Patna High Court
Mintu Manjhi vs The State Of Bihar on 9 October, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.893 of 2017 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.893 of 2017
Arising Out of PS.Case No. -73 Year- 2013 Thana -CHAPRA MUFFASIL District- SARAN
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Mintu Manjhi, s/o - Bir Bhajan Manjhi, resident of village - Fakuli, P.S. Chapra
Muffasil, District - Saran (Chapra).
.... .... Appellant/s
Versus
The State of Bihar.
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Abhay Kumar Singh-Advocate
Mr. Bharat Bhushan-Advocate
For the Respondent/s : Mr. S. Ashfaque Ahmad-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 9-10-2017
Appellant, Mintu Manjhi has been found guilty for an
offence punishable under Section 8 of POCSO Act and sentenced to
undergo R. I. for five years as well as fined appertaining to
Rs.25,000/- and in default thereof, to undergo S.I. for one year vide
judgment of conviction dated 17.02.2017, order of sentence dated
21.02.2017passed by the 1st Additional Sessions Judge-cum-Special Judge, POCSO, Saran at Chapra in connection with POCSO Case No.02 of 2015 arising out of Chapra Mufassil P. S. Case No.73 of 2013.
2. Name withheld, PW-11 aged about 11 years gave her fard-bayan while she was admitted at Sadar Hospital, Chapra on 27.03.2013 at about 3.00 p.m. in presence of her uncle Umesh Sharma Patna High Court CR. APP (SJ) No.893 of 2017 2 alleging inter alia that on the same day at about 1.30 p.m. while she had gone to field of Bhola Singh to ease herself and was to sit, Mintu Manjhi appeared, caught hold her, threw her on the ground, undressed her and then, committed rape. Out of severe pain, she raised cry whereupon he thrust towel inside her mouth. After committing rape, he escaped leaving her. Due to commission of rape, she was feeling severe pain as well as difficulty in walking. Anyhow, she got up, came to her house and then, disclosed the occurrence to her grandmother as well as uncle, who along with co-villagers brought her to Sadar Hospital for treatment, which was going on.
3. After registration of a case bearing Chapra Mufassil P. S. Case No.73 of 2013, investigation commenced and after completing the same, chargesheet was submitted under Section 376(2)(g)/34 of the I.P.C. against the appellant along with Mintu Singh, Chandan Kumar, Ram Prakash Ram (since acquitted). Then thereafter, cognizance was taken ultimately paving way for trial which concluded in a manner, the subject matter of instant appeal.
4. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, it has been pleaded that appellant on the alleged date and time of occurrence was at his house which lies away from the P.O. village and to substantiate the Patna High Court CR. APP (SJ) No.893 of 2017 3 same, two DWs have been examined.
5. In order to substantiate its case, prosecution had examined altogether 13 PWs, who are PW-1 Arun Sharma, PW-2 Umesh Sharma, PW-3 Kulwant Kumar Mahto, PW-4 Bimal Mahto, PW-5 Dablu Singh, PW-6 Ajay Kumar Singh, PW-7 Janardan Singh, PW-8 Babloo Kumar, PW-9 Sudhir Singh, PW-10 Dr. Kiran Ojha, PW-11, the victim, PW-12, Chameli Devi and PW-13, Sujit Das as well as had also exhibited viz. Exhibit-1 series, signature of informant as well as witnesses over fard-bayan, Exhibit-2 signature of police official over fard-bayan, Exhibit-3 medical report, Exhibit-4 signature of victim over statement under Section 164 of Cr.P.C., Exhibit-5 fard- bayan, Exhibit-6 endorsement over fard-bayan, Exhibit-7 formal F.I.R., Exhibit-8 series, seizure list as well as signature of respective witnesses, Exhibit-9 series, F.S.L. Report. As stated above, two DWs have been examined, who are DW-1, Satish Kumar Singh and DW-2 Rajiv Kumar Singh as well as had also exhibited, Exhibit-A further statement of the victim.
6. Before coming to merit of the case, it is apparent from the L.C. Record that appellant was identified solely to be the rapist as per initial prosecution version while during course of statement recorded under Section 164 of the Cr.P.C., victim had alleged that she was gang raped by four persons one by one and on account thereof, Patna High Court CR. APP (SJ) No.893 of 2017 4 chargesheet was submitted against all of them and accordingly, charge was framed under Section 376(2)(g)/ 34 of the I.P.C. After examination of the witnesses, a petition was filed on behalf of prosecution under Section 216 of the Cr.P.C. on 02.09.2015, whereupon objection was filed and after hearing the parties, vide order dated 15.09.2015, prayer of prosecution was allowed and in terms thereof, the accused were further charged for an offence punishable under Section 4 of POCSO Act. It is also evident from the order dated 15.09.2015 that the witnesses so examined till then, numbering upto PW-10 were re-summoned, but as is evident from the L.C. Record neither summon was issued against them nor they turned up on their own. That means to say, the evidence of PW-1 to PW-10 is found non-considerable relating to Section 4 of the POCSO Act. The subsequent witnesses after amendment of the charge are PW-11 the victim, PW-12 Chameli Devi and PW-13 Sujit Das.
7. The first and foremost argument having been made on behalf of learned counsel for the appellant while assailing the judgment of conviction and sentence is that the learned lower Court failed to appreciate the event visualizing from the L. C. Record in its right perspective. To substantiate the same, it has been submitted that the victim, PW-11 neither in her fard-bayan nor in her further statement had disclosed the event of gang rape committed by four Patna High Court CR. APP (SJ) No.893 of 2017 5 accused persons one by one, but when she was produced before the Magistrate for her examination under Section 164 Cr.P.C., she had developed the story and posed it to be an incidence of gang rape. In the aforesaid background, considering the tender age of the victim, it is apparent that she happens to be wholly unreliable as well as nicely tutored as a result of which, the learned lower Court while disbelieving her testimony relating to three others accused (since acquitted) should have also rejected the same relating to appellant by way of recording acquittal as once evidence of a witness is found de- raised, it has to be in its entirety and not in piecemeal manner. That means to say, learned lower Court should have treated the appellant in same way like other co-accused and would have acquitted the appellant.
8. Furthermore, it has also been submitted that now coming to status of independent witnesses including F.I.R. attesting witness, who happens to be uncle of the victim namely Umesh Singh (PW-2), though had admitted his presence over the fard-bayan, but disowned the occurrence and in the aforesaid background, apart from adversely affecting testimony of PW-11, victim, it had also cast doubt over reliability of evidence of Chameli Devi (PW-12), grandmother of the victim. In likewise manner, other material witnesses i.e. PW-1, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW-9 did not support Patna High Court CR. APP (SJ) No.893 of 2017 6 the case of the prosecution, whereupon they all were declared hostile. PW-13 is the I.O. and his objective finding relating to the alleged P.O. did not match with the version of PW-11, victim. So, it has been submitted that in spite of finding of the doctor (PW-10), who found injury over private part of the victim did not illustrate the prosecution case rather considering the prosecution case in its entirety suffer from uncertainty. Consequent thereupon, the judgment of conviction and sentence recorded by the learned lower Court happens to be perverse, cryptic, erroneous and is fit to be set aside.
9. On the other hand, learned Additional Public Prosecutor while supporting the finding of the learned lower Court has submitted that being of tender age, there was every possibility to left the names of other co-accused on account of suffering from trauma while meeting with horrifying situation, wherefrom she came out and under such situation she had detailed while examined under Section 164 of the Cr.P.C. in spite of the fact that F.I.R. should not be encyclopaedia, which the learned lower Court rejected without assigning any cogent reason. However, so far status of appellant is concerned, has been properly identified to be rapist, and is found corroborated with the evidence of PW-10, the doctor. Furthermore, recording of fard-bayan at Sadar Hospital, while she was admitted as indoor patient, is another circumstance, which corroborates the event. Patna High Court CR. APP (SJ) No.893 of 2017 7 It has further been submitted that though state has not challenged the judgment impugned, but manner whereunder the learned lower Court dealt with the evidence as well as in absence of vindicable reasoning, did not justify the finding recorded by the learned lower Court, at the other end, attracts remand after setting aside the same.
10. As is evident from the record, majority of witnesses including uncle of victim Umesh Sharma (PW-2), who was one of the attesting witness have become volte-face to the prosecution whereupon, PW-1, PW-2, PW-3, PW-4, PW-5, PW-6, PW-8, PW-9 were declared hostile. So far evidence of PW-7 is concerned, it is evident that he though supported the occurrence, but did not identify any of the accused including the appellant to be author of the crime. That means to say, prosecution case rest upon testimony of PW-10, Dr. Kiran Ojha, PW-11 the victim, PW-12 her grandmother Chameli Devi and PW-13 Sujit Das, the I.O. Before coming to the evidence of respective witnesses, it is manifest that PW-10 was examined before addition of charge under Section 4 of POCSO Act.
11. PW-10, the doctor had examined the victim on the date of occurrence itself that means to say, on 27.03.2013 and found following injury over her person:-
"There is no injury on her whole body. Pubic hair, axillary hair absent. Breast not Patna High Court CR. APP (SJ) No.893 of 2017 8 developed. There is fresh lacerated wound on post angle of vagina. Size 1.5 cm. depth, 0.5 cm upto mid of perineum. There is no any other injury on her private part. Hymen fresh teared, duration of injury within six hours. Two vaginal swab taken and sent for F.S.L. Chapra.
Report-Hishopathological examination done by Dr. D. Kumar says that spermatozoa not found either live or dead.
Opinion- On account of above fact we can say that the age of victim 9-11 years. Possibility of intercourse cannot be ruled out."
So, as per finding recorded by the PW-10, it is evident that she was subjected to sexual intercourse. At the present juncture, it looks desirable to have a glance over F.S.L. Report, which has been submitted and exhibited attracting Section 293 Cr.P.C., which shows presence of human blood over apparel as well as semen also.
12. PW-11 is the victim. Apart from her own disclosure being minor aged about 10 years, the doctor (PW-10) had also found her to be aged about 10 years coupled with the fact that her status also not been challenged on behalf of appellant. So, minority that too of Patna High Court CR. APP (SJ) No.893 of 2017 9 tender age is found out of controversy. During her examination-in- chief, she had deposed that on the alleged date and time of occurrence while she was going to ease herself in the field of Bhola Singh, she saw four persons Pintu @ Mintu Manjhi, Prakash Ram, Chandan Kumar Ram, Mintu Singh standing near Peepal tree and were laughing. They have not spoken anything to her. She crossed them. While she was about to sit, all the four came and forcibly lie her down. Her paint was un-zipped by Mintu Manjhi as well as Mintu Singh and then, all of them committed rape one by one. She raised alarm over which Mintu Singh gagged her mouth as well as threatened to commit murder in case she would disclose the incidence. Till then, she already raised alarm whereupon all of them escaped. She was not at all in a position to walk anyhow, she came to her house and disclosed the occurrence to her grandmother, whereupon her grandmother disclosed the event to his uncle, who was residing adjoining to her house. He took her to hospital where she was treated. Police came and recorded her statement. She put her signature. Her further statement was recorded on the same day. Police had taken away seized blood stain cloth. Her statement was also recorded under Section 164 of the Cr.P.C., identified the accused. She had further stated that out of aforesaid accused persons, only Mintu Singh was her co-villager, rest were of different villages. As they used to come to her village for menial work, on account thereof, she was able to identify Patna High Court CR. APP (SJ) No.893 of 2017 10 them. During cross-examination at Para-6, she had stated that it was Holi. She had not gone to ease carrying water. At Para-7, she had stated that she was wearing Jeans, T-shirt and Panty. Crops were already harvested from the field. She could not resist as all the accused persons have caught hold her leg and hand. In Para-8, she had further stated that there was trampling mark at the P.O. She had gone to hospital in same cloth. In Para-9, she had stated that after half hour of admission at hospital, police came and recorded her statement. At that very time, whatever she memorized, stated before the police. In Para-13, she had stated that it was not field of Bhola Singh rather Bhola Sah. Her legs and hands were not tied rather caught hold by the accused persons. She is unaware whether the towel, which was thrust in her mouth was shown to the police or not. In Para-15, she stated that she was not knowing since before father's name of Mintu Manjhi. Who had disclosed, she is not remembering. Then at Para-7, she had denied the suggestion that she was not raped. On behalf of others while she was cross-examined, she had stated that she is not remembering the time during course of which, she was raped. In Para- 19, she had stated that first of all, Mintu Manjhi had committed rape then Mintu Singh and then, Prakash Ram and then, Chandan Kumar Ram. She had further stated that after commission of rape that accused slipped and in successive manner, they committed rape. In Para-22, she had stated that as soon as she came to the field, she was Patna High Court CR. APP (SJ) No.893 of 2017 11 forced to lie down and then, they began to rape. She was crying. She had sustained some injuries over her body. There was bleeding which also fallen over her cloth. She had not sustained injury over any part of body. In Para-24, she had disclosed the locations of houses of different persons and the distance thereof from the P.O. Then had denied the suggestion that only for the purpose of squeezing money from the family of Mintu Singh, he has been named.
13. PW-12 is grandmother of the victim. She had said that it was Holi. She was at her house. She was cooking. Her granddaughter came and disclosed that she was going to ease. At that very time, victim was aged about nine years. Even after 15 minutes, when she did not return, she came out from her house. When she came over road, she saw her granddaughter fallen down over the road. Seeing her, She began to weep. On query, she could not say anything. Then she began to see her minutely and during course thereof, had found blood stain over her cloth. Blood was coming out from her private part. On great persuasion, she disclosed that Mintu Singh, Mintu Manjhi, Prakash Ram and Chandan Ram have raped her after unzipping her paint and forcing her to lie down. They thrust towel in the mouth, caught hold leg and hand. On hue and cry, villagers came, who seeing condition of the victim, advised to hospitalize whereupon, she was taken to Chapra Sadar Hospital by her uncle where she had Patna High Court CR. APP (SJ) No.893 of 2017 12 made fard-bayan whereupon, she had also put her R.T.I. Victim was admitted to Chapra hospital for eight days. During cross-examination, she had stated that victim proceeded from the house at about 1.30 p.m. She met with the victim after the occurrence at a place which happens to be ten laggi away from her house. At that very time, she had seen blood over her cloth. She had talked with her granddaughter about two minutes. She was taken to hospital where they arrived to 2.30 p.m. Umesh happens to be her nephew. About 50 persons of her Tola have accompanied them. Police came at the hospital, her statement was also recorded by the police. In Para-13, there happens to be contradiction.
14. PW-13 is Sujit Das, the I.O. He had deposed that on 27.03.2013, he was posted at Chapra Mufassil P. S. as A.S.I. As per direction of the Officer-in-Charge, he had gone to Sadar Hospital where recorded fard-bayan of victim. (exhibited). Also exhibited endorsement over the fard-bayan, formal F.I.R. etc. He had also deposed that he had seized blood stain panty, jeans having blood stain and for that, prepared production-cum-seizure list (exhibited). Then thereafter, he was entrusted with the investigation and on account thereof, he had recorded statement of Umesh Sharma, Chameli Devi, Dablu Singh. Then thereafter, visited the place of occurrence, which happens to be the mango orchard lying adjacent west to the field of Patna High Court CR. APP (SJ) No.893 of 2017 13 Bhola Singh where witnesses have disclosed the event of rape. He identified the same as North-Mango Orchard of Lal Kishore Singh, South-Road, East-field of Bhola Singh and then, Road and then, tent house of Mintu Singh, West- field of Akhilesh Singh wherein maize crop was standing. He had also recorded statement of Arun Kumar, Bablu Kumar Singh. At that very moment, the Officer-in-Charge as well as other police personnel also arrived. Accused Chandan Ram and Prakash Ram, who were apprehended by the villagers since before, were produced before them and brought to Sadar hospital where they were examined. They were also interrogated. Then they were remanded to judicial custody. On 29.03.2013, he had examined Ajay Kumar Singh, Sudhir Singh, Kulwant Kamal Mahto, Ravindra Singh, Janardan Singh and Bimal Mahto. He also apprehended Mintu Manjhi. He received medical report of the victim on 31.03.2013. Got the victim examined under Section 164 of the Cr.P.C. and then thereafter, after completing the investigation, submitted chargesheet under Section 376(2)(g) of the I.P.C.
During cross-examination, he had stated that Sanha Entry was recorded over receiving of information regarding commission of the occurrence. In Para-12, he had stated that after coming to Sadar Hospital, he had prepared injury report relating to the injuries having over the person of victim. He had further stated in Para-13 that fard- Patna High Court CR. APP (SJ) No.893 of 2017 14 bayan was recorded at about 5.00 p.m. So many persons were present there and signed over the same. Production-cum-seizure list was prepared at about 5.30 p.m. Seized articles was not before him. He had recorded further statement of victim at about 5.15 p.m. He had prepared sketch map with regard to the P.O. However, he had not mentioned presence of blood at the P.O. and in likewise manner, presence of trampling mark. At Para-24, he had further stated that all the seized articles were sent to F.S.L. for examination, but he is unaware whether report has been received or not. In Para-25, he had further stated that he is unaware with regard to duration of treatment of the victim at the hospital. In Para-26, he had stated that during course of recording of fard-bayan, victim had not stated that all the four accused persons have committed rape. In Para-27, there happens to be contradiction regarding Chameli Devi.
15. DWs have been examined on behalf of defence. DW- 1 is co-villager of appellant, Mintu Manjhi, who had deposed that on the alleged date and time of occurrence, it was Holi. Mintu Manjhi was present at his house along with him and had celebrated Holi. It had further been disclosed that there was Election of Mukhiya and during course thereof, they have voted in favour of Barsa Kumari. The other candidate Maheshwar Singh was aggrieved thereby and on account thereof, he managed the whole thing. During cross- Patna High Court CR. APP (SJ) No.893 of 2017 15 examination, he had admitted that case has been registered for rape. He had not made statement before the police.
16. DW-2 is the witness of the P.O. village, who had deposed regarding topography of the P.O. stating that there happens to be flow of people in its surrounding. He had further stated that victim had instituted case against Mintu Manjhi. Later on, he came to know that Mintu Singh and two others have also been implicated. He had further stated that on the alleged date and time of occurrence, Mintu Singh was along with them.
17. The learned lower Court, as is evident from finding recorded under Para-19 that victim had not whispered with regard to complicity of other co-accused (since acquitted) in the fard-bayan as well as statement having made under Section 164 Cr.P.C. which happens to be inconsistent with the material as, from the statement of the victim recorded under Section 164 Cr.P.C., it is evident that she had named Mintu Manjhi, Mintu Singh while two others were not named. Moreover, as the state has not challenged the judgment of acquittal relating to other co-convict as well as on account of non- examination of the Magistrate, who had recorded statement of the victim, the issue is left without any further discussion.
18. From the judgment impugned, it is manifest that the learned court did not consider the medical report in consonance with Patna High Court CR. APP (SJ) No.893 of 2017 16 F.S.L. Report, to arrive at right conclusion.
19. In Bhagwan Jagannath Markad and others vs. State of Maharashtra reported in (2016) 10 SCC 537, it has been held:-
"17. Before considering this aspect with reference to the evidence on record, we may advert to the settled principles of law dealing with the issues arising in the present case. The approach to be adopted by the court generally in appreciating the evidence in a criminal case as also the approach of the appellate court is discussed in several decisions of this Court, some of which have been cited by learned counsel for the parties.
18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions - (i) when a person feels Patna High Court CR. APP (SJ) No.893 of 2017 17 absolutely certain of a fact - "believe it to exist" and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability [(1990) 3 SCC 190]
19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 Patna High Court CR. APP (SJ) No.893 of 2017 18 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects creditworthiness and trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [(1999) 9 SCC 525]. Want of independent witnesses or unusual behavior of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may Patna High Court CR. APP (SJ) No.893 of 2017 19 be closely scrutinized to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a „partisan‟ or „interested‟ witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus"
has no general acceptability [(2002) 8 SCC 381]. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance.
Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice.
Letting the guilty escape is not doing justice.
A Judge presides over the trial not only to ensure that no innocent is punished but also Patna High Court CR. APP (SJ) No.893 of 2017 20 to see that guilty does not escape.[(2002) 8 SCC 381]."
20. In State of Himachal Pradesh v. Sanjay Kumar alias Sunny reported in 2017 CRI.L.J. 1443, it has been held:-
"30. By no means, it is suggested that whenever such charge of rape is made, where the victim is a child, it has to be treated as a gospel truth and the accused person has to be convicted. We have already discussed above the manner in which testimony of the prosecutrix is to be examined and analysed in order to find out the truth therein and to ensure that deposition of the victim is trustworthy. At the same time, after taking all due precautions which are necessary, when it is found that the prosecution version is worth believing, the case is to be dealt with all sensitivity that is needed in such cases. In such a situation one has to take stock of the realities of life as well. Various studies show that in more than 80% cases of such abuses, perpetrators have acquaintance with the victims who are not strangers. The danger is more within than outside. Most of the time, Patna High Court CR. APP (SJ) No.893 of 2017 21 acquaintance rapes, when the culprit is a family member, are not even reported for various reasons, not difficult to fathom. The strongest among those is the fear of attracting social stigma. Another deterring factor which many times prevent such victims or their families to lodge a complaint is that they find whole process of criminal justice system extremely intimidating coupled with absence of victim protection mechanism. Therefore, time is ripe to bring about significant reforms in the criminal justice system as well. Equally, there is also a dire need to have a survivor centric approach towards victims of sexual violence, particularly, the children, keeping in view the traumatic long lasting effects on such victims.
31. After thorough analysis of all relevant and attendant factors, we are of the opinion that none of the grounds, on which the High Court has cleared the respondent, has any merit. By now it is well settled that the testimony of a victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate Patna High Court CR. APP (SJ) No.893 of 2017 22 looking for corroboration of a statement, the courts should find no difficulty to act on the testimony of the victim of a sexual assault alone to convict the accused. No doubt, her testimony has to inspire confidence. Seeking corroboration to a statement before relying upon the same as a rule, in such cases, would literally amount to adding insult to injury. The deposition of the prosecutrix has, thus, to be taken as a whole. Needless to reiterate that the victim of rape is not an accomplice and her evidence can be acted upon without corroboration. She stands at a higher pedestal than an injured witness does. If the court finds it difficult to accept her version, it may seek corroboration from some evidence which lends assurance to her version. To insist on corroboration, except in the rarest of rare cases, is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars, as in the case of an accomplice to a crime. Why should the Patna High Court CR. APP (SJ) No.893 of 2017 23 evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance {See Bhupinder Sharma v. State of Himachal Pradesh[(2003) 8 SCC 551]}.
Notwithstanding this legal position, in the instant case, we even find enough corroborative material as well, which is discussed hereinabove.
32. From the evaluation of the prosecution material discussed above, it is abundantly clear that the evidence brought on record contains positive proof, credible sequence of events and factual truth linking the respondent with rape of the prosecutrix and had criminally intimidated her. Hence, respondent is found to be guilty for offence under Sections 376(2)(f) and 506 of IPC since he committed rape with a minor girl aged nine years. It is pertinent to point out at this stage that at the time of deposition of the prosecutrix in the Court, the trial court had an opportunity to see her demeanor. On Patna High Court CR. APP (SJ) No.893 of 2017 24 that basis, the trial court in the judgment had commented as under:
"66. The statement of prosecutrix inspires confidence even though a child witness since while deposing in the Court her demeanor appeared like that of competent witness and no likelihood of tutor. I find her testimony reliable since she was found competent to depose after preliminary inquiry as she understood questions and to give rational answers. I have gone through her statement with extra caution and full of circumspection. Therefore, I have no hesitation to believe her statement."
33. At this juncture, we would also like to reproduce the following passage from the judgment of this Court in State of Rajasthan v. Om Prakash[(2002) 5 SCC 745]:
"19. Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of the social stigma attached Patna High Court CR. APP (SJ) No.893 of 2017 25 thereto. According to some surveys, there has been a steep rise in child rape cases. Children need special care and protection.
In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are the country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well-considered and well- analysed judgment of the trial court on grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant."
21. Considering the evidence in its totality, it is found Patna High Court CR. APP (SJ) No.893 of 2017 26 and held that though the other co-accused are found benefited on account of wrong appreciation of the fact available on the record since before and further, the status of the victim that of tender age facing horrifying situation, soon after the occurrence, was shifted to Sadar Hospital and so, the fard-bayan which she gave was under persistent traumatic situation. Apart from this, the evidence of doctor clearly speaks with regard to injury over private part of victim, tearing hymen and the effort of accused is found substantiated by way of presence of blood as well as semen over the apparel of the victim, which clearly suggest an event of rape. As per definition of rape, slight penetration is sufficient to constitute rape and not the ejaculation and that being so, considering the overall situation, it could very well be considered that the victim was raped. However, so far appellant Mintu Manjhi is concerned, she happens to be consistent and even during course of cross-examination, she has not been tested at the end of Mintu Manjhi at least to his extent. The DWs are of no consequence as they have not spoken that the distance in between, would not have possibility of his presence at the place of occurrence. And so, the finding recorded by the learned lower Court relating to him, appears to be non- appreciation of the material available on record in its right perspective. The learned lower Court as observed hereinabove did not consider the medical evidence in consonance with F.S.L. Report, which exclusively indicate commission of rape, coupled with Patna High Court CR. APP (SJ) No.893 of 2017 27 evidence of victim, substantiate the same whereupon finding of the learned lower Court that no offence under Section 376 I.P.C. is made out, or Section 376 I.P.C. simplicitor is not the lesser offence of Section 376 (2)(g) I.P.C. appears to be misnomer, apart from the fact that no sound reasoning has been assigned therefor and on account thereof, did not survive. That being so, the judgment of conviction and sentence is set aside. Appeal is allowed. Matter is remitted back to the learned lower Court to hear the argument of both sides and will pass judgment in accordance with law. The aforesaid exercise must be completed within four months from the date of receipt of L.C. Record. Office to transmit the same at once.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE 22.08.2017 Uploading Date 09.10.2017 Transmission 09.10.2017 Date