SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Madan Ravidas @ Mulahi Ravidas vs State Of Bihar on 27 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.361 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- KATIHAR

Madan Ravidas @ Mulhai Ravidas, son of Sri Jhaksu Ravidas, resident of village
Phulwaria Mathuriabari, P.S. Kurha, District Katihar
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
with

Criminal Appeal (SJ) No. 364 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- KATIHAR

Wakil Rabidas, son of Bisambhar Rabidas, resident of village Laxmipur, P.S.
Barari, District Katihar
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance :

(In CR. APP (SJ) No.361 of 2003)
For the Appellant/s : Mr. Rajendra Prasad Sah with
Mr. Ratnakar Ambastha, Advocates

In Cr.App (SJ) No. 364 of 2003
For the appellant : Mr. Sunil Prasad Singh, Advocate
(amicus curiae)
(In both the appeals)
For the State : Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 27-03-2018

Since both the appeals arise out of the common judgment

and order they have been heard together and are being disposed of by

this common judgment.

Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

2/9

2. No body appears on behalf of appellant in Cr.Appeal (SJ)

No. 364 of 2003 on repeated calls, as such Mr. Sunil Prasad

Singh,Advocate, has been appointed as amicus curiae by this Court to

assist this Court.

3. Appellant Madan Ravidas in Cr.Appeal (SJ) No. 361 of

2003 and appellant Wakil Ravidas in Cr.Appeal(SJ) No. 364 of 2003

have been convicted under Sections 363/34 of the Indian Penal Code

and sentenced to undergo rigorous imprisonment for three years,

further they have been convicted under Sections 366A/34 IPC and

sentenced to undergo rigorous imprisonment for five years and further

they have been convicted under Sections 376/34 of the Indian Penal

Code and sentenced to undergo rigorous imprisonment for ten years

and all the sentences were directed to run concurrently vide judgment

dated 31.5.2003 and order dated 5.6.2003 passed by Sri Yogendra

Prasad, the then 1st Additional Sessions Judge, Katihar in Sessions

Trial No. 45 of 2000.

4. Prosecution case as stands on the basis of written report of

informant Raju Singh (PW 5), in short, is that his daughter Boby Kaur

was married five months prior to Sardar Bhajan Singh of village

Nauratan, District Sitapur (Uttar Pradesh) and for the last two months

she was living in his house. It is further alleged that on 17.3.1999 at 8
Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

3/9

P.M. appellant Wakil Ravidas, Deoki Devi and Chhattu Harijan

enticed the victim Boby Kaur away with intention to get her married,

when she had gone out of her house to attend the call of nature and in

spite of rigorous search she was still traceless and, as such, this

information was given to the police.

5. On the basis of the aforesaid written report Barari

P.S.Case No. 39 of 1999 was registered on 26.3.1999 under Sections

366/34 IPC. After investigation charge sheet has been submitted

against the accused appellant Madan Ravidas @ Mulhai Ravidas

showing the accused Wakil Ravidas as absconder and accordingly

cognizance of the offence has been taken under Sections 363, 366A

and 376/34 IPC and the case was committed to the court of sessions

which ultimately came to the file of the learned Trial Judge for trial

and disposal.

6. In this case altogether seven witnesses have been

examined on behalf of prosecution, they are PW 1 Lakhan Das, PW 2

Rambha Kaur, who is mother of victim girl, PW 3 Jonty Kaur, who is

aunt of the victim girl, PW 4 Boby Kaur, who is victim, PW 5 Raju

Singh, the informant, who is father of the victim girl, PW 6 Indar

Singh, who is uncle of the victim girl and PW 7 Awadh Narain Singh.

The I.O. has not been examined.

Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

4/9

7. Learned trial court has also examined Sakaldeo Rai, the

then Judicial Magistrate, 2nd. Class, Katihar, who has recorded the

statement of victim girl under Section 164 Cr.P.C. as CW 1 and

Dr.Mini Rani as CW 2, who has examined the victim Boby Kaur and

submitted her medical report (Ext.4).

8. It appears from the evidence of PW 4 Boby Kaur, the

victim girl, that she had gone to attend the call of nature and 4-5 boys

came to her and inserted cloth into her mouth and she was lifted on a

bicycle and taken towards Fulbaria chowk by them. Appellants

Madan and Wakil committed rape upon her in a house against her

will. Next day they took her to Godda and she was kept there 4-5 days

in a house of their relative by them and then she was taken to

Bombay, where she was kept in a hotel for three days and both the

accused appellants have committed rape upon her. She was then taken

to Gorakhpur by the accused persons where the accused appellant

forcibly committed rape upon her and from Gorakhpur she was taken

to Katihar and she informed her father from there. This witness has

been cross examined at langth but in spite of her cross examination

her statement discloses that she was taken different places and was

committed rape by the accused appellants and she was recovered from

Fulbaria and there is nothing in her evidence to discredit her evidence
Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

5/9

about her being taken by appellants..

9. PW 5 is the informant in this case and though there is no

eye-witness of kidnapping, her evidence discloses that she was

kidnapped by Chhattu Das, Deoki Devi and Wakil Das. He has proved

the written report as Ext.1. His evidence also discloses that his

daughter was at the age of 15-16 years and he was deposing in May,

2001 and occurrence is of the year 1999.

10. The evidence of PW 6 shows that Wakil Das had taken

her niece and at that time victim had gone to attend the call of nature.

11. PW 1 is seizure list witness and has proved his L.T.I.

over the same.

12. PW 2 is mother of victim girl and her evidence discloses

that on 17.3.1999 at 8.30 in the night her daughter went to attend the

call of nature and accused Wakil Das kidnapped her.

13. PW 3 Jonty Kaur is aunt of the victim girl and her

evidence discloses that the victim was kidnapped by accused persons

but she does not appear to be an eye-witness to the occurrence.

14. On close scrutiny of the entire evidence it appears that

PW 4 is only witness on the point of kidnapping and subjecting her to

rape.

15. Learned trial court has also examined Sakaldeo Rai, the
Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

6/9

then Judicial Magistrate, 2nd Class, Katihar, who has recorded

statement of victim girl under Section 164 Cr.P.C. (Ext.2) as CW 1

and Dr. Mini Rain is CW 2, who has examined the victim girl and

from her evidence it appears that on the basis of Radiological report

and dental examination she assessed her age at 14-15 years and her

report also shows that on Microscopic examination no spermatozoa

was found but she has stated that she is used to sexual intercourse. In

her cross examination she has also stated that she cannot say as to

whether victim had sexual intercourse one month before her

examination. So, evidence of Doctor did not show sign of rape upon

her. Furthermore, the Doctor had assessed her age at 14-15 years and

assessment of medical report varies +- 2 years and if it is taken in

favour of the accused appellants she was found to be at the age of 17

years at the time of occurrence.

16. Section 375 IPC prior to 2013 amendment provides as

follows :

“375. Rape – A man is said to commit “rape” if he-

(a) penetrates his penis, to any extent, into the vagina,
mouth urethra or anus of a woman or makes her to do
so with him or any other person; or

(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

7/9

or anus of a woman or makes her to do so with him or
any other person; or

(c) manipulates any part of the body of a woman so as
to cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do so
with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person, under the circumstances falling under any of
the following descriptions:-

…………..Sixthly.- With or without her consent,
when she is under sisteen years of age”

16. Considering the medical evidence and evidence of the

victim it appears that she was subjected to rape at different places and

she had gone with the accused persons from place to place but she had

not raised any alarm. Though her evidence discloses that she moved

from one place to other by train, steamer and bus, in such situation,

there was ample opportunity for her to raise alarm but there is no

evidence to suggest that she ever tried to raise alarm, as such she

appears to be a consenting party. As discussed above, according to

medical opinion she appears to be more than sixteen years of age. In

such a situation, the conviction under Section 376 IPC does not

appear to be sustainable in the eye of law.

Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

8/9

17. However, on the basis of evidence on record which has

been corroborated by her statement under Section 164 Cr.P.C. and

also considering the fact that for the purpose of kidnapping, the girl

must be below 18 years and in this case girl was below 18 years of

age. It appears that she was taken by accused persons from place to

place and appellant Madan forcibly married her and as she was below

18 years of age her consent or no consent has no help to the

appellants. In such a situation, conviction of the appellants under

Section 366A IPC appears to be just and probable. It further appears

that learned trial court has also convicted the appellants under

Sections 363/34 IPC but once they have been convicted under Section

366A/34 IPC, the conviction under Sections 363/34 IPC becomes

redundant. As such, conviction of the appellants under Sections

366A/34 IPC is quite sustainable and hence affirmed.

18. In the result, conviction and sentence of the appellants

under Sections 363 and 376 IPC are set aside and conviction under

Section 366A IPC is affirmed.

19. Learned counsel for the appellants has submitted that

appellant Madan Rabidas has remained in custody for more than four

years and appellant Wakil Rabidas has remained in custody for about

3 years 10 months and occurrence is of the year 1999, as such lenient
Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018

9/9

view may be taken that sentence be reduced to the period already

undergone by them in custody.

20. Considering the prosecution case and the facts and

circumstances of the case and also considering the fact that this is an

old case, the period of sentence under Sections 366A/34 IPC is

reduced to a sentence for R.I. of five years.

21 . With the aforesaid modification in conviction and

sentence, both the appeals are dismissed.

(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 © 2020 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