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Ram Babu Das vs The State Of Bihar on 29 August, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.44 of 2016
Arising Out of PS. Case No.-62 Year-2013 Thana- KHUSRUPUR District- Patna

Ram Babu Das S/o Dilip Das, Resident of Safipur, P.S Khusrupur, Dist Patna

… … Appellant
Versus
The State Of Bihar

… … Respondent

Appearance :

For the Appellant/s : Mr. Sheikh Arkan Ahmad, Adv.
For the Respondent/s : Mr. Binod Bihari Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 29-08-2019
Appellant Ram Babu Das has been found guilty for an

offence punishable under Sectionsection 376 I.P.C. and sentenced to

undergo R.I. for ten years as well as to pay a fine of Rs.10,000/-

and in default thereof, to undergo R.I. for six months vide the

judgment of conviction dated 24.11.2015 and the order of sentence

dated 27.11.2015 passed by the Addl. Sessions Judge IV, Patna

City in S.Tr.No. 282/2014 arising out of Khusrupur P.S.Case No.

62/2013.

Victim, name withheld (P.W.1) filed a written report on

3.8.2013 on an allegation that in the preceding night (2.8.2013) at

about 8 P.M. while she was cleaning utensils outside her rented

house lying at village Ganichak, all of a sudden, one person came

to her and disclosed that his father is a Bhagat and so, got herself

treated by him. Putting faith upon him, she accompanied. When
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they came near Saafipur, he took her inside an abandoned house,

where she was forced to lie down and committed rape on her. After

commission of rape, he left her. During course of taking her away,

he has disclosed his name as Ram Babu Das, son of Dilip Das of

village Saafipur, P.S. Khusrupur, District Patna. It is also to be

noted that the victim has also disclosed her address as- wife of

Dilip Sah of village Saafipur, P.S. Khusrupur, District Patna.

After registration of Khusrupur P.S.Case No. 62/2013,

investigation commenced and after concluding the same, charge

sheet has been submitted, facilitating the trial, meeting with

ultimate result, subject matter of the instant appeal.

The 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 of innocence. It has further been

pleaded that in the background of prevailing animosity in between

the husband of the victim with the accused, this false case has been

instituted. However, nothing has been adduced in defence.

Altogether 7 P.Ws. have been examined on behalf of the

prosecution, who are P.W.1 victim, P.W.2 Rita Devi – mother-in-

law, P.W.3 Sandeep Sah- Dewar, P.W.4 Dilip Sah- husband, P.W.5

Dinesh Kumar Singh- I.O., P.W.6 Dr. Nisha, who was one of a

member of the Board being Gynecologist, who had examined the
Patna High Court CR. APP (SJ) No.44 of 2016 dt.29-08-2019
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victim and P.W. 7 Dr. Arif Abdullah, who had examined the

accused. Side by side, also exhibited Ext.1 written report, Ext.2

endorsement over the written report, Ext.3 Medical report, Ext.4

Formal F.I.R., Ext.5 a FSL report, Ext.6 statement of the victim

recorded under Sectionsection 164 Cr.P.C. and Ext.7 medical report

relating to the appellant- accused Ram Babu Das. As stated above,

nothing has been adduced on behalf of the defence.

Learned counsel for the appellant while assailing the

judgment of conviction and sentence has submitted that the finding

so recorded by the learned lower court happens to be based upon

flimsy materials. In order to substantiate the same, it has been

submitted that from the evidence of P.W.4 the husband, it is

apparent that whatever he has corroborated in the written report is

based upon the information given by the victim. That means to say,

the victim alone was at the Ganichak and from there, she was

taken away. At the Ganichak she had not shown presence of any of

the witness. Only to introduce the presence of the other witnesses,

the place has been shifted from Ganichak to Saafipur and for that,

no explanation is there. If the aforesaid change of the P.O. is

properly appreciated, then, in that circumstance, the victim being

major, did not put any hesitation to join the company of the

appellant, indulged in sexual activity without any protest that too,
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when she had on her own disclosed that she was necked at the time

of commission of rape is indicative of the fact that she was a

consenting party. In order to give additional support, it has also

been submitted that the victim had not disclosed that in the alleged

house where rape was committed, she was dragged, she was

caught hold of, there was any kind of threatening using weapons,

that means to say was appellant in a position to allure, took her

against her will, committed rape on her or indulged in sexual

activity insidiously against her will or consent.

It has also been submitted that the victim herself has

shown native of village Saafipur. The appellant is also resident of

village Saafipur. Then in that circumstance, the appellant would

have properly been identified by the victim and so, there was no

occasion for the victim to say that during course of conversation

he had disclosed his identity as Ram Babu Sah, son of Dilip Sah,

resident of village Saafipur, P.S. Khusrupur, District Patna.

Then, it has been submitted that had the victim been not

a consenting party, there was no occasion for her to accompany a

stranger on mere asking that too in night without any pre-

information or prefixing of time to accompany him to his place

where some sort of occult exercise was to be carried out. The

aforesaid eventuality is indicative of the fact that the appellant was
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known since before, victim was a consenting party and anyhow

her family members came to know on account thereof, only to

have safeguard upon her interest got this case filed putting false

and frivolous allegation.

Further more, it has also been submitted that in changed

scenario that means to say, projecting the victim to be present at

village Saafipur, even then, the story so advanced appears to be

improbable. Presence of the appellant was not at all prefixed,

rather he came on surprise, talked with her mother-in-law P.W.2,

during midst thereof the victim intervened and said that she is

suffering from headache and then followed the appellant along

with the mother-in-law who returned back after covering some

distance, is another circumstance to suggest that the victim was a

consenting party otherwise, as disclosed she had not accompanied

the appellant in such manner.

In the aforesaid background it has been submitted that

when the evidence of P.W.5 the I.O. is being taken, it is apparent

that during his examination-in-chief he failed to properly

acknowledge the place of occurrence, though, during cross

examination at paragraph 9 he had stated that it was the half

constructed house of Radhey Rai but, nothing incriminating has
Patna High Court CR. APP (SJ) No.44 of 2016 dt.29-08-2019
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been found during the inspection of the P.O. suggesting

commission of any offence.

It has further been submitted that in the aforesaid facts

and circumstances of the case, presence of semen has got no

relevancy, nor it would be an evidence of rape rather, in the facts

and circumstances of the case, could be coitus. That being so, the

judgment of conviction and sentence recorded by the learned

lower court should be set aside.

Learned Addl. P.P. vehemently opposed the submission

having made at the end of learned counsel for the appellant and

has submitted that finding so recorded by the learned lower court

is based upon the materials having available on the record.

Consequent thereupon, the appeal is fit to be dismissed.

P.W.7 is the doctor, who had examined the accused on

3.8.2013 and during course thereof, also prepared slide and the

same was examined by Microbiology Department, PMCH

wherefrom the report has been sent showing absence of

spermatozoa. However, during the course of examination, had not

disclosed for what purpose slide was prepared.

P.W.6, a Gynecologist had examined the victim on

3.8.2013 and during the course of physical examination she had

not found any abnormality/ wound including that on genital and in
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likewise manner also could not found during the course of internal

examination. Vaginal swab was taken and sent to Microbiology

Department and as has been reported, semen has been found. In

likwise manner, Ext.5, FSL report also supports the presence of

semen over the petticot and so, indulging in sexual intercourse by

the victim is found duly substantiated.

Now the question for proper adjudication is whether it

was consensual on rape.

P.W.1 is the victim. She during course of her

examination-in-chief has stated that the occurrence is dated

2.8.2013 at about 8.00 P.M. At that very time, she was cleaning the

utensils at the darwaja of her house lying at village Saafipur. At

that very time, Ram Babu Das came and began to talk with her

mother-in-law and further, inquired about her health. Her mother-

in-law had disclosed that she is not feeling well. Even having

shown to different doctors, she could not found cured over which

he disclosed that his father is Ojha and so kindly see him. As, she

was also feeling unwell and so, she also volunteered. Then

thereafter Ram Babu Das accompanied her. He has taken her to

Baanstal, at an abandoned house, where she was undressed and

then, she was raped. At that very time, she was threatened that in

case of alarm she will be strangulated. After committing rape, he
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escaped therefrom. Then, she came back to her house and

disclosed the event to her husband, mother-in-law and Dewar.

Thereafter, they all took her to Khusrupur Hospital where, her

husband written an application on her dictation and then,

submitted. She had put her RTI over the same. Then she was taken

to hospital where the lady doctor examined her. Then, she was

taken to court where her statement was recorded before the

Magistrate. Police had also examined her, identified the accused.

During cross-examination at paragraph 4 she had stated

that she resides in a rented house. Fasleti Ram is the landlord. The

landlord also resides in the same house. Again changed that her

shop is situated in the rented house whole, she resides in her own

house. Her own house is at village Saafipur. The rented house

happens to be at village Ganichak. Her husband has hardware

shop. The shop is opened at 10 A.M. and closes at 4 P.M. She has

further stated that she had not gone to the shop, so she is unable to

disclose the distance. In para 5 she has stated that on the alleged

date and time of occurrence, she was at her house. At that very

time, her mother-in-law Rita Devi, Dewar Sandeep Sah and

husband Dilip Sah were present. In para 7 she has stated that she is

suffering from some sort of illness for the last two years. Then she

disclosed that she was suffering from headache. She got herself
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examined by a doctor but, she could not got cure. She is unable to

disclose the name of the doctor, the location of his clinic, she has

no prescription. In para 9 she has stated that for the last three

years, she is knowing the accused. He was not on visiting term

since before the occurrence. She had not seen him before the

occurrence. On the date of occurrence her mother-in-law and

husband disclosed his name as Ram Babu Das, son of Dilip Das.

In para 10 she has stated that Ram Babu Das came at 7 P.M. It was

dark night. At that very time, she had requested her husband and

mother-in-law to accompany. They became ready. Her mother-in-

law accompanied her. In para 11 she has stated that the place

where she was raped was Baanstal but she is unable to disclose the

name of the village. She is unable to disclose the boundary of the

abandoned house where she was raped. She is unable to disclose

the owner of the house. She is unable to disclose where it was

single storeyed or double storeyed.

In para 12 she has stated that the accused anyhow

succeeded in getting her mother-in-law returned from the midst of

way on an assurance that he will come alongwith her. Her mother-

in-law, after putting belief over his assurance, returned back. Ram

Babu had disclosed that he was taking her to village Saafipur

which is lying adjacent to the place and further, after having
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incantation, she will be taken a back. She had disclosed her

mother-in-law that on account of night, she should accompany her

but, her mother-in-law on the pretext of cooking returned back. In

para 14 she has stated that the accused had completely necked her

but she is unable to say whether the accused had dishevelled

himself or not. There was a sandy soil over the surface. As Ram

Babu had threatened to kill on account thereof she had not raised

alarm. Ram Babu was not armed with pistol, or by any weapon.

Only he threatened by saying that in case of raising alarm, she will

be strangulated. In para 15 she has stated that she is unable to say

with regard to her activity during the course being raped. In para

16 she has stated that after remaining there for five minutes she

came back to their house, disclosed the aunt and then all of them

gone to the police station. She alongwith her husband both have

given statement. The written petition was ascribed by her husband.

She remained at the police station whole night. On the next day

she was sent to the hospital. In para 17 she has disclosed that her

apparels were kept by the doctor. Then at para 19 there happpens

to be contradiction but the same happens to be not at all fully

substantiated as was not confronted to the I.O. P.W.5.

P.W.2 is the mother-in-law who during her examination-

in-chief has stated that on the alleged date and time of occurrence
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while she was sitting at her Darwaja and her daughter-in-law was

cleaning utensils, at that very time Ram Babu came and asked

about headache as she was suffering since before. She had

disclosed that now I am cured but, her daughter-in-law is suffering

from headache. On this he said that kindly allow her daughter-in-

law to accompany to his place as his father is expert in incantation,

the victim proceeded. She also accompanied her but, after

covering some distance she was persuaded to return back by the

accused on an assurance that just after incantation he will return

alongwith her daughter-in-law. Thereafter, Ram Babu took away

her daughter-in-law. After half an hour, her daughter-in-law came

weeping. On query she disclosed that Ram Babu has raped her in a

room lying a Baanstal. At that very time, the husband of the victim

as well as Dewar of the victim both were present. Then thereafter

all of them gone to the police station where, as stated by her

daughter-in-law, written report was prepared and then was

submitted before the police. Her statement was also recorded by

the police. Identified the accused.

During cross-examination at paragraph 5 she has stated

that she was knowing Ram Babu for the last five years. He was on

visiting term. After the occurrence, he has not come. Ram Babu

had done incantation once before the occurrence to her, while the
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victim was twice before the occurrence. Ram Babu used to indulge

in occulant practice at her Darwaja itself. In para 8 she has stated

that his son Dilip (husband of the victim) was at his shop lying at

village Gaanichak. He came in the night. After his arrival, he was

disclosed about the occurrence by the victim and she came after

arrival of her son. In para 10 she has stated that Baanstal is at

village Ganichak while she lives in village Saafipur. In para 12

there happens to be contradiction but the remaining part which she

has not admitted, has not been confronted to P.W.5 the I.O. In para

13 she has stated that the house of Ram Babu is lying at village

Ganichak. In para 14 she has stated that she insisted to accompany

the victim whereupon Ram Babu disclosed that whether he

happens to be a person of bad repute.

P.W.3 is the Dewar. On the alleged date and time of

occurrence he was at his house alongwith his Mammy as well as

Bhabhi. Ram Babu came and enquired from his Mammy about her

headache over which she disclosed that she is well but now her

daughtr-in-law is suffering from headache. Over this, Ram Babu

instructed his Bhabhi to accompany and then assured that she will

be cured. His Mammy accompanied his Bhabhi but she was

returned back by Ram Babu during midst of way. After 10-15

minutes, his Bhabhi came and then disclosed that she has been
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raped in a room by Ram Babu at Baanstal. At that very time, her

brother Dilip Sao has also arrived. Then thereafter all of them

came to Khusrupur Police Station where the case was instituted.

During cross-examination at para 5 there happens to be

admission at his end that he had stated before the police that his

Bhabhi was taken away by Ram Babu and who committed rape in

a lonely house and then escaped. Then there happens to be the

other parts. In para 7 he has stated that he had not accompanied his

Bhabhi. First of all his mother returned back and after some time,

his Bhabhi came. They have proceeded the police station at 9 P.M..

In para 8 he has stated that Ram Babu had visited his place 5-6

times before the occurrence. They had not gone to the place of

Ram Babu.

P.W.4 is the husband of the victim who has disclosed

that on the date and time of occurrence he had gone to Patna to

earn his livelihood wherefrom he returned back at 8 P.M. When he

reached at his house, he had seen his wife, mother weeping. On

query they disclosed that Ram Babu took her away on the pretext

of incantation and then, committed rape in a lonely house at

Baanstal. Then thereafter, they all have gone to the police station

where, on a disclosure made by his wife, he had written an

application, whereupon his wife had put her RTI and then, he has
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put his signature and the same was handed over to the police. After

registration of the case, their statement were taken. His wife was

taken to Gurugovind Singh Hospital, Patna City. He had also gone

alongwith her. Identified the accused.

During cross-examination at para 5 he has stated that he

was informed regarding the occurrence from his wife. He had not

gone to the place of occurrence. In para 6 he has stated that he had

not seen the place of occurrence before inspected by the police. At

para 7 he has stated that the I.O. had not seized any article from

the place of occurrence.

P.W.5 is the I.O., who after having been entrusted with

the investigation, visited the place of occurrence, recorded

statement of the witnesses, procured supervision report, arrested

the accused, procured medical report and then, completing

investigation submitted charge sheet. During the course of cross-

examination he has stated that he had inspected the place of

occurrence at 1 A.M. on 3.8.2013 itself. He has further stated at

para 9 that the P.O. house belongs to Radhey Rai. In para 10 he has

stated that he had not recorded statement of Radhey Rai. He had

not recorded the statement of the persons having their houses in

the boundary. In para 13 he has stated that he had not seen any

wound over the person of the victim.

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Relevancy of the F.I.R. is for corroboration or

contradiction. There happens to be the specific disclosure in the

written report that the victim was present at the Ganichak house

and from there, she was taken away by the accused on the pretext

of incantation and during course thereof, she was raped but, in

spite of the fact that during examination-in-chief she had shifted

herself from Ganichak to Saafipur, her attention has not been

drawn up at the end of the accused. That means to say, the

inconsistency whatever be remained, remained unfounded on

account of own fault of the accused. Further more, during cross-

examination of the victim, it is apparent that she has not been

cross-examined on the score whether being a major she was a

consenting party, she was knowing Ram Babu since before the

occurrence, she was not even suggested that as the family

members have objected on account thereof, in order to protect

herself she joined with them and got this case filed putting wrong

and incorrect allegation. From the evidence of other witnesses also

that means to say P.W.2, P.W.3 and P.W.4, it is evident that though

presence of the appellant at their house happens to be since before

the occurrence but, they also not been suggested that the victim

was very much friendly with the appellant. In the aforesaid facts

and circumstances of the case, whether it could be perceived that
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the victim happens to be a consenting party and in order to avoid

curse of his family members she got this case filed.

Section 375 of the Indian Penal Code contains definition

relating to ‘rape’ and there also happens to be proper identification

of the circumstances, more particularly over the consent, during

commission of rape and further, for proper appreciation of

evidence, the Explanation No.2 requires to be quoted here.

“Explanation 2.- Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:

Provided that a woman who does not physically
resist to the act of penetration shall not by the reason
only of that fact, be regarded as consenting to the
sexual activity.”

So, from perusal of the proviso it is evident that even if

there happens to be no resistance at the end of the victim during

course of commission of rape would not give an impression that

she was a consenting party, that means to say, something more was

required at the end of the accused to substantiate that the victim

was a consenting party. From the evidence of the victim, it is

apparent that that part is missing. Consequent thereupon, the

instant appeal lacks merit and is accordingly dismissed.

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The appellant is in custody which he will remain till

saturation of the period of sentence.

(Aditya Kumar Trivedi, J)
Surendra/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 04.09.2019
Transmission Date 04.09.2019

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