GAURI SHANKAR CHOUDHARY @ GAURI SHANKAR CHOWDHARY @ GAURI CHOUDHARY vs The State of Bihar

Court
Patna High Court

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2977 of 2023
Arising Out of PS. Case No.-8 Year-1992 Thana- CHOUTARWA District- West Champaran
======================================================
1. Gauri Shankar Choudhary @ Gauri Shankar Chowdhary @ Gauri
Choudhary, Son of Late Baidhnath Chowdhary @ Baidhnath Chowdhary
R/o village - Patilar Tola, Sitapur, P.S.- Chautarwa, District - Bettiah
2. Amar Singh Chowdhary, Son of Late Baidhnath Chowdhary @ Baidhnath
Choudhary R/o village - Patilar Tola, Sitapur, P.S.- Chautarwa, District -
Bettiah
3. Parshuram Chowdhary, Son of Late Jagdish Chowdhary, R/o village - Patilar
Tola, Sitapur, P.S.- Chautarwa, District - Bettiah
4. Shambhu Chowdhary, Son of Late Bishwanath Chowdhary, R/o village -
Patilar Tola, Sitapur, P.S.- Chautarwa, District - Bettiah
... ... Appellant/s
Versus
1. The State of Bihar
2. XXX- wife of YYYY, Resident of Patilar Tola, Nariani, P.S.- Chautarwa,
District – West Champaran, Bettiah
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 3048 of 2023
Arising Out of PS. Case No.-8 Year-1992 Thana- CHOUTARWA District- West Champaran
======================================================
Surendra Dubey @ Benga Pandit, Son of Late Ramavatar Dubey, Resident of
village - Patilar, P.S. - Chautarwa, Distt. - West Champaran
... ... Appellant/s
Versus
1. The State of Bihar
2. XXX- wife of YYYY, Resident of Patilar Tola, Nariani, P.S.- Chautarwa,
District – West Champaran, Bettiah
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 2977 of 2023)
For the Appellant/s : Mr. Bashishtha Narayan Mishra, Adv.
Mr. Brij Kishor Mishra, Adv.
Mr. Avinash Raj, Adv.
For the State : Mr. Binay Krishna, SPP
(In CRIMINAL APPEAL (SJ) No. 3048 of 2023)
For the Appellant/s : Mr. Ramakant Sharma, Sr. Adv.

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Mr. Rahul Singh, Adv.
Mr. Mayank Raj, Adv.
For the State : Mr. Binay Krishna, SPP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 16-06-2026
1. The instant appeals have been preferred against
the judgment of conviction dated 05.06.2023 and the consequent
order of sentence dated 09.06.2023 passed by the learned 1st
Additional Sessions Judge-cum-Special Judge, SC/ST Court,
Bettiah, District-West Champaran, in connection with Trial No.
207 of 1993 arising out of Chautarwa P.S. Case No. 08 of 1992,
whereby and whereunder the appellants have been convicted for
the offences punishable under Sections 148, 323 and 376 of the
Indian Penal Code (in short, ‘IPC’) and section 3(i)(xi) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, (in short, ‘SC/ST Act’). All the appellants have
been sentenced to undergo rigorous imprisonment for one year
with a fine of Rs. 1000/- (Rupees One Thousand) under section
148 of IPC and in default of payment of fine, they have been
directed to undergo rigorous imprisonment for two months and
further, they have been sentenced to undergo rigorous
imprisonment for six months under section 323 of IPC with a
fine of Rs. 1000/- (Rupees One Thousand) and in default of

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payment of fine, they have been directed to undergo rigorous
imprisonment for two months and further, they have been
sentenced to undergo rigorous imprisonment for ten years under
section 376(2)(g) of IPC with a fine of Rs. 10,000/- (Rupees Ten
Thousand) and in default of payment of fine, they have been
directed to undergo rigorous imprisonment for six months and
further, they have been sentenced to undergo rigorous
imprisonment for one year under section 3(i)(xi) of SC/ST Act
with a fine of Rs. 2000/- (Rupees Two Thousand) and in default
of payment of fine, they have been directed to undergo rigorous
imprisonment for two months. All the sentences have been
directed to run concurrently.
Prosecution Story:
2. The prosecution case, as disclosed in the
fardbeyan of the informant/victim recorded before her husband
on 18.01.1992 at about 9:00 A.M., is that on the night of
18.01.1992 at about 2:00 A.M., the accused persons, namely,
Gauri Chaudhary, Shambhu Chaudhary, Vipat Sah, Ramadhar
Turha, Parshuram Chaudhary, Prahlad Chaudhary and two
others, namely, Suresh Yadav and Surendra Dubey, armed with
lathis, a wooden club (kunda), and iron rods, forcibly entered
her house. They caught hold of her, dragged her out of the

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house, and assaulted her with lathis, the wooden club, and iron
rods. They also assaulted her mother-in-law. As a result of the
assault, she sustained injuries on her right cheek, abdomen,
back, and ribs and started bleeding.
2.1. The informant stated that there was some delay
in approaching the police station as the occurrence had taken
place during the night. The motive behind the occurrence was a
dispute relating to land. She further stated that about one month
prior to the occurrence, accused Gauri Chaudhary had
threatened them to relinquish the disputed land.
2.2. According to the informant, the accused
persons, while assaulting her with lathis, wooden club, and iron
rods, dragged her from her house to a flower garden situated in
south of the house and threatened that if they did not give up the
land, they would be killed. Upon hearing her alarm, villagers
Shivnath Ram, Dhora Ram, and several other persons of the
village arrived at the place of occurrence and witnessed the
incident and could testify to the same if required.
3. The informant recorded her fardbeyan on
18.01.1992 at about 09:00 A.M. at Chautarwa Police Station and
detailed the above-mentioned incident. Upon that basis, a formal
FIR bearing Chautarwa P.S. Case No. 08 of 1992 was registered

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for the offences punishable under Sections 147, 148, 341, 448,
323 of the IPC and Section 3(i)(x) of the SC/ST Act, which set
the criminal law in motion.
4. After completion of the investigation, the
appellants were charge-sheeted for the offences punishable
under Sections 147, 148, 149, 323, 341, 448, 307 & 376 of the
IPC and Section 3(i)(v)(x) & (xii) of the SC/ST Act.
5. After cognizance of the alleged offences, the
learned ACJM, Bagaha, committed the case of the appellants to
the court of Sessions Judge, West Champaran, Bettiah, for trial.
All the appellants stood charged for the offences under Sections
148, 323, 307 & 376 of the IPC and Section 3(i)(x)(xi) & (v) of
the SC/ST Act. The said charges were read over and explained
in Hindi to the appellants by the trial court, to which they
pleaded not guilty and claimed to be tried.
6. During the trial, the prosecution examined
altogether eight witnesses who are as under :-
Rank Name Nature of Evidence
PW-1 Shivnath Ram Hostile
PW-2 Dhoda Ram Hostile
PW-3 YYY Husband of the victim
PW-4 XXX (Victim) Informant
PW-5 Pankaj Kumar Formal witness
PW-6 Abu Rehan Formal witness
PW-7 Dr. Ashok Kumar Tiwary Medical witness

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PW-8 Shambhu Sharan Gupta SHO of police station
7. In addition to the above mentioned ocular
evidence, the prosecution proved and exhibited the following
documents in documentary evidence :-
Exhibit
No.
Sr.
No
Description Proved
by/Attested by
1. Ext-1 Statement of informant (victim) under
section 164 of Cr.P.C. dated 20.10.1992
PW-4
2. Ext-2 Injuries of the victim detailed on page No.
189 of the injury register of Hospital
PW-5 & PW-7
3. Ext-2/a Doctor’s opinion PW-5 & PW-7
4. Ext-2/b Doctor’s supplementary opinion PW-5 & PW-7
5. Ext-3 Signature of the SHO PW-8
6. Ext-3/a Signature of SHO on an endorsement Pw-8
8. After the completion of the prosecution
evidence, the statements of the appellants were recorded under
Section 313 of the Code of Criminal Procedure (in short,
‘Cr.P.C.’) by the trial court. The appellants denied the material
circumstances appearing against them from the prosecution
evidence and pleaded innocence.
9. The defence has not produced any oral evidence,
however, the following documentary evidence has been
produced :-
Sr.
No.
Exhibit
No.
Proved
Description
by/Attested by
1. Ext-A Signature of the husband of the informant on
the Fardbeyan
PW-3 & PW-4
Certified copy
2. Ext-B Sale Certificate

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Certified copy
3. Ext-C C.C of an order of Circle Office Bagaha
Certified copy
4. Ext-C/1 Inspection report of Halka Karamchari
Certified copy
5. Ext-D C.C. of FIR of Chautrawa P.S. Case No.
135/1996
Certified copy
6. Ext-D/1 C.C. of charge sheet of FIR Chautrawa P.S.
Case No. 135/1996
Certified copy
7. Ext-E Certified copy of the judgment
Certified copy
8. Ext-F C.C. of FIR of Chautrawa P.S. Case No.
76/1989
Certified copy
9. Ext-F/1 C.C. of charge sheet in FIR of Chautrawa
P.S. Case No. 76/1989
Certified copy
10. Ext-F/2 C.C. of an order in Sessions Case No. 187/91
Certified copy
11. Ext-G C.C. of FIR of Bagaha P.S. Case No. 06/56
10. While convicting the appellants for the offence
under Section 376 of the IPC, the learned trial court mainly
placed reliance upon the testimony of the victim (PW-4).
Submissions on behalf of the appellants :-
11. The main contention raised by the learned senior
counsel appearing for the appellants in Cr. APP (SJ) No.
2977/2023 is that for the allegation of gang rape, the victim
(informant) is not a sterling witness and the allegations levelled
by her during the course of trial as well as in the statement
recorded by her under section 164 of the Cr.P.C. are not
believable and the same is of such a nature that it is very hard to
believe from its face value and in the instant matter if the
evidence of the victim is taken into account then she only
appears to be an eyewitness of the allegation of gang rape. In
support of this submission, learned senior counsel has placed

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reliance upon the judgment of the Hon’ble Apex Court delivered
in the case of Rai Sandeep @ Deepu vs. State (NCT of Delhi)
reported in (2012) 8 SCC 21 and the relevant paragraph Nos. 22
and 33, upon which reliance has been placed, are being
reproduced for ready reference :
“ 22. In our considered opinion, the
“sterling witness” should be of a very high quality
and calibre whose version should, therefore, be
unassailable. The court considering the version of
such witness should be in a position to accept it
for its face value without any hesitation. To test
the quality of such a witness, the status of the
witness would be immaterial and what would be
relevant is the truthfulness of the statement made
by such a witness. What would be more relevant
would be the consistency of the statement right
from the starting point till the end, namely, at the
time when the witness makes the initial statement
and ultimately before the court. It should be
natural and consistent with the case of the
prosecution qua the accused. There should not be
any prevarication in the version of such a witness.
The witness should be in a position to withstand
the cross-examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as to
the factum of the occurrence, the persons involved,
as well as the sequence of it. Such a version
should have co-relation with each and every one
of other supporting material such as the

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recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of every other
witness. It can even be stated that it should be akin
to the test applied in the case of circumstantial
evidence where there should not be any missing
link in the chain of circumstances to hold the
accused guilty of the offence alleged against him.
Only if the version of such a witness qualifies the
above test as well as all other such similar tests to
be applied, can it be held that such a witness can
be called as a “sterling witness” whose version
can be accepted by the court without any
corroboration and based on which the guilty can
be punished. To be more precise, the version of the
said witness on the core spectrum of the crime
should remain intact while all other attendant
materials, namely, oral, documentary and material
objects should match the said version in material
particulars in order to enable the court trying the
offence to rely on the core version to sieve the
other supporting materials for holding the
offender guilty of the charge alleged.
33. Applying the said principles to the
facts of the case on hand, we find that the solitary
version of the chief examination of PW 4, the
prosecutrix cannot be taken as gospel truth for its
face value and in the absence of any other
supporting evidence, there is no scope to sustain
the conviction and sentence imposed on the
appellants. ”

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12. Learned counsel appearing for the appellants in
Cr. APP (SJ) No. 3048/2023 has argued that the fardbeyan
recorded by the victim herself is a credible statement as the
same was recorded by her on the same day just some hours after
the incident in which the allegation of gang rape did not find
place and a simple allegation of marpit was made and there was
no whisper with regard to the allegation of gang rape in the said
fardbeyan. Learned counsel has further argued that several
months after recording the fardbeyan, the victim recorded her
statement under section 164 of Cr.P.C. developing the
prosecution story and improved her version and made the
allegation of gang rape with malice intention on account of
revengeful attitude due to running of a land dispute in between
both the parties at that time. In support of these contentions,
learned counsel has drawn the attention of this court to the
fardbeyan of the victim, her statement recorded under section
164 of the Cr.P.C. as well as the evidence of PW-7 and also has
drawn the attention of this court to the evidence of victim’s
husband to establish the victim’s consciousness to record her
fardbeyan on the day and time as mentioned in the fardbeyan.
Learned counsel has further argued that in the fardbeyan the
victim revealed the names of two co-villagers as eye-witnesses

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of the important part to the occurrence. Though, they were
examined by the prosecution as PW-1 and PW-2 but both went
hostile and did not support the prosecution’s allegation and there
is sufficient documentary evidence to prove the enmity on
account of land dispute running in between both the parties at
the time of the alleged incident and in this regard, Ext.-A, Ext.-
B, and Ext.-C, produced on behalf of defence side, are relevant.
Learned counsel has further argued that the learned trial court
has wrongly placed reliance upon the restatement of the victim
without getting it proved and further, the same cannot be used to
corroborate the prosecution’s case but the trial court committed
an error while placing reliance upon the said restatement and
terming it as a corroborative evidence to the prosecution case
with regard to the main allegation of gang rape.
Submissions on behalf of the State :-
13. On the other hand, learned APP appearing for the
State has submitted that the allegation of gang rape was fully
supported by the victim herself before the trial court while
recording her evidence and the same gets support from the
victim’s statement recorded by her before the Judicial
Magistrate under section 164 of the Cr.P.C. Though, the
allegation of gang rape did not find place in the fardbeyan of the

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victim but at that time she did not disclose the said allegation in
order to save her public reputation which was revealed by her
during the course of trial and the same is sufficient to explain
her silence in the fardbeyan for not disclosing the offence of
gang rape committed with her by the appellants. Learned APP
has further submitted that for substantiating the offence under
section 376(2)(g) of the IPC, the victim’s own evidence in itself
is sufficient and further, the same gets support from her injuries
detailed by PW-5 who proved the medical register containing
the details of the injuries of the victim and according to him, on
the private part of the victim, there was laceration which
supports the allegation of rape.
Consideration and Analysis :-
14. I have heard both the sides, perused the judgment
impugned and the evidences adduced by both the sides,
including the statements of the appellants recorded by them
under section 313 of the Code of Criminal Procedure (in short,
‘Cr.P.C.’).
15. In the light of above contentions, I have first
perused the fardbeyan of the victim and thereafter gone through
other relevant evidences. The alleged incident is said to have
taken place on 18.01.1992 at 2:00 A.M at late night. The victim

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recorded her fardbeyan on the same day in the morning at about
9:00 A.M. She alleged in her fardbeyan that the appellants
armed with lathi, iron rod and a wooden club (kunda) came at
her house and assaulted her and her mother-in-law causing
several injuries to her on her right cheek, stomach, back and rib
and also revealed a land dispute being running in between both
the sides which was the main reason on the part of the
appellants to commit the alleged occurrence. In the entire
fardbeyan, the victim did not whisper any word about the
commission of gang rape with her by the appellants. As far as
the reliability of her fardbeyan is concerned, there are some
circumstances which persuaded this Court to believe the same.
On the fardbeyan, the victim made her thumb impression but
her husband signed upon it. PW-3, the husband of the victim,
deposed before the trial court in the paragraph No. 12 of his
cross-examination that the fardbeyan contains his signature and
he identified the same and according to him, his wife (victim)
correctly recorded her fardbeyan and he signed upon it after
being satisfied. This statement of the informant’s husband is in
itself sufficient to prove the reliability of the fardbeyan of the
victim, which was the first version of the prosecution. As far as
the victim’s plea as to the allegation of gang rape not being

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disclosed by her in order to protect her public reputation is
concerned, the place does not appear to be reliable as her
husband did not say anything in support of this contention. The
victim deposed before the trial court that after the occurrence,
she became unconscious and later on her statement was
recorded by the police after she gained consciousness. The said
statement does not appear to be reliable as the victim was
examined on the same day i.e. on 18.01.1992 at about 10:25
A.M., just after 1 hour 25 minutes after recording the fardbeyan
and on the next day, she was again medically examined as per
the evidence of PW-7, who proved the details of the medical
examination of the victim which were marked as Ext.- 2/a and
2/b containing the information of the victim’s health condition
as well as injuries found on her body. In both the exhibits, the
concerned medical expert did not mention any fact supporting
the victim’s plea as to she having become unconscious on the
alleged day and time of occurrence when she was brought at the
hospital for the medical examination. Several months after the
institution of the FIR, the victim developed her allegation in her
statement recorded by her before the Judicial Magistrate which
appears to be an afterthought. Though, as per the prosecution, in
restatement she made the allegation of gang rape upon which

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the trial court also placed reliance but the said approach of the
trial court does not appear to be correct and legal as the
restatement which comes in the purview of Section 161 of the
Cr.P.C. was not proved and secondly, such statement can only be
used to contradict the court evidence statement of a particular
witness who recorded such restatement during investigation
with the help of the provisions of Section 145 of the Indian
Evidence Act by the accused and also by the prosecution with
the permission of the trial court. But the said provision was not
followed in the present matter. As per the prosecution story
narrated in the fardbeyan, two co-villagers of the victim,
namely, Shivnath Ram and Dodha Ram came at the place of
occurrence when the offences were being committed and they
witnessed the occurrence and both the said persons were
produced by the prosecution but they did not support the case of
the prosecution and went hostile. The victim's husband who
witnessed the initial part of the occurrence, if the testimony of
the victim is taken to be true, stated in the cross-examination
that at the time of occurrence there was no light. He further
stated in paragraph no. 16 that when the accused/appellants
entered into his house after breaking the taat, he alone fled away
and returned back after half an hour and at that time there was

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no one at the door of his house and the accused/appellants had
gone and his wife was lying in unconscious condition but he
deposed in his examination-in-chief that he returned after one
hour and he saw that his wife was being dragged by the accused
persons towards an orchard of one namely, Chandan Shah where
the accused/appellants raped his wife one by one. The statement
in itself contradicts the statement of this witness made by him in
the cross-examination. Further, the victim, who was examined
as PW-4, deposed in her examination-in-chief that after the
commission of gang rape she managed to come at her house and
fell down in the courtyard and thereafter, her husband came and
took her to the hospital for treatment. While the victim stated
before the Judicial Magistrate in her statement recorded under
Section 164 of Cr.P.C. that after the commission of gang rape
and causing injuries to her private part by the front barrel
portion of the gun, she became unconscious and she could not
know about the subsequent incidents and developments and she
gained consciousness in the morning at 8:00 A.M. and
thereafter, she herself stood and came at courtyard of her house.
In this way the victim did not remain consistent to her stand
with regard to the last part of her allegation of gang rape. In the
instant matter as per the prosecution story, the accused/

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appellants being in large number came at the house of the
informant equipped with gun, lathi and iron rod etc. and
damaged some outer part of the victim’s house made of Tatt and
further, as per the allegation there were some bleeding injuries
to the victim on account of the alleged assault, so, in order to
prove the alleged places of occurrences the evidence of the
Investigating Officer, who inspected the alleged places of
occurrences, was very important but he could not have been
produced by the prosecution though one Shambhu Sharan
Gupta, SHO of police station, being familiar with the
handwriting and signature of the Investigating Officer, was
examined by the prosecution as P.W.-8 but according to him the
Investigating Officer was traceless at that time. The said plea
taken by this witness is not helpful to the prosecution to escape
its liability to produce a Government official and on account of
non-production of the Investigating Officer, the defences taken
by the appellants were seriously prejudiced and in the
background of the facts and circumstances appearing from the
prosecution’s evidences, the said lacuna on the part of the
prosecution cannot be ignored. Further, in the present matter, no
site plan was prepared and the alleged weapons were not
recovered and other incriminating materials such as clothes of

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the victim were not seized and produced before the trial court
and for this, the evidence of the Investigating Officer was very
important who was the best person to explain the reasons for
these lacunas and in this regard, the observation made by the
Hon’ble Apex Court in the case of Ravishwar Manjhi and
Ors. vs. State of Jharkhand reported in (2008) 16 SCC 561, in
the paragraph No. 27 of the said judgment is relevant, which is
being reproduced as under:-
“ 27. The investigating officer in a
case of this nature should have been examined.
His examination by the prosecution was
necessary to show that there had been a fair
investigation. Unfortunately, even no site plan
was prepared. There is nothing on record to show
as to the exact place where the occurrence had
taken place. It is stated that the house of the
parties is divided by a road. If that be so, it was
all the more necessary to pinpoint the exact place
of occurrence to ascertain who was the
aggressor.”
16. It is an admitted position that at the time of
commission of the alleged occurrence there was a land dispute
in between the victim’s family and the appellants and civil
litigation had also been running for a long time in between
them. The appellants’ counsels have taken the defence that on
account of the said land dispute, a simple occurrence of marpit

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took place in between both the parties and all the injuries found
on the person of the victim (informant) were opined to be
simple in nature though, one injury on the private part of the
victim was found but the same was not in such a nature to
suggest the commission of gang rape and encircling the front
portion of the barrel of a gun inside the vagina of the victim and
the allegations were exaggerated by the victim with revengeful
attitude on account of the land dispute. The said defence appears
to be believable in the background of the surrounding
circumstances appearing from the prosecution evidences as
discussed above.
Conclusion :-
17. Accordingly, this court is of the considered opinion
that the prosecution failed to establish the allegation of gang rape
pertaining to the offence under section 376 of the IPC beyond
reasonable doubt for which the appellants have been convicted.
Though, the prosecution succeeded to establish the case of a
simple marpit and atrocities bringing the alleged acts of the
appellants in the purview of section 3(i)(xi) of the SC/ST Act, so,
the conviction of the appellants for the offences under sections
148 and 323 of the IPC and sections 3(i)(xi) of the SC/ST Act
was proper for which they were sentenced to undergo one year
rigorous imprisonment for the offence under section 148 of the

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IPC, six months for the offence under section 323 of the IPC and
one year for the offence under section 3(i)(xi) of the SC/ST Act
and all the appellants have served the said sentences. Hence, the
impugned judgment of conviction and order of sentence are
hereby set aside to the extent of the offence punishable under
section 376 of the IPC for which the appellants were convicted
and sentenced but their conviction and sentence for other
offences are upheld.
18. In the result, the instant appeals stand partly
allowed.
19. The appellants are in judicial custody and they
have already served the sentences imposed upon them for the
offences under sections 148 and 323 of the IPC and section 3(i)
(xi) of the SC/ST Act, so, they are directed to be released at once
if their custody is not required in any other case.
20. Let the records of the trial court, along with a
copy of this judgment, be transmitted forthwith to the trial court
for needful and necessary compliance.


(Shailendra Singh, J)
Annu/BKS/Krishna-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 22.06.2026
Transmission Date 22.06.2026