IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.274 of 2009
RABINDRA PANDIT son of Mishri Pandit, R/O village-Mangrar, PS,
Laxmipur, Distt-Jamui. … … Appellant/s
Versus
STATE OF BIHAR … … Respondent/s
Appearance :
For the Appellant/s : Mr. Amit Narayan, Advocate
Mr. Brajesh Sahay, Advocate
For the Respondent/s : Mr. Parmeshwar Mehta, APP
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
13-12-2018 Appellant, Rabindra Pandit has been found guilty for
an offence punishable under Section 376 of the IPC and
sentenced to undergo RI for 7 years by the learned Sessions
Judge-Jamui vide judgment of conviction and order of sentence
dated 17.03.2009 passed in connection with Sessions Trial No.
417/2005.
2. As is evident from the record, victim (name
withheld) filed complaint petition before CJM, Jamui bearing
Complaint Case No. 262C/1997 alleging inter alia that in the
midnight of 16.06.1997 while she has gone to meet nature’s call
near a jackfruit tree, the appellant/accused who happens to be
her Devar, caught hold of her and then he raped. On hue and cry,
her daughter came and has seen the occurrence. The accused
also threatened of dire consequence, in case the matter is
reported to any legal authority.
3. After registration of Laxmipur PS Case No.
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156/1997 investigation was taken up and after concluding the
same, final report was submitted whereupon, informant was
noticed but even after lapse of so many years she did not turn up
whereupon lastly, vide order dated 10.09.2004, learned CJM
after rejecting the final report, took cognizance of an offence
punishable under Section 376 IPC and summoned the petitioner
to face trial which ultimately concluded by way of recording
finding of guilt and sentence impugned, subject matter of the
instant appeal.
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 further been pleaded that
this case has been filed by the informant at the instance of her
husband who in order to grab the property of one Sushila Devi
wife of late Maheshwar Modi, has developed some sort of
intimacy with her and in the aforesaid background, began to
keep her in the house occupied by joint family as a concubine
which has been resisted by the appellant. In order to substantiate
the same, one DW has also been examined.
5. Altogether three PWs have been examined on
behalf of prosecution who are PW-1, Shivani Kumar, PW-2,
Victim, PW-3, Keshav Tanti, a formal witness. Side by side has
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also exhibited Ext-1, Protest Petition, Ext-2, Formal FIR. As
stated above one DW, namely, Dhondhi Yadav has been
examined on behalf of defence.
6. PW-1 has stated that at the time of occurrence she
was sleeping. Her mother had gone to meet nature’s call near the
jackfruit tree where the accused/appellant caught hold of her
and committed sin. After hearing shout of her mother, she
rushed and had seen Rabindra engaged in committing sin
whereupon, she began to weep. Later on, Ravindra threatened
her as well as her mother of dire consequence in case the matter
is reported to the police. Identified the accused. During cross-
examination at para-3, she had stated that her father, Basudeo
Pandit has three brothers. All the brothers are residing separately
having separate house. Then had disclosed the boundary of her
house, North-house of Phuleshwar Pandit, South-Barren land of
Sharif Yadav and Nago Yadav, East-land of Nago Yadav, West-
house of Vimal Pandit. She had also stated that the house of
Ravindra Pandit lies away from her house. Then had shown
boundary of house of Rabindra Pandit as North-Barren land,
South-house of Birendra Pandit, East-road and West- Houses of
Birendra Pandit and Vimal Pandit. She had also stated that her
grand-father, Mishri Pandit resides separately having boundary
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of house as North-barren land, South-orchard, East-house of
Natho Pandit and West-barren land. At para-4, she denied the
suggestion that all the family members including Mishri Pandit
resides in common house. She disowned to identify one Sushila
Devi wife of late Maheshwar Modi. In para-6, she had stated
that at the time of occurrence only two persons were available at
her house, she along with her mother. On alarm raised by her
mother so many villagers came but she is unable to disclose
their name. Her mother returned back after an hour. So many
persons came at her house but she is unable to disclose their
identity. Her house lies at the distance of 200 yards from the
jackfruit tree. At para-7, there happens to be contradiction
relating to whatever been deposed by her during her
examination-in-chief happens to be material development. Then
has denied the suggestion that she has falsely deposed.
7. PW-2 is the victim. She had stated that on the
alleged date and time of occurrence, she woke up after hearing
barking of the dogs and then thereafter, she came out from her
house to meet nature’s call. When she came near jackfruit tree,
Ravindra caught hold of her and indulged in scuffle. She tried to
raise alarm whereupon her mouth was gagged. Then she was
forced to lie down and then, he committed rape. Anyhow, she
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raised alarm whereupon, her daughter, Shivani came. After
coming of Shivani, accused left her. At that very time, accused
had threatened of dire consequence if the matter is reported to
police. She had further stated that on the following day she had
gone to the police station where Darogaji had directed her to go
to the court. Then she approached the learned counsel, divulged
the incident whereupon, he drafted complaint, read over to her
and finding it correct, she put her thumb impression. Identified
the accused. In para-4, there happens to be cross-examination
with regard to status of the family. She had further disclosed that
she happens to be mother of five daughters and two sons. She
has further stated that her eldest daughter and son were at
Nanihal while Shivani and Lalita were along with her. She had
also disclosed that after the occurrence, she had begotten three
more children. In para-5, she had also admitted presence of
three siblings of the accused and in likewise manner, two sons
and three daughters to another Devar. At para-6, she denied the
suggestion that all of them are residing in a common house.
Then had denied with regard to existence of one Sushila Devi
wife of Late Maheshwar Modi and in para-9, she denied the
suggestion that her husband had developed some sort of
intimacy with her and in order to grab her property, he used to
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bring her at the house which was resisted by the accused
whereupon, at the instance of her husband, this case has been
filed. In para-10, she had stated that after occurrence so many
persons came but as she was perturbed so, she could not identify
them. She had further stated that on the following morning, she
became relaxed. When the villagers came at the morning, she
was not present as, she had already left for police station and so,
has not met with them. She had not made written complaint at
police station. There was one sepoy who disclosed that as
Darogaji is not present, so you should go to the court.
Accordingly, she came to the court with the clothe which she
was wearing at the time of occurrence. She had shown the
clothe to the learned Magistrate. She had further stated that
learned Magistrate had not directed for medical examination.
8. PW-3 is the formal witness. DW-1 has been
examined on the score that all the family members are residing
in a common house under the guardianship of Mishri Pandit,
father -in-law of the informant.
9. After perusal of the lower court record, it is
evident that there happens to be no remark of the learned CJM
that the victim had produced any clothe. In likewise manner, the
order is completely silent whether there was any petition at the
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end of the victim praying therein to get herself examined by the
doctor. That means to say, there happens to be complete absence
of any step at the end of the victim to have corroborative piece
of evidence in support of allegation.
10. Furthermore, it is evident from the evidence of
PW-1, that there happens to be barren land available adjacent to
the house of the victim. It was the dead of night as, the time has
been disclosed as 12 midnight to 1:00 AM. Instead of going to
the adjoining open land, covering a distance of 200 Yards that
too without any source of light, being a rainy season (month of
June) prone to insects/reptiles, was really a probable story and
further, from the evidence of PW-1 itself, it is evident that the
house of the accused was at a long distance, then in that event, it
is very improbable to accept that accused was knowing since
before that at about midnight the dog will bark, whereupon, the
victim (PW 2) will come out from her house and instead of
utilizing the barren land having in boundary of her house will
choose to cover 200 yards, will come to near jackfruit tree
where, he could rape her. The aforesaid improbability could be
seen through another angle. As per prosecution case, the victim
and her daughter PW-1 was alone in her house. Accused is her
Devar. Had there been his inclination to rape her, there was
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every opportunity available to him to commit rape as, at 2 sides
of her house, there was barren land having a proper access.
11. Apart from this, during course of investigation,
the final report was submitted by the I.O. Informant was
noticed, that had gone unresponded for years together and the
order of cognizance is peculiar as, it has been incorporated
therein that perused the FIR, Case Diary as well as protest
petition, contradictory to each other. Apart from this, the I.O.
has not been examined which has caused serious prejudice to
the interest of the appellant, more particularly, in the
background of the fact that had there been examination of the
I.O. the material contradiction visualizing from the evidence of
PW-1 as well as the objective finding relating to place of
occurrence, the distance in between the house of the victim as
well as the alleged P.O. near the jackfruit as well as distance in
between house of informant to accused, distance in between
house of accused to jackfruit tree could not come, which has got
a serious impact.
12. Thus, the totality of the event did not justify the
finding recorded by the learned lower court. Consequent
thereupon, the same is set aside. Appeal is allowed.
13. Since the appellant is on bail, he is discharged
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from the liability of bail bond.
(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 17.12.2018
Transmission Date 17.12.2018