Patna High Court
Singhasan @ Ram Singhasan Singh vs State Of Bihar on 6 May, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.422 of 2004
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SINGHASAN @ RAM SINGHASAN SINGH, resident of Village-
Bharkhara, Post Office- Kakaria, Police Station - Dhansoi, District- Buxar
... ... Appellant/s
Versus
State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Sarvjit Kumar, Amicus Curiae
For the Respondent/s : Mrs. Anita Kumari Singh, APP
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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 06-05-2026
1. The appeal is arising out of the
Judgment of conviction dated 29.05.2004 and
order of sentence dated 10.06.2004, on the file of
Ist Additional District and Sessions Judge, Buxar, in
Sessions Trial No. 100 of 2002, arising out of
Dhansoin P.S. Case No. 45 of 2001, wherein the
sole appellant was convicted for the offence
punishable under Section 376 of I.P.C. and was
sentenced to undergo rigorous imprisonment for a
period of seven years. He was further convicted for
the offence punishable under Section 341 of I.P.C.,
but no separate sentence was awarded.
2. It is relevant to mention that, as the
Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026
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appeal pertains to the year 2004, and there was no
representation on behalf of the appellant, this
Court was constrained to appoint Mr. Sarvjit Kumar
as Amicus Curiae vide order dated 06.04.2026.
3. It is pertinent to mention that since
there was no contact with the appellant, this Court,
vide order dated 23.10.2024, called for a report
from the Superintendent of Police, Buxar, regarding
the live status of the appellant. In compliance to
the order of this Court, a report dated 20.11.2024
was sent by the Superintendent of Police, Buxar,
stating therein that the sole appellant/ Singhasan
@Ram Singhasan Singh, is alive.
4. Heard Mr. Sarvjit Kumar, the Learned
Amicus curiae, Mrs. Anita Kumari Singh, the
Learned Additional Public Prosecutor for the State
and perused the record.
5. The case of the prosecution, as per
the fardbeyan dated 03.09.2001, is that at about
10:00 A.M., when the informant/victim (the name
of the victim is not disclosed, as it is a matter
relating to sexual assault) was going to cut the
Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026
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paddy crop in the field and after coming out of the
village by about 50 yards, when she reached near
the marai of the appellant, the appellant forcibly
caught hold of her hands. Despite her resistance,
the appellant threw her on the ground and
committed rape upon her. It is further alleged that
when the victim attempted to raise alarm, the
appellant covered her mouth with one hand so as
to prevent her from shouting. After some time, the
husband of the victim, arrived at the place of
occurrence and witnessed the alleged act of rape,
being committed upon her and assaulted the
accused. Thereafter, the accused fled away from
the place of occurence. On hearing the alarm
raised, nearby villagers, namely, Ramavtar
Koieri/P.W. 3 and Mathura Koieri/P.W. 2, came to the
place of occurrence and also witnessed the
occurrence.
6. Basing on the statement of the victim,
her fardbeyan was recorded by the A.S.I. Buxar
Town Police, at Sadar Hospital on 03.09.2001 at
about 16:45 hours, which was later transferred to
Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026
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Dhansoi Police Station. The victim affixed her
thumb impression on the fardbeyan, and the date
"04.09.2001" was mentioned near the thumb
impression.
7. Basing on the fardbeyan, a formal FIR
was registered on 05.09.2001 vide FIR no. 45 of
2001, for the offence punishable under Section 341
and 376 of I.P.C.. Thereafter, the police took up
investigation and upon completion thereof, charge-
sheet was filed against the accused/appellant for
the offence punishable under Sections 376 and
341 of I.P.C.
8. The Learned Judicial Magistrate, First
Class, took cognizance on 27.04.2002 and
subsequently, the case was committed to the
Court of Sessions on 17.07.2002. The judgment of
the trial Court reveals that on 28.08.2002, charge
was framed against the accused for the offences
punishable under Sections 376 and 341 of the
I.P.C., which was read over and explained to the
accused/appellant, for which he pleaded not guilty
and claimed to be tried. The same is also apparent
Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026
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from the order-sheet dated 28.08.2002. However,
the charge memo did not bear the signature of the
Presiding Officer. Therefore, the same was
subsequently corrected by the successor Presiding
Officer, on 04.02.2004, and he affixed his signature
on the head of the charge memo.
9. It is just necessary to reproduce the
docket orders dated 28.08.2002 as well as
04.02.2004, which are relevant for proper appreciation of the case. The docket order dated 28.08.2002 reads as follows:
Accused Singhasan @Ram Singhasan Singh was produced from jail. Heard both parties on point of charge. Charge has been framed under Section 376 of I.P.C., which was read over and explained to the accused to which, he pleaded not guilty and claimed to be tried. Record is fixed for evidence on 12.09.2002. office is directed to issue non-bailable warrants against the witnesses. Accused was further sent to jail.
10. The docket order dated 04.02.2004 reads as follows:
Accused Singhasan Singh was produced from jail. A petition Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 6/55 has been filed on behalf of the accused stating therein that in the present sessions trial, charge has been framed and read over by the then presiding officer for which, the signature of the presiding officer has been left, therefore, requested to put signature over it and be rectified so that the accused might not be prejudiced. The Learned Additional Public Prosecutor has mentioned as "No Objection" at the margin of the petition. Heard the learned counsel for accused and Learned Additional Public Prosecutor and perused the record. After perusal of the record, it has come to the notice that on 28.08.2002, charge had already been framed against the accused under Section 376/341 of I.P.C. which was read over and explained by the then Presiding Officer to which the accused pleaded not guilty and claimed to be tried. To this effect, order was passed on 28.08.2002 which is evidence from the order dated 28.08.2002 in the ordersheet.
Since the Learned counsel for the accused (defence) has given in wirting and also submitted in the court that the accused may not be prejudiced. In the present presiding officer puts his signature over the accusation of charge which was framed against the accused and was readover to him. The Learned Additional Public Prosecutor has no objection, so, in such situation, Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 7/55 signature is done in todays date and the record is hereby corrected. Record is fixed on 12.02.2004 for the defence and arguments.
11. On perusal of both the docket orders dated 28.08.2002 and 04.02.2004, it is evident that initially charge was framed only for the offence punishable under Section 376 of the I.P.C. However, the charge memo was not signed by the Presiding Officer. No charge was framed against the appellant for the offence punishable under Section 341 of the I.P.C. However, the docket order dated 04.02.2004 disclose that on 28.08.2002, charge had already been framed for the offence punishable under Section 341 of the I.P.C. Nevertheless, the docket order specifically refers only about the charge under Section 376 of the I.P.C. and not to the charge under Section 341 of the I.P.C.
12. In such a situation, the Learned Judge, who corrected the charge dated 28.08.2002 on 04.02.2004, ought to have framed charge under Section 341 of the I.P.C. and read over the same to Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 8/55 the accused so that the accused would not be prejudiced in facing trial for the offence under Section 341 of the I.P.C. Grave error was committed by the trial Court in convicting the accused/appellant for the offence under Section 341 of the I.P.C. despite the fact that no charge had been framed by the Court for the said offence. It is surprising to note that the docket order dated 28.08.2002 directed the office to issue non-bailable warrants against the witnesses instead of issuing summons. Issuance of non-bailable warrants against witnesses, at the very first instance itself, is unknown to criminal jurisprudence. If at all, after receiving the summons, the witnesses failed to appear before the Court, the proper recourse for the trial Court is to issue bailable warrants, and not non-bailable warrants. Further, without fixing a proper schedule for the trial, the trial Court could not have issued summons to the witnesses.
13. It is also surprising to note, that the accused preferring a petition before the trial Court that the charge, which was alleged to have been Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 9/55 framed on 28.08.2002, was not signed by the Presiding Officer. It is the incumbent duty of the trial Court Judge to make signature once the charge is read over and explained to the accused. Section 216 of the Cr.P.C. gives ample power upon the trial Court either to alter or add any charge at any time before pronouncement of judgment. Therefore, if the trial Court had noticed that no charge was framed against the accused under Section 341 of the I.P.C., it ought to have framed an appropriate charge under Section 341 of the I.P.C. in accordance with the provisions laid down under Section 216 of the Cr.P.C. Further, Section 211 of Cr.P.C. and Section 218 of the Cr.P.C. clearly envisages that a separate charge shall be framed for each distinct offence. Admittedly, the offence punishable under Section 376 of the I.P.C. is distinct and separate from the offence punishable under Section 341 of the I.P.C.
14. During the course of trial, the prosecution has examined altogether seven prosecution witnesses, i.e., P.Ws. 1 to 7, and Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 10/55 marked Exhibits 1 to 4. The names and details of the witnesses and Exhibits are as follows:
P.Ws.No P.W.s Name
P.W. 1 Shriram Singh
P.W. 2 Mathura Singh
P.W. 3 Ram Awtar Singh
P.W. 4 Bashishtha Kumar
P.W. 5 Victim (name not disclose as it
is a matter of sexual assault) P.W. 6 Dr. Babita Kumari P.W. 7 Kedarnath Lal Sl. No. Exhibit Exhibit Details
1. Ext. 1 Injury report of victim
2. Ext. 2 Formal FIR
3. Ext. 3 Fardbeyan
4. Ext. 4 F.S.L. Report
15. Further, the appellant was examined under Section 313 of Cr.P.C. for incriminating evidence against him, for which the appellant denied and claimed to adduce defence evidence. On behalf of the defence, DW1 and 2 were examined and following Exhibits were marked. Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 11/55 D.Ws.No D.W.s Name D.W. 1 Ram dayal Dubey D.W. 2 Dr. Arshad Akram Sl. No. Exhibit Exhibit Details
1. Ext. A Formal FIR of Dhansoin P.S. Case No. 44 of 2001
2. Ext. A/1 Endorsement on fardbeyan
3. Ext. B Protest petition of Dhansoi P.S. Case No. 44 of 2001
4. Ext. C Fowrarding letter of S.I. Tapeshwar Pd Verma in Dhansoi P.S. Case No. 44 of 2001
5. Ext. D Injury report
6. Ext. E Notice
7. Ext. E/1 Notice
16. On considering the entire material available on record, the trial Court convicted the appellant for the offence punishable under section 376 of IPC and sentenced him, as stated supra. Further, the trial Court has also convicted the appellant for the offence punishable under Section 341 of IPC. However, no separate sentence has been awarded to him.
17. The points for determination in this appeal is that:
i. Whether the trial Court is right in Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 12/55 convicting and sentencing the appellant for the offence punishable under section 376 and 341 of IPC?
ii. Whether the prosecution is able to prove the guilt of appellant for the aforesaid offence, beyond the reasonable doubt?
18. In order to decide the aforesaid points for determination, it is just necessary to re- appreciate the evidence on record.
19. P.W. 1/Shri Ram Singh is one of the co-villagers. His evidence disclose that on the date of the incident, at about 9:00-10:00 A.M., while he was returning to his house after thrashing paddy crop that he saw the appellant fleeing away. Upon hearing commotion, he went to the marai, where Vashishth/P.W. 4 informed him that the appellant had committed rape upon his wife.
20. The evidence of P.W. 1 is only helpful to the prosecution to the extent that he had seen the appellant moving away from his cottage. Therefore, there is no substantial incriminating evidence against the appellant through this Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 13/55 witness. Furthermore, his evidence can only be treated as hearsay evidence, as he came to know about the incident through P.W. 4 and had not witnessed the occurrence.
21. The evidence of P.W. 2/Mathura Singh disclose that on the date of the incident, at about 10:00-11:00 A.M., the wife of P.W. 4 was weeping and her saree was found unfolded. He witnessed a quarrel/fight between the appellant and P.W. 4, wherein P.W. 4 confronted the appellant, as to why he had committed rape on his wife. It is specifically testified by P.W. 2 that the victim did not disclose anything to him regarding the occurrence.
22. In his cross-examination, P.W. 2 testified that the appellant is an ex-serviceman and his residence is at Allahabad. He further testified that there was a land dispute between the appellant and his family. He also stated that P.W. 1 is his uncle and admitted that the appellant had lodged a case against him. According to PW-2, his statement was recorded three days after the incident. He further testified that the appellant had Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 14/55 instituted a case against him.
23. The evidence of this witness also cannot be treated as that of an eye-witness. His evidence can only be looked into to the certain extent that there was a scuffle between the appellant and P.W. 4. Further, his evidence clearly disclose that the appellant had initially instituted a case against them, one day prior to the alleged incident.
24. P.W. 3/Ramawtar Singh testified that on the date of the incident, at about 10:00 A.M. While he was at the temple and he heard commotion from the cottage of the appellant. Thereafter, he immediately went there, saw the wife of P.W. 4 in a nervous condition, and P.W. 4 confronting the appellant, by saying that he should be ashamed for committing rape upon his wife.
25. In his cross-examination, it is admitted by P.W. 3 that one Ram Singh is the cousin brother of the appellant and on the date of the incident, he was alone at the temple and it was raining. When he reached the place of occurrence, Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 15/55 he noticed appellant with grievous injuries inflicted by the P.W. 4. Thereafter, all of them went to their respective houses. The police arrived in the evening, and he came to know, that a case has been lodged against him and others, and on the next day, they had filed a protest petition. He specifically deposed that on the date of incident P.W. 4 was holding a stick in his hand. Further, stated that although the appellant belongs to his caste, they are not in the same lineage and no material was seized in his presence including the saree of the victim.
26. The crucial witnesses in this case are P.Ws. 4 to 6.
27. P.W. 4 is the husband of the victim. His evidence disclose that on the date of the incident, at about 9:00 A.M., while his wife/victim was doing her work, the appellant forcibly committed rape upon her. When he tried to stop the appellant, the appellant assaulted him thrice with a lathi, which was witnessed by P.Ws. 2 and 3.
28. In his cross-examination, it is Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 16/55 specifically testified by P.W. 4 that he was bleeding, after sustaining lathi injuries and he took the victim to Buxar, he did not get any medical treatment for the injuries sustained by him.
29. P.W.4 changed the entire narration of the occurrence, by admitting that he assaulted the appellant thrice with a lathi. It has also come on record that an assault case was instituted by the appellant, on the date of occurrence against P.Ws. 2 and 3. Further, on the same day, the appellant was referrred for medical examination at Buxar.
30. It is specifically testified by P.W. 4 that the victim informed him about the rape committed upon her, and she was medically examined at Buxar. He further testified that the bangles of the victim were broken and that the victim lodged a complaint on the next day. He also testified that P.Ws. 1 to 3 reached the place of occurrence after half an hour of his arrival and that the scuffle between him and the appellant lasted for about five minutes. Thereafter, the appellant fled away and none of the witnesses have came to Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 17/55 the place of occurrence while appellant was there. The appellant again came to assault him, due to which P.W. 4 fled away. It is further testified by P.W. 4 that all the family members of the appellant attacked his house and began to assault him, in which Kashi Singh, Nand Kishore Singh, and Brij Bihari were involved. In the said incident, he ran away and hid himself in the house of Chandradeo Kurmi. His evidence further disclose that the distance between the police station and the place of occurrence is about 3 kilometers and the police recorded his statement after seven days from the date of the incident. He could not say whether the police had seized the broken bangles or not, and he admitted that he assaulted the appellant.
31. On the one hand, the evidence of P.W. 4 disclose that the appellant had committed rape upon his wife and that he had witnessed the incident, and when he tried to stop the appellant from committing rape, the appellant assaulted him. While on the other hand, it is admitted by P.W. 4 that he assaulted the appellant thrice with a lathi, Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 18/55 due to which the appellant sustained injuries. Further, his wife lodged the case on the next day of the incident, i.e., on 04.09.2001, and not on 03.09.2001. He further admitted that he came to know about the incident through his wife.
32. Hence, this Court can construe that P.W. 4 was not an eye-witness to the occurrence and he came to know about the incident through his wife. Therefore, the evidence fo P.W. 4 can only be treated as hearsay evidence.
33. The evidence of P.W. 5/victim disclose that on the date of the incident, at about 10:00 A.M., while she was proceeding towards the field for thrashing the crop, the appellant forcibly caught hold of her, took her into the cottage, and committed rape upon her. When she shouted and raised alarm, her husband arrived there and assaulted the appellant, due to which the appellant sustained grievous head injury. Thereafter, many persons, including P.Ws. 1 to 3, reached the place of occurrence. On seeing the people approaching, the appellant fled away from the place of Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 19/55 occurrence. She further testified that the appellant threatened to kill her family members in case she lodges any complaint against him. She also testified that on the next day, she approached the Superintendent of Police, and thereafter, her medical examination was conducted.
34. In her cross-examination, P.W. 5 admitted that one day prior to the incident, the appellant had lodged a complaint against her husband, P.Ws. 2 and 3, and on the following day, she instituted the present case against the appellant. She also admitted that she is mother of three children. On the date of the incident, she was wearing a green-coloured saree.
35. Certain questions were put to the victim with regard to the alleged sexual assault, which are not necessary to be dealt with in detail, in view of the evidence of the Doctor.
36. P.W. 6/Babita Kumari, is the doctor who examined the victim on 03.09.2001, at Sub Divisional Hosptial, Buxar. Her evidence disclose that at 05:30 P.M., she examined the victim, and Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 20/55 found the following injuries:
(1) General Examination of teeth 8+8, sex character well developed, no marks of violence on face, neck and body.
(2) Peticoat not stained with any discharge, no mark of violence or abrasion in local parts/private parts.
(3) Swab taken from her vagina and sent for microscopical examination, vaginal swab slide seen by Dr. S.N. Mahto. According to him, under low and high power of microscope, no dead or alive spermatozoa seen.
(4) (i) X-ray of both wrist joint, AP view shows complete fusion of lower end of radius and ulna.
(ii) X-ray pelvic A.P. view shows complete fusion of iliac crest and ilium bone; X-ray done at Sub Divisional Hospital, Buxar on 03.09.2001, being plate no. L2 and R2 show the age of victim is above 30 years (major).
(5) P/v two fingers easily insinuated in vagina.
Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 21/55
37. P.W. 6/Babita Kumari opined that on the basis of the aforesaid findings, it was very difficult to say whether rape was committed or not? The medical report bearing the signature of P.W. 6 was marked as Ext. 1. She further testified that the report also bears the signatures of Dr. S.N. Mahto and Dr. A. Ekram.
38. P.W. 6 was cross-examined at length with respect to the alleged sexual assault. However, she testified that she had not given any positive finding regarding commission of rape, upon the victim.
39. P.W. 7/Kedarnath Lal is an advocate clerk. His evidence disclose that the formal F.I.R., which was in the handwriting of S.I. Ashok Kumar Jha, was marked as Ext. 2, and the fardbeyan, which was in the handwriting of A.S.I., Buxar Town, namely, B. Ram, was marked as Ext. 3.
40. Further, the evidence of D.W. 1/Ram Dayal Dubey disclose that he was a formal witness and an advocate clerk, through whom Exts. A, A/1, B and C were got marked.
Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 22/55
41. At this juncture, it is pertinent to mention that in case of Noor Hasan Ansari & Ors. vs. State of Bihar, in Cr. APP (SJ) No. 68 of 2004, this Court dealt with the followings criteria for marking a document:-
"It is evident that in order to have the documents marked by the Court as Exhibits, a party must satisfy the Court that there is sufficient material in order for the Court to arrive at a prima facie view that :
(a) The "contents" of the document are proved (i.e. the document exists).
(b) The signature or handwriting on the document, if any, are proved (i.e. the document is genuine).
(c) In some cases, the
witness who seeks to tender the
document in evidence has personal knowledge of the document (i.e. that the witness is in a position to prove the accuracy or truth of the contents of the document);
(d) The document is not inherently or ab initio inadmissible on some other legal ground (e.g. irrelevance, privilege, non-registration) and Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 23/55
(e) The document has been appropriately stamped, if so required by law.
16. (i). In order to prove contents of a document, the witness through whom the document is sought to be tendered must produce the document in court. The Evidence Act provides, in essence, that the "contents" of documents must ordinarily be proved by "primary" evidence.
(ii). As the second step in getting a document marked, the witness who introduces the document must identify the signature or handwriting on the document, if there is any. 19 The mere production of a document is not sufficient for the document to be marked as an exhibit.
(iii). Thirdly, in order to lay a foundation for marking a document, if the document contains any statement(s) of fact, and the party propounding the document relies on the truth or accuracy of those statements, then the witness. who tenders the document must demonstrate personal knowledge and the familiarity of the document.
(iv). Fourthly, in some cases, irrespective of a party's ability to satisfy Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 24/55 the criteria set out above, a law might prohibit some documents from being considered admissible in evidence. Such documents cannot be marked in evidence. Once a document is marked, it becomes the part of the record but has to be considered by the Court about its admissibility and relevancy of the such document. Marking of document alone will not give any right to read the contents of the documents or about the admissibility of the documents."
42. Furthermore, Rule 58 of the Criminal Rules Of Practice and Circular Orders, 1990 envisages about marking of exhibits which reads as follows:-
"58 Marking of exhibits:-
(1) Exhibits admitted in evidence shall be marked as follows:-
(i) if filed by the prosecution with the capital letter 'P' followed by a numeral, P1, P2,P3 and the like;
(ii) if filed by defence with the capital letter 'D' followed by a numeral, D1, D2, D3 and the like;
(iii) in case of Court exhibits with the capital letter 'C' followed by a numeral C1, C2, C3 and Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 25/55 the like;
(2) All the exhibits filed by the several accused shall be marked consecutively.
All material objects shall be marked in Arabic numbers in continuous series as M.O. 1, M.O.2 and M.O.3 and the like, whether exhibited by the prosecution or the defence or the Court."
43. This Court is unable to understand as to why the trial Court has not followed the prescribed procedure, while marking the Exhibits as per Rule 58 of Criminal Rules of Practice. Admittedly, Exhibit 2 and 3 were said to be marked through P.W. 7 and Ext. A to C were got marked through, D.W. 1.
44. At this juncture, it is relevant to rely on the judgments of Hon'ble Division Bench of this Court in the case of Sukhi Yadav v. the State of Bihar reported in 2014 SCC OnLine Pat 5721 wherein their Lordships have held as follows:-
"9. We fail to appreciate as to which law permits such a thing and how a Judge of standing of Additional Sessions Judge could do Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 26/55 such a thing. First thing we must notice that P.W.9 is an Assistant to an Advocate Clerk, who has nothing to do with the case, yet the Court permits him to step in as a prosecution witness. Moreover we have coined such witness as "Sankat Mochan witness". What more scandalized us is the trial court, which permits a person, who was nobody, to pick up the entire case diary from paragraphs 1 to 121 and prove it and make it a part of evidence. The court then proceeds further to mark it as Ext. 3 and then the court sits down to read entire case-diary in order to appreciate evidence. Nothing can be more scandalous. No such step is permissible in law. The trial court forgot the true import of section 172(2) of the Code of Criminal Procedure (for short 'Cr.P.C.'), which clearly states that any criminal Court may use such diaries, not as evidence in the case, but to aid it in such enquiry or trial. What the trial court has done is using it as evidence, making it as evidence and Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 27/55 appreciating it as evidence, which is wholly impermissible in law. The diary can never be proved in a Court, for it cannot be used as evidence. No part of diary can be proved because if any one is proving it for the purposes of making it an evidence, such act is prohibited by law. The law contemplates a reference to the diary only for the purposes of refreshing memory or contradicting the statements of witnesses in the Court with the statements made during the course of investigation. Only when it is used for refreshing memory, the procedure as envisaged under section 145 of the Evidence Act is to apply but that does not mean that diary can become evidence. Law prohibits such thing. We have found in cases after cases that in the State of Bihar, the Sessions Courts do not know or understand this distinction in law and in cases after cases the statements of witnesses recorded under section 161 of the Cr.P.C. are proved as evidences or other materials in the case-diary are Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 28/55 proved as evidence and marked as exhibits. This is a practice that should end, the sooner the better. The other thing is that as to who is permitted to prove a document. It appears that in this State every Tom, Dick and Harry, the expression we have formed now "Sankat Mochan Witness", could come and prove any official document. In this case, an Assistant to Clerk of an Advocate, who has nothing to do in the case, has been permitted by the trial court to prove the entire case-diary and mark it as exhibit. This practice is deprecated and it must come to an end. A person, who is author of a document or in absence of author, which absence has to be explained, a person familiar with the handwriting of the author can only prove the document. The procedure adopted by the trial court is unknown to law. No sooner this practice ends than better it would be."
45. The above citation squarely applies to the facts of the present case. Their Lordships have held that a person who is author of the Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 29/55 document, or in absence of the author, (whose absence has to be explained), a person familiar with the hand-writing of author can prove the documents. Their Lordships have further held that the procedures adopted by the trial Court are unknown to law, and such practices have to be ended.
46. Admittedly, neither P.W. 7 nor D.W. 1 had any knowledge about the facts of the incident or about the case and counter-cases, which were alleged to have been filed by the appellant and the informant/victim. Therefore, the evidence of P.W. 7 and D.W. 1 is neither helpful to the prosecution nor to the defence.
47. It can be construed from the oral evidence of P.Ws. 1 to 5 that the appellant had lodged a case against P.Ws. 2 to 4 one day prior to the alleged incident, and on the following day, P.W. 5/informant instituted the present complaint against the appellant.
48. In order to support his contention, the Learned Amicus Curiae, relied on the judgment Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 30/55 of the Hon'ble Apex Court in the case of State of Uttarakhand v. Darshan Singh, reported in (2020) 12 SCC 605, wherein their Lordships have held as follows:
43. In Abdul Sayeed v.
State of M.P. [Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] , this Court discussed elaborately the case law on the subject of conflict between medical evidence and ocular evidence: (SCC pp. 272-74, paras 32-39) "Medical evidence versus ocular evidence
32. In Ram Narain Singh v.
State of Punjab [Ram Narain Singh v. State of Punjab, (1975) 4 SCC 497 :
1975 SCC (Cri) 571] this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.
33. In State of Haryana v.
Bhagirath [State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was held as follows:
(SCC p. 101, para 15) '15. The opinion Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 31/55 given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable.
Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.'
34. Drawing on Bhagirath case [State of Haryana v. Bhagirath, (1999) 5 SCC 96 : 1999 SCC (Cri) 658] , this Court has held that where the medical evidence is at variance with ocular evidence, 'it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable"
Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 32/55 keeping the medical evidence as the "constant".'
35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
'21. ... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy;
consistency with the undisputed facts, the "credit"
of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.' [Vide Thaman Kumar v. State (UT of Chandigarh) [Thaman Kumar v. State (UT of Chandigarh), Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 33/55 (2003) 6 SCC 380 : 2003 SCC (Cri) 1362] and Krishnan v.
State [Krishnan v. State, (2003) 7 SCC 56 : 2003 SCC (Cri) 1577] at SCC pp. 62-63, para 21.]
36. In Solanki Chimanbhai Ukabhai v. State of Gujarat [Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174 : 1983 SCC (Cri) 379] this Court observed:
(SCC p. 180, para 13) '13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.'
37. A similar view has been taken in Mani Ram v. State of U.P. [Mani Ram v. State of U.P., 1994 Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 34/55 Supp (2) SCC 289 : 1994 SCC (Cri) 1242] , Khambam Raja Reddy v.
Public Prosecutor [Khambam Raja Reddy v. Public Prosecutor, (2006) 11 SCC 239 : (2007) 1 SCC (Cri) 431] and State of U.P. v. Dinesh [State of U.P. v. Dinesh, (2009) 11 SCC 566 :
(2009) 3 SCC (Cri) 1484] .
38. In State of U.P. v. Hari Chand [State of U.P. v. Hari Chand, (2009) 13 SCC 542 : (2010) 1 SCC (Cri) 1112] this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13) '13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.'
39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à- vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
49. The Learned Amicus Curiae further Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 35/55 relied on the judgment of the Hon'ble Apex Court in the case of Krishna @Krishnappa v. State of Karnataka, reported in (2014) 15 SCC 596 wherein their Lordships have held as follows:
4. The learned trial court found that though PW 1 victim had stated that her sari was torn in the incident, the said sari was not produced before the court, that as per PW 2 there were no eucalyptus trees in between the bus-stop and the village, that though as per the version of PW 1 victim the incident lasted for about half an hour during which time she was trying to escape and had bitten the right hand of the appellant, the medical evidence did not support such assertions and that because of the civil and criminal cases pending between the parties the possibility of false implication could not be ruled out. Considering the entire evidence on record the learned trial court found that the prosecution had failed to establish that the appellant was guilty of the offences as alleged. The learned trial court, therefore, by its judgment and Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 36/55 order dated 6-8-2001 acquitted the appellant of the charges levelled against him.
5. The State of Karnataka carried the matter further by filing Criminal Appeal No. 1360 of 2001 in the High Court of Karnataka at Bangalore. The High Court observed that in view of the evidence of Dr Manjunath (PW 4) it was clear that the prosecution had failed to prove that the appellant had sexual intercourse with PW 1 victim. The High Court thus affirmed the acquittal of the appellant under Section 376 IPC. However after considering the evidence of PWs 1 and 2 it found that it was proved beyond doubt that the appellant had attempted to commit rape on the victim. The High Court thus convicted the appellant for the offence of attempt to commit rape under Section 376 read with Section 511 IPC and also under Section 341 IPC and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs 1000, in default whereof to undergo further Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 37/55 imprisonment for one year under the first count and to suffer simple imprisonment for one month and payment of fine of Rs 3000, in default whereof to suffer further imprisonment for 15 days for the offence punishable under Section 341 IPC.
7. Mr T. Prakash, learned Advocate appearing for the appellant submitted that the view taken by the learned trial court in the instant case was quite appropriate and justified. In any case, given the reasons in support of the judgment of acquittal, such view was definitely a possible view and in an appeal against acquittal the High Court was not justified in setting aside such order of acquittal.
Furthermore, the conviction under Section 376 read with Section 511 IPC was also not justified. In Muralidhar v. State of Karnataka [Muralidhar v. State of Karnataka, (2014) 5 SCC 730 : (2014) 2 SCC (Cri) 690] after considering various authorities, it was observed: (SCC p. 736, para 12) Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 38/55 "12. ... Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
(iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the findings of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 39/55 wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-
evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
50. As per the above citations, the ocular evidence ordinarily prevails over the medical evidence. However, if there is a contradiction between the medical evidence and the ocular evidence and the medical evidence renders the ocular testimony improbable, the ocular testimony may be disbelieved. In the present case, the sole testimony of the prosecutrix/victim disclose that rape was committed upon her. As per the evidence Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 40/55 of P.W. 6/Doctor, the victim was medically examined on the same day at about 5:30 P.M. In a case of sexual assault, if the woman had not consented, there would be marks of violence on her body, as she would resist and struggle during the course of sexual intercourse. The evidence of P.W. 6/Doctor is very clear and the medical report, i.e., Ext. 1, clearly disclose that there were no marks of violence on the face, neck, or body of P.W. 5/victim, and no marks of violence or abrasion were found on her private parts. Further, the vaginal swab obtained from P.W. 5 was examined, and no dead or live spermatozoa were detected therein. Therefore, in a case of rape, medical evidence plays an important role in proving the guilt of the accused.
51. In the present case, though the victim was examined at the earliest point of time, the medical evidence clearly rules out the probability of the appellant having committed rape upon the victim. It is specifically opined by P.W. 6 that it was very difficult to say whether rape was Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 41/55 committed or not.
52. The cardinal principle of criminal law is that the prosecution has to prove the guilt of the accused beyond reasonable doubt, and until such proof is established, the accused shall be deemed to be innocent (unless proven guilty). Further, it is the duty of the prosecution to connect the crime with the accused by adducing cogent and reliable evidence.
53. The evidence of D.W. 2, i.e., the Doctor who examined the appellant on 03.09.2001, clearly disclose that the appellant sustained three injuries on his body, which were alleged to have been caused by a hard and blunt substance, and the age of the injuries was found to be within 12 to 24 hours. The said injuries sustained by the appellant are as follows:
(1) An abrasion on the posterior scalp ½"
x ¼"x skin deep.
(2) An abrasion on upper forehead ½" x ¼" colour of the pale white.
(3) Tenderness of left shoulder joint Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 42/55
54. Further, the record reveals that Dhansoi Police Station made a requisition on 02.09.2001 for medical examination of the appellant, pursuant to which the appellant was examined by D.W. 2 on 03.09.2001 at about 12:20 P.M. This rules away the presence of the appellant at the place of occurrence, as the place of occurrence, i.e., Village Bharkhara, is situated about 26 kilometers away from Buxar. The mode of transport is not known, as the same is not part of the record. However, the record disclose that the appellant was medically examined at about 12:20 P.M. on 03.09.2001, pursuant to the requisition made by the police on the previous day, i.e., 02.09.2001. Therefore, the presence of the appellant at the place of occurrence on the date of the alleged incident, i.e., 03.09.2001, itself becomes doubtful.
55. The Learned Amicus Curiae also relied on the judgment of Hon'ble Apex Court in case of Munna Lal v. State of U.P., reported in (2023) 18 SCC 661, wherein their Lordships have Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 43/55 held as follows:
39.Secondly, though PW 4 is said to have reached the place of occurrence at 1.30 p.m. on 5-9-1985 and recovered a bullet in the blood oozing out from the injury at the hip of the dead body, no effort worthy of consideration appears to have been made to seize the weapons by which the murderous attack was launched. It is true that mere failure/neglect to effect seizure of the weapon(s) cannot be the sole reason for discarding the prosecution case but the same assumes importance on the face of the oral testimony of the so-called eyewitnesses i.e. PW 2 and PW 3, not being found by this Court to be wholly reliable. The missing links could have been provided by the investigating officer who, again, did not enter the witness box. Whether or not non-
examination of a witness has caused prejudice to the defence is essentially a question of fact and an inference is required to be drawn having regard to the facts and circumstances obtaining in each case. The reason why the investigating officer could not depose as a witness, as told by PW 4, is that he had been sent for training. It was not shown that the investigating officer under no circumstances could have left the course for recording of his deposition in the trial court. It is worthy of being noted that neither the trial court nor the High Court considered the issue of non-examination of the investigating officer.
40. In the facts of the Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 44/55 present case, particularly conspicuous gaps in the prosecution case and the evidence of PW 2 and PW 3 not being wholly reliable, this Court holds the present case as one where examination of the investigating officer was vital since he could have adduced the expected evidence. His non-
examination creates a material lacuna in the effort of the prosecution to nail the appellants, thereby creating reasonable doubt in the prosecution case.
56. It is the specific contention of the Learned Amicus Curiae that there was no recovery either of the saree or of any material objects from the place of occurrence, and further, non- examination of the Investigating Officer is also fatal to the case of the prosecution.
57. Further, the Learned Amicus Curiae relied on the judgment of Hon'ble Apex Court in case of State of M.P. v. Ratan Singh & Ors., reported in (2020) 12 SCC 630, wherein their Lordships have held as follows:
5. To begin with, though the incident has taken place at about 9.00 a.m. on 30-8-1991 and though the names of all the 18 persons were known to the complainant Khilan Singh, absolutely no valid reason was forthcoming on record as to why there was a delay in lodging the FIR. The Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 45/55 courts generally will not disbelieve the version of the eyewitnesses even if there is some delay in lodging the FIR, if the versions of the eyewitnesses are reliable and trustworthy. However, the delay needs to be explained. This Court, in Apren Joseph v. State of Kerala [Apren Joseph v. State of Kerala, (1973) 3 SCC 114 : 1973 SCC (Cri) 195] , emphasised that since a promptly filed FIR reflects reduced chances of embellishment, fabrication or distortion in memory, in cases of delay in filing the FIR it is important to assess the explanation therefore, to look for possible ulterior motives, and to assess its effect on the credibility of the prosecution version. The following observations of the Court are pertinent in this regard: (SCC pp. 120-21, para
11) "11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154 CrPC. As observed by the Privy Council in King Emperor v.
Khwaja Nazir Ahmad [King Emperor v. Khwaja Nazir Ahmad, 1944 SCC OnLine PC 29 : (1943-
44) 71 IA 203 : AIR 1945 PC 18 :
ILR (1945) 26 Lah 1] , the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eyewitness. First information report under Section 154 is not even considered a substantive piece of evidence. It Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 46/55 can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the FIR, therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case."
6. From the observations quoted above, it is also evident that there is no hard-and-fast rule which can be applied to determine the effect of delay in filing the FIR, and the court is duty-bound to determine whether the explanation afforded is plausible Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 47/55 enough based on the given facts and circumstances of each case. A similar view was taken by this Court in Ram Jag v. State of U.P. [Ram Jag v. State of U.P., (1974) 4 SCC 201 : 1974 SCC (Cri) 370] , wherein this Court observed as follows: (SCC p. 208, para 16) "16. ... It is true that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case.
Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution."
7. In the matter on hand, the distance of the police station from the house of the complainant is only 5 km. PW 9, Gangola, the Chowkidar of the village was present in the village. Patwari was also present in the village. From the evidence of the eyewitnesses we found that the FIR was lodged after due consultation and deliberations among the witnesses. PW 9 admits in Para 7 of his cross-examination that the FIR came to be lodged by Khilan Singh Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 48/55 after due consultation with him and others in the village. He admits in the evidence that the deceased, Devi Singh, was very much alive at least till 8.30 p.m. on that day and his information was recorded by the police prior to the FIR on hand (Ext. D/3). The FIR lodged by Devi Singh, which was prior in time and which we feel, would have been the most important document in this case, has been suppressed by the prosecution. The prosecution should have come before the Court with clean hands. Since, Ext. D/3 lodged at 8.30 p.m. on the date of the incident was later in point of time as compared to the suppressed information lodged by Devi Singh before his death, Ext. D/3 cannot be considered as the FIR. At the most, it can be considered as a statement of Khilan Singh recorded under Section 161 of the Code of Criminal Procedure. It is a clear case of suppression of earliest information which was of vital importance.
8. As emphasised by this Court in Amitbhai Anilchandra Shah v. CBI [Amitbhai Anilchandra Shah v. CBI, (2013) 6 SCC 348 : (2014) 1 SCC (Cri) 309] , only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154, and consequently there cannot be a second FIR. Rather it is absurd or ridiculous to call such information as second FIR. In Subramaniam v. State of T.N. [Subramaniam v. State of T.N., (2009) 14 SCC 415 : (2010) 1 SCC (Cri) 1392] , this Court observed that if an Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 49/55 FIR is filed after recording the statement of the witnesses, such second information would be inadmissible in evidence. Moreover, in Nallabothu Ramulu v. State of A.P. [Nallabothu Ramulu v. State of A.P., (2014) 12 SCC 261 : (2014) 6 SCC (Cri) 673] , the Court was of the view that the non-treatment of statements of injured witnesses as the first information cast doubt on the prosecution version.
9. Thus, not only was there a delay in filing of the FIR (which remained unexplained) which was taken as the basis of the investigation in this case, but also there was a wilful suppression of the actual first information received by the police. These factors together cast grave doubts on the credibility of the prosecution version, and lead us to the conclusion that there has been an attempt to build up a different case for the prosecution and bring in as many persons as accused as possible.
18. Thus, on a re-evaluation of the material on record by us, we find that the High Court being the first appellate court, by meticulously scanning all the evidence in great detail, has rightly concluded that the prosecution has not proved its case beyond reasonable doubt against the respondents. The evidence of the prosecution is full of embellishment, fabrication, distortion and suppression of true story.
19. We find that the view taken by the High Court is one of the Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 50/55 possible views in the facts and circumstances of the case. There is no reason to disagree with the reasons assigned and the conclusions arrived at by the High Court, more particularly when the evidence of all the eyewitnesses is inconsistent, not cogent and unreliable. Hence, no interference is called for.
58. It is the specific contention of the Learned Amicus Curiae that there is delay in lodging the F.I.R. It is further contended that the fardbeyan was recorded on 03.09.2001, the thumb impression and the date mentioned therein clearly disclose that it was actually given on 04.09.2001, which revealed that false case has been instituted against the appellant as an afterthought, in order to counterblast the case filed by the appellant.
59. Further, the Learned Amicus Curiae relied on the judgment of Hon'ble Apex Court in case of Lilia @Ram Swaroop v. State of Rajasthan, reported in (2014) 16 SCC 303 wherein their Lordships have held as follows:
3. The trial court relying on the evidence of the prosecutrix and Madan Lal aforesaid rendered a judgment of conviction holding that Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 51/55 there was no reason to disbelieve these two witnesses, more particularly as the prosecutrix being the victim, was not likely to tell a lie. The defence of the appellant that the story projected by Madan Lal that he had been a mute spectator for about 15 minutes while the rape was being committed was improbable, was also said to be of no consequence. This judgment has been confirmed [Lilia v. State, Criminal Appeal No. 218 of 1985 decided on 14-
2-2001 (Raj)] by the High Court in appeal. The matter is before us after the grant of special leave.
4. We have gone through the evidence in the matter as also the reasons recorded by the courts below. Admittedly the prosecutrix was a married woman. She has given a story that as she was on her way to deliver lunch to Madan Lal (PW 4) she had been waylaid by the appellant and he had then thrown her on the ground and raped her and that she had resisted and had got cut injuries as the glass bangles that she was wearing had broken during the commission of rape. The story projected by Madan Lal which is said to be corroborative of her statement is, however, difficult to believe. He says that he had seen the Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 52/55 rape being committed for about fifteen minutes from a vantage point a short distance away but he had not made any attempt to rescue his sister-in-law. He further stated that one Inder Singh who was with him was also an eyewitness.
5. Admittedly, Inder Singh who could be said to be an independent witness, has not been examined. Some corroboration could have been found in the medical evidence if it had supported the prosecution story. The doctor however found no injury on the person of the prosecutrix though she was examined within two days of the incident. In the light of the fact that the story projected by the prosecution is on the face of it unacceptable and rather far-fetched and does not find corroboration from the medical evidence as well, on a consideration of the cumulative effect of all the circumstances, we are of the opinion that a case of rape has not been proved beyond reasonable doubt.
60. All the above citations squarely apply to the present facts and circumstances of the case.
61. The defence of the appellant is that on 02.09.2001, P.Ws. 4, 2 and 3 assaulted the Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 53/55 appellant, for which the appellant was constrained to institute Dhansoi P.S. Case No. 44 of 2001. Further defence of the appellant is that, as a counterblast to the said case, was falsely implicated in the present case, that too for a heinous offence, as a revenge.
62. On perusal of the record, it is evident that a requisition was made by the same police station on 02.09.2001 for medical examination of the appellant. Pursuant to it, the appellant got medically examined by D.W. 2 on 03.09.2001 at about 12:20 P.M. The age of the injuries, as opined by the Doctor, clearly disclose that the appellant sustained those injuries within 12 to 24 hours, prior to the examination. If at all the version of P.W. 4 is to be believed that he assaulted the appellant thrice with a lathi on 03.09.2001 at about 10:00 A.M., then the Doctor who examined the appellant ought to have opine that the age of the injuries was within two hours. Therefore, it is crystal clear that the prosecution has miserably failed to prove the guilt of the appellant for the offence punishable Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 54/55 under Section 376 of the I.P.C., particularly in view of the evidence of P.W. 6, which does not corroborate the testimony of the victim. Furthermore, no charge was framed against the appellant for the offence punishable under Section 341 of the I.P.C., either as per the record or from the docket orders dated 28.08.2002 and 04.02.2004. Therefore, the conviction for the offence punishable under Section 341 of the I.P.C. is also liable to be set aside, though no separate sentence has been imposed thereunder.
63. In view of the aforesaid discussions, this Court is of the considered view that the trial Court is not right in convicting the appellant for the offences punishable under Sections 376 and 341 of the I.P.C., and the judgment of the trial Court needs interference by this Court.
64. Accordingly, the Judgment of conviction dated 29.05.2004 and order of sentence dated 10.06.2004, on the file of first Additional District and Sessions Judge, Buxar, in Sessions trial No. 100 of 2002, arising out of Dhansoin P.S. Case Patna High Court CR. APP (SJ) No.422 of 2004 dt.06-05-2026 55/55 No. 45 of 2001, is hereby set aside, and the appellant is acquitted for the aforesaid offences.
65. In result, the appeal is hereby allowed.
66. The record reveals that the appellant was released on bail by this Court vide order dated 09.09.2004. In view of the acquittal of the appellant, the bail bonds of the appellant shall stand cancelled/discharged.
67. Let the records be transmitted to the trial Court.
(G. Anupama Chakravarthy, J) AMANDEEP/-
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