Patna High Court
Binda Singh vs State Of Bihar on 20 March, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.52 of 2010
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Binda Singh, Son of Late Munsi Singh, resident of Village- Simri Jaitia, P.S.-
Navinagar, P.O.- Navinagar Road, District- Aurangabad.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rajeev Kumar Singh, Advocate
: Ms. Rushali, Advocate
: Mr. Prabhojot Singh, Advocate
For the Respondent/s : Mr. A.M.P. Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 20-03-2025
Heard learned counsel appearing on behalf of the
appellant Mr. Rajeev Kumar Singh assisted by Ms. Rushali and
Mr. Prabhojot and Mr. A.M.P Mehta learned APP for the State.
2. The present appeal is directed against the
Judgment of conviction dated 08.12.2009 and order of sentence
dated 10.12.2009 in Sessions Trial No. 219 of 1997/113 of 2009
passed by the learned Additional Sessions Judge, Fast Track
Court No.-V, Aurangabad has convicted the appellants under
Sections 376, 379 and 448 of the Indian Penal Code (hereinafter
referred as 'IPC') and sentenced them to undergo 10 years
rigorous imprisonment and fine of Rs. 5,000/- (five thousand)
for the offence punishable under Section 376 of the IPC,
rigorous imprisonment for 2 years for the offence punishable
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under Section 379 of the IPC and rigorous imprisonment for 6
months for the offence punishable under Section 448 of the IPC.
The accused/appellant is further sentenced to undergo
imprisonment for 6 months in case of non-payment of fine and
all the sentences awarded shall run concurrently.
3. The brief facts leading to the filing of the
present appeal on the basis of the FIR, the prosecution case in
brief is that the informant aged about 45 years became blind
prior to her marriage due to chicken pox. On the alleged date
and time of occurrence the informant was sleeping on a cot with
her nephew Ranjan aged about 7 to 8 years, then the accused
asked to open the gate of the door but she did not open the gate.
The Shattel train was going towards Dehri at that time. The
accused broken the rope of the gate and entered into the house
of the informant. The informant recognized the accused from his
voice. The accused caught hold the hand of the informant. The
informant raised alarm but the accused closed his mouth by his
Gamcha (towel). The informant started to protest but the
accused forcibly caught hold her hands by his one hand and
started to commit rape with her after removing sari and
petticoat. The accused committed the rape with her about 5-6
minutes, The accused took away Rs. 200/- of the informant tied
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in her Anchal and fled away. The Gamcha (towel) of the
accused remained there. The informant (victim) raised alarm
after departure of the accused. On hearing alarm Ajay Kumar,
Sachita Kahar, Mallua who were patrolling there came then the
victim told them about the occurrence. But they proceeded from
there silently. The accused had threatened the victim at the time
of his departure not to tell anything to anyone otherwise to face
dire consequences. The victim slept in the night in her house
and in the next morning, she went to the colony of Irrigation
Department and she massage there the ladies resident of the
colony. Thereafter she returned to her house, took bath and
prepared the meal and after taking meal, she came to police
station with her nephew Ranjan.
4. On basis of the statement of the victim,
Nabinagar P.S. Case No 59 of 1995 for the offence punishable
under Sections 448, 376 and 380 of the IPC was registered.
Investigation was taken up and after completion of
investigation, charge-sheet was submitted under Sections 448,
376 and 380 of the IPC against the sole accused/appellant.
Thereafter, the learned Chief Judicial Magistrate, Aurangabad
took cognizance of offence and transferred the case to the Court
of Judicial Magistrate Ist Class, Aurangabad for commitment and
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the same was committed on 11.07.1996 to the Court of Sessions.
5. The prosecution examined altogether 6
witnesses to substantiate the charges levelled against the
appellants, who are namely PW-1 Sachita Kumar, PW-2 Mallu
Sah, PW-3 Ajay Prasad, PW-4 Manpatia Devi
(Victim/Informant), PW-5 Ballu Sao and PW-6 Ram Lal Singh
(formal witness).
6. PW-1 Sachita Kumar, PW-2 Mallu Sah, PW-3
Ajay Prasad and PW-5 Ballu Sao examined on behalf of the
prosecution have not supported the case of the prosecution, so
these witnesses have been declared hostile by the prosecution.
7. PW-4 Victim/informant in her examination-in-
chief stated that she become blind due to chicken pox prior to
her marriage and the alleged occurrence took place about 5-6
years back at 11 PM. It was the night of teej festival. She was
sleeping after taking her meal and at that time shuttle train also
passes from south to north. She further stated that Binda Singh,
who is resident of Simri Jaysia entered in her house after
breaking rope of Tatti. She recognizes him from his voice that
he is Binda Singh. She further stated that he forcibly caught
hold of her and when she raised alarm then he tied her mouth by
his Gamcha (towel). Further, accused/appellant caught both
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hands from his one hand and thrown her then he removed her
sari and petticoat and raped her for 10-15 minutes. The accused
took Rs. 200 from her anchal at the time of his departure and
left his Gamcha (towel) there only. On accused departure she
raised alarm and upon hearing the same Ajay Kahar, Sachita
Kumar and Manu Baniya came there and she told them the
whole occurrence. Accused/appellant at the time of his
departure told her that no one including the police can do
anything against him. In the next morning, she went to the
Irrigation department colony where she did massage of ladies
members and returned to her house and took bath and thereafter
went to the police station with her nephew namely Ranjan aged
about 7-8 years old. After hearing her statement given to the
police she put her thumb impression on the statement and police
officer sent her to medical examination with chowkidar and a
constable. The police took her restatement. She handed over the
stained sari and petticoat to the police officer and police officer
prepared the seizure list and she identifies the accused by his
voice.
7.i. In her cross-examination she stated that she
begs at the station and Simri Jaisiya is about 1km away from her
house but she has never gone there neither she knows all the
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villagers there. She further stated that she can identify the
language of Jaisiya Simri. She had not told the ladies member of
the colony about the occurrence and she went to police station at
2 PM where her statement was recorded by the S.I. She further
stated in para 10 that Binda Singh used to come so she
recognizes him from his voice but she has no relation with the
accused/appellant and no one told her that he is Binda Singh.
Person used to told 'Kya Binda Singh Kya Binda Singh' so she
started to know him and identify him. She further stated in para
14 that she often used to meet those persons who met after the
occurrence. She further stated that police and S.P. came after 6
days of the occurrence. Further, she denied the suggestion of
defence that no such type of occurrence took place and she has
falsely implicated the accused persons on the instigation of
other persons.
8. PW-6 Ram Lal Singh is a formal witness who
proved FIR, Seizure-cum-production list, medical examination
report and supplementary medical examination report which has
been marked as Ext. 1, 2, 3 and 3/1 respectively. PW-6 has also
proved the whole case diary which is marked as Ext.4.
9. Learned counsel for the appellant submits that
appellant has falsely been implicated in this case on instigation
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of the terrorist and the impugned judgment of conviction and
order of sentence are not sustainable in the eye of law or on
facts. Learned trial Court has not applied its judicial mind and
erroneously passed the judgment of conviction and order of
sentence. From perusal of the evidences adduced on behalf of
the prosecution, it is crystal clear that the prosecution case has
not been supported by anyone other than the informant/victim
herself and it is relevant to note here that all other witnesses has
turned hostile. He further submitted that PW-4 i.e., victim is
blind lady who identified individuals from their voice and thus
her testimony in absence of any corroborating
evidence/witnesses cannot be the sole basis of conviction.
9.i. Learned counsel further submitted that even
on perusal of the medical report and supplementary report of the
victim does not support the allegation of rape. It is opined that
there was no mark of any injury on private part of the victim.
Furthermore, there was no presence of spermatozoa on clothes
of victim. He further submitted that accused/appellant is
agriculturist and important witnesses like Investigating Officer
and Doctor for proving the offence have not been examined
which shows serious irregularities and lacunae in the conduct of
the investigation and the prosecution case. It is further submitted
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by learned counsel that the Investigating Officer of this case as
well as the chowkidar and medical officer who prepared the
medical report of the victim has not been examined and only the
interested witnesses who are either family members or neighbor
of the victim has given their deposition and there are no any
independent witnesses and, thus, the case is not proved beyond
all reasonable doubts, and the conviction passed by the learned
trial Court be set aside.
10. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellant beyond all reasonable doubts. In
view of the aforesaid statements and the evidence on record,
learned trial Court has rightly convicted the appellant and the
present appeal should not be entertained.
11. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court and have thoroughly perused the
materials on record as well as given thoughtful consideration to
the submissions advanced by both the parties.
12. Having deeply studied and scrutinized the
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facts and the material available on record of the present case, it
is evident to note here that there are material inconsistencies in
the deposition of the witnesses. The prosecution case has not
been supported by anyone other than the informant/victim
herself and it is relevant to note that all other witnesses has
turned hostile.
13. Further, the contents of the FIR and Medical
Report have also not been proved as the evidence of the IO as
well as the doctor have not been examined during the course of
trial and non-examination of Investigating Officer and doctor
concerned is fatal to the case of the prosecution. The Supreme
Court in Habeeb Mohammad vs The State of Hyderabad 1954
AIR 51, 1954 SCR 475 pointed out that-
"It was the duty of the prosecution to
examine all material witnesses who could
give an account of the narrative of the
events on which the prosecution is
essentially based and that the question
depended on the circumstances of each
case. In our opinion, the appellant was
considerably prejudiced by the omission on
the part of the prosecution to examine
Biabani and the other officers in the
circumstances of this case and his
conviction merely based on the testimony of
the police jamedar, in the absence of
Biabani and other witnesses admittedly
present on the scene, cannot be said to have
been arrived at after a fair trial,
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particularly when no satisfactory
explanation has been given or even
attempted for this omission.A police
Jamedar, in the absence of Biabani and
other witnesses admittedly present on the
scene, cannot be said to have been arrived
at after a fair trial, particularly when no
satisfactory explanation has been given or
even attempted for this omission."
14. The Hon'ble Apex Court in the case of
Munna Lal Vs. State of Uttar Pradesh , reported in 2023 SCC
OnLine SC 80, whose relevant paragraph Nos.- 28 and 39 of the
said judgment are reproduced here-in-below:
"28. Before embarking on the exercise of
deciding the fate of these appellants, it
would be apt to take note of certain
principles relevant for a decision on these
two appeals. Needless to observe, such
principles have evolved over the years and
crystallized into 'settled principles of law.'
These are:
(a).........
(b).........
(c). A defective investigation is not always
fatal to the prosecution where ocular
testimony is found credible and cogent.
While in such a case the court has to be
circumspect in evaluating the evidence, a
faulty investigation cannot in all cases be a
determinative factor to throw out a credible
prosecution version.
(d). Non-examination of the Investigating
Officer must result in prejudice to the
accused; if no prejudice is caused, mere
non-examination would not render the
prosecution case fatal.
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(e).........
"39. Secondly, though PW-4 is said to have
reached the place of occurrence at 1.30
p.m. on 5th September, 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
eye- witnesses, 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. In the facts of the
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
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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."
emphasis applied
15. Further prosecution has failed to prove the
injury sustained by the victim as neither any medical report has
been exhibited nor any medical practitioner has been examined
during the course of the trial. Investigating Officer has also not
been examined during the course of trial as it was fatal since he
could have adduced the expected evidence and his non-
examination creates a material lacuna in the effort of the
prosecution to nail the appellant, thereby creating reasonable
doubt in the prosecution case and the learned trial Court failed
to scrutinize the evidence brought on record regarding
deficiencies, drawbacks and infirmities crept during course of
trial and passed the impugned judgment in complete ignorance
of criminal jurisprudence. Moreover, there are discrepancies
regarding the sequence of events and the presence of individuals
at the place of occurrence. Further, there is no eyewitnesses to
the said occurrence and all the PW's were declared hostile and
have not seen the occurrence. Considering this fact, prosecution
has failed to establish this case beyond all reasonable doubt,
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therefore, in such circumstances, it may not be proper to convict
the appellant/accused on the materials available on record.
Hence, the judgment of conviction and order of sentence in this
present matter is fit to be set aside.
16. Hence, the Judgment of conviction dated
08.12.2009and order of sentence dated 10.12.2009 in Sessions Trial No. 219 of 1997/113 of 2009 arising out of Nabinagar P.S. Case No. 59 of 1995, passed by learned Additional Sessions Judge, Fast Track Court No-V, Aurangabad is set aside and the accused/appellant is acquitted from the charges leveled against him. As the appellant is on bail, he is discharged from liability of his bail bond.
17. Accordingly, this appeal stands allowed.
(Ramesh Chand Malviya, J) Anand Kr.
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