SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Dayanand Yadav vs State Of Bihar on 29 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.451 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- M UNGER

Dayanand Yadav, son of Late Shadho Yadav, resident of village Belauri, P.O.
Belauri, P.S. Lakhisarai, District Lakhisarai
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant/s : Mr. Arun Kumar Arun with
Mr. Atul Anand, Advocates
For the Respondent/s : Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 29-03-2018

Sole appellant Dayanand Yadav has been convicted

under Section 376 of the Indian Penal Code and sentenced to

undergo rigorous imprisonment for five years and he has

further been convicted under Section 3(xii) of Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act

and sentenced to undergo rigorous imprisonment for two

years vide judgment and order dated 1.8.2003 and 2.8.2003

respectively passed by Sri Abdul Nasir Khan, the then 1 st

Additional Sessions Judge-cum-Special Judge, Munger, in

Sessions Trial No. 399 of 2001.

2. Prosecution case as appears from the fardbeyan of
Patna High Court CR. APP (SJ) No.451 of 2003 dt.29-03-2018

2/8

Suma Devi (PW 9), who is said to be grandmother of the

victim Rita Devi, in short, is that on 25.2.2001 when she

reached at her house in village Balouri at 7 A.M. to see her

Mousi (aunt) Rupa Devi, who died on 24.2.2001, there where

she was informed by one Gita Devi (PW 2) that her

granddaughter Rita Kumari, aged about eight years, was

raped by villager Dayanand Yadav (appellant), upon which

she enquired about the matter in her house and lady members

of the house narrated that on 24.2.2001 at 7.30 P.M. accused

Dayanand Yadav came at the darwaja of informant, called

upon the informant but as there was no male member in her

house, her granddaughter Rita Kumari having heard the call

came out of the house, upon which appellant Dayanand

yadav gagged her mouth, took her away in his lap at a

distance of half kilometer from the village near Pipal tree and

committed rape and brought her to Khalihan situated in

western side of the village and threatened her to kill if she

would narrate the matter to anyone. Further prosecution case

is that at 9 P.M. the victim Rita Kumari came to the house in
Patna High Court CR. APP (SJ) No.451 of 2003 dt.29-03-2018

3/8

weeping condition and narrated the said fact. Further

prosecution case is that victim Rita Kumari sustained

swelling injury in her private part.

3. On the basis of aforesaid fardbeyan Lakhisarai

P.S.Case No. 59 of 2001 was registered and after cognizance

and commitment the case traveled to the file of the learned

Trial Judge for trial and disposal.

4. During trial charges were framed against the

appellant under Section 376 IPC and also under Section

3(xii) of SC/ST Act.

5. During trial altogether 12 witnesses have been

examined on behalf of prosecution, they are PW 1 Ramautar

Das, who is husband of informant and has proved Ext.1, PW

2 Gita Devi, who is mother of victim and has been declared

hostile, PW 3 Anchi Devi declared hostile, PW 4 Dipnarain

Bind, who is hearsay witness, PW 5 Mukesh Das, who is

maternal uncle of the victim and hearsay witness, PW 6

Ramdular Das declared hostile, PW 7 Raj Kumar Yadav

declared hostile, PW 8 Lalpari Devi declared hostile, PW 9
Patna High Court CR. APP (SJ) No.451 of 2003 dt.29-03-2018

4/8

Suma Devi, who is nani (maternal grandmother) of the victim

declared hostile, PW 10 Shukri Devi declared hostile, PW 11

Sabita Kumari declared hostile and PW 12 Rita Kumari, who

is victim girl.

6. Apart from that, the prosecution has brought on

record the following documents as exhibits, they are Ext.1-

signature of Ramautar Das on the fardbeyan and Ext.1/1-

signature of informant Suma Devi on fardbeyan.

7. Defence of the accused appellant is total denial of

the occurrence and of innocence.

8. On perusal of entire evidence, it appears that all

the witnesses except PWs 1, 4, 5 and 6 have been declared

hostile, including the informant of the case, who claims to be

maternal grandmother of the victim girl and mother of the

victim girl Gita Devi (PW 2) and the victim herself and their

evidence does not disclose anything relevant to support the

prosecution case at all, whereas PWs 1, 4, 5 and 6 are

hearsay witnesses and PW 1 (husband of informant) is said to

have heard the prosecution story from Gita Devi, mother of
Patna High Court CR. APP (SJ) No.451 of 2003 dt.29-03-2018

5/8

the victim girl but Gita Devi has been declared hostile and

her evidence does not show that she has disclosed about the

prosecution case to PW 1. Similarly from the evidence of

Dipnarain Bind (PW 4) it appears that he is not an eye-

witness to the occurrence and claimed to have heard the

prosecution story from informant Suma Devi (PW 9), who,

too has also been declared hostile and there is nothing in his

evidence that the prosecution story has been narrated by the

informant to him. PWs 5 and 6 are also hearsay witnesses

and they have claimed to have heard the prosecution story

from the informant (PW 9). As I have stated above, the

informant has been declared hostile and her evidence does

not show that she disclosed the fact to the witnesses.

However, learned trial court, as discussed above, has

convicted the appellant under Section 376 IPC and also under

Section 3(xii) of SC/ST Act and sentenced him as stated

above.

9. Learned counsel for the appellant has assailed the

judgment on the ground that there is absolutely nothing
Patna High Court CR. APP (SJ) No.451 of 2003 dt.29-03-2018

6/8

against the appellant as almost all the witnesses, including

mother of the victim girl (PW 2) and victim girl have been

declared hostile and at best the victim could be an eye-

witness to the commission of rape but she has been declared

hostile and her mother and grandmother (informant) have

also been declared hostile and, as such there is nothing in this

case to convict the appellant under Section 376 IPC and

3(xii) of SC/ST Act but in spite of having no legal evidence

available on record learned trial court has convicted the

appellant, as such, the conviction of the appellant is perverse

and bad in law.

10. On the other hand, learned counsel for the State

has submitted that the statement under Section 164 Cr.P.C. of

the victim girl shows that such occurrence took place,

however she has been declared hostile but the evidence of

other witnesses, who are hearsay witnesses, shows that they

have supported the prosecution case about commission of

rape to PW 12 Rita Kumari.

11. On perusal of the judgment it appears that learned
Patna High Court CR. APP (SJ) No.451 of 2003 dt.29-03-2018

7/8

trial court has convicted the appellant in spite of having no

legal evidence on record and all the witnesses have been

declared hostile except PWs. 1, 4, 5 and 6, who are hearsay

witnesses and their evidence cannot be held to be admissible

but learned trial court has convicted the appellant on the

ground that victim was minor girl and her statement made

under Section 164 Cr.P.C is against the accused appellant

about commission of rape by him upon her and further there

is no evidence available on record to show previous enmity

between the parties and so there is nothing on record to

disbelieve the evidence of PW 1, who is maternal grandfather

of the victim and PW 5, who is maternal uncle of the victim.

However, learned trial court failed to consider that PWs 1, 4,

5 and 6 were hearsay witnesses and in absence of any

corroboration of their evidence by evidence of other

witnesses the same has no value in the eye of law.

12. Considering the discussions made above, the

impugned judgment of conviction and order of sentence do

not appear to be sustainable in the eye of law. Accordingly,
Patna High Court CR. APP (SJ) No.451 of 2003 dt.29-03-2018

8/8

this appeal is allowed. The impugned judgment and order are

set aside. As the appellant is on bail, he is directed to be

discharged from the liability of his bail bond.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 30.3.2018
Transmission 30.3.2018
Date

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation