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 22difficult 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
