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Md. Sunni vs The State Of Bihar on 18 October, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.869 of 2016
Arising Out of PS. Case No.-356 Year-2012 Thana- CIVIL LINE District- Gaya

Md. Sunni, Son of Md. Gaffar, Resident of Mohalla- Purani Karimganj, Churi
Gali, Gaya, P.S.- Civil Lines, Gaya, District- Gaya.

… … Appellant/s
Versus
The State of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.

Ms. Nivedita Nirvikar, Adv.

Mr. Manishdhari Singh, Adv.

For the Respondent/s : Ms. Abha Singh, A.P.P.
For the informant : Mr. Baxi S.R.P.Sinha, Sr.Adv.
Mr. Arvind Kumar, Adv.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 18-10-2019
Appellant Md. Sunny has been found guilty for an

offence punishable under Sectionsection 376 I.P.C. and has been

sentenced to undergo R.I. for seven years as well as to pay fine

appertaining to Rs.20,000/- and in default thereof, to undergo R.I.

for three years, additionally, under Sectionsection 384 I.P.C. and

sentenced to undergo R.I. for three years, under Sectionsection 420 I.P.C.

and sentenced to undergo R.I. for five years as well as to pay fine

appertaining to Rs.10,000/- and in default thereof, to undergo R.I.

for two years, additionally, under Sectionsection 67A of the Information

and SectionTechnology Act and sentenced to undergo R.I. for five years as

well as to pay fine appertaining to Rs.50,000/- and in default

thereof, to undergo R.I. for five years, additionally with a further
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direction that the sentences should run concurrently vide judgment

of conviction and order of sentence dated 19.9.2016 passed by the

9th Addl. Sessions Judge, Gaya in S.Tr.No. 159 of 2014/ 488 of

2014 arising out of Civil Lines P.S.Case No. 356/2012.

Name withheld (P.W.3) filed a written report on

23.9.2012 disclosing therein that her husband Md. Jafar Alam is

employed under Dr. B.H.Khan. One Md. Rashid happens to be her

tenant and Md. Sunny, who happens to be friend of Md. Rashid,

used to visit and also she used to call her Bhabhi. On 3.7.2012 at

about 12 noon, when her husband had gone to her place of

working, children were at the school, Sunny came at her house and

snapped her naked photo while she was taking bath. She, after

seeing this protested but he intruded inside the bathroom and then,

raped her. It has further been disclosed that at that very time he

was carrying one bottle and cotton and he committed rape after

having her unconscious. Since thereafter he used to sexually

exploit her on the pretext of photo. On 3.8.2012 he demanded

Rs.50,000/- and threatened that in case of non-payment of money

he will expose her naked photo being under pressure thereof, she

had paid Rs.50,000/- which was available with her (30,000/- from

her Naihar and 20,000/- from her husband. He on 5.9.2012 again

demanded Rs.1 lac on an assurance that after the payment, he will
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remove/ erase the photo. In the aforesaid background, she

apprehended blackmailing at his end on the pretext of photo

having snapped by him as well as sexually exploiting her. Then

thereafter, she has disclosed the incident to her mother as well as

her family members. She had intended to commit suicide but on

the consolation having at the end of her mother as well as her

family members, she left her intention.

After registration of Gaya Civil Lines P.S.Case No.

356/2012, investigation commenced and after concluding the same

charge sheet has been submitted which happens to be the basis of

the trial which ultimately concluded in recording finding of guilt

followed with sentence, subject matter of the instant appeal.

Defence case as is evident from the mode of cross-

examination as well as statement recorded under Sectionsection 313

Cr.P.C. is that of complete denial. It has also been pleaded that so

alleged victim happens to be accustomed to modern life and in

order to avail the same, exploited the appellant and used him and

during course thereof, also secured financially and lastly, when she

knew that her affair has been exposed, then thereafter, only to save

herself got this case filed with false and frivolous allegation.

However, nothing has been adduced in defence.

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In order to substantiate its case prosecution has

examined altogether 7 P.Ws. Who are P.W.1 Md. Jafar Alam,

husband, P.W.2 Sabana Khatoon, daughter, P.W.3 the victim

herself (name withheld). P.W.4 Md. Safraj, P.W.5 Dr. Sangeeta

Kumari, P.W.6 Yogendra Mishra and P.W.7 Imran Ahmad. Side by

side has also exhibited Ext.1 written report, Ext.2 injury report and

Ext.3 formal F.I.R. As stated above, nothing has been adduced in

defence.

Learned counsel for the appellant has raised many fold

argument while assailing the judgment of conviction and sentence.

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

happens to be specific disclosure in the written report that the

mother and the family members were firstly acknowledged fact

but the mother has not been examined. No explanation is there.

From the evidence of the prosecutrix (P.W.3) as well as her

husband (P.W.1) it is evident that the house is multi-storied.

Ground floor is occupied by his one brother. Upper floor is

occupied by another brother and middle floor is occupied by the so

alleged victim. There happens to be no evidence that for the

middle floor there was separate stair. Neither members of the

ground floor nor upper floor have come to support the case of the

prosecution much less to the effect that some portion of the house
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of the victim was under tenancy nor to the effect that they have

seen the appellant in an unusual manner. P.W.7 is the main I.O.,

who had visited the place of occurrence and there happens to be no

description coming out at least during course of recording of

objective finding of the P.O. that any portion of the house of the

victim was on rent occupied by one Md. Rashid and in likewise

manner, presence of common stair unless and until there happens

to be the presence of Md. Rashid, presence of the appellant would

not as presence of appellant is on that score. Once Md. Rashid is

absent then, in that circumstance, presence of the appellant would

be only after having some sort of affectionate relationship amongst

them.

Then, it has been submitted that during course of

investigation the I.O. had not seized the mobile set nor the victim

P.W.3 had ever spoken during course of evidence that she had seen

her naked photograph in the mobile possessed by the appellant.

That means to say, unless and until there was naked photograph of

the victim, there would not be an occasion for coercing or

exploiting the victim. Once story of snapping of naked photograph

is found to be unreliable then in that circumstance, again story of

sexual exploitation goes away and if any, it was consensual and so,
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no offence could be as there was neither deception nor threat,

rather against two major opposite sex.

It has also been submitted that from the version of the

prosecutrix (P.W.3) it is evident that she was a consenting party

and on that very score her attention has been drawn up under

paragraph 46 and the same happens to be substantiated by the I.O.

(P.W.7) under paragraph 14. Apart from this, it has also been

submitted that when the evidence of the victim (P.W.3) is taken in

its totality, it is evident that she was a consenting party and that

happens to be the reason behind that a specific suggestion was

given to the victim that she was a consenting party but, after

coming to know that her extra marital relationship is found duly

exposed as a result of which, she could be divorced then in that

circumstance, only to save herself this false case has been

instituted. So, in the facts and circumstances of the case, the

finding so recorded by the learned lower court is not at all found

substantiated from the material available on record, whereupon is

fit to be set aside.

Learned Addl. P.P. assisted by learned Senior Counsel

representing the informant/ victim have vehemently opposed/

controverted/ repelled the submission made on behalf of the

appellant. It has been argued that unless and until there happens to
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be some sort of exposer identifying inter se relationship, in

ordinary course of nature, the evidence of the prosecutrix has to be

accepted without any corroboration. If the court, in the background

of nature of evidence may seek corroboration. So far, facts of

present case is concerned, apart from P.W.3 (prosecutrix) evidence

of other witnesses P.W.1, P.W.2 and P.W.4 is available to

corroborate. However, the evidence of P.W.3 inspires confidence

hence is reliable, acceptable. The most crucial thing is while a

woman is put to her married life at a stake by way of labeling such

kind of activity against an accused, she will dare only when she

has faced the exploitation at the end of an accused. It has also been

submitted that it is settled at rest that in cursory manner, the

evidence of the prosecutrix should not be brushed aside. That

being so, the judgment of conviction and sentence recorded by the

learned lower court is fit to be confirmed.

P.W.6 is part I.O., who had simply submitted charge

sheet. No active role has been played by him and so, his evidence

is of no consequence.

P.W.5 is the doctor, who had examined the victim.

Needless to say that the victim is enjoying her married life. She is

mother of six children and that being so, the ultimate finding
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whatsoever been at the end of P.W.5 is in toe therewith and so,

there happens to be nothing unusual.

Now remains evidence of P.Ws.1 and 2, who are

material witness being family members alongwith P.W.7 I.O. The

generic of the present scenario is presence of Md. Rashid as a

tenant in the house of the victim. I.O., P.W.7, had visited the place

of occurrence and had detailed in paragraph 2. He had not shown

any portion of the house occupied by the victim on hire under

occupancy of Md. Rashid nor on that very score, the I.O. was ever

challenged at the end of the prosecution. At the present moment,

evidence of P.W.1, husband of the victim, is to be seen who during

his examination-in-chief at para-2 has stated that Md. Rashid was

his tenant and Md. Sunny was on visiting term. During course of

cross-examination at para-20 has stated that Rashid, who was his

tenant, was residing in the flat occupied by him. At para-21 he has

stated that he had removed Rashid, after 3-4 months of the

occurrence. It is not evident from the record on which date they

came to know regarding occurrence, and on which date Rashid

was removed. It has not been adduced at the end of the prosecution

whether Rashid was removed earlier to visiting of the I.O. at the

place of occurrence or after visiting at the place of occurrence by
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the I.O., P.W.7. In likewise manner P.W.7 I.O. has not disclosed the

exact date on which he had inspected the house.

Now the status of Md. Sunny (appellant) is to be seen.

From the evidence of P.W.1 (husband), it is evident that he had not

found conduct of Md. Sunny suspicious nor derogant rather, he

came to know about the incident only after having been disclosed

at the end of the victim. However, during course of cross-

examination at para-6 he has stated that he knew Md. Sunny since

3-4 years. Then he said at para 22 that Md. Sunny has got shoe

shop at Mohalla Delha. In para-23 he has stated that he alongwith

his friends, namely, Sunil Kumar, Binod Kumar and Sanjay Kumar

has visited the shop of Sunny. In para-24 he has stated that 5-6

times he had visited the shop but he had not gone there alongwith

his wife. In para-25 he has stated that he has got no information

whether his wife had ever gone there alone, then has stated that he

had purchased shoe, Chapal from the shop of Md. Sunny which

the victim (P.W.3) has denied at paras 53, 54, 55, 56. 57, 59. 59. In

para-59 she has stated that she never purchased shoe, chapal from

the shop of Md. Sunny.

Learned counsel for the informant has rightly submitted

that it has been settled at rest that in case, there happens to be

reliability in the evidence of the victim, then in that circumstance
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neither the court will see for corroboration nor will see ultimate

finding of the Doctor/ medical report even given to the extent of

negativity the allegation of rape as, slight penetration is sufficient

to constitute the offence. Further ejaculation is not a condition

precedent for constitution of rape.

So far this case is concerned, it is apparent that none is

an eye witness to the occurrence irrespective of the fact that it was

not a one day affair and further, there was an exploitation as

alleged on the pretext of photograph having snapped by the

appellant Md. Sunny while the victim was taking bath, for quite a

long time.

In the aforesaid background, the evidence of the victim

has got primacy and so, first of all evidence of victim (P.W.3) is

taken up. She during her examination-in-chief has stated that the

occurrence had taken place on 3.7.2012. It was 12 noon. At that

very time, she was taking bath in her bathroom. None was present

inside her house. While she was taking bath, Md. Sunny came to

her house and snapped her naked photograph through his mobile.

Then, after showing photograph he committed rape. He also got

her unconscious by way of administering the sedative. He used to

commit rape on the pretext of that photograph. She has further

stated that on that very basis, apart from committing rape, he
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demanded Rs.50,000/- which she paid on the pretext of deleting

the photograph. Even after receiving money, he continued with

blackmailing her keeping the photograph. After a month, Md.

Sunny again demanded 1 lac rupees. She had not given the money.

She thought to commit suicide but subsequently, she disclosed the

event to her mother as well as husband. Then she had gone to the

police station alongwith her family members where she had filed

written report (exhibited). Also filed protest petition.

During cross-examination at para-9 she has stated that

she had paid on 3.7.2012. One month after giving of money, she

met Md. Sunny. At that very time, there was no talk. At para-10

she has stated that when he came one month thereafter, stayed for

an hour. At para-11 she has stated that at that very time her

husband was not there, her children were not there. The house was

vacant. In para-13 she has stated that he stayed about an hour. He

stayed in her room. The main gate was open. In para-14 he has

stated that his repeate visit to her place, was disclosed to her

husband. In para-16 she has stated that she had disclosed about 15-

20 days prior to institution of the case. She had disclosed to

Sarfaraj and Sadam. In para-18 she has stated that neither she

raised alarm nor she disclosed to anybody when Sunny visited at

subsequent time. In para-21 she has stated that she had taken bath
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in the bathroom being in naked condition. In para-22 she has stated

that on 3.7.2012 sin was committed. In para 23, 24, 25, 26 there

happens to be cross-examination relating to her posture during

course of commission of rape which she delicately answered. In

para 27 she has stated that she had not raised alarm after coming

out from the bathroom. At para 28 she has stated that she had

grappled with Md. Sunny and during course thereof, she had

sustained injury over her waist. In para 33 she has stated that she

had disclosed the incident to Sadam and Sarfaraj and before that,

she had already disclosed to mother and husband as is evident

from para-35. Then at para-39 she has stated that she was raped

second time one month thereafter but where she was raped, she is

unable to say. At para-40 she has stated that she was raped at third,

fourth time in a room but again said that she is unable to say

whether in a room, varandah. Her attention has been drawn with

regard to her previous statement made before the police that she

had indulged with physical relationship voluntarily. When her

husband came to know about the incident, she was directed to file

case and the same happens to be substantiated by P.W.7, para-14.

In para 49 she has stated that her naked phto was snapped by Md.

Sunny but she had not disclosed the same to her other family

members who were residing at ground floor as well as at upper
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floor. At para 51 she has stated that she was not possessing the

mobile and so, denied the suggestion having at para 52 that she

was in regular contact with Sunny. From para 53, 54, 55, 56, 57,

58, 59 there happens to be cross examination regarding status of

the accused Md. Sunny and whether her husband used to purchase

shoe, chappal from the shop of Sunny or not. In para 60 she has

stated that the railway line lies after 5-7 building from her house.

She had thought to commit suicide after coming over the railway

line but after having talk with her mother, she relinquished her

intention. In para 61 she has shown the accused to be young as

well as having sufficient means. In para 62 she has also claimed

herself to be smart. There happens to be contradiction with regard

to her previous statement under paras 63, 64, 65, 66, 67 but those

things have not been confronted to the I.O.. P.W.7. In para 68 she

has stated that she had not shown the sachets of medicine by which

she was made unconscioous. In para 69 she has stated that she had

shown the cloth by which she had cleaned her body, to the police.

At para 70, 71 she had denied the suggestion that she was a

consenting party and she exploited the accused. She developed

physical relationship with him voluntarily and in likewise manner

also snatched the money from him and then, having known to the

husband, got this case filed with false frivolous allegation.
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P.W.1 is the husband. Admittedly, he is not an eye

witness to the occurrence. He has deposed that after going to the

job and children to the school, his wife are to remain alone at his

house. One Md. Rashid was his tenant where Md. Sunny used to

visit. On 3.7.2012 at about 12 noon while his wife was taking bath

in her bathroom, none was present, at that very time Md. Sunny

snapped semi naked photograph of his wife and on that very

pretext, he had raped her. He had shown semi naked photo of his

wife and on that very score continued with sexually exploiting her.

His wife became very much perplexed over presence of the

photograph. Md. Sunny also succeeded in procuring Rs.50,000/-

on the pretext that after the money he will delete the photograph

but he had not deleted the same. After some time, Md. Sunny

demanded Rs. 1 lac. His wife disclosed that she had no money.

Then said that Rs.50,000/- was paid (20,000/- his money and

30,000/- mother’s money). Even thereafter, Md. Sunny continued

with sexually exploiting her. On account thereof, his wife intended

to commit suicide. However, she disclosed the event to her mother

and then, she disclosed to all of them. Thereafter all the family

members have come to the police station where his wife had filed

written report (Ext.1). He has further stated that after arrest of Md.

Sunny, his friends came at his shop and threatened him of dire
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consequences. All the events what he has deposed is based upon

information given by his wife. Identified the accused.

During cross-examination, at para-6 he has stated that

Md. Sunny is known to him for the last 3-4 years. He is unable to

say from which time his wife knew him. He is known to his wife.

Then at para-8, 9, 10, 11, 12 he has disclosed the photography of

his house being multi-storied. Ground floor is occupied by his

younger brother while upper floor is occupied by his elder brother.

Middle portion is occupied by him. Also disclosed that five

children and a wife of his elder brother is residing over the upper

house. At para 10, 11, 12 (there is wrong numbering) there

happens to be details of his house. Just after entering inside his

house there happens to be Varandah having 3′ width. The stair

leading to the upper floor is situated in the aforesaid Varandah.

Then, there happens to be bathroom. The door of bathroom is

towards Northern side. Both side of the bathroom, that means to

say, East and West there happens to be a room. Altogether four

rooms are in his possession. Then has disclosed that the bathroom

is opened. No door is affixed. Again said that at the time of taking

bath, the door of bathroom was opened. In para-17 he has stated

that he knew about the occurrence from his mother-in-law, wife

three months after the occurrence and during midst thereof, the
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accused used to visit his house. In para-18 he has stated that he

came to know about the sexual exploitation of his wife as well as

taking of Rs.50,000/- once. He had not informed the other family

members. His tenant Rashid was residing in the middle portion of

the house being allotted to his share. In para-21 he has stated that

about 3-4 months after the occurrence, he removed him. In para-23

he has stated that he had got no occasion to see naked photograph

of his wife. Then at para 24, 25 there happens to be cross-

examination with regard to constitution of the Committee in the

mohallah. In para 26, 27, 28, 29, 30 there happens to be cross-

examination with regard to identity of Md. Sunny as shopkeeper

and having his visit at his shop, alongwith friends as well as alone

having purchased the shoe and chapal from his shop. At para 32,

33, 34 his attention has been drawn with regard to previous

statement but from the evidence of P.W.7 (para-15) only one

statement has been confronted, that too with regard to presence of

Rashid. Then at para-36 he has stated that he is unaware with the

fact when sexual exploitation of his wife begin and when it ended.

Then at para- 37 and 38 there happens to be cross-examination

over the event of intention to commit suicide.

P.W.2 is the daughter. During her examination-in-chief,

she has reiterated the same version. During cross-examination at
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para-5 she has stated that no occurrence had taken place in her

presence. In para-7 she has stated that accused used to visit but

there was no cordial relation. At para-8 she has statd that she has

got no personal knowledge. At para 9, 10 she has stated that Md.

Sunny was not on visiting term. In para-11 she has stated that she

had not seen any photograph.

P.W.4 is Md. Sarfraz, who has disclosed that the

occurrence took place with the victim about 3 years ago. He came

to know about the occurrence just 15 days after the occurrence.

She had disclosed that while she was alone at her house and was

taking bath, Md. Sunny came and snapped her photograph and

then, committed rape on that very pretext, also managed to procure

Rs.50,000/- on the pretext of deleting the photograph and then also

demanded Rs.1,50,000/-. Identified the accused.

During cross-examination at para 11, 12 there happens

to be description with regard to presence of the family members of

the elder, younger brother of P.W.1 at the upper as well as ground

floor of the house respectively. In para-21 he has stated that the

victim had not disclosed how many times she was raped. He had

not seen the photograph. In Para-22 he has stated that he had not

seen visit of Sunny during day time. Then has denied the

suggestion.

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P.W.7 is the I.O. During his examination-in-chief he has

stated that after he was entrusted with the investigation of the case,

(exhibited all the relevant documents) he had taken further

statement of the informant, statement of the relevant witnesses.

Sent the victim to hospital. Inspected the place of occurrence

which happens to be the house of the victim. She resides in the

middle floor. At the ground floor as well as upper floor brother of

the husband of the victim resides. Then has disclosed the boundary

of the house. Conducted raid to apprehend accused who was found

absconding. He took proper step for proclamation. However, as

has been transferred, on account thereof, handed over the charge.

During cross-examination at para-5 he has stated that he had not

found broken bangle glass, cloth having spot at the place of

occurrence. He had not recorded statement of the brother of the

husband of the victim as well as their family members. In para-9

he has stated that he had not mentioned the length and width of the

bathroom. There was no door in the bathroom. It was open. He had

not seen dirty cloth in the bathroom. Then at para-13 has stated

that doctor had not found it a case of rape. Then para-14 there

happens to be contradiction relating to the victim, para-15 relating

to Jaffar Alam (P.W.1). At para-16 he has stated that during the
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course of investigation he had not been able to see naked

photograph of the victim.

From perusal of the evidence as discussed hereinabove,

it is abundantly clear that presence of the bathroom is found just in

front of Varandah which lies soonafter having entrance inside the

house. Although, during the course of examination-in-chief P.W.7

has not disclosed with regard to location of the bathroom, whether

door was affixed or not in front of the bathroom, no sketch map

has been to locate property the inner side of the house but during

cross-examination though he has not disclosed the location but has

disclosed that no door was affixed in the bathroom. However, there

happens to be inconsistency on that very score with the evidence

of P.W.1 (para-60). More over, the victim is completely silent with

regard to location of the bathroom as well as having door affixed

therewith or not. There also happens to be no evidence whether

there was door on the main entrance or not. Those things are very

much relevant because of the fact that the victim was knowing

since before that the door was not available, there happens to be

presence of stair to go to upper floor then in that circumstance,

there should have been proper precaution as to avoid any kind of

exposure. Further more, there happens to be no evidence that

accused came to bathroom and then snapped the photograph. So,
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snapping of photograph is a circumstance which would have been

properly explained. When she found that her conduct would

suggest otherwise, got the appellant in possession of sedative,

which he used and then raped. So, actually rape was commited

before snapping or after snapping. That means to say, whether rape

was committed on the pretext of naked photograph, mother after

being unconscious on account of sedative used by the accused.

Apart from this, from the evidence of the victim herself more

particularly at para-62, she has claimed herself to be a smart. Then

in that circumstance, even having been raped at that very moment

on that very pretext, would not have spared the culprit nor would

have allowed to be exploited at his end for such long period on the

pretext of photograph having been snapped by him in stead of

would have divulged the whole event more particularly to her

husband as well as other family members who were residing over

the ground floor as well as upper floor. Even at that very moment

had she taken proper step, then in that circumstance, the accused

would not have an opportunity to slip. Further more, from the

evidence of the victim, it is evident that she allowed herself to be

exploited without any protest, knowing fully well that the photo

happens to be inside the mobile of the accused which she never

tried to snatched even during such precarious stage or even at the
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time when Rs.50,000/- was paid. However, from her evidence

more particularly at para 21,22, 23, 24, 25 it is evident that she has

controverted or at least created doubt over her own version,

whether she was raped on the pretext of photograph or after

becoming unconscious.

It is the prosecution who has to prove its case. Had there

been a single incident of rape, then in that circumstance it would

have been a different colour but indulgence for such long period

and for that, there happens to be an allegation that after snapping

naked photograph while victim taking bath and then on that very

pretext continued with committing rape, speaks otherwise more

particularly when the house is occupied not only by the victim

herself rather two other family members who not only shown their

isolation by way of absence in becoming witness rather, would not

have allowed the appellant to commit such kind of occurrence

unless and until there would have been some sort of green signal at

the other end. Further more, had the victim not been a consenting

party, then in that circumstance, subsequent visit of accused would

have led him to custody being apprehended by her family member,

and in likewise manner relating of mobile, as the story of

snapping, in absence of mobile happens to be mere an imagination.

Apart from this, the most surprising feature is, presence of victim
Patna High Court CR. APP (SJ) No.869 of 2016 dt.18-10-2019
22/22

relating to Md. Rashid at the time of occurrence. In likewise

manner, during subsequent visit of accused. Not only this, when

Rashid was present inside the house, having no door at the

bathroom, would allow the victim to take bath nakedly. After

having minute scrutiny of the evidence of the victim, did not

inspire confidence, that being so, the appellant is found entitled for

acquittal.

Consequent thereupon, the judgment of conviction and

sentence recorded by the learned lower court is hereby set aside.

The appeal is allowed. The appellant is under custody. Hence, he is

directed to be released forthwith, if not wanted in any other case.

(Aditya Kumar Trivedi, J)
Surendra/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 25.10.2019
Transmission Date 25.10.2019

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