apprehension there has been delay in lodging the FIR. The
delay has been properly explained by the prosecution as it appears
from prosecution witnesses. He has also submitted that there is no
motive for false implication as it appears from the prosecution
evidence that there has been no land dispute between the informant
and the appellants. The evidence of the ocular witness is quite
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 5
natural and convincing and it has rightly been relied upon by the
learned trial court. This Court is not required to interfere with the
impugned judgment.
9. The prosecution has examined the following
witnesses to prove its case:- P.W. 1 Kapil Deo Sahu, P. W. 2
Brahmdeo Rai, P. W. 3 Jit Narain Bhatt, P. W. 4 Shakuntala
Kumari, P. W. 5 Kausalya Kumari, P. W. 6 Siyalal Bhatta, P. W. 7
Susheela Kumari, P. W. 8 Ram Swaroop Bhatta, P. W. 9 Vineeta
Devi, P. W. 10 Ashok Kumar, and P. W. 11 Dr. Nirmala
Kumari. No witness has been examined by the defence.
10. Let us examine the evidence of victim P.W. 7. She
has stated that about one year eight months' ago at 6.30 p.m. the
victim had gone to worship and was returning with her friends
(P.Ws. 4, 5 and 9) to her house. When they went ahead Mango
Orchard near Bajaraha Tola appellants Subhan Mansoori,
Subharati Mansoori, Idrish Mansoori and Kasim Mansoori came
out from the orchard and ran towards them. Due to fear she and
her companion started running. She slipped and fell down and her
three companions went ahead. All the appellants caught hold of
her and took her in the wheat field. She was thrashed on the
ground and they committed her rape one by one which caused her
immense pain and blood oozed out from her private part. She has
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 6
identified all the appellants. Brahmadeo (P.W. 2), Jit Narain Bhatt
(P.W. 3), Kapildeo Sahu (P.W. 1) and others came there.
Thereafter, all the appellants fled away. She was taken to her
house by the co-villagers as she was unable to walk. The co-
villagers asked the family members not to lodge the case as the
appellants are rich persons. There was a panchayati and it was
decided in Panchayati that hairs of the appellants be shaved and
they should be fined but the appellants did not abide by decision of
Panches. Thereafter, at the instance of co-villagers, her father
(P.W. 8) lodged this case. She has further stated that at the time of
occurrence she was unmarried and after one year of the occurrence
she was married. She has been cross-examined at length from
which it appears that she has stated about the commission of rape
by the appellants in detail. She has also stated that she is illiterate.
She can only write her name. In paragraph 18 she has denied the
suggestion of the appellants that the land of the appellant Subhan
Mansoori is near her house. She has also stated that prior to the
occurrence there has been no land dispute with the accused
appellants.
11. P. W. 4 Shakuntala Devi is aged about 19 years, P.
W. 5 Kaushalya Kumari aged about 20 years and P. W. 9 aged
about 22 years have stated that on the date of occurrence they had
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 7
gone to worship at Bajraha Durga Sathan, Bajraha Tola with the
victim Sushila Kumari (P.W. 7) and they were returning in the
evening at about 6.30 p.m. when they reached near Orchard
Bajraha Tola, they saw four boys. They chased them. They have
also named the accused as Subhani, Kasim, Idris, Subharati. The
leg of the victim slipped and she fell down. Thereafter, accused
took her in wheat field and committed her rape. All the three
witnesses have identified the accused appellants in the Court. They
have also been cross-examined. P. W. 4 in her cross-examination
has stated that the houses of the witnesses are at a distance of half
kilometer from the place of occurrence. They have stated about the
occurrence to the father and brother of the victim at her house. In
paragraph 19 she has stated that prior to the occurrence there has
been no land dispute between the prosecution witnesses and the
accused. In paragraph 20 she has stated that no land of Subhan is
near her house. In paragraph 20 she has stated that no land of
Subhan is near her house. P. W. 5 has stated that after the
occurrence on raising alarm, the persons of locality came there and
they tried to apprehend the accused but they escaped. In paragraph
10, she has stated that she does not know as to whether there is
land of the accused near the house of her parents. P. W. 9 in her
cross examination has stated that out of four friends three were
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 8
married and only the victim was unmarried on the date of
occurrence. P. W. 9 has also been cross-examined at length. She
has been cross-examined at different points. She has stated in
paragraph 10 that when all the four girls were returning to their
house all the accused chased them running away, Sushila fell
down and all the three went ahead, raised alarm and continued to
run away. She went to the village within minutes. In paragraph 11
she has stated that near the place of occurrence there was all
around wheat field which has also been harvested from some field.
She has stated in paragraph 12 that when three girls were escaping
Brahmadeo was found in the way. She also told about the
occurrence and raising alarm all the three went to the village. She
has also stated that Brahmadeo (P.W. 2) returned to the village
after taking the victim. In paragraph 16 she has stated that later on
Sushila (victim) told that all the four appellants committed her
rape and blood was oozing out. There was blood stains on her
lower garments. In paragraph 16 she has stated that the accused
Kasim and others have not purchased any land from the informant.
Subhan Mansoori has also no land in her village. From the
evidences of these witnesses it appears that their evidence is quite
natural and trustworthy and it inspires confidence.
12. P. W. 1 Kapil Deo Sahu is a hearsay witness. He has
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 9
also stated that after hearing noise he saw four persons escaping
but he could not identify them. He went to the place of occurrence
and saw the victim lying in the wheat field in senseless condition.
He has also stated that appellants Subhan Mansoori, Kasim
Mansoori and others thrashed her and committed her rape. He has
also been cross-examined.
13. P. W. 2 has stated that he heard the noise of girls
and rushed towards it and found that Kaushalya, Binita and
Shakuntala (P.Ws. 4, 5 and 9) were raising alarm and were
running. On query they told that while they were returning after
worship from Durgasthan and reached near the orchard, four
persons chased them and Sushila fell down. She was taken away
by the four boys who committed her rape. He went to the place of
occurrence and saw Subhan and Subharati committing rape. After
seeing him they fled away. He has also been cross-examined at
length. In paragraph 11, he has stated that prior to the occurrence
he was cultivating the land of Subhan Mansoori. He took the land
back.
14. P. W. 3 Jit Narain Bhatt has supported the
prosecution case as a hearsay witness and he has stated that after
hearing noise he went to the place of occurrence and saw 3-4 boys
running away and out of them he identified Subhan and Idrish
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 10
Mansoori and went to the place of occurrence and found that
Sushila (victim) was senseless. He and others reached and took the
victim to her house. In paragraph 10 of his cross-examination, he
has stated that victim is not his relative. Subhan Mansoori had
purchased land from Kaushal Kumar Singh. He also wanted to
purchase that land which was not transferred to him.
15. P. W. 6 Siyalal Bhatta is also a hearsay witness. He
has stated that Kaushalya, Bineeta and Sakuntala returned to their
village raising alarm that the appellants committed rape of the
victim girl. He rushed to the place of occurrence and saw four
persons running away. He has also stated that after gaining sense
the victim also stated about the occurrence of rape by these
appellants. In his cross-examination he has stated that the victim is
his niece. He has further stated that on the place of occurrence, he
has found blood fallen on the place of occurrence and also on
wheat crop. He does not know as to whether the police officer
collected it or not. In paragraph 11 he has stated that he does not
cultivate the land on batai of the accused.
16. P. W. 8 is the father of the victim girl. He is also a
hearsay witness. He has stated that he lodged the case on the basis
of information collected from victim (P. W. 7) and her friends
P.Ws. 4, 5 and P.W. 9. He has also stated that P. W. 1, P. W. 2, P.
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 11
W. 3 and others went to the place of occurrence. Her daughter was
in the field. She was brought to her house and he saw the blood
stains in her cloth. He was going to the police station in the night
itself but the co-villagers stopped him and requested to settle the
matter by panchayati. Panchayati was continued for 3-4 days but
the accused did not abide by decision of Panch. After 10-12 days
he lodged the case. He gave written information in the police
station which bears his signature (Ext. 1). The written information
was in the writing of Umesh Rai (not examined). He has claimed
to identify all the accused. He has stated that on the date of
submission of the information petition the police officer came to
the place of occurrence. In his cross-examination he has stated that
all the four accused are not relatives and they are from different
families. He has also stated that there has been no decision of
Panch in writing. Panchayati was held on the next date of
occurrence. He has also stated that blood stain cloth of the victim
had been given to the police officer on the day when the case was
lodged. He had not seen the occurrence. He got information about
the occurrence for the first time from girls (P.Ws. 4, 5 and 9). He
has also stated that he had no concern with the appellants prior to
the occurrence. He had denied the suggestion of the defence that
due to land dispute, these appellants have been falsely implicated
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 12
in this case.
17. P. W. 11 Dr. Nirmala Kumari who had examined
the victim on 22.4.2003 at 12 O'clock while posted as medical
officer in Sadar Hospital, Madhubani, found the following:-
Height 4' 11" weight 44 kg teeth 14 each jaw i.e. 14/14
breast developed axillary and pubic hair present. No external
injury was found. External injury- abrasion on right side of vagina,
hymen not intact. Vegnial swab was examined. Spermatozoa was
not found. On the basis of X-ray report and radiology test her age
was estimated about 18 years. She has stated that the medical
certificate is in her pen and signature which has been marked as
Ext. 5. In her cross-examination she has stated that she has given
her finding on the basis of radiology report of Dr. N. K. Singh.
18. P.W. 10 has stated that on 17.4.2003 he was
Officer-in-Charge of Phulparas Police Station. The informant gave
a written application on the basis of which Phulparas P. S. Case
No. 43 of 2003 was instituted for the offence punishable under
Section 376/34 IPC. He proved the endorsement (Ext. 2), on the
basis of which formal FIR (Ext. 3) was instituted. He himself took
the charge of investigation, recorded the restatement of the
informant. He also made query from the victim who supported the
occurrence. He visited the place of occurrence which was wheat
Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 13
field at village Sijauliya in the north of Bajraha Tola. At the time
of his investigation wheat crop had been harvested and he did not
find any remarkable mark. He got the victim girl examined in
Sadar Hospital, Madhubani. During investigation, he found blood
stains in the lower garment of the victim and also soil in upper
garments of the victim. The cloth were seized and seizure list (Ext.
4) was prepared by him and it was witnessed by P. W. 1 Kapildeo
Sah and Ramswaroop. He also took the statement of the witnesses
and after receipt of the medical examination report he came to the
conclusion that the victim has been raped and he submitted charge-
sheet. In his cross-examination he has stated thathe FIR was
lodged on 17.4.2003 at 4 p.m.. The date of occurrence is 7.4.2003.
The case was lodged after 10 days of the occurrence. He took the
statement of the victim on 17.4.2003 and also visited the place of
occurrence on the same day. The place of occurrence is at a
distance of 6 kilometre from the police station. He sent FIR to the
Court on 18.4.2003. He sent the victim for medical examination on
18.4.2003and her parents were also with her. At that time female constable was not available there. In his cross-examination, he has stated that he did not send blood stained cloth of the victim for forensic examination.
19. After hearing learned counsel for both the parties Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 14 and on perusal of evidence as discussed above, we find that P. Ws. 4, 5, 7 and 9 were the friends and they have gone to another village for worship while they were returning in the evening and came near the orchard the appellants chased them. The victim (P.W. 7) fell down and her friends went ahead raising alarm. The victim was taken to wheat field and the appellants committed her rape. The evidence of these witnesses are quite natural and convincing. P. Ws. 1, 2, 3 6 and 8 are hearsay witness who have gone to the place of occurrence. P. Ws. 1, 2 and 3 have also seen the appellants running away from the place of occurrence. The evidence of these witnesses stands corroborated by the medical evidence of P. W. 11 who has also found injury on the private part of the victim. P. W. 10 has also found blood stains on the lower garments of the victim but he has not taken pain to get it examined by the Forensic Science Laboratory. The non-examination of blood stains cloth of the victim does not affect merit of the present case.
20. It is settled principle of law that the charge of rape is legal even on the uncontroverted testimony of a prosecutrix. There are several decisions on this point. It appears that decision in the case of Madho Ram vs. State of U. P. reported in AIR 1973 SC 469=1973 Crl. Law Journal 673 is also a land mark judgment on Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 15 this point. It is better to quote paragraph 11 of the aforesaid judgment of the Hon'ble Supreme Court:-
"11. We are not inclined to accept any of the contentions of Mr. Mulla. The principles that have to be borne in mind by courts when considering evidence of the prosecutrix, have been clearly laid down by several decisions of this Court. It has been held that the prosecutrix cannot be considered to be an accomplice. As a rule of prudence, however, it has been emphasised that Courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person, accused of abduction or rape, has not been falsely implicated. The view that, as a matter of law, no conviction without corroboration was possible has not been accepted. The only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the Judge or the Jury, as the case may be. There is no rule of practice that there must in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the court is of the opinion that it is not safe to dispense with that requirement, it has also been laid down that the type of corroboration required must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence with which a person is charged. (See Rameshwar v. The State of Rajasthan, 1952 SCr 377 = (AIR 1952 SC
54); Sidheswar Ganguly v. The State of West Bengal, 1958 SCR 749 = (AIR 1958 SC 143).) These principles have also been reiterated in the recent judgment of this Court in Gurcharan Singh v. State of Haryana, AIR 1972 SC 2661."
21. In the present case, the evidence of prosecutrix Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 16 (P.W. 7) stands corroborated by the evidence of P.Ws. 4, 5 and 9. The doctor has also found the sign of injury on the private part of the prosecutrix. The other witnesses P.Ws. 1, P. W. 2, P.W. 3, P. W. 6 and P. W. 8 have also supported the prosecution case as hearsay witness. The appellants have failed to prove their false implication due to land dispute with the informant. None of the prosecution witnesses has stated that the informant had any land dispute with the appellants or the informant has ever cultivated the land of the appellants. The plea of the defence is also not acceptable that the informant will falsely implicate the appellants in the case of rape which is a social stigma on the part of fairsex. It has also been proved that at the time of commission of rape the prosecutrix was an unmarried girl as such no father will falsely implicate any person at the stake of his own daughter by casting heinous stigma on his daughter.
22. Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment. Both the appeals have got no merit and accordingly they are dismissed. The bail bonds of appellant Md. Kasim Mansoori (in Cr. Appeal (D.B.) No. 1020 of 2006) is cancelled and he is directed to surrender before the learned trial court to serve out the sentence within a period of one month, failing which the learned Patna High Court CR. APP (DB) No.818 of 2006 dt.06-11-2012 17 trial court will take effective steps for his custody to serve out the sentence. The others appellants are already in custody and they will serve the sentence.
(Shyam Kishore Sharma, J)
A. F. R./Kanchan (Amaresh Kumar Lal, J)