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2017 Supreme(Pat) 455
IN THE HIGH COURT OF PATNA
PRAKASH CHANDRA JAISWAL, J.
(3.10.2017)
Criminal Appeal (SJ) No. 740 of 2015
Lakshman Manjhi : Appellant
Vs.
The State of Bihar : Respondent
For the Appellants : Mr. Raj Dular Sah.
For the Respondents: Mr. Bipin Kumar.
Headnote:Indian Penal Code, 1860–Section 376(2)(i) read with POCSO Act–Sections 2(1)(a), 3 and 5–"Rape"–The appellant penetrating finger in the vagina of a girl child–Mere penetration of the finger by an accused in the vagina of a girl child tantamount to commit rape against her–Victim is aged about 6-7 years–Doctor finds multiple vaginal tear with oozing blood of the victim–Testimony of the victim that the accused inserted his finger in her vagina is consistent and unblemished–Conviction for rape uphed–However, sentence reduced to the period already undergone. (Paras 15 & 17)
2. This appeal has been preferred against the Judgment and Order of conviction dated 21.09.2015 and order of sentence dated 23.09.2015 passed by the 1st Additional Sessions Judge, Jehanabad in POCSO case no. 07 of 2014 G.R. no. 420 of 2014 arising out of Jehanabad Mahila P.S. Case No. 12 of 2014, whereby the learned lower court convicted the appellant for the offence punishable under Section 376(2)(i) of the Indian Penal Code and Section 6 read with Section 5(m)(n) of the POCSO Act and sentenced him to undergo R.I. for ten years and also slapped him with a fine of Rs. 10,000/- and in default of payment of fine to undergo R.I. for one year under Section 6 read with section 5(m)(n) of the POCSO Act. While no sentence was awarded under Section 376(2)(i) of the Indian Penal Code.
3. The factual matrix of the case is that Jehanabad Mahila P.S. Case no. 12 of 2014 was instituted under Section 376 of the Indian Penal Code and Section 6 of the POCSO Act against the appellant (Lakshman Manjhi) on the basis of fardbeyan of Sarita Devi W/o Sanjay Manjhi R/o Village-Dharmpur O.P. Kalpa P.S. Town District-Jehanabad recorded by S.I. Shivnandan Sahni on 26.02.2014 at 20:00 hrs. in village-Dharmpur with the allegation, in succinct that, on 26.02.2014 at about 12:00 O’clock, she had gone to bathan for grazing her cattle and when she regressed to her house at about 07:00 PM, she found her daughter Khusboo Kumari aged about 6 years weeping. On quizzing her, she divulged that her cousin Lakshaman Manjhi had taken her to the mustered field on the pretext of giving her peas and committed rape against her and then she observed private part of her daughter, disrobing her attire and found blood oozing from it.
4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the appellant (Lakshman Manjhi) under Section 376 of the Indian Penal Code and under Section 6 of the POCSO Act.
5. On receiving the chargesheet and the case diary and perusing the same, the learned trial court took cognizance of the offence against the accused person.
6. Charge against the aforesaid accused was framed under Sections 376(2)(i) of the Indian Penal Code and under Section 6 read with Section 5(m)(n) of the POCSO Act. Charge was read over and explained to him to which he pleaded not guilty and claimed to be tried.
7. To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether eight prosecution witnesses namely, Sanjay Manjhi as PW-1, informant Sarita Devi as PW-2, Rachana Raj, Judicial Magistrate, 1st Class as PW-3, Victim Pushpa Kumari @ Khusboo Kumari as PW-4, Dr. Mina Kumari as PW-5, Dr. Ramadhar Sharma as PW-6, Dr. Balmiki Sharma Kasyap @ Dr. B.S. Kashyap as PW-7 and Sanjay Kumar as PW-8. Out of the aforesaid witnesses, PW-3 (Rachana Raj) and PW-8 (Sanjay Kumar) happen to be the formal witnesses. PW-3 is the learned Judicial Magistrate, 1st Class who has recorded the statement of the victim under Section 164 of the Cr.P.C. and has proved the said statement marked as Ext-1 while PW-8 is an advocate clerk and he has proved the formal F.I.R. marked as Ext-3. In documentary evidence, the prosecution has filed and proved certain documents.
8. The statement of the accused person was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming himself to be innocent. In buttress of its case, he has neither adduced any ocular nor documentary evidence.
9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed in the earlier paragraph.
10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convict has preferred the present Criminal Appeal.
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