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Kamlesh Das vs The State Of Bihar on 16 March, 2018

Criminal Appeal (SJ) No.267 of 2015
Arising Out of PS.Case No. -281 Year- 2007 Thana -KHAZANIHAT District- PURNIA

1. Kamlesh Das S/o Kali Das Resident of Village Ramnagar, P.S. K. Hat
(Maranga), District Purnea. …. …. Appellant/s

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

Appearance :

For the Appellant/s : Mr. Kumar Praveen, Adv.

For the Respondent/s : Mr. Binod Bihari Singh, APP

Date: 16-03-2018

Appellant, Kamlesh Das has been found guilty for an

offence punishable under Section 366A IPC and sentenced to undergo

SI for 7 years as well as to pay fine of Rs. 5000/-, in default thereof, to

undergo SI for 6 months additionally, under Section 376 IPC,

sentenced to undergo SI for 7 years as well as to pay fine of Rs.

5000/- and in default thereof, to undergo SI for 6 months, additionally

with a further direction to run the sentences concurrently, vide

judgment of conviction dated 02.05.2015 and order of sentence dated

05.05.2015 passed by Additional Sessions Judge-2nd, Purnea in

Sessions Trial No. 1016/2007/500/2014.

2. Victim (PW-5) filed a written report which was

earlier addressed to Superintendent of Police, Purnea but after cutting

the same, it was addressed to O/C, Maranga, divulging the fact that

she happens to be aged about 17 years. On 18th September 2006, her

co-villager, Kamlesh Das disclosed to her to accompany to Puran
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 2

Devi Mandir and after worshipping they will return whereupon, she

accompanied Kamlesh to Puran Devi Mandir wherefrom he forcibly

took her to village-Sarsi, Distt-Darbhanga and got married with her.

After marriage, she stayed there for three days and then shifted her to

village-Khudin, Distt-Madhubani, the place of his ‘Phua’ where they

stayed for 10 days and from there to Jail Chowk, Purnea where they

stayed for four days and then thereafter, to Punjab where they stayed

for 20 days at the house of his Phua and then thereafter, took on rent

independently. On 20.03.2007, they returned back to Purnea and

stayed at the house of uncle of Kamlesh lying at Mahboob Khan Tola

(Mahendra Das and Faglu Das) and during course thereof, he

projected himself as her husband and behaved in the same manner

with her.

3. After few days, Kamlesh, Surja Devi, Kali Das,

wife of Kali Das have advanced demand of Rs. 1 Lac to be procured

from her father so that they should start a business which was resisted

by her stating that first of all you people have forcibly married with

her and then, are illegally demanding money. Her parents happen to

be poor fellow, from where, they will manage money. Just after

hearing the same, she was brutally assaulted and compelled her to

leave the place. She on her own tried to leave the place but, they were

keeping watch. Subsequently thereof, they procured presence of an

Advocate who took her signature over some papers. She had further
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 3

disclosed that she happens to be mentally instable. As the appellant

was on visiting terms, on account of her mental instability she

accompanied Kamlesh. Later on, she had been badly tortured on

account of non procurement of Rs. 1 Lac. Out of poverty, her parents

had not instituted any case. It has also been disclosed that on

20.08.2007, after brutally assaulting her, they kicked out with a

direction that she will be welcomed only after having cash

appertaining to Rs. 1 Lac. She came back to the place of her parents

and divulged the event. Then thereafter, the written report is being

placed for necessary action.

4. On the basis of aforesaid written report, K-Hat PS

case No. 281/2007 was registered followed with an investigation and

after completing the same, charge-sheet was submitted against the

appellant whereupon trial commenced and concluded in a manner,

subject matter of instant appeal.

5. Defence case as is evident from the mode of

cross-examination as well as statement recorded under Section 313

CrPC is that of complete denial. It has further been pleaded that

victim happens to be major and out of free will, she got married with

the appellant, consummated the marriage staying with the appellant,

unfortunately, got influenced by her Naiharwala when had visited

their place and then, got this case filed. Furthermore, Exhibit-A, B

series have been brought up on record in support of defence.
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 4

6. In order to prove its case, prosecution had

examined altogether 6 PWs, those are, PW-1, Yogendra Das, PW-2,

Sarawati Raman Jha, PW-3, Sagar Devi, PW-4, Informant/victim,

PW-5, Dr. Sushila Das and PW-6, Dinesh Prasad Das. Side by side

had also exhibited Ext-1, Signature of informant over written report

Ext-2, Signature of informant over statement recorded under Section

164 CrPC, Ext-3, Medical report, Ext-4, Formal FIR. Defence had

also examined one DW, Rupesh Kumar Ujjawal, an Advocate as well

as also Exhibited Ext-A, photograph of victim (alone), Ext-A/1,

photograph of victim with Kamlesh Das, Ext-A/2, photograph of

Kamlesh with victim, Ext-A/3, group photograph of victim along with

Kamlesh and others, Ext-B, B/1, writing of victim, victim over a

copy. Another photograph has been marked as Ext-X.

7. Learned counsel for the appellant has submitted

that while passing the judgment of conviction and sentence the

learned lower court failed to construe the improbability persisting in

the prosecution case which, in case, would have been appreciated

properly, would not have permitted judgment of conviction and

sentence. In order to substantiate the same, it has been submitted that

from the prosecution case, it is evident that victim remained with the

appellant from 18.09.2006 to 20.08.2007, that means to say,

approximately a year without having any protest, grievance. The

evidence of PW-2, father, depicts the consensual activity as, he had
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 5

stated that when he had seen the victim in company of appellant going

over an auto-rickshaw, even then, he had not instituted a case as, he

thought that when the victim had herself accompanied the appellant,

then as to why there should be institution of a case (PW-2 para-9) and

that is sufficient to acknowledge the majority as well as consensual

activity of the victim. In likewise manner, it has also been submitted

that though victim had during course of her evidence, stated that

written report was prepared by Darogaji itself but, it happens to be a

typed copy and was initially addressed to Superintendent of Police,

Purnea, so certainly, it would not be at the end of Darogaji.

8. At the present juncture, it has further been

submitted that non examination of Investigating Officer has caused

prejudice in the background of the fact that had there been

examination of Investigating Officer, the conduct of the victim would

have properly been exposed. It has also been submitted that from the

evidence of doctor PW-5, it is apparent that the victim was put under

medical examination by a Board of Doctors who had identified her

age to be in between 17 to 19 years and having the flexibility of plus

minus two years, it goes to 15 to 21 years and as upper limit is to be

accepted, on the date of her examination so she was aged about 21

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

aged about 20 years, a major one and that being so, perceiving her

conduct, it could not be said that she was kidnapped and in likewise
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 6

manner, was raped repeatedly. That being so, the judgment of

conviction and order of sentence recorded by the learned lower court

happens to be contrary to the spirit of law whereupon, is fit to be set


9. On the other hand, learned APP, controverting the

submission having been made on behalf of learned counsel for the

appellant, has submitted that though at initial stage, victim had joined

the appellant out of her own free will but subsequently, when the

appellant had seen that now the victim under his claw, pounced upon

her and during course thereof, exploited her which the victim was

forced to face against her will as initially she putting belief upon the

appellant, accompanied alone. That being so, it was an outcome of

evil design whereunder she was victimized by way of rape repeatedly

which, the victim had categorically stated during course of her

evidence which has not been controverted at the end of appellant. In

the aforesaid facts and circumstances of the case, when the allegation

having been levelled at the end of the victim has not been

controverted at the end of the appellant nor subjected to cross-

examination, then in that event, will tantamount to an admission

justifying the finding having been recorded by the learned lower


10. After going through the evidence available on

record, it is evident that stay of victim with the appellant is not denied.
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 7

In likewise manner, as has been suggested by the appellant that they

solemnized marriage and consummate the marriage happily, is also

out of controversy. The only question now one has to identify, (A) the

status of victim, minor or major, (B) was a consenting party.

11. After going through the evidence of PW-2,

father, who is completely silent during his examination-in-chief

regarding status of the victim and in likewise manner PW-3, mother

of the victim also kept silence regarding status of victim where she

happens to be major or minor. Although, in the written report there

was specific discloser that she happens to be aged about 17 years,

during her examination-in-chief, she had not reiterated. In the format,

the court had estimated her age to be 22 years while she had shown

her age to be 21 years, which could not be accepted as the aforesaid

arrest happens to be before swearing of an oath. Although, the victim

happens to be literate as, her signature is found at different papers

including over deposition but, neither PW-2 nor PW-3 nay the victim

herself had deposed that she had studied and if so, up to what class,

what happens to be her date of birth and then in the aforesaid

background, her status is to be seen as recognized after medical

examination as deposed by PW-5 who on the date of her examination

i.e. 11.09.2007 estimated in between 17 to 19 years.

12. Learned counsel for the appellant rightly argued

that the aforesaid finding is always subject to variance plus minus two
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 8

years and the upper age is to be considered whereupon the age varies

in between 19 to 21 years and if it is tallied with the date of

occurrence, certainly she was major being above 18 years of age. So,

her subsequent conduct is to be perceived identifying her status to be


13. PWs-2 and 3 are parents who have not alleged

that the victim was taken away forcibly out of threat or coercion or

inducement and the same is coming out from the deposition of the

victim. PWs-2 and 3 are not at all competent witness over intervening

period as whatsoever they deposed happen to be on the basis of

discloser having at the end of the victim and that being so, the

evidence of victim is to be seen in order to adjudge whether the

finding recorded by the learned lower court happens to be just, legal

and proper.

14. Victim had deposed that on the alleged date i.e.

on 18.09.2006, she was unmarried. At that very time, she was offering

Puja. Kamlesh Das came to her house and disclosed her that he was

going to Puran Devi Mandir. As she was also willing, accompanied

Kamlesh to Puran Devi Mandir over a tempo. Then thereafter, he

offered ‘Prasad’ and after taking the same, she became unconscious.

Then thereafter, she was taken to village-Sarsi, Distt-Darbhanga

where she was kept for three days. During her stay, he committed rape

on her against her wish. Then thereafter, she was injected, as a result
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 9

of which, she again became unconscious and then she was taken to

Khudin, Distt-Madhubani, place of his ‘Phua’ where she was kept for

10 days and during course of her stay, she was subjected to rape.

During aforesaid intervening period, she was also subjected to assault

whereupon, his ‘Phua’ ousted them. Then Kamlesh took her Jail

Chowk, Purnea where she remained for 2-3 days and then thereafter,

accused had taken her to Punjab where, he kept her at the place of his

‘Phua’ at Ropar district and during course of stay, he continued with

raping her as well as she was also assaulted. Then thereafter, that

‘Phua’ also ousted them. Then the accused took her to Punea and

stayed at the house of his uncles, Mahendra Das and Falgu Das lying

at Mohalla, Mahboob Khan Tola where she remained for three

months. During stay, she was raped as well as assaulted. His uncle,

aunt, grand-mother, all were assaulting her. She tried to escape

therefrom but was under surveillance. Then anyhow, she slipped on

20th day of 2007 and had gone to the place of her parents and then

disclosed the event whereupon, her mother took her to police station

where she had narrated the event. Darogaji had noted down and then

got it typed and as per instruction, she put her signature without

reading the same or having been read to her. She had further stated

that her statement under Section 164 CrPC was recorded which she

had deposed as per instruction given by Darogaji. Identified the


Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 10

15. During cross-examination, para-5 to 10 relates

with the incident taking place after the occurrence, that means to say,

regarding her marriage. In para-12, she had disclosed that appellant

kept her along with himself from 18.09.2006 to 20.08.2007, during

midst thereof, she did not volunteer herself as his spouse. In para-13,

she had stated that she had not incorporated in the written report that

accused had forcibly married with her. In para-14, she had stated that

the written report was not read over to her. In para-15, she had stated

that she was taken by train via Forbesganj from Puran Devi Mandir.

Passing through so many station but she was unconscious till

Darbhanga. Then at para-16 to 20, there happens to be cross-

examination relating to different photographs and have been made

exhibits of the record on an admission having made at her end. In

para-21, she had further stated that ‘Mangalsutra’, necklace and ear

rings were given by the accused. In para-22 and 23, she had admitted

that whenever accused had gone to factory, she had incorporated the

same in the copy. She had further exhibited her writing at last page of

the copy containing “Priti sang Kamlesh, Kamlesh and Priti”. In

para-25, she had further disclosed that after stay for 20 days at the

place of his ‘Phua’ the accused hired building where they remained

for three months. At para-26, she had stated that when she was

brought from Punjab to Purnea, she remained at the place of uncle,

aunt of accused for four months. Then there happens to be
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 11

contradiction relating to her previous statement made under Section

164 Cr.PC with regard to demand of Rs. 1 Lac and for that, subjected

to torture. Furthermore, when they were kicked out, accused took a

building on rent and then they stayed there. Then had denied the

suggestion that while she visited the place of her parents, accused had

gone to effect her Bidai but, she was emotionally overpowered by her

parents whereupon no Bidai effected and for that Sanha was given by

the accused. At para-38, she had also disclosed that the place where

she was kept by the accused was at a distance covering five minutes

time to reach at the place of her parents. Then had denied the

suggestion that she voluntarily married with accused and

subsequently, being emotionally overpowered by her parents, got this

case filed with false and frivolous allegation.

16. In order to impeach the evidence of a witness,

the witness has to be tested/cross-examined on that very particular

point so that there should be an opportunity to the witness to explain

the same. The aforesaid legal proposition has been settled at rest by

the Hon’ble Apex Court in the case of Gian Chand others v. State

of Haryana reported in 2013(4) PLJR 7 (SC) it has been held:-

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. L.Rs. Anr. v.

Bhagwanthuva (Dead) Thr. L.Rs. Ors., AIR 2013 SC 1204
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 12

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 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

17. From the evidence of PW-4, it is apparent that

she had categorically stated that while she was made captive by the

appellant, she was ravished against her will and wish. However, after

going through cross-examination of PW-4, it is evident that she was

not at all cross-examined on that very score. In likewise manner, she

was not at all cross-examined with regard to her conduct though at the

first instance, she was tested while going from Puran Devi Mandir to
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 13

Sarsi on train via Forbesganj, during course of which, she stated that

she remained unconscious. Furthermore, it is also evident that she had

shown to be assaulted at different places as well as subject to rape at

the end of appellant. It has also been exposed that while moving from

Puran Devi Mandir to Darbhanga and from Darbhanga to Madhubani,

sedative was administered to her, but since thereafter, no such

allegation has been attributed.

18. It is obligatory on the part of the prosecution to

support its case beyond all reasonable doubt. The manner whereunder

PWs-2, 3 and 4 admitted appellant, Kamlesh suggests that he was

duly recognized since before carrying affectionate relationship with

the victim otherwise there would not have been discloser at the end of

PW-2 (para-9) that he had not thought to launch a case when, his

daughter had gone along with Kamlesh and also is the same approach

of PW-3. If such situation was not prevailing since before there was

no occasion for Kamlesh to come with a discloser that he was going to

Puran Devi Mandir whereupon the victim accompanied him. When

the aforesaid event is taken together with the evidence of PW-3, it is

apparent that she happens to be quite inconsistent with the version of

victim, PW-4 as PW-4 had disclosed that at that very time, she was

worshipping. Kamlesh came alone divulging the fact that he was

going to Mandir whereupon she accompanied while PW-3 had stated

that Kamlesh, his uncle came, asked for water, whereupon she
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 14

directed the victim to fetch water and during course thereof, Kamlesh

took her away. It is further evident that uptil, Khudin lying at

Madhubani district, victim had explained that she was put under

sedative but then thereafter, she kept mum regarding her physical,

mental condition and in likewise manner, whether she was put under

threat. After showing relevant entries having made by her in a copy,

she was cross-examined, at para-22, 23, she had admitted that while

appellant Kamlesh used to go to factory, the aforesaid entries were

made by her to record how many days he had gone to work.

19. Gone through the entries made in the copy (Ext-

B) which suggests that the victim was very much conscious as to how

he is working and how many days he had gone to work. Furthermore,

the writings on the last page of the copy under Ext-B/1 is another

circumstance which speaks contrary to the allegation whatever been

alleged as aforesaid writings were not under duress or compulsion.

20. Had there been any sort of compulsion, coercion,

threat then in that circumstance, there was every opportunity for the

victim to have her grievances properly redressed by informing law

enforcing machinery as the accused/appellant used to go to factory

leaving her alone and from Ext-B, it is apparent that it happens to be

not only for days rather months together.

21. In the aforesaid situation, it could not be said

that the victim was not a consenting party. That being so, considering
Patna High Court CR. APP (SJ) No.267 of 2015 dt.16-03-2018 15

her status to be major, being a consenting party, neither offence

punishable under Sections 366A IPC nor 376 IPC are made out.

22. Consequently thereof, the judgment impugned

rendered by the learned lower court is set aside. Appeal is allowed.

23. Since appellant is on bail, he is discharged from

the liability of bail bond.

(Aditya Kumar Trivedi, J)

Uploading Date 19/03/2018
Transmission 19/03/2018

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