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Dharam Yadav & Anr vs The State Of Bihar on 14 May, 2018

Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.363 of 2015
Arising Out of PS.Case No. -144 Year- 1992 Thana -JOGAPATTI District-
WESTCHAMPARAN(BETTIAH)

1. Chhathu Yadav, Son of Late Jagarnath Yadav,

2. Bhikhari Yadav, Son of Late Bhola Yadav,

3. Mangani Yadav @ Mangnu Yadav, Son of Late Bhola Yadav, All residents
of village – Ojha Barwa, P.S. – Yogapatti (Shanichari), District – West Champaran.

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s
with

Criminal Appeal (SJ) No. 422 of 2015
Arising Out of PS.Case No. -144 Year- 1992 Thana -JOGAPATTI District-

WESTCHAMPARAN(BETTIAH)

1. Dharam Yadav, son of Late Bhola Yadav

2. Laxmi Yadav, son of Late Muneshwar Yadav, All residents of village – Ojha
Barwa, P.S. – Yogapatti (Shanichari), District – West Champaran.

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s

Appearance :

(In CR. APP (SJ) No.363 of 2015)
For the Appellant/s : Mr. Umesh Chandra Verma-Advocate
For the Respondent/s : Mr. Bipin Kumar-A.P.P.

(In CR. APP (SJ) No.422 of 2015)
For the Appellant/s : Mr. Umesh Chandra Verma-Advocate
For the Respondent/s : Mr. Z. Hoda-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 14-05-2018

Cr. Appeal (S.J.) No.363 of 2015 wherein Chhathu

Yadav, Bhikhari Yadav, Mangani Yadav @ Mangnu Yadav are the

appellants and Cr. Appeal (S.J.) No.422 of 2015 wherein Dharam
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 2

Yadav and Laxmi Yadav are the appellants originate against the

common judgment of conviction dated 28.05.2015 and order of

sentence dated 29.05.2015 whereby and whereunder appellant

Dharam Yadav and Laxmi Yadav have been found guilty for an

offence punishable under Section 376(g) of the I.P.C. and sentenced

to undergo R.I. for ten years as well as to pay fine appertaining to

Rs.10,000/- and in default thereof, to undergo S.I. for six months,

additionally, under Section 342 of the I.P.C. and sentenced to undergo

R.I. for one month. Dharam Yadav has further been convicted for an

offence under Section 323 of the I.P.C. and sentenced to undergo R.I.

for three months. Chhathu Yadav, Bhikhari Yadav and Mangani

Yadav @ Mangnu Yadav have been held guilty for an offence

punishable under Section 376(g)/ 34 of the I.P.C. and sentenced to

undergo R.I. for ten years as well as to pay fine appertaining to

Rs.10,000/- and in default thereof, to undergo S.I. for six months by

the 4th Additional Sessions Judge, West Champaran at Bettiah in

Sessions Trial No.445 of 1996, whereupon have been heard together

and are being disposed of by a common judgment.

2. PW-6, victim (name withheld) recorded F.I.R. on

11.07.1992 at about 10.30 a.m. disclosing therein that about 15-16

days ago (25.06.1992) at about 5.00 p.m. while she was returning

from a field after scraping, collecting grass in basket and carrying the
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 3

same over her head. As soon as, she reached near the darwaza of

Dharam Yadav, Dharam Yadav came out, caught hold her, began to

assault with fists and slaps and then, threw her basket. Then, he

dragged her. She at that very moment shouted for her rescue, during

midst thereof, accused Laxmi Yadav came from behind, lifted her,

took her inside the room and then, threw her on the ground. She tried

to resist, but was overpowered by Dharam Yadav and then, after

lifting her Sari, committed rape. During course thereof, he also tore

her blouse. She raised alarm. She had heard murmuring of so many

persons, even then, she was not at all released. After commission of

rape by Dharam Yadav, she tried to come out, but was apprehended

by Laxmi Yadav, who also threw her on the ground and then,

committed rape. After the rape, anyhow she came out from the room

and then, saw Bhikhari Yadav, Mangni Yadav and Chhathu Yadav

armed with lathi and were keeping watch over the persons, who have

assembled there, out of whom, she had identified Ramjit Prasad her

Bhainsur and co-villager Lagan Rout, Aaliya Khan, Hiraman Prasad

and others. After sometime, her husband came home, when she

disclosed the occurrence. Villagers were also saying that no such type

of occurrence had ever taken place. Now, it is difficult to preserve

one’s prestige. Then, they were about to proceed to police station, but

were presented by the accused persons on the pretext of bhala and

lathi. After spending two days, anyhow they succeeded in coming out
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 4

from their village and then, had gone to Superintendent of Police and

placed an application before him. Subsequently thereof, having been

informed by the Police Station, they came to Police Station and gave

her statement. It has also been disclosed that accused persons are

desperate fellow.

3. After registration of Yogapatti P.S. Case No.144 of

1992, investigation commenced and after concluding the same,

chargesheet was submitted on the basis of which, the trial commenced

and culminated 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. It has also been pleaded that on

account of land dispute persisting since before amongst the parties,

this false case has been instituted by the informant at the instance of

her husband and to substantiate the same, one DW has also been

examined.

5. In order to substantiate its case, prosecution had

examined altogether six PWs, who are PW-1, Umesh Prasad, PW-2,

Ramjit Rout, PW-3, Hiraman Rout, PW-4, Ramlagan Patel, PW-5,

Surat Patel and PW-6, victim. Side by side, had also exhibited the

document as Exhibit-1, formal F.I.R. As stated above, DW-1,
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 5

Rajendra Pal has been examined in defence.

6. The learned counsel for the appellant while assailing

the judgment impugned has submitted that the finding recorded by the

learned lower Court is not at all maintainable in the eye of law,

because of the fact that A) there happens to be inordinate delay of 16

days in launching of instant case without any cogent explanation and

that being so, the prosecution case is to be seen with suspicious eye,

B) Doctor has not been examined and that being so, there happens to

be absence of supportive evidence, C) I.O. has not been examined and

on account thereof, apart from causing prejudice to the interest of the

appellant, it has also caused dent in the prosecution case on account of

absence of objective finding of the P.O., which could have essential in

the facts and circumstances of the case, more particularly when the

evidence of the victim is that she was raped after dragging her inside

the house of the appellant Dharam Yadav. None other have had

claimed to have witnessed the occurrence and the manner whereunder

they deposed cast doubt over credibility of the prosecutrix. So, the

cumulative effect did not justify the finding recorded by the learned

lower Court and on account thereof, the judgment impugned is fit to

be set aside.

7. On the other hand, it has been submitted on behalf of

learned Additional Public Prosecutor that from perusal of the
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 6

judgment impugned, it is apparent that the learned lower Court had

considered each and every pros and cons coming out and after

analyzing the same, rightly inferred against the appellants and that

being so, the judgment impugned did not attract interference.

8. Admittedly, I.O. has not been examined. The non-

examination of the I.O. really caused prejudice to the interest of the

appellant so much so it has caused dent to the prosecution version is

to be seen in overall consideration of the materials available on the

record. In Lahu Kamlakar Patil and another vs. State of

Maharashtra reported in (2013)6 SCC 417, it has been held:-

“18. ………………………………………………..It is an

accepted principle that non-examination of the Investigating

Officer is not fatal to the prosecution case. In Behari Prasad

v. State of Bihar[(2010) 6 SCC 1], this Court has stated that

non-examination of the Investigating Officer is not fatal to the

prosecution case, especially, when no prejudice is likely to be

suffered by the accused. In Bahadur Naik v. State of

Bihar[(1996) 2 SCC 317], it has been opined that when no

material contradictions have been brought out, then non –

examination of the Investigating Officer as a witness for the

prosecution is of no consequence and under such

circumstances, no prejudice is caused to the accused. It is

worthy to note that neither the trial judge nor the High Court

has delved into the issue of non-examination of the

Investigating Officer. On a perusal of the entire material
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 7

brought on record, we find that no explanation has been

offered. The present case is one where we are inclined to

think so especially when the informant has stated that the

signature was taken while he was in a drunken state, the

panch witness had turned hostile and some of the evidence

adduced in the court did not find place in the statement

recorded under Section 161 of the Code. Thus, this Court in

Arvind Singh v. State of Bihar[(2000) 9 SCC 153], Rattanlal

v. State of Jammu and Kashmir[(2001)6 SCC 407] and

Ravishwar Manjhi and others v. State of Jharkhand[(2007) 13

SCC 18], has explained certain circumstances where the

examination of Investigating Officer becomes vital. We are

disposed to think that the present case is one where the

Investigating Officer should have been examined and his non –

examination creates a lacuna in the case of the prosecution.”

Same view has also been taken in Baldev Singh v. State

of Haryana reported in 2016 CRI.L.J. 154.

9. Furthermore, it is also evident that there happens to be

inordinate delay in the launching of the prosecution. From the initial

version, it is evident that in the F.I.R., there happens to be specific

disclosure that while victim along with her husband was to proceed to

P.S., the accused persons cordoned them on the point of deadly

weapon and they were forced to remain inside their house and lastly,

after spending three days, anyhow they got an opportunity, whereupon

they came out and took necessary steps. On that very moment, PW-5,
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 8

husband of the victim at Para-4 and PW-6 at Para-3 had detailed

properly. It is further evident from the record that on the factum of

approaching to S.P. Sahab, PW-5 was cross-examined under Paras-

14,15 whereas PW-6 at Para-39 has been tested and more or less, they

have corroborated their earlier version. Moreover, in State of

Himachal Pradesh vs. Sanjay Kumar alias Sunny reported in 2017

CRI.L.J. 1443, it has been held:-

“24. When the matter is examined in the aforesaid

perspective, which in the opinion of this Court is the right

perspective, reluctance on the part of the prosecutrix in not

narrating the incident to anybody for a period of three

years and not sharing the same event with her mother, is

clearly understandable. We would like to extract the

following passage from the judgment of this Court in

Tulshidas Kanolkar v. State of Goa[(2003) 8 SCC 590]:

“5. We shall first deal with the question of delay.

The unusual circumstances satisfactorily explained the

delay in lodging of the first information report. In any

event, delay per se is not a mitigating circumstance for the

accused when accusations of rape are involved. Delay in

lodging the first information report cannot be used as a

ritualistic formula for discarding the prosecution case and

doubting its authenticity. It only puts the court on guard to

search for and consider if any explanation has been offered

for the delay. Once it is offered, the court is to only see
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 9

whether it is satisfactory or not. In case if the prosecution

fails to satisfactorily explain the delay and there is

possibility of embellishment or exaggeration in the

prosecution version on account of such delay, it is a

relevant factor. On the other hand, satisfactory explanation

of the delay is weighty enough to reject the plea of false

implication or vulnerability of the prosecution case. As the

factual scenario shows, the victim was totally unaware of

the catastrophe which had befallen her. That being so, the

mere delay in lodging of the first information report does

not in any way render the prosecution version brittle.”

25. In Karnel Singh v. State of Madhya Pradesh[(1995) 5

SCC 518], this Court observed that:

“7…The submission overlooks the fact that in India

women are slow and hesitant to complain of such assaults

and if the prosecutrix happens to be a married person she

will not do anything without informing her husband.

Merely because the complaint was lodged less than

promptly does not raise the inference that the complaint

was false. The reluctance to go to the police is because of

society’s attitude towards such women; it casts doubt and

shame upon her rather than comfort and sympathise with

her. Therefore, delay in lodging complaints in such cases

does not necessarily indicate that her version is false…”

26. Likewise, in State of Punjab v. Gurmit Singh

Ors.[(1996) 2 SCC 384], it was observed:

Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 10

“8…The courts cannot overlook the fact that in sexual

offences delay in the lodging of the FIR can be due to

variety of reasons particularly the reluctance of the

prosecutrix or her family members to go to the police and

complain about the incident which concerns the reputation

of the prosecutrix and the honour of her family. It is only

after giving it a cool thought that a complaint of sexual

offence is generally lodged…”

10. Doctor has not been examined. There happens to be

definite assertion at the end of the PW-6, victim when she was

examined by the doctor after 15-16 days of the occurrence.

Admittedly, such long interval, made the medical report of no

consequence. That being so, examination or non-examination of the

doctor is not going to help either of the side and so, the non-

examination of the doctor could not be found adverse to the interest of

prosecution.

11. Now, coming to material witnesses, admittedly, PW-

1 is formal in nature and so, his evidence is not relevant in the present

context. PW-2 is the elder brother of husband of the victim (PW-6).

He had stated that while he was coming from his field and reached

near the house of Panditji, he had seen the victim coming along with

grass, who was apprehended by Dharam Yadav. She raised alarm,

whereupon he rushed. Bhikhari Yadav, Mangni Yadav and Chhathu
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 11

Yadav attempted upon him to assault with lathi, whereupon he

escaped there from, claimed identification of the accused. Then had

stated that after half an hour when victim came, he had seen her

blouse torn. She had also disclosed that she was raped by Laxmi and

Dharam Yadav. During cross-examination at Para-4, she had stated

that he is separate from the victim. At Para-5, he had stated that

quarrel took place at the darwaza of Dharam Yadav. He had further

stated that when he came, he met with the victim. She talked with him

and during course thereof, she had disclosed that she was assaulted.

He had not disclosed the same to any of the villagers. In Para-6, he

had admitted that he had not made statement before the police that at

that very time, he was coming from his field. He had seen victim

coming with grass, who was caught hold by Dharam Yadav and then,

both of them indulged in scuffle and then thereafter, she was taken

away, victim had raised alarm. He had not named Bhikhari Yadav,

Mangni Yadav, Chhathu Yadav and Dharam Yadav. He was not at his

house. Victim had disclosed that Laxmi and Dharam have raped upon

her and then, had denied the suggestion that he had deposed falsely.

12. PW-3 had deposed that on the alleged date and time

of occurrence, he was returning from the shop of Laxmi Thakur after

purchasing lantern glass and during course thereof, he had seen

Dharam Yadav having caught hold the victim and assaulted with fists
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 12

and slaps. Then thereafter, Dharam Yadav dragged her inside his

house. When he tried to intervene, Chhathu Yadav, Mangni Yadav,

Bhikhari Yadav and Dharam Yadav chased him with lathi, whereupon

he ran away. After half an hour, he met with the victim, who had

disclosed that she was raped by Dharam Yadav. Again said that the

victim had disclosed that she was raped by Laxmi Yadav and Dharam

Yadav. He had not seen the incident. He had seen cloth of the victim

in torn condition. During course of cross-examination, he had

disclosed the genealogical table of the accused as Dharam Yadav,

Mangni Yadav and Bhikhari Yadav were the full-brothers while

Chhathu Yadav was cousin brother. Laxmi Yadav was the agnate of

Dharam Yadav. Then had disclosed the boundary of the P.O. as

North-house of Karam Yadav and Ganesh Rout, South-house of

Bhikhari Yadav, East-house of Mangru and Laxmi Yadav and West-

house of Kilandi Baitha. House of Dharam Yadav happens to be

thatched one. He had not gone inside his house. Then had shown the

distance of house of each of the accused from the house of Dharam

Yadav. He had further stated that while he was returning from the

shop, he had seen Laxmi Yadav, Dharam Yadav and the victim at the

darwaza of Dharam Yadav. He had further stated that Dharam Yadav

was in Lungi and Ganji. At that very time, Laxmi Yadav was at

Mardani Kurta. Victim was wearing Sari and blouse of red colour.

Her bangle was broken. When he saw her, there was cloth over her
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 13

body. She was in middle of the road. Three accused were in between

him as well as the victim. He is unable to say how many injuries were

over the person of the victim. Victim had not fallen over the ground

rather she was taken away by dragging. At that very time, she had

raised alarm. At that very time, none other than, he was present. She

was being assaulted by Dharam Yadav only. During course thereof,

Sari had fallen from her body. When other accused chased him, at that

very time, victim was taken away inside the house of Dharam Yadav.

Then, he came to his house, he had not gone to inform Chaukidar.

After sometime, when he had gone to the house of Dharam Yadav, so

many villagers were present. He had not seen incident of rape. Then

there happens to be contradiction.

13. PW-4 had stated that on the alleged date and time of

occurrence, he was at his darwaza. At that very time, victim was

going towards her house carrying grass. As soon as she reached in

front of darwaza of Dharam Yadav, Dharam pushed the bucket and

then, dragged her inside his house. What had happened then

thereafter, he is unable to say. At that very time, none was along with

her. Subsequently thereof, he had not talked with the victim.

Identified the accused. At Para-5, he had stated that as he had not

gone to P.O. on account thereof, he is unable to say what had occurred

inside the house. So many persons have assembled there, but he is
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 14

unable to disclose their names. Then had denied the suggestion that no

such type of occurrence had ever taken place, but being the henchmen

of the victim had deposed falsely.

14. PW-5 is the husband of the victim. He had stated

that on the alleged date and time of occurrence while he was engaged

in menial work by the Mukhiyaji, his son Kamlesh aged about 8 years

came and informed that his mother has been taken away by the

accused persons inside the house of Dharam Yadav. While he was in a

way, Pancham and his wife have forbade him not to go, otherwise his

life will be at stake, whereupon he had gone to the Darwaza of

Ramakant. Subsequently thereof, his wife came at the darwaza of

Mukhiyaji weeping and disclosed that Dharam and Laxmi committed

rape inside the house of Dharam and at that very time, Mangru,

Bhikhari and Chhathu Yadav armed with lathi where keeping watch.

He had seen blouse of his wife torn. There was Panchayati at the place

of Mukhiyaji, but it could not be materialized. Mukhiyaji then

directed to come on the following day on which date, they again gone,

but nothing happened. Then thereafter, he had gone to S.P., who had

directed him to go to P.S. Daroga had taken his statement, identified

the accused. During cross-examination at Paras-6, 7, 8, 9, 10 and 11,

there happens to be cross-examination relating to family status of the

accused persons. In Para-12, he had stated his son along with

Pancham and his wife had disclosed regarding the occurrence.
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 15

Furthermore, they had also disclosed that in case, he would go to

house of Dharam, will be assaulted. In Para 13, he had stated that he

met with his wife at the house of Mukhiyaji at about 5.30 P.M, She

was weeping. She disclosed with regard to occurrence. Mukhiyaji was

also present. As the guests were there on account thereof, he had not

given much time. At Para-14, he had stated that when Panchayati did

not materialize, then they have gone to the S.P. where filed an

application and the same was sent to the concerned police station. In

Para-17, he had stated that whatever been deposed by him in the

Court, was stated by him before the police also and on that very score,

there happens to be contradiction. Then had denied the suggestion that

at the instance of Mukhiyaji, this case has been instituted.

15. PW-6 is the victim. She had deposed that on the

alleged date and time of occurrence while she was returning from the

field after scraping grass and as soon as reached in front of darwaza of

Dharam Yadav, Dharam Yadav pulled bucket full of grass and then,

took her inside his house, assaulting her. After taking her inside the

house, he threw her on the ground and then, committed rape after

lifting sari. When Dharam Yadav came out, Laxmi came in, who also

caught hold her, forced her to lie down and then, committed rape on

her. They have also torn her blouse. When she came out from the

house, she had seen Mangru Yadav, Bhikhari Yadav, Chhatu Yadav

armed with lathi and were saying, whoever will dare to come, will be
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 16

assaulted. She had seen Hiraman Patel, Ramji Patel, Lalan Patel,

Lagan, Aalim Mian along with others, standing away therefrom, who

have seen the occurrence. When her husband came, she disclosed,

whereupon her husband opined to go to police station, but accused

persons became adamant to assault, whereupon out of fear, they

remained inside their house for two days. Then thereafter, they got an

opportunity, came out and then, met with S.P. before whom, presented

an application, which was sent to the local police. Thereafter, police

had recorded her statement, whereupon she along with her husband

put their thumb impression, identified the accused. During cross-

examination at Para-7, she had stated that 50-60 houses lies at her

village belonging to all caste. Then had disclosed that Mukhiyaji is

Brahmn by caste. She had disclosed at Para-8 that she along with wife

of Kapildeo was engaged in scraping the grass. At Para-9, she had

disclosed the boundary of the P.O. as West-house of Dharam Yadav,

South-house of Birandi Baitha, North-house of Bhikhari Yadav, East-

houses of Chhathu Yadav and Mangru Yadav. In Para-10, she had

stated that Dharam Yadav has thatched house. The house of

Chaukidar lies at village-Sikta, having more than half kilometer. Then

at Para-12, there happens to be cross-examination relating to inter se

relationship amongst the accused. In Para-13, she had stated that at the

time of occurrence, none of female members, children were present at

the house of Dharam Yadav. There were 4-5 family members at the
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 17

time of occurrence. They might have gone to scrap the grass. In Para-

15, she had stated that the road lies in front of house of Dharam at a

distance of two Laggi. At Para-17, she had stated that she had got no

animosity with the accused persons. Her house lies after 4-5 houses

from the P.O. Then at Para-18 and 19, there happens to be cross-

examination relating to houses of the witnesses including others. In

Para-22, she had stated that at the time of occurrence, she was wearing

green sari and blouse of red colour. Now, those cloths are not

available. Darogaji had seen blouse. In Para-23, she had stated that

during course of returning to her house after carrying grass, the wife

of Kapildeo got separated and gone towards her house. In Para-24, she

had stated that when she reached in front of house of Dharam, none

was present over the road. Accused was also not present. Then had

stated that when her bucket was pulled, she raised alarm. She tried to

flee. Grass scattered. She was assaulted approximately half an hour.

She was also assaulted over her mouth. In Para-25, she had stated that

she had not fallen over the road rather she was dragged. At Para-26,

she had stated that she knew the meaning “Balatkar”. Then had stated

at Para-27 that she was dragged. In Para-28, she had stated that

occurrence took place for 10-15 minutes. At that very time, the

darkness had not fallen nor it was full of light. In Para-29, she had

stated that she was conscious at the time of commission of the

occurrence. She was not at all assaulted after the occurrence. She had
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 18

tried to save herself. She had not bite as her both hand were caught

hold by the accused. In Para-30, she had stated that at the time of

occurrence, she had raised alarm, but none other came as accused had

kept watch outside the darwaza. When she was lying over the ground

after having been raped by Dharam Yadav, Laxmi Yadav came. At

that very time, also she raised alarm. She had made an effort to save

herself, even then Laxmi Yadav also raped her. In Para-33, she had

stated that the villagers were seeing the event standing away from the

house of Dharam, out of fear. Then at Para-34 had stated that when

Laxmi came out, she also came out. Darkness had fallen. She had seen

so many persons present there. In Para-36, she had stated that she on

her own came out weeping from the house of Dharam. Sari and saya

were soiled, bangles broken down. In Para-37, she said that on

account of breakage of bangle, she had not sustained injury. Then had

stated that at a distance of two laggi from the house of accused

persons, villagers were present. She is unable to disclose the names of

all the villagers. In Para-38, she had stated that other accused namely

Bhikhari, Mangru and Chhathu were standing one and half laggi away

from the darwaza. In Para-39, she had stated that she had disclosed

the occurrence to her husband. They have gone to S.P. after three

days. She met with S.P. She had presented the application before the

S.P., which was sent to the police. She was medically examined after

15-16 of the occurrence. Her statement was recorded by the police.
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 19

Police had also came to her village. Police had gone inside the house

of the accused, but she is unable to say what the police did. In Para-

42, she had stated that when she had not informed the Chaukidar

rather she had gone to Mukhiyaji. At Para-43, she had stated that she

was not treated of the assault. She had disclosed regarding assault to

the police. In Para-44, she had denied the suggestion that no such type

of occurrence had ever taken place rather accused persons have been

implicated on account of animosity. Then was suggested that during

course of scrapping of grass, she had quarreled with the female

members of the accused persons, whereupon lodged this false case.

16. DW-1 is Rajendra Pal, who had come to depose that

his house lies by the side of the house of Surat Patel, husband of the

informant. He had further stated that there happens to be land dispute

in between Surat Patel and accused persons as land of both the parties

happen to be contiguous to each other. In the aforesaid background,

Surat Patel got this case instituted at the instance of his wife. During

cross-examination, he had stated that his house happens to be at

village-Sikta Morha. P.O. village happens to be his Nanihal. He has

got no document to support that he is residing at his Nanihal. At Para-

8, he had stated that there happens to be no other case in between the

parties. He had further stated that there was no dispute amongst the

parties since before the occurrence. Then again said that land dispute

was there. Then had stated that he is unable to disclose the khata
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 20

number, khesra number and boundary of the land.

17. After analyzing the evidence available on the

record, it is evident that two kinds of evidences have been adduced by

the prosecution, the first part happens to be, who have not seen the

occurrence, but came to know after having been informed by the

victim, corroborative in nature and the second kind happens to be that

of victim.

18. So far rape case is concerned, considering the Indian

social infrastructure, whereunder prestige of woman is found of

paramount consideration, whereupon there happens to be consistent

judicial view that the evidence of the victim happens to be that of

prima importance. Unless and until, there happens to be cogent reason

to disbelieve the same on account of persistence of material

development, animosity, inconsistency, the evidence of prosecutrix is

to be accepted. From the evidence available on the record that while

cross-examining the victim as well as while examining DW-1,

defence had not been able to place the prevailing animosity, if any,

even the land dispute as suggested by the DW-1 has not properly been

substantiated as DW-1 had failed to disclose the survey plot number

or boundary of the land of both the parties being contiguous to each

other and that happens to be reason behind absence of definite plea

while cross-examining the prosecutrix. Apart from this, from the

evidence of the victim (PW-6), it is evident that she was not cross-
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 21

examined on the factum of occurrence that means to say, over the rape

by way of dragging the victim inside the house of Dharam Yadav and

the manner whereunder she was overpowered by Dharam Yadav

during course of commission of rape and then, by Laxmi Yadav. That

being so, whatever been deposed by the victim is found

uncontroverted. In likewise manner, there happens to be status of

remaining three appellants. In State of Himachal Pradesh vs. Sanjay

Kumar alias Sunny (Supra), it has been held:-

“31. After thorough analysis of all relevant and attendant

factors, we are of the opinion that none of the grounds, on

which the High Court has cleared the respondent, has any

merit. By now it is well settled that the testimony of a victim

in cases of sexual offences is vital and unless there are

compelling reasons which necessitate looking for

corroboration of a statement, the courts should find no

difficulty to act on the testimony of the victim of a sexual

assault alone to convict the accused. No doubt, her

testimony has to inspire confidence. Seeking corroboration

to a statement before relying upon the same as a rule, in

such cases, would literally amount to adding insult to

injury. The deposition of the prosecutrix has, thus, to be

taken as a whole. Needless to reiterate that the victim of

rape is not an accomplice and her evidence can be acted

upon without corroboration. She stands at a higher

pedestal than an injured witness does. If the court finds it
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 22

difficult to accept her version, it may seek corroboration

from some evidence which lends assurance to her version.

To insist on corroboration, except in the rarest of rare

cases, is to equate one who is a victim of the lust of another

with an accomplice to a crime and thereby insult

womanhood. It would be adding insult to injury to tell a

woman that her claim of rape will not be believed unless it

is corroborated in material particulars, as in the case of an

accomplice to a crime. Why should the evidence of the girl

or the woman who complains of rape or sexual molestation

be viewed with the aid of spectacles fitted with lenses

tinged with doubt, disbelief or suspicion? The plea about

lack of corroboration has no substance {See Bhupinder

Sharma v. State of Himachal Pradesh (2003) 8 SCC 551}.

Notwithstanding this legal position, in the instant case, we

even find enough corroborative material as well, which is

discussed hereinabove.”

That being so, the evidence of victim is found reliable

and is accepted.

19. However, it is made clear that in terms of

Explanation-1 of Section 376 of the I.P.C. (the then prevailing) there

was no occasion for the learned lower Court to have identified the

appellants Chhathu Yadav, Bhikhari Yadav and Mangni Yadav with

the add of Section 34 of the I.P.C. rather in likewise manner, they

would have also been identified under Section 376(g) of the I.P.C.
Patna High Court CR. APP (SJ) No.363 of 2015 dt.14-05-2018 23

20. With the aforesaid modification, instant appeal sans

merit and is accordingly, dismissed. Appellants are on bail, hence

their bail bonds are hereby cancelled directing them to surrender

before the learned lower Court within four weeks to serve out the

remaining part of sentence, failing which, the learned lower Court will

be at liberty to proceed against them in accordance with law.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 17.05.2018
Transmission 17.05.2018
Date

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