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
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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
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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