RAM NARAIN @ LANGAR CHOUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The facts of the case are tell a tale. While Savitri Kurnari, a minor girl, aged about 12/13 years, had gone to river for bath, the appellant had been staring at her with oblique vision. She came to her house and slept inside the room and shortly thereafter the appellant having gained access in her dwelling house, laid on her, untied her undergarment and pushed his genital organ inside her private part. The screaming raised by the prosecutrix brought Sipal Chodhary, who questioned appellant for his conduct and then appellant made good his escape towards maize field. The prosecution was launched by none else but the prosecutrix herself. As usual investigation followed, in course of which evidences were collected by the Police Officer who also got the prosecutrix clinically examined by a lady doctor. In the eventual trial that followed, the State had examined the prosecutrix, two doctors, a Police Officer and also parents of the victim besides said Sipal Choudhary who somehow or other was a ocular witness to the onslaught on the victim. Reiterating her earliest version Savitri Kumari (PW 3) says about the appellant having introduced his genital organ in her private part when her screaming brought Sipal Choudhary who had reprimanded the appellant for his conduct. She had taken recourse to public authority shortly after the incident. Sipal Choudhary, PW 1, stated to have visited house of the prosecutrix on her screamings, when he having found the appellant on person of the victim, reprimanded him who escaped towards maize field. She found Savitri Devi naked and her undergarment torn. Ram Vilas Choudhary, PW 2 and Chaniya Devi PW 4, who are parents of the prosecutrix were working in the field. When they were informed by Sipal Choudhary about commission of sexual assault on their daughter by the appellant, they rushed to their house when their daughter had narrated her woes to them. Though Dr. Awadh Kishore, PW 6, had not brought his pathological report on the record that having been sent to Dr. Minni Rani, the later, on clinically examining the prosecutrix, regard being had to the report of the Dental Surgeon and also pathological report, found her to be 12/13 years of age. Though there was neither mark of physical violence on her person nor spermatozoa was found in the vaginal swab, doctor had noticed old torn hymen. Siya Ram Rai, PW 7, the Investigating Officer noticed that the room in which the prosecutrix allegedly suffered sexual assault was accessible, there being no door plank in the room.

(2.) The trial Judge on appreciating the probative value of the testimony of the witnesses, had recorded finding of guilt and sentenced the appellant for a term of ten years under Section 376 of the Indian Penal Code. However, no sentence under Section 448 of the Indian Penal Code was awarded, though there being conviction on that count also.

(3.) The contentions, bereft of merit, were sought to be urged at bar to assail the finding recorded by the Court below and thrust of argument was that assuming the narration made by the prosecutrix and also other witnesses to be true, the accusation attributed to the appellant did not constitute sexual assault to attract mischief of Section 376 of the Indian Penal Code, and rightly these contentions were negatived by the trial Judge on being raised before him, with good and sturdy reasoning. In quite good number of instances, there may not be possibility of other persons witnessing the incident in case of sexual assault on the victim, as the accused would not run the risk of being exposed to the public. Even if there be solitary testimony of the prosecutrix, there would not be good and valid reason to distrust her in case her evidence was free from infirmities and blemishes, as her status was at par with the injured witness and she was not an accomplice. Even if there was no accomplishment of sexual abrasion, the accusation attributed, in my view, would squarely fall within the mischief of Section 376 of the Indian Penal Code and the trial Judge too had negated the assertion made on behalf of the appellant that there being no evidence about discharge of semen, no offence was committed to attract the mischief of Section 376 of the Indian Penal Code. The prosecutrix was not only a minor girl, but she is a rustic having come from the lower strata of the community. Though a lot has been argued that considering the evidence of Sipal Choudhary and also the narration made by the prosecutrix to her parents, it would be fallacious to find the prosecutrix stating about sexual assault on her by the appellant, as only laying down on her body by the appellant was not the sexual assault as noticed, Savitri Kumari was not only a minor girl but also a rustic. She may not be conversant with any parlance of loosely used words "sexual assault" but in view of explicit assertion made by her about the appellant introducing his genital organ in her private part, it can well be inferred that the object of her assertion was nothing than the sexual assault.