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Rabindra Pandit vs State Of Bihar on 13 December, 2018

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.
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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
Patna High Court CR. APP (SJ) No.274 of 2009 dt.13-12-2018
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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

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