Rupesh Giri vs The State Of Bihar on 3 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.124 of 2015
Arising Out of PS.Case No. -75 Year- 2012 Thana -SAMASTIPUR GRP CASE District-
SAMASTIPUR

1. Rupesh Giri S/o Late Umesh Giri Resident of Mohalla Pethiya Gachhi, P.S.
Samastipur Town, District Samastipur.

…. …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Arun Kumar Tripathi, Amicus Curiae
For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 03-08-2017

The appeal has been called out. None appears on

behalf of appellant. On account thereof, Mr. Arun Kumar Tripathi,

has been requested to assist the court as an Amicus Curiae which he

concedes.

2. Appellant, Rupesh Giri has been found guilty for

an offence punishable under Section 354 IPC and sentenced to

undergo RI for 2 years, to pay fine of Rs. 500/- in default thereof, to

undergo SI for 1 month, under Section 363 IPC and sentenced to

undergo RI for 7 years, to pay fine of Rs. 1000/- in default thereof to

undergo SI for 3 months, under Section 366A IPC and sentenced to

undergo RI for 10 years, to pay fine of Rs. 2000/- in default thereof to

undergo SI for 6 months, under Section 304 (II) IPC, and sentenced to

undergo RI for 10 years, to pay fine of Rs. 2000/- in default thereof to

undergo SI for 6 months with a further direction to run the sentences
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 2

concurrently vide judgment of conviction dated 13.01.2015 and order

of sentence dated 17.01.2015 passed by Adhoc Additional Sessions

Judge-3rd Samastipur in Sessions Trial No. 119/2013.

3. PW-1, Rekha Devi recorded her Fard-e-beyan

before police officials of GRP, Samastipur on 05.11.2012 at 2.00 AM

at emergency ward, Railway Hospital, Samastipur disclosing therein

that on 03.11.2012, she along with her daughter Nitu Kumari, Nanad,

Sita Devi, Villagers, Jairam Kamti, Samtolia Devi and Mamta Devi

had gone to Simaria for taking holy dip in the river, Ganga. After

taking holy bath on 04.112012, all of them came to Barauni Junction

awaiting arrival of relevant train to their destination. At about 9.00

PM, Katihar-Darbhanga train came. They boarded in the 4th bogie

from the bogie of Guard. When the train came at Dalsingsarai, some

of the passengers got down whereupon they had taken berth and slept,

All of a sudden, one of the passengers raised alarm that whose girl is

being kidnapped whereupon they awaken and saw one person

carrying her daughter. They wanted to catch hold of but, the aforesaid

miscreant jumped out from the running train carrying her daughter.

They began to raise hue and cry. They also tried to stop the train, till

then it halted at a station known as Nazirganj. All of them along with

some of the passengers of that bogie got down came to the place of

station master, narrated the incident who informed the GRP and after
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 3

arrival search was carried out and during course thereof, near about

outer signal of Nazirganj, both of them were traced out being in

injured condition. Her daughter was unconscious while miscreant was

conscious who, on query disclosed his identity as Rupesh Giri son of

Umesh Giri of village- Pethiya Gachhi, P.S. Samastipur Town,

District Samastipur.

4. Initially, Rail PS Case No. 75/2012 was registered

under Sections 363, 354, 307 IPC but on account of death of the

victim, Section 302 IPC was also added. After submission of charge-

sheet, cognizance was taken whereupon, trial before the court of

sessions proceeded, concluded with ultimate result the subject matter

of instant appeal.

5. The defence case as is evident from the mode of

cross-examination as well as statement recorded under Section 313

CrPC is of complete denial. Furthermore, it has also been pleaded that

appellant was standing over the gate and during course thereof,

unfortunately, he had fallen down from the running train. It was bad

luck, for that victim also fallen down from the bogie on account of

darkness, whereupon he has been implicated out of misconception.

6. In order to substantiate its case, prosecution had

examined altogether 12 PWs out of whom PW-1, Rekha Devi, PW-2,

Sita Devi, PW-3, Samtolia Devi, PW-4, Jairam Kamti, PW-5, Binod
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 4

Kumar Verma, PW-6, Allauddin, PW-7, Ramtapeshwar Verma, PW-

8, Mukesh Kumar, PW-9, Dr. Amrendra Kr Singh, PW-10, Dhananjay

Kumar Singh, PW-11, Dharmendra Kr. Ray and PW-12, Dr. Prakash

Kumar. Side by side had also exhibited Ext-1, Fard-e-beyan, Ext-2,

injury report, Ext-3, Sanha no. 139/2012, Ext-4 signature of PW-10

over Fard-e-beyan, Ext-4/1, endorsement over Fard-e-beyan, Ext-5,

inquest report, Ext-6, Postmortem report. While neither any DW nor

any kind of document has been exhibited on behalf of defence.

7. Learned Amicus Curiae while challenging the

judgment of conviction and sentence has submitted that the finding

recorded by the learned lower court is not at all based upon sound

principle of law, hence is fit to be set aside. In order to buttress such

plea, it has been submitted that from the prosecution evidence, it is

apparent that after departure of the train from Dalsingsarai, it halted at

station, Nazirganj. So, the appellant’s presence inside the bogie

should have been before Dalsingsarai or at Dalsingsarai. As the

prosecution party themselves admitted that after departure of train

from Dalsingsarai they slept over the berth and lifting of girl and

jumping from the running train by the appellant before arrival of next

station is not at all inspiring confidence in the background of the fact

that, in that event, the member of the prosecution party could have

been under deep slumber and so, there was no occasion for one Md.
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 5

Allauddin, PW-6 to raise alarm. Apart from this, It has also been

submitted that form the evidence of PW-6, it is evident that on his

own he had not perceived such kind of activity at the hands of the

appellant rather as the victim had raised alarm, so he apprehended

some sort of fault whereupon, he also raised alarm. The victim was

along with prosecution party and so, the prosecution party should

have awaken hearing the alarm of the victim but they have not. So the

story as propounded by the prosecution that the victim was taken

under grip by the appellant under ulterior motive and then, jumped

from a running train is nothing but misnomer. It has also been

submitted that, on the other hand, the plea of defence having advanced

on behalf of the appellant looks more probable and so, appellant

should have been given benefit of doubt. Apart from this, it has also

been submitted that the identification of the appellant in the facts and

circumstances of the case is found doubtful as, none of the passengers

including prosecution party had stated that light was inside the

compartment and so, they have had occasion to see the appellant. In

the aforesaid facts and circumstances of the case, it has been

submitted that the conviction and sentence recorded by the learned

lower court did not justify whereupon should be set aside.

8. Learned APP, while opposing the submission made

on behalf of learned Amicus Curiae, has submitted that on superficial
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 6

ground, evidences would not be discarded. Evidence in its entirety is

to be seen and during course thereof, the Court has to exercise in such

a manner that court be able to pick up grain from the chaff. If those

part of evidence is found sufficient to record conviction, is found

legally permissible. As is evident, the evidence whatsoever been

adduced on behalf of prosecution is found creditworthy having no

scope of false implication, in absence of any sort of grievance. Apart

from this, the witnesses are consistent as well as reliable over all

aspect including manner of occurrence as well as proper identification

of the appellant/accused. That being so, the learned lower court rightly

convicted and sentenced the appellant/convict and as such, did not

attract interference.

9. PW-9 is Dr. Amrendra Kr Singh who had examined

the victim Nitu Kumari on 05.11.2012 at 1.35 A.M.. He had found her

in semi conscious position. There was abrasion over her waist. No

other external injury was found but perceiving condition of the patient

who might have been sustained severe internal injury, though

initiative was taken but for better treatment, she was referred to Sadar

Hospital, Samastipur whereupon GRP personnel took her to Sadar

Hospital. He had exhibited injury report as Ext-2. Subsequently

thereof, the deceased while being admitted at the Sadar Hospital,

Samastipur died whereupon, postmortem was conducted over her
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 7

dead body on 05.112012 at about 12.25 by PW-11 Dr. Prakash Kumar

hours and found the following ante-mortem injuries:-

Externally:- (i) Bruise and haematoma sized 5″ x 1″ over
right thigh and lower abdomen.

(ii) Swelling and bruise over lumber vertebra.

Internal on dissection:-

1) Muscle haematoma and fracture of right
side of the neck of femur.
2) Rupture of intestine and adjacent organs.
Part of ovary and uterus, and blood
present in abdominal cavity.
3) Muscle haematoma over lumber region.
There was no evidence of rape. Time
elapsed since death 36 hour.

10. In the opinion of the doctor death has occurred on

account of shock and hemorrhage due to ante-mortem injuries caused

by hard and blunt substance. The doctor had further justified the

illustration suggested at the end of the prosecution that if a person

jumps out of a running train along with victim then in that event, such

kind of injuries could be found over the victim and exhibited the

postmortem report as Ext-6.

11. During cross-examination at para-14, he had admitted

that no external injury was found having bleeding but, there was

profuse bleeding internally. Therefore, from the aforesaid evidence it

is evident that the deceased had sustained injuries and for getting

specialized treatment she was referred to Samastipur Sadar Hospital

where she succumbed. So death has been properly substantiated.
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 8

12. PW-8 is the Satiation Master of the Nazirganj Station.

He had stated that on 04.11.2012, he was posted at Nazirganj as

Station Master. He had stated that on that day his duty hour was from

1600 hours to 2400 hours. At about 22:28 hours, Train No. 55535

passenger train (Katihar-Darbhanga) came. After stoppage of the

train, so many females as well as males got down from a bogie and

disclosed that one person has jumped from the running train carrying

a girl aged about 13-14 years just before and so, necessary steps be

taken. Accordingly, he informed his superiors as well as the GRP

through station master, Dalsingsarai. Then thereafter, after persuading

passengers to keep patience, the train was allowed to proceed. Police

came and then, with the assistance of the villagers gone in search and

found the girl as well as miscreant in injured condition near about

home signal of Nazirganj Station. He had already incorporated in his

book regarding cause of delay of the train. The passengers had also

disclosed that the aforesaid incident had occurred while they were

returning from Simaria after “Ganga Asnan”. During cross-

examination, it is evident that he was deputed there by the Traffic

Inspector. In para-10, he had disclosed that he had not gone to the

place of occurrence. In para-11, he had stated that he had not taken

proper identity from the passengers. He had further stated in para-13

that there happens to be no outpost of RPF at Nazirganj Station.
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 9

13. PW-10 is Dhananjay Kumar, Investigating Officer who

had deposed that on 04.11.2012 at about 22.40 hours he was informed

that one miscreant jumped out from a running train near about

Nazirganj Station carrying a girl whereupon, Sanha No. 139/2012 was

registered (exhibited) and then, proceeded from GRP out post,

Samastipur. He rushed at Nazirganj, done the formalities, recorded the

Fard-e-beyan of Rekha Kumari, took the statement of witnesses,

inspected the place of occurrence which happens to be the running

train as well as the place near about outer signal of Nazirganj Station

where girl as well as miscreant were found in injured condition, took

the girl to Railway Hospital and then Sadar Hospital, Samastipur

where she died. Inquest was prepared, sent the dead body for

postmortem, received postmortem report. On 06.11.2012, accused

was discharged from the hospital whereupon, was taken into custody

who, during course of interrogation, made inculpatory extra-judicial

confessional statement. Subsequently, was sent to judicial custody.

Then thereafter submitted charge-sheet after concluding the

investigation. During cross-examination, he had admitted that he had

not gone to the native place of the deceased. In para-14, he had stated

that as per his direction, one of the constables had recorded Fard-e-

beyan of informant in a way as stated by the informant. In para-16, he

had further stated that he had not seized blood stain from the place of
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 10

occurrence or blood stained clothe of the deceased.

14. PW-11, a police constable had come to say that as

directed by Dhananjay Kumar, Investigating Officer, he had recorded

the Fard-e-beyan of informant, Rekha Devi.

15. Now coming to the oral evidence, PWs-5 and 7 are not

relevant on the fact as they were not the members of pilgrims along

with others, rather, PW-7 happens to be the father of the deceased and

on being informed he had gone to the place of PW-5 to accompany

whereupon they both came and found the deceased dead.

Subsequently, they gathered information from the witnesses including

Allauddin and so are hearsay on that very score.

16. Now the evidence of PWs, 1, 2, 3, 4 along with

evidence of PW-6 has to be seen whether the same substantiated the

allegation against the appellant or not. PW-6 had stated that on the

alleged date and time of occurrence, he was returning to his home by

Katihar- Darbhana passenger. He boarded the train at Dalsingsarai at

about 10.00 PM. While he was sitting inside the bogie, he found one

person who was looking the passengers of the compartment. Other

passengers either had slept over berth or even being seated, were

taking nap. Just after five minutes, the boy lifted the girl whereupon,

the girl raised alarm. He also raised alarm that a girl is being

kidnapped till then, the miscreant jumped out of train along with the
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 11

girl. He tried to pull the chain meanwhile, the train reached at Station

which was Nazirganj. All of them got down, informed the station

master who accordingly, informed the concerned, police official whol

came and then, on search the girl and the miscreant were found in an

injured condition near outer signal of Nazirganj. The girl was badly

injured and was unconscious. The miscreant was also injured but was

in sense. On query, the accused had disclosed his identity as Umesh

Giri. He identified the accused. Police along with injured and her

mother, other family members, villagers along with he himself came

to Samastipur where victim was admitted in the railway hospital

Samastipur. Accused was also admitted. Thereafter, he gone to his

place. His statement was recorded by the police. During cross-

examination, he had stated that he neither knew the accused nor the

prosecution party. At para-8, he stated that he had gone to the place of

his elder sister of his wife. In para-9, he had further stated that he is

not remembering the bogie number, seat number. In para-10 he had

stated that bogie was lighten. From there, the place where he was, as

well as other passengers were visible to him. In para-11, he had stated

that first of all, he perceived that the man might have been connected

with them but, as the girl raised alarm then, he understood the

situation whereupon, he had raised alarm. The miscreant jumped out

of running train having girl in his grip. This occurrence took place
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 12

after Dalsingsarai Station. Then thereafter, the train halted at

Nazirganj Station. In para-12, he had stated that he did not get down

from the train at Nazirganj at his own but at the request of prosecution

party, he got down. They remained their for 1 and ½ hours.

Subsequently thereof, they departed therefrom through another train.

17. From the evidence of PWs-1, 2, 3 and 4 it is evident

that they are consistent over the version whatever been at the end of

PW-6, Md. Allauddin so far manner of occurrence is concerned. They

only added regarding their status as pilgrims up to Simaria Ghat and

after taking holy bath in river, Ganges they were returning to their

native place. During course of their returning to their native places,

the aforesaid incident took place. Even during cross-examination,

nothing substantial has been found save and except that the victim

was sitting over another seat while she was along with her Nanad

PW-2 was sitting at another seat and in likewise manner, the other

members of group. She had further stated that her daughter had slept

in the train. They had denied the suggestion that as bogie was dark

and so, the victim while going to wash-room fell down and the

appellant acting as a good Samaritan jumped out from the train to

save her.

18. After having analytical approach of the evidence

adduced on behalf of prosecution, it is evident that prosecution had
Patna High Court CR. APP (SJ) No.124 of 2015 dt.03-08-2017 13

substantiated its case beyond all reasonable doubt. So far finding with

regard to Section 366A of the IPC is concerned, there happens to be

no evidence on the record to suggest that kidnapping was for forcing

the victim to indulge in sexual activity whereupon, the judgment

impugned needs intervention to that extent. While exercising the

appellate power, the finding recorded by the learned lower court to

that extent is hereby annulled under Section 368 of the IPC . So far

conviction and sentence relating to remaining Section 354, 363 and

304(II) IPC are concerned, that will remain inconsonance with the

sentence having been inflicted therefor. Accordingly, the appeal is

dismissed in terms of aforesaid finding.

19. Appellant is under custody which he will till saturation

of the sentence

20. The first and the last pages of the instant judgment be

handed over to the learned Amicus Curiae.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 07.08.2017
Transmission 07.08.2017
Date

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