Patna High Court
Jitan Chaudhary @ Jitendra Chaudhary @ … vs The State Of Bihar on 6 July, 2026
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
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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
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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
