The Patna High Court set aside the conviction of three appellants for gang rape and SC/ST Act offences, finding the prosecution evidence inconsistent and uncorroborated by medical or forensic proof.
The appellants were acquitted of all charges and ordered to be released forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
``IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.30 of 2020
Arising Out of PS. Case No.-97 Year-2011 Thana- CHACKMEHSI District- Samastipur
======================================================
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
====================================================== Appearance : For the Appellant/s : Mr. Vindhya Keshri Kumar, Sr. Advocate Mr. Neeraj Kumar, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, APP ======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)
Date : 19-12-2022
We have heard Mr. Vindhya Keshri Kumar, learned Senior Counsel for the appellant assisted by Mr. Neeraj Kumar, learned Advocate and Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor for the State.
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informant (PW-6).
| S | entence | |||
|---|---|---|---|---|
| Appellant | Conviction | |||
| Number | under Section | Imprisonment | Fine (Rs.) |
In default of fine |
| Section 376(2) (g) of the IPC |
Imprisonment for ten years |
25000/- | S.I. for three months |
|
| 1 | Section 3(1) (xii) of the SC/ST Act |
R.I. for two years | 4000/- | S.I. for one month |
| . | Section 3(2)(v) of the SC/ST Act |
Imprisonment for life |
50,000/- | S.I. for six months |
| Section 324 of the IPC |
R.I. for three months |
5000/- | S.I. for one month |
|
| Section 376(2) (g) of the IPC |
Imprisonment for ten years |
25000/- | S.I. for three months |
|
| 2 | Section 3(1) (xii) of the SC/ST Act |
R.I. for two years | 4000/- | S.I. for one month |
| . | Section 3(2)(v) of the SC/ST Act |
Imprisonment for life |
50,000/- | S.I. for six months |
| Section 324 of the IPC |
R.I. for three months |
5000/- | S.I. for one month |
Patna High Court CR. APP (DB) No.30 of 2020 dt.19-12-2022 3/29
| Section 376(2) (g) of the IPC |
Imprisonment for ten years |
25000/- | S.I. for three months |
|
|---|---|---|---|---|
| 3 | Section 3(1) (xii) of the SC/ST Act |
R.I. for two years | 4000/- | S.I. for one month |
| . | Section 3(2)(v) of the SC/ST Act |
Imprisonment for life |
50,000/- | S.I. for six months |
| Section 324 of the IPC |
R.I. for three months |
5000/- | S.I. for one month |
Patna High Court CR. APP (DB) No.30 of 2020 dt.19-12-2022 4/29
shut. The appellant No. 2 is said to have bitten the informant’s right cheek. When somehow or the other she managed to scream, her grandmother (PW-1), younger sister (PW-2) and her younger brother (PW-3) rushed towards the said agricultural field whereafter all the appellants fled away from the place of occurrence. On reaching there, PW-1 clothed the informant. Based on a fardbeyan to the aforesaid effect recorded by the Police Officer of the concerned Police Station at 9:00 pm., the FIR came to be registered on the same day at 10:00 pm as Chakmeshi P.S. Case No. 97 of 2011, for the offence punishable under Section 376/34 of the Indian Penal Code and Section 3(1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ( in short “SC/ST Act”).
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by her in her fardbeyan .
“1. The red, brown, blue attached sitara sari marked ‘A’ bore reddish brown stains at places. It also grayish stains which were neither stiff to feel nor did they produce any characteristic bluish white fluorescence in ultra violet light.
2. The red saya marked ‘B’ bore reddish brown stains at places. It also bore grayish white stains which were stiff to feel and which produced characteristic bluish
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which fluorescence in ultra violet light.
3. The red, brown, blue attached sitara blouse marked ‘C’bore reddish brown stain at one place. It also bore grayish stains which were neither stiff to feel nor did they produce any characteristic bluish white fluorescence in ultra violet light.”
(1) Exhibit 1/1- the signature of the informant on the fardbeyan
(2) Exhibit 2- the signature of the informant on her statement recorded under Section 164 of the Cr.P.C.
(3) Exhibit 3/1- the signature of the informant on the seizure memo
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(6) Exhibit 5- the formal FIR
(7) Exhibit 6- the seizure memo
(8) Exhibit 7- the medical report
(9) Exhibit-8- the statement of the informant (PW-6) recorded under Section 164 of the Cr.P.C.
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Scheduled Caste.
"(2) Whoever, not being a member of
a Scheduled Caste or Scheduled
Tribe:-
(i) X X X (ii) X X X (iii)X X X (iv)X X X
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member.
Shall be punishable with imprisonment for term which shall not be less than one year but which may extend to the punishment provided for that offence.”
(underscore for emphasis)
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“on the ground that………. to such member” now reads as
under:-
“ Knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member”
the offence was committed by accused persons ‘on the ground’ or ‘because’ the informant (PW-6) belonged to a scheduled caste. This is apparently the reason why the charge-sheet was not filed by the police alleging commission of offence punishable under Section 3(2)(v) of the SC/ST Act nor a charge was framed for commission of the offence punishable under the aforesaid Section. It has, therefore, been considered apt by this Court to hold at the outset that the conviction recorded by the learned trial court against these appellant for commission the offence punishable under Section 3(2)(v) of the SC/ST Act, is completely erroneous and unsustainable.
legality of the findings recorded by the learned trial court of conviction of the offences punishable under Sections 376(2)(g) of the Indian Penal Code and Section 3(1)(xii) of the SC/ST Act.
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Before referring to the evidence adduced at the trial and the submissions advanced on behalf of the parties, we consider it desirable to reproduce Section 376 of the Indian Penal Code in
its form as it existed on the date of occurrence i.e. 27.10.2011,which read as under:-
“376. Punishment for rape.-Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,-
(a) being a police officer commits rape-
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11/29
(i) within the limits of the police station to which he is appointed;or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate4 to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place of institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman
Patna High Court CR. APP (DB) No.30 of 2020 dt.19-12-2022 12/29
knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine;
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the
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reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.]”
existed on the date of occurrence read as under:-
“ (xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed;
X X X X Shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine.”
reproduced above, as they existed on the date of occurrence, we are proceeding to refer to and deal with the evidence adduced at the trial by the parties.
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Patna High Court CR. APP (DB) No.30 of 2020 dt.19-12-2022 15/29
responding to a suggestion made on behalf of the defence to her during her cross-examination. She identified the appellants, who were present in the Court.
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found the informant lying and these appellants fleeing away. She denied the suggestion of the defence that these appellants were falsely implicated because of their opposition to the prosecution side damaging the crops.
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informant at 9:00 pm. Thereafter, he had visited the place of occurrence. First place of occurrence was under a mango tree on the southern side of the house of the informant where informant had gone to ease herself. East of the said place was the informant’s land. The second place of occurrence was nearly 100 yards southeastwards the paddy field of Ramraj Mahto. Third place of occurrence was nearly 250 yards southward the turmeric field of the Rajendra Mahto. In the turmeric field of Rajendra Mahto, the commission of rape was alleged.
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husband of the Sarpanch , who deposed that he after having been informed by his wife he had reached the house of Prabhu Mahto where he had found that Prabhu Mahto had captured few shegoats of the informant and there was altercation going on between Prabhu Mahto, the informant (PW-6), her father (PW5) and her grandmother (PW-1) on the point of release of the she-goats. Prabhu Mahto was complaining that the she-goats had grazed his paddy crops. After his intervention the she-goats were returned but tension prevailed between the two families.
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that a doubt is created about the place of occurrence itself. Drawing the Court’s attention to the fardbeyan of the informant, he has submitted that according to the fardbeyan, the place of occurrence is a paddy field of the informant in which there was(were) toddy palm tree(s) where the rape was committed on her. In the evidence, however, the prosecution’s witnesses have given a different place of occurrence i.e. agricultural field of Ramraj Mahto or Rajendra Mahto having turmeric crops. He has further submitted that according to the deposition of the informant she had screamed when the rape was being committed on her and on hearing her screaming her grandmother (PW-1), her sister (PW-2) and her brother (PW-3) had rushed to the place of occurrence. Contrary to her deposition, PW-1 in her evidence deposed that PW-2 had already informed her (PW-1) that three persons were forcibly taking the informant to some place. PW-1 did not depose that she had heard PW-6 screaming, rather she had learnt from PW-3 that the informant (PW-6) was being taken away. PW-5 in his evidence at the trial deposed that his son (PW-3) had come to the toddy shop, where he was consuming toddy, and had told him that some persons had taken away the informant. He has accordingly submitted that there are material contradictions in
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the evidence of the witnesses and the prosecution has miserably failed to establish its case beyond all reasonable doubts. He has further argued that considering the patent contradictions in the evidence of the prosecution’s witnesses and the evidence of the defence witnesses to the effect that there was a dispute between two families over grazing of paddy crop by the she-goats of the informant coupled with absence of corroboration of the occurrence of rape in the medical evidence, conviction of these appellants of the offences as aforesaid recorded by the trial court is wholly erroneous and unsustainable. He has further submitted that detection of semen mixed blood on the petticoat ( saya) of the informant as reported by the FSL is not a conclusive proof that the semen was of appellant No.1, which is the prosecution’s case. He has submitted that failure on the part of the prosecution to connect that the semen found in the blood stained petticoat of the informant was of the appellant is fatal to the case of the prosecution and for this reason also the conviction recorded by the trial court is unsustainable.
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sans corroboration by medical evidence. He has further submitted that in the present case the evidence of the prosecutrix (PW-6) stands corroborated by her family members including her father (PW-5), her grandmother (PW-1), her sister (PW-2) and her brother (PW-3). The prosecution’s evidence is further strengthened by the report of the Forensic Science Laboratory, which has disclosed detection of human semen mixed bloodstains on the petticoat of the prosecutrix. He submits that in the cases of such nature, minor contradictions may occur in the oral testimony of the prosecution’s witnesses which has rightly been ignored by the trial court while recording conviction of these appellants.
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was taking place that her grandmother (PW-1), her brother (PW3) and sister (PW-2) rushed to the said paddy field. In the meanwhile, these appellants had fled away. The place of occurrence as described in the evidence of the witnesses at the trial is different from the place of occurrence as was described by the informant in her fardbeyan . Further, according to PW-1, she was told by PW-2 that some persons were taking the prosecutrix to some palce. It is not her evidence that she had rushed to the place of occurrence after she had heard the prosecutrix screaming. PW-3 in his deposition has narrated a different story to the effect that he heard someone screaming whereafter he told PW-1 that someone was screaming then they started searching for the prosecutrix upon which they found the prosecutrix lying naked in the turmeric field of Rajendra Mahto. He had seen these appellants fleeing away from there. The evidence of father of the prosecutrix (PW-5) assumes significance in the aforesaid background. He deposed that when he was consuming toddy in the village, PW-3 had come to him to tell him that someone had taken the prosecutrix away. Analyzing the evidence of these four prosecution’s witnesses viz. PWs. 1, 2, 3 and 5, we notice that according to PW-1, she was told by PW-2 that some boys were taking the prosecutrix
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away. According to her evidence, thus, it was within the knowledge of PW-2 that prosecutrix was being taken away whereafter she had gone to the place of occurrence with PW-2 and PW-3, where she found the prosecutrix naked and weeping. Narration of PW-3 is substantially different. He is said to have told PW-1 that there was someone screaming whereafter they had gone to the place of occurrence and found the prosecutrix lying in the agricultural field of Rajendra Mahto. These major contradictions substantial in nature in the evidence of the prosecution’s witnesses, cannot be ignored completely while considering the proof of the charge against the appellants for commission of offence punishable under Section 376(2)(g) of the Indian Penal Code.
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Dilip Mahto, who had threatened her on 09.10.2011 i.e. 18 days before the date of occurrence that she would have to face the consequences because she had declined to talk to him. It can be deduced from her deposition that the prosecutrix developed a new case at the trial of commission of rape upon her by appellant No. 1 with the aid of appellants No. 2 and 3 as result of vengeance at the instance of said Dilip Mahto. Considering such evidence of the prosecutrix and conflicting evidence of prosecution’s witnesses 1, 2, 3 and 5, in our opinion, conviction of these appellant cannot be justified, based on the sole evidence of the prosecutrix.
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occurrence had seen the informant (PW-6) lying in the field. The manner of occurrence said to have been committed by these appellants in the paddy crop field has been described by the informant according to which while her body was held by the appellants No. 2 and 3, appellant No. 1 had raped on her. In the medical examination held on 28.10.2011 i.e. on the very next day of the occurrence, no external sign of injury or violence was found all over the body of the prosecutrix by the medical board of three doctors constituted to examine the informant. It is unlikely that there would be no external injury or sign of violence over the body of the informant (PW-6) after commission of rape on her in the paddy field, in the manner described by the informant. The medical evidence, thus, does not fully support the prosecution’s case of the manner of occurrence. It is trite that the prosecution’s case of commission of rape may not be brushed aside, based solely on the opinion of medical board to the effect that it could not be said whether rape had been committed or not. At the same time, this Court cannot ignore the finding of the medical board of absence of any external sign of injury or violence all over the body coupled with the fact that no foreign body or foreign hair was found in the vagina of the informant. The only scientific evidence,
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secondary in nature which was produced by the prosecution at the trial to corroborate the charge of rape was a copy of FSL report, which disclosed detection of semen mixed blood on the petticoat ( saya) of the informant. The informant had produced those clothes to the police. No investigation was apparently carried to connect the appellant No. 1 with the semen detected in the bloodstains which the petticoat bore. Detection of semen mixed bloodstains on the petticoat of the informant, in the facts and circumstances noted above cannot be said to be corroborating evidence to the connect the appellants with the charge of rape. This is more so for the reason that the informant (PW-6) was a married woman.
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considered opinion that the prosecution failed to establish beyond all reasonable doubt commission of rape by appellant No. 1 with the aid of appellants No. 2 and 3 on the informant (PW-6). We have already noted that the evidence of the informant (PW-6) is not fully trustworthy, in view of the circumstances which have already been discussed hereinabove in the present judgment.
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Section 376(2)(g) of the Indian Penal Code is unsustainable. They deserve to be given benefit of doubt in the absence unwavering and concrete proof.
Patna High Court CR. APP (DB) No.30 of 2020 dt.19-12-2022 29/29
dated 05.12.2019/12.12.2019 passed by learned 1st Additional Sessions Judge-cum-Special Judge (SC/ST Act) Samastipur in Sessions Trial No. 79 of 2021 arising out of Chakmeshi P.S. Case No. 97 of 2011 is hereby set aside.
(Chakradhari Sharan Singh, J)
(Chandra Prakash Singh, J)
anand/-
| AFR/NAFR | NAFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 13.01.2023 |
| Transmission Date | 13.01.2023 |
1 issue framed by the court
Whether the conviction for gang rape under Section 376(2)(g) IPC and related SC/ST Act offences was sustainable given contradictions in prosecution evidence and lack of corroboration?
4 provisions across 2 enactments
Ravi Mahto
Shambhu Mahto
Guddu Kumar
The State Of Bihar
Chakradhari Sharan Singh
Chandra Prakash Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
