IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.361 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- KATIHAR
Madan Ravidas @ Mulhai Ravidas, son of Sri Jhaksu Ravidas, resident of village
Phulwaria Mathuriabari, P.S. Kurha, District Katihar
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
with
Criminal Appeal (SJ) No. 364 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- KATIHAR
Wakil Rabidas, son of Bisambhar Rabidas, resident of village Laxmipur, P.S.
Barari, District Katihar
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent
Appearance :
(In CR. APP (SJ) No.361 of 2003)
For the Appellant/s : Mr. Rajendra Prasad Sah with
Mr. Ratnakar Ambastha, Advocates
In Cr.App (SJ) No. 364 of 2003
For the appellant : Mr. Sunil Prasad Singh, Advocate
(amicus curiae)
(In both the appeals)
For the State : Mr. Bipin Kumar, APP
CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 27-03-2018
Since both the appeals arise out of the common judgment
and order they have been heard together and are being disposed of by
this common judgment.
Patna High Court CR. APP (SJ) No.361 of 2003 dt.27-03-2018
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2. No body appears on behalf of appellant in Cr.Appeal (SJ)
No. 364 of 2003 on repeated calls, as such Mr. Sunil Prasad
Singh,Advocate, has been appointed as amicus curiae by this Court to
assist this Court.
3. Appellant Madan Ravidas in Cr.Appeal (SJ) No. 361 of
2003 and appellant Wakil Ravidas in Cr.Appeal(SJ) No. 364 of 2003
have been convicted under Sections 363/34 of the Indian Penal Code
and sentenced to undergo rigorous imprisonment for three years,
further they have been convicted under Sections 366A/34 IPC and
sentenced to undergo rigorous imprisonment for five years and further
they have been convicted under Sections 376/34 of the Indian Penal
Code and sentenced to undergo rigorous imprisonment for ten years
and all the sentences were directed to run concurrently vide judgment
dated 31.5.2003 and order dated 5.6.2003 passed by Sri Yogendra
Prasad, the then 1st Additional Sessions Judge, Katihar in Sessions
Trial No. 45 of 2000.
4. Prosecution case as stands on the basis of written report of
informant Raju Singh (PW 5), in short, is that his daughter Boby Kaur
was married five months prior to Sardar Bhajan Singh of village
Nauratan, District Sitapur (Uttar Pradesh) and for the last two months
she was living in his house. It is further alleged that on 17.3.1999 at 8
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P.M. appellant Wakil Ravidas, Deoki Devi and Chhattu Harijan
enticed the victim Boby Kaur away with intention to get her married,
when she had gone out of her house to attend the call of nature and in
spite of rigorous search she was still traceless and, as such, this
information was given to the police.
5. On the basis of the aforesaid written report Barari
P.S.Case No. 39 of 1999 was registered on 26.3.1999 under Sections
366/34 IPC. After investigation charge sheet has been submitted
against the accused appellant Madan Ravidas @ Mulhai Ravidas
showing the accused Wakil Ravidas as absconder and accordingly
cognizance of the offence has been taken under Sections 363, 366A
and 376/34 IPC and the case was committed to the court of sessions
which ultimately came to the file of the learned Trial Judge for trial
and disposal.
6. In this case altogether seven witnesses have been
examined on behalf of prosecution, they are PW 1 Lakhan Das, PW 2
Rambha Kaur, who is mother of victim girl, PW 3 Jonty Kaur, who is
aunt of the victim girl, PW 4 Boby Kaur, who is victim, PW 5 Raju
Singh, the informant, who is father of the victim girl, PW 6 Indar
Singh, who is uncle of the victim girl and PW 7 Awadh Narain Singh.
The I.O. has not been examined.
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7. Learned trial court has also examined Sakaldeo Rai, the
then Judicial Magistrate, 2nd. Class, Katihar, who has recorded the
statement of victim girl under Section 164 Cr.P.C. as CW 1 and
Dr.Mini Rani as CW 2, who has examined the victim Boby Kaur and
submitted her medical report (Ext.4).
8. It appears from the evidence of PW 4 Boby Kaur, the
victim girl, that she had gone to attend the call of nature and 4-5 boys
came to her and inserted cloth into her mouth and she was lifted on a
bicycle and taken towards Fulbaria chowk by them. Appellants
Madan and Wakil committed rape upon her in a house against her
will. Next day they took her to Godda and she was kept there 4-5 days
in a house of their relative by them and then she was taken to
Bombay, where she was kept in a hotel for three days and both the
accused appellants have committed rape upon her. She was then taken
to Gorakhpur by the accused persons where the accused appellant
forcibly committed rape upon her and from Gorakhpur she was taken
to Katihar and she informed her father from there. This witness has
been cross examined at langth but in spite of her cross examination
her statement discloses that she was taken different places and was
committed rape by the accused appellants and she was recovered from
Fulbaria and there is nothing in her evidence to discredit her evidence
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about her being taken by appellants..
9. PW 5 is the informant in this case and though there is no
eye-witness of kidnapping, her evidence discloses that she was
kidnapped by Chhattu Das, Deoki Devi and Wakil Das. He has proved
the written report as Ext.1. His evidence also discloses that his
daughter was at the age of 15-16 years and he was deposing in May,
2001 and occurrence is of the year 1999.
10. The evidence of PW 6 shows that Wakil Das had taken
her niece and at that time victim had gone to attend the call of nature.
11. PW 1 is seizure list witness and has proved his L.T.I.
over the same.
12. PW 2 is mother of victim girl and her evidence discloses
that on 17.3.1999 at 8.30 in the night her daughter went to attend the
call of nature and accused Wakil Das kidnapped her.
13. PW 3 Jonty Kaur is aunt of the victim girl and her
evidence discloses that the victim was kidnapped by accused persons
but she does not appear to be an eye-witness to the occurrence.
14. On close scrutiny of the entire evidence it appears that
PW 4 is only witness on the point of kidnapping and subjecting her to
rape.
15. Learned trial court has also examined Sakaldeo Rai, the
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then Judicial Magistrate, 2nd Class, Katihar, who has recorded
statement of victim girl under Section 164 Cr.P.C. (Ext.2) as CW 1
and Dr. Mini Rain is CW 2, who has examined the victim girl and
from her evidence it appears that on the basis of Radiological report
and dental examination she assessed her age at 14-15 years and her
report also shows that on Microscopic examination no spermatozoa
was found but she has stated that she is used to sexual intercourse. In
her cross examination she has also stated that she cannot say as to
whether victim had sexual intercourse one month before her
examination. So, evidence of Doctor did not show sign of rape upon
her. Furthermore, the Doctor had assessed her age at 14-15 years and
assessment of medical report varies +- 2 years and if it is taken in
favour of the accused appellants she was found to be at the age of 17
years at the time of occurrence.
16. Section 375 IPC prior to 2013 amendment provides as
follows :
“375. Rape – A man is said to commit “rape” if he-
(a) penetrates his penis, to any extent, into the vagina,
mouth urethra or anus of a woman or makes her to do
so with him or any other person; or
(b) inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
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or anus of a woman or makes her to do so with him or
any other person; or
(c) manipulates any part of the body of a woman so as
to cause penetration into the vagina, urethra, anus or
any part of body of such woman or makes her to do so
with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person, under the circumstances falling under any of
the following descriptions:-
…………..Sixthly.- With or without her consent,
when she is under sisteen years of age”
16. Considering the medical evidence and evidence of the
victim it appears that she was subjected to rape at different places and
she had gone with the accused persons from place to place but she had
not raised any alarm. Though her evidence discloses that she moved
from one place to other by train, steamer and bus, in such situation,
there was ample opportunity for her to raise alarm but there is no
evidence to suggest that she ever tried to raise alarm, as such she
appears to be a consenting party. As discussed above, according to
medical opinion she appears to be more than sixteen years of age. In
such a situation, the conviction under Section 376 IPC does not
appear to be sustainable in the eye of law.
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17. However, on the basis of evidence on record which has
been corroborated by her statement under Section 164 Cr.P.C. and
also considering the fact that for the purpose of kidnapping, the girl
must be below 18 years and in this case girl was below 18 years of
age. It appears that she was taken by accused persons from place to
place and appellant Madan forcibly married her and as she was below
18 years of age her consent or no consent has no help to the
appellants. In such a situation, conviction of the appellants under
Section 366A IPC appears to be just and probable. It further appears
that learned trial court has also convicted the appellants under
Sections 363/34 IPC but once they have been convicted under Section
366A/34 IPC, the conviction under Sections 363/34 IPC becomes
redundant. As such, conviction of the appellants under Sections
366A/34 IPC is quite sustainable and hence affirmed.
18. In the result, conviction and sentence of the appellants
under Sections 363 and 376 IPC are set aside and conviction under
Section 366A IPC is affirmed.
19. Learned counsel for the appellants has submitted that
appellant Madan Rabidas has remained in custody for more than four
years and appellant Wakil Rabidas has remained in custody for about
3 years 10 months and occurrence is of the year 1999, as such lenient
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view may be taken that sentence be reduced to the period already
undergone by them in custody.
20. Considering the prosecution case and the facts and
circumstances of the case and also considering the fact that this is an
old case, the period of sentence under Sections 366A/34 IPC is
reduced to a sentence for R.I. of five years.
21 . With the aforesaid modification in conviction and
sentence, both the appeals are dismissed.
(Vinod Kumar Sinha, J)
spal/-
AFR/NAFR
CAV DATE
Uploading Date 30.3.2018
Transmission 30.3.2018
Date