IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.577 of 2015
Arising Out of PS.Case No. -167 Year- 2011 Thana -BEGUSARAI TOWN District- BEGUSARAI

1. Moti Singh Son of Sudarshan Singh,

2. Sudarshan Singh, Son of Late Mahendra Singh, Both resident of Village –

Tekanpura, P.s. – naokothi, District – Begusarai. …. …. Appellant/s
Versus
1. The State of Bihar …. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 22-06-2018

Appellants, Moti Singh and Sudarshan Singh have

been found guilty for an offence punishable under Section 366 IPC

and each one has been sentenced to undergo RI for 5 years as well as

to pay fine of Rs. 5000/- and in default thereof, to undergo SI for 2

months additionally and further appellant, Moti Singh has

independently been found guilty for an offence punishable under

Section 376 IPC and sentenced to undergo RI for 7 years as well as to

pay fine of Rs. 5000/-, in default thereof, to undergo SI for 2 months

additionally with a further direction to run the sentences concurrently

vide judgment of conviction dated 19.08.2015 and order of sentence

dated 26.08.2015 passed by Additional Sessions Judge-1st , Begusarai

in Sessions Trial No. 53/2014.

2. PW-1, Vijay Rai filed a written report on

30.04.2011 divulging the fact that on 25.04.2011, he along with his

wife proceeded to Katyayani Asthan to worship leaving his minor
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 2

daughter, victim-PW 4, (name withheld) aged about 15 years, alone.

His sons had gone to market. During intermediary period, Sudarshan

Singh and his sons, Hira Singh and Moti Singh came over an

Ambassador Car and disclosed to his daughter that her parents met

with an accident in a way to Khagaria and so, to rush immediately

carrying money and other items whereupon, his daughter took out Rs.

90,000/- and ornaments weighing 5 Bhars and accompanied them

over the Ambassador Car. It has also been disclosed that money was

sale proceed of a land. When he returned back on 26.04.2011 along

with his wife, he found his daughter missing. He had also found cash,

ornaments missing. Then they began to search out and during course

thereof, they were told by their neighbours that Moti Singh took her

away over a car. Then, he began to make hectic search and during

course thereof, he came to know that Moti Singh with the help of his

brother and father took her away with ulterior motive as well as to

digest the cash, ornaments.

3. On the basis of the aforesaid written report,

Begusarai Town PS Case No. 167/2011 was registered followed with

an investigation during course of which, victim was traced out,

accused persons were apprehended and then, completing the

investigation, charge-sheet was submitted facilitating the trial meeting

with the ultimate result, subject matter of the instant appeal. It is also

evident from the lower court records that after submission of charge-
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 3

sheet trial of Hira Singh, on account of non appearance was bifurcated

vide order dated 21.12.2013.

4. 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 also been pleaded that the

victim, who happens to be major, was in love with Hira Singh with

whom she married but subsequently, when she found him to be an

idiot, pressurized upon other family members to have her settlement

with Moti Singh which was refused and on account thereof, this false

case has been instituted at the instance of the victim by her father.

Furthermore, apart from ocular evidence, documentary evidence has

also been made exhibit in support thereof.

5. In order to substantiate its case, prosecution had

examined altogether 10 PWs out of whom PW-1, Vijay Roy, PW-2,

Shivjee Sahni, PW-3, Anmola Devi, PW-4, Victim, PW-5, Dinesh

Kumar Sinha, PW-6, Ajay Kumar Ajnabi, PW-7, Birendra Kumar,

PW-8, Dr. Arun Kumar, PW-9, Dr. Ram Pravesh Prasad and PW-10,

Dr. Kamini Roy, as well as had also exhibited signature of informant

over written report as Ext-1, signature of victim over statement

recorded under Section 164 CrPC as Ext-2, Formal FIR as Ext-3,

Medical Report, Ext-4. In likewise manner, 3 DWs have been

examined, namely, DW-1, Kaushlendra Rai, DW-2, Ram Babu Singh

and DW-3,Ram Sagar Singh along with Ext-A, final form relating to
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 4

Naokothi PS Case No. 117/2011, Ext-B, protest petition relating to

Naokothi PS Case No. 69/2014, Ext-C, FIR of Naokothi PS Case No.

117/2011, Ext-D, Endorsement over FIR of Naokothi PS Case No.

117/11.

6. While assailing judgment of conviction and sentence,

learned counsel for the appellants has submitted that from the

materials available on the record, it is crystal clear that (1) victim was

major, (2) she was a consenting party, (3) she married with Hira

Singh, (4) finding him to an idiot pressurized upon other family

members to have settlement with Moti Singh. The aforesaid

eventualities are found from the conduct of the witnesses as

father/informant (PW 1) had pecked over the initial prosecution

version and further, supported the plea made on behalf of defence

which is found going to root of the case adversely affecting upon the

credibility of the PW-3, mother and PW-4, the victim. Furthermore,

from the evidence of the victim, it is evident that her conduct, being a

silent spectator availing the company of the accused persons without

any protest or grievance or any kind of activity exposing her

delineation with the accused, being major, did speak a lot whereupon,

the finding of the learned lower court is not at all found maintainable.

Apart from this, PW-10 had found the hymen old rupture, that means

to say, very much indulgence of sexual activity at an earlier occasion

is another circumstance which rules out the allegation as advanced at
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 5

the end of the victim. From the evidence of PWs-8 and 9 it is manifest

that the victim happens to be major on the alleged date and time of

occurrence. Furthermore, It has also been submitted that PW-7,

Investigating Officer had recovered the victim from the house of the

appellants and at that very time, the activity of the victim was not at

all perceived in a way to corroborate that she was illegally confined

and she had taken a fresh breath after having been recovered.

Moreover, even during course of investigation, it has been collected

by the Investigating Officer that the victim was in love with Hira

Singh.

7. On the other hand, learned APP supported the finding

recorded by the learned lower court and submitted that in a rape case,

the evidence of victim has got primacy and unless and until there

happens to be cogent reason visualizing therefrom to discredit the

version, the same has to be accepted. That being so, the judgment of

conviction and sentence recorded by the learned lower court is fit to

be affirmed.

8. In order to appreciate the evidence having been

adduced on behalf of prosecution, the conduct of the witnesses is also

to be perceived. PW-2 has not supported the case of the prosecution

whereupon, he was declared hostile. Even thereafter, prosecution has

not been able to extract any material gain in its favour. PW-5 is the

part Investigating Officer who had simply prayed before the learned
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 6

lower court for issuance of proclamation against accused Moti Singh.

In likewise manner, PW-6 also happens to be part Investigating

Officer who had simply submitted charge-sheet against the accused.

9. PW-1 is the informant/father of the victim. He had

deposed that on the alleged date and time of occurrence he along with

his wife Anmola Devi had gone to Katyayani Asthan to perform

rituals leaving behind his daughter (name withheld) aged about 18

years alone at the house. When he returned back at about 10.30

AM/(notes as PM), he found his daughter absent and for that, he made

hectic search and during course thereof, he came to know that three

persons have taken away his daughter over an Ambassador Car on the

pretext that her parents have met with an accident at Khagaria and to

facilitate proper treatment, she has to carry cash, ornaments. He found

Rs. 90,000/- as well as gold ornaments weighing 5 Bhars missing. The

aforesaid information was given by Hira Singh. Then had stated that

after 15 days, he came to know that Hira Singh is residing with the

victim at Dhanbad wherefrom, Hira Singh had telephonically

conversed with him and said that you have nothing to worry, they are

at Dhanbad over which, he instructed Hira Singh to come along with

the victim and he arrived along with the victim as per his instruction.

Then thereafter, he had informed the police. Munshi (literate

constable of the police station) scribed the application over his

dictation whereupon, he had put his signature (exhibited). Then
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 7

thereafter, he was declared hostile by the prosecution and during

course thereof, relevant portion of the written report was confronted to

him which he admitted and then had denied the suggestion that

coming in collusion with the accused, given out relevant crucial

allegation having been attributed against the accused, so levelled at

his end. During cross-examination at para-5, he had stated that they

have left the victim alone at his house. In para-6, he had further stated

that none had disclosed with regard to presence of the accused persons

as well as number of the car. In para-7, he had stated that in the

written report he had mentioned the names of other accused, apart

from Hira Singh on mere suspicion. In para-8, he had stated that Hira

Singh had not come to his place along with the victim rather he had

gone to his village-Tekanpura wherefrom police recovered the victim.

In para-9, he had further disclosed name of only Hira Singh to be her

kidnapper. In para-10, he had stated that the victim had handed over

cash and ornaments to Hira Singh. In para-11, he had stated that he

had identified the accused being a relative.

10. PW-3 is the wife of PW-1 as well as mother of the

victim. During her examination-in-chief, she had stated that she along

with her husband had gone to Katyayani Asthan for performing

worship on the alleged date and time of occurrence leaving behind the

victim at her house. On their return, they have not seen the victim

whereupon, began to search out and during course thereof, the persons
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 8

of the surroundings have disclosed that Moti Singh, Sudarshan Singh

and Hira Singh came over an Ambassador Car and took away the

victim. They also took away Rs. 90,000/- as well as ornaments

weighing 5 Bhars. They took away the victim on the pretext that her

parents have met with an accident at Khagaria. Then thereafter, they

made hectic search. About 10-15 days thereafter, she got an

information that the victim is being kept at the place of Phua of Moti

Singh. Then thereafter, Moti Singh shifter her to Tekanpura. As case

was instituted, on account thereof, the police had gone to the place of

accused at village, Tekanpura and recovered the victim from the

house of Sudarshan Singh. Identified the accused. She had further

disclosed that at the time of kidnapping the age of the victim was 16-

17 years. During cross-examination at para-6, 7, 8 she had stated that

her husband happens to be four brothers. All are separate and are

residing independently. In para-9, she had stated that they have gone

to Katyayani Asthan leaving the victim alone as no other members are

in the family. In para-12, she had stated that her daughter left study

about 6 years ago, after passing Class-VII. In para-14, she had

disclosed that she is not remembering the names of those persons who

have had disclosed regarding the occurrence. In para-15-16, she had

detailed with regard to presence of Rs. 90,000/- cash as well as

ornaments. In para-17, she had stated that she is unable to disclose

mobile number by which the victim had talked with her. In para-18,
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 9

she had stated that she received another call regard ing presence of the

victim at Tekanpura. In para-20, she had stated that she is unable to

disclose with regard to habitat of Hira Singh. In para-23, she had

stated that after recovery of the victim, the victim has come to her and

then disclosed that why marriage has been performed with an insane

person. She has further disclosed that Moti Singh forcibly got her

married with Hira Singh. Moti happens to be brother of Hira Singh. In

para-24, she had denied that her daughter had tried to negotiate with

Moti even after solemnization of marriage with Hira. In para-26, she

had stated that her daughter has not gone to her Sasural after her

recovery. At para-27, she had stated that at the time of occurrence, her

daughter was aged about 16-17 years. Then had denied suggestion

that it is wrong so say that the victim was aged about 18-19 years and

was a major. She had also denied the suggestion that when they came

to know that Hira Singh was an idiot, they tried to get marriage of the

victim with Moti Singh and as the accused persons refused, on

account thereof, this false case has been registered.

11. PW-4 is the victim. She had deposed that on the

alleged date and time of occurrence, she was alone at her house as her

parents had gone to Katyayani Asthan. At that very time, Moti Singh,

Sudarshan Singh and Hira Singh came inside her house. They came

over an ambassador car. Out of them, Moti Singh disclosed that her

parents have met with an accident at Khagaria so, she should leave the
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 10

place at once along with cash, ornament whichever may be.

Accordingly, she collected Rs. 90,000/-, gold ornaments weighing 5

Bhars (detailed) and accompanied them over ambassador car. They

took her Khagaria where confined in a room. Then thereafter,

Sudarshan and Hira left the place keeping Moti Singh along with her.

During course of confinement, Moti committed rape so many times.

On the following day, Sudarshan and Hira again appeared and then

took her along with Moti to Teghra Vidyapeeth Mandir where in spite

of her protest, got her marriage performed with Hira. Then thereafter,

all of them took her to Dhanbad, place of Phua of Moti where she was

kept for 12-14 days. Moti and Hira both forcibly committed rape. She

tried to escape but Phua, Phupha and Moti Singh were so vigilant that

her attempts went futile. Then thereafter, they came to know about

institution of a case at the end of her parents whereupon Moti and

Hira took her to their house Tekanpura where she was kept for four

days. She was ruthlessly treated at that very place. Once upon a time,

Moti tried to set her on fire. Moti also raped her during stay at

Tekanpura. After four days, the police rescued her. She was taken to

the place of Superintendent of Police and then to police station. On

the following day, she was taken to court where her statement was

recorded (exhibited). She was medically examined and then, she was

handed over to her parents. Identified the accused. During cross-

examination at para-7, she had stated that she read up to Class-V. In
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 11

2006, she had passed Class-V. At that very time, she was

approximately aged about 13-14 years. In para-8, she had stated that

accused persons are residents of different village. They were not on

visiting terms. For the first time, she came to know about their names

after the occurrence. In para-9, she had stated that for the first time,

they came at their house on the date of occurrence and putting belief

upon their words, she joined them. At that very time, she was alone.

Then at para-11, 12, 13 there happens to be cross-examination relating

to availability of the cash, ornaments. In para-14, she had stated that at

the time of departure, she had not talked with any of the neighbours.

In para-16, 17, 18, 19, there happens to be cross-examination over

location of her house, road connecting her house. In para-20, she had

stated that her elder sister, Rakhi Kumari is married with one Bittu

Singh of Village- Mathurapur. She had further stated that accused

persons are not related with her brother-in-law. In para-23, she had

denied the suggestion that her brother-in-law, Bittu happens to be

cousin brother of Hira. At para-24, she had denied the suggestion that

during course of visit to the place of her brother-in-law, she got

intimated with Hira Singh. In para-25, she denied the suggestion that

she had fallen in love with Hira. In para-26, she had denied the

suggestion that in the aforesaid background she married with Hira at

Ashok Dham. In para-27, she had admitted that it is true that

Sudarshan, Moti and Hira forcibly took her to Vidyapeeth and then
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 12

got herself married with Hira against her will. In para-27, she had

denied the suggestion that it is not a fact that after forcibly marrying

her, Hira took her to his house where, his father was not inclined to

keep her but at the intervention of the people of the locality, he

permitted. In para-29, she had further stated that Hira happens to be an

idiot and further is stammering. Then had denied the suggestion that

seeing the status of Hira, her parents wanted to marry her with Moti.

Then at para-31, 32, 33, 34 she had stated that she had gone to

Khagaria by Ambassador Car. Before that she had not gone to

Khagaria. In Khagaria, she was kept for two days. In para-35, she had

disclosed that after forcibly committing rape upon her there was

bleeding but, it had not stained her clothe. In para-36, she had stated

that in the same clothe she was taken to Vidyapeeth and then Dhanbad

and then Phua of Moti provided clothe to her. In para-38, she had

stated that Hira had raped her for two days while Moti had raped for

7-8 days. In para-41, she had stated that she came at Tekanpura from

Dhanbad. Mother of Moti forced her to wear Sari. In para-42, she had

stated that after arrival of police at Tekanpura, she was taken away by

the police. She had stated that her medical examination was conducted

after 5-6 days of sexual intercourse by the accused persons. Then had

stated that she had got no information with regard to medical

examination. In para-47, she had disclosed that police had recovered

her on 01.05.2011. Then had denied the suggestion that before the
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 13

police, she had not stated with regard to commission of rape. Then

had denied the suggestion that no occurrence as alleged had taken

place. She had denied the suggestion that no one had indulged in

physical relationship with her. Then had denied the suggestion that it

is not a fact that she was in love with Hira and she married out of her

sweet will. Because of the fact that Hira was stammering and was an

idiot, on account thereof, her parents tried to marry her with Moti

Singh and for that, they pressurized and as they declined, on account

thereof, this case has been instituted.

12. PW-7 is the main Investigating Officer who had

deposed that after registration of the case, he took up investigation,

recorded further statement of the informant, inspected the place of

occurrence which happens to be house of the informant and detailed

the same. He recorded the statement of mother of the victim and

others. Recovered the victim from the house of the accused. Recorded

her statement, got her medically examined. Recorded statement of

other witnesses and then thereafter, as he was transferred, he handed

over the investigation to another Investigating Officer. During cross-

examination, at para-13, he had stated that in the written report there

was specific discloser regarding age of the victim to be 15 years but

he had no demanded any document in support thereof. In para-14, he

had stated that he had not tried to locate the ambassador car. He had

not procured cash memo of the ornaments. He had not investigated
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 14

over Rs. 90,000/-. Then had stated that he had gone to visit place of

occurrence on 01.05.2011 wherefrom the victim was kidnapped. Then

at para-26, 27, 28 there happens to be examination with regard to

recording of the facts incorporated in the relevant paragraph of the

case diary. Then had denied the suggestion that his investigation

happens to be farce.

13. PW-8 is the doctor who had conducted X-ray of the

victim and further he had also disclosed the findings of the medical

board with regard to age of the victim in between 18-19 years. PW-9

is another doctor, member of the board who also affirmed the findings

of the medical board regarding age of the victim to be 18-19 years.

14. PW-10 is the Gynaecologist who during course of

examination of the victim, apart for other, had found the hymen old

ruptured. However, opined that no evidence of rape is found.

15. At the defence side, there happens to be Ext-A, Final

form relating to Naokothi PS Case No. 117/2011 having been at the

end of Krishna Arjun Singh @ Jhulan Singh, Ext-B happens to be

protest petition relating to Naokothi PS Case No. 69/2014 wherein

informant happens to be accused Sudarshan Singh and the date of

occurrence relating thereto happens to be 29.02.2012 and for that,

Complaint Case No. 636C/2013 was filed in the year 2013

whereunder the members of the prosecution party including that of

victim have been shown as accused at Sl No. 6, 7 and 8, Ext-C
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 15

happens to be an FIR of Naokothi PS Case No. 117/2011 instituted at

the end of Krishna Arjun Singh wherein date of occurrence has been

shown as 10.11.11. wherein it has been alleged that Amardarshan

Singh @ Hira Singh, one of the accused of this case had kidnapped

his daughter, Munni Kumari aged about 11 years. DWs-1 and 2 are

formal in nature while DW-3 has been examined over the inter se

relationship in between Bittu Singh and Hira Singh and the prevailing

love affair in between Hira and the victim.

16. From the evidence having produced at the end of the

prosecution, it is apparent that father of the victim, PW-1 had leaned

in favour of accused and further encircled the absconding accused

Hira Singh exonerating the present accused and on that very score, he

had stated that these persons have been named on mere suspicion.

PW-3, the mother did not opt to support the evidence of PW-1 and on

account thereof, she stood adverse, and further, reiterated the

allegation whatsoever she gathered from the victim after her recovery.

During cross-examination, it is apparent that on that very score,

defence could not be able to shake her testimony. PW-4 is the victim

herself and she narrated the event. She narrated as to how she was

treated like sex slave in spite of forcibly married with Hira Singh by

Hira and Moti Singh. Furthermore, defence had not dare to test this

witness on the score of horrifying situation which this victim faced at

Khagaria, Dhanbad and at Tekanpura. There happens to be no cross-
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 16

examination at the end of the defence, even considering that up to

Khagaria, she was taken in deceptive manner and further, whether

she made any effort to raise alarm or to have herself rescued by

attracting the passersby by her gesture or posture and that being so, it

could not be said that her activity suggests that she was a consenting

party even in the background of the fact that more or less, her status

being major is found properly appreciable. The only even whatever

been perceived against her is joining with the accused whom she met

for the first time, but the manner whereunder accused presented

themselves giving no time to analyze the situation, being semi literate

girl, is another circumstance to keep in mind.

17. Furthermore, finding of the doctor (PW 10),

Gynaecologist, that her hymen was old ruptured is also suggestive of

the fact that in past, she was subjected to sexual intercourse and

further there happens to be no cross-examination at the end of the

defence that rupture of hymen could be caused by other processes.

18. After scrutinizing the evidence, it is apparent that

though at an initial stage presence of Sudarshan Singh has also been

shown but subsequently, his absence speaks a lot and on account

thereof, doubt has arisen over his active involvement during course of

aforesaid occurrence whereupon, the conviction and sentence

recorded against him by the learned lower court is set aside. This

appeal to the extent of appellant, Sudarshan Singh is allowed. As he is
Patna High Court CR. APP (SJ) No.577 of 2015 dt.22-06-2018 17

on bail he is discharged from the liability of the bail bond.

19. So far appellant Moti Singh is concerned,

prosecution has succeeded in proving its case beyond the reasonable

doubt, that being so, the instant appeal to his extent is found meritless,

consequent thereupon, is dismissed.

20. Appellant, Moti Singh is on bail, his bail bond is

cancelled directing him to surrender before the learned lower court

within a fortnight to serve out the remaining part of sentence failing

which the learned lower court will be at liberty to proceed against the

appellant in accordance with law.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE N/A
Uploading Date 26.06.2018
Transmission 26.06.2018
Date