Ram Gyani Rai vs State Of Bihar on 7 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.283 of 2002

Ram Gyani Rai, son of Late Jageshwar Rai @ Budhu Rai, resident of Village-
Bharat Nagar, P.S.-Gaighat, District-Muzaffarpur
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Arun Kumar Tripathi(Amicus Curiae)
For the State : Mr. Z. Hoda, APP

CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT

Date: 07-10-2017

Challenging his conviction to undergo four years

rigorous imprisonment for the offence under Sections 376/511 of the

Indian Penal Code, this appeal has been filed by the appellant

accused.

It is the case of the prosecution that at 2:00 Clock

in the night intervening 08.06.1994 and 09.06.1994 while the

prosecutrix in the Angan of her house along with her child was

sleeping, she suddenly woke up when she felt somebody lifting her

Saree. She enquired as to who is this, it is said that accused threatened

her, told that he is Ram Gyani Rai and when she raised an alarm, her

father-in-law Lakhan Sah, Dewar Saukhi Sah and various other

persons including her mother-in-law came there, caught hold Ram

Gyani Rai. The villagers also assembled there and he was handed over
Patna High Court CR. APP (SJ) No.283 of 2002 dt.07-10-2017

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to the police. The First Information Report was lodged on the basis of

the fardbeyan given by the informant/prosecutrix herself and the

appellant was prosecuted for the offence under Sections 448, 354, 504

of the Indian Penal Code but the case was thereafter committed to the

Court of Sessions after the Judicial Magistrate finding certain offence

under Section 376 of the Indian Penal Code to have been made out.

The appellant was put on trial and the prosecution examined the

following witnesses. P.W. 1 Lakhan Sah who is father-in-law of the

prosecutrix and he speaks about that he come to the spot hearing hulla

made by his daughter-in-law and when he came to the Angan, he saw

accused Ram Gyani Rai committed rape forcibly on his daughter-in-

law. He is said to have informed the police about the same. The next

witness examined is P.W. 2 Raj Kishore Sah who also speaks in the

same manner as P.W. 1, Lakhan Sah. P.W. 3 Krishna Deo Sah who is

also a resident of the house who also suggests in the same manner as

P.W. 1 and P.W. 2. P.W. 4 Tildeo Sah is not an eye witness but he is

informed about the incidence by other witnesses. He admits that he

did not see anything. P.W. 5 is Shankar Sah and he also speaks about

his rushing to the Angan when he saw the accused lying on the body

of the prosecutrix. P.W. 6 Madan Devi is mother-in-law of the

prosecutrix who speaks about that she woke up after hearing hulla and

saw many persons caught hold the accused person Ram Gyani Rai.
Patna High Court CR. APP (SJ) No.283 of 2002 dt.07-10-2017

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P.W. 7 Shambhu Sah is also member of the family and is said to have

seen the accused caught in the Angan of the house. P.W. 8, Gita Devi,

the prosecutrix herself and she speaks about the appellant trying to

commit rape on her forcibly. However, in the First Information Report

lodged by P.W. 8 vide Exhibit-1, the story narrated and the story

given by her in the Court are entirely different. P.W. 8 the prosecutrix

only speaks about somebody trying to lift her sari, she making the

commotion and the other persons of the house coming. However, her

statement in the Court, she develops story about the accused lying

over her body and trying to commit the offence of rape. Interestingly

the prosecutrix is not subjected to medical examination. No medical

evidence has been produced and there is no iota of evidence except

oral testimony of the witnesses to prove the offence under Section 376

of the Indian Penal Code. The defence of the accused is that he has

been falsely implicated. He has gone with the consent of the

prosecutrix.

Taking note of the aforesaid facts of the case, it

is clear that the prosecutrix has given contradictory statement initially

in the First Information Report, Exhibit-1 and in the statement

recorded as P.W. 8 in the Court. She has not been subjected to the

medical examination and the allegation with regard to commission for

the offence under Section 376 of the Indian Penal Code has not been
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proved beyond reasonable doubt. That apart, from the record, it is

seen that the statement of the appellant under Section 313 has not

been examined in accordance to the requirement of law laid down by

the Ho’ble Supreme Court in the case of Sukhjit Singh versus State

of Punjab (2014) 10 SCC 270. In the aforesaid case, after taking note

of the law laid down in the case of Hate Singh Bhagat Singh versus

State of Madhya Bharat AIR 1953 SC 468, the principle laid down is

that the statement of the accused to be recorded under Section 313 Cr.

P.C is not an ample formality. It is a statutory protection granted to

the accused under law and the statement has to be recorded after

following the set principle which has been laid down in the case of

Ranvir Yadav versus State of Bihar (2009) 6 SCC 595 and Tara

Singh versus The State AIR 1951 SC 441, wherein, it contemplates

that the object of Section granting appropriate opportunity of

explaining the circumstances which appears against him and fairness

of the trial requires compliance of this mandatory requirements and

after considering all these judgments, it has been held by the Hon’ble

Supreme Court that if requisite question has not been put to the

accused and if the compliance of Section 313 Cr. P.C has not been

properly made, it proceeded to cause prejudice to the accused and the

entire trial stands vitiated on this ground alone and on the basis of

such a proceeding the trial is unsustainable. If the statement of the
Patna High Court CR. APP (SJ) No.283 of 2002 dt.07-10-2017

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appellant recorded on 14th of March, 1997 available in the record is

taken note of, it seems that the requirement of law as contemplated

hereinabove has not been complied with.

In the facts and circumstances of the case, it

appears that there are various other lacuna for which the conviction of

the appellant cannot be sustained.

Accordingly, the appeal is allowed. The

judgment of conviction and order of sentence dated 02.05.2002 passed

by the learned IInd Additional Sessions Judge, Muzaffarpur in

Sessions Trial No. 158 of 1995 is set aside. The appellant is on bail,

hence, he is discharged from the liability of the bail bonds.

(Rajendra Menon, CJ)
Shageer/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 12/10/2017
Transmission NA
Date

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