Bambam Mukhiya @ Govind Mukhiya vs The State Of Bihar

The case of the prosecution, as unfolded in the fardbeyan of the victim-informant Ruby Kumari (aged about 8 years) recorded on 02.05.2017 at about 17:20 hours at the Gynaecology Ward of Darbhanga Medical College and Hospital (hereinafter “DMCH”), is that on the previous day her mother had gone to Jhanjharpur for medical treatment and only she and her younger brother Rakesh Mahto (aged about 5 years) were present in the house. In the night she was sleeping inside the room while her brother was sleeping at the door. At about 3:00 a.m. her neighbour Bambam Mukhiya came near her, pressed her mouth, and forcibly committed rape upon her, as a result of which she started bleeding profusely. She cried out in pain, whereupon her aunt Ramdai Devi arrived; seeing her, the accused fled away and the victim became unconscious. She was thereafter brought to DMCH for treatment, where her fardbeyan was recorded.

On the basis of the said fardbeyan, Darbhanga Mahila P.S. Case No. 35 of 2017 dated 02.05.2017 was registered under Section 376 IPC and Sections 4/6 of the POCSO Act against the appellant. After investigation, charge-sheet No. 58 of 2017 dated 22.06.2017 was submitted under Section 376 IPC and Sections 4/6 of the POCSO Act. The learned trial court took cognizance of the offences under Section 376(2)(i) IPC and Section 6 of the POCSO Act. Charges under the said provisions were framed, read over and explained to the appellant, who pleaded not guilty and claimed to be tried.

In order to prove its case, the prosecution examined six witnesses:

The prosecution also proved and marked twelve documents as exhibits, including the fardbeyan, the formal FIR, the seizure lists, the medical examination report, the statement of the victim recorded under Section 164 CrPC, and the arrest memo.

After closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 CrPC. The incriminating circumstances appearing against him were explained; he denied the same and pleaded innocence. The appellant declined to adduce any evidence in his defence.

The learned trial court, upon appreciation of the evidence, by the impugned judgment dated 28.09.2018, held the appellant guilty of the offences under Section 376(2)(i) IPC and Section 6 of the POCSO Act and convicted him accordingly. By the order of sentence dated 04.10.2018, the appellant was sentenced as indicated above. The trial court also directed payment of compensation of ₹6,00,000/- to the victim under the Bihar Victim Compensation Scheme.

Being aggrieved by the said judgment of conviction and order of sentence, the present appeal has been preferred.

PW1 Meera Devi (mother of the victim) is not an eyewitness. She was at Jhanjharpur at the relevant time. She received telephonic information that the appellant had committed rape upon her daughter, came to DMCH, and found her daughter admitted. She stated that the police seized the victim’s clothes from the house. She identified the appellant in court. In cross-examination she admitted that she had not seen any part of the occurrence, could not state the exact date, and that her knowledge was based on what others told her.

PW2 Ruby Kumari (victim-informant) is the sole eyewitness. In her examination-in-chief she stated that the occurrence took place about ten months earlier at about 3:00 a.m. while she was sleeping in the house with her younger brother; her mother was away at Jhanjharpur and her father was out of the village. The appellant entered the house, pressed her mouth, opened her salwar and committed rape; she started bleeding, cried out, her aunt Ramdai Devi arrived, and the appellant fled. She was taken to DMCH and treated for four days. She identified her signatures on the fardbeyan, the Section 164 CrPC statement and the seizure list, and identified the appellant in court.

In cross-examination she stated that the families had prior good relations; a lamp was burning in the room; her brother was sleeping outside; she remained conscious after the occurrence; there was a neighbouring marriage of Runa Devi with baarat (procession), tents, music and generator on the same night; she had gone to the wedding but returned when sleepy; and she denied the elaborate suggestions of false implication involving Shanti Devi and another boy. She also stated that the Sub-Inspector had first asked her aunt about the incident before writing her statement.

PW3 Jogi Mahto (maternal grandfather of the victim) is a hearsay witness. He stated that Ramdai Devi telephoned and informed him of the occurrence; he came to the village, met the victim, and helped take her to DMCH. In cross-examination he gave shifting versions about the source of information, initially claimed to have seen the occurrence and then corrected himself, stated that the victim was unconscious when he reached and regained consciousness after three days, and admitted that his house is about 8 km away.

PW4 Ramdai Devi (aunt of the victim) stated that she was at home; the appellant raped the victim and fled; when she went she found the victim covered in blood and the victim disclosed the name of the appellant; later the appellant came and took away his mobile which had fallen at the place of occurrence. She claimed that she, the mother and the maternal uncle took the victim to DMCH. In cross-examination she stated that she came to know of the incident only at about 6:00 a.m., that the victim became unconscious and regained sense after two days, that it was actually Shanti Devi who took the victim to her house and for treatment, that there was a neighbouring marriage with generator and noise, and that the case had been filed on the initiative of Shanti Devi, a politically influential person.

PW5 Nilam Kumari (Investigating Officer) proved the recording of the fardbeyan at DMCH on 02.05.2017, the registration of the FIR, the seizure of the victim’s clothes, the inspection of the place of occurrence on 03.05.2017, the recording of statements of the family witnesses, the arrest of the appellant, the preparation of seizure lists, the recording of the Section 164 CrPC statement, and the submission of the charge-sheet. She admitted in cross-examination that no independent witness was examined, that the accused was not medically examined, that the oozing blood of the victim and the semen of the accused were not sent for examination, that no sketch map of the place of occurrence was prepared, and that she had received only oral directions from superior officers which were not recorded in the case diary.

PW6 Dr. Sangita Singh examined the victim on 02.05.2017 at 3:30 p.m. She found blood stains on the clothes and genital area, multiple abrasions around the hymen (including two large abrasions on the lower aspect), torn hymen and active bleeding. Vaginal swab showed superficial squamous cells but no spermatozoa. Radiological examination indicated bony age between 10 and 12 years. In cross-examination she stated that the victim was conscious and walked into the ward, that she had applied Dettol but no stitches were required, that no mud or sand was found, that the size, age and colour of the injuries were not mentioned in the report, and, significantly, that the injuries found by her could have been caused by a fall or injury. She also stated that she had not examined the victim for marks of struggle.

The incriminating circumstances were explained to the appellant. He denied the same and pleaded innocence. He did not lead any defence evidence.

It is submitted that the conviction is bad in law and on facts. The appellant has been falsely implicated on account of previous enmity existing between the parties. The witnesses examined by the prosecution, other than the official witnesses, are close relatives of the victim and are therefore interested witnesses whose testimony requires close scrutiny.

It is further contended that the medical evidence does not conclusively establish rape. The examining doctor (PW6) herself admitted in cross-examination that the injuries found on the victim could have been caused by a fall or injury. The trial court erred in rejecting the defence theory that the injuries were the result of a fall.

Attention has been drawn to the fact that on the night of the alleged occurrence a marriage ceremony was taking place in a neighbouring house with baarat, tents, music, generator and noise. The victim and others had gone to see the marriage. In such circumstances, the possibility of the occurrence remaining unnoticed is highly doubtful, and the prosecution story appears tailored.

It is argued that the identification of the appellant at about 3:00 a.m. is doubtful in the absence of a reliable source of light being mentioned in the earliest statements. The First Information Report naming the appellant with specific allegations was lodged in suspicious circumstances.

Learned counsel has also highlighted material contradictions in the evidence of the prosecution witnesses. Particular emphasis has been placed on the contradiction regarding the consciousness of the victim after the occurrence (the fardbeyan and the Section 164 CrPC statement record that she fainted/became unconscious, whereas in court the victim claimed she remained conscious). There are further contradictions among the family witnesses regarding the timing of discovery of the occurrence, who took the victim to the hospital, and the role of one Shanti Devi.

It is submitted that Shanti Devi is a politically influential person and that the case has been filed at her instance. The mobile-phone version given by PW4 is unnatural and unreliable. The investigation is defective inasmuch as no independent witness was examined despite the existence of numerous neighbouring houses, the accused was not medically examined, and crucial forensic evidence was not collected.

On the question of sentence, it is urged that the appellant is a young man with no criminal antecedents, is the sole earning member of his family, and that the sentence of imprisonment for the remainder of natural life is unduly harsh.

It is submitted that the prosecution has proved its case beyond reasonable doubt. The victim (PW2), a child of tender years, has given a consistent and reliable account of the occurrence in her fardbeyan, her statement recorded under Section 164 CrPC, and her deposition before the trial court. She has clearly named the appellant as the perpetrator, described the act of rape, the bleeding that followed, the arrival of her aunt, and the flight of the appellant. She has also identified the appellant in court. The law is well settled that the sole testimony of a prosecutrix, if found trustworthy and reliable, is sufficient to base a conviction in a case of rape, and no corroboration is necessarily required.

The medical evidence (PW6 and Ext. 11) provides strong corroboration. The doctor found blood stains on the clothes and genital area, multiple abrasions around the hymen, a torn hymen, and active bleeding, which are consistent with recent penetrative sexual assault. The radiological examination established the bony age of the victim as between 10 and 12 years, thereby bringing the case within the ambit of Section 376(2)(i) IPC and Section 6 of the POCSO Act.

The evidence of PW4 (the aunt) further corroborates the prosecution case inasmuch as she found the victim covered in blood immediately after the occurrence and the victim disclosed the name of the appellant to her. The seizure of blood-stained clothes of the victim and blood-stained material from the place of occurrence lends additional support.

It is contended that the minor contradictions and discrepancies pointed out by the defence are natural in the evidence of a child witness and the relatives, and do not go to the root of the prosecution case. The trial court has rightly discarded the theory of injuries being caused by a fall, as the nature of the genital injuries is inconsistent with a simple fall. The suggestion of false implication on account of enmity has remained unsubstantiated.

The First Information Report was lodged promptly on the same day the victim was brought to the hospital. The investigation, though not free from all shortcomings, does not suffer from such illegality or unfairness as would vitiate the prosecution case. The non-examination of independent witnesses is not fatal when the evidence of the victim and the medical evidence inspire confidence.

On the question of sentence, it is submitted that the offence is of the gravest nature involving the rape of a child below 12 years resulting in serious injury. The trial court has rightly awarded the sentence of imprisonment for the remainder of natural life, keeping in view the legislative intent behind Section 376(2)(i) IPC and the POCSO Act. No interference with the sentence is called for.

On the above premises, it is prayed that the appeal be dismissed and the impugned judgment of conviction and order of sentence be affirmed.

The prosecution case rests primarily on the evidence of the victim PW2. The Hon’ble Supreme Court has held down in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, that the sole testimony of a prosecutrix, if found credible, consistent and trustworthy, is sufficient to base a conviction in a case of sexual assault and does not require mandatory corroboration from independent sources. The relevant paragraph of the said judgment is reproduced below:

Along the similar lines, the Hon’ble Supreme Court in Rameshwar v. State of Rajasthan, 1951 SCC 1213, held that when the prosecutrix is a child of tender years the Court is required to scrutinise her evidence with care, yet once the evidence is found reliable it can form the sole basis of conviction. The relevant paragraph of the said judgment is reproduced below:

The victim has given three successive versions of the occurrence: the fardbeyan recorded on 02.05.2017, the statement under Section 164 CrPC recorded on 06.05.2017, and the deposition before the trial court. The essential features of the occurrence remain consistent across all three versions. In each of them she has stated that at about 3:00 a.m. the appellant entered the house, pressed her mouth, opened her salwar and committed rape upon her, as a result of which she started bleeding. She has named the appellant from the very inception and has identified him in court. The trial court in paragraph 21 of the impugned judgment correctly observed that the statement of the victim under Section 164 CrPC is fully corroborated with her evidence given before the Court and also with the fardbeyan.

The apparent contradiction regarding the victim’s state of consciousness after the occurrence requires careful consideration. In the fardbeyan she stated that she fainted. In the statement under Section 164 CrPC she stated that she fell unconscious and regained consciousness in the hospital. In her court deposition (paragraph 17) she stated that she did not faint and remained conscious. This variation can be attributed to the trauma suffered by a child victim of penetrative sexual assault. It is judicially recognised that victims of such offences, particularly children, may have imperfect or fluctuating recollection of peripheral details on account of shock and trauma. What is material for the decision of the case is that the victim was fully conscious during the commission of the act itself and was able to perceive, resist to the extent possible, and identify the appellant. The subsequent state of consciousness is a secondary detail that does not destroy the substratum of her evidence. The trial court in paragraph 21 rightly placed reliance on the core consistent version rather than on peripheral variations.

The difference in the estimated time of the aunt’s arrival (approximately 3:00 a.m. according to the victim and approximately 6:00 a.m. according to PW4) is equally explicable. A child of about eight to ten years cannot be expected to give precise clock time. The estimation of time by the victim is approximate. The trial court in paragraph 16 of the judgment noted the victim’s evidence that she slept at 6:00 p.m. and woke up at 3:00 a.m. because the occurrence took place at that time. Minor variations in such estimates do not amount to material contradiction.

The question of precisely who accompanied the victim to the hospital is immaterial once the core incident of penetrative sexual assault stands established by the medical evidence. Whether the aunt, the mother, Shanti Devi or others took the victim to DMCH does not affect the proof of the act of rape itself.

The victim’s admission in cross-examination that the Sub-Inspector first enquired from her aunt before writing the fardbeyan does not amount to tutoring. In cases involving very young children it is common for the investigating officer to seek the assistance of an accompanying relative to elicit a coherent narrative. The prompt recording of the fardbeyan on the same day the victim was brought to hospital and the subsequent recording of the statement under Section 164 CrPC, both of which name the appellant, reinforce rather than weaken the credibility of the victim’s account. The trial court in paragraph 23 correctly observed that the FIR was registered at the earliest and the victim was medically examined on the next day, leaving no room for doubt about the occurrence.

The trial court in paragraph 21 of the judgment correctly held that the medical report and the evidence of PW6 confirm that the victim had intercourse and that blood was also found on the soil, pillow and blanket at the place of occurrence. The doctor’s observation in cross-examination that the injuries could have been caused by a fall is only a theoretical possibility. The nature, location and multiplicity of the genital injuries, particularly the torn hymen accompanied by active bleeding and multiple abrasions, are far more consistent with penetrative assault than with a simple fall. The trial court in paragraph 22 rightly rejected the defence theory of fall, observing that such multiple injuries in the genital area cannot be caused by falling down.

The absence of spermatozoa (living or dead) in the vaginal swab does not negate the commission of rape. It is well settled that penetration is sufficient to constitute the offence of rape and emission of semen is not necessary. Section 375(a) of the Indian Penal Code, 1860 makes it clear that penetration is sufficient to constitute the sexual intercourse necessary for the offence.

In the matter giving rise to the appeal in State of Himachal Pradesh v. Asha Ram, (2005) 13 SCC 766, the accused was acquitted on the ground that spermatozoa were found on the salwar and underwear of the prosecutrix, though according to the prosecution, complete act of sexual intercourse was committed. The Hon’ble Supreme Court revresed the finding of the Himachal Pradesh High Court, and held that the absence of spermatozoa cannot be treated as a circumstance in favour of the accused. The relevant paragraph of the said judgment is reproduced below:

It is also medically recognised that penetration need not always be accompanied by ejaculation. Even when ejaculation occurs, spermatozoa may not be detected if the sample is collected after a certain interval, or if there has been washing, bleeding or other intervening factors. Spermatozoa can survive in the vaginal tract for a variable period, ordinarily up to three to five days under favourable conditions, yet their non-detection in a particular case does not rule out recent penetration.

PW1, the mother, is a hearsay witness. Her evidence only confirms that she received information about the occurrence and that the victim was hospitalised. It adds nothing to the core case and may be left out of consideration.

PW3’s deposition is replete with internal contradictions and repeated self-corrections. He first claimed that Ramdai Devi telephoned him, then stated that the call was received by his daughter, then claimed information from the parents, and still later from his granddaughter. He initially asserted that he had seen the occurrence with his own eyes and immediately corrected himself. In these circumstances his inconsistencies can safely be ignored. No benefit can be derived by the defence from the evidence of a witness who is unable to maintain consistency even on basic particulars.

PW4, the aunt, supports the prosecution on the vital aspects that she found the victim covered in blood and that the victim immediately disclosed the name of the appellant. The trial court in paragraph 21 relied upon this disclosure and upon the mobile-phone version given by PW4 to infer the presence of the appellant at the place of occurrence. The mobile-phone version was stated by PW4 in examination-in-chief and was not effectively demolished in cross-examination. She did not accept the contradictory suggestions put to her on this point. The shift in her evidence regarding the precise role of Shanti Devi in taking the victim to hospital is a peripheral detail. It does not affect the core prosecution case that the victim was found in a blood-stained condition and named the appellant.

The neighbouring marriage ceremony does not render the occurrence improbable. From the evidence of the victim it can reasonably be inferred that she had gone to the wedding but returned home before the arrival of the baarat and had gone to sleep. The presence of noise in the neighbourhood does not make the commission of the offence impossible.

The appellant has not produced any alibi. If his defence of false implication were genuine, independent witnesses from the village or from those who attended the marriage could have been examined. No such evidence has been led. The trial court in paragraph 21 noted that no specific and cogent suggestion was given by the defence as to why the appellant had been falsely implicated except a suggestion involving Shanti Devi, which was found to have no concern with the victim.

The involvement of Shanti Devi can be viewed in the social context of the case. The victim belongs to an extremely poor and illiterate family living in a house made of straw, asbestos and mud. It is not uncommon for local political or social workers to extend moral support and assistance to such vulnerable victims so that the crime is reported and the victim receives medical attention. The prompt reporting of the occurrence on the same day, far from creating suspicion, reinforces the bona fides of the prosecution case. It is a matter of common knowledge that a large number of rape cases involving children of poor families go unreported. The fact that everything was reported so quickly supports the inference that the family and those assisting them wanted the victim to receive justice.

In view of the findings recorded on the points for determination, the appeal is dismissed.

The judgment of conviction dated 28.09.2018 and the order of sentence dated 04.10.2018 passed by the learned 1^st Additional Sessions Judge-cum-Special Judge (POCSO Act), Darbhanga in G.R. Case No. 14 of 2017 (arising out of Darbhanga Mahila P.S. Case No. 35 of 2017) are affirmed.

The appellant Bambam Mukhiya shall serve out the sentence of rigorous imprisonment for the remainder of his natural life under Section 376(2)(i) of the Indian Penal Code together with the fine of ₹30,000/-, and in default of payment of fine to undergo simple imprisonment for six months, as awarded by the trial court. The decision of the trial court not to award a separate sentence under Section 6 of the POCSO Act is also affirmed.

The direction of the trial court for payment of compensation of ₹6,00,000/- (Rupees Six Lakh only) to the victim under the Bihar Victim Compensation Scheme is maintained. The amount, if not already paid, shall be paid to the victim within thirty days from the date of receipt of a copy of this judgment. The District Legal Services Authority, Darbhanga, shall ensure compliance and file a report before the trial court.

Before parting with the case, this Court is constrained to observe that the investigation conducted by PW5, the then Station House Officer of Mahila Police Station, Darbhanga, leaves much to be desired. Several elementary and necessary steps (examination of independent witnesses, medical examination of the accused, collection and dispatch of vital forensic material, preparation of a site plan, etc.) were omitted. Although these lapses have not ultimately prejudiced the prosecution case, they do reflect a perfunctory approach in the investigation of a serious offence involving the sexual assault of a minor child. The Senior Superintendent of Police, Darbhanga, is directed to examine the matter and to take appropriate departmental action against the concerned officer in accordance with law, after affording her a reasonable opportunity of hearing. A compliance report shall be submitted to this Court within three months.

Let a copy of this judgment be transmitted to the trial court for information and necessary compliance.

The appeal is, accordingly, dismissed.