IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.281 of 2015
Arising Out of PS.Case No. -47 Year- 2006 Thana -PARIHAR District- SITAMARHI

1. Jitu Rai Son of Jagdish Rai resident of Khoparhiya, P.S. Parihar, District
Sitamarhi. …. …. Appellant/s
Versus

1. The State of Bihar. …. …. Respondent/s
with

Criminal Appeal (SJ) No. 341 of 2015
Arising Out of PS.Case No. -47 Year- 2006 Thana -PARIHAR District- SITAMARHI

1. Hansh Lal Rai Son of late Ramjee Rai R/o Village Khoparheecha, P.s Parihar,
District sitamarhi. …. …. Appellant/s
Versus

1. The State of Bihar …. …. Respondent/s

Appearance :

(In CR. APP (SJ) No.281 of 2015)
For the Appellant/s : Mr. Kumar Rajiv, Adv
For the Respondent/s : Mr. Z. Hoda, APP
(In CR. APP (SJ) No.341 of 2015)
For the Appellant/s : Mr. Ashok Kumar Jha, Adv
For the Respondent/s : Mr. Binod Bihari Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 11-10-2017

Criminal Appeal (SJ) No.281 of 2015 wherein Jitu Rai

happens to be appellant and Criminal Appeal (SJ) No.341 of 2015

wherein Hansh Lal Rai happens to be appellant have been

analogously heard on account of arising out of common judgment of

conviction dated 20.04.2015 and order of sentece dated 28.04.2015

passed by 1st Additional Sessions Judge, Sitamarhi in Sessions Trial

No. 593/07/136/13 whereby and whereunder they both have been

found guilty for an offence punishable under Section 363 IPC and

have been sentenced to undergo RI for 4 years and fined of Rs.

1000/- under Section 366(A) IPC sentenced to undergo RI for 7

years and fined of Rs. 5000/-, under Section 376 IPC sentenced to
Patna High Court CR. APP (SJ) No.281 of 2015 dt.11-10-2017 2

undergo RI for 10 years as well as fined appertaining to Rs. 5000/-

and in default thereof, to undergo RI for 3 months additionally

(consolidated) with a further direction to run the sentences

concurrently.

2. Virtually, as perceived from the lower court records, it

happens to be war of differences in between old generation as well

as new generation. It shows conflict of perception, action way of

appreciation of life. The informant who happens to be father of the

victim (name withheld) PW-7 had filed a written report on

13.06.2006 alleging inter alia that in the night of 03.06.2006, they

had gone to sleep at about 9:00 PM. In the midnight when he woke

up, he found the victim aged about 15 years missing from her room.

He thought that she might have gone to meet the nature’s call, on

account thereof, he began to wait. Even after an hour, she did not

return, whereupon he awoke other family members and then, went in

search of the victim and during course thereof, the came to know

that Jitu Rai and Hansh Lal Rai allured her and took her away.

3. After registration of Parihar PS Case No. 47/2006,

investigation commenced, during course thereof, the victim was

traced out, her statement under Section 164 CrPC was recorded,

medically examined and then thereafter, completing the

investigation charge-sheet was submitted facilitating the trial with

ultimate result, subject matter of the instant appeals.

4. Defence case as is evident from the mode of cross-
Patna High Court CR. APP (SJ) No.281 of 2015 dt.11-10-2017 3

examination as well as statement recorded under Section 313 CrPC

is that of complete denial. Furthermore, it has also been pleaded that

the victim happens to be major one who volunteered herself and got

married with appellant, Jitu Rai out of her own sweet volition.

However, neither ocular nor documentary evidence has been

adduced on behalf of defence.

5. In order to substantiate its case, prosecution had examined

altogether 9 PWs out of whom PW-1, Ramashrai Rai, PW-2,

Kapileshwar Rai, PW-3 Amindra Rai, PW-4, Sarvalal Rai,

(informant) PW-5, Jai Murti Devi, mother of victim, PW-6, Dr. Sudha

Jha, PW-7, victim, PW-8, Ram Bihari, Judicial Magistrate who had

recorded statement of victim during course of investigation under 164

CrPC and PW-9, Sri Ram Tiwari, Investigating Officer, as well as

had also exhibited Ext-1 series, X-ray plates, Ext-2, Medical report,

Ext-3, Statement of victim under Section 164 CrPC, Ext-4, Formal

FIR, Ext-5, endorsement over written document.

6. As stated above defence had not produced oral as well

as documentary evidence.

7. PW-6, Dr. Sudha Jha had examined the victim on

21.07.2006 on police requisition. She had not found any kind of injury

over private part, valve, vagina of the victim. Hymen was ruptured,

old tags present, vagina admitted two fingers easily. Vaginal swab

was taken and sent for laparoscopic examination. There was absence
Patna High Court CR. APP (SJ) No.281 of 2015 dt.11-10-2017 4

of spermatozoa dead or alive. For ascertainment of age, X-ray of

different joints were taken and as per medical board, her age was

estimated in between 16 to 18 years. It has also been held that it is

difficult to say with regard to event of rape though the victim was

habitual of sexual intercourse.

8. PW-7 is the victim. On the date of examination that

means to say on 25th of November 2010, she had shown her age to be

22 years and in likewise manner, the court had also estimated. During

her examination-in-chief, she had completely leaned in favour of

accused persons/appellants and further stated that she got married

herself with Jitu Rai. Out of the aforesaid wedlock, she had begotten

two children, Chandni aged about 3 years and a son aged about 2

years. It had also been narrated by her that first wife of Jitu Rai,

namely, Phulwariya Devi is dead. She had further stated that during

her statement under Section 164 CrPC, she had stated that Jitu had

committed rape on her for about a month and then thereafter, she was

raped by Hansh Lal Rai. During course of cross-examination, she had

controverted the same by way of stating that she had deposed like so

at the instance of her parents.

9. Whenever there happens to be ossification report with

regard to ascertaining of age of the victim, it cannot be a conclusive

evidence. As per Modi Medical Jurisprudence, there always happens

to be scope of variance of two years on either side. And that happens
Patna High Court CR. APP (SJ) No.281 of 2015 dt.11-10-2017 5

to be reason behind by a series of judgments, the Hon’ble Apex Court

has observed that the opinion in ascending way is to be accepted,

admitted whereupon age of the victim varies in between 18 to 20

years, that means to say, on the date of alleged occurrence, she was

major. Other family members, that means to say, the parents and the

brother of the victim including that of PWs-1 and 2 by their evidences

tried to negate as well as condemn the activity of the victim who on

account of majority joined hand with the appellants and that being so,

their evidences became worthless.

10. Consequent thereupon, the judgment of conviction

and sentence rendered by the learned lower court did not find favour

and is accordingly, set aside. Both the appeals are allowed.

11. Since both the appellants are on bail, they are

discharged from the liability of bail bonds.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 16/10/2017
Transmission 16/10/2017
Date