IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.283 of 2002
Ram Gyani Rai, son of Late Jageshwar Rai @ Budhu Rai, resident of Village-
Bharat Nagar, P.S.-Gaighat, District-Muzaffarpur
…. …. Appellant/s
Versus
The State of Bihar
…. …. Respondent/s
Appearance :
For the Appellant/s : Mr. Arun Kumar Tripathi(Amicus Curiae)
For the State : Mr. Z. Hoda, APP
CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT
Date: 07-10-2017
Challenging his conviction to undergo four years
rigorous imprisonment for the offence under Sections 376/511 of the
Indian Penal Code, this appeal has been filed by the appellant
accused.
It is the case of the prosecution that at 2:00 Clock
in the night intervening 08.06.1994 and 09.06.1994 while the
prosecutrix in the Angan of her house along with her child was
sleeping, she suddenly woke up when she felt somebody lifting her
Saree. She enquired as to who is this, it is said that accused threatened
her, told that he is Ram Gyani Rai and when she raised an alarm, her
father-in-law Lakhan Sah, Dewar Saukhi Sah and various other
persons including her mother-in-law came there, caught hold Ram
Gyani Rai. The villagers also assembled there and he was handed over
Patna High Court CR. APP (SJ) No.283 of 2002 dt.07-10-2017
2/5
to the police. The First Information Report was lodged on the basis of
the fardbeyan given by the informant/prosecutrix herself and the
appellant was prosecuted for the offence under Sections 448, 354, 504
of the Indian Penal Code but the case was thereafter committed to the
Court of Sessions after the Judicial Magistrate finding certain offence
under Section 376 of the Indian Penal Code to have been made out.
The appellant was put on trial and the prosecution examined the
following witnesses. P.W. 1 Lakhan Sah who is father-in-law of the
prosecutrix and he speaks about that he come to the spot hearing hulla
made by his daughter-in-law and when he came to the Angan, he saw
accused Ram Gyani Rai committed rape forcibly on his daughter-in-
law. He is said to have informed the police about the same. The next
witness examined is P.W. 2 Raj Kishore Sah who also speaks in the
same manner as P.W. 1, Lakhan Sah. P.W. 3 Krishna Deo Sah who is
also a resident of the house who also suggests in the same manner as
P.W. 1 and P.W. 2. P.W. 4 Tildeo Sah is not an eye witness but he is
informed about the incidence by other witnesses. He admits that he
did not see anything. P.W. 5 is Shankar Sah and he also speaks about
his rushing to the Angan when he saw the accused lying on the body
of the prosecutrix. P.W. 6 Madan Devi is mother-in-law of the
prosecutrix who speaks about that she woke up after hearing hulla and
saw many persons caught hold the accused person Ram Gyani Rai.
Patna High Court CR. APP (SJ) No.283 of 2002 dt.07-10-2017
3/5
P.W. 7 Shambhu Sah is also member of the family and is said to have
seen the accused caught in the Angan of the house. P.W. 8, Gita Devi,
the prosecutrix herself and she speaks about the appellant trying to
commit rape on her forcibly. However, in the First Information Report
lodged by P.W. 8 vide Exhibit-1, the story narrated and the story
given by her in the Court are entirely different. P.W. 8 the prosecutrix
only speaks about somebody trying to lift her sari, she making the
commotion and the other persons of the house coming. However, her
statement in the Court, she develops story about the accused lying
over her body and trying to commit the offence of rape. Interestingly
the prosecutrix is not subjected to medical examination. No medical
evidence has been produced and there is no iota of evidence except
oral testimony of the witnesses to prove the offence under Section 376
of the Indian Penal Code. The defence of the accused is that he has
been falsely implicated. He has gone with the consent of the
prosecutrix.
Taking note of the aforesaid facts of the case, it
is clear that the prosecutrix has given contradictory statement initially
in the First Information Report, Exhibit-1 and in the statement
recorded as P.W. 8 in the Court. She has not been subjected to the
medical examination and the allegation with regard to commission for
the offence under Section 376 of the Indian Penal Code has not been
Patna High Court CR. APP (SJ) No.283 of 2002 dt.07-10-2017
4/5
proved beyond reasonable doubt. That apart, from the record, it is
seen that the statement of the appellant under Section 313 has not
been examined in accordance to the requirement of law laid down by
the Ho’ble Supreme Court in the case of Sukhjit Singh versus State
of Punjab (2014) 10 SCC 270. In the aforesaid case, after taking note
of the law laid down in the case of Hate Singh Bhagat Singh versus
State of Madhya Bharat AIR 1953 SC 468, the principle laid down is
that the statement of the accused to be recorded under Section 313 Cr.
P.C is not an ample formality. It is a statutory protection granted to
the accused under law and the statement has to be recorded after
following the set principle which has been laid down in the case of
Ranvir Yadav versus State of Bihar (2009) 6 SCC 595 and Tara
Singh versus The State AIR 1951 SC 441, wherein, it contemplates
that the object of Section granting appropriate opportunity of
explaining the circumstances which appears against him and fairness
of the trial requires compliance of this mandatory requirements and
after considering all these judgments, it has been held by the Hon’ble
Supreme Court that if requisite question has not been put to the
accused and if the compliance of Section 313 Cr. P.C has not been
properly made, it proceeded to cause prejudice to the accused and the
entire trial stands vitiated on this ground alone and on the basis of
such a proceeding the trial is unsustainable. If the statement of the
Patna High Court CR. APP (SJ) No.283 of 2002 dt.07-10-2017
5/5
appellant recorded on 14th of March, 1997 available in the record is
taken note of, it seems that the requirement of law as contemplated
hereinabove has not been complied with.
In the facts and circumstances of the case, it
appears that there are various other lacuna for which the conviction of
the appellant cannot be sustained.
Accordingly, the appeal is allowed. The
judgment of conviction and order of sentence dated 02.05.2002 passed
by the learned IInd Additional Sessions Judge, Muzaffarpur in
Sessions Trial No. 158 of 1995 is set aside. The appellant is on bail,
hence, he is discharged from the liability of the bail bonds.
(Rajendra Menon, CJ)
Shageer/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 12/10/2017
Transmission NA
Date