Patna High Court - Orders
Sandeep Suman @ Pushpanjay vs The State Of Bihar on 1 February, 2023
Author: A. M. Badar
Bench: A. M. Badar, Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.218 of 2019
Arising Out of PS. Case No.-15 Year-2016 Thana- MAHILA P.S. District- Nalanda
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Sandeep Suman @ Pushpanjay Son of Sanjay Kumar Resident of Village -
Amar Singh Bigha, P.S.- Sare, District - Nalanda. At present resident of
Ranchi Road Patel Nagar, P.S.- Laheri, District - Nalanda.
... ... Appellant.
Versus
The State of Bihar
... ... Respondent.
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Appearance :
For the Appellant : Mr. Rajesh Kumar Singh, Advocate.
Mr. Gopal Bohra, Advocate.
Mr. Pankaj Kumar Das, Advocate.
Mr. Sudhir Kumar Singh, Advocate.
Mr. Sumit Kumar, Advocate.
For the State : Ms. Shashi Bala Verma, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE A. M. BADAR)
10 01-02-2023Interlocutory Application No.2 of 2022:
In this appeal of the appellant/convicted accused no.4 Sandeep Suman alias Pushpanjay, this is an application at his instance under Section 391 of the Code of Criminal Procedure, 1973, for adducing additional evidence. By this application, this convicted accused no.4 Sandeep Suman alias Pushpanjay is praying for allowing additional evidence by examining Dr. Krishna of the Sadar Hospital, Biharsharif, who had medically examined P.W.2-the victim female child on 09.02.2016 and for directing the learned trial court to physically examine the alleged place of occurrence. This applicant/ appellant along with five others was put up for trial and was ultimately convicted of the offence punishable under Section 120(B) of the Indian Penal Code as well as Sections 4 and 5 of the Immoral Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 2/30 Traffic (Prevention) Act, 1956 and is sentenced to suffer rigorous imprisonment for 10 years on each count apart from imposition of some fine. Other accused were also sentenced suitably by the learned trial court by the Judgment dated 15.12.2018 and Order dated 21.12.2018, impugned in this appeal.
2. In order to appreciate the rival contentions, it is apposite to put the case of prosecution in brief without expressing any opinion on merits of the same. According to the prosecution case, P.W.2, who is the victim female child, used to reside in a rented house situated at Biharsharif along with her two sisters and one brother. Original accused no.3 Sulekha Devi was their neighbour. She is related to original accused no.2 Chhoti Devi alias Amrita, who is wife of present applicant/ appellant/ original accused no.4 Sandeep Suman alias Pushpanjay. According to the prosecution case, accused persons conspired and enticed the victim female child at late afternoon of 06.02.2016. P.W.2-the victim female child, who was 16 to 17 years of age, was taken to the residence of accused no.1 Rajballabh Yadav located at the Panchayat Bhawan on 06.02.2016 itself. He happens to be the Member of the Legislative Assembly. In that building situated at Pathra English falling within the jurisdiction of Police Station-Mufassil, District-Nawada, in the night intervening 06.02.2016 and 07.02.2016, original accused no.1 Rajballabh Yadav, had committed penetrative sexual assault on P.W.2-the victim female child. The victim female child was then reached to her house at Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 3/30 Biharsharif in the afternoon of 07.02.2016 and thereupon she disclosed the incident to her sisters viz. P.W.1 and P.W.2. Thereafter, the incident was disclosed to the father of the victim female child, who came to Biharsharif on 08.02.2016. Then the First Information Report of the incident in question came to be lodged by P.W.2-the victim female child with Mahila Police Station which has resulted in Crime No.15 of 2016. On completion of investigation, six accused persons came to be chargesheeted vide Special Case No.145 of 2018 wherein after hearing the parties, the impugned Judgment and Order came to be passed by the learned Special Judge, Patna.
3. By filing the instant Interlocutory Application, applicant/appellant/original accused no.4 Sandeep Suman alias Pushpanjay is alleging that the incident as averred by the prosecution took place on 06.02.2016 and the F.I.R. in respect of the said incident came to be lodged on 09.02.2016. According to the applicant/appellant, P.W.2-the victim female child came to be medically examined at the Sadar Hospital, Biharshaif, on 09.02.2016 itself by Dr. Krishna, who was cited as witness for the prosecution. However, this witness has not been examined by the prosecution thereby compelling the learned trial court to rely on the oral evidence of P.W.2- the victim female child. It is further averred by the applicant/appellant that letters written by said Dr. Krishna came to be produced by the accused were taken on record and marked as Exts.P and P/1. However, the learned trial court refused to rely on those Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 4/30 photocopies of the letters. It is case of the applicant/appellant that said Dr. Krishna had deposed in other case in respect of the same crime and has stated that private parts of victim female child were just like that of a married woman who delivered one child and that she had not found any injury on expose or private part of the victim female child. With this, it is stated by the applicant/appellant that for the just decision of the case in hand, it is necessary to examine Dr. Krishna of the Sadar Hospital, Biharsharif, who had medically examined the victim female child on 09.02.2016.
4. It is further averred by the applicant/appellant that P.W.2-the victim female child was taken to Giriyak on 11.02.2016. She had deposed that she went ahead and saw Chimni Bhatta. From there, they went ahead by Kachcha Road and saw a four storeyed building and identified it. However, in cross-examination, this victim female child had deposed that after identifying the Chimni Bhatta, they returned back. It is further averred that P.W.7 Gandhari Devi- the Investigating Officer has spoken about searching the place of occurrence on 10.02.2016 and 11.02.2016. However, evidence of prosecution witnesses shows that on 11.02.2016, the Police Officers straight way reached at the place of the occurrence. This position is also found from the evidence of P.W.15 Mridula Devi-another Investigating Officer. However, according to the applicant/ appellant, letters at Exts.Z and Z/1 show that no vehicle was provided for Mahila Police Station Case No.15 of 2016 from Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 5/30 09.02.2016 to 15.02.2016. It is further averred that the prosecution witnesses deposed that the victim female child identified the place of occurrence from the Chalaan Ghar whereas the factual position is to the effect that it is not possible to identify the alleged place of occurrence because there is a small mountain in between the alleged place of occurrence and the Chalaan Ghar. With these contentions, it is urged that it is necessary to have additional evidence on record by examining Dr. Krishna and by directing the learned trial court to physically examine the alleged place of occurrence in exercise of powers under Section 390 of the Code of Criminal Procedure.
5. This application under Section 391 of the Code of Criminal Procedure came to be opposed by the Prosecuting Agency, i.e., State by filing the reply, which is unfortunately is not answering any of the averment made in the said application. It is stated in the reply that the victim female child had identified the accused persons as well as place of occurrence during the course of investigation and has also identified (?) in the court. Other witnesses have also identified the accused persons and the place of occurrence. It is further stated in the reply by the Prosecuting Agency that the trial court after hearing the parties convicted all the accused persons and, therefore, the Interlocutory Application is not maintainable.
6. We heard the learned counsel appearing for the applicant/appellant. He argued in tune with the contentions raised in the application and relied on the records and the proceedings. The Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 6/30 learned counsel for the applicant/appellant in addition further argued that in the chargesheet filed by the State, Dr. Krishna, L.M.O. of the Sadar Hospital, Biharsharif, was arrayed as witness no.14. However, by passing a pursis before the learned trial court on 02.03.2017, the learned Special Prosecutor had given up this witness and that is how, her evidence is not on record. It is further argued that at paragraph- 33 of the case diary, there is report of medical examination of the victim female child by Dr. Krishna wherein it is stated that she had found no injury on exposed or private part of the victim female child on 09.02.2016. It is further argued that P.W.15, Dr. Mridula, the Investigating Officer, in her cross-examination has stated that there is small hillock by the side of the road in between 'Challan Ghar' and the place of occurrence. Her evidence further shows that there are many buildings in between these two places and, therefore, it is not possible for any person to see what is happening at the building or its front gate where the incident allegedly took place from the 'Challan Ghar'. The learned counsel for the applicant/appellant relied on the Judgment of the Hon'ble Supreme Court in Criminal Appeal No.184 of 2020 [(Special Leave Petition) (Crl) No.8087 of 2019] Asim @ Munmun @ Asif Abdulkarim Solanki Vs. The State of Gujarat, decided on 28th January 2020, wherein it is held that Section 391 of the Code of Criminal Procedure does not impose any restrictions as to when the application filed for adducing additional evidence should be heard by the High Court and, in fact, it is Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 7/30 desirable that an application filed under Section 391 of the Code of Criminal Procedure should be heard immediately after it is filed, without waiting for the appeal to be finally heard. Reliance is also placed on the consequential Judgment of the Hon'ble Gujarat High Court in the said matter, i.e., Asim @ Munmun @ Asif Abdulkarim Vs. State of Gujarat, decided on 29th September, 2021, whereby after remand of the matter, Hon'ble Gujarat High Court was pleased to allow the application under Section 391 of the Code of Criminal Procedure filed by the appellant/accused therein.
7. Today, we have also heard Ms. Shashi Bala Verma, the learned Prosecutor appearing for the State, who has opposed the application by contending that evidence on record is sufficient to decide the matter on merit. In fact, on the last date of hearing, we had directed the respondent-State to file affidavit of the Director General of Police specifying whether Dr. Krishna was cited as the witness for the prosecution and whether her report of the medical examination of the victim female child is on record of the learned trial court. This was done as the learned Prosecutor appearing on that day was not able to answer our questions in that regard. Today, unfortunately, no such affidavit is filed but as the assistance as sought by this Court is provided today by the learned counsel for the applicant/ appellant we are not pursuing the matter further. It is reported that the chargesheet shows Dr. Krishna as witness and her report is there with the chargesheet.
Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 8/30
8. In the case in hand, the victim female child is reportedly 16 to 17 years old and she had deposed that her date of birth as per the School Record is 14.01.2000. The alleged incident took place in the night intervening 6/7.02.2016. The prosecution case is in respect of indulging in conspiracy and commission of penetrative sexual assault on a minor female child. After due trial, accused no.1 Rajballabh Yadav was the Member of the Legislative Assembly and it is held by the learned trial court that the prosecution has established its case that he had committed sexual assault as well as penetrative sexual assault and rape on the victim female child, who is examined as P.W.2 by the prosecution. Other accused, who were facing the trial in the case in hand, were suitably convicted for various offences including Sections 366(A) and 120(B) of the Indian Penal Code, Sections 4, 8 read with 17 of the POCSO Act as well as under Sections 4 and 5 of the Immoral Traffic (Prevention) Act.
9. At this stage, it needs to be kept in mind that the law regarding appreciation of evidence in cases of sexual offences and particularly in respect of minor girl is set out by catena of judgments of the Honourable Supreme Court. It is well settled that the Court should examine broader probabilities of the case and not get swayed by minor contractions or insignificant discrepancies in evidence of witnesses. It is well settled that if evidence of prosecutrix inspires confidence then it can be relied upon without seeking further corroboration to her statement and if for some Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 9/30 reason the court finds it difficult to place implicit reliance on such testimony of the prosecutrix, it may look at other evidence. The very nature of offence in such cases, makes it difficult to get direct corroborative evidence. The victim of sexual offence is at a higher pedestal than the injured witnesses because she is subjected to physical, psychological as well as emotional injury. Such offence is a crime against the entire society and it violates the victim's most cherished fundamental right i.e. right to life contained in Article 21 of the Constitution of India, 1950. As such, it needs to be kept in mind that the trial court is required to be alive to its responsibility and has to be sensitive while dealing with the cases involving sexual molestation and, particularly, that of a minor girl. [State of Punjab Vs. Gurmeet Singh (1996 Cri.L.J. 172)]. We have noted these principles and parameters as one of the contentions is that the accused seems to be that did not get fair trial due to non examination of Dr. Krishna by the prosecution.
10. We have set out these principles for assessing the evidence in the cases of sexual offences particularly against minor girls also because Section 391 of the Cr.P.C. which is sought to be invoked by the applicant/accused mandates that the additional evidence can be recorded only if the appellate court thinks it to be necessary to have the same for arriving at just conclusion. Necessity to record such additional evidence is dependent upon fact situation of each matter having due regard to the concept of fair play and Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 10/30 justice as well as wellbeing of the society. No straight-jacket formula can be evolved for the same.
11. At this juncture, it is apposite to reproduce Section 391 of the Cr.P.C. for better understanding of the matter. It reads thus :-
"391. Appellate Court may take further evidence or direct it to be taken :-
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
12. Scope and ambit of provisions of Section 391 of Cr.P.C. is aptly elaborated by the Honourable Apex Court in the matter of Ashok Tshering Bhutia Vs. State of Sikkim (2011) 4 SCC 402. Ratio of the said ruling can be found in para Nos. 28 to 32 of the said judgment and they read thus :-
"28. Additional evidence at the appellate stage is Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 11/30 permissible, in case of a failure of justice. However, such power must exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.
29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar Pasad Misra v. State of W.B., Ratilal Bhanji Mithani v. State of Maharashtra, Rambhau v. State of Maharashtra, Anil Sharma v. State of Jharkhand, Zahira Habibulla H. Sheikh v. State of Gujarat and Manu Sharma v. State (NCT of Delhi).]
30. This court in State of Gujarat v. Mohanlal Jitamalji Porwal dealing with the issue held as under : (SCC pp. 370-71, para 5) "5... To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender.
Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 12/30 community acting through the State and the Public Prosecutor is also entitled to justice.
The cause of the community deserves equal treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the movement upon passions being arouses. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest."
31. In Rambhau, a larger Bench of this Court held as under. (SCC 762, para 4) "4. Incidentally, Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial court and the Powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 13/30 trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the Civil Procedure Code."
32. In view of the above, the law on the point can be summarized to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest.
Generally, such power is exercised to have formal proof of the documents, etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution case."
13. It is thus clear that the provisions of Section 391 cannot be invoked when the party concerned has fair opportunity and has not availed of it. Such provision is to be used in exceptional circumstances in order to arrive at just conclusion to meet the ends of justice.
14. The Honourable Apex Court in the matter of Zahira (supra) had an occasion to consider provisions of Section 391 of the Cr.P.C. and it is held therein that the legislative intent in enacting Section 391 of Cr.P.C. appears to be empowerment of the appellate court to see that justice is done between the prosecution and the person prosecuted and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 14/30 under Section 391.
15. It is thus clear that the provisions of Section 391 of Cr.P.C. are meant for sub-serving the ends of justice and can be called in aid if the appellate court finds that recording of additional evidence is essential in order to secure the ends of justice by recording accurate finding. Same is the ratio of ruling in the matter of State of Maharashtra Vs. Vasant Shankar Masne and another (1993) Cr.L.J. 1134.
16. It is relevant to note that case of Asim @ Munmun @ Asif Abdulkarim (supra) proceeded on its own fact. In the said case, the appellant therein had taken a plea of alibi. The incident in that case had taken place at Botad whereas the appellant contended that he used to reside at Anand since last 15 years and was present in the city of Anand on the date of the offence, i.e., 04.03.2013. This plea of alibi was investigated by the Investigating Agency by recording statement of residents of Anand but those statements were not filed along with the Police Report/Chargesheet. In this fact situation in the said case, specific question was asked by the defence to P.W.33 Dharmendrasinh Pravinsinh Vaghela, i.e., Investigating Officer, about the production of call details or statements of witnesses, who are resident of Anand. The said Investigating Officer has spoken about presence of the accused therein at Anand on the date of the incident but had refused to produce the statements of witnesses recorded by him. Thus, in the said case, even according to Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 15/30 the Prosecuting Agency, though the incident took place at Botad, on the date of the incident, the appellant therein was present at Anand City. On this background, application for recording additional evidence came to be allowed because even the learned Sessions Judge had discarded the plea of alibi raised by the appellant therein on the ground of non-examining the witnesses. While allowing the application under Section 391 of the Code of Criminal Procedure filed by the appellant in the said case, the Hon'ble Gujarat High Court had placed reliance on the Judgment of the Hon'ble Apex Court in the case of Brigadier Sukhjeet Singh wherein it is held that a wide discretion is conferred on the appellate court, which is to be exercised, if exigency of the situation demands on fair play and good sense mandates exercise of such discretion.
17. Keeping in view these guiding principles of law, let us examine the case in hand in order to ascertain whether recording of additional evidence by summoning Dr. Krishna and by directing the learned trial court to physically examine the alleged place of occurrence, is necessary to arrive at just conclusion in the case in hand.
18. During the course of trial, the prosecution has examined as many as 22 witnesses apart from placing reliance on the documentary evidence. Similarly, the learned trial court has permitted the accused to enter upon the defence in the light of the provisions of Section 233 of the Code of Criminal Procedure. The Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 16/30 defence, as such, has examined as many as 15 witnesses and relied on the voluminous documentary evidence. Applicant/accused Sandeep Suman alias Pushpanjay, as seen from the record, after giving his statement under Section 313 of the Code of Criminal Procedure, had even given his written statement of defence by stating that he married co-convict/accused no.2 Chhoti Devi in the year 2013. He, in his written statement, has stated that his father by relations is son-in-law of accused no.3 Sulekha Devi but he himself never visited house of either Sulekha Devi or accused no.6 Tusi Devi at any point of time. The applicant/appellant has further stated in his written statement that friend of his father told that he (the applicant/appellant) needs to be investigated by the Police Officer and, therefore, along with his father and one Vijay, he went near Hanuman Mandir, Patna and from there, he was taken in custody. The applicant/appellant further contended that nothing incriminating was found upon examination of his mobile phone and it is seen from his location in the mobile phone that he was neither present at Biharsharif nor at Bakhtiyarpur on 06.02.2016. This version of the applicant/ accused in his written statement makes it clear that the only defence of the applicant/appellant is to the effect that he had not visited house of his relatives, i.e., accused no.3 Sulekha Devi or accused no.6 Tusi Devi at any point of time. It is seen from the prosecution case that accusation against this applicant/appellant is to the effect that P.W.2-the victim female child was enticed by the Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 17/30 accused no.2 Chhoti Devi and accused no.3 Sulekha Devi on 06.02.2016 to accompany them to a birthday party and, thereafter, they had taken P.W.2- the victim female child initially to Bakhtiyarpur and then to Ranisarai and in the house of accused no.6 Tusi Devi. According to the prosecution case, applicant/appellant, i.e., accused no.4 Sandeep Suman alias Pushpanjay, was also present apart from accused no.5 Radha Devi in the said house of accused no.6 Tusi Devi. This is the case against the applicant as seen even from the version of the victim female child. Thereafter, according to the prosecution case, the victim female child was taken to the house of accused no.1 Rajballabh Yadav where she was subjected to the penetrative sexual assault.
19. As additional evidence can be permitted only if it is shown that in absence of such evidence, there can be failure of justice and it is not possible to decide the case without having such evidence on record, let us have a brief resume of record of the learned trial court by keeping in mind that the powers of this Court, sought to be invoked by the applicant, are to be exercised sparingly and only in exceptionally suitable special cases. While doing so, we repeat that, we are not commenting on merits of the evidence adduced by the parties and particularly merits of the version of the prosecution.
20. The victim female child, who is examined as P.W.2, has stated while in the witness box that in the evening hours of Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 18/30 06.02.2016, accused no.2 Chhoti Devi and accused no.3 Sulekha Devi came to her house and insisted her to accompany them for a birth day party. These accused persons then sought permission of her sister 'A', who is examined as P.W.1 and that is how, she accompanied both these accused. Then she was taken by them to Bakhtiyarpur by a bus. Thereafter by Rickshaw, she was taken to a house at Ranisarai where accused no.6 Tusi Devi, accused no.5 Radha Devi and present applicant/appellant Sandeep Suman alias Pushpanjay were present. They were in that house for about 1½ hours and had food. Then she was taken in one car by P.W.3 Sulekha Devi to one Chimni Bhatta. She was told that accused Tusi Devi, Chhoti Devi and applicant/appellant will come by another car. The victim female child further stated that at Chimni Bhatta, accused no.3 Sulekha Devi alighted from the car and talked to someone whom she addressed as Sir and informed him that they will be reaching in 10 minutes. The victim female child further stated that then by the same car, they went ahead by Kachcha Road and reached at a four storeyed building. Her version shows that accused no.1 Rajballabh Yadav came to that building subsequently and had drank liquor with accused no.3 Sulekha Devi. Thereafter, accused no.1 Rajballabh Yadav committed penetrative sexual assault on her. The victim female child further stated that it was accused no.3 Sulekha Devi, who had denuded her and gagged her mouth, at that time.
21. P.W.1 and P.W.2, who happen to be sisters of the Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 19/30 victim female child, have spoken about enticement of P.W.2-the victim female child by accused no.2 Chhoti Devi and accused no.3 Sulekha Devi for joining them to the birth day party and taking her with them. They have also spoken about the recitals of the victim female child on return to the house on the next day so also about lodgement of the F.I.R. P.W.5 Rajeshwar Ram, P.W.6 Manju Yadav and P.W.7 Gandhari Devi are Investigating Officers. They have spoken about their journey with the victim female child for locating the spot of the incident on two occasions. They have stated that from Nawada they went ahead and saw Chimni Bhatta. There the victim female child told them that accused no.3 Sulekha Devi had talked on the mobile phone from that place. These witnesses have stated that they went ahead from that place. Thereafter, they saw a four storeyed building in the field, which is came to be identified as the spot of the occurrence by the victim female child. As per their version the rapist was also found there and he came to be identified by the victim female child on that spot itself.
22. P.W.8 Dr. Shailendra Kumar, P.W.9 Dr. Budh Prakash, P.W.10 Dr. Akhilesh Kumar, P.W.11 Dr. Kumkum Kumari and P.W.13 Dr. Preeti Ranjana have spoken about medical examination of the victim female child. Their version is to the effect that in medical examination of the victim female child conducted on 17.02.2016, no injury was found on her vagina or private part, the hymn of the victim female child was found 'Old ruptured' and she was found to Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 20/30 be 16 to 17 years old in ossification test. P.W.12 Dr. Ram Kumar Prasad, the Pathologist, deposed that spermatozoa was not found in the vaginal slab of the victim female child. The other witnesses examined by the prosecution have spoken about the digital foot prints of the accused persons. As per their version, cell phone of the accused no.1 Rajballabh Yadav bearing no.9162246321 was located at the place of the occurrence, i.e., Pathra English, Police Station- Mufassil, District-Nawada from 22.11 hours of 06.02.2016 to 5.42 P.M. of 07.02.2016 and the said cell phone was constantly in touch with cell phone of accused no.3 Sulekha Devi and cell phone of accused no.6 Tusi Devi. They have also spoken about there being telephonic conversions between the cell phone belonging to accused no.3 Sulekha Devi and driver of accused no.1 Rajballabh Yadav at the relevant time. These witnesses have stated that these accused persons were constantly in touch with other accused persons prior to and at about the date of the incident. Investigating Officers have deposed about the line of investigation conducted by them.
23. We have already reiterated the defence version so far as the applicant/appellant is concerned, as his role from the record is very limited to the extent that he indulged in conspiracy and that of being present in the house at Ranisarai where accused no.6 Tusi Devi and accused no.5 Radha Devi were also present when P.W.2 - the victim female child was brought by accused no.3 Sulekha Devi and accused no.2 Chhoti Devi. It is on this background, we are examining Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 21/30 the application for taking additional evidence filed by this applicant/appellant - original accused no.4. We reiterate that it is his defence that he was not present at the said house nor he had visited the houses of accused no.3 Sulekha Devi and that of accused no.6 Tusi Devi at any point of time. It is worthwhile to mention here that the incident of penetrative sexual assault, according to the prosecution case took place in the Panchayat Building located at Pather English falling under jurisdiction of Police Station Mufassil, district Nawada and not at the said house at Rani Sarai where according to the prosecution case, this applicant/ appellant/accused no.4 Sandeep Suman was present when the victim female child was initially brought there by accused no.3 Sulekha Devi and accused no.2 Chhoti Devi.
24. It is relevant to note the defence version coming on record from mouth of 15 witnesses examined by the accused persons. D.W.1 Umed Singh Yadav was Manager of Tabrendrajeet Mining and Construction Company (TMC for the sake of brevity) and he has spoken about presence of accused no.1 Rajballabh Yadav, the sitting M.L.A. of Nawada in the guest house of that Company at Orena from 07.30 P.M. of 06.02.2016 to 01.00 A.M. of 07.02.2016. D.W.2 Binay Ranjan is brother-in-law of accused no.1 Rajballabh Yadav, who has also deposed the same facts in order to establish plea of alibi raised by accused no.1 Rajballabh Yadav, the sitting M.L.A. D.W.3 Hari Shankar Singh has deposed that at 01.00 P.M. of 11.02.2016, work Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 22/30 of erecting Pandaal for Saraswati Puja was going on at the school at village Bhadokhara and he was present there up to 07.00 P.M. but no police personnel came at village Bhadokhara for investigation. D.W.4 Kailash Yadav, Ward Member has deposed that at 01.30 A.M. of 07.02.2016, accused No.1 Rajballabh Yadav, M.L.A. came to Prajatantra Square which is 5 to 6 kilometers away from Pathra English. D.W.5 Ram Ratan Singh, who is husband of Corporator, deposed that accused no.1 Rajballabh Yadav was present for supervising the work of cleaning road, nala, etc. till 03.00 A.M. of 07.02.2016. D.W.6 Prashant Rai has also deposed about the same facts. D.W.7 Upendra Kumar, an employee of the Labour Contractor deposed that police conducted investigation at the Panchayat Bhawan on 13.02.2016 and accused no.1 Rajballabh Yadav used to reside in the middle floor of that Bhawan. He had given key of that portion of Panchayat Bhawan to Investigating Officer named Mridula. As per his version, said Panchayat Bhawan is at a distance of 200 to 500 yards from the Challan Office and the road leading from 'Challan Ghar' to Panchayat Bhawan has two to three turnings. D.W.8 Ashok Kumar, Ex-Mukhiya of Bhadokhara Panchayat had deposed that there is one 'Challan Ghar' at Pathra English village and in between that Challan Ghar and Panchayat Bhawan where the incident allegedly took place, there are two three turns to the road. He further deposed that from the said 'Challan Ghar' main gate of Panchayat Bhawan is not visible nor a person standing outside the main gate of Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 23/30 Panchayat Bhawan is visible from that 'Challan Ghar'. He also deposed that on 06.02.2016, accused no.1 Rajballabh Yadav, M.L.A. left Panchayat Bhawan at 08.30 P.M. for attending 'Chhatti' programme and then left that programme at about 10.30 P.M. D.W.9 Prakash Veer deposed that at 11.30 A.M. of 06.02.2016, he visited house of accused no.1 Rajballabh Yadav at village Pathra English and had attended the meeting at TMC up to 08.00 P.M. D.W.10 Anil Mehta, Ex-member of Zila Parishad, Nawada, deposed about political enmity and resultant raids at the house of accused no.1 Rajballabh Yadav. D.W.11 Bhante Jambudeep @ Lalan Manjhi has deposed about presence of accused no.1 Rajballabh Yadav at the guest house of the TMC till 01.00 A.M. of 07.02.2016 and, thereafter, at Prajatantra Square at 1.30 A.M. D.W.12 Dinesh Kumar Akela has deposed about presence of accused no.1 Rajballabh Yadav at 01.30 A.M. of 06.02.2016 at Prajatantra Square. D.W.13 Rajesh Kumar was examined to prove the Certificate under Section 65(B) of the Evidence Act regarding photograph of the residence of accused no.1 Rajballabh Yadav at Pathra English. D.W.14 Prakash Kumar Singh was examined in support of the call detail records and he is Officer of the Reliance Company. D.W.15 Rajeev Ranjan Kumar is examined to prove handwriting of Dr. Krishna on Exhibits P and P/1.
25. Thus, it is clear that even the defence has adduced evidence in order to demonstrate that version of P.W.2-the victim female child elicited during her cross-examination to the effect that Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 24/30 she identified the place of occurrence, which was four storeyed building, from the 'Challan Ghar' is wholly incorrect. Apart from this, it is also elicited from cross-examination of P.W.15 Mridula, I.O. that there is a hillock by the side of the road in between the Challan Ghar and the multi storied building where the incident took place. Precisely for demonstrating that from the 'Challan Ghar' the building where the incident allegedly took place is not visible and, therefore, evidence of P.W.2-the victim female child is not trustworthy, the applicant/appellant is seeking permission to adduce additional evidence by directing the learned trial court to physically examine the alleged place of occurrence. There is sufficient evidence already on record on this aspect as seen from the version of defence witnesses which we have noted in foregoing paragraph. Whether to accept version of the prosecution witnesses or the defence witnesses on this aspect is ultimately job of the appellate court at the time of final hearing of the appeal, by weighing evidence of each and every witnesses examined by the parties. It is well settled that the defence witnesses are required to be given similar treatment as is given to the prosecution witnesses. However, suffice to state herein that on the aspect whether from the 'Challan Ghar', the place of occurrence, which was multi storeyed building is visible or not, there is already sufficient evidence on record. Hence, it is not possible to put on record that in order to see that the justice is done between the parties, this Court must have on record additional evidence on this aspect. Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 25/30 As for giving proper and correct finding on this aspect, there is voluminous evidence adduced by the defence on the record of the trial court it is not justified to accede to the request of the applicant/appellant for adducing additional evidence on this aspect. No exceptionally suitable case for recording additional evidence on record in this regard is made out by the applicant/appellant by demonstrating that if such evidence is not brought on record, there are chances of failure of justice. To crown this all, considering the role attributed to the present applicant/appellant in the crime in question during unfurling of the prosecution case by its witnesses, such exercise is totally futile and unwarranted, particularly, at the instance of the present applicant/appellant. Therefore, it appears that the learned trial court has even not thought it proper to pass further orders on such application moved by the accused. Section 310 Cr.P.C. dealing with Local inspection reads thus:-
"(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place in which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case and if the prosecutor, Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 26/30 complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of cost."
Bare perusal of this provision makes it clear that when in opinion of the learned Judge it is necessary for the purpose of properly appreciating the evidence to inspect the place of occurrence then only local inspection can be conducted. We have already gone through the record and proceedings including oral and documentary evidence. We are not at all satisfied that considering the evidence available in respect of the place of occurrence, spot inspection is necessary for the purpose of properly appreciating the evidence. Moreover, the case in hand is that of penetrative sexual assault on a female child at a multi storied building by indulging in conspiracy and the question is to what extent evidence regarding location of the spot of occurrence is relevant in such cases in the light of law regarding appreciation of evidence in such offences which we have already quoted. To reiterate the words from the case of Gurmeet Singh (supra)...... " If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars."
26. So far as recording evidence of Dr. Krishna, who examined P.W.2-the victim female child on 09.02.2016, is concerned, it is not the case of prosecution that signs of sexual violence were found on person of P.W.2-the victim female child during the course Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 27/30 of medical examination by Dr. Krishna at the Sadar Hospital, Biharsharif. Signs of sexual violence on the body of the victim certainly incriminate the accused of sexual offences but non finding of such injuries cannot inure to the benefit of the accused. It is a settled legal position that the medical evidence is a corroborative piece of evidence but where the medical evidence does not support the otherwise clinching and trustworthy ocular evidence of any material witness then, the testimony of such ocular evidence will prevail on the medical opinion and not vice versa. In the case of Ranjit Hazarika v. State of Assam reported in (1998) 8 SCC 635, the opinion of the doctor was that no rape appeared to have committed because of the absence of rupture of hymen and injuries on the private part of the prosecutrix, the Apex Court took a view that the medical opinion cannot throw over board an otherwise cogent and trustworthy evidence of the prosecutrix. In B.C.Deva v. State of Karnataka reported in (2007) 12 SCC 122, inspite of the fact that no injuries were found on person of the prosecutrix, yet finding her version to be reliable and trustworthy, the Honourable Apex Court upheld the conviction of the accused. The Court observed that :
"18 The plea that no marks of injuries were found either on the person of the accused or the person of the prosecutrix, does not lead to any inference that the accused has not committed forcible sexual intercourse on the prosecutrix. Though the report of the gynaecologist pertaining to the medical examination of the prosecutrix does Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 28/30 not disclose any evidence of sexual intercourse, yet even in the absence of any corroboration of medical evidence, the oral testimony of the prosecutrix, which is found to be cogent, reliable, convincing and trustworthy has to be accepted."
In view of this legal position, non-examination of Dr. Krishna by the prosecution as its witness is of no consequence and similarly it is absolutely unnecessary to have such irrelevant evidence on record, in the light of contention raised in the instant application to the effect that in another Special case relating to the instant crime, said Dr. Krishna has deposed that the victim female child herein was not having any injuries on her person and her private part was just like a married woman who delivered one child. Nobody has right to violate chastity of a female even if she is sexually active. Each and every female has right to say NO to a male making sexual advance towards her. There is huge difference between consensual sex and forced sex. A women's right to say NO is not diminished by number of times she may have said YES in the past. Even otherwise, P.W.2- the victim female child in the case in hand had not attained the age of consent. For these reasons, even if it is accepted that her private parts were resembling those of a married women having a child, this aspect has no bearing on merits of the case and is wholly irrelevant. For just and proper decision of the instant appeal, considering the evidence, which is already on record, there is no necessity to introduce irrelevant evidence of Dr. Krishna, Medical Officer, on Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 29/30 record. It is apposite to point out that evidence of similar nature is already on record coming from the mouth of P.W.8 Dr. Shailendra Kumar, P.W.9 Dr. Budh Prakash, P.W.10 Dr. Akhilesh Kumar, P.W.11 Dr. Kumkum Kumari and P.W.13 Dr. Preeti Ranjana.
27. We may hasten to add that reliance on the Judgment of Hon'ble Gujarat High Court in the matter of Asim @ Munmun @ Asif Abdulkarim (supra) is totally misplaced. The reasoning given in the said Judgment proceeded on its own fact and in the said matter, the Investigating Officer had flatly refused to produce statements of witnesses, who were resident of Anand, recorded by him, who were supporting the plea of alibi of the accused therein.
28. We have minutely perused record and proceedings. Examining the contentions raised by the applicant/ appellant herein from all angles, we are of the considered opinion that the applicant/appellant has not made out any exceptional case warranting recording of additional evidence so as to meet ends of justice. It cannot be said that with the available ocular and documentary evidence on record it is not possible to pronounce the judgment. We are unable to record a finding that the learned trial court omitted to record the circumstances essential for elucidation of truth and there would be failure of justice if additional evidence is not recorded.
29. The net result of the foregoing paragraphs require us to hold that the application in hand is totally misconceived and devoid of merit. The same appears to be a dilatory tactics of the Patna High Court CR. APP (DB) No.218 of 2019(10) dt.01-02-2023 30/30 applicant/appellant. The same is, accordingly, rejected.
30. I.A. No.2 of 2022 is disposed of as rejected. The registry is directed to prepare typed paper-book immediately in order to get the appeal listed for final hearing as early as possible.
(A. M. Badar, J) ( Sandeep Kumar, J) P.S./-
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