SINGHASAN @ RAM SINGHASAN SINGH vs STATE OF BIHAR
- Court
- Patna High Court
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
st
I 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
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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
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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
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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
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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
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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,
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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
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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
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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
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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.
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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
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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
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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
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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,
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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
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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
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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 ,
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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
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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
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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.
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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.
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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
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(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
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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
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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
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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
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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
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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
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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
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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
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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”
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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
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(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
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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
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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
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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
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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)
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“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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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/-
AFR/NAFR NARF
CAV DATE N/A
Uploading Date 15.05.2026
Transmission Date 15.05.2026