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Laxami Thakur @ Laxman Thakur vs State Of Bihar on 15 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.468 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- BANKA

Laxami Thakur @ Laxman Thakur, son of Sri Bichho Thakur, resident of village
Gaura (Manjhi Dih), P.S. Chandan (Anandpur), District Banka
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant/s : Mr. Subhash Kumar Jha, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 15-03-2018

Sole appellant has been convicted under Section 376 of the

Indian Penal Code and sentenced to undergo rigorous imprisonment

for eight years vide judgment and order dated 23.8.2003 passed by Sri

Bijoy Prasad Poddar, the then IInd. Additional Sessions Judge, Banka

in Sessions Case No. 555 of 2001. However, other accused Bichho

Thakur has been acquitted from the charge levelled against him under

Section 120B IPC.

2. Prosecution case which has been initiated on the basis of

fardbeyan of informant Lalita Kumari (PW 2), in short, is that she had

gone to her field situated in Hariyasi Bahiyar for making passage to

bring water into the field and at that time accused Laxmi Thakur came

there and enquired from her as to whether she was bringing water into

her field and thereafter accused Laxmi Thakur lifted her into his lap
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forcibly and brought her into the Rahar field of Shado Mahton, where

she was subjected to rape by the appellant by pushing napkin in her

mouth. It is also the prosecution case that when mother of informant

began to take her to Anandpur O.P., accused Bichho Thakur

threatened her with dire consequences and stopped her from going to

Anandpur O.P.

3. On the basis of aforesaid fardbeyan, Chandan P.S.Case

No. 49 of 2000 was registered. Police after investigation submitted

charge sheet and cognizance for the offence has been taken and after

commitment the case traveled to the file of the learned trial judge for

trial and disposal.

4. During trial appellant was charged under Section 376 IPC

and another accused Bichho Thakur was charged under Section 120B

IPC.

5. In order to substantiate its case the prosecution has

examined altogether six witnesses, they are PW 1 Shakuni Devi, who

is mother of victim girl, PW 2 Lalita Devi, who is victim and

informant in this case, PW 3 Mahesh Yadav, who is a hearsay

witness, PW 4 Ramdeo Thakur and PW 5 Bonga Thakur @ Sahdeo

Thakur, who have been declared hostile by the prosecution, PW 6 Deo

Kishore Prasad is I.O of this case.

6. On behalf of defence also three witnesses have been
Patna High Court CR. APP (SJ) No.468 of 2003 dt.15-03-2018

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examined, they are DW 1 Kartik Yadav, DW 2 Shankar Das and DW

3 Jitendra Mandal and the evidence of DWs 1 and 2 shows that they

were present at the place of occurrence and no such occurrence had

taken place and they had not seen victim Lalita Kumari and accused

appellant Laxmi Thakur at the time and place of occurrence and DW 3

is Pleader’s clerk, who has proved the medical report of Lalita Kumari

which has been marked as Ext.A. Defence of the accused person is of

innocence and of false implication.

7. Learned trial court after conclusion of trial has convicted

the appellant under Section 376 IPC and sentenced him as stated

above and acquitted the other accused Bichho Thakur.

8. Contention of learned counsel for the appellant is that

evidence of PW 2, the victim girl, is unbelievable and suffers from

infirmities and there is no eye-witness to the occurrence, except PW 2

and Doctor has not been examined in this case to support the

prosecution case. It has also been submitted that father of victim has

not been examined in this case and that also creates doubt about the

prosecution case. PW 1 is mother of victim girl and PW 2 is hearsay

witness and other witnesses have been declared hostile and even the

I.O. also appears to be an interested witness as he could not say as to

whose information he has come in village to record the fardbeyan

though he has found foot prints at the place of occurrence and he has
Patna High Court CR. APP (SJ) No.468 of 2003 dt.15-03-2018

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admitted that clothes of the victim have not been seized nor it was

sent for chemical examination, as such, prosecution case suffers from

infirmities but the learned trial court has not considered the aforesaid

infirmities and convicted the appellant under Section 376 IPC, which

is not sustainable in the eye of law.

9. On the other hand, learned counsel for the State has

defended the judgment on the ground that there are sufficient evidence

available on record to show that it is the appellant who has committed

rape upon the victim girl and, as such, the conviction of the appellant

is just and proper and does not require any interference by this Court.

10. On considering the evidence available on record in the

background of submission of both sides it appears that PW 2 is the

informant in this case and her evidence discloses that about two years

prior at about 9 A.M. she had gone to Hariyasi Bahiyar to make

passage for water to her field and in the meantime accused appellant

Laxmi Thakur came there and asked what she was doing and her

evidence further discloses that she was lifted and thrashed in the

Rahar field of Bhado Mahton forcibly and after pressing napkin in her

mouth he committed rape upon her. Her evidence in paragraph-3

shows that she narrated as to how she was raped by the appellant in

details, though in the FIR no such details have been mentioned. Her

evidence also discloses that when she and her mother was going to
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Anandpur Out Post to lodge fardbeyan, accused Bichho Thakur, father

of appellant Laxmi Thakur stopped them from going to Anandpur Out

Post and threatened them for dire consequences. In her cross

examination she has admitted that Laxmi Thakur and Bichho Thakur

were son and father. Her evidence further discloses that she was going

to report about the occurrence to Bichho Thakur but he has denied

that he has no relationship with Laxmi Thakur. She has also admitted

that her father was alive.

11. PW 1 is mother of victim girl and in her evidence she has

stated that her daughter had gone to the field for making passage for

bringing water in Hariyasi Bahiyar and she came back and told her

that accused Laxmi Thakur had committed rape upon her. She tried to

come to Anandpur O.P. to lodge case against accused Laxmi Thakur

then accused Bichho Thakur threatened her with dire consequence if

case is lodged against his son Laxmi Thakur and on the next day Bara

Babu came and recorded the fardbeyan. Her evidence in cross

examination also discloses that her daughter told about the occurrence

in her house and she disclosed about the same to 2-4 persons after

arrival of the darogaji. Her evidence also shows that first her

statement was recorded and thereafter the statement of victim girl was

recorded, whereas fardbeyan shows that victim Lalita Kumari has

made her first statement.

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12. PW 3 is Mahesh Das and hearsay witness and he has

stated in his evidence that he saw Lalita Kumari and her mother

crying and Lalita Kumari told him that she was raped by Laxmi

Thakur. However, there is nothing like that in the evidence of PW 2,

who is the victim girl that she disclosed the same to PW 3. As such,

evidence of this witness does not appear to be believable.

13. PWs 4 and 5 have been declared hostile and there is

nothing relevant in their evidence for just decision of the case.

14. PW 6 is the I.O. and in his evidence he has stated that he

came to know about the occurrence and recorded the statement of

victim girl at village. He has found foot prints at the place of

occurrence but he has not mentioned about the same in the diary. His

evidence also shows that he has not seized sari of the victim.

15. Prosecution has not examined the Doctor who is said to

have examined the victim girl for the reasons best known to the

prosecution and no such explanation has been given for that but

defence has brought on record the injury report as Ext.

A, which has been proved by a formal witness. The defence witnesses

have been examined to show that no such occurrence has taken place

and at the time of occurrence DWs. 1 and 2 were present and they had

not seen Lalita Kumari and Laxmi Thakur at the place of occurrence.

16. On perusal of entire evidence it appears that except PW 2
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there is no eye-witness to the occurrence and even Doctor, who has

treated the victim girl, has not been examined and medical report has

not legally been brought on record to show that she was suffering

from any injury and in such a situation the finding of the learned trial

court creates doubt about the prosecution case. It further appears that

in this case fardbeyan was recorded by PW 6 and in his evidence he

has not mentioned as to whose information he reached to the village

to record the fardbeyan and for such act of I.O. It further appears that

PW 6 is the investigating officer in this case and he has taken over the

investigation also. Hon’ble Supreme Court has deprecated such

practice as being informant of this case, he would try to justify his

action in the court. It further appears that in spite of occurrence took

place on 30.8.2000 nobody was informed about the same. It further

appears that though prosecution evidence shows that victim girl was

lifted by appellant Laxmi Thakur, thrashed her on the ground and

committed rape upon her and details of commission of rape has been

given by PW2 but no question has been asked from the appellant to

the evidence available against the appellant on which learned trial has

tried to rely upon, rather a general question has been asked to the

accused that on 30.8.2000 in village Goura Hariyali Bahiyar he has

forcibly committed rape upon Lalita Kumari which does not appear to

be proper compliance of Section 313 Cr.P.C. Hon’ble Apex Court in
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the case of Sukhjit Singh v. State of Punjab : (2014) 10 SCC 270

after relying upon earlier judgments of the Hon’ble Supreme Court,

including Ajay Singh vs. State of Maharashtra : (2007) 12 SCC

341 has laid down the principle in paragraph-14 of the judgment for

recording statement of the accused under Section 313 Cr.P.C., which

is as follows :

“14. The word “generally” in Sub-section (1)(b)
does not limit the nature of the questioning to one or
more questions of a general nature relating to the
case, but it means that the question should relate to
the whole case generally and should also be limited
to any particular part or parts of it. The question
must be framed in such a way as to enable the
accused to know what he is to explain, what are the
circumstances which are against him and for which
an explanation is needed. The whole object of the
section is to afford the accused a fair and proper
opportunity of explaining circumstances which
appear against him and that the questions must be
fair and must be couched in a form which an
ignorant or illiterate person will be able to
appreciate and understand. A conviction based on
the accused’s failure to explain what he was never
asked to explain is bad in law. The whole object of
enacting Section 313 of the Code was that the
attention of the accused should be drawn to the
specific points in the charge and in the evidence on
which the prosecution claims that the case is made
out against the accused so that he may be able to
give such explanation as he desires to give.”

Considering the aforesaid settled principle of law laid down

in the case of Sukhjit Singh (supra), it appears that in present case also

the requisites questions are not put to the accused and that will
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amount to non compliance of the statutory requirement of Section 313

Cr.P.C., as such, prejudice is deemed to have been caused to the

accused and this vitiates the entire trial and a conviction based on

such a vitiated trial is unsustainable. Learned trial court has not

considered this aspect of the matter and convicted the appellant under

Section 376 IPC.

17. Considering the above infirmities and inconsistencies

discussed above, the conviction of the appellant does not appear to be

sustainable.

18. Accordingly, 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 liabilities of his bail bond.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 19.3.2018
Transmission 19.3.2018
Date

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