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Anand Ram @ Phula Ram @ Anant Ram vs The State Of Bihar on 23 July, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1539 of 2017
Arising Out of PS.Case No. -605 Year- 2012 Thana -AHIAPUR District-
MUZAFFARPUR

Anand Ram @ Phula Ram @ Anant Ram, Son of Mahendra Ram,
resident of Village-Neliri, P.S.-Ahiyapur, District-Muzaffarpur.

…. …. Appellant
Versus
The State of Bihar

…. …. Opposite Party/Respondent

Appearance :

For the Appellant/s : Ms. Soni Shrivastava, Adv.

For the State : Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT ORDER
Date: 23-07-2018

The appellant/Anand Ram @ Phula Ram @

Anant Ram has been convicted under Section 376 of the

Indian Penal Code (in short the I.P.C.) by judgment dated

18th April, 2017, passed by the learned 13 th Addl. District

Sessions Judge, Muzaffarpur in Sessions Trial No. 157 of

2013, arising out of Ahiyapur P.S. Case No. 605 of 2012,

and by order dated 19th April, 2017, he has been sentenced

to undergo rigorous imprisonment for seven years, to pay a
Patna High Court CR. APP (SJ) No.1539 o f 2017 dt.23-07-2018

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fine of Rs. 3,000/- and in default of payment of fine, to

further suffer simple imprisonment for one month.

2. The appellant is said to have committed

rape upon the victim/P.W. 6.

3. The prosecution case is based upon the

fardbeyan of P.W. 6, who has alleged that on 04.11.2012 at

about 9 O’Clock in the night, when she had come out of her

house to attend the call of nature, she was caught by the

appellant, who forcibly took her to the half constructed

house of one Hanif Mian of the village. At that place, it has

been alleged by the prosecutrix (P.W. 6) that she was

subjected to rape. When she protested, the appellant left

her and started running away. In the meantime, persons of

the neighbourhood caught the appellant and assaulted him.

In the same breath, the prosecutrix has also stated that

when she raised protest against the act of the appellant,

she was pushed down on the ground, leading to injuries to

her. She was taken to hospital by her husband and

villagers where she was treated for sometime. The

victim/P.W. 6 has also alleged that while fleeing-away, the

appellant took her A.T.M. card, on which, the Pin number

was also written.

4. On the basis of the aforesaid fardbeyan

statement of the victim/P.W. 6 on 07.11.2012 with respect
Patna High Court CR. APP (SJ) No.1539 o f 2017 dt.23-07-2018

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to the occurrence dated 04.11.2012, a case vide Ahiyapur

P.S. Case No. 605 of 2012, dated 07.11.2012, was

instituted for investigation for the offences under Sections

376, 379 and 323 of the I.P.C.

5. The police, after investigation of the case,

submitted charge-sheet, whereupon, cognizance was taken

and the case was committed to the Court of Sessions for

trial.

6. The Trial Court, after examining thirteen

witnesses on behalf of the prosecution and two on behalf of

the defence, convicted and sentenced the appellant as

aforesaid. However, the appellant has been acquitted of the

charge under Sections 379 and 323 of the I.P.C.

7. P.Ws. 7, 8, 9 and 13 are the villagers, who

have expressed their complete ignorance about the

occurrence and, hence, they have been declared hostile.

8. P.Ws. 1, 2 and 3 are the Doctors, who have

examined the appellant as well as the victim/P.W. 6.

9. Dr. Bipin Kumar (P.W. 1) has deposed

before the Trial Court that on 10.11.2012, he was posted in

S.K.M.C.H., Muzaffarpur and on the same day, he examined

the victim/P.W. 6. The victim had refused for her internal

examination. Her X-ray was done and was put to

ossification test. On external examination, it was found that
Patna High Court CR. APP (SJ) No.1539 o f 2017 dt.23-07-2018

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the victim was aged about 22 to 23 years. From the

evidence of P.W. 1, it appears that the victim had not

received any injury on her person on the day of the

occurrence or else, the report of P.W. 1 would have

contained reference of such injury.

10. Dr. S.B. Jha (P.W. 2) has examined the

appellant and found four injuries on his person. The

appellant had complained of chest pain in the upper part

and pain in his shoulders as well. There was an abrasion on

the scalp over right side. The cause of injuries is reported

to have been caused by hard and blunt substance.

11. Dr. Prity (P.W. 3) has examined the victim

in the first instance. The injury report prepared by her has

been marked as Ext.-3 and 3/1. She has deposed before

the Trial Court that the victim was brought to the hospital

by her husband/P.W. 5. She had examined the victim on

09.11.2012 and did not find any injury on her external

portion of the body. On internal examination, the victim’s

hymen was found to be ruptured, but there was no sign of

any injury. The vaginal swab and smear which were taken

did not report positive for any spermatozoa.

12. What becomes evident from the deposition

of the aforesaid three Doctors/witnesses is that the victim

did not suffer any injury and that she was married. Thus,
Patna High Court CR. APP (SJ) No.1539 o f 2017 dt.23-07-2018

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the evidence of P.W. 3 or P.W. 1 is of no avail, so far as the

charge against the appellant is concerned. What is relevant

is that in the occurrence, the appellant was caught and

assaulted by the villagers, for which, a case was lodged by

the appellant vide Ahiyapur P.S. Case No. 606 of 2012.

13. The brother-in-law of the victim, viz. Md.

Saleem has been examined as P.W. 4. He has supported

the prosecution version in as much as he has stated that on

04.11.2012, he heard some sound coming from the side of

Hanif’s under constructed house. When he went there, he

found the appellant and the prosecutrix. The appellant was

seen running away, but was caught by the villagers. The

victim, on being asked, told that the appellant had tied her

mouth with a piece of cloth and had subjected her to rape.

He has further deposed that the information was provided

to the police and, thereafter, the police took the victim as

well as the appellant to S.K.M.C.H., Muzaffarpur for

treatment. The suggestion given to him that the appellant

had lent Rs. 1,00,000/- to one Md. Aslam, who is related to

the husband of the victim, which had not been returned and

on demand of the same, a false case has been instituted.

14. The husband of the prosecutrix (P.W. 6),

viz. Md. Lukman has been examined as P.W. 5. He has

narrated what the victim had told him. He has also stated
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before the Trial Court that he reached the place of

occurrence and found that his wife/prosecutrix was crying.

He saw the appellant also near the house of Hanif, a co-

villager. He has admitted in his cross-examination that Md.

Aslam is his brother, but denied the fact that his brother

had taken Rs. 1,00,000/- from the appellant for the

marriage of his daughter and that any Panchayati was held

for re-payment of the said amount. When aforesaid P.W. 5

was further confronted with the fact that the appellant was

assaulted and a case was lodged by him vide Ahiyapur P.S.

Case No. 606 of 2012, he expressed his complete ignorance

about the same.

15. Now the only witness whose evidence

would be important for consideration in the present case is

the evidence of the victim herself, who has been examined

as P.W. 6. She has reiterated the same story which she had

narrated in her First Information Report. At about 9

O’Clock, when she had come out of her house to attend to

the call of nature, she was caught and raped by the

appellant. After the appellant had ravished her, he wanted

to run away, but was apprehended and assaulted by the

local people. The victim, in her cross-examination, has

stated that she has four children. She has further stated

that after the act of sexual assault, she became unconscious
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and was brought to her house first where she regained her

consciousness. She has also denied that she had any

knowledge about Md. Aslam having taken Rs. 1,00,000/-

from the appellant.

16. Ms. Soni Shrivastava, learned Advocate

appearing for the appellant has submitted that the

statement of the victim/P.W. 6 that she was injured in the

occurrence because she was pushed down on the ground on

protest is absolutely wrong. She was examined by P.W. 3

on 09.11.2012, but no external injury was found on her

person. The other grounds which have been urged for

assailing the judgment and order of conviction is that the

occurrence took place on 04.11.2012, whereas, the F.I.R.

was lodged on 07.11.2012 and no explanation has been

offered for such delayed reporting of the matter. The

explanation, viz. that she was undergoing treatment in a

hospital cannot be accepted to be true, in view of the

deposition of P.W. 3 as also P.W. 1, who did not find any

injury on the person of the victim/P.W. 6.

17. It has also been argued that the fact that

the appellant also was assaulted and had to undergo

medical treatment reflects that perhaps, he was caught in

the company of the victim and since the victim was a

married lady, hailing from a different community, the people
Patna High Court CR. APP (SJ) No.1539 o f 2017 dt.23-07-2018

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of the locality assaulted him.

18. The act of rape could not be established for

the simple reason that no injury was found and the major

part of the version of the prosecutrix does not appear to be

correct or trustworthy. The delay in lodging the F.I.R.;

absence of any injury on the person of the prosecutri x

thereby, making major part of her version before Trial Court

to be incorrect and no evidence of rape or any internal

injury, completely rubbishes the prosecution version.

19. The Investigating Officer of this case has

not been examined and definite prejudice has been caused

to the appellant as the attention of the witnesses to their

earlier statement though were drawn, but could not be

confirmed by putting such questions to the Investigating

Officer of this case.

20. From the overall circumstances, P.Ws. 4

and 5, who claimed to have seen the appellant running

away, do not appear to be trustworthy and reliable. No

doubt, the medical examination of the victim, after some

days of the occurrence, may not provide the investigating

agencies or the Court with any clue regarding the

correctness of the version, but from the overall surrounding

circumstances and deposition of the witnesses, the

allegation against the appellant appears to be false. The
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charge of rape has not been established beyond all

reasonable doubts.

21. The falsity of the prosecution case further

appears from the fact that the victim is stated to have been

robbed of her A.T.M. card. Ms. Soni Shrivastava, learned

Advocate has submitted that it does not appear to be

probable that a person would come out in the night to

attend the call of nature with his/her A.T.M. card. In this

connection, the suggestion given to the witnesses that there

was a dispute with respect to re-payment of Rs. 1,00,000/-

to the appellant, which was taken by the brother of the

victim, assumes some significance. The aforesaid ground in

favour of the appellant could not be established because of

the non-examination of the Investigating Officer.

22. In any view of the matter, since the

evidence is absolutely deficient against the appellant,

benefit of doubt would be required to given to him.

23. For the aforesaid reasons, the judgment of

conviction dated 18th April, 2017 and order of sentence

dated 19th April, 2017, passed by learned 13th Addl. District

Sessions Judge, Muzaffarpur in Sessions Trial No. 157 of

2013, arising out of Ahiyapur P.S. Case No. 605 of 2012,

cannot be sustained in the eyes of law and the same is,

hereby, set aside.

Patna High Court CR. APP (SJ) No.1539 o f 2017 dt.23-07-2018

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24. The appeal is, accordingly, allowed.

25. The appellant/Anand Ram @ Phula Ram @

Anant Ram is in custody. He is directed to be released

forthwith from jail, if not required in any other case.

26. Let a copy of this judgment be transmitted

to the Superintendent of the concerned jail for information,

record and compliance.

(Ashutosh Kumar, J)

Praveen-II/-

AFR/NAF R NAF R
CAV DATE N/A
Uploading 25.07.2018
Date
Transmission 25.07.2018
Date

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