Patna High Court - Orders

Dilip Kumar vs The State Of Bihar on 26 November, 2024

Author:
Rajeev Ranjan Prasad

Bench:
Rajeev Ranjan Prasad
,
Jitendra Kumar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.652 of 2024
Arising Out of PS. Case No.-16 Year-2022 Thana- MAHILA P.S. District- Sheikhpura
======================================================
Dilip Kumar, son of Arvind Yadav, Resident of Village- Bangalipar, PS-
Sheikhpura, Dist- Sheikhpura.
... ... Appellant
Versus
1. The State of Bihar
2. 'X' C/O Sahid Parwez R/O - Sakunat/ Ahiyarpur, P.S- Sheikhpura, Dist-
Sheikhpura.
... ... Respondents
======================================================
Appearance :
For the Appellant/s : Mr. Yogesh Chandra Verma, Sr. Advocate
Ms. Kumari Anupam, Advocate
For the Respondent/s : Mr. Satya Narayan Prasad, Addl.PP
For the Resp No. 2 : Mr. Mahendra Prasad Verma, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL ORDER

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

4 26-11-2024
Heard learned senior counsel for the appellant, learned

counsel for the informant and learned Additional Public Prosecutor

for the State.

2. The informant is herself present in the Court and on the

request of learned counsel for the informant, she has also been

allowed to make her submissions.

3. Records have been placed before this Court to consider

the prayer of the appellant for suspension of his sentence and release

on bail during pendency of the appeal.

4. The appellant has been convicted vide judgment dated

27.04.2024 and sentenced vide order dated 01.05.2024 by learned

District and Sessions Judge, Sheikhpura for the offence under
Patna High Court CR. APP (DB) No.652 of 2024(4) dt.26-11-2024

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Sections 376(D)
/
,
/
,
/
,
/
,
/
and
/
of

the Indian Penal Code (in short '
IPC
') in Sessions Trial No. 19 of

2023 arising out of Sheikhpura Mahila P.S. Case No. 16 of 2022. He

has been ordered to undergo rigorous imprisonment for 20 years with

a fine of Rs.15,000/- for the offence under
Section 376(D)
IPC and in

default of payment of fine, he shall further undergo three months

rigorous imprisonment. For brevity sake, sentences under other

sections are not being mentioned.

5. As per the prosecution case, the appellant and co-

accused persons, who are also appellants in the connected appeal

being Cr. Appeal (DB) No. 663 of 2024 and Cr. Appeal (DB) No. 679

of 2024 have committed rape upon the informant/victim.

6. Learned senior counsel for the appellant submits that

earlier this Court had occasion to hear the identical prayer of the

appellants, namely, Chandan Kumar and Laxman Yadav in the

above-mentioned two appeals and after hearing learned counsel for

the parties and learned Additional Public Prosecutor for the State,

this Court has been pleased to grant them privilege of suspension of

sentence and release on bail during pendency of the appeal. A copy of

the order dated 04.10.2024 passed in Cr. Appeal (DB) No. 663 of

2024 has been placed before this Court.

7. Learned senior counsel submits that the victim in this

case has stated that she happened to be a student of B.A.-1st Part in

Mahila College, Sheikhpura and on the date of occurrence i.e.
Patna High Court CR. APP (DB) No.652 of 2024(4) dt.26-11-2024

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13.12.2021, she was going to collect her admit card of Alim Part-I

from Biharisharif college. She had left her house at 6:00 AM in the

morning. It was winter season. In course of investigation, however,

no material could be collected that the victim girl was a student of

Alim Part-I. The victim has herself deposed in course of trial in the

year 2023 that she had done her graduation from Sanjay Gandhi

Mahila College, Sheikhpura but on the date of occurrence, she had

also registered herself in the graduation course of Urdu from Urdu

Board. Though she claimed that she can produce the paper but no

such paper could be produced. The submission is that the fact that the

prosecutrix had left her house at 6:00 AM for collecting her admit

card has not been proved by any cogent evidence and in the same

year, she could not have been a student of two graduation courses

from two different Boards.

8. Learned senior counsel further submits that it is very

surprising that the victim alleged that she was raped by five named

accused persons on 13.12.2021 near the Government School,

Bangalipar. The said occurrence was never disclosed to anyone and

no FIR was lodged in that connection.

9. Learned senior counsel further submits that according

to the victim, while committing rape, the accused persons had made

her video and that her physical as well as mental condition had gone

weak, for this reason she was not going to her college being afraid

that she may be murdered but the falsity of her statement may be
Patna High Court CR. APP (DB) No.652 of 2024(4) dt.26-11-2024

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found from the fact that after the occurrence, she continued with her

college for next two years and passed her graduation examination

from Sheikhpura college itself. The so-called video which was

allegedly made by the accused persons has never been found in the

mobile phone of the accused and there is no evidence to this effect.

10. Learned senior counsel has shown from paragraph '8'

of the deposition of the victim that the victim had lodged another

case being Sheikhpura Mahila P.S. Case No. 31 of 2022. Initially,

when she was asked that she had lodged two other cases, she denied

the same but then she was shown the FIR of Mahila P.S. Case No.31

of 2022 in which she and her mami had lodged the case, then the

informant has stated that she and her mami had lodged the said case

because they were finding a lot of misgivings and rumours in the

media that she and her mami were indulging in wrong act.

11. It has further been submitted that the falsity of the

statement of the victim may be found from the fact that even as she

alleges rape had been committed by five named accused persons,

she did not go to any doctor and there is no evidence that she was

ever treated for that so-called rape. In her 164
Cr.P.C
. statement

which was recorded on the very next day of the lodging of the FIR,

she did not mention the name of any of the accused persons. She

claimed that 20 days ago, one boy had called her over telephone by

threatening her to make her video viral and when she went there,

she was raped. Again about this occurrence, she had not reported to
Patna High Court CR. APP (DB) No.652 of 2024(4) dt.26-11-2024

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police and she had not named the said boy and it is apparent that in

order to save her from the media reports about her wrong acts, she

had come out with these allegations. In her statement before the

learned Magistrate, she claimed that she identified two boys and she

further claimed that she can identify the others but in her deposition,

she has stated that prior to the occurrence, she did not know Chandan

and other accused persons and after lodging of the FIR, she was

seeing the accused persons only in the court. During the period of

investigation, no TIP was conducted to ensure the identification of

the accused persons.

12. It has further been pointed out to this Court that the

victim was subjected to the medical examination on 26.04.2022 in

which the doctor had not found any injury on her private parts but

from the overall findings, it would only appear that sexual

intercourse had been done. She being an adult, the finding of the

doctor that sexual intercourse has been done with her would not be a

proof that these accused persons had committed rape on her on

13.12.2021, particularly, when she herself admits that there were

media reports about her wrong acts.

13. In course of submissions, learned Additional Public

Prosecutor for the State as well as learned counsel for the informant

do not controvert the submission of learned senior counsel for the

appellant that his case would be standing on identical footing with

the appellants, namely, Chandan Kumar and Laxman Yadav in Cr.
Patna High Court CR. APP (DB) No.652 of 2024(4) dt.26-11-2024

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Appeal (DB) No. 663 of 2024 and Cr. Appeal (DB) No. 679 of 2024

respectively. In fact, learned counsel for the informant had only one

prayer that this Court may direct the local administration to provide

security to the informant but at the same time, he accepts that till

date, the informant has not applied for any security with the local

police and no apparent cause has been shown to the competent

authority who are dealing with the safety and security of a citizen.

14. It is not disputed that the victim was aged about 21

years at the time of alleged occurrence and the occurrence was not

reported to the police and she had not received any treatment by any

doctor.

15. Having regard to the submissions noted hereinabove

and the materials which we have gone into for purpose of forming a

prima-facie view, we notice that the victim has herself stated that the

occurrence is of 13.12.2021 but she had lodged this case only on

25.04.2022, thus, the FIR has been lodged after more than four

months. The occurrence had not been reported to anyone and she had

not gone to any doctor if she had been a victim of a gang rape. We

have also noticed that she has not been able to prove that she was a

student of Urdu Board for graduation and at the same time, she was

graduating from Sanjay Gandhi Mahila College, Sheikhpura. In

course of trial, even it has not been proved prima-facie that on the

date of occurrence, she had left her house at 06:00 AM in the

morning. This Court has also noticed that the immediate cause for
Patna High Court CR. APP (DB) No.652 of 2024(4) dt.26-11-2024

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lodging of the FIR is the so-called media reports in which there were

rumours that she and her mami were being involved in committing

wrong act, considering these aspects of the matter and the

uncontroverted submission of learned senior counsel for the appellant

that the case would stand on identical footing with the other

appellants who have been granted the same privilege, we direct

suspension of sentence and release of the above-named appellant on

bail during pendency of the appeal on furnishing bail bond of Rs.

25,000/- (Rupees Twenty Five Thousand) with two sureties of the

like amount each to the satisfaction of learned District and

Sessions Judge, Sheikhpura in connection with Sessions Trial No. 19

of 2023 arising out of Sheikhpura Mahila P.S. Case No. 16 of 2022.

16. Fine, if any, imposed as part of sentence shall remain

suspended during pendency of the appeal.

17. It is clarified that the observations made hereinabove

are only prima-facie and tentative in nature for purpose of

consideration of the prayer for bail which would not cause prejudice

to either of the parties.

18. List this appeal for hearing on it's turn.

(Rajeev Ranjan Prasad, J)

( Jitendra Kumar, J)
SUSHMA2/-

U T