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Angad Kumar Yadav vs The State Of Bihar on 22 August, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1249 of 2017
Arising Out of PS. Case No.-87 Year-2013 Thana- SAHARSA District- Saharsa

1. Heera Devi, Wife of Domi Srivastva

2. Akhilesh Srivastava @ Akhilesh Kumar Srivastva @ Ashish, Son of Domi
Srivastva Resident of Village- Milki, PS- Maranga, District- Purnea.

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

with
CRIMINAL APPEAL (SJ) No. 1288 of 2017
Arising Out of PS. Case No.-87 Year-2013 Thana- SAHARSA District- Saharsa

Angad Kumar Yadav, son of Birendra Prasad Yadav, resident of village-Oli
Tola, Police Station-Maranga, District-Purnea.

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

Appearance :

(In CRIMINAL APPEAL (SJ) No. 1249 of 2017)
For the Appellant/s : Mr.Diwakar Prasad Singh, Adv.

Mr. Om Prakash Singh, Adv.

For the Respondent/s : Mr. Binod Bihari Singh , APP
(In CRIMINAL APPEAL (SJ) No. 1288 of 2017)
For the Appellant/s : Mr. Vivekanand Jha, Adv.

For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 22-08-2019

1. Cr. Appeal (SJ) No.1249 of 2017 wherein Heera Devi

as well as Akhilesh Srivastava @ Akhilesh Kumar Srivastva @

Ashish are the appellants, Cr. Appeal (SJ) No.1288 of 2017

wherein Angad Kumar Yadav is the appellant commonly originate

against the judgment of conviction dated 28.02.2017 and order of

sentence dated 06.03.2017 relating to Sessions Trial No.188/2013
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arising out of Saharsa P.S. Case No.87/2013 on account thereof,

have been heard together and are being disposed of by a common

judgment.

2. Appellant, Akhilesh Srivastava @ Akhilesh Kumar

Srivastva @ Ashish has been sentenced to undergo R.I. for ten

years as well as to pay fine appertaining to Rs.5000/- in default

thereof, to undergo S.I. for three months under Section 376 IPC as

well as under Section 366 of the IPC respectively, along with to

undergo R.I. for one year as well as to pay fine appertaining to

Rs.1000/- in default thereof, to undergo S.I. for one month, under

Section 342 IPC and sentenced to undergo R.I. for two years as

well as to pay fine appertaining to Rs.1000/- in default thereof to

undergo S.I. for one month under Section 506 of the IPC while,

appellants Hira Devi and Angad Kumar Yadav have been

sentenced to undergo R.I. for one year as well as to pay fine

appertaining to Rs.1000/- in default thereof, to undergo S.I. for

one month under Section 342 IPC to undergo R.I. for two years as

well as to pay fine appertaining to Rs.1000/-in default thereof to

undergo S.I. for one month under Section 506 of the IPC, to

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

Rs.3000/- in default thereof to undergo S.I. for two months under

Section 366/Section34 IPC with a further direction that all the sentences
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will run concurrently, with a further direction that the period

having undergone during trial will be set off in accordance with

Section 428 of the IPC by the First Additional Sessions Judge-

cum-Special Judge, Saharsa in Sessions Trial No.188/2017.

3. Mahadev Rishidev, PW.9 filed written report on

24.02.2013 disclosing therein that his wife Rambha Devi (PW.5)

happens to be in service at Purnea being employed in Polytechnic

School. Earlier, they were living at mohalla Ram Nagar at Purnea

town as a tenant in the house of Vijay Gupta. About a month ago

they have come to Saharsa and were residing in their own house

along with his daughter (name withheld PW.3) aged about

seventeen years, son (PW.1), daughter-in-law (PW.4) and opened a

grocery shop to maintain their livelihood. On 19.02.2013 he along

with his son has gone outside. When they returned back about

11:00 AM. They came to know that the victim is missing since 3-4

hours. On account thereof, they gone in search of the victim and

during course thereof, he came to know that Akhilesh Srivastava

@ Akhilesh Kumar Srivastva @ Ashish, Son of Domi Srivastva of

Village- Milki Tola, PS- Maranga, District- Purnea along with the

victim has gone towards Tiwary Tola over motorcycle bearing

registration no.BR-11G/5343. After sometime, he received a call

from mobile no.9570701636 wherefrom he was informed that
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victim has been kidnapped by Akhilesh Srivastava @ Akhilesh

Kumar Srivastva @ Ashish with the help of his friend Angad

Kumar Yadav, Nanku Yadav who has taken her away towards

Purnea. Then thereafter, they gone in search and during course

thereof visited Madhepura, Singheshwar and other place, and then

came to Purnea and during course thereof, they came to know that

Akhilesh Kumar Srivastava, Jyoti Kumari (friend of the victim),

Angad Kumar Yadav, Hira Devi, Nanku Kumar have enticed

away the victim. He also came to know that the kidnapping has

been either for the purpose of marriage or to sale.

4. After registration of Sadar P.S. Case No.87/2013

investigation commenced and after concluding the same charge

sheet has been submitted during midst thereof, the victim has been

recovered, her statement under Section 164 Cr.P.C. was recorded.

She was medically examined and during course thereof, she has

been found pregnant. It is further evident from the record, that

charge sheet was filed in two stages, however after framing of

charge and before commencement of examination of witnesses,

both the sessions trial have been amalgamated.

5. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of

the Cr.P.C, so far appellant Angad Yadav is concerned, complete
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denial of the occurrence and further, being friend of Akhilesh

Kumar Srivastava he has been falsely implicated and, so far

appellant Akhilesh Kumar Srivastava and Hira Devi are

concerned, apart from complete denial of occurrence, it has also

been pleaded that victim, a major who fallen in love with the

Akhilesh, out of own volition accompanied him and then got

herself married and declared herself to be his wife. In support

thereof, two Dws have also been examined.

6. Altogether nine PWs have been examined in order to

support its case at the end of the prosecution who are PW.1-Ajay

Kumar, PW.2-Nawal Kishore Nawal, PW.3-Victim, PW.4-Ruby

Kumari, PW.5-Rambha Devi, PW.6-Dr. Poonam Singh, PW.7-Anil

Kumar, PW.8-Manju Devi, PW.9-Mahadev Rishidev. Side-by-side

also exhibited, Ext.1-Signature of victim over statement under

Section 164 Cr.P.C., Ext.2-Signature of the victim over an

undertaking, Ext.3-Injury Report, Ext.4-Written Report. Side-by-

side two DWs have also been examined, DW.1-Raj Kumar Thakur

and DW.2-Mistwer Alam and has also exhibited Ext.A-

Registration card of the victim issued by Bihar School

Examination Board and Ext.B-Marksheet issued by Bihar School

Examination Board relating to Secondary School Examination

2010. Mark Ext.’X’ is a script over a plain paper allegedly in the
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pen of the victim acknowledging herself to be wife of Ashish

Kumar on account of marriage having solemnized on 19.02.2013.

7. It has been pleaded at the end of the learned counsel

for the appellant representing appellant Angad Kumar Yadav that

the finding recorded by the learned lower court relating to him

happens to be contrary to the spirit of law because of the fact that

even accepting the version of prosecution, appellant’s presence

happens to be from the place of the kidnapping to Purnea near

Kajhakothi where victim remained which is found cackled if there

happens to be proper appreciation of the cross-examination having

been made at the end of the appellant. It is abundantly clear that

there would not be any occasion for appellant to be present. That

happens to be reason behind absence of appellant at the initial

prosecution version whereunder there happens too be specific

disclosure that victim along with Akhilesh has been going towards

Tiwary Tola over motorcycle. That being so, the improbability,

infirmity, unreliability of the evidence of the PW.3, victim did not

justify the conviction and sentence.

8. The learned counsel representing the appellant Hira

Devi and Akhilesh Kumar Srivastava have submitted that the

finding recorded by the learned lower court is not at all

maintainable whereupon, is fit to be set aside. In order to justify
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the same, it has been submitted that victim was major which she

has herself admitted by way of disclosing the date of birth as

15.10.1994. Also submitted that manner whereunder she joined

and remained in company of appellant Akhilesh Kumar Srivastava

till the date of her apprehension without any hitch and hindrance

is indicative of the fact that she was a consenting party,

whereupon on her own volition she entered into wedlock with the

appellant Akhilesh Kumar Yadav on 19-02-2013 and

acknowledged herself to be wife enjoyed marital life. It is the

stage when she tutored, whereupon fallen under grip of her

parents, she has deposed against the appellant, and so, the

circumstances visualizing from her evidence is sufficient to erase

the finding recorded by the learned lower court. Furthermore, it

has also been pleaded that manner whereunder appellant Hira

Devi has been introduced did not justify, hence her case should be

dealt with differently.

9. The learned APP on the other hand, has submitted

that after meticulous examination of the materials having on the

record, the learned lower court formed an opinion whereupon,

needs no interference.

10. None is an eyewitness of occurrence and that being

so, victim alone is the witness of her kidnapping as well as over
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rape although, during her medical examination after recovery by

PW.6, Dr. Punam Singh she has been found pregnant, carrying

pregnancy of eleven weeks plus-minus seven days old. The

occurrence is of dated 19.02.2013 while she was examined on

28.04.2013 that means to say, more or less happens to be within

the specified period.

11. During course of examination, PW.3, (victim) has

deposed that in routine manner she gone in morning walk on

19.02.2013 at about 05:00 AM. After covering some distance

Akhilesh Kumar Srivastava and Angad Kumar Yadav came over

bike, forcibly lifted her over bike and then, put a handkerchief

over her face as a result of which, she became unconscious. At

that very moment, Akhilesh Kumar Yadav was driving the

motorcycle, she was in the middle and Angad Kumar Yadav was

behind her. They came in a village near Kajhakothi at Purnea

wherefrom Angad Kumar Yadav returned back. Then thereafter,

she had not seen him. She was kept in thatched house at the

village and in the night, Ashish had raped her. Ashish has got alias

name Akhilesh. She was kept there for 3-4 days and on each day

she was raped twice at least. After two days, mother of Akhilesh

came whom she disclosed that she wants to go to house but,

Akhilesh and his mummy took her to Bhagalpur on bus where
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they confined her in a room and then, his mummy returned back.

She remained at that room for 8-10 days. Their also Akhilesh

Kumar Srivastava committed rape on each night and further,

threatened that in case she will insist for going to her house then,

in that circumstance, her brother will be murdered and, her

mummy modesty not only outraged in public view rather she will

be also raped whereupon she became very much apprehensive.

Then she stated that after ten days, Akhilesh Kumar Srivastava

took her to Purnea on train, again corrected by bus and then from

Purnea to Kishanganj by train where she was kept in a hut. She

stayed there for 15-20 days and during midst thereof, she was

raped regularly. Then thereafter, she was brought back to Purnea

where again, she was kept in a hut for 3-4 days and raped. Then

she was taken to Madhepura by bus and during course of stay, he

got photo, signature over blank paper with an assurance that now

she being will be let of. Then thereafter, she was taken to Purnea

by bus and during midst thereof they both were apprehended by

the police at Murliganj. Police brought both of them from

Murliganj to Saharsa and then to Police Station. She was sent to

Sadar hospital for medical examination. Thereafter, her statement

was recorded before the Magistrate. Exhibited her signature.

Identified the accused. By an order of the court she was handed
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over to her parents on an undertaking (exhibited). It has also been

disclosed at her end that on account of being raped for such long

period, she became pregnant. She got it terminated at private

clinic of a doctor at Saharsa. She has been cross-examined

independently, separately by Angad Kumar Yadav as well as Hira

Devi and Akhilesh Kumar Srivastava. At the end of the Angad

Kumar Yadav, at para-6 she has stated that she had seen Angad

Kumar Yadav for the first time on the date of kidnapping.

Akhilesh Kumar Srivastava had disclosed the name of the accused

as Angad Kumar Yadav at Bhagalpur. In para-7, she has stated that

she is not knowing the registration number of the motorcycle.

When she was caught hold of she shouted but at that very moment

none might not have heard as, it was a lonely place having no

residence near by. In para-8 she has stated that bike came from

front (eastern side) and just after coming near her, parked. They

have not directed her to sit. Only Angad got down and took her

over motorcycle and for that, Akhilesh Kumar Srivastava had

instructed. She had protested. Becuase of the fact that she was

caught hold of on account thereof, could not succeed in escape.

There was some sort of sedative in the handkerchief since before

as a result of which it was over her face, she became unconscious.

She regained sense inside a house at Purnea. She is unable to say
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by which vehicle she was taken to Purnea as, she was suffering

from unconsciousness. When the water was sprinkled over her

face then she regained sense. Then thereafter, Angad Kumar

Yadav returned back. Thereafter, she has seen Angad in the dock

since thereafter. In para-9 she has stated that Akhilesh Kumar

Srivastava had disclosed the place to be Kajhakothi. She had come

to Saharsa in the month of January, 2013 before that, she remained

at Purnea for three consecutive years at Ramnagar mohalla. She

had seen Akhilesh to be driver of some body but, she is not

knowing the name of his master When she was taken to Purnea.

Then she knew Akhilesh by name. Then she said that she had not

seen Angad driving a vehicle at Purnea then she denied the

suggestion that it is false to say that she was knowing Angad since

before the occurrence. She also denied the suggestion that she

along with Akhilesh were in deep love with each other and, she on

her own had accompanied Akhilesh and as the Angad happens to

be friend of Akhilesh, on account thereof, he has been falsely

named. On behalf of Akhilesh Kumar Srivastava and Hira Devi at

para-10 she disclosed her date of birth as 15.10.1994. It was cold

at the time of occurrence. There was fog but was very much

visible. All the family members have awoke but, they were in their

room. She, in routine manner came out for morning walk. In para-
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11 she has disclosed that her house lies by the side of the road.

She used to cover a distance of half kilometer. Her family

members never protested on that very score. Houses of so many

persons are in the vicinity of her house and such as Surya Prakash

Narayan, Upendra Yadav etc. In para-12 she has stated that at the

time when she was being lifted on motorcycle, she shouted

loudly. She indulged in grappling. She pushed. Her cloth were not

pulled. At that very moment none of morning walker were present

though, on other day she had seen. At that very time, it was lonely.

In para-15 she has stated that she was not knowing Akhilesh since

before. She has further stated that while Akhilesh and Angad were

talking at Purnea, on account thereof, she came to know their

names. She had no opportunity to seat in a vehicle driven by

Akhilesh. She had not talked with Akhilesh at an earlier occasion.

At para-14 she has stated that she had protested at the house

located at Kajhakothi. He had caught hold her hand and not the

cloth. She was not knowing any family members of Akhilesh

since before. In para-15 she has disclosed that Akhilesh used to

bring food from outside wherefrom she was kept. Her mummy

had given Sari, Peticoat and Blouse. Akhilesh always remained

with her. She was penniless. Whenever he had gone to bring food

used to lock from outside. During intermediary period, she had
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tried to attract the people by pushing the door, shouting from

inside but, none had come. On court question she has disclosed

that whatever Akhilesh had kept her, he had not opened the room

by unlocking the door. All the buildings were consisting of one

room. There was river adjacent to the thatched house. Akhilesh

used to carry her to latrine. There was no building in adjoining of

the place where she was kept. In para-16 she has stated that none

of her family members were knowing Akhilesh since before. Then

she denied the suggestion that no such kind of occurrence had

ever taken place rather, she had fallen in love with Akhilesh and,

out of own volition married with him on 19.01.2013 and then,

thereafter, she enjoyed his company as her husband, but, after

institution of this case, coming in company of her parents in order

to save herself and as well as being influenced by her family

members got this case filed.

12. PW.7 is the I.O. he has deposed that on 24.02.2013

he was posted at Saharsa police station. After registration of Sadar

P.S. Case No.87/2013, he took up investigation. Recorded further

statement of Mahadev Rishidev, informant, visited the place of

occurrence which happens to be the house of the informant lying

near Laxminiya chowk, having boundary North-Surya Narayan

Yadav, South-Ratilal Yadav, East-boundary of DJPS school and
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West-Road. Nothing incriminating has been found at the place of

occurrence. Recorded statement of the witnesses. Received

supervision note and then submitted charge sheet. Then submitted

that got presence of the victim, over statementunder Sectionsection 164

Cr.P.C. was recorded got the victim medically examined. Procured

the medical report. During cross-examination at para-3 he has

stated that he had also gone to the place wherefrom victim was

kidnapped. It is road. He had not found any sign of kidnapping. In

para-4 he has stated that victim was taken to the doctor for

medical examination. In para-5 he has stated that he had not found

criminal antecedent of the accused.

13. PW.9 is the informant. He has stated that on the

alleged date and time of occurrence he along with his son had

gone to market. They returned back at about 11:00 AM and then,

came to know that his daughter (victim) was missing for the last

3-4 hours. During course of search, he came to know that

Akhilesh Kumar Srivastava @ Ashish along with his companion

Angad Kumar Yadav has been seen taking away the victim over a

motorcycle towards Tiwary Chowk. Soon thereafter, he received a

call that his daughter has been taken to Purnea. He immediately

rushed, made hectic search at Purnea but could not traced her out.

After 22 days he came to know that his daughter has been
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confined by Ashish at Madhepura. Then they have gone from

Purnea through bus. Then they have given written report before

the police. (Exhibited the same). Identified the accused. During

cross-examination at para-3 he has stated that he had not seen the

event of kidnapping. He had not seen the accused taking away his

daughter. During course of search he came to know. He had not

given print out of the mobile to the police by which he received

call. He had handed over his mobile to the police, in order to trace

out the caller. Then, a paper was shown to him from the defence

said to be in pen, signature of the victim which he declined. After

seeing the Ext.2 he has said that he has nothing to say. Then he

denied the suggestion that he has falsely deposed.

14. PW.1 is the brother. He during his examination-in-

chief has stated that his sister (victim) while had gone to morning

walk she was forcibly lifted by the Angad Kumar Yadav and

Akhilesh Kumar Srivastava over their motorcycle and sped away

towards Tiwary Tola. At that very time, he along with his father

has gone to market. When they returned back at about 11 PM,

came to know about the same. During course of search, he had

gone to Saharsa, Madhepura, Bagnmankhi Purnea but failed to

locate. He had gone to the house of Akhilesh where he met with

his wife and mother whom he disclosed the event and asked for
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help. They have flatly refused to say with regard to whereabout of

the accused. His mother happens to be In-charge Headmistress of

Polytechnic School where they have also resident. His sister

developed friendship with Jyoti Kumari with whom Akhilesh was

in talking term. On 27.04.2013 her sister was apprehended along

with Akhilesh Prasad Srivastava identified the accused. During

cross-examination at para-2 he has disclosed that the victim was

used to morning walk and then, she used to go to college at 10

AM. At about 01:00 PM. She used to return back from the college

and then, at the evening hour, she used to go to the house of her

maternal grand uncle lying at a distance of 100-150 meter. In para-

4 he has stated that he had not seen the occurrence.

15. PW.4 is the Bhabhi, who has deposed that on the

alleged date her husband as well as father-in-law have gone

outside. Then thereafter her Nanad (victim) proceeded for

morning walk. At about 10-11 AM her husband and father-in-law

returned back and inquired about the victim whereupon she

disclosed that for the last 3-4 hours she is not present. Then they

gone in search of her and during course thereof, they came to

know that Akhilesh has taken her away with an intention to marry.

She was traced out after 2-2 ½ month of kidnapping. She has not

claimed identification of the accused. During cross-examination,
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she has stated that she had not seen the occurrence. She has

deposed on the basis of hearsay. She has further stated that after 2-

4 days of the occurrence their father-in-law, husband disclosed

that her Nanad has been kidnapped by Akhilesh Kumar

Srivastava. Then denied the suggestion that her Nanad on her own

accompanied Akhilesh, got married and enjoyed marital life but,

on account of influence of the family members, she has deposed

falsely.

16. PW.5 is the mother of the victim. She has disclosed

that on the alleged date she was at Purnea where she happens to be

Assistant Teacher at polytechnic school. On that day Kundan

Kumar, sala of Akhilesh Kumar Srivastav telephonically informed

that Akhilesh Kumar Srivastava has enticed away her daughter

(victim) from Saharsa. While she was at her school, Kundan

Kumar came there at about 11 AM and disclosed the whole

occurrence whereupon she talked with her son Ajay who

reaffirmed and disclosed that he along with father is engaged in

making hectic search. In the evening, she came to Saharsa. Victim

was recovered after two months eight days. Identified the accused

Akhilesh Kumar Srivastava. Whom she claimed to have seen at

Police Station after arrest another accused was not identified by

her. During cross-examination she has stated that she had not seen
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the occurrence. She used to reside at Purnea she was not knowing

Akhilesh since before. She was not knowing Kundan sala of

Akhilesh since before. Then she denied the suggestion that victim

herself accompanied Akhilesh Kumar Srivastava married with him

and was enjoying her marital status but, on account of family

pressure gone averse.

17. PW.2 has stated that on the alleged date and time of

occurrence while he was engaged in morning walk and reached

near Laxminiya chowk, he had seen Akhilesh Kumar Srivastava

and Angad Kumar Yadav going towards southern direction over

motorcycle. Later on, he came to know that victim is missing.

Identified the accused. During cross-examination he has stated

that informant happens to be his brother-in-law (Bahnoi). His

house is near the house of informant. At para-3 there happens to

be contradiction but same has not corroborated by the PW.7. In

para-4 he has stated that he had not met with the Angad during

course of morning walk nor he was knowing him since before. He

has further stated that he has wrongly deposed during

examination-in-chief that he had seen Angad also. He had seen

only Akhilesh. In para-5 he has stated that he had not seen the

occurrence. In para-6 he has further stated that he was not

knowing Akhilesh Kumar Srivastava since before the occurrence.
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For the first time he had seen Akhilesh Kumar Srivastava on the

day of occurrence.

18. Needless that the victim is major. Needless to say that

none has claimed to be an eyewitness to occurrence and so, the

evidence of the victim has got primacy. Before filtering the

testimony of the victim, evidence of PW.6 is to be taken thereof.

PW.6 is the mother she has stated that Kundan Kumar firstly

telephonically informed her with regard to activity of Akhilesh

Srivastava and then, at about 11 AM while she was at school,

Kundan Kumar had came and disclosed about the occurrence.

Kundan Kumar has been disclosed Sala of the Akhilesh Kumar

Srivastava. There happens to be no cross-examination at the end

of the appellant that Akhilesh was unmarried and Kundan Kumar

was not his sala. While PW.1 had gone to the place of Akhilesh, it

is evident that he met with mother as well as wife of the Akhilesh

so, Akhilesh was married since before and that is found

conclusively proved. This event will play pivotal role in deciding

the appeal, as, could a virgin allow herself to be concubine as

second marriage happens to be void abinitio.

19. In the aforesaid background, the evidence of the

victim is to be taken note of. During her examination-in-chief, it is

evident that she had put an allegation against the Angad Kumar
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Yadav to have lifted her over the motorcycle being driven by

Akhilesh over which, she resisted and during course thereof,

handkerchief was put over her face and then, thereafter, her

consciousness was regained by way of sprinkling of water by the

Akhilesh at a house located at Kajhakothi wherefrom Angad

Kumar Yadav returned back and since thereafter, she had not seen

the Angad. Presence of Hira has been shown during intermediary

period when she was taken to Bhagalpur where, it has been

disclosed by the victim that she had handed over Sari, Petticoat

and blouse. No other activity has been alleged against her. No

such Sari, Petticoat, bluse has been found while she along with

Akhilesh was arrested. That being so, these two appellants, on the

basis of the aforesaid evidence are found entitled for benefit of

doubt and accordingly, the judgment of conviction and sentence

recorded against them is hereby set aside. Cr. Appeal (SJ)

No.1288/2017 filed by Angad Kumar Yadav is allowed. He is

under custody, hence is directed to be released forthwith if not

wanted in any other case. In likewise manner Cr. Appeal (SJ)

No.1249/2017 relating to appellant Hira Devi is allowed. She is on

bail hence is discharged from its liability.

20. Now coming to the status of the appellant Akhilesh

Kumar Srivastava, from the cross-examination, it is evident that
Patna High Court CR. APP (SJ) No.1249 of 2017 dt.22-08-2019
21/25

attention of the victim has not been drawn up whether during

course of travelling over bus or train, she had tried to raise alarm,

whether during course of passing through different roads, there

was any constructive effort at her end in order to rescue herself,

whether the houses in which she was kept was on tenancy, at least

the houses at Kajhakothi, Bhagalpur, Kishanganj and in likewise

manner, as is evident no effort has been taken at the end of the

appellant irrespective of institution of the case to claim victim to

be his legally wedded wife and for that, any effort in accordance

with Section 9 of the Hindu Marriage Act for restitution of

conjugal right. The aforesaid activity could also be seen in the

background of the fact that there happens to be specific disclosure

at the end of the victim that she was threatened while she was

captive of the appellant Akhilesh Kumar Srivastava that in case of

protest not only her brother will be eliminated rather her mother’s

modesty will be outraged as well as she will be also subjected to

rape which made her indolent. True it is, victim has been

recovered after more than two months, but there would have been

specific cross-examination to suggest her willingness, such as,

whether they frequently moved in the town, visited temple,

cinema house, hotel have gossip with neighbours, landlord,

engaged in daily routine, manner of earning. The worst thing is,
Patna High Court CR. APP (SJ) No.1249 of 2017 dt.22-08-2019
22/25

there happens to be complete absence at the end of the appellant

how he along with victim was arrested at Murliganj while he

along with victim was in a way to Purnea. Whether any family

member was present who introduced. Whether, they were carrying

bag and baggage. In likewise manner, victim was not suggested

how she had joined with the appellant whether she remained at

only fixed place while enjoying their marital life. The appellant

failed to controvert the activities whereunder victim was moved

one place to other. When she was a consenting party, then what

was justification for the same. The victim also not been confronted

where she got married with the appellant, nor she was ever cross-

examined on that score. It was mere a suggestion.

21. SectionIn Gian Chand others v. State of Haryana

reported in 2013(4) PLJR 7 (SC) it has been held by the Apex

Court:

“11. The effect of not cross-examining a
witness on a particular fact/circumstance has
been dealt with and explained by this Court in
Laxmibai (Dead) Thr. SectionL.Rs. Anr. v.
Bhagwanthuva (Dead) Thr. L.Rs. Ors.,
AIR 2013 SC 1204 observing as under:

“31. Furthermore, there cannot be any
dispute with respect to the settled legal
proposition, that if a party wishes to raise any
doubt as regards the correctness of the
statement of a witness, the said witness must
be given an opportunity to explain his
statement by drawing his attention to that part
of it, which has been objected to by the other
party, as being untrue. Without this, it is
not possible to impeach his credibility. Such
a law has been advanced in view of the
Patna High Court CR. APP (SJ) No.1249 of 2017 dt.22-08-2019
23/25

statutory provisions enshrined in Section 138
of the Evidence Act, 1872, which enable the
opposite party to cross-examine a witness as
regards information tendered in evidence by
him during his initial examination in chief, and
the scope of this provision stands enlarged by
Section 146 of the Evidence Act, which
permits a witness to be questioned, inter-alia,
in order to test his veracity. Thereafter, the
unchallenged part of his evidence is to be
relied upon, for the reason that it is
impossible for the witness to explain or
elaborate upon any doubts as regards the
same, in the absence of questions put to him
with respect to the circumstances which
indicate that the version of events provided by
him, is not fit to be believed, and the witness
himself, is unworthy of credit. Thus, if a party
intends to impeach a witness, he must
provide adequate opportunity to the witness in
the witness box, to give a full and proper
explanation. The same is essential to ensure
fair play and fairness in dealing with
witnesses.”

(Emphasis supplied)”

22. Furthermore, it is also evident from the record that

while examining the I.O. PW.7, the learned APP did not opt to

bring on record the incriminating material so collected by the I.O.

during course of investigation and those are visible from para-47

wherein there happens to be description regarding CDR of the

mobile concerning SIM No.9570701636 by which, PW.6 was

informed and the same happens to be in the name of mother-in-

law of the appellant and in likewise manner, paragraph 50, 51, 52

and 53 wherein, the police had arrested the appellant along with

the victim. Although, it cannot form basis for judgment but, in
Patna High Court CR. APP (SJ) No.1249 of 2017 dt.22-08-2019
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accordance with Section 172(2) of the Cr.P.C., those events could

be looked into.

23. The learned counsel submitted that, in worst case, it

could be a case under Section 494 IPC, as the appellant was

married since before in stead of Section 376 IPC as well as 366

SectionIPC, as appellant has confidently plead to be married with the

victim.

24. The learned APP objected and submitted that it

happens to be mere a suggestion that had been flashed before the

victim without cross-examination on that very score. That being

so, the victim could have an opportunity to explain under what

circumstances she was forced to accompany or, she was a

consenting party. Court on its own, in absence of positive

evidence would not infer adverse to the prosecution when, the

defence failed to test.

25. After, considering the rival submission as well as

going though the material available on the record inconsonance

with the deficiency persisting on the record whereunder defence

failed to challenge the victim by way of cross-examination that

she happens to be legally married life, as well as considering the

event duly eclipsed by clause second/third/coupled with proviso 2

of Section 375 IPC, there happens to be no occasion to differ from
Patna High Court CR. APP (SJ) No.1249 of 2017 dt.22-08-2019
25/25

the finding so recorded by the lower court, Hence, this appeal

lacks merit and is dismissed relating to appellant Akhilesh

Srivastava @ Akhilesh Kumar Srivastva @ Ashish, he is under

custody which he will remain till saturation of the sentence.

(Aditya Kumar Trivedi, J.)

Prakash Narayan
AFR/NAFR AFR
CAV DATE NA
Uploading Date 28.08.2019
Transmission Date 28.08.2019

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