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Sunil Chaudhary vs The State Of Bihar on 19 September, 2019

CRIMINAL APPEAL (SJ) No.827 of 2016
CRIMINAL APPEAL (DB) No.875 of 2016
Arising Out of PS. Case No.-37 Year-2009 Thana- GARKHA District- Saran

Sunil Chaudhary, son of Rameshwar Chaudhary, resident of village Mithepur,
P.S. Garakha, District Saran

… … Appellant
The State Of Bihar

… … Respondent

Appearance :

For the Appellant/s : Mr. Dhananjay Mishra, Adv.
For the Respondent/s : Mr.Abhay Kumar, A.P.P.

Date : 19-09-2019
Appellant Sunil Chaudhary 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 fine appertaining to

Rs.25,000/- and in default thereof, to undergo S.I. for one year

additionally, with a further direction that the period of custody

having undergone during course of trial will be set off in

accordance with Sectionsection 428 Cr.P.C. vide judgment of conviction

dated 23.7.2016 and order of sentence dated 26.7.2016 passed by

the Addl. Sessions Judge Vth, Saran at Chapra in S.Tr.No.

591/2011 arising out of Garkha P.S.Case No. 37/2009.

Nashruddin (P.W.1), father of the victim gave his Fard

Beyan on 16.3.2009 disclosing therein that on 24.2.2009 at about 8

P.M. while he came to house after doing menial work at the shop
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

of triloki Prasad, he saw his daughter (name withheld P.W.4), aged

about 8 years and his wife Shabnam Khatoon weeping. His

daughter was crying out of pain. He has seen blood oozing out

from her genital. On query, his daughter disclosed that at about 7

P.M. while she was going to the place of Lalan Chaudhary to

participate in a Tilak ceremony and as soon as reached near the

house of Mali Manjhi, Sunil Chaudhary met in the midst of way

who disclosed that her Mummy is calling on. She, without paying

any heed, proceeded on account thereof, the aforesaid Sunil

Chaudhary lifted her, gagged her mouth and took her in a castor

field, where, he after undressing her committed rape, as a result of

which she felt severe pain and bleeding from her vagina. After

committing rape, he left her. Anyhow, she came to house and

disclosed the event to her Mummy. Thereafter, he took the victim,

wife alongwith Wasah Mian as well as daughter of Wasah Mian to

Primary Health Centre, Garkha where she was treated. After

treatment, Dr. Upendra Prasad has directed him to go to house.

Further more, in order to protect the prestige of his family, he did

not take proper step at that very moment but in due course of time,

all the persons came to know about the same. Then thereafter the

persons of his Biradari took him to Janta Darbar, organized at the

end of the Commissioner, Saran where he filed an application and
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

then thereafter, the police came before whom he gave his Fard


Garkha P.S.Case No. 37/2009 was registered followed

with an investigation as well as submission of charge sheet

meeting with the ultimate result, subject matter of the instant


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. It has further been pleaded that

on account of religious disharmony this case has been instituted

putting false and frivolous allegation. However, nothing has been

adduced in defence.

In order to substantiate its case altogether 6 P.Ws. have

been examined on behalf of prosecution, who are P.W.1

Nasruddin, P.W.2 Dr. Smt. Nila Singh, P.W.3 Shabnam, P.W.4

victim, P.W.5 Krishnadeo, the I.O. and P.W.6 Birendra Kumar

Pandey, a formal witness. Side by side also exhibited signature of

the informant Ext.1, Fard Beyan Ext.1/A and injury report Ext.2.

While assailing the judgment impugned, it has been

argued at the end of learned counsel for the appellant that the

learned lower court had failed to perceive with regard to the

presence of inherent lacuna in the prosecution case. In order to
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

justify the same, it has been urged that there happens to be

inordinate delay in institution of the case and the explanation

whatsoever been furnished could not be accepted. In criminal case

unreasonable delay without any explanation is itself a good ground

to discard the prosecution version.

Then it has been submitted that not even a single

independent witness has been examined much less, Basah Mian

and his daughter Hasima Khatoon, whose presence in the Fard

Beyan is there, who accompanied the prosecution party to hospital.

In likewise manner, it has also been submitted that during course

of investigation, the I.O. had not been examined then their non-

examination is found un-forbearing. So alleged Dr. Upendra

Prasad of Primary Health Centre, Garkha, who, as per prosecution,

had examined the victim on the alleged date of occurrence itself

had also been kept out of screen to the reason best known to the

prosecution. Had there been it a case of rape, then in that

circumstance, the doctor was under obligation to have informed

the Officer In-charge of the local Garkha Police Station by issuing

O.D. slip with regard to presence of victim of cognizable offence.

Non-following of aforesaid mandate at the end of Dr. Upendra

Prasad is indicative of the fact that it was not a case of rape and,

non-examination of Dr. Upendra Kumar during course of
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

investigation further strong than the plea that no occurrence of

rape was over there. Out of religious fiction appellant has been

implicated after such long interval in order to ward off requirement

of substantiating the occurrence by cogent reliable evidence in its

continuity, it has also been submitted that none is an eye witness to

the occurrence. The witnesses who have been examined, in spite of

hearsay, are family witness. After having their evidence partially

scrutinized with the evidence of victim coupled with surrounding

circumstance, it is evident that the prosecution case is found duly

intrigued. That being so, the judgment impugned is fit to be set


On the other hand, learned Addl. P.P. while

controverting the submission made on behalf of the appellant has

submitted that the judgment itself speaks proper appreciation of

materials available on record justifying the finding whereupon,

needs no interference.

Admittedly there happens to be delay in institution of

the case. It is also self explanatory that basically the delay in

initiation of criminal prosecution casts doubt over authenticity of

the version but, in rape case, ordinarily delay is bound to occur

more particularly when it relates with prestige of the family

coupled with status of the victim to be unmarried as, so far Indian
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

continent is concerned, virginity happens to be the sole of a gist

which she is bound to preserve till her marriage. The sex before

marriage is virtually sin and so, it has adverse impact over future

life personality of a girl and that happens to be the reason behind

that the Hon’ble Apex Court times without number has deprecated

rejection of the prosecution case on the sole ground of delay. More

recently, in the SectionState of H.P. vs. Sanjay Kumar @ Sunny,

reported in 2017 Cr.L.J. 1443, it has been observed that the delay

in rape cases should not be considered as a deficiency in the

prosecution case if the same is found otherwise proved.

After going through the material available on record, it

is crystal clear that Basah Mian and his daughter Hasina Khatoon

have not been examined. It is also crystal clear that Dr. Upendra

Prasad has not been examined by the I.O. during course of

investigation nor, there was any effort at the end of the I.O. to

produce injury report, if any, issued by Dr. Upendra Prasad during

course of investigation. It is also evident that not even a single

independent witness has been examined. It is also evident that

none is an eye witness to occurrence. On the other side, it is also

evident that neither it has been suggested to any of the P.W. that

there was turmoil prevailing in the society due to inter-religious

differences nor there happens to be any alternative suggestion with
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

regard to prevalence of animosity amongst the parties since before.

That being so, no occasion was prevailing for any kind of

implication on that very pretext. More over none would dare,

much less an unmarried girl to sacrifice herself for aged about 8

years tricaplicating without any cogent reason.

Now coming to the status of the witnesses, it is apparent

that P.W.1 and P.W.3 are the parents of the victim who, certainly

are not an eye witness to the occurrence but, they are over the fact,

much less corroborative in nature by way of stating that they have

seen bleeding from the genital of the victim and on that very score

there happens to be some sort of version at the end of the appellant

during course of cross-examination.

Now, the only evidence remains that of the victim P.W.4.

During course of her examination-in-chief, she has stated that

while she was going to the place of Lalan Chaudhary on the eve of

Tilak during midst of which, the appellant Sunil Chaudhary caught

hold her, took her to castor field, undressed her and then raped her,

as a result of which there began bleeding from her genital.

Anyhow, she came at her house where she narrated the incident.

She was examined by the doctor on the same day and then, she

was also examined later on. In para-4 she has stated while

identifying the accused to be perpetrator of the rape that he is the
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

person who had oozed out the blood from her vagina. On court

question at para-5 she has disclosed that there was bleeding from

the lower part of her body, bleeding was on account of tearing of

her vagina on account of insertion of penis by the accused.

During course of cross-examination, it is evident that the

learned defence counsel has not tested her over the factum of rape.

Even during cross-examination at para-6 she has identified the

place of occurrence with boundary North empty land, South

Chakki, East land of Jatan and West plot of somebody else. In

para-7 she has further stated that castor plants were there in the

P.O. field which belongs to Jatan Chaudhary. In para-8 she has

further stated that she cried for help but her mouth was gagged.

Further more, there was loud music and so, no one could

perceived. It has also been disclosed that the house of the accused

lies near about her house. Before the occurrence, they were on

talking term. In para-9 she has stated that before going to the

hospital, she was not at all examined by any doctor. Her treatment

was also done at Chapra. In para-10 she has admitted that none is

eye witness to the occurrence. She has further stated that she

remained at hospital for 5-6 days. In para-11 she has stated that the

cloth had already been taken by the I.O. and thereafter, it was
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

thrown away. Then denied the suggestion that she has instituted

false case.

P.W.5 is the I.O. First of all, on 16.3.2005 a written

complaint was received from Garkha Police Station whereupon,

there was S.D. entry and then, the matter was inquired into. After

having some substance then, he had gone to village Mithepur

where recorded Fard Beyan of Nasiruddin (exhibited the same). It

has also been disclosed by him that one O.D. slip was also

received from PHC Garkha but he is unable to say whether it was

in the pen of Dr. Upendra Kumar or not. He took up investigation.

Recorded further statement of the informant. Recorded statement

of the witnesses. Recorded statement of the victim, her mother,

took the victim to Sadar Hospital for medical examination. He

investigated up to 12.7.2009 and then, thereafter, handed over the

investigation to the Officer In-charge. He has further identified the

place of occurrence, as pointed out by the informant happens to be

plot lying at Pasi Tola, adjacent to Meena Bazar. He had found

castor plant having over the plot. Some plants were trampled. Rest

portion was vacant having boundary North plot of Yamuna Shah,

South Meena Bazar, East could not be ascertained, West Mango

tree of Paras Shah. During cross-examination he has stated that he
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

had not seized the apparel of the victim nor he had tried to seize

the same.

SectionIn Gian Chand ors. v. State of Haryana, reported in

2013(4) PLJR 7 (SC) it has been observed that in order to test the

veracity of the witness as well as in order to challenge the

allegations so attributed, one has to cross-examine the witness on

that very score. If the witness is not being cross-examined then, in

that event, it will tantamount to an admission. For better

appreciation the relevant passage is quoted below:

“11. The effect of not cross-examining a witness on a
particular fact/circumstance has been dealt with and
explained by this Court in Laxmibai (dead) Thr. SectionL.Rs.
Anr. vs. Bhagwanthuva (Dead) Thr. L.Rs. ors.,
AIR 2013 Sc 1204 observing as under:-

“31. Furthermore, there cannot be any dispute with
respect to the settled legal proposition, that if a party
wishes to raise any doubt as regards the correctness
of the statement of a witness, the said witness must be
given an opportunity to explain his statement by
drawing his attention to that part of it, which has been
objected to by the other party, as being untrue.

Without this, it is not possible to impeach his
credibility. Such a law has been advanced in view of
the statutory provisions enshrined in Section 138 of
the Evidence Act, 1872, which enable the opposite
party to cross-examine a witness as regards
information tendered in evidence by him during his
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

initial examination-in-chief, and the scope of this
provision stands enlarged by Section 146 of the
Evidence Act, which permits a witness to be
questioned, inter alia, in order to test his veracity.
Thereafter, the unchallenged part of his evidence is to
be relied upon, for the reason that it is impossible for
the witness to explain or elaborate upon any doubts as
regards the same, in the absence of questions put to
him with respect to the circumstances which indicate
that the version of events provided by him, is not fit
to be believed, and the witness himself, is unworthy
of credit. Thus, if a party intends to impeach a
witness, he must provide adequate opportunity to the
witness in the witness box, to give a full and proper
explanation. The same is essential to ensure fair play
and fairness in dealing with witnesses.”

After going through the evidence available on record, it

is evident that P.W.4 victim has not been cross-examined in order

to discredit her testimony with regard to allegation having

attributed against the appellant of commission of rape. The most

surprising feature is visualizing from the evidence of P.W.2 the

doctor, who during course of examination-in-chief, after

examining the victim had opined that it was an attempt of rape but,

during course of cross-examination the appellant himself expanded

the field with regard to finding having at the end of the doctor,

who said that it was a case of penetration. Penetration to any
Patna High Court CR. APP (SJ) No.827 of 2016 dt.19-09-2019

extent satisfies the ingredient of rape as found under Section 375

of the I.P.C.

Regard being had to the facts and circumstances of the

case, as discussed hereinabove, it is evident that the evidence of

the victim with regard to commission of rape by the appellant is

found duly substantiated and that being so, the finding so recorded

by the learned lower court did not attract interference. As a result

of which, the instant appeal sans merit and is accordingly,

dismissed. The appellant is in custody which he will remain till

saturation of the period of sentence.

(Aditya Kumar Trivedi, J)


Uploading Date 26.09.2019
Transmission Date 26.09.2019

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