Patna High Court
Sanjay Ram vs The State Of Bihar on 1 May, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.878 of 2022
Arising Out of PS. Case No.-41 Year-2021 Thana- MAHILA PS District- Buxar
======================================================
Rakesh Ram, Son of Late Angur Ram, R/o Village - Sakhuana, P.S.- Rajpur,
District - Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 899 of 2022
Arising Out of PS. Case No.-41 Year-2021 Thana- MAHILA PS District- Buxar
======================================================
Sanjay Ram, S/O Narsingh Ram, R/O Village- Sakhuana, P.S- Rajpur,
District- Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 878 of 2022)
For the Appellant/s : Mr. Abhash, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
(In CRIMINAL APPEAL (DB) No. 899 of 2022)
For the Appellant/s : Mr. Pradhan Murli Manohar Prasad, Advocate
Mr. Raju Kumar, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 01-05-2024
1. The two appeals, viz., Cr. Appeal (DB) Nos.
878 of 2022 and 899 of 2022 (appellants/Rakesh Ram
and Sanjay Ram respectively) have been heard together
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
2/21
and are being disposed off by this common judgment.
2. Both the appellants, along with one Sangita
Devi, were put on Trial.
3. The appellants have been convicted under
Sections 342/34, 323/34 and 376-D/34 of the Indian
Penal Code and Sections 4/17 of the POCSO Act, 2012
vide judgment dated 27.09.2022 passed by the learned
Additional District & Sessions Judge-VI-cum-Special
Court POCSO Act, Buxar in POCSO Case No. 28 of
2021, arising out of Mahila P.S. Case No. 41 of 2021.
By order dated 29.09.2022, they have been sentenced
to undergo S.I. for one year, to pay a fine of Rs.
1,000/- each and in default of payment of fine, to
further suffer S.I. for one month under Section 342/34
of the IPC; S.I. for one year, to pay a fine of Rs.
1,000/- each and in default of payment of fine, to
further suffer S.I. for one month under Section 323/34
of the IPC and R.I. for twenty years, to pay a fine of Rs.
20,000/- each and in default of payment of fine, to
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
3/21
further suffer S.I. for six months under Section 376-
D/34 of the IPC.
4. The victim was given compensation of Rs.
5,00,000/-.
5. The other person put up on Trial along with
appellant, viz., Sangita Devi has only been sentenced to
undergo S.I. for one year and to pay a fine of Rs.
1,000/- for the offence under Section 342 of the IPC.
6. The sentences against the appellants have
been ordered to run concurrently.
7. The victim, a girl of less than 18 years, is
said to have been gang-raped by six persons including
the two appellants in the night of 09.06.2021.
8. The victim has herself filed the FIR alleging
that while she was witnessing the marriage function of
the daughter of one Laxman Ram from her roof-top, she
was gestured by co-accused/Sangita Devi to come down.
Sangita Devi took her to a hut and locked her inside.
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
4/21
This had happened at about 09:00 P.M. in the night of
09.06.2021
. Later, at about 11:00 P.M., six accused
persons entered the hut and committed rape with the
victim. She was stripped naked and her photograph was
taken by mobile telephone for the purposes of uploading
it on social media. Thereafter, appellant/Sanjay Ram
(Cr. Appeal (DB) No. 899 of 2022) undressed her and
committed rape on her. All others watched.
9. She also claims to have been divested of
her personal belongings including her ornaments. When
she shouted for help, her parents and villagers arrived.
Seeing them, the accused persons ran away. She was
taken to her home by her parents. Next day, in the
morning of 10.06.2021, she went to the Mahila Police
Station along with her parents and lodged the case.
Since she was the only child of her parents, the accused
persons had an evil eye on her family property.
10. On the basis of the afore-noted
statement of the victim, Mahila P.S. Case No. 41 of
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
2021, dated 01.06.2021 was registered for investigation
for the offences under Sections 147, 341, 323, 342,
376-D, 379, 506 and 120-B of the IPC and Sections 4
and 6 of the POCSO Act, 2012 against the appellants
and others.
11. The police after investigation, submitted
charge-sheet against four of the accused persons
including the appellants and Sangita Devi and one
Arvind.
12. For the reason of Arvind being a
juvenile, his case was transferred to the concerned
Juvenile Justice Board for determination of his guilt.
With respect to the others, the investigation was kept
pending.
13. The Trial Court, after having examined
six witnesses on behalf of the prosecution, convicted and
sentenced the appellants as aforesaid.
14. We have heard Mr. Abhash and Mr.
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
Pradhan Murli Manohar Prasad, the learned Advocates in
the two appeals respectively and Mr. Binod Bihari Singh,
the learned APP for the State in both the cases.
15. According to the fardbeyan of the
victim, she was gang-raped in the night of 09.06.2021.
This had happened after she was asked to come down by
co-accused/Sangita, who led her to a hut. The appellants
and four others entered the hut at about 11:00 P.M. The
consistent case of the prosecution is that on the cries of
the victim, her parents and villagers arrived. It was only
then that the victim could be brought back home. This
sequence of events, however, has been completely
abandoned by the witnesses at the Trial.
16. Testing the prosecution case with
another lens, we have examined the deposition of the
victim in some detail. She (P.W. 2) has stated many
more things in her examination-in-chief which were
really essential for her to narrate in the FIR also when
she had made such a detailed statement therein. She
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
has supported the prosecution case as also the story of
Sangita having taken her to the hut. Thereafter, she has
further disclosed before the Trial Court that the room in
which she was locked was made of straw and it was a
makeshift accommodation. The house of
appellant/Sanjay Ram is only next to the house of the
victim. Appellant/Rakesh's house is at some distance
from the house of the victim.
17. While the victim was being taken to the
hut where she was raped, nobody else noticed because
of people remaining busy in the marriage ceremony.
Nobody saw her being taken to the hut or of Sangita
Devi having made a gesture to her to come down from
the roof-top. She was treated at Deoria as she had
developed pain in her ears after ten days of the
occurrence. The people of the village, according to her,
came to know about the occurrence in the night only
after about half an hour of the occurrence. She has
admitted before the Trial Court that appellant/Sanjay
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
Ram is physically challenged and does not have one arm.
18. During cross-examination, she has
again admitted that appellants/Sanjay and Rakesh are
related to her and that there was no dispute with
appellant/Sanjay even when water from the roof-top of
the house of Sanjay fell on the roof-top of the victim's
house.
19. She was treated on 11.06.2021.
20. She had stated before the police that
the appellants had an evil eye on her property.
21. Her statement becomes doubtful for
very many reasons. She was called by Sangita while she
was witnessing the marriage ceremony of the daughter
of Laxman Ram (D.W. 1). That time, according to the
evidence of others, there were several persons available
not only in an around the house of the victim but on the
roof-top. Her being called by Sangita would not have
gone unnoticed.
22. The second aspect of the matter is that
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
she claims to have been locked inside a hut. It was a
makeshift accommodation which did not have any
window or door.
23. The Investigator found that the hut was
very near the house of the victim. In fact, the garland
exchange ceremony was taking place in the house of the
victim only.
24. It appears to be rather strange that the
victim remained inside that makeshift hut for two hours.
Whether the lock put on the door was broken or whether
the victim could be freed only after the villagers and her
parents arrived, remains unknown. There are different
versions about that aspect of the story.
25. We have noticed that according to the
FIR, her parents had arrived at the scene of occurrence
and had taken her to home. She, in her cross-
examination, however, has clearly stated that on her
cries, her parents arrived but the other witnesses have
only testified to the fact that the victim came back home
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
on her own and, thereafter, narrated about the incident
to her parents and others. Perhaps, for this reason,
there are no other independent witnesses to the
occurrence.
26. In this context, it would be profitable to
refer to the deposition of the parents of the victim, who
have been examined as P.Ws. 1 and 3.
27. The father of the victim (P.W. 1) has
supported the prosecution case, but in his cross-
examination, he has said that in his house, there are
eight rooms on the ground floor and no room on the
upper floor. On the day of the occurrence, a baraat had
come in the house of Laxman Harijan, whose daughter's
marriage was being performed. The house of Laxman
Harijan is situated nearby. Jaimala, i.e., exchange of
garlands between bride and groom had taken place at
09:00 P.M. near his darwaza. It was at that time that his
daughter was called by Sangita and his daughter
followed suit. He met his daughter (victim) only when
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
she came back home. Very curiously, P.W. 1 has stated
that he met his daughter after the assault was over.
28. This is not the prosecution case.
29. He had seen his daughter bleeding from
her ears. Her mouth also was swollen.
30. This, therefore, completely contradicts
the deposition of the victim that her parents had rushed
to the P.O. hearing her cries. P.W. 1 did not report
about the occurrence to anybody for whole of the night.
He has also clearly admitted before the Trial Court that
even though he was present during the marriage
ceremony at his house, but he never saw Sangita calling
his daughter. He had not stated before the police that
when his daughter was on the roof-top, Sangita had
called her at 11 o'clock in the night.
31. If his deposition is to be believed, many
persons were present in the marriage ceremony. The
house of the bride was situated next doors. The hut
where the occurrence took place was also at a distance
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
of 10 metres. It was simply impossible for the villagers
and others not to have seen and noticed the taking away
of the victim; her being locked in a hut and then gang-
raped at about 11 o'clock in the night. He has finally
concluded before the Trial Court that he had not seen
any part of the occurrence nor had any villagers seen
anything.
32. What is even more surprising is that
P.W. 1 has stated that on the roof-top, along with the
victim, there were 25 other persons who were also
witnessing the marriage ceremony. All the happenings in
the hut was not seen by him but was narrated to him by
his daughter.
33. This, therefore, makes the deposition of
the victim very doubtful.
34. He has also admitted that both the
appellants are distantly related to him.
35. Similar is the deposition of the mother
of the victim, who has been examined as P.W. 3. It was
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
admitted by her also that the house of appellant/Sanjay
was next door and that near her house, the garland
exchange ceremony was going on. She was all along
with her daughter (victim). She has also admitted that
appellant/Sanjay is differently abled. Both the appellants
are married and they have children. She had not stated
before the police that the appellants wanted to
appropriate her family property. With respect to the
occurrence, she has stated that only she and her
husband (P.W. 1) knew about it and nobody else. In
fact, she, in her deposition has talked about the
participation of the husband of Sangita as well, which
was never the prosecution case.
36. In this background, the evidence of the
two Doctors would assume significance.
37. The victim was assessed to be 16 to 17
years of age on the day of ossification test by Dr.
Yogendra Kumar (P.W. 4). This was done on
10.06.2021. On the same day, the victim was also
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
examined for the injuries on her person. At about 04:30
P.M. on 10.06.2021, Dr. Awani Chitra Sinha (P.W. 6)
examined her and also collected the vaginal swab for its
microscopic examination. No spermatozoa was found
either dead of alive under the microscopic examination.
A few epithelial cells were, of course, present in the
vaginal swab. The hymen was found to be ruptured.
There was no evidence of any external injury over any
part of the body of the victim including her private parts.
38. The case of the prosecution is that she
was gang-raped and had also been assaulted while being
divested of her personal belongings. In fact, the father
of the victim had seen her bleeding from her ears. The
victim also claims to have been hurt in her ears and for
the pain which had erupted, she had to go to Deoria for
treatment. This medical examination was done on the
next day of the occurrence but P.W. 6 found that there
was no recent sign of any sexual act on the victim.
39. What could then have been the reason
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
for the victim to have named so many persons of the
village including the appellants and her parents?
40. This remains a mystery to us.
41. The Investigator (P.W. 5) has offered
no material to us to take this case to any logical
conclusion. She has only expressed before the Trial
Court what she had not done as an Investigator. She did
not get the appellants medically examined as is
mandated under Section 53A of the Cr.P.C. (refer to
Chotkau vs. State of U.P.; (2023) 6 SCC 742).
42. Though, the clothes of the victim were
sent for forensic examination, but no report was
obtained by her. She had not inquired about any
uploading of nude pictures of the victim on the social
media. All that she has done was to send the victim for
her medical examination. No investigations at all were
made with respect to the veracity of the accusation
against the appellants and others, against whom no
material was forthcoming and, therefore, the
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
investigation was kept pending against them.
43. On the contrary, some explanation can
be gathered from the deposition of two of the defence
witnesses who were examined, viz., Laxman Ram (D.W.
1) and Pinki Devi (D.W. 2).
44. In the night of the occurrence, marriage
ceremony had taken place in the house of D.W. 1,
whose daughter was getting married. He was aware of
the appellants and the family of the victim. He has
specifically stated that in the marriage, approximately
100 persons including women were present in his house.
All of them remained in his house till about 3 o'clock till
early in the morning. Both the appellants were helping
the family of the bride in feeding the guests who had
come over for the marriage function. Even Sangita Devi
was present in his house. Appellant/Sanjay, according to
him, is physically disabled but is a family man with wife
and children. So is the appellant/Rakesh.
45. Though he did not state anything about
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
the reason for false implication but his deposition clearly
endorses the innocence of the appellants.
46. Had the appellants participated in the
crime and had gang-raped the victim, perhaps there
would have been many villagers to depose against them.
Nobody has been brought to the witness-stand to prove
the case against the appellants.
47. Pinki Devi (D.W. 2) is the wife of
appellant/Sanjay Ram. She was absolutely distraught on
hearing about the accusation against her husband. She
has spoken before the Trial Court about her happy
family life and that the accusation against her husband
was absolutely wrong.
48. We have also examined the statement
of the victim recorded under Section 164 Cr.P.C. to be
doubly sure whether the evidence brought on record
against the appellants make out any sense. In her 164
statement, the victim has not even named Sangita but
has only alleged that out of several women who had
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
come to the house of Laxman Ram, one woman called
her and took her to a hut where she was locked from
inside. Later, the appellants and others gang raped her.
49. What is very stark in her statement
under Section 164 of the Cr.P.C. is that after she was
raped, she ran back to her home and locked the door
from inside. Only later, she informed about the
occurrence to her parents and others. This is at complete
variance with what she had to say in her FIR and before
the Court during the Trial.
50. Thus, for all practical purposes, the
prosecution has not been able to prove the case beyond
all reasonable doubts. We say so for the following
reasons:-
(i) There is a wide divergence in the
fardbeyan statement of the victim, her statement under
Section 164 of the Cr.P.C. and her deposition before the
Trial Court.
(ii) In the night of the occurrence, a marriage
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
ceremony was being performed where hundreds of
villagers and guests had arrived. None of them
admittedly had noticed any part of the occurrence and
nobody from the village or neighbourhood was brought
to the witness-stand to prove the case against the
appellants.
(iii) The victim was locked inside a hut about
which one of the witnesses has disclosed that it did not
have a door or a window. All the witnesses have said
that the hut was a makeshift construction with the roof
of corrugated tin and plastic sheets. The victim could not
have been locked inside such a place.
(iv) There is a great divergence in the story
of the victim having cried for succour and her parents
and other villagers arrived at the scene of occurrence.
(v) The victim was subjected to medical
examination the next day when the Doctor did not find
any injury on any part of her body or any recent sign of
sexual intercourse. The evidence collected during the
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
Trial was replete with references to the appellants being
the neighbours and related to the victim.
(vi) And lastly, the deposition of the two
witnesses on behalf of the defence about the false
implication of the appellants improbablizes the
prosecution version.
51. Taking the entire case in its totality and
the failure of Investigator to make proper investigation
and completely avoiding the mandate of Section 53A of
the Cr.P.C., we are not convinced that the prosecution
has proved the case beyond all reasonable doubts. The
prosecution evidence totters when seen in some detail.
52. For the afore-noted reasons, we give
benefit of doubt to both the appellants and set aside the
conviction and sentence against them. The appellants
are acquitted of all the charges levelled against them.
53. Both the appeals stand allowed.
54. It is informed by the learned Advocates
that both the appellants are in jail. They are directed to
Patna High Court CR. APP (DB) No.878 of 2022 dt.01-05-2024
be released forthwith from jail, if not detained or wanted
in any other case.
55. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
56. The records of this case be returned to
the Trial Court forthwith.
57. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Jitendra Kumar, J)
Sauravkrsinha/
Sunilkumar-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 03.05.2024
Transmission Date 03.05.2024
