Sunil Yadav vs The State Of Bihar
2022 Latest Caselaw 4233 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.937 of 2016
   Arising Out of PS. Case No.-90 Year-2013 Thana- MURLIGANJ District- Madhepura
======================================================

Sunil Yadav son of late Satya Narayan Yadav, resident of Village- Manhara, Police Station- Murliganj, District- Madhepura

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s

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

For the Appellant/s     :       Mr. Rajendra Prasad Sah, Advocate
For the Respondent/s    :       None

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR ORAL JUDGMENT Date : 04-08-2022

By this appeal, the appellant/accused is challenging

the judgment and order dated 24.08.2016 and 30.08.2016

respectively, passed by the learned Additional Sessions Judge-

III, Madhepura, thereby convicting him of the offences

punishable under Sections 366 and 376 of the Indian Penal

Code. On each count he is sentenced to suffer rigorous

imprisonment for ten years apart from imposition of fine of Rs.

50,000/-. In default, the appellant is sentenced to suffer

imprisonment for six months for each offence. The learned Trial

Court had directed that substantive sentences shall run

consecutively. For the sake of convenience, the appellant shall Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

be referred to in his original capacity as an accused.

2. Facts leading to the prosecution of the accused

projected from the Police report can be summarized thus:-

(a). The victim of the crime in question is an adult

unmarried women to whom I shall refer as Ms. N (identity

concealed). She used to reside along with her father PW 9 Mr. F

(identity concealed), her mother PW 10 Mrs. M (identity

concealed) and her brother PW 11 Mr. B (identity concealed) at

village Manhara falling under jurisdiction of Police Station

Murliganj in Madhepura District of State of Bihar.

(b). The prosecution case set out in the complaint

lodged by PW 9 Mr. F is to the effect that the accused, on

04.05.2013 had deceitfully enticed his daughter PW 12 Ms. N

by alluring her with a promise to marriage. On the basis of this

complaint lodged in the Court of the Chief Judicial Magistrate,

Madhepura, and as a consequence of the order passed under

Section 156(3) of the Cr.P.C., the crime in question came to be

registered at the Police Station Murliganj vide Police Case No.

90 of 2013 for the offences punishable under Sections 363 and

366 of the Indian Penal Code. During the course of

investigation, after about two months, the accused came to be

arrested and the victim women Ms. N came to be recovered. Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

She was then sent for medical examination to the Sadar Hospital

Madehpura, where she came to be examined by the Medical

Board comprising of PW 5 Dr. Bipin Kumar Gupta and PW 6

Dr. Poonam Kumari. Routine investigation followed and,

ultimately, the accused came to be charge sheeted.

(c). The learned Trial Court had framed and

explained the charges to the accused. He pleaded not guilty and

claimed trial.

(d). In order to bring home the guilt to the accused,

the prosecution has examined as many as thirteen witnesses. PW

1 Subhash Kumar Yadav and PW 2 Bablu Kumar Yadav are

relatives who are alleged eyewitnesses to the incident. PW 3 and

PW 4 are co-villagers who have also claimed to have seen the

incident. PW 5 Dr. Bipin Kumar Gupta and PW 6 Dr. Poonam

Kumari of the Sadar Hospital Madhepura, had examined the

victim women. PW 7 Asharfi Yadav is relative of the

prosecuting party. PW 8 Mrs. M is mother of the victim

whereas PW 9 Mr. F is her father. PW 10 Manjula Devi is

relative of the prosecuting party. PW 11 Mr. B is brother of the

victim women. She is examined as PW 12 Ms. N. PW 13

Upendra Prasad Singh is the Investigating Officer.

(e). Defence of the accused as gathered from the Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

line of his cross-examination of prosecution witnesses as well

as from the statement under Section 313 Cr.P.C. is that of total

denial. However, he did not enter in the defence.

(f). After hearing the parties, the learned Trial Court

by the impugned judgment and order was pleased to convict and

sentence the accused as indicated in the opening para of this

judgment.

3. I heard the learned counsel appearing for the

appellant at sufficient length of time. By taking me through the

entire record and proceedings, he argued that the prosecution has

failed to prove the offences alleged against the accused. As

usual none appeared for the state.

4. I have considered the submissions so advanced

on behalf of the appellant and also perused the record and

proceedings including oral as well as documentary evidence

adduced by the prosecution.

5. Case of the prosecution as set out in the

complaint lodged by none else than the father of the victim

women i.e., PW 9 Mr. F is to the effect that the accused had

deceitfully enticed his daughter on 04.05.2013 on the pretext of

marrying her. This complaint seems to have been filed in the

month of May 2013 by which time the victim women PW 12 Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

Ms. N could not be traced out. Let us, therefore, examine

evidence of the prosecution in order to find out whether Ms. N

was proved to be deceitfully enticed by the accused on the

pretext of marrying her. Considering the nature of offence which

is abduction for the purpose of compelling the victim women to

marry with any person and that of commission of rape on her,

fate of the prosecution case to a large extent hinges on the

testimony of the victim. It is in evidence of PW 12 Ms. N that

the incident in question took place at about 5:00 PM. At that

time her grandfather as well as her mother PW 8 Mrs. M were

present in the house. She testified that the accused came to her

house and informed her that he has arranged a job for her and

she will have to sign on the requisite documents for getting

employment. The accused did not allow her to inform this fact to

her mother. She further deposed that then she disclosed this fact

to her grandfather who could not hear it as he is an old person.

Then, according to PW 12 Ms. N, the accused took her by walk

to a bamboo hut where he had kept his motorcycle. By his

motorcycle, the accused then took her to Murliganj for signing

the documents. Thereafter, the accused took her to Madhepura.

In the evening hours of that day, the accused took her to one

room where one another person was also present. As per the Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

version of this victim, after sometime that unknown person left

the room. The accused then closed the door, assaulted her and

threatened to kill her. Then he committed rape on her. PW 12

Ms. N further deposed that even on the next day, she was

confined in that room. The accused recorded her obscene videos.

He continued to rape her throughout for a period of about two

months. As per her version when the accused used to leave that

place for two or three days, he used to depute one unknown

person to keep watch on her and while leaving, he used to tie her

hands and legs and he used to gag her mouth by means of an

adhesive tape. The victim further deposed that after a period of

about two months, police apprehended the accused and then the

person who used to keep watch on her took her and left her near

the Police Station. She was then taken to the Court as well as

Hospital by police.

6. To test the veracity of version of this witness, she

was subjected to cross-examination. In cross-examination PW

12 Ms. N has categorically stated that she used to visit the house

of the accused and the accused used to visit her house

frequently. She has accepted the fact that she was a college

going girl at the time of the incident. As per her version in the

cross-examination, she has disclosed to the learned Magistrate, Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

while recording her statement under Section 164 of the Cr.P.C.,

that she and the accused slept on one cot during the whole night

and the accused had made all arrangements for providing food

to her. She further accepted the fact that she had disclosed to the

Magistrate that as and when the accused used to return after two

or three days, she used to sleep with the accused. She further

accepted the fact that the accused had provided clothes to her

during her stay in that room. She accepted the fact that she had

not made hue and cry during her stay in the room but has

attempted to explain this conduct by stating that because of fear

of the person who was watching her she had not made hue and

cry whenever the accused left that room. PW 12 Ms. N further

accepted the fact that she had not disclosed to the learned

Magistrate that the accused had committed forcible intercourse

with her.

7. The cross-examination of this adult women, who

had taken college education, indicates that she was a consenting

party to what was going with her and the accused during the

period of about two months when she was in the company of the

accused. Being an adult women, on the backdrop of the fact that

the accused used to leave that room for a period of about two to

three days, there were tons of occasion with the victim to make Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

hue and cry in order to extricate herself from the clutches of the

accused. However, she had not made any such attempt and had

chosen to continue to stay with the accused. Her evidence

regarding presence of some unknown persons in the room, in

absence of the accused, for want of any further details is hard to

accept. No such man was found by the Investigator.

8. Be that as it may, the prosecution has recorded

statement of the victim under Section 164 of the Cr.P.C. through

the concerned Judicial Magistrate. True it is that the prosecution

has not got that statement proved formally by examining the

concerned Magistrate but that by itself will not prevent the

defence in making use of such statement. It is well settled that

the documents of the prosecution which are not proved by the

prosecution can not be used by the prosecution for establishing

the guilt of the accused but the accused can certainly make use

of such documents if such document favour his defence.

9. Thus the defence can certainly make use of the

statement of the victim recorded by the prosecution under

Section 164 of the Cr.P.C. If the said statement is perused then it

is clear that PW 12 Ms. N has reported to the Magistrate while

recording her statement that after reaching at the room of the

accused, she and accused slept on one bed and they had Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

indulged in sexual intercourse during that night. She has further

reported to the learned Magistrate that the accused used to

provide food to her and the accused used to return to that room

after a gap of about two to four days regularly during the course

of her stay in that room. She has further stated to the learned

Magistrate that during her stay in that room provided by the

accused, on several occasion she and the accused indulged in

sexual intercourse. In her statement under Section 164 of the

Cr.P.C., PW 12 Ms. N has not disclosed that as and when the

accused used to leave that room, he used to tie her hands and

legs and he used to gag her mouth by an adhesive tape. She has

not whispered that the accused used to keep one person for

keeping watch on her during his absence from that room. She

has not stated that the accused used to indulge in forcible sexual

intercourse with her.

10. Thus, if the material elicited from cross-

examination of the victim is considered in the light of her

statement under Section 164 of the Cr.P.C. then it is seen that of

her own, the victim women who was adult at the time of the

incident had joined the company of the accused and had stayed

with him happily for a period of about two months out of her

own volition and free will. She had not complained to the Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

learned Magistrate that the accused had ever committed rape on

her. On the contrary, she had repeatedly referred their act as act

of sexual intercourse.

11. Now let us examine other evidence adduced by

the prosecution in support of the charge. It is seen that the

prosecution has adduced evidence of near and dear ones of the

parents of the prosecuting party. Her parents, brother as well as

her near relative have given a complete go by to the prosecution

case of deceitful enticement of the victim. On the contrary, they

have attempted to put forth the theory of forcefully taking the

victim, i.e., PW 12 Ms. N, by the accused. These witnesses have

categorically claimed that they are eyewitnesses to the incident

of taking PW 12 Ms. N by the accused. Surprisingly enough,

the victim i.e., PW 12 has not named any of these witnesses as a

person who had seen her when she was allegedly abducted by

the accused. PW 1 Subhash Kumar Yadav and PW 2 Bablu

Kumar Yadav so also co-villagers PW 3 Jagdish Yadav and PW

4 Bechan Yadav have stated while in the dock that they had seen

the accused taking PW 12 Ms. N on the motorcycle. As per

their version they attempted to stop the accused but he did not

budge and had left the spot in a great speed. PW 7 Asharfi

Yadav, PW 8 Mrs. M (mother of the victim) and PW 9 Mr. S Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

(father of the victim) have also reiterated the same theory of

forcefully taking the PW 12 Ms. N by the accused. PW 7 Asharfi

Yadav has claimed that he has seen the accused taking the victim

by walk up to the bamboo hut and thereafter on motorcycle. PW

8 Mrs. M has stated that in her presence, the accused dragged

her daughter PW 12 Ms. N to the bamboo hut and thereafter he

took her by motorcycle and flee from the spot. Her father PW 9

Mr. S has stated that he came to know about the incident of

forceful taking of his daughter PW 12 Ms. N by the accused

through his bike. As against this, his complaint is to the effect

that the accused had enticed his daughter with a promise of

marriage. The victim woman has not named any of these

witnesses as a person who had seen her while leaving the house

in company of the accused for alleged purpose of signing a

document regarding employment.

12. The conduct of victim i.e., PW 12 Ms. N in

remaining in company of the accused without any protest for a

period of two months creates a doubt in the prosecution case

about deceitful enticement of the victim by the accused. That

apart evidence adduced by the prosecution is not consistent with

the prosecution case. There is no element of either enticement

or taking in order to make out the offence of abduction against Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

the accused as the evidence indicates that the victim who

happens to be the adult woman had joined the company of the

accused of her own by leaving her parental house.

13. So far as offence of rape is concerned,

evidence of the victim is not corroborated by any other

evidence. She was subjected to medical examination and her

ossification test was also conducted. Even according to the

prosecution case, the victim was major at the time of the

incident. PW 5 Dr. Bipin Kumar Gupta has reiterated the

prosecution case by stating that the victim was aged about 20 to

22 years on perusal of the X-rays of the victim.

14. PW 6 Dr. Punam Kumari had medically

examined PW 12 Ms. N on 04.07.2013. According to the version

of the victim, the accused, during the period of about two

months, was repeatedly committing rape on her. In the

backdrop of this evidence of the victim, PW 9 Dr. Punam

Kumari has stated that the victim was having an old hymnal tear

which was not of a recent origin. She had not found any marks

of injury over any part of the body of the victim including

private parts. Therefore, PW 6 Dr. Punam Kumari while in the

dock has not given his opinion regarding commission of rape or

otherwise on the victim woman. The statement under Section Patna High Court CR. APP (SJ) No.937 of 2016 dt.04-08-2022

164 Cr.P.C. of the victim is creating doubt in her version about

commission of rape by the accused. Possibility of consensual

sexual relationship between two adult persons is not eliminated

by the prosecution by adducing clear, cogent and trustworthy

evidence.

15. In the result, it needs to be held that the

prosecution has failed to prove the charges leveled against the

accused beyond all reasonable doubt thereby entitling the

accused for acquittal. As such, the order :

The appeal is allowed.

The impugned judgment and order of conviction

and resultant sentence imposed on the appellant/accused is

quashed and set aside. The appellant/accused is acquitted of the

offences held to be proved against him. He be set at liberty if not

required in any other case.

16. Let the Lower Court Records be sent back to the

learned Court below with a copy of this judgment and order.

(A. M. Badar, J) Mkr/Aditi/-

AFR/NAFR                 NAFR
CAV DATE                 NA
Uploading Date           08.08.2022
Transmission Date        08.08.2022