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
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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
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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
23/25statutory 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
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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
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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
