JITAN CHAUDHARY @ JITENDRA CHAUDHARY @ JITEN CHOUDHRIversusThe State Of Bihar

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.999 of 2018

   Arising Out of PS. Case No.-212 Year-2015 Thana- PURNEA SADAR District- Purnia
======================================================
Jitan Chaudhary @ Jitendra Chaudhary @ Jiten Choudhri, S/o Etwari
Chaudhary, R/o Vill.- Daliyaghat, P.S.- Sadar (Muffasil), Purnia, District-
Purnia.


                                                                 ... ... Appellant/s
                                      Versus
The State of Bihar


                                                              ... ... Respondent/s
======================================================
Appearance :
For the Appellant/s      :       Mr. Navin Kumar, Adv.
                                 Mr. Rakesh Kumar Jha, Adv.
For the State            :       Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
           and
           HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
Date : 06-07-2026


                      In our journey in dispensing with justice, we

 often come across some cases, the culpability of which is not

 even understood and digested by us. The instant case is highly

 representative of such cases, wherein, allegedly, a wrong was

 committed by a young man of 25 years upon a lady aged about
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         75 years (as per the ossification test, stated to be 60 years.)

                           2. The instant appeal challenges the judgment of

         conviction dated 27.02.2018 and order of sentence dated

         05.03.2018 passed by the learned Sessions Judge, Purnea in

         connection with Sessions Trial No. 429 of 2015/CIS No. 388 of

         2015, arising out of Purnea Sadar P.S. Case No. 212 of 2015

         (G.R. Case No. 2483 of 2015), whereby, the accused/appellant

         has been convicted for the offence punishable under Section

         377 of the Indian Penal Code (in short the I.P.C.) and has been

         sentenced to undergo rigorous imprisonment for life with a fine

         of 5,000/-. In default of payment of fine, the accused/appellant

         has further been directed to suffer simple imprisonment for

         three months.

                           3. The informant (P.W. 2) is the younger brother

         of the victim. It is stated in his fardbeyan that his widowed

         sister (name is not stated as per the direction by the Hon’ble

         Supreme Court), aged about 70 years, used to stay in a hutment

         at Daliyaghat. The said hutment was a thatched house and the

         victim used to stay alone in the said hutment. On the other side

         of the river, flown between the said hutment and the house of

         the informant, the informant used to stay with his family.

                           4. It is alleged that on 09th of June, 2015 at dead
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         hours of night, at about 02:00 A.M., the accused/appellant

         surreptitiously entered into the room of the said hutment and

         committed anal sex with the said old lady (the victim). The

         informant came to know about the incident from his family

         members, whereafter, he went to the hutment of the victim, the

         old lady, who, somehow or the other, stated the incident to him,

         alleging Jitan Chaudhary @ Jiten Choudhri (the appellant) as

         the perpetrator of the offence. The fardbeyan also states that

         the accused/appellant had old history of committing rape of

         other ladies.

                           5. On the basis of the above complaint, the police

         registered a case vide Purnea (Sadar) P.S. Case No. 212 of 2015

         on 11th of June, 2015 under Section 376 of the I.P.C.

                           6. On completion of the investigation, the

         charge-sheet was submitted against the accused/appellant,

         alleging commission of the offence under Section 376 of I.P.C.

                           7. Since the case was exclusively triable by the

         Court of Sessions, the learned Chief Judicial Magistrate,

         Purnea committed the case to the Court of learned Principal

         Sessions Judge, Purnea for trial. Subsequently, the case was

         transferred to the Court of the learned Sessions Judge, Purnea

         for trial and disposal.
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                           8. The learned Sessions Judge, Purnea framed

         charge against the accused/appellant under Section 376 of the

         I.P.C. and, alternatively, under Section 377 of the I.P.C. also.

                           9. During the course of trial, the prosecution has

         examined altogether seven witnesses.                Amongst them, one

         P.W.1/Marali Kumari @ Sulochana Kumari is the daughter of

         the informant and the wife of one Jitendra Parihar; P.W.

         2/Bindu Chaudhary is the younger brother of the victim; P.W.

         3/Mishra Chaudhary is also another brother of the victim; P.W.

         4/Rambha Devi is the wife of Ashok Chaudhary; P.W. 5 is the

         victim herself and P.W. 6 is the Doctor, namely, Dr. Poonam

         Prabha, who medically examined the victim on 12 th of June,

         2015, initially, submitted a medical report and, thereafter, on

         receipt of the radiological examination report and the

         biological report of vagina and anal swab of the victim, she

         (P.W. 6) submitted her final report. P.W. 7/Ram Vijay Sharma

         is the Investigating Officer of this case.

                           10. We shall now proceed to consider the

         evidence on record independently, without being swayed over

         the judgment and order passed by the learned Trial Court, to

         consider as to whether the Trial Court rightly convicted the

         accused/appellant and passed the order of sentence.
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                           11. The learned Advocate appearing on behalf of

         the accused/appellant submits that all the witnesses, on the

         incident, are close relatives of the victim and there is no eye-

         witness to the occurrence.

                           12. The aforesaid submission is out-rightly

         discarded because seeking for an eye-witness in a case of rape

         adds to the woe of the victim with great extent. It does not

         happen that an accused would commit rape of a woman in

         presence of the eye-witnesses.

                           13. From the evidence on record, we find that

         P.W. 1/ Marali Kumari @ Sulochana Kumari used to go to the

         hutment regularly in the morning, taking tea for the old lady

         (the victim) by crossing the river. On the following date of the

         occurrence in the morning, when she went to the hutment, the

         victim told her crying that the appellant committed rape upon

         her during the last night. Hearing such incident, she returned

         back to her house and informed the same to her mother.

                           14. The defence took a plea that the father of one

         of the witnesses mortgaged a piece of land against some

         amount of money in favour of the accused. Subsequently, he

         was demanding the land before expiry of the period of

         mortgage, which was initially for three years. When the
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         accused refused to return the same, he introduced a false case

         against the appellant to put pressure upon him for the said land.

         The witness denied such suggestion. Subsequently, it is found

         from the evidence of P.W. 2 (the informant) that already the

         period of mortgage was coming to an end within a few months

         before the date of occurrence. Therefore, there was no reason

         of putting any pressure upon the appellant by instituting a false

         case.

                           15. We are in agreement with the learned defence

         counsel that in the instant case, all the witnesses, upon the

         occurrence, are family members. However, in a case of rape,

         the family members of the victim are the most natural

         witnesses and it is not possible to bring so-called independent

         witnesses outside the family of the victim to prove the charge

         under Section 376 or Section 377 of the I.P.C.

                           16. From the evidence of P.W. 3 & P.W. 4, we

         find that they came to know about the incident from P.W. 1 and

         her mother, whereafter, they went to the hutment where the

         victim (the old lady) used to stay. The victim corroborated the

         incident to them, which took place on 09th of June, 2015.

                           17. It is alleged by the learned Advocate

         appearing on behalf of the appellant that the incident took place
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         in the night of 09th June, 2015, but the F.I.R. was lodged after a

         lapse of two days on 11th of June, 2015. The victim was

         medically examined after three days of the occurrence, i.e., on

         12th of June, 2015. There was no explanation for such delay by

         the prosecution in the instant case.

                           18. In cases of offences other than sexual

         atrocities, an unexplained delay in lodging the F.I.R. may, in

         certain circumstances, be held to be fatal, but in a case of rape,

         it is consistently held by the Hon’ble Supreme Court that the

         delay in lodging the F.I.R. is not fatal for the prosecution. The

         victim (the old lady) and her family must gain some moral

         courage and strength to disclose the incident regarding

         ravishment of a lady to the Police Station by making the

         incident public.

                           19. It is found from the formal F.I.R. that the

         brother of the victim (P.W. 2) lodged the complaint on 11th of

         June, 2015. On the same date, the Purnea Sadar (Muffasil) P.S.

         Case     No.     212     of    2015      was        registered   against   the

         accused/appellant and the case was taken up for investigation.

                           20. In a case of rape, the most vital evidence is

         that of the victim and that of the doctor’s. During trial, the

         victim was examined as P.W. 5. She stated her age to be 85
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         years. In paragraph 3 of her evidence, she stated that during

         day time, she was able to see by her one eye, but suffering

         from blindness by another eye. During night, she could see by

         her one eye. Her eye sight was good and she could see objects

         from quite some distance. Due to her old age, as she stated in

         her evidence, her brothers did not allow her to perform any

         work and she used to stay in her room. In cross examination, it

         was      affirmatively       taken       that       the   day   when   the

         accused/appellant committed “galat kaam”, she was staying in

         her hut. She denied the suggestion that due to land dispute, she

         implicated the accused/appellant under the instruction of her

         brother.

                           21. The Medical Officer (P.W. 6) examined the

         victim on 12th of June, 2015.                       No spermatozoa, after

         microbiological examination, was found in the vagina and anal

         swab taken by P.W. 6, during her initial medical examination.

         However, the Medical Officer found abrasion on the nose of

         the victim and around anal orifice. Therefore, P.W. 6 submitted

         a report stating, inter alia, that she did not find any sign of rape

         at the time of the medical examination of the victim, but its

         possibility would not be excluded.

                           22. During cross examination, no suggestion was
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         put on behalf of the accused/appellant to the victim that she

         was suffering any form of disease, causing abrasion in anal

         orifice. The mark of abrasion was found even after three days

         of the occurrence.             From the cross-examination of the

         witnesses examined on behalf of the prosecution, no substantial

         material appears where we can raise doubt on the evidence of

         the victim and other witnesses with respect to the incident.

                           23. Now, it appears from the Trial Court

         judgment that the appellant was convicted for the offence

         punishable under Section 377 of the I.P.C. The learned Trial

         Judge failed to consider the definition of Section 375 of the

         I.P.C., which was substituted by Act of 2013, with effect from

         3rd of February, 2013.

                           24. Section 375 of the I.P.C., after amendment,

         defines rape in the following words :-

                                         “A man is said to commit “rape” if he-
                                         (a) penetrates his penis, to any extent,
                            into the vagina, mouth, urethra or anus of a woman
                            or makes her to do so with him or any other person;
                            or…………...”
                                                              (emphasis supplied)


                           25. Therefore, anal penetration comes within the

         fold of the definition of rape under Section 376 of I.P.C.

                           26. Section 376 of the I.P.C. speaks of
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         “punishment for rape”. Sub-Section (1) of Section 376 of the

         I.P.C. states as hereunder:-

                                             “Whoever, except in the cases provided
                             for in sub-section (2), commits rape, shall be
                             punished with rigorous imprisonment of either for
                             discription for a term which shall not be less than
                             ten years, but which may extend to imprisonment
                             for life, and shall also be liable to fine.”


                           27. With regard to the quantum of sentence, it is

         submitted by the learned Advocate appearing on behalf of the

         appellant that he was a young man of 25 years on the date of

         commission of the offence. It has been submitted on behalf of

         the appellant that he is in custody since 17 th of June, 2015 and

         since then, more than ten years have elapsed. Therefore, he

         invites the Court to take a lenient view on the question of

         sentence as imposed by the learned Trial Court.

                           28. We have duly considered the submissions

         made on behalf of the appellant. Though, it is stated that the

         accused/appellant was a man of immoral character, but the said

         fact has not been proved during course of trial. So far as this

         case     is   concerned,       it     is    the     first   offence   of   the

         accused/appellant, who, the time of commission of offence,

         was aged about 25 years and, now, he is aged about 35 years.

         During the passage of more than ten years in jail, we hope and
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         trust that the appellant has changed his moral degradation and

         becomes a responsible citizen of this country.

                           29. Considering such circumstances, we are of

         the considered view that in the instant case though the

         accused/appellant is convicted under Section 377 of the I.P.C.,

         but so far as the punishment is concerned, we are of the view

         that we impose minimum punishment provided under Section

         376 of the I.P.C.

                           30. Thus, the appellant is sentenced to suffer

         rigorous imprisonment for ten years with a fine of Rs. 5,000/-,

         in default of payment of fine, he has to suffer simple

         imprisonment for three months.

                           31. If the fine amount is paid, the entire amount

         be paid to the victim (P.W. 5) as compensation.

                           32. If the appellant, above-named, is in custody

         for more than ten years, the Office is directed to examine the

         same and issue release order, subject to payment of fine, if he

         is not wanted in any other case.

                           33. In view of the above, the judgment of

         conviction and the order of sentence, referred to above, are

         modified to the extent as noted hereinabove and are, hereby, set

         aside.
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                                         34. The appeal stands partly allowed.




                                                 (Bibek Chaudhuri, J)


                                                (Rana Vikram Singh, J)
Saurabh.kr/Praveen-II

AFR/NAFR                 NAFR
CAV DATE                 N/A
Uploading Date           07.07.2026
Transmission Date        07.07.2026