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Ramesh Mishra vs The State Of Bihar on 4 November, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1965 of 2018
Arising Out of PS. Case No.-66 Year-2000 Thana- CHIRAIYA District- East Champaran

Ramesh Mishra Son of Late Girija Nandan Mishra, resident of Village- Haraj
Bheriyahi, P.S.- Shikarganj, District- East Champaran.

… … Appellant/s
Versus
The State Of Bihar

… … Respondent/s

Appearance :

For the Appellant/s : Mr.Umesh Chandra Verma, Adv.

For the Respondent/s : Smt. Abha Singh, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT

04-11-2019 During course of raising submission under I.A.

No.01/2019, reviving the prayer for bail under the garb of

observation so made while rejecting the prayer for bail at an

earlier occasion vide order dated 02.07.2018, learned counsel

for the appellant has submitted that considering the evidence of

so alleged victim (PW 8), it is a fit case wherein the finding so

recorded by the learned lower court with regard to Section

376/Section511 IPC is not maintainable and, in likewise manner, the

sentence having been inflicted therefor, RI for four years would

also not be attracted. In the aforesaid background, the appeal be

heard on merit in the background of period of custody of the

appellant.

2. It has further been submitted that considering

the evidence of the victim, PW-8, it is apparent that in worst
Patna High Court CR. APP (SJ) No.1965 of 2018 dt.04-11-2019
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case, even accepting the same, it happens to be a case of

outraging the modesty of a woman punishable under Section

354 IPC, though when the evidence of the other witnesses are

taken together, it is apparent that there happens to be

inconsistency which, in the background of period of custody

since the date of judgment i.e., 15.05.2018, the sentence could

be reduced to the period having been undergone.

3. Learned APP, while opposing the submission

having been made on behalf of the appellant, has submitted that

though, there happens to be inconsistency amongst the PWs on

certain aspect but appearance of appellant in the dead night over

the roof of victim and further putting his hand over the breast of

the victim, speaks a lot, at least, with regard to intention which

the appellant was carrying at the time of occurrence but, the

victim had not alleged beyond that and so, the submission

having made on behalf of learned counsel for the appellant

could be considered.

4. Appellant, Ramesh Mishra has been found

guilty for an offence punishable under Section 376/Section511 IPC and

sentenced to undergo RI for four years, under Section 448 IPC

and sentenced to undergo RI for one year, with a direction to run

the sentences concurrently vide judgment of conviction dated
Patna High Court CR. APP (SJ) No.1965 of 2018 dt.04-11-2019
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15.05.2018 and order of sentence dated 16.05.2018 passed by

Presiding Officer, Fast Track Court-II, East Champaran,

Motihari in Sessions Trial No. 232/2001/4027/2016 arising out

of Chiraiya PS Case No. 66/2000.

5. Dhanai Raut filed a written report on

24.06.2000 disclosing therein that he happens to be driver under

Government of Bihar, P.H.E.D Department and is presently

posted at Patna. On 20.06.2000, while his married daughter,

victim (PW 8) was sleeping over roof of the house, Ramesh

Mishra, son of Late Girija Nandan Mishra, co-villager climbed

over the same and then attempted to commit rape over which,

his daughter shouted and had then caught hold of him. After

hearing cry, other family members came and caught hold of

Ramesh and assaulted him with fists and slaps. During midst

thereof, Ramesh succeeded in his escape by overlapping his roof

which happens to be contiguous to his roof. On hue and cry,

large number of villagers assembled. On being informed, he

came to his village on 22.06.2000. After his arrival, he came to

know that Ramesh and his son, Suchit duly armed came at his

Darwaza and threatened of dire consequences if they are going

to take any action. A Panchayati was convened but, on account

of disappearance of Ramesh, it could not be materialized.
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6. After registration of Chiraiya PS Case No.

66/2000, investigation commenced and concluded by way of

submissions of charge-sheet, whereupon trial commenced and

concluded in a manner, subject matter of instant appeal.

7. 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. Furthermore, one DW-1

has also been examined.

8. In order to substantiate its case, prosecution

has examined altogether 15 PWs out of whom PW-1, Sheoji

Raut, PW-2, Om Prakash Raut, PW-3, Sanjay Kumar, PW-4,

Shashi Devi, PW-5, Udai Kumar, PW-6, Hari Raut, PW-7,

Urmila Devi, PW-8, Lalita Devi, PW-9, Chandradhar Singh,

PW-10, Ram Naresh Shukla, PW-11, Rita Devi, PW-12, Dhanai

Raut, PW-13, Ram Bharosh Thakur, PW-14, Shravan Baitha and

PW-15, Rajdeo Raut as well as has also exhibited Ext-, Written

report, Ext-2, Panchnama, Ext-3, Formal FIR.

9. Admittedly, written report has been filed by

the informant, PW-12 after four days of the alleged occurrence

and in the aforesaid written report there happens to be no

disclosure with regard to presence of other family members over

the roof and, in likewise manner, presence of son of appellant
Patna High Court CR. APP (SJ) No.1965 of 2018 dt.04-11-2019
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armed with pistol and, escaping of the accused on that very

score. It is needless to say that FIR should not be an

encyclopedia containing minute to minute detail but, having the

written report filed four days after the occurrence, should have

confined the relevant information much less over presence of

family members along with victim over the roof and so, the

evidence of the victim only appears to be of primacy.

10. Victim is PW-8. She has stated that on the

alleged date and time of occurrence, it was 11:00 PM, she was

sleeping over her roof. Her sister Rita and four brothers were

also sleeping over the roof. They all are younger to her. Ramesh

came from his roof to her roof and then, slept by her side. Then

thereafter, he put his hand over her breast, as a result of which,

she woke up. She caught hold of him. He indulged in grappling.

She shouted, whereupon, all the brothers and sister woke up. All

began to assault him. Her aunt and mother also arrived from

ground floor. During midst thereof, Ramesh had gone to his own

roof. His father, who resides at Patna, was informed. Identified

the accused in the dock. During cross-examination at para-4, she

has stated that there happens to be gap of 1 to 1 ½” (feet) in

between roof of Ramesh and that of her. Then she disclosed the

boundary. At para-8, she has disclosed that she was not in
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talking terms with Ramesh. Ramesh had not indulged in

lecherous activity before the incident nor he had talked

indecently with her. At para-11, she has stated that Ramesh had

put his hand over her body while she was asleep. At para-12, she

has stated that she had not instructed her mother to accompany

to police station which lies at the distance of 1 and 1 ½ Kosh

from her house. At para-13, she has stated that Ramesh

remained over her roof for half an hour. During midst thereof,

he was assaulted. There was swelling over his mouth. At para-

14, she has stated that then thereafter, she got down and then,

slept. On the following morning, she had not gone to the

Darwaza of Ramesh to complain. And then she denied the

suggestion that her father instituted this false case out of enmity.

11. PW-11 is Rita Devi, sister of the victim who

has disclosed that on the alleged date and time of occurrence

she was sleeping over roof of her house along with her brothers,

Sanjay, Uday, Vijay and Sonu and sister, the victim. At that very

moment, Ramesh came over her roof and attempted to commit

wrong with the victim. Victim caught hold of Ramesh and then

began to assault. She along with her brothers also assaulted. Her

mother and aunt came from ground floor. During midst thereof,

Ramesh managed to escape. Identified the accused. During
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cross-examination at para-3, she has stated that after the

occurrence, all of them got down from the roof. At that very

time, her mother was at the ground floor, her aunt was also

there. They have not woken up them. At para-4, she has stated

that when they shouted, then thereafter, her mother and aunt

woke up. Villagers have also assembled. But she is unable to

disclose their names. They have not disclosed regarding the

occurrence to them. At para-5, she has stated that at night as

well as at morning hour, people have assembled at the Darwaza

of Ramesh. Police also came. In presence of police, statement of

victim was recorded. In para-6, she has stated that victim was

assaulted by her mother. There were ample sign of hurt over her

body. Victim became unconscious out of assault. In para-8, she

has stated that earlier her uncle was engaged under Ramesh but,

about eight months ago, he had left whreupon, there was dispute

amongst them.

12. PW-12 is the informant. During

examination-in-chief, has stated that in the night of 20/06/2000

at about 11:00 PM, Ramesh came over his roof where his

daughters victim and Rita Devi, sons, Sanjay, Uday, Vijay and

Sonu were sleeping. Ramesh tried to commit rape over the

victim whereupon, he was apprehended and brutally assaulted.
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Anyhow, Ramesh managed to escape. He was at Patna where

Surendra came to inform him. He arrived on 22.06.2000 and

then, he was apprised with the occurrence by his daughter and

wife, whereupon, he convened a Panchayati but the same could

not materialized as, Ramesh managed to escape. Then

thereafter, he had filed written report which happens to be in the

pen of Chandraketu Singh (Exhibited). Identified the accused.

During cross-examination at para-8, he has stated that his land

as well as that of accused lies contiguous to each other. There

was measurement and during course thereof, some land of

accused was found amalgamated with his land whereupon, the

same has been given to the accused but, again controverted the

same by saying that his land has been grabbed by the accused

which he, uptil now, has not released.

13. PW-1 is Vijay Raut, brother of victim and

during examination-in-chief, he has corroborated the same.

During cross-examination at para-6, he has stated that son-in-

law of Ramesh was present at the house of Ramesh but he is

unable to say whether he happens to be an Advocate or not. At

para-7, he has stated that after arrival of his father, the matter

was reported to the villagers.

14. PW-2 is another brother who, in course of
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examination-in-chief has reiterated the same version. During

cross-examination at para-6, he has stated that people have

assembled at his Darwaza. None of them had gone to the

Darwaza of accused, Ramesh. None of them, tried to inform the

police.

15. PW-3 is the cousin brother who during

course of examination-in-chief has reiterated the same version.

During cross-examination at para-4, he has stated that they all

have jointly apprehended, Ramesh. He was unarmed. Only

mother and aunt came from the ground floor. After escape of

Ramesh, they got down. All the persons having their houses in

the boundaries have seen the occurrence but, none of them

came.

16. PW-4 is the aunt of the victim. During

examination-in-chief has reiterated the same. During cross-

examination at para-2, she has stated that they were on visiting

terms. She never faced such kind of activity at the end of the

accused. At para-4, she has stated that when she had gone to the

roof, she had found the victim and others having apprehended

the accused and were assaulting. Then thereafter, he escaped.

17. PW-5 is the own brother who also narrated

the prosecution version. During cross-examination at para-4, he
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has stated that he had seen the accused over his roof at about

9:00 PM. Then thereafter, at 11:30 PM, they had seen the

accused at his roof. None of the villagers has come over his

roof. None of the villagers came at his Darwaza in the morning.

18. PW-6 is the brother of informant (uncle of

victim). During examination-in-chief, he has reiterated the

version but during cross-examination at para-5, he has stated

that he had instituted a case against Ramesh for wages. Then at

para-6, he has stated that he had stated before the police that he

came to know that Ramesh had gone over roof and then, put his

hand over the body of the victim. At para-7, he has admitted that

there happens to be dispute in between his family as well as

Pandit.

19. PW-7 is the mother of the victim. During

examination-in-chief she has reiterated the version. During

cross-examination at para-3, she has stated that she had not seen

any kind of injury over the person of the victim. In para-4, she

has stated that when she had gone over the roof, she had seen all

the persons having apprehended the accused. Then has stated

that after arrival of her husband, Panchayati was convened and

then case was instituted.

20. PW-9 is a hearsay witness who has simply
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stated that on a disclosure made by mother of the victim, he

came to know regarding occurrence.

21. PW-10 has not supported the case of the

prosecution and so, was declared hostile. PW-13 and PW-14 are

formal in nature who have proved Panchnama. PW-15 is a

hostile witness. DW-1 has been examined over the land dispute

having amongst the parties.

22. From the evidence as discussed hereinabove,

it is evident that save and except PW-8, the victim, none has

deposed with regard to activity having at the end of Ramesh,

appellant. However, they are consistent that on a shout raised by

the victim, they woke up, apprehended the accused and

assaulted. From the evidence of PW-11, it is evident that victim

was also assaulted by her mother but, there happens to be no

suggestion at the end of appellant that his presence over roof

was consensual and further, the victim was major. Now, coming

to the evidence of the victim, it is evident that she has stated

only with regard to putting hand over her breast and nothing

more. She has not deposed with regard to any kind of other

activity having at the end of accused, Ramesh in order to

commit rape. So, theme of attempt is found lacking.

23. That being so, presence of Ramesh over the
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roof, justifies applicability of Section 342 IPC in consonance

therewith, the sentence. However, so far Section 376/Section511 IPC is

concerned, considering the evidence available on the record

much-less that of PW-8, it is transformed to Section 354 IPC

and further, considering the period of custody since the date of

judgment i.e., 15.05.2018 couple with the fact that the

occurrence is of the year 2000 did justify the submission having

at the end of learned counsel for the appellant that sentence be

reduced as already undergone.

24. Accordingly, is ordered so. In terms thereof,

the instant appeal is partly allowed. Appellant is under custody,

he is directed to be set at liberty forthwith, if not wanted in any

other case.

25. I.A. No. 01/2019 stands disposed of

accordingly.

(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 07/11/2019
Transmission Date 07/11/2019

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