IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.594 of 2015
Arising Out of PS.Case No. -10 Year- 2004 Thana -FATUHA District- PATNA

SANJU SINGH SON OF LATE GURUSHARAN SINGH RESIDENT OF
VILLAGE – SIKANDARPUR, P.S. FATUHA, DISTRICT – PATNA.

…. …. APPELLANT/S
VERSUS
THE STATE OF BIHAR
…. …. RESPONDENT/S

Appearance:

For the Appellant/s : Mr. Ashwani Kumar Sinha, Advocate
Mr. Dinkar Kumar, Advocate
For the Respondent/s : Mr. Sujeet Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 04-07-2017

1. Sole appellant Sanju Singh has been found guilty for

an offence punishable under Section 376 IPC and sentence to

undergo R.I. for ten years as well as to pay fine of Rs.25,000/- and

in default thereof, to undergo imprisonment of nine months

additionally vide judgment of conviction and sentence dated

31.08.2015 passed by Additional Sessions Judge, VIIth, Patna

City, Patna relating to Sessions Trial No.723/2004.

2. Bereft of unnecessary details, victim (name withheld),

PW.1 filed written report on 27.01.2004 for an occurrence dated

16.01.2004 at about 07:00 PM alleging inter alia that while she

was in her room, Sanju made house trespass, closed the door and

then, committed rape upon her as a result of which, she became

unconscious. After regaining her sense, she found the Sanju over

‘Chali’ in order to hide himself. On her cry her cousin brother

Bichandar Kumar has locked the room from outside. Furthermore,

it has also been alleged that seeing her, they have opened the door
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 2

caught hold Sanju, taken to Gali, wherefrom he escaped.

Subsequently thereof, the caste people convened panchayati which

was also dishonored. Lastly, seeing no an alternative, filed instant

case.

3. Fatuha P.S. Case No.10/2004 was registered under

Section 376 IPC whereupon investigation commenced and after

concluding the same, charge sheet was submitted facilitating the

trial which concluded in a manner, 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 and to substantiate the same,

one DW, Ranjeet Kumar has also examined.

5. In order to substantiate its case prosecution had

examined three PWs out of whom PW.1 is victim, PW.2 is Kanti

Devi her mother and PW.3 is Nagina Singh, her father. Side by side

had also exhibited Ext.I- Signature of victim over written report,

Ext.2-Signature of victim over statement recorded under Section

164 Cr.P.C.

6. Learned counsel for the appellant has submitted that

victim happens to be major and from her conduct, it is evident that

she happens to be a consenting party as, the appellant is none

other than younger brother of her brother-in-law Dharam Nath.

Therefore, question of rape does not arise. Furthermore, it has also

been submitted that though there happens to be deficiency at the

end of the conducting counsel who failed in specific term to

suggest the victim to be major and further, that appears to be
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 3

simply a mistake expecting presence of doctor during trial who

never been produced by the prosecution, even then, the victim was

cross-examined on that very score under para-7 and so, due to

non-examination of the doctor appellant has been forbidden to

bring on record the sufficient evidence which could have

exonerated the appellant from the criminal liability and so, not

only the victim be considered to be a major as well as a consenting

party who subsequently been influenced by her parents to drag the

appellant under criminal prosecution, simultaneously the court

should also hold that on account of non-examination of the doctor,

interest of appellant has been prejudiced.

7. Furthermore, it has also been submitted that in

likewise manner, non-examination of Investigating Officer has also

caused prejudice to the interest of the appellant. To substantiate

such plea, it has been submitted that had there been examination

of Investigating Officer the development in the prosecution case

properly been surfaced along with doubtfulness over prosecution

version in consonance with objective finding relating to the place of

occurrence.

8. Now coming to merit of the case it has also been

submitted that virtually neither rape was committed nor the

parties have had indulged in physical relationship rather they

happens to be love birds in the background of inter-se relationship

and some sort of activities were found perceived by her family

members and on account thereof, she has been forced to instituted

this case. Had there been an occurrence of rape then in that

circumstance the Brother, the Bhabhi of victim whose presence
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 4

were in adjoining room, would not have allowed themselves to slave

on that score and in likewise manner, would not have allowed the

appellant to be spared alive. There happens to be no disclosure

that after apprehension of the appellant from the said room, he

was even given a slap. The other circumstances, which the learned

counsel for the appellant has argued that had there been an

occurrence of rape, then in that circumstance the mother would

not have allowed herself to stay away from her house for nine

consecutive days that too in the background of the fact that none

was to care her. In the aforesaid background, it has been

submitted that happens to be reason behind that neither own

brother, Bhabhi has been cited as charge sheet witness nor

Birchandar, the cousin brother who is said to have apprehended

appellant has been made. Why not those persons at least the

family members came forward to support the case of the

prosecution that the victim was raped in their presence or they

have had apprehended the appellant after the occurrence in a

room where his presence was on account of committing rape over

the victim and in likewise manner corroborating the fact of the

rape that means to say deposing over physical condition of victim,

any kind of spot (saver) over Salwar, bed sheet and further, those

items were handed over to the Investigating Officer during course

of investigation.

9. It has also been submitted that delay in institution of

the case more particularly relating to rape in the background of

Indian social fabric whereunder the prestige of a girl happens to be

of paramount consideration and is tagged with the prestige of the
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 5

family, has not been considered unusual nor on that very score the

prosecution case is to be brushed aside but, in the peculiar nature

of the case whereunder victim had properly identified presence of

his brother, Bhabhi along with children in a room adjacent to the

room wherein she was raped, having no place of occlusion, and

even then unhindered opportunity of free access instead of accused

galloping therefrom, put his presence till his apprehension and

then an explanation at the end of the prosecution over his absence

that he managed to escape therefrom is something to say over

which the delay has got an important role to play and has to be

seen in the background of aforesaid context. So, in the aforesaid

facts and circumstances of the case, it has been submitted that

virtually no rape was committed. May be, they have been found in

awkward situation and for that, due to pressure having exhorted

upon the victim, this case has been, filed. So submitted that in the

facts and circumstances of the case, the findings so recorded by

the learned lower court is to be erased by way of allowing appeal.

10. The learned Additional Public Prosecutor controverted

the submission and submitted that victim was a minor on the

alleged date of occurrence, which has not been challenged at the

end of appellant, therefore, the consent has got no role to play and

that being so, the conviction and sentence recorded by the learned

lower court happens to be justified. Furthermore, it has also been

submitted that from the cross-examination having been made on

behalf of appellant, it is apparent that victim has been able to face

the litmus paper test and so, on flimsy grounds, her evidence

should not be discarded. That being so, the judgment of conviction
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 6

and sentence recorded by the learned lower court is fit to be

confirmed.

11. It is well settled that evidence of prosecutrix if inspires

confidence, would require no corroboration. Event of rape happens

to not only pernicious to the victim rather it causes physical,

psychological as well emotional scar which survives till her lifeline

virtually ruining her persondism, as it is found a kind of stigma

and that happens to be reason behind acceptance of evidence of

prosecutrix without any immurement. However, if the evidence of

the prosecutrix is found deficient on its face value then in that

event, certainly the court will require for corroboration.

12. From the evidence of the prosecution witnesses, it is

evident that appellant happens to be younger brother of brother-in-

law of victim, PW.1. Furthermore, it is evident that on account of

death of daughter, the prosecution party has become aggrieved.

Though Investigating Officer has not been examined but from the

evidence of PW.1, it is apparent that the house is being occupied

by her family as well as family of her uncle. Two rooms have been

allotted to share of her father out of which, one was occupied by

her elder brother Santosh who, at the relevant time was present

along with his wife and children. Both the rooms are adjacent to

each other. The room in which occurrence is said to have

committed has got so many windows without being grilled and so,

one could have free access. There happens to be no evidence that

curtain was there. Furthermore, no independent witnesses have

come forward to say that they have seen the appellant going inside

the house of the victim. Own elder brother who was present with
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 7

his family in the adjoining room has not come forward to

corroborate the evidence of victim and in likewise manner, the

cousin brother who had locked the room from outside caught hold

the accused and from whose custody accused managed to flee.

Apart from this, when the victim had himself disclosed that there

was window at all sides without having grill, full having

unobstructed opportunity to passage then in that event, presence

of appellant inside the room till his apprehension and then got

himself found in a Gali where he was taken, is another

circumstance. In the aforesaid background the delay, although is

found non cognito so far rape is concerned, has to be explained

considering the conduct of remaining two witnesses who are non-

else than parents of the victim. In the background of aforesaid

deficiency, now the evidence of PW.2 as well as PW.3 her parents is

to be looked into. Certainly they are not an eye witness to

occurrence as they were not present. PW.2 while was at the place

of his elder daughter PW.3 Nagina Singh was also at the place of

another daughter they have not disclosed that they were informed

by their son with regard to such kind of incidence. PW.2 mother

had stated that villagers have informed her that some misfortune

occurred whereupon she came and then was informed. Panchayati

was also convened but could not materialized. At the other end,

PW.3 the father had said that when he returned back from the

place of his daughter then victim had disclosed regarding the

event. Panchayati was convened which could not materialized and

on account thereof case has been registered.

13. PW.1 is the victim who had deposed that on the
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 8

alleged date and time of occurrence she was alone at her house.

Her father who works at brick-kiln had not returned so doors were

open. After sometime door was closed over which she though that

her father has come but she became surprise to see that it was

Sanju (appellant) whereupon she raised alarm. Then thereafter,

Sanju caught hold, gagged her mouth, threw her over chowki,

untied her string and then committed rape as a result of which she

became unconscious. After regaining sense she raised alarm

whereupon her cousin brother locked the room from outside and

then, collected the other caste name who caught hold Sanju from

the room. Sanju, subsequently escaped their custody. Villagers

also convened panchayati which could not materialized. Then

thereafter, after eleven days, this case has been filed at her end.

Apart from divulgence of fact during course of cross-examination,

it is apparent from the evidence of PW.1 that she had not disclosed

with regard to absence of her mother on account of staying at

Kolkata and in likewise manner, absence of her father who had

gone to the place of her another sister, instead thereof had deposed

that she was awaiting her father who had gone to brick-kiln where

he works. Furthermore, during her cross-examination at para-25

had disclosed that she had suffered from diarrhoea and for which,

satine was given to as a result of which, she was very weak. Had

she suffered such kind of illness then in that event, possibility of

absence of PW.2 as well as PW.3 was not at all a normal

phenomena. At the other end PW.1 herself disclosed that she was

awaiting presence of her father who had gone to brick-kiln where

he works. Apart from this, when both situation is being perceived
Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 9

then in that circumstance non-response of Santosh, her elder

brother, her Bhabhi and children who were present in adjacent

room within the same periphery of the house gives a peculiar

picturization. It should also be seen considering that, appellant

being a handicapped (Ext.A) and further without having allegation

that he was armed with deadly weapon victim was terrorized, put

under threat of life, and further, the victim perceived the lascivious

attitude of accused when he closed the door, was really a situation,

faced by her. In likewise manner cousin brother Bichandar’s

presence who had locked the room, caught hold the appellant,

along with other members of her castemen, and getting free from

their clutch, is another circumstance to consider, when the

aforesaid event has not been flashed by the parents PW.3 PW.3.

14. In Aman Kumar v. State of Haryana reported in

(2004) 4 SCC 379 it has been held:

“5. It is well settled that a prosecutrix
complaining of having been a victim of the offence
of rape is not an accomplice after the crime. There
is no rule of law that her testimony cannot be
acted upon without corroboration in material
particulars. She stands on a higher pedestal than
an injured witness. In the latter case, there is
injury on the physical form, while in the former it
is both physical as well as psychological and
emotional. However, if the court of facts finds it
difficult to accept the version of the prosecutrix on
its face value, it may search for evidence, direct or
circumstantial, which would lend assurance to
her testimony. Assurance, short of corroboration
as understood in the context of an accomplice,
would suffice.”

Patna High Court CR. APP (SJ) No.594 of 2015 dt.04-07-2017 10

15. Giving anxious consideration to the facts and

circumstances of the case, it is apparent that prosecution failed to

substantiate its case beyond the shadow of reasonable doubt

consequent thereupon, the finding recorded by the learned lower

court is set aside. Consequently appeal is allowed. Appellant is on

bail, hence is being discharged from its liability.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR AFR
CAV DATE NA
Uploading Date 07.07.2017
Transmission 07.07.2017
Date