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Arun Kumar Yadav & Anr vs State Of Bihar on 30 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.28 of 2009
Arising Out of PS.Case No. -0 Year- null Thana -null District- SUPAUL
***

[Against judgment of conviction and order of sentence dated
22.12.2008 passed by the Additional Sessions Judge, FTC III, Supaul,
in Sessions Trial No.96 of 2006 arising out of Triveniganj P.S. Case
No.74 of 2005]
***

1. Arun Kumar Yadav, son of Bidyanand Yadav,

2. Vidyanand Yadav, son of Bindeshwar Yadav, bo th resident of village-Vairo
Patti, P.S.-Triveniganj, District-Supaul.

…. …. Appellant/s

Versus

The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Maya Shankar Mishra, Advocate
Mr. Nagendra Upadhyay, Advocate

For the Respondent/s : Mr. Bal Mukund Prasad Sinha, APP

CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA
CAV JUDGMENT
Date: 30-04-2018

By judgment of conviction and order of sentence dated

22.12.2008 passed by the Additional Sessions Judge, FTC III,

Supaul, in Sessions Trial No.96 of 2006 arising out of Triveniganj

P.S. Case No.74 of 2005, Appellant No.1, Arun Kumar Yadav, has

been convicted for the offence under Section(s) 376 Indian Penal

Code and sentenced to undergo rigorous imprisonment for seven

years and Appellant No.2, Vidyanand Yadav, has been convicted
Patna High Court CR. APP (SJ) No.28 of 2009 dt.30-04-2018

2/18

for the offence under Section(s) 201 Indian Penal Code and

sentenced to undergo rigorous imprisonment for one year.

2. Prosecution case, as per First Information Report,

is that on 19.06.2005 at about 8.30 AM, the informant had gone to

Temple for Puja. She was returning home and reached near the

field. Both the appellants were hiding in the field. It is alleged that

appellant, Arun Kumar Yadav, caught the hand of the victim and

told her to pick up the grass. The informant denied and attempted to

run away. Then, Appellant, Arun Kumar Yadav, took her inside the

field and started assaulting her. Thereafter, he tied both the hands of

the victim with Patuaa and started pressing her neck. The informant

became afraid. He removed her clothes and committed rape with her

and she became unconscious. She recovered sense after 1-2 hours

and found herself in the house. Father told her that some boy had

seen her lying in Patuaa field of Mahadeo Rai at 10.15 AM and

they raised halla. Thereafter, her brother, Sushil Kumar along with

villager, Surya Narayan Sah, had brought her and gave information

about the occurrence. Father of the informant told the occurrence to

the villagers. The villagers caught the boy. Thereafter, boy was

brought to the door of Ram Lochan Sah. He admitted his guilt

before the villagers. Thereafter, father of victim was bringing the

victim to the Police Station for lodging the case, then Neto Yadav,
Patna High Court CR. APP (SJ) No.28 of 2009 dt.30-04-2018

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and Anil Yadav persuaded the informant to return back and brought

her to Dr. Poddar, where she got treatment. Thereafter, the

informant was brought to the house by her father. Panchayati sat on

20.06.2005 in which Neto Yadav, Anil Yadav, Mahendra Yadav,

and Vidyanand Yadav asked the father of the informant not to lodge

the case and threatened him that they will be ousted from the

village, if case is lodged. He will be given 10 Kathas of land for

treatment and maintenance. They told that registry of 10 Kathas of

land has been done on 21.06.2005. Panches had taken rupees eleven

thousand as cost for registration, but they have not handed over the

document. The accused persons confined the father of the informant

and did not allow him to go to Police Station. Thereafter, the

informant came to the Police Station stealthily on 27.06.2005 to

lodge the case.

3. Charge has been framed against the accused

Appellant Ao.1, Arun Kumar Yadav for the offence under

Section(s) 376 Indian Penal Code and against Appellant No.2,

Vidyanand Yadav, for the offence under Section(s) 201 Indian

Penal Code. They faced trial and have been convicted and sentenced

as mentioned above.

4. The defence has not examined any witness.

5. Defence case is that father of the victim girl has
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obtained sale deed executed by accused Vidyanand Yadav for 10

Kathas of land, but consideration amount was not paid within the

due time by the father of the victim. Being aggrieved, appellant,

Vidyanand Yadav, did not return the Chirkut of the sale deed to the

father of the informant. This caused the father of the victim irritated

and he instituted this false case making false allegation.

6. Prosecution has examined altogether eight

witnesses to prove the case.

7. Nirmal Kumari, PW 5, is the informant and the

victim of the case. She has stated in her examination-in-chief that

she was returning on the date of occurrence after performing Puja.

She saw Arun Yadav, sitting in Patuaa field. He told her to pick up

grass, which she denied. Thereafter, he caught hold her hand and

brought her in Patuaa field. He tied her both hands and legs with

Patuaa and committed rape with her by shutting her mouth.

Accused caused injury to her private part with his hand. She became

unconscious. She was in her house when she got consciousness. She

saw her father and mother in the house. She told her mother and

father that Arun Yadav has forcibly committed rape with her. She

was brought to the police by her father and mother and case was

lodged in Triveniganj P.S. Other witnesses also gave their thumb

impression on the fard-e-beyan. Thereafter, she was sent to hospital
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where she got treatment. Doctor gave stitches on her private part

and also gave some medicines to eat. Thereafter, police arrived in

the village in evening. They were taking her to lodge the case then

Mahendra Yadav, Vidyanand Yadav and Neti Yadav persuaded her

to return and said that they will not allow them to live in the village

if she will file the case. They brought her to Dr. Poddar. The Doctor

showed his inability to treat her. Thereafter, she came to her house.

Panchayati was held on the next day. Vidyanand Yadav forcibly

took the father of the informant to Panchayati. She after 7-8 days

stealthily came to Triveniganj for lodging the case.

In para 8 of her cross-examination, she has stated

that when Arun Yadav was committing rape with her, she became

unconscious. He had put his Lungi in her mouth.

8. Dr. Nutan Verma has been examined as PW 1.

She had examined the victim on 28.06.2005. She has stated in her

evidence that vagina was torn. Stitches were given by her in

Operation Theater. No blood was oozing as dressing was done

earlier. In vagina, white curdy discharge was present. The doctor

had found abrasion 5″ x 4.5″ over both side of back and both

scapular region and epidermal abrasion over sacroiliac region over

right back of pelvis 1″ x ½”. Victim had painful movement and she

was limping. Her age was about 10 years. The victim was mentally
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shocked and afraid while she was being examined. She was scared

but co-operative and mentally normal. Vaginal swab was taken and

sent for radiological examination at Sadar Hospital, Saharsa. The

Doctor has said that from all aspects of above examination, it is a

case of rape. She has proved the Medical Report, which has been

marked as Ext.1.

In cross-examination, it has been stated that

abrasion found by her on the person of the victim was of within 24

hours. She has not mentioned age of the injuries found on the

person of the victim. In para 13 of his cross-examination, this

witness has stated that she has mentioned age of the victim as a

guess work, but she cannot be aged 14 years as she had not

developed secondary sexual character. In cross-examination, this

witness has stated that she found white curdy discharge in vagina.

White curdy discharge in vagina can remain in vagina up to 72

hours.

9. Buchani Devi, PW 2, is mother of the victim girl.

She has stated that her daughter was raped by Arun Yadav in

Patuaa field while she was returning after Puja. Age of her daughter

was 10-11 years. She was raising halla in Patuaa field. Sushil

Kumar and Surya Narayan Sah brought her after hearing the sound

of cry. She was slightly unconscious. She sprinkled water on her
Patna High Court CR. APP (SJ) No.28 of 2009 dt.30-04-2018

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face and gave her milk to drink then she regained consciousness.

She told her after regaining consciousness that Arun Yadav has

committed rape with her in Patuaa field. Private part of the victim

was injured.

In para 11 of her cross-examination, she has

stated that she has not seen the occurrence with her own eyes. Her

son, Sushil Kumar brought her to the house. She was unconscious at

that time. In examination-in-chief, this witness has stated that she

along with her husband and victim were going to Police Station to

lodge the case, but near Pool, Neti Yadav, Vidyanand Yadav and

Mahendra Yadav forcibly got them returned to the house and told

them not to file the case. Panchayati was called on the next day at

the initiative of Vidyanand Yadav, Neti Yadav and Mahendra

Yadav. Vidyanand Yadav told that he will give 10 Kathas of land,

but her husband refused to take the land. Vidyanand Yadav, Neti

Yadav and Mahendra Yadav took her husband on a cycle to

Triveniganj and executed sale deed, but did not handover the

document to him. Her daughter remained in the house for 3-4 days.

She used to cry on account of pain. Triveniganj Police sent her

daughter for medical examination.

10. Sushil Kumar, PW 3, is the brother of the victim

girl. He has stated that he along with Surya Narayan Sah, was
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taking rest in orchard. He heard sound of crying of Nirmal Kumari

(victim). He along with Surya Narayan Sah went in the field and

found Nirmal Kumari lying unconscious in Patuaa field of

Mahadev Yadav. He also found blood stain in her Pant. He and

Surya Narayan Sah brought Nirmal Kumari to the house in

unconscious state. He found that Nirmal Kumari was raped. His

mother sprinkled water on her face and also gave milk to drink.

Then she regained consciousness. She after regaining consciousness

told to the mother that Arun Yadav has committed rape with her

while returning from Puja. His father, mother and victim, Nirmal

Kumari, were going to Police Station to lodge the case. The accused

persons got them returned and gave threat that they will not allow

them to live in village if they will file the case. The accused persons

called Panchayati. In Panchayati, they told that they will give 10

Kathas of land to his father. They took the father of the informant

on a motorcycle to Triveniganj and executed a sale deed, but did not

handover the document. Case was registered on the basis of the

statement of victim, Nirmal Kumari, in Triveniganj Police Station.

Police also took statement of his father, mother etc. and sent Nirmal

Kumari for medical examination to Supaul where she was medically

examined by Dr. Nutan Verma.

In para 15 of his cross-examination, he has stated
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that he has not seen the occurrence from his own eyes.

11. Surya Narain Sah, PW 6, has stated in his

evidence that on the date of occurrence between 9-9.30 AM, he

along with Sushil Kumar was in the Chaur. He heard sound of

crying and went to Patuaa field and saw Nirmal Kumari crying. She

was unconscious. He brought her to her house. Thereafter, he went

to his land. Thereafter, he again came to the house of Nirmal

Kumari and saw that victim girl after regaining consciousness was

speaking to her mother that Arun Yadav has committed rape with

her. Mother of the girl told about the occurrence to her husband.

Basudeo and Sukhdeo brought Arun Yadav. Arun Yadav was sent

to the Police Station. Nirmal Kumari was taken to Triveniganj by

her parents. Thereafter, this witness came to his house. Police came

after eight days of occurrence and recorded his statement.

In cross-examination, he has stated that he has not

seen occurrence with his own eyes.

12. Mahadeo Sah, PW 7, has stated in his evidence

that his niece, Nirmal Kumari, who is daughter of Basudeo Sah, was

returning her house after Puja. When she reached near Nahar, then

Arun Yadav, who was hiding himself in Patuaa field, told her to

pickup the grass. When she refused then he brought her in Patuaa

field and after tying her hands assaulted her and committed rape
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with her after removing her Pant. The girl became unconscious.

Sushil Kumar heard cry of the girl and came running to the place of

occurrence along with Surya Narayan Sah. They took the victim girl

to the house where several persons assembled. Arun Yadav did not

listen to Panchayati. The girl after regaining consciousness told

about the occurrence to him. The girl got treatment in the hospital.

Condition of the victim became serious after retuning to the house.

Police of Triveniganj sent the victim girl to Supaul Hospital for

better treatment where she got treatment by Dr. Nutan Verma.

He stated in his cross-examination that he gave

statement after 8-10 days of the occurrence. He had told the police

that Sushil Kumar heard cry of the girl and he along with Surya

Narayan Sah reached the place of occurrence. He was not present in

the village on the date of occurrence. He had gone to earn

livelihood. He returned to the village at about 2-2.30 PM and then

he learnt about the occurrence from his family members. The niece,

Nirmal, also told him about the occurrence. She also told that Sushil

and Surya Narayan Sah had gone to the place of occurrence. His

niece was fully unconscious. She regained consciousness after about

half an hour. He found scratch on both sides of her back. The girl

had told that accused Arun Yadav has also assaulted her and tied

her mouth. Thereafter, he committed rape with her on account of
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which she became unconscious.

13. Basudev Sah, PW 4, is the father of the victim. He

has stated that his daughter, Nirmal Kumari, had gone for Puja at

8.30 AM. She was returning to her house after Puja at 9.30 AM.

Arun Yadav, who was hiding in Patuaa field, told his daughter to

pickup the grass. She denied on the pretext that she is hungry then

Arun Yadav forcibly dragged her to Patuaa field and tied both her

hands by Patuaa and assaulted her. He also committed rape with

her after shutting her mouth with Lungi. She became unconscious.

Accused left Nirmal Kumari in Patuaa field of Mahadeo Yadav.

She was crying in Patuaa field. His son, Sushil, and villager, Surya

Naryan Sah, went on hearing cry of his daughter and found Nirmal

Kumari was crying. They brought her to the house. Several villagers

arrived in the house. His wife was also present in the house. Water

was sprinkled on the face and thereafter she regained consciousness.

She told about the occurrence to her mother and other family

members present in the house. The female members saw Pant of the

victim was wet with blood. Wife of this witness and other female

members found injury on private part of Nirmal Kumari. He wanted

to lodge the case, but villagers told that they will bring the boy.

They brought the boy Arun Yadav, who admitted his guilt. He along

with his wife and victim was going to Police Station for lodging the
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case, but, Vidyanand Yadav, Mahendra Yadav etc. persuaded him

and forced him to return. Vidyanand Yadav told him to not lodge

case. He will give him land. Vidyanand Yadav threatened this

witness that he will be ousted from the village, if he will lodge the

case. The girl was first taken to Dr. Poddar, who did not give

treatment as condition of Nirmal Kumari was serious. Vidyanand

Yadav called Panchayati on the next day and admitted guilt of his

son and told the informant to not lodge the case. He offered to give

10 Kathas of land to Nirmal Kumari for maintenance to which this

witness did not agree. Thereafter, Neti Yadav, Vidyanand Yadav

forcibly took him to Triveniganj Registry Office and took rupees

eleven thousand from his as registration cost. Vidyanand Yadav and

Mahendra Yadav were not allowing this witness to take his

daughter for medical treatment. He along with his wife and victim,

Nirmal Kumari, stealthily went to the Police Station after 5-6 days

of the occurrence. Other family members of this witness also

accompanied. Police recorded fard-e-beyan of Nirmal Kumari on

which Nirmal Kumari gave her thumb impression. This witness has

also put his signature on the fard-e-beyan. His brother, Mahadeo

Sah, also put his thumb impression on the fard-e-beyan. Victim was

sent to Supaul Hospital from Triveniganj. Dr. Nutan Verma,

Medical Officer examined her. She again returned to Police Station
Patna High Court CR. APP (SJ) No.28 of 2009 dt.30-04-2018

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from Supaul Hospital. Thereafter, she went to her house. Accused

persons did not give him Chirkut of execution of land. This witness

does not know even which land was given to him. In para 8, he has

stated that Neti Yadav has got his signature on two blank papers by

force.

In cross-examination, he has stated that his

daughter had gone for Puja alone. In para 16 of his cross-

examination, he has stated that he has not seen the occurrence from

his own eyes. He learnt about the occurrence firstly from his

younger son, Om Prakash, who informed him to return home

immediately as Nirmal Kumari is not well. He returned to house

and his wife told him about the occurrence. His daughter, Nirmal

Kumari, also told him about the occurrence later on. He informed

Neti Yadav and Mahendra Yadav about the occurrence. He along

with his wife and Nirmal Kumari proceeded for filing the case via

soling road, but he could not reach Police Station. In para 26 of his

cross-examination, he has stated that he had not called any

Panchayati. He was taken in Panchayati by Vidyanand Yadav.

14. Vijay Kumar Gupta, PW 8, is the Investigating

Officer of the case. He has stated that he recorded fard-e-beyan of

victim, Nirmal Kumari, aged about 11 years. He took up the

investigation of the case. He recorded statement of victim and other
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witnesses. He sent the victim girl for medical treatment to Supaul

Sub-Divisional Hospital. He also recorded statement of victim,

wherein, she has fully supported the case. He also recorded

statement of Basudeo Sah, Buchni Devi, Surya Narayan Sah, Sushil

Kumari, Mahadeo Sah etc., who all have supported the occurrence

as mentioned earlier. He procured the Medical Report of the victim

from Dr. Nutan Verma. He submitted charge-sheet against both the

appellants.

He has stated in his cross-examination that the

date of occurrence is 19.06.2005. fard-e-beyan was recorded on

27.06.2005. He has investigated about the delay in lodging the fard-

e-beyan and come to the conclusion that the villagers were forcing

the victim and her parents to not lodge the case on account of

Panchayati. During cross-examination, attention of this witness was

drawn by the defence with regard to contradictions in respect of

earlier statements given by the witnesses before the police and their

evidences in the Court.

15. In this manner, from the evidence of the

witnesses, as discussed above, it appears that the victim girl, Nirmal

Kumari, PW 5, has fully supported her case in her evidence

levelling specific allegation against the appellant, Arun Yadav, of

committing rape with her after taking her into Patuaa field. She was
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cross-examined at length by the defence. She has fully corroborated

the time of occurrence, place of occurrence and manner of

occurrence in her cross-examination in para 5, 6, 7 and 8. She has

categorically stated about committing of rape by the accused. She

sustained bleeding injury in her private part. She has given vivid

picture of occurrence and how she was raped by the accused person

in her cross-examination in para 8 and 9. She has stated in para 12

of her cross-examination that after the occurrence there was blood

stain on her clothes, but she does not know whether those clothes

were seized by the police or not.

16. Dr. Nutan Verma, PW 1, Medical Officer, Sub

Division Hospital, Supaul, who examined the victim, Nirmal

Kumari, submitted Medical Report, which has been marked as

Ext.1. As stated in her evidence, she found vagina was torn and

stitches were given in vagina in operation theater. She has further

stated in her evidence that from all aspect of above examination, it

is a case of rape. In para 15 of cross-examination, this witness has

stated that she found white curdy discharge in the vagina. She has

assessed her age to be 10-14 years. PW 3 and 6 have stated that they

have brought the victim girl to her house from Patuaa field on

hearing her cry in unconscious state. She told them about the

occurrence levelling specific allegation of rape against Arun Yadav
Patna High Court CR. APP (SJ) No.28 of 2009 dt.30-04-2018

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after regaining consciousness in the house. Similarly, father of the

victim (PW 4) and mother of the victim (PW 2) and the independent

witness, Mahadeo Sah, (PW 7), have all supported the case and

have stated in the evidence that they reached the house of the

informant. Victim girl told them that appellant, Arun Yadav, has

committed rape with her. The Investigating Officer, PW 8, has

found the case true after investigation. Defence has not adduced any

evidence to contradict the allegation made against the accused and

to prove the defence that instant case has been filed by the

informant falsely to get the sale deed executed with respect to 10

Kathas of land from Vidyanand Yadav, Appellant No.2.

17. This Court from the evidence of the victim girl,

who is aged about 10-14 years, as mentioned by the Doctor and also

the Medical Report of the Dr. Nutan Verma and the evidence of

other witnesses, namely, PW 2, 3, 4, 6 and 7 and also the evidence

of the Investigating Officer (PW 8), comes to the opinion that

judgment of conviction and sentence passed by the Court below

against the Appellant No.1, Arun Yadav, is after proper

appreciation of evidence of the witnesses. The defence has not been

able to discredit the evidence of the victim (PW 5) and other

witnesses.

18. This Court does not find any motive of the victim
Patna High Court CR. APP (SJ) No.28 of 2009 dt.30-04-2018

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girl, PW 5, aged about 10-14 years, to give false evidence. The

Doctor has also no motive to give false report supporting the

evidence of the victim. There is no evidence, at all, brought by the

defence to show false implication of the accused persons by the

prosecution party. It further appears that the Trial Court after

considering all aspects of the case has sentenced Appellant No.1,

Arun Kumar Yadav, to undergo rigorous imprisonment for seven

years under Section 376 Indian Penal Code.

19. Therefore, conviction and sentence passed against

the Appellant No.1, Arun Kumar Yadav, is hereby confirmed.

20. So far evidence with regard to Appellant No.2,

Vidyanand Yadav, is concerned, there is no evidence, at all, to

brought charge against him for the offence under Section(s) 201

Indian Penal Code.

21. Therefore, impugned judgment of conviction and

sentence passed against Appellant No.2, Vidyanand Yadav, is

hereby set aside. He is acquitted of the charge under Section(s) 201

Indian Penal Code.

22. Bail bond of Appellant No.1, Arun Kumar Yadav,

is hereby cancelled. He is directed to surrender in the Court below

immediately for undergoing the sentence as ordered by the Trial

Court by the impugned judgment.

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23. In the event, Appellant No.1, Arun Yadav, does

not surrender in the Court below, the Court below will take

appropriate steps in accordance with law for arrest of Appellant

No.1, Arun Yadav, to undergo the sentence as awarded to him.

24. This appeal is, accordingly, allowed in part.

(Sanjay Priya, J)
J.Alam/-

AFR/NAFR AFR
CAV DATE 23-03-2018
Uploading Date 03-05-2018
Transmission 03-05-2018
Date

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