Patna High Court
Ramesh Kumar vs The State Of Bihar on 4 January, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.440 of 2014
Arising Out of PS. Case No.-1 Year-2013 Thana- BHOJPUR GRP CASE District- Bhojpur
======================================================
Ramesh Kumar, Son of Sri Sant Ram, R/o Village-Chhoyal, P.S.-Bhuntar,
Distt.-Kullu, Himachal Pradesh, at present Unit no.20, J and K Rifle, Posted
at Riyong Arunachal Pradesh.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 487 of 2014
Arising Out of PS. Case No.-1 Year-2013 Thana- BHOJPUR GRP CASE District- Bhojpur
======================================================
Dinesh Kumar @ Dinesh Singh, Son of Dayal Singh, Resident of Godauri,
P.S.- Bhuntar, District- Kullu (Himachal Pradesh), Presently residing at
D.A.V. School, Board Colony, Patna, P.S.- Shastri Nagar, District- Patna.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 440 of 2014)
For the Appellant/s : Mr. Ravindra Kumar, Advocate
For the Respondent/s : Ms.Vineeta Kumari, APP
(In CRIMINAL APPEAL (SJ) No. 487 of 2014)
For the Appellant/s : Mr. Prakash Kumar, Advocate
Mr. Binod Kumar Singh, Advocate
Mr. Manoranjan Kumar, Advocate
For the Respondent/s : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 04-01-2024
1. The present appeals preferred by
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
2/30
appellants/convicts Ramesh Kumar and Dinesh Kumar @
Dinesh Singh against judgment of conviction and order of
sentence dated 24.07.2014 rendered by 8th Adhoc Additional
District and Sessions Judge, Bhojpur at Ara, in Sessions Trial
No. 13 of 2013, whereby and whereunder appellants/convicts
Ramesh Kumar and Dinesh Kumar @ Dinesh Singh have been
convicted for the offence punishable under Section 354/341 of
the Indian Penal Code and sentenced to undergo rigorous
imprisonment for 02 (two) years for the offence under Section
354 of the Indian Penal Code and were ordered to undergo one
month rigorous imprisonment for the offence under Section 341
of the Indian Penal Code.
2. The crux of prosecution case as springs through
fardbeyan of informant namely, Rekha Dorji (PW-5) that on
03.01.2013
at 11.15 PM, while she was going to Delhi by
Brahmaputra mail and when the train proceeded from Ara
railway station, a man sitting in the A.C. compartment forced
her to sit on his berth, one another person was also along with
him, whose intention was not appearing good, then she fled
away towards the gate and tried to jump, but one another person
standing at the door stopped her, thereafter, she went ahead and
jumped from the door of another coach, due to which, she
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
received injuries. Thereafter, she was taken to hospital by the
police for better treatment.
3. On the basis of aforesaid First Information
Report, Ara GRPS Case No. 01 of 2013 dated 04.01.2013 was
lodged against appellants/convicts. After completing
investigation, the Investigating Officer submitted charge-sheet
bearing no. 02/13 dated 12.01.2013 against appellants/convicts
under Sections 376 (g) and 506 of the Indian Penal Code and
also under Sections 341, 323, 354, 376, 511 and 34 of the Indian
Penal Code.
4. Learned Chief Judicial Magistrate took
cognizance of aforesaid case on the basis of materials available
on records collected during investigation against both
appellants/convicts under Sections 341, 323, 354, 376, 511 and
34 of the Indian Penal Code and committed the case before the
learned Sessions Judge for trial under Section 209 of the Code
of Criminal Procedure (in short 'Cr.P.C.'). Before learned trial
court, charges were explained to appellants/convicts, which they
pleaded "not guilty" and claimed trial.
5. To establish its case before the learned trial
court, the prosecution altogether examined total of twelve
witnesses, namely, PW-1 Ajit Kumar, PW-2 Rakesh Kumar,
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
PW-3 Sandesh Kumar, PW-4 Gaurav, PW-5 Rekha Dorji, who is
informant/victim of this case, PW-6 Kanhiya Lal Singh, PW-7
Ajay Prakash, PW-8 Harendra Singh, PW-9 Amar Deo
Upadhyar, PW-10 Dr. Ashok Kumar Pandey, PW-11 Rajan
Prasad, who is investigating officer and PW-12 Dr. Madhubala
Singh, who examined the injured.
6. The prosecution also exhibited following
documents during the trial to substantiate its case which are as:-
Exhibit 1 - Signature on fardbeyan of
informant Rekha Dorji (PW-5).
Exhibit 2 - Statement of Amardeo
Upadhyay.
Exhibit 2/1 Further statement of Amardeo
Upadhyay.
Exhibit 3- Statement of Ajit Singh
Exhibit 4 - Statement of Rakesh Kumar
Exhibit 5 - Statement of Sandesh Kumar
Exhibit 6 - Statement of Gaurav
Exhibit 7- Statement of Amardeo Upadhyay
under Section 164 of the Code of Criminal
Procedure
Exhibit 8 -Injury report of injured Rekha
Dorji (informant)
Exhibit 9- Fardbeyan of Rekha Dorji
(informant)
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
Exhibit 10, 11 & 12 -Seizure Lists
Exhibit 13- Charge-sheet
Exhibit 14 -Injury Report of Rekha Dorji.
7. No witness was examined in defence during
trial as well as no document was exhibited in defence. Statement
of convicts/appellants were recorded under Section 313 of the
Criminal Procedure Code (Cr.P.C.), where they shows their
complete innocence by denying the incriminating evidence
appears against them during the trial.
8. Learned Trial Court, after completion of trial,
convicted both appellants/accused under Section 354/341 of the
Indian Penal Code and sentenced to undergo rigorous
imprisonment for 02 (two) years for the offence under Section
354 of the Indian Penal Code and were ordered to undergo one
month rigorous imprisonment for the offence under Section 341
of the Indian Penal Code. Aggrieved thereof present appeals
preferred by appellants/accused under Section 374(2) of Cr.P.C.
9. Hence, the present appeals;
ARGUMENT ON BEHALF OF THE LEARNED COUNSEL
APPEARING FOR THE APPELLANTS/ACCUSED
10. It is submitted by learned counsel that the
nature of evidence as surfaced during the trial is not inspired
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
such confidence on the basis of which conviction can be
recorded as same appears full of material contradictions and
also improved over earlier statement. It is submitted that PWs.
-1, 2, 3 and 4 who were working with the appellants in the same
army unit and travelling in same B1 coach of Brahmputra mail,
had no knowledge of any such occurrence. It is submitted that
present case instituted on the basis of statement of PW-9,
namely, Amardeo Upadhyay and, therefore, the subsequent
statement of victim/PW-5 is hit by provision of Section 162 of
Code of Criminal Procedure (in short 'Cr.P.C.). It is also
submitted that the version narrated regarding occurrence by
victim/PW-5 before the police is different that what she deposed
during the trial. It is submitted that only eye-witness in this case
is PW-9, who himself appears to be involved in present case. It
is submitted that in a train, there is no separate provision for
ladies toilet and, as such, it cannot be said that appellant
knowing the fact that toilet is specifically for ladies entered into
it. It is also submitted that nothing surfaced during trial which
may suggest that appellant was aware about the presence of
victim inside the toilet. It is pure accidental and merely on this
ground as the appellant entered into the toilet which was already
occupied by victim/PW-5, it cannot be said that he was under
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
intention to outrage the modesty of the victim. It is also pointed
out that several important witnesses as TTE/coach attendant
were not examined during the trial. Learned counsel also
submitted that it is admitted position that victim/PW-5 was in
train without ticket and was changing compartment frequently
to save her from the catch of TT/coach attendant and also from
police. While concluding the argument, it was submitted that
matter has been compromised between the parties and as same
was lodged under confusion but the said compromise was not
accepted by the court being offence compoundable.
ARGUMENT ON BEHALF OF THE LEARNED APP
APPEARING FOR THE STATE
11. The learned APP while opposing the
submission as advanced by learned counsel appearing on behalf
of the appellants that victim/PW-5 categorically stated that the
intention of appellants were not appearing good. It is also stated
that victim received serious injuries due to jumping from the
running train as to save her from the clutches of appellants
where she received injuries. It is pointed out that her statement
was recorded in hospital where she was not in fit condition,
which is apparent from her deposition itself and in such
condition minor contradictions are bound to surface and mere
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
on that score only it cannot be said that prosecution did not
established its case beyond reasonable doubt. It is also
submitted that the occurrence is also supported by eye-witness
PW-9, namely Amardeo Upadhyay, who tried his best to save
the victim but failed.
12. In view of above, learned APP submitted that
recording of conviction under Sections 354 and 341 of the
Indian Penal Code by learned trial court is correct in eyes of law
and same is not required to be interfered under present appeal,
which is otherwise liable to be dismissed.
13. This Court perused the entire records and
considered the arguments as canvassed by learned counsel
appearing on behalf of the parties.
14. PW-1 is Ajit Kumar, who was travelling in the
same train in B1 coach/compartment of Brahmputra mail. He
was on berth no. 31, whereas accused/appellant Ramesh was on
berth no. 39. It was stated that accused/appellant worked in his
unit and designated as "Lans Nayak" and was going to his home
during vacation. It is stated that another accused/appellant,
namely, Dinesh boarded train at Patna. Both accused/appellants,
namely, Ramesh and Dinesh took their meal together on berth
no. 23 and, thereafter, they proceeded towards the gate. He slept
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
thereafter, and came to know at Allahabad railway station only
that accused/appellant Ramesh was arrested by police as he
outraged the modesty of a girl. From his deposition, it is
apparent that he is not the eye-witness of the occurrence and the
relevant fact what can be gathered from his statement that both
accused/appellants were present in coach no. B1 and they
proceeded towards the gate of the compartment after taking
their meal.
15. PW-2 is Rakesh Kumar, who was also
travelling in the Brahmputra mail on 3 rd January, 2013 and was
the occupant of berth no. 23 of B1 coach/compartment. He also
stated that accused/appellant Ramesh was also travelling in said
train. It was also deposed by him that friend of
accused/appellant Ramesh, namely Dinesh boarded to
compartment at Patna. They took their meal together and
thereafter, proceeded towards gate. He also stated to be slept
after taking his meal. He came to know at Buxar railway station
that Ramesh (accused/appellant) was arrested by police, where
luggage of Ramesh was unloaded from train by RPF at
Mughalsarai railway station.
15.1 On cross-examination, it appears that he
recorded the statement at Allahabad railway station and stated
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
that he has no any personal knowledge of this occurrence. From
his deposition, the fact which can be gathered that both
accused/appellants were available in B1 compartment and after
taking their meal they proceeded towards gate.
16. PW-3 is Sandesh Kumar, who was also a co-
traveller of B1 compartment of Brahmputra mail. He also
supported that Dinesh boarded train at Patna and thereafter, both
of them took their meal together. It was stated that after taking
meal, both of them proceeded towards outside. At Buxar he
came to know from Rakesh that Ramesh was arrested by police.
16.1 On Cross-examination, he stated that as per
his knowledge, nothing happened between Patna and Buxar. It
was also stated that he gave his statement on instance of police.
It was also stated by him that as per his knowledge no public
alarm was raised.
17. PW-4 is Gaurav, who is also a co-traveller of
Brahmputra mail and was occupant of berth no. 45 of B1
coach/compartment. It was stated by him that Ramesh and his
friend occupied berth no. 23 and he failed to depose about the
place of boarding of his friend. He also stated that he did not
saw Ramesh and his friend taking their meal together. He came
to know at Mughalsarai from Rakesh that police arrested
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
Ramesh and his friend who was sitting on berth no. 23.
17.1 On cross-examination, it was stated by him
that police detained him at Allahabad station. It was stated that
he has no personal knowledge regarding any occurrence in
coach/compartment in which he was travelling. It was also
stated by him that he deposed on instance of police. He was also
threatened to sent jail by police. It was stated that almost all
people of his coach was occupant of reserved berth. He stated
that he has no knowledge regarding occurrence.
18. PW-5 is Rekha Dorji, who is the victim of this
case, she stated that occurrence is of 3 rd of January, 2013 when
she was going to Delhi through Brahmputra mail as she was
without ticket, she was changing compartment frequently and so
when she entered into one AC coach, two boys started to talk
her in divergent language and they also tried to hold her,
resultantly she went to toilet but one of them forcibly entered. It
is stated that very quickly she came out from the toilet where
another boy was found standing outside and made an attempt to
caught her, where to save herself from their clutches she jumped
from the train and received injuries. It was stated that she
received injuries on her back, forehead etc. She stated
specifically that she narrated same thing before the police. It
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
was stated that the statement recorded by police was not read
over to her and she was also not in position to read. She
identified her signature over written information, which was
exhibited as Exhibit No. 1. She also identified appellant/accused
Ramesh Kumar who entered into toilet forcibly and by pointing
another appellant/accused Dinesh she said that he was the
person who was standing outside the toilet.
18.1 On cross-examination, it was stated by her
that she boarded in train on previous day of the occurrence and
since then she was frequently changing the compartments at the
time of checking. It is stated by her that the boys were present
near to same door from where she jumped. It was also stated by
her before the police that when she was in toilet, one boy
entered forcibly and when she came out quickly from toilet
another boy found standing outside and, therefore, she jumped
from the train and she came to know latter that said place was
"Ara". It was stated that she was going to Delhi to work in a
farm house. It was also stated by her that she was not nervous
being without ticket. She failed to disclose the address of farm
house. She denied the suggestion that as she was without ticket
and having no money, therefore, out of anxiety to be catched by
police personnel, jumped from the train and received injuries.
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
While being crossed on behalf of appellant/accused Dinesh, she
stated before the court that her first husband left her and,
thereafter, she solemnized second marriage, two childrens out of
said wedlock. She denied to talk with anyone in train.
19. PW-6 is Kanhaiya Lal Singh, who deposed in
his examination-in-chief that on 03.01.2013 he was posted at
Buxar when one person from Brahmputra express came to him
in very disturbed condition and said that one girl jumped from
train at Ara station as two persons outraged her. It was also
stated by him that said two persons are still present in train. The
name of person who came to him was Amardeo Upadhyay (PW-
9). It was deposed that at that point of time, Ajay Kumar, police
inspector, constable B.K. Tiwary and constable S.K. Rai were
present with him. On identification of said Amardeo Upadhyay
(PW-9) they went to the gate of train and arrested a person who
was standing over there. He disclosed his name as Ramesh and
also disclosed his name of friend as Dinesh. He deposed that
Ramesh was asked to call Dinesh and thereafter, Dinesh was
arrested from platform no. 1. It was deposed that statement of
Amardeo Upadhyay was recorded by Ajay Prakash, R.P.F
Inspector and thereafter, brought both apprehended
accused/appellants to GRP and handed over to them.
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
19.1 On cross-examination on behalf of
accused/appellant Ramesh, it was stated by him that Amardeo
Upadhyay is not known to him prior to this occurrence. It was
stated that statement of Amardeo (PW-9) was recorded by his
in-charge. He could re-collect the name of Amardeo Upadhyay
(PW-9) as he gave information regarding special occurrence. He
also stated that he has no personal knowledge, whether FIR was
lodged against Amardeo Upadhyay or not, whereas on cross-
examination on behalf of accused/appellant Dinesh, it was
stated by him that he was present when Amardeo Upadhyay
(PW-9) was talking with in-charge Ajay Prakash. He started to
give his statement at about 3.00 PM which last for about 1-2
minutes. He failed to disclose the number of coach/compartment
in which occurrence took place. It was stated by him that he has
no personal knowledge about the occurrence and what he stated
is based upon the information received from Amardeo (PW-9).
20. PW-7 is Ajay Prakash, who stated to be posted
at Buxar with RPF on date of occurrence i.e. 03.01.2013. On
said date at about 2.55 PM, 14055 up Brahmputra express
arrived at Buxar railway station at platform no. 4. He was in his
office and by that time one person, namely Amardeo Upadhyay
(PW-5) came to his office and stated that one military person
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
outraged the modesty of a lady passenger in toilet and also
committed wrong act upon her. It was stated that after coming
out from toilet, said lady passenger tried to jump from B1 coach
but he stopped her. It was stated that lady passenger further
moved towards the gate of A-1 compartment/coach and jumped
from train near western railway over bridge of Ara railway
station. It was stated that said Amardeo Upadhyay (PW-9) stated
that he knows said military passenger who outraged lady. On his
identification appellant/accused Ramesh Kumar was arrested
firstly and thereafter, information was given to RPF Inspector as
to recover the lady passenger, who jumped from the train.
Accused/appellant Ramesh disclosed name of his friend as
Dinesh Gawan, who is also accused/appellant and said Dinesh
Gawan was also arrested with the aid of GRP from platform no.
1 of Buxar railway station. He detained accused/appellant
Ramesh for about one hour and thereafter, handed over him to
SHO G.R.P., Buxar. By that time no case was lodged at Buxar
railway station. It was stated that case was registered on the
statement of Rekha Dorji by SHO, Ara GRP. The custody of
Ramesh was given to Ara GRP by Buxar GRP. It was stated by
him that he made his statement before the court out of
information as he received from the conversation with Amardeo
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
Upadhyay (PW-9). He met Rekha Dorji/victim at Sadar
Hospital, Ara. He also stated to record statement of Amardeo
Upadhyay (PW-9). He identified his hand writing and signature
over the statement which on his identification exhibited as
Exhibit no. 2. It is also stated that statement of Amardeo
Upadhyay (PW-9) was recorded by SHO, GRP Harendra Singh
before him. He also identified the signature and writing of said
Harendra Singh, which on his identification, exhibited as
Exhibit no. 1/A.
20.1 On cross-examination by accused appellant
Ramesh, it was stated by him that when he arrested
accused/appellant Ramesh on information of Amardeo
Upadhyay (PW-9) by that time no case was registered. It was
stated that fact narrated by Ramesh was not reduced by him in
writing. His statement was also obtained by Harendra Pd., SHO
but he did not put his signature.
20.2 On cross-examination on behalf of
accused/appellant Dinesh , it was stated by him that he could not
state that who were arrested beside Upadhyay (PW-9). It was
stated by him that accused/appellant Dinesh was arrested from
platform no. 1 on identification of accused/appellant Ramesh.
21. PW-8 is Harendra Singh, who was posted on
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
03.01. 2013 as Officer-in-charge of Bhaigan police station. He
recorded statement of Amardeo Upadhyay (PW-9). He identified
his hand writing and signature alongwith signature of Amardeo
Upadhyay (PW-9), which on his identification exhibited as
Exhibit no. 2/2. He stated to arrest accused/appellant Ramesh on
identification of Amardeo Upadhyay (PW-9) and also arrested
accused/appellant Dinesh on identification of Ramesh. He also
recorded the statement of co-passengers of said
coach/compartment. He recorded statement of Ankit singh,
Rakesh Kumar, Sandesh Kumar and Gaurav, where he identified
his signature and hand writing, which on identification exhibited
as Exhibit nos. 3, 4, 5 and 6.
21.1 On cross-examination, it was stated by him
that he was not known to Amardeo Upadhyay (PW-9) prior to
this occurrence. He started investigation as offence was
cognizable and it was his preliminary action. He recorded the
statement of four persons on instance of Amardeo Upadhyay
(PW-9). He was not cross-examined on behalf of
accused/appellant Dinesh.
22. The only eye-witness of this occurrence is
PW-9 i.e. Amardeo Upadhyay who was also travelling in the
said train in AC III tier compartment of Brahmputra mail. On
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
03.01.2013 in afternoon at about 2.45 PM train reached at Ara
railway station and on so he started to arrange his luggage near
to gate as he has to leave the train at Buxar. When he was in
process to collect the luggage from his berth to gate, he saw that
one girl entered into toilet where out of two boys, one entered
into toilet whereas another was standing outside. It was stated
that girl/victim came running near to gate and he pushed her
inside. It was stated that she was crying. It was stated by him
that again said girl moved towards AC II coach from where she
jumped, latter on he came to know that said girl was travelling
in B2 coach. He claimed to identify both persons, one who
entered into toilet as appellant/accused Ramesh and another who
was standing outside toilet was appellant/accused Dinesh. He
identified his signature on his statement recorded under Section
164 of the Code of Criminal Procedure which on his
identification exhibited as Exhibit No. 7.
22.1 On cross-examination on behalf of
appellant/accused Dinesh. He stated that accused/appellant was
not known to him prior to this occurrence. He denied that police
arrested him at Buxar. He stated in para-5 that he is not aware
that what happened to victim girl. He denied to depose falsely
on instance of police. On further examination on behalf of
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
appellant/accused Ramesh, it was stated by him that he never
saw victim prior to occurrence, as train started by that time. It
was stated by him that he did not saw any person to behave
indecently with said lady after exit from toilet and before
jumping her from train.
23. PW-10 Dr. Ashok Kumar Pandey, who was
posted as Medical Officer on 03.01.2013 in Sadar Hospital, Ara
and examined the injured Rekha about 4.45 PM and found
following injuries on her person:-
(I) scratch left foot dorsaly 1/2" x 1/4"
(ii) scratch on left hand 1/4" x 1/2C.M.
(iii) Lacerated wound 1/5 C.M., x 1/2 C.M.
(iv) Lacerated wound 1/2" 1/4" on vertex of head.
(v) Tenderness chest.
(vi) Multiple scratch on back in region.
(vii) Lacerated wound 1.5 C.M. x 2.1 C.M. on right ankle.
Doctor reserved the opinion of x-ray and he said
weapon as hard and blunt. He said in para no. 6 that these
injuries may be caused by falling from running train. In cross
examination he said in paras 9 and 10 that without X-ray report
he can not say, regarding the grievousness and nature of injury
and x-ray is not present before him. The injury report is marked
as Ext-A.
24. PW-11 is Rajendra Pd., who received statement
of Rekha Dorji/victim on 04.01.2013 at about 10.15 AM, which
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
was recorded by S.I. M. Ahmad at P.M.C.H. emergency ward,
Patna, which was exhibited during trial as Exhibit no. 9. After
registering the case, he himself took investigation. It was stated
by him that after receiving information, Ajay Kumar, in-charge
RPF regarding occurrence, registered a Sanha and proceeded to
verify the same and on so as he reached near western outer
signal between railway pole no. 594/29 and 594/26 he found
that one lady in injured condition was coming. He provided
train trolley to her and brought her to Sadar Hospital, Ara and
admitted there. She was badly injured. From Sadar Hospital, Ara
at about 6.30 PM on 03.01.2013 she was sent to PMCH, Patna.
The Medical Officer seized jacket and brassier of victim and
sent for FSL examination. He also seized undergarments and
black pant of accused/appellant Ramesh on 05.01.2013. This
seizure was made at Ara railway station. He secured to record
statement of Amardeo Upadhyay (PW-9), Ajit Kumar, Rakesh
Kumar and Gaurav Kumar under Section 164 of Code of
Criminal Procedure (in short 'Cr.P.C.). He found blood stained
at railways tracks which was seized by him and sent for FSL
examination. It was stated that on following the guidelines as
received by senior officer during the course of investigation, he
submitted charge sheet under Sections 341, 323, 354/34 of the
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
Indian Penal Code against accused/appellants Ramesh Kumar
and Dinesh Kumar vide charge sheet no. 2/30 on 12.01.2013.
He identified both accused/appellants during the trial.
24.1 On cross-examination on behalf of
accused/appellant Ramesh Kumar, he stated that he received
information regarding occurrence at about 3.15 PM on
03.01.2013 which was mentioned in his station diary. It was
stated that he did not record statement of Rekha Dorji/victim at
Ara as she was not in condition to give her statement but though
he made an attempt to record her statement but she was
unconscious. He also asked from doctor, whether she can give
her statement where it was said that she is not in position to give
her statement. He also stated that informant did not disclose that
on which station, she boarded in train, rather she only stated that
she was going to Delhi. It was also stated by him that he did not
investigate on this point whether Rekha Dorji/victim was
passenger of AC compartment or not. He did not collect any
documentary evidence which may suggest that informant was
travelling in AC compartment. It was stated that the charge sheet
was submitted under Section 376/511 of the Indian Penal Code
under direction of senior police officer. It was stated by him that
he did not made any attempt to secure statement of victim under
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
Section 164 of Cr.P.C. He also stated to record statement of
coach attendant and TTE but same was not recorded under
Section 164 of Cr.P.C.
25. PW-12 Dr. Madhu Bala Singh also examined
Rekha Dorgi, injured on-3.1.2013 at 5.00 P.M. at Sadar hospital
Ara and he said in Para 2 that on examination of internal parts
no injury present. In para 3 she said that hymen found old
ruptured. In para No-4 Visera swab taken, sent to Pathological
examinatiion. According to the report no spermatozoa either
alive or dead found. In para No-6 she said that opinion
regarding rape is not clear, where rape is done or not.
25.1 In cross examination she said in Para 8 that
she did not find positive sign of rape and she said in para No-8
that she did not find any injury. The Examination report of
Doctor is marked as Exhibit-14.
CONCLUSION
26. For the sake of convenience or for the better
understanding of the fact, it is apposite to reproduce the
provision of Sections 341 and 354 of the Indian Penal Code,
which is as under:-
341. Punishment for wrongful restraint.- Whoever
wrongfully restrains any person shall be punished with
simple imprisonment for a term which may extend to one
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
month, or with fine which may extend to five hundred
rupees,or with both."
354. Assault or criminal force to woman with intent to
outrage her modesty.- Whoever assaults or uses criminal
force to any woman, intending to outrage or knowing it to
be likely that he will there by outrage her modesty, 1 [shall
be punished with imprisonment of either description for a
term which shall not be less than one year but which may
extend to five years, and shall also be liable to fine]."
27. From the depositions of aforesaid prosecution
witnesses, it appears that PW-1, PW-2, PW-3 and PW-4 were
also travelling in same coach and train alongwith
accused/appellants. From their depositions, it appears that both
accused/appellants were known to each other and they took
meal together on berth no. 23 of B1 coach of Brahmaputra mail.
The said berth was allotted in favour of PW-2, namely, Rakesh
Kumar, it appears from their deposition that after taking meal,
both of accused/appellants were went towards outside i.e. gate,
therefore, presence of both accused/appellants near to the gate
of train is not disputed, whereas, none of these witnesses noticed
the presence of informant/injured/victim in compartment.
28. The only eye-witness of the occurrence is PW-
9, who is the Amardeo Upadhyay. He is appearing important
witness next to victim in the sense that he reported the
occurrence to RPF/GRPF personnels even before lodging the
FIR. He was in process to leave the train at Buxar station and in
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
that process he was keeping his luggage near to gate, where he
noticed that victim entered into the toilet. It was stated by him
that out of two boys, one boy entered into the toilet and other
was standing outside. He also noticed that victim woman came
out from toilet and rushed towards the gate, where he pushed
her inside and prevented her to jump from the train
compartment, thereafter, the said victim runs towards AC-II
from where she jumped. He identified both accused/appellants,
where he identified accused/appellant Ramesh as a person who
entered into the toilet and accused/appellant Dinesh who was
standing outside the toilet. He stated categorically in his cross-
examination that he is not aware that what happened with victim
woman. It was also stated by him that after taking exit from the
toilet and before jumping, no person did indecent behaviour
with victim woman. From his deposition, it is not appearing that
the entry of accused/appellant Ramesh into toilet was forcible or
with knowledge that victim woman was present inside. It is also
not appearing that said toilet was dedicated to ladies only, with
such evidence, the culpable mental state as to outrage the
modesty of the victim woman by accused/appellants cannot be
gathered.
29. Now the most important witness of the
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
occurrence is victim herself, who examined during the trial as
PW-5, who admitted in her examination-in-chief that she was
travelling without ticket and for that she was changing
frequently her compartment and so when he entered into the
AC-II coach, two persons started to talk differently. With this
statement intention to outrage cannot be gathered. She further
stated that both accused/appellants tried to hold her and
therefore, she entered into the toilet, where one boy entered
forcibly. She came out in hurry, where the second person was
standing outside also made an attempt to hold her and as to save
her, she jumped from the train where she received injuries. If the
depositions of victim be read in light of deposition of another
eye-witness of the occurrence PW-9 several contradictions
appears regarding occurrence. Firstly, victim stated in her
deposition that the another boy was standing outside the toilet
also made an attempt to hold her but the same was negated by
PW-9. Secondly, victim woman stated that she jumped
immediately from the same compartment but as per PW-9 she
rushed towards AC-II, from where she jumped. She was not
chased by any of the accused/appellants upto AC-II gate.
30. If the version of victim be taken into
consideration, it appears that occurrence took place in a broad
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
day time. The only eye-witnesses of the occurrence did not
depose in the manner it was stated by victim woman. From the
perusal of records, it also appears that the first incriminating
circumstances was stated to accused/appellants to caught hold
the hand of informant/victim and to ask her to sit on berth
whereas this fact nowhere appears to be surfaced from the
deposition of victim woman/PW-5. It also appears that the
second incriminating circumstances which was explained
regarding indecent behaviour but no incriminating
circumstances was placed before the accused regarding
occurrence what stated to be happened inside the toilet or
outside the toilet, while recording their statement under Section
313 of Cr.P.C.
31. In this context, it would be apposite to re-
produce the legal reports of Raghubir Pandey Vs State of
Bihar and Tuna Pandey Vs. State of Bihar reported in Cr.
Appeal (DB) No. 339 of 1990 with Cr. Appeal (DB) No. 395 of
1990, where it was observed in paragraph nos. 16 and 17 as
under:-
"16. It has been considered by a
number of times and by several authoritative
pronouncements it has been decided that
circumstances not explained to the accused cannot
be considered for the purpose of fastening the guilt.
In a case reported in (2006) 12 SCC 306: Vikramjit
Singh @ Vicky vs. The State of Bihar the accused
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
was acquitted because the circumstances leading to
prove guilt against the accused was not explained to
him under Section 313 Cr.P.C. Similarly, in (1984) 4
SCC 116: Sharad Birdhichand Sarda vs. State of
Maharashtra it was held that all the circumstances
which link the offence with the offender has to be
explained and if that was not done then that could
not be considered for proving the charge and it
cannot be said that the evidence was substantially
complied. Hon'ble Apex Court in the case of Sajjan
Sharma vs. The State of Bihar reported in (2011) 2
SCC 206 has deprecated erratic and evasive
compliance of Section 313 Cr.P.C.
17. In the present case, if the
circumstances which link the appellants with the
offence were not explained to them and without
considering this vital aspect order of conviction was
passed that was a grave error and violation of the
provision of Section 313 Cr.P.C. Not only that other
circumstances which has gone to the root of the
matter i.e. immediate cause of occurrence has not
been brought on the record."
32. It appears that the deposition of PW-5 i.e.
victim/informant improved over her FIR. It further appears from
the perusal of record that matter was compromised between the
parties and for that purpose, a compromise petition dated
30.01.2014 was also filed before the learned trial court stating
thereof that victim/informant jumped from the compartment out
of her nervousness as she was travelling without ticket and no
indecent behaviour was made by accused/appellants or neither
she was outraged by them but the said compromise petition was
not taken into consideration by the learned trial court as offence
under Section 354 of the Indian penal Code is compoundable.
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
By that time, the court was in business of this case and was not
functus officio as the judgment of conviction was recorded on
24.07.2014.
33. Hon'ble Supreme Court in the matter of P.
Ramaswamy Vs. State (Union Territory) of Andaman and
Nicobar Islands reported in (2013) 14 SCC 577, where it was
observed in para 12 as under:-
"12 In the circumstances, without
going into the question whether the High Court was
right in refusing to take compromise on file and
compound the offence, we deem it appropriate to
grant permission to compound the offence. Hence,
we permit the appellant, complainant and the
victim to compound the offence under Section 354 of
the IPC. The said offence shall stand compounded.
As per Section 320(8) of the Criminal Procedure
Code the composition of this offence shall have the
effect of acquittal of the offence under Section 354
of the IPC. Hence, the appellant is acquitted of
the charge under Section 354 of the IPC. In view of
this the impugned orders dated 13/7/2012 and
10/12/2012 passed by the Calcutta High Court are
set aside. If the appellant is in jail, he is directed to
be released forthwith unless otherwise required in
any other case."
34. From the perusal of records, it also appears
that FIR which was exhibited by learned trial court as Exhibit-9
of informant/victim woman, nowhere stating that anything
happened inside the toilet by accused/appellant. It simply state
that one person hold her and asked to sit on berth, where she felt
that the intention of said person was bad and thereafter, she
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
rushed towards the gate as to jump from there but was prevented
by a person standing near to gate and thereafter, she rushed to
another compartment from where she jumped. If the version of
this exhibit be taken into consideration then certainly, the
accused/appellants who were on berth no. 23 asked
victim/informant to be seated on said berth but the said fact was
not supported during the trial, neither it was supported by any of
the prosecution witnesses as discussed above rather a new story
regarding entering into the toilet by one accused/appellant and
also made an attempt to hold by another accused/appellant who
was standing outside the gate were developed during the trial.
35. In view of aforesaid facts, prosecution failed
to establish its case beyond reasonable doubt, accordingly,
appeal stands allowed.
36. The impugned judgment of conviction and
order of sentence dated 24.07.2014 rendered by 8th Adhoc
Additional District and Sessions Judge, Bhojpur at Ara, in
Sessions Trial No. 13 of 2013 is hereby quashed and set aside.
The accused/appellants are acquitted of the charges levelled
against them. Appellants are on bail as submitted, On acquittal,
their bailors and sureties stand discharged from their respective
liabilities.
Patna High Court CR. APP (SJ) No.440 of 2014 dt.04-01-2024
37. LCR, if any, be sent back to learned trial court
along with the copy of this judgment. Fine, if any, paid by
accused/appellants in furtherance of order of sentence, be
refunded to them immediately.
(Chandra Shekhar Jha, J)
veena/-
AFR/NAFR
CAV DATE NA
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