Aman Raj @ Bitu Singh vs The State Of Bihar
2021 Latest Caselaw 4275 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.1711 of 2019
                               In
                 CRIMINAL APPEAL (DB) No.1459 of 2018
   Arising Out of PS. Case No.-102 Year-2016 Thana- MAHILA P.S. District- Madhubani
======================================================

AMAN RAJ @ BITU SINGH Son of Baidya Nath Singh @ Shiv Nath Singh @ Baidya Nath Prasad Singh Resident of Village-Hanuman Nagar, P.S-

Khutawna, District-Madhubani.                       ... ... Appellant/s
                              Versus
The State of Bihar                               ... ... Respondent/s

====================================================== Appearance :

For the Appellant/s      :       Mr.Rama Kant Sharma, Sr.Advocate
                         :       Mr.Dileep Kumar Singh, Advocate
                         :       Mr. Sateshwar Prasad, Advocate
For the Respondent/s     :       Mr.Binay Krishna, Special P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 24-08-2021

1. The sole appellant-Aman Raj @ Bitu Singh faced

trial before learned Additional Sessions Judge 1 st-cum-Special

Judge, Madhubani in S.Tr.No.736 of 2018 arising out of

Madhubani Mahila P.S.Case No.102 of 2016 corresponding to

G.R.No.2521 of 2016.

By the impugned judgment dated 03.10.2018, the

learned Trial Judge found the appellant guilty for offence under

Section 376(D) IPC and under Sections 3(2)(va) of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act. By the

impugned order dated 06.10.2018, the learned Trial Judge

sentenced 10 years rigorous imprisonment alongwith fine of

Rs.10,000/- for both the aforesaid offences separately. In default of Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

payment of fine, three months further imprisonment was ordered.

The sentences are to run concurrently.

2. The prosecution case as disclosed in the Fardbeyan

of the prosecutrix, recorded on 14.12.2016 at 3.00 P.M. by Sub

Inspector, Kanchan Kumari (P.W.4) at Women Police Station,

Madhubani, is that on 11.11.2016 at about 12.00 night, the

prosecutrix came out of her house to answer the call of nature.

Three persons hiding there, namely, Raja Kumar, Pankaj Singh and

appellant-Bitu Singh, caught her from ahead and pressed on her

mouth. Then lifted her upto ½ Km towards south in Sanskrit

Vidyalay, Hanuman Nagar. In a room of the school, all ravished

her one by one, thereafter two unknown persons also joined and

they also ravished her. Later on, she was left at the bamboo clumps

behind her house. The accused persons created video of their act.

When the prosecutrix made alarm at the bamboo clumps, the

parents, (P.Ws.1 and 2)came and took her to the house where she

narrated the incident. The parents took the matter to the Panches,

however, no resolution was reached thereat. Hence, the matter was

reported to the police.

The fardbeyan is Ext.2 and the formal FIR is Ext.3.

On 16.12.2016, the statement of the victim was

recorded under Section 164 Cr.P.C. wherein she supported the Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

occurrence that five persons had forcefully ravished her on the

point of dagger, however, she does not claim to have identified

anyone as all had come from behind. The statement under Section

164 Cr.P.C. is Ext.6. The victim was medically examined by the

Medical Board on 14.12.2016. The medical report is Ext.5. After

investigation, the police submitted chargesheet against the

appellant and investigation against the rest was kept pending vide

report as Ext.4.

3. The prosecution examined altogether eight

witnesses. P.W.1, Dukhan Ram and P.W.2 Savitari Devi are parents

of the victim girl. P.Ws.1 and 2 have supported as hearsay witness

of what they had heard from P.W.3 i.e. the victim. P.W.4, Kanchan

Kumari is investigating officer of the case. She deposed about

investigation done by her. P.W.5. Dr.Gargi Sinha and P.W.6 Dr.

Rama Jha are members of the Medical Board, who had examined

the victim. On the basis of radiological examination, the Board

assessed the age of the victim as 19 years. The Board did not find

any injury present over the body or private part of the victim. The

Board was specific that since occurrence took place one month

back definite opinion, whether rape was committed or not, was not

possible. The Doctors had noticed hymen ruptured old and no

spermatozoa, on the basis of pathological report. The reports on Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

the basis whereof, these Doctors expressed their opinion are not on

the record nor the Doctors, who had performed pathological or

radiological examination, were examined in this case.

P.W.7, Ashok Kumar, is the Judicial Magistrate, who

had recorded the statement of the prosecutrix under Section 164

Cr.P.C. P.W.8 Balkrishan Singh is a formal witness and had

identified the writing of Headmaster of Kuldeep Sanskrit Madhya

Vidayalay Hanuman Nagar on a school leaving certificate.

The defence examined two witnesses. D.W.1, Anirudh

Mandal, who deposed that in Panchayat election, Manoj Singh and

Baidyanath Singh i.e. father of the appellant, both were candidates.

In the election of Chairman of PACS the appellant and Balkrishan

Singh, the maternal uncle of Manoj Singh were candidates. The

appellant had lost the election. After result of the election, there

was quarrel between the two families and cases were lodged by

both. The father of the prosecutrix i.e.Dukhan Ram, is a permanent

help of Manoj Singh and due to political rivalry, at the instigation

of Manoj Singh, Dukhan Ram got this false case lodged. No such

incident as alleged had in fact taken place. In the cross

examination, there is no suggestion to this witness that Dukhan

Ram is not a permanent help of Manoj Singh.

Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

D.W.2 Batari Mandal has also supported about the

political rivalry between the two and thereafter criminal cases

between the two families. The witness is specific that Dukhan Ram

is a helper of Manoj Singh and at the instigation of Manoj Singh

and one Dhananjay Singh, the appellant was falsely implicated in

this case. In the school situated south of the village, the teachers

and students reside day and night. In the cross examination also,

the witness stated that the students and the teachers reside in that

school 24 hours.

4. Mr. Rama Kant Sharma, learned senior counsel for

the appellant contends that this case is based on sole evidence of

the prosecutrix and she is not a "sterling witness", evidently, for

the reason that she is not consistent in the matter of manner of

occurrence, place of occurrence and identity of the perpetrators of

the crime, as P.W.3 she deposed that only three named persons had

ravished her whereas in the FIR she stated that five persons

including two unknown persons had ravished her. In her statement

under Section 164 Cr.P.C. she does not claim to have identified

any of the perpetrators of the crime. Learned senior counsel

contends that it is specific case of the defence that the present

false case was lodged at the instance of Manoj Singh, the political

rivar of the appellant as well as of the father of the appellant. Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

There is inordinate delay of more than one month in information to

the police or to any other authority only on false pretext of

Panchayat. No one turned up to say before the court to say that

they were party to the Panchayat. Such a serious matter was not a

subject matter of Panchayati because it was not a case of affairs

between the two rather allegation is apparent of commission of

Gang rape. It would have been matter of news for everyone of the

locality including the police station at Khutauna situated at 01 Km

but for one month nothing happened. The prosecution witness has

admitted that employer asked the informant's family to come to

Madhubani for institution of this criminal case after one month of

the alleged incident. Learned senior counsel contends that the

defence witnesses have deposed that the said school, where the

occurrence was alleged, is a residential school and teachers and

students reside there 24 hours. The investigating officer did not

make any investigation on this point. Otherwise, the matter would

have gone against the prosecution. The learned Trial Judge has not

considered the aforesaid doubtful circumstances of the prosecution

case while recording the judgment of conviction.

5. Mr. Binay Krishna, learned Special Public

Prosecutor for the State contends that the victim is consistent that

Gang rape was committed against her and for trivial lapses on the Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

part of investigating officer, her testimony cannot be thrown away.

The statement of the victim of rape is considered on par with an

injured witness and sometimes more reliable than an injured

witness because no women especially unmarried girl is expected

to make a statement which would not only be against the accused

rather against herself also as the statement amounts to disclosure

of something against self-respect of a woman residing in tradition

bound non-permissive, Indian society. Since she was examined

after one month of the occurrence, by the Doctors, if they are of

the opinion that no recent sign of sexual assault was there, the

opinion was natural.

6. The law is well settled that the evidence of victim

of sexual assault needs no corroboration, if she is a "sterling

witness. The law does not require that corroboration is must for

placing reliance on the trustworthiness of the prosecutrix in every

case, however, the court while appreciating the evidence of a

prosecutrix may look for some assurance of her statement to

satisfy its judicial conscience, since the prosecutrix is a witness,

who is interested in the outcome of the charge levelled by her.

Reference may be made to the State of Punjab Vs. Gurmit Singh

and Ors, reported in (1996)2 SCC 384.

Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

However, in a case where the testimony of the

prosecutrix and prosecution case otherwise suffers from inherent

and material improbabilities, the Court may insist/look for

corroboration to lend assurance that no innocent is made to punish.

In Raju & Ors. Vs. State of Madhya Pradesh,

reported in (2008) 15 SCC 133, the Hon'ble Supreme Court said

that it cannot be lost sight of that rape causes the greatest distress

and humiliation to the victim, but at the same time, false allegation

of rape can cause equal distress, humiliation and damage to the

accused as well. The accused must also be protected against

possibility of false implication.

In the case of Rai Sandeep @ Deepu, reported in 2012

(8) SCC 21, the Hon'ble Supreme Court said that before relying

on the sole testimony of the prosecutrix, the Court must be

satisfied that the prosecutrix is a "sterling witness".

Para 22 of the judgment is being reproduced below:

"22. In our considered opinion, the 'sterling witness'

should be of a very high quality and caliber whose

version should, therefore, be unassailable. The Court

considering the version of such witness should be in

a position to accept it for its face value without any

hesitation. To test the quality of such a witness, the Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

status of the witness would be immaterial and what

would be relevant is the truthfulness of the statement

made by such a witness. What would be more

relevant would be the consistency of the statement

right from the starting point till the end, namely, at

the time when the witness makes the initial statement

and ultimately before the Court. It should be natural

and consistent with the case of the prosecution qua

the accused. There should not be any prevarication

in the version of such a witness. The witness should

be in a position to withstand the cross- examination

of any length and howsoever strenuous it may be and

under no circumstance should give room for any

doubt as to the factum of the occurrence, the persons

involved, as well as, the sequence of it. Such a

version should have co-relation with each and

everyone of other supporting material such as the

recoveries made, the weapons used, the manner of

offence committed, the scientific evidence and the

expert opinion. The said version should consistently

match with the version of every other witness. It can

even be stated that it should be akin to the test Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

applied in the case of circumstantial evidence where

there should not be any missing link in the chain of

circumstances to hold the accused guilty of the

offence alleged against him. Only if the version of

such a witness qualifies the above test as well as all

other similar such tests to be applied, it can be held

that such a witness can be called as a 'sterling

witness' whose version can be accepted by the Court

without any corroboration and based on which the

guilty can be punished. To be more precise, the

version of the said witness on the core spectrum of

the crime should remain intact while all other

attendant materials, namely, oral, documentary and

material objects should match the said version in

material particulars in order to enable the Court

trying the offence to rely on the core version to sieve

the other supporting materials for holding the

offender guilty of the charge alleged".

7. In this case, the main prosecution evidence is

testimony of the prosecutrix (P.W.3). According to P.W.3, the

occurrence allegedly took place on 11.11.2016. At mid-night the

prosecutrix came out to her house to attend the call of nature. Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

Three boys, Raja Kumar, Pankaj Singh and appellant-Bitu Singh

pressed on her mouth and by putting her in threat of dagger. They

took her to Sanskrit Madhya Vidyalay. The key of the room was

with the appellant, who opened the room and forcefully thrashed

her inside the room. Thereafter, all the three ravished her one by

one and took photographs of their act. Thereafter, they took her

behind the bamboo clumps of her house and left her thereat. On

weeping of the prosecutrix, her mother came out and she narrated

the incident. Thereafter, whenever the prosecutrix attempted to

lodge the case with the police, the accused persons threatened her

by saying that they would make the photographs viral. For that

reason, after few days, she went alongwith her parents to

Madhubani Mahila Police Station and lodge the case.

8. In the case on hand, the following circumstances

appearing on the record creates doubt on acceptance of the

prosecution case:-

(a) The prosecutrix does not appear a "sterling witness".

She is not consistent in the matter of identity of the perpetrators of

the crime. In the FIR, she alleged that three known and two

unknown persons had ravished her whereas in her statement under

Section 164 Cr.P.C., she stated that she could not identify the

perpetrators of the crime as she could not see their face. The Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

prosecutrix was confronted with her statement under Section 164

Cr.P.C. regarding identity of the perpetrators of the crime and the

Judicial Magistrate (P.W.7), who had recorded her statement under

Section 164 Cr.P.C., is specific that the prosecutrix had not named

anyone including the appellant as perpetrators of the crime. P.W.7,

Ashok Kumar, the learned Judicial Magistrate, is not a hostile

witness. Prosecution has relied upon his evidence. In Raja Ram

Vs. State of Rajasthan, reported in (2005) 5 SCC 272, the

Hon'ble Supreme Court said that if a witness is not declared

hostile by the prosecution, the defence can rely upon the evidence

of such witness and it would be binding on the prosecution.

(b) The occurrence allegedly took place on 11.11.2016

whereas the matter was reported to the police on 14.12.2016. The

court is conscious that only for delay in reporting the matter to the

police would not defeat the prosecution case. However, in the

peculiar circumstances of this case wherein delay was deliberate

without any reasonable explanation rather contradictory

explanation, it cannot be lightly ignored. The parents of the

prosecutrix, who are P.Ws. 1 and 2, are specific that at Khutauna

there is police station as well as hospital. Khutauna is

approximately 01 Km from the place of occurrence. There is no

explanation as to why the matter was not reported immediately to Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

the police at Khutauna and the matter was reported to Mahila

police station at Madhubani which is 50 Kms away from the place

of occurrence vide P.W.2 and the formal FIR. In the fardbeyan and

in the statement under Section 164 Cr.P.C., the prosecutrix stated

that since Panchayat of the occurrence was to be held the report to

the police was delayed. P.W.4, the Investigating Officer, is specific

in para-14 that he could not ascertain the identity of the Panches

nor could record their statement. Other prosecution witnesses have

also not stated anything as to who were the Panches to resolve the

cognizable offence. The prosecutrix, (P.W.3) vide para-17, deposed

that whenever she attempted to lodge the police case, the accused

persons threatened her that the video created during occurrence

could be made viral. However, the prosecutrix or her parents or

any other prosecution witness have not stated that they had seen

any such video. The prosecution witnesses are specific that prior to

lodging of the criminal case, they had not reported the matter to

any authority including Sarpanch and Mukhiya of the village. The

defence version is that Baidya Nath Singh, the father of the

appellant and Manoj Singh a co-villager are political rivals facing

case and counter criminal case. The defence has produced Ext.A

and Ext.A/1. Copy of the FIR of Khutauna P.S.Case No. 66 of

2015 lodged by the appellant against Manoj Singh and others and Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

copy of FIR of Khutauna P.S.Case No.76 of 2015 lodged by

Manoj Singh against the appellant and others to support old rivalry

including criminal cases. P.W.2, the mother of the prosecutrix, has

deposed that her husband (P.W.1) is a labour of Manoj Singh and

the employer had asked to come to Madhubani to lodge the case

after a month of the occurrence. P.W.3, the prosecutrix, denied that

her father was a labour of Manoj Singh. The denial is deliberate as

she has already admitted that there was political rivalry between

Manoj Singh and the father of the appellant.

(c) The prosecution case is unworthy of credence as

regards place of the occurrence. According to D.W.2, the school,

where incident allegedly took place, is a residential school and

teachers and students stay there day and night. The witness has not

been confronted on the aforesaid statement. The investigating

officer has admitted the lapses committed by him that the said

Coaching Classes run in five rooms. However, he could not

mention while making inspection of the P.O. as to whether those

rooms were occupied by boarding students and how many students

were residing in those rooms. It was also not mentioned as to how

many students were there in the rooms on the date of occurrence.

Evidently, the place of occurrence which was a boarding school

must have other students and teachers residing there and if the Patna High Court CR. APP (SJ) No.1711 of 2019 dt.24-08-2021

matter would have been reported at the earliest, the police could

have ascertained the correctness of the claim of the prosecution

that the Gang rape was committed in the said school premise.

9. In view of the aforesaid infirmities, I am of the

view that the prosecution has failed to prove the charges against

the appellant beyond reasonable doubts. The benefit, whereof,

must go to the appellant.

10. Accordingly, the impugned judgment and sentence

are hereby set aside and this appeal is allowed. Let the appellant be

set free at once.

(Birendra Kumar, J) Nitesh/-

AFR/NAFR                NAFR
CAV DATE                16.08.2021
Uploading Date          24.08.2021
Transmission Date       24.08.2021