Ramu Rai vs The State Of Bihar on 21 July, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.473 of 2013
Arising Out of PS.Case No. -147 Year- 2011 Thana -KADMA District- KATIHAR

Rajendra Rai S/O Late Patu Rai @ Fattu Rai Resident of Village- Shikarpur
Mahinagar, P.S.- Baliya Belon, District- Katihar

…. …. Appellant
Versus
The State of Bihar

…. …. Respondent
with

Criminal Appeal (SJ) No. 494 of 2013
Arising Out of PS.Case No. -147 Year- 2011 Thana -KADMA District- KATIHAR

Ramu Rai S/O Rajendra Rai Resident of Village- Sikarpur Mahi Nagar, P.S.-
Baliya Belon, District- Katihar.

…. …. Appellant
Versus
The State of Bihar

…. …. Respondent
with

Criminal Appeal (SJ) No. 514 of 2013
Arising Out of PS.Case No. -147 Year- 2011 Thana -KADMA District- KATIHAR

Pradeep Rai S/O Satiya Rai Resident of Village- Ujain, Police Station- Baisi,
District- Purnea

…. …. Appellant
Versus
The State of Bihar

…. …. Respondent
with

Criminal Appeal (SJ) No. 572 of 2013
Arising Out of PS.Case No. -147 Year- 2011 Thana -BALIA BELON District- KATIHAR

Kakru Rai S/O Late Patru Rai Resident of Village- Mahi Nagar Shikarpur, Police
Station- Balia Belone, District- Katihar
Patna High Court CR. APP (SJ) No.473 of 2013 dt.21-07-2017

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…. …. Appellant
Versus
The State of Bihar

…. …. Respondent

Appearance :

(In CR. APP (SJ) No.473 of 2013)
For the Appellant/s : M/S Bhola Prasad, Mukesh Kr. Jha, Advocates
For the Respondent/s : Mr. S.A.Ahmad, APP
(In CR. APP (SJ) No.494 of 2013)
For the Appellant/s : Mr. Bhola Prasad, Advocate
For the Respondent/s : Mr. Z. Hoda, APP
(In CR. APP (SJ) No.514 of 2013)
For the Appellant/s : Mr. Md. Qumrul Hoda, Advocate
For the Respondent/s : Mr. Z. Hoda, APP
(In CR. APP (SJ) No.572 of 2013)

For the Appellant/s : Mr. Md. Rahmatullah, Mr. Fahinuddin, Advocates
For the Respondent/s : Mr. Z. Hoda, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 21-07-2017

All the above mentioned four appeal are directed against

the judgment and order dated 6.6.2013 and 12.6.2013 respectively,

passed by Sri Bateshwar Nath Pandey, Sessions Judge, Katihar in

Sessions Trial No. 54 of 2012, arising out of Kadwa (Balia Belon)

P.S.Case No. 147 of 2011 by which he has convicted the four

appellants under Sections 363/34 IPC as well as under Section 372/34

IPC and convicted appellant Ramu Rai under Section 376 IPC. All the

four appellants have been sentenced to undergo R.I. for seven years

and a fine of Rs.5,000/- under Sections 363/34 IPC and in default they

have to undergo R.I. for one year and further sentenced them to

undergo R.I. for seven years under Section 372/34 IPC and a fine of

Rs.10,000/- and in default they have to undergo R.I. for one year.
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Further appellant Ramu Rai has been sentenced to undergo R.I. for

seven years and a fine of Rs.10,000/- and in default he has to undergo

R.I. for one year under Section 376 IPC.

2. Prosecution case as per written report is that P.W.9,

Kutub Alam has lodged his written report before police stating

therein, inter alia, that on 9.8.2011 his sister has gone to ease herself

at 8 P.M. but she has not returned and thereafter, in spite of search

she was not found. Further case is that on 10.8.2011 at 11 P.M. his

brother has received an informant from Korahat on mobile that

accused persons were apprehended, who had kidnapped his minor

sister. Further case is that thereafter, he along with his family

members and villagers went to Korahat and found the minor sister

along with the appellants. It is further alleged that appellants had

kidnapped her with a view to sell her for the purpose of prostitution. It

has also come that her sister told that while she went to ease herself

the appellants had kidnapped her and taken her for selling her and she

has also disclosed that at Korahat, seeing some persons, she raised

alarm and they were apprehended. On the basis of written report

Kadwa (Balia Belon) P.S.Case No. 147 of 2011 has been instituted

under Sections 363, 372/34 IPC and after investigation police has

submitted charge-sheet against the appellants under Sections 363 and

376 IPC. Cognizance of the offence has been taken and the case has
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been committed to the court of sessions, which was taken up by the

court of Sessions Judge for trial and disposal.

3. During trial charges were framed against the

appellants under Sections 363, 372 and 376 IPC.

4. In support of prosecution case the prosecution has

examined altogether 13 witnesses, they are Mantu Sah (P.W.1), Md.

Safiullah (P.W.2, who is I.O. of the case), Dr. Kanak Ranjan (P.W.3),

Md. Jamil Akhtar (P.W.4), Md. Izhar (P.W.5), Juned Alam (P.W.6),

Ansar Alam (P.W.7), Md. Shamim Akhtar (P.W.8), Kutub Alam

(P.W.9, who is informant of the case), Noorshadi Khatoon (P.W.10,

who is the victim), Md. Madsud (P.W.11), Rukhsana Khatoon

(P.W.12) and Manjoor Alam (P.W.13). Out of the aforesaid witnesses,

P.W.2 is the Investigating Officer, P.W.3 is Medical Officer, who has

examined the victim.

5. Apart from the above evidence, the following

documents have been admitted into evidence, they are Ext.1; signature

of Mantu Sah on seizure list, Ext.2; signature of Mantu Sah on written

report, Ext.3; forwarding of Fardbeyan by Md. Saffiullah, Ext.4;

signature on FIR by Imam Hassan, Ext.5; signature and writing of

Md. Saffiulla in FIR, Ext.6; Memo of arrest, Ext.7; Medical report

and Ext.8 is statement of victim under Section 164 Cr.P.C.

6. Apart from the above evidence, one witness has been
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examined on behalf of defence, who is Somani Rai, who has stated

that there was love affairs between appellant Ramu Rai and the victim

and, as such, with a view to solemnize marriage they have taken the

victim and no such occurrence took place and appellants have falsely

been implicated in this case.

7. After conclusion of trial the appellants have been

convicted and sentenced, as stated above.

8. Learned counsel for the appellants has assailed the

judgment on the ground that there are contradictions between the

evidence of victim girl and her statement under Section 164 Cr.P.C.

and, as such, the prosecution case as stated in the FIR. stands falsified.

It has further been submitted that evidence of the victim itself shows

that there is contradiction with respect to place of occurrence as stated

in the FIR that she had gone to ease herself and thereafter she was

kidnapped, whereas in her statement under Section 164 Cr.P.C. she

has stated that they have taken her from the house, whereas in her

evidence she has stated that she had gone to Baspatti from where she

was kidnapped. It has also been submitted that evidence of the victim

also shows that she has not raised any alarm, rather when the people

stopped the vehicle and enquired from them, she informed about the

occurrence. Further submission is that prosecution case is full of

improbabilities and absurdities as it is not believable that Ramu Rai
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would commit rape in presence of his father and uncle or they in

connivance were on way to sell her for prostitution. So far appellant

Pradeep Rai is concerned, it has been submitted that he only a tempo

driver and besides that there is no other involvement, but learned Trial

Court did not consider above aspect of the matter. Further submission

of learned counsel is that the allegation of committing rape does not

find support from the medical report and the victim was found to be

17-18 years in the medical report.

9. Submission of learned counsel for the appellants is

that the whole prosecution case is full of absurdity and improbability

as the conduct of the informant (P.W.9) shows that he has not lodged

either sanha or FIR with respect to the kidnapping of the girl or even

the girl being traceless and waited for two days and when the girl was

recovered at Karahat he has filed the case making such allegation. It

has also been submitted on behalf of defence a witness has been

examined showing that there is love affairs between appellant Ramu

Rai and the victim girl and they are going for marriage and D.W.1 has

also stated in her evidence in court that in spite of the fact the learned

trial court has not considered the aforesaid evidence in right

prospective and convicted the appellants.

10. It has also been submitted that on the basis of

prosecution case as well as the evidence available on record that no
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case under Section 372 IPC is made out as there is no evidence

available on record that they had talked to any one for selling her or

handing over her, rather he was arrested while coming along with the

appellants.

11. In the circumstances, as mentioned above, it has

been submitted that conviction of appellants is not sustainable in the

eye of law.

12. On the other hand, learned APP has submitted that

there are sufficient evidence available on record to show that the

appellants were apprehended by other persons, who are neither related

to the informant nor they are in any way interested, before them

P.W.10, the victim has disclosed about the occurrence and in such a

situation it cannot be said that they have falsely been implicated.

Further submission is that there is nothing available on record to show

that there was any love affairs between the parties though some cross

examination has been made but he has denied the same and the

evidence of defence is vague that there was some relationship between

appellant Ramu Rai and the victim girl and, as such, evidence of

D.W.1 does not inspire any confidence.

13. In the above background of the case, this Court has

to scrutinize the evidence available on record. On perusal of

prosecution evidence it appears that P.W.9 is the informant of this
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case and his evidence in chief shows that his sister went to ease out

and she did not return for which he searched for her till next day and

thereafter he received a phone call from Korahat that his sister was

caught in a tempo and he was called and he along with Mukhiya and

others went to Korahat and informed the police. Thereafter police has

come. This witness is not an eye-witness of the kidnapping and from

his evidence it appears that he has only stated that his sister was

kidnapped and further evidence is that she was taken to Korahat in a

tempo by the accused persons.

14. P.W.10 is the victim girl and her evidence shows

that at 8 P.M. she went out to ease herself and accused persons,

namely, Ramu Rai, Rajendra Rai and Kakru Rai had forcibly

apprehended her, dragged her by putting clothes on her mouth and she

was taken Katra Chowk on a tempo and during whole night she was

kept at Roshanganj where accused Ramu Rai had committed rape on

her twice and on the next day when she was taken back to Korahat in

a tempo the accused Rajendra Rai, Ramu Rai and Kakru Rai were

talking that they would sell the girl, when the tempo teached at

Korahat seeing the other persons there the girl raised alarm and

thereafter the tempo was stopped and she has informed them that

appellants had kidnapped her for sale and on such information they

informed the village people of the girl on phone. Further evidence is
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that thereafter brother of the victim, Mukhiya of village and other

people came and informed the police. She has further stated in her

evidence that her statement was recorded under Section 164 Cr.P.C.

15. P.W.1 had also supported the prosecution case about

her recovery from Karahat and P.W.4, who is her cousin brother, has

also stated about kidnapping while she went to ease herself. Though

both of them are not eye-witnesses of either kidnapping or recovery.

P.W. 5, P.W.6, P.W.7 and P.W.8 are the witnesses on the point of girl

being rescued from the appellants and their evidence shows that they

saw a lady, going along with appellants on a tempo and she raised

alarm and on alarm being raised they stopped the tempo and she has

informed them that accused persons were taking her to sell her.

P.W.11 is the father of the victim and his evidence in chief shows that

he has also corroborated the prosecution case about the kidnapping of

girl while she went to ease herself. P.W.12 is the sister of the victim

and she has also supported the prosecution case in her evidence in

chief.

16. P.W.3 is the Doctor, who has examined the victim

girl after her recovery on 12.8.2011 and she has stated in paragraph-3

of her evidence that no mark of injury was present on her body or on

external genetallia. Hymen was old torn, Vaginal orifice admitted two

fingers. Vaginal swab report given by Pathologist Dr. R. Suman, on
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microscopical examination no spermatozoa was found and from the

above findings the Doctor was of the opinion that she had been used

for sexual intercourse and the Medical Report was marked as Ext.7. In

her cross examination by defence she has stated that no external and

internal injury was found on the body of victim.

17. P.W.2 is the Investigating Officer and he has also

stated that the on the basis of written report of Kutub Alam (P.W.9)

formal FIR was lodged and he has also seized the auto and recorded

the statements of witnesses. His evidence also shows that he has

inspected both the place of occurrence at Korahat and at the village of

the girl. Thereafter he sent the girl for medical examination and also

got her statement recorded under Section 164 Cr.P.C.

18. On perusal of the FIR as well as evidence on record,

as stated above, it appears that there is consistent evidence available

on record that the girl was traceless since 9.8.2011 and the girl was

recovered on 10.8.2011 in the night and thereafter FIR has been

lodged and this creates some suspicion but from perusal of evidence

of informant (P.W.9) it appears that this witness has stated in chief

that he had searched for her throughout night and even on next day he

searched for her and thereafter in the night he got information, as

such, it does show that as informant was not making hectic search. In

a situation when a girl is traceless, the natural conduct of the parents
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is to search her first in house of the relatives and friends and thereafter

to lodge a case. As such the delay in lodging FIR does not make the

prosecution case improbable and absurd.

19. In this case defence has come with a case that there

was love affairs between P.W.10, victim girl, and Ramu Rai and

suggestion has been given to P.W.9, brother of the P.W.10, and also

to P.W.10. D.W.1 has also stated about the same. However, P.Ws. 9

10 had denied the suggestion and D.W.1 has admitted in her

evidence that she does not know about their daily affairs.

20. Appellants were examined under Section 313

Cr.P.C. but none of the appellants has stated there was love affairs

between Ramu Rai and the victim Nurshadi Khatoon, as such, they

have gone for the purpose of marriage and this demolishes the defence

story of love affairs between Ramu Rai and P.W.10.

21. Further submission of learned counsel for the

appellant is that evidence of P.W.10 is contradictory to her earlier

statement and the statement made before the Magistrate under Section

164 Cr.P.C. as she has stated in her evidence in chief that she was

kidnapped while she had gone to ease herself, whereas under Section

164 Cr.P.C. she has stated that appellants had kidnapped her from her

house. Further she has stated in her evidence that she has raised alarm

and thereafter witnesses stopped the vehicle and she was recovered
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and she has disclosed about the kidnapping and taking her with a view

to sell her and her evidence in paragraph-7 clearly shows that she has

not made any alarm, rather when the witnesses enquired for her she

disclosed about the same and this circumstance clearly shows that this

witness has suppressed the material facts.

22. In this case appellants have been convicted under

Sections 363, 372 and 376 IPC. However, learned counsel for the

appellants in all the appeals has submitted that no case under Section

372 IPC is made out in this case but the learned trial court without

appreciating the fact has convicted the appellants under Section 372

IPC on the basis of evidence of P.W.10 that the appellants were found

to be guilty for the offence of selling her. Section 372 IPC. Provides

as follows :

S. 372. Selling minor for purposes of prostitution,
etc.- Whoever sells, lets to hire, or otherwise disposes
of any person under the age of eighteen years with
intent that such person shall at any age be employed
or used for the purpose of prostitution or illicit
intercourse with any person or for any unlawful and
immoral purpose, or knowing it to be likely that such
person will at any age be employed or used for any
such purpose, shall be punished with imprisonment of
either description for a term which may extend to ten
years, and shall also be liable to fine.

It appears from perusal of Section 372 IPC that such

offence may be completed on proof of sale, lets to hire or disposes of

any person and the ingredients of the said Section do not appear in the
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case under the given facts and circumstances and whatever material

available on record, is the statement of P.W.10, the victim, and there

is nothing available in her evidence about sale or with whom they

were talking to sell her and what consideration and even no transfer

was made and in such a situation conviction of the appellants under

Section 372 IPC does not appear to be sustainable in law.

23. All the appellants have also been convicted under

Section 363 IPC and, as stated above, there is evidence available on

record of P.W.10 that shows that while she had gone to ease herself

she was kidnapped by the appellants and taken in a tempo and they

were apprehended there at Korahat by villagers, i.e., P.Ws. 5 to 8, and

evidence of P.Ws. 5 to 8 shows that they have recovered the girl on

her alarm while she was taken by the appellants. In spite of cross

examination there is nothing in the evidence of P.Ws. 5 to 8 to discard

those witnesses on the point of recovery of the girl from the

appellants. Further P.Ws. 5 to 8 are independent witnesses and of

other village.

24. No doubt, it appears that the girl has only named

Rajendra Rai, Ramu Rai and Kakru Rai as kidnapper and not named

Pradeep Rai. The evidence later on shows that appellants were

carrying her in tempo and Pradeep Rai is said to be driver.

25. Considering the evidence, as discussed above, it
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appears that there are consistent evidence available on record that

appellants Rajendra Rai, Ramu Rai and Kakru Rai had kidnapped

P.W.10 and appellant Pradeep Rai assisted them in the aforesaid

kidnapping.

26. So far conviction under Section 376 IPC is

concerned, it has been submitted on behalf of appellant Ramu Rai that

evidence of prosecutrix has not been corroborated by medical

evidence and in such a situation relying on sole testimony of the

evidence of victim girl is not sufficient for conviction of the appellant

under Section 376 IPC.

27. On the other hand, learned counsel for the State has

opposed the said submission and submitted that there is nothing in the

evidence of P.W.10 to doubt the commission of rape and the same has

been corroborated by her statement recorded under Section 164

Cr.P.C. and, as such, the conviction of the appellant Ramu Rai under

Section 376 IPC is just and proper.

28. It is well established principle that conviction can be

based on sole testimony of the prosecutrix if her evidence is found to

be otherwise reliable and free from any embellishment. Otherwise the

evidence of prosecutrix requires corroboration by other witnesses. In

the present case there is evidence of P.W.10 about commission of rape

by appellant Ramu Rai and that was corroborated by her statement
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under Section 164 Cr.P.C. (Ext.8). No doubt the medical evidence

does not show in clear terms that rape has been committed on her but

from perusal of the record it appears that she has been examined on

12.8.2011 after three days of occurrence and in such a situation not

finding sign of rape on her does not make prosecution case

unbelievable, when the evidence of P.W.10 is corroborated by her

statement under Section 164 Cr.P.C. and there is nothing in her cross

examination to doubt her credibility.

29. Considering the entire discussions made above, so

far conviction and sentence of the appellants under Section 372 IPC is

concerned, the same is set aside.

30. So far conviction of appellants under Section 363

IPC is concerned, considering the discussions made above, the same

is affirmed and conviction under Section 376 IPC of the appellant

Ramu Rai is affirmed.

31. All the appellants have been sentenced to undergo

R.I. for seven years under Section 363 IPC and fine of Rs.5000/- but

considering the fact that allegation against appellant Pradeep Rai is

only to assist them in kidnapping and there is no allegation he has

lifted the girl from the place of occurrence and further from perusal of

the judgment it appears that age of appellant Rajendra Rai at the time

of judgment was aged 70 years and Kakru Rai was 65 years and the
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judgment is of the year 2013 and considering that they must be by

now aged about 74 years and 69 years respectively. In such view of

the matter, so far appellants Rajendra Rai, Kakru Rai and Pradeep Rai

they appear to have remained in custody as under trial prisoners and

as convicts for about four and a half years, their sentences are

modified to the period already undergone by them in custody.

32. So far appellant Ramu Rai is concerned, in the facts

and circumstances of the case, his conviction and sentence under

Sections 363 and 376 IPC remains intact. So far sentence of fine

against the appellants under Sections 363 and 372 IPC is concerned,

the same will remain intact.

33. With the above modification in the judgment of

conviction and order of sentence, all the four appeals are partly

allowed.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 25.07.2017
Transmission 25.07.2017
Date

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