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Mahendra Ram And Ors vs The State Of Bihar on 23 July, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1734 of 2018
Arising Out of PS. Case No.-59 Year-2012 Thana- ROHTAS District- Rohtas

1. Mahendra Ram Son of Sri Lakshaman Ram, Resident of Village- Ramdihara
Station, P.S. Amjhor, District- Rohtas.

2. Anjali Madam @ Juli Munda, W/o Late Ajay Dhanwar, R/o Mohalla- Kokar
buty more, P.S. Kokar, District- Ranchi Jharkhand. Present Address Village-
Banjari, P.S. Rohtas, District- Rohtas.

3. Dukhati Devi, W/o Vijay Ram, Resident of Village- Nimiaghoda, P.S.
Rohtas, District- Rohtas Bihar.

… … Appellant/s
Versus
The State Of Bihar … … Respondent/s

Appearance :

For the Appellant/s : Mr.Sanjay Kumar Pandey, Adv.
For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT

23-07-2019 Appellants, Mahendra Ram, Anjali Madam @ Juli

Munda, Dukhati Devi have been found guilty and accordingly,

sentenced by the learned Presiding Officer, FTC-II, Sasaram,

Rohtas vide judgment of conviction and order of sentence dated

15.03.2018 passed in connection with Sessions Trial No.

211/2013 arising out of Rohtas PS Case No. 59/2012.

2. From para-18 of the judgment, it is evident that

Anjali Madam @ Juli Munda, Dukhati Devi and Mahendra Ram

have been found guilty for an offence punishable under Section

366A/Section34, Section120B/Section34 IPC and further Mahendra Ram has been

found guilty for an offence punishable under Section 376 IPC.

Further from Para-21, the sentence portion, it is evident that
Patna High Court CR. APP (SJ) No.1734 of 2018 dt.23-07-2019
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Dukhati Devi has been sentenced to undergo RI for five years

under Section 366A/Section34, Section120B/Section34 IPC. Anjali Madam @ Juli

Munda has been sentenced to undergo RI for 10 years for an

offence punishable under Section 366/Section34 (ought not to be) and

120B/34 SectionIPC. Appellant, Mahendra Ram has been sentenced to

undergo RI for ten years under Section 366A/Section34, Section120B/Section34 and

also to undergo RI for 10 years as well as to pay fine of Rs.

50,000/- for an offence under Section 376 IPC, in default

thereof, to undergo SI for one year additionally. It has further

been directed that in case of deposit of fine, Rs. 40,000/- will be

paid to the victim by way of compensation. It is further evident

that no sentence has been inflicted for an offence punishable

under Section 120B of the IPC which is found inconsistent with

the manner of sentencing as indicated hereinabove.

3. For kidnapping of daughter’s daughter (natni)

(name withheld), PW-2 aged about 15 years by Mahendra Ram,

Anjali Madam @ Juli Munda, Dukhati Devi on 12.06.2012

whereupon there was hectic search but the informant, Taregni

Devi (PW 3) failed to locate her whereabout whereupon, lastly,

filed a written report on 04.08.2012 disclosing the event in

which, it has also been incorporated that on 29.05.2012, the

aforesaid victim was previously taken away by the aforesaid
Patna High Court CR. APP (SJ) No.1734 of 2018 dt.23-07-2019
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accused persons, namely, Mahendra Ram, Anjali Madam @ Juli

Munda, Dukhati Devi, but she returned back on 01.06.2012.

4. On the basis of the aforesaid written report, Rohtas

PS Case No. 59/2012 was registered followed with an

investigation as well as submission of charge-sheet facilitating

the trial, meeting with ultimate result, subjected matter of the

instant appeal.

5. It is to be noted down that the charge-sheet was

submitted in two parts. Firstly, against Mahendra Ram and

Anjali Madam @ Juli Munda whereupon Sessions Trial No.

211/2013 has originated and subsequently, against Dukhati Devi

on the basis of Sessions Trial No. 217/2013 was registered and

at the stage of framing of charge vide order dated 04.09.2013,

both the Sessions Trials were amalgamated.

6. The case of the defence as is evident from cross-

examination as well as statement under Section 313 of the

Cr.P.C. is that of complete denial. Furthermore, one DW has

also been examined through which some documents have been

exhibited.

7. In order to substantiate its case, prosecution has

examined altogether five PWs, who are PW-1 Manita Devi, PW-

2, victim (name withheld) PW-3, Taregni Devi, PW-4 Dr.
Patna High Court CR. APP (SJ) No.1734 of 2018 dt.23-07-2019
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Punam Kumari, PW-5 Om Prakash Paswan, IO. as well as also

exhibited as Ext-1, signature of the victim over statement

recorded under Section 164 CrPC, Ext-2, Signature of informant

over written report, Ext-3, medical report. In likewise manner,

DW-1, Uma Shankar Dubey, a law clerk has been examined, but

after going through the evidence, it is evident that though there

happens to be reference with regard to filing of different papers

at the end of victim, PW-2 but the reason best known to the

defence, those documents have not been exhibited nor the same

is available on the record.

8. Learned counsel for the appellant while challenging

the finding recorded by the learned lower court, has submitted

that there happens to be inordinate delay in launching of the

prosecution without any explanation and that being so, the

whole prosecution case his likely to be disbelieved. In likewise

manner, it has also been submitted that parents of the victim has

not been examined and for that, again there happens to be no

explanation. No independent witness has been examined and for

that, there happens to be no explanation. In the aforesaid

background when the remaining evidence is taken up for proper

consideration, it is evident that the prosecution suffers from

some sort of improbable activity because of the fact that PW-3,
Patna High Court CR. APP (SJ) No.1734 of 2018 dt.23-07-2019
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informant has deposed that on 12.06.2012 when victim was

kidnapped from her house, she was not present. The aforesaid

activity is to be seen in the background of the fact that even if

prosecution case is considered, the victim, firstly was kidnapped

on 29.05.2012 and had returned on 01.06.2012, then in that

circumstance, was it possible for the informant PW-3 to leave

the victim alone and in likewise manner, after having return of

the victim on 01.06.2012, she must have been sent to the place

of her parents instead of keeping the victim at her place without

any rhymes and reason and, the story so propounded by the PW-

2 (victim) that while she was alone in the night of

12/13.06.2012 the accused persons entered inside the house

after scaling the thatched wall also appears to be unbelievable.

Furthermore, the conduct of the prosecution has also to be seen

in the background of the fact that PW-1, another daughter of

PW-3 has come up to depose but, the parents of PW-2 has not

and that has got relevancy and would play an important role in

appreciating the truthfulness of the prosecution version. In the

aforesaid background, it has been submitted that the prosecution

case suffers from vagueness, inconsistency, improbability and

the same when is taken together with the medical evidence, Ext-

3, the whole case is found dis-believable, whereupon, judgment
Patna High Court CR. APP (SJ) No.1734 of 2018 dt.23-07-2019
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impugned is fit to be set aside.

9. On the other hand, learned APP controverting the

submission made on behalf of the learned counsel for the

appellant, has submitted that admittedly PW-1 and 3 are not

eyewitnesses to the occurrence. PW-4 is the doctor. PW-5 is the

I.O. From the evidence of the victim (PW 2), it is apparent that

she had narrated the incident in a manner which she faced

during intervening period and further, the medical evidence

supports that she was sexually exploited. That being so, the

appellants have rightly been sentenced and convicted. But, at

the present moment, learned APP has submitted that sentence

should also be against Anjali Madam @ Juli Munda for the

offence punishable under Section 366A IPC and not under

Section 366 IPC as there was no finding of guilt against her

under Section 366 of the IPC, moreso, when the victim has been

found to be minor. Apart from this, learned APP has also

submitted that at para-21 of the judgment impugned there

happens to be some sort of ambiguity while prescribing

sentence against the appellants which is found connected

without having adverse impact upon the finding recorded by the

learned lower court.

10. Gone through the lower court record. From
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perusal of the lower court record, it is evident that PW-1 and 3

are not eyewitness to the occurrence. What they have deposed

on the basis of disclosure having at the end of PW-2, victim, the

only thing which is found relevant for consideration is that PW-

3, informant had stated that at an earlier occasion also while the

victim was taken away by the accused persons on 29.05.2012,

she had gone to the police station and filed a written report but,

on the basis thereof, a Sanha was registered. After returning of

the victim, she again had gone to the police station and at that

very time, the police official advised her not to insist upon

registration of a case and so, she left and that part of evidence

remained intact during course of cross-examination, as defence

failed to test her over the aforesaid disclosure.

11. Now coming to the evidence of the victim, PW 2

it is evident that her conduct suggests otherwise as she remained

in company of the appellants for nearly three months, moved

frequently, she on her own came on 12.01.2012 and for that, she

had an explanation that after getting help at the end of daughter

of appellant, Mahendra Ram, she escaped from his house and

then came to the police station, how and in what manner is

another factor but, the most devastating step having at the end of

the appellants, is that irrespective of disclosure since at initial
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stage of the instant criminal prosecution acknowledging the

status of the victim, PW-2 to be a minor, more particularly, by

way of Ext-5 having date of birth 15.01.1998, she has not been

cross-examined on that very score nor PW-1, 3 were.

Furthermore, the defence could not be able to shake her

testimony on merit. Furthermore, the doctor, PW 4 had deposed

that victim was very much experience of sexual intercourse as

was not virgin.

12. That being so, status of PW-2 remained intact as a

minor and as defence could not escape the appellants from the

conviction as well as sentence. The evidence of PW-2 has

minutely been gone through in order to search and filter the

same. It is evident that in between night of 12/13-06-2012, she

was forcibly taken away from her house to the house of Dukhati

Devi wherefrom she was lifted to Ranchi where Mahendra and

others raped her in presence of Anjali, then to Garhwa where

she was also reaped, then to Dihri(Tarbangla) where she was

also raped and then to the place of appellant, Mahendra where

she was also raped and from there, she escaped. Further, she

identified all the accused in the dock. During cross-examination,

it is evident that she was not even cross-examined that in the

hotel while staying at Ranchi whether waiter used to visit the
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room, whether she tried to escape therefrom, whether any kind

of steps were taken to get herself rescued therefrom and in

likewise manner at Garhwa and in likewise manner at Dihri.

Had there been, along with identity herself a consenting party

coupled with being major could have changed the scenario but

having failed on that very score found reluctant. .

13. PW-5 the I.O., as is evident from his evidence is

relevant only on the score that the victim on her own

approached him on 13.09.2012 and then other activity followed,

that means to say, her examination under Section 164 CrPC,

medical examination etc. were conducted, accused persons were

apprehended and after completing investigation, charge-sheet

was submitted. During cross-examination, nothing relevant has

been at the end of the I.O.

14. So from the evidence as discussed above, it is

evident that as the defence failed to controvert the status of the

PW-2 as a minor, that being so, even perceiving her conduct

showing inclination towards appellants while availing the

company would not be a ground to be legally acceptable,

recognizable and on account thereof, the judgment of conviction

and sentence recorded by the learned lower court, did not attract

interference, save and except, modifying the sentence of Anjali
Patna High Court CR. APP (SJ) No.1734 of 2018 dt.23-07-2019
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Madam @ Juli Munda under Section 366A/Section34 IPC and

sentenced to undergo RI for five years, and in likewise manner,

erasing the finding of Section 366A relating to appellant,

Mahendra Ram as Section 366A IPC did not power the

kidnapper to be punished thereunder.

15. With the aforesaid modification, instant appeal is

found to be devoid of merit and is, accordingly, dismissed.

16. Appellants are under custody which they will

remain till saturation of the sentence.

perwez (Aditya Kumar Trivedi, J)
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 29.07.2019
Transmission Date 29.07.2019

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