IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.43 of 2014
Arising Out of PS. Case No.-235 Year-2001 Thana- Bhairoganj District- West Champaran

Santosh Bind @ Santosh Bin, S/O Late Bunni Bind R/O Village- Haraha
Tola Inarbarwa, P.S.- Bhairoganj, District- West Champaran.

… … Appellant/s
Versus
The State of Bihar … … Respondent/s

Appearance :

For the Appellant/s : Mr. Uma Shankar Verma, Adv.

Mr. Binod Kumar Mishra, Adv.

For the Respondent/s : Mr. S.A.Ahmad, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 26-07-2019

1. Appellant, Santosh Bind @ Santosh Bin has

been found guilty for an offence punishable under Section 376

IPC and sentenced to undergo R.I. for ten years as well as to pay

fine appertaining to Rs.10,000/- in default thereof, to undergo S.I.

for six months, additionally, vide judgment of conviction dated

06.12.2013 and order of sentence dated 09.12.2013 passed by the

First Adhoc Additional Sessions Judge, Bagaha, West Champaran

in Sessions Trial No.22/2003.

2. Victim (name withheld), PW.6 gave her

fardbeyan on 18.12.2001 disclosing therein that on 14.12.2001

while her father was not present, she was sleeping along with her

brother in her house. After removing the wooden door, Santosh

Bind intruded inside her room, broken the string and then
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committed rape. Out of pain she raised alarm attracting her

brother, Bhabhi seeing whom, Santosh ran away.

3. After registering Bagaha (Bhairoganj) P.S. Case

No.235/2001 investigation commenced and concluding the same,

charge sheet has been submitted, facilitating the trial, meeting

with the ultimate result, subject matter of instant appeal.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of

the Cr.P.C. is that the brother of the victim had committed rape

upon Bhabhi of the appellant and for that a case has been

registered. In retaliation this case has been instituted putting false

and frivolous allegation. However, nothing has been adduced in

defence.

5. In order to substantiate its case altogether eight

PWs have been examined at the end of the prosecution who are

PW.1-Ramchandra Mukhiya, father of the victim, PW.2-Basant

Mukhiya, PW.3-Reeta Devi, PW.4-Raghunath Bind, PW.5-

Singhashan Mukhiya, PW.6-Victim, PW.7-Surendra Kumar Mani,

PW.8-Binod Kumar Yadav as well as has also exhibited Ext.1-

Formal FIR, Ext.2-Fardbeyan, Ext.3-Signature and writing of Dr.

N. Yadav on medical report of victim. As stated above, nothing

has been adduced on behalf of appellant.

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6. Heard learned counsel for the appellant, learned

APP as well as also gone through the record.

7. From perusal of the record, it is evident that

PW.1, PW.2 and PW.3 are father, broher, Bhabhi of the victim

while PW.6 is the victim. PW.4 and PW.5 did not support the case

of the prosecution whereupon, declared hostile. Because of the

fact that doctor has died on account thereof, PW.7, a formal

witness has been examined to exhibit the medical report and in

likewise manner, I.O. has not been examined and for that PW.8 a

formal witness has been examined to have relevant documents

exhibited.

8. It is evident from the deposition of the PW.1,

PW.2, PW.3 that they have not claimed themselves to be an

eyewitness to occurrence. They had stated that the victim had

disclosed that after opening ‘Chachara’ the accused intruded

inside and then committed rape (Balatkar) after breaking open the

string of the salwar. PW.6, the victim while was examined was

already married. She during her examination-in-chief also stated

that coming inside her room after opening ‘Chachara’ Santosh

began to commit ‘Balatkar’ whereupon, she raised an alarm. Her

brother had also raised alarm whereupon her elder brother and

others also came till then, Santosh after committing ‘Balatkar’
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escaped. During cross-examination at para-9 there happens to be

specific question put before her “cykRdkj fdls dgrs gS] eSa tkurh

gwW? ?kj esa dksbZ ?kql tk; rks mls cykRdkj dgrs gSA ” The aforesaid

theme is found properly explained from her under para-10

wherein she had stated that “eqs idM+ fy;k rks eSa fpYykus yxhA rks

vfHk0 Hkkx x,A mlds ckn HkS;k vk,A vxycxy ds dSyk’k] NksVuk]

oxSjg vk,A”

9. Although, PW.1, PW.2 have not admitted

presence of case at the end of wife of Rajdeo against Basant but,

at para-15 the victim PW.6 had admitted that wife of Rajdeo

namely Maina Devi, has instituted a case against her brother

Basant and Thagait. Rajdeo is the brother of Santosh but, she is

not knowing what kind of case has been instituted. Defence, the

best reason known to it has not cared to file the copy of the FIR to

suggest whether case has been instituted prior to the occurrence or

after to the occurrence and further, nature of the offence.

10. Be that as it may, it is evident from the evidence

of PW.6 at Para-9, Para-10 have not been challenged and in the

aforesaid background certainly, considering the disclosure

explaining the word ‘Balatkar’ in a manner which ultimately will

attract Section 354 of the IPC due to outraging modesty and so,

the conviction and sentence recorded by the learned lower court
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with regard to Section 376 of the IPC is hereby set aside.

However, the appellant is found and held guilty for an offence

punishable under Section 354 of the IPC and is sentenced to

undergo R.I. for three years. Instant apeal is dismissed with

aforesaid modification. Because of the fact that since after

judgment impugned appellant remained under custody exhausting

the period of sentence on account thereof, is directed to be

released forthwith, if not wanted in any other case.

(Aditya Kumar Trivedi, J.)

Prakash Narayan
AFR/NAFR AFR
CAV DATE NA
Uploading Date 01.08.2019
Transmission Date 01.08.2019