Patna High Court
Bhuneshwar Mochi @ Ram Nandan Mochi vs The State Of Bihar on 8 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.155 of 2014
Arising Out of PS. Case No.-179 Year-2004 Thana- HASANPUR District- Samastipur
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Bhuneshwar Mochi @ Ram Nandan Mochi, Son of Late Ram Kishun Mochi,
Resident of Village-Sakarpura, P.S. -Hasanpur, District-Samastipur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Jitendra Narain Sinha, Advocate
: Mrs. Mira Kumari, Advocate
For the Respondent/s : Mrs. Anita Kumari Singh , APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
Date: 08-04-2025
Heard Mr. Jitendra Narain Sinha and Mrs. Mira
Kumari, learned counsel for the appellant and Mrs. Anita
Kumari Singh, learned APP for the State.
2. The present appeal has been filed under
Section 374 (2) of Code of Criminal Procedure, 1973
(hereinafter referred as 'Cr.P.C') challenging the Judgment of
conviction dated 14.02.2014 and order of sentence dated
22.02.2014
passed in Sessions Trial No. 438 of 2007 / 172 of
2010 in connection with Hassanpur P.S. Case No. 179 of 2004
passed by learned 1st, Additional District and Sessions Judge,
Samastipur, whereby and where-under the appellant has been
convicted for offence punishable under Sections 376/34 of the
Indian Penal Code (hereinafter referred as “IPC“) and has been
Patna High Court CR. APP (SJ) No.155 of 2014 dt.08-04-2025
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sentenced to undergo rigorous imprisonment for 10 years with
fine of Rs. 10,000/- and in default of payment of fine he shall
further undergo simple imprisonment for one year.
3. The case of the prosecution in brief is that as
per complaint petition of complainant she is poor labourer and
from her labour work she used to maintain her family and she
alleged that on 17.12.2003 at about 10 pm when she was
sleeping in her house with her minor child where dibiya was
lighting, the accused persons namely Madan Mochi and
Bhuneshwar Mochi, entered into her house removing the gate
and accused Madan Mochi began to remove the cloths from her
body upon which she woke up and identified both accused
persons in the light of dibiya and when she tried to raise alarm
the accused Madan Mochi shown her knife and threatened to
kill her if she will raise alarm and due to fear she became mum
after which both the accused persons Madan Mochi and
Bhuneshwar Mochi committed rape with her one by one and
went away saying that if she shall raise alarm and say about the
fact to anyone she shall be killed. The further case of the
complainant is that while the culprits were going her daughter
Rani Devi raised alarm upon which villagers assembled and
identified the accused persons in torch light after which she was
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going to police station but the villagers said to settle the matter
through panchayat after coming of her husband but when her
husband came to whom she narrated about the occurrence and
the villagers were ready to settle the matter through panchayat
but the accused persons refused from obeying the verdict of
Panchayat after which she i.e., the complainant went to the
police station but the police being in-collusion with the accused
persons could not register her case after which she filed her
complaint petition numbered as complaint case No. 1024 of
2003 in the court of Additional Chief Judicial Magistrate,
Rosera who had forwarded the same under Section 156(3) of the
Cr.P.C to the Officer-in-charge of Hassanpur police station to
register the case and investigation after which this case was
registered as Hassanpur P.S. Case No. 179 of 2004 by the
Officer-in-charge of the police station and Sri Murlidhar
Sharma, Sub-Inspector of police was deputed to investigate the
case. During the investigation the Investigating Officer after due
investigation had submitted the final form finding the allegation
of the complainant false against the accused persons. The
complainant had filed protest petition upon which the learned
A.C.J.M, Rosera had directed for recording the statement of
four witnesses under Section 164 of the Cr.P.C. of the private
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petition of the informant without petition of IO and had deputed
Sri V.K. Srivastava, J.M. Ist. Class, Rosera to record the
statement of the witnesses Somain Devi, Rani Kumari, Pinki
Kumari and Rinki Kumari. The statement of the witnesses
recorded under Section 164 of the Cr.P.C. and also perusing the
case diary the learned A.C.J.M, Rosera had took cognizance
against both the accused persons for the offence under Section
376 IPC.
4. After commitment of the case record to the
Court of learned Sessions the same has lastly been transferred to
this court for trial and disposal. During the course of trial one of
the accused persons Madan Mochi had died, hence through the
order dated 27.05.2011 the proceeding of the case has been
dropped against him.
5. On behalf of the prosecution, total 6 witnesses
were examined to substantiate the charges leveled against the
accused/appellant, out of them, PW-1 Ram Sakha Rai (hostile),
PW-2 Rani Kumari, PW-3 Dinesh Rai, PW-4 Somain Devi, PW-
5 Rinku Kumari and PW-6 Pinku Devi. Three defence witnesses
DW-1 Jageshwar Mochi, DW-2 Ram Binod Rai and DW-3 Md.
Sultan have also been examined on behalf of defence and they
proved the documents filed on behalf of the accused, and have
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also said that the accused is innocent has been implicated due to
enmity and no occurrence had took place as alleged by the
informant.
6. PW-3 Dinesh Rai has stated in his examination
in chief that the occurrence is of about 5 years before and day
was Wednesday at about 10.00 pm, while he was returning from
his field and in the way when he reached near the house of Bilo
Rai and saw that the noise is going on in his courtyard and also
saw in the torch light that Madan Mochi was coming from his
house and later came to know from the children that Madan
Mochi has committed rape with the wife of Bilo Rai and again
has said that two persons had committed the rape. He has
identified the accused Madan Mochi present in the Court and
has also claimed to identify other accused Bhuneswar Ram.
6.i. In his cross-examination he stated that
Bhuneswar Ram is his villager, so he identified him but in that
night he had not seen him. In para No. 8 of his cross-
examination he stated that informant has got four sons and one
daughter and one of his son and daughter have been married. In
para 18 of his cross-examination he stated that he do not know
Marni Devi w/o Bhuneshwar Mochi and he knows Siyaram &
Bhuneshwar works in Railway and in para no. 20 of his cross-
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examination he stated that Kausahlya Devi is younger sister in-
law of Madan mochi. In para 25 of his cross-examination he
stated that he can not say the name of the children of Bhuneswar
& Madan Mochiandan. In para 29 & 30 of his cross-
examination he stated that the wife of Bilo Mochi who is the
complainant of the case had came in the morning to his house
and has narrated him the entire fact.
7. PW-4 Somain Devi has stated in her
examination-in-chief that she had filed the case against
Bhuneshwar and Madan Mochi and the occurrence is of about
five years nine months before at 10:00 pm, the day being
Wednesday while she was sleeping at the Baranda of her house
along with her two daughters Pinku and Rinku she has further
stated in her examination in chief that Bhuneshwar caught her
shoulder upon which she woke up and tried to free her but he
could not free her and both Bhuneshwar and Madan said that
they shall kill her if she shall make noise and both of them
committed rape with her one by one and her daughters also
remained mum due to fear. She further stated in her
examination-in-chief that she had identified the accused persons
in the light of dibiya and when she raised alarm several people
came in which Dinesh and Bilapat Rai had also came and had
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seen the occurrence. She further stated in her examination-in-
chief that she was willing to go to police station but the matter
came at Panchayat but later on the accused persons were not
ready to obey the verdict of the Panchayat after which she went
at police station but police could not register her case after
which she came at Rosera Court and filed a case and had put her
L.T.I. upon the paper of the case.
7.i. In her cross-examination she stated that she
had came with her husband at about 10 pm and meet with
Pramod Babu, Advocate and has further stated that Ram Kishun
Mochi had three sons namely Jageshwar, Ram Pratap and
Bhuneshwar but she do not know that Bhuneshwar is called as
Ram Nandan or not. Regarding the accused Bhuneshwar she
stated that he works in railway but she do not know as to where
he is posted. In para 4 of her cross-examination she has denied
from knowing the fact that Bhuneshwar who is the accused of
the case had taken land in the name of his wife or not and has
also denied from knowing the fact that for the said land itself
her husband Siyaram had given advance money or not. In para 7
of her cross-examination she stated that she has got a son
namely Dinesh Ram who is married one, having two children
and his daughter Rani is also married one and she has also got
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two other daughters namely Pinku and Rinku. In para 24 of her
cross-examination she stated that at the time of occurrence her
husband had gone to her parent’s house at village Mahrauli and
had came back on the next day and after three days of his
coming she had filed case but she do not know as to what was
written in the case. She has further said in her cross-examination
that she had gone to the house of the advocate who had written
her case. In para 25 of her cross-examination she stated that
after 10 days of the occurrence police had came at her house,
had recorded the statement of her daughters and has denied the
defence suggestion that police had not recorded the statement of
her daughters as she was at her sasural and had said herself that
her daughters were Bachelor.
8. PW-5 Rinku Kumari has stated in her
examination-in-chief that the occurrence is of about six and half
years before of 10 pm and day was wednesday and she was
sleeping with her mother and sister Pinku Kumari. She further
stated in her examination-in-chief that Bhuneshwar and Madan
Mochi had came near her mother and there was dagger in their
hands and both of them committed bad work with her mother,
firstly by Bhuneshswar Mochi and later on by Madan Mochi.
She has identified both the accused persons present in court.
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8.i. In her cross examination she stated that the
accused persons are her grand father in relation and their house
is after one house from her house and they do not know about
the land dispute between them. She further stated in her cross
examination that the night was dark and in the light of dibia, she
had identified the accused persons. In para 2 of her cross
examination she stated that when her mother raised alarm the
accused persons began to punch dagger to her but they could not
punch the dagger and in para 3 of her cross examination she
stated that she and her mother had raised alarm but no one had
came. In para 4 of her cross examination she stated that after
doing illegal work accused persons had fled away while her
father had gone to Delhi where he works. In Para 5 of her cross-
examination she stated that her other sister are elder from her
but at the time of occurrence of this case they were not married.
In para 8 of her cross-examination this witness has also stated
that her statement was recorded by the police.
9. PW-6 Pinku Devi is the other daughter of the
informant and stated that the occurrence is of about 7 years
before the day being Wednesday of 10 pm while she was
sleeping with her mother in the bramda and Bhuneshwar Mochi
as well as Madan Mochi came having knife in their hands and
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had committed illegal work one by one with her mother. She
further stated that first of all Bhuneshwar Mochi had committed
the illegal work and after him Madan Mochi had done so and
she had claimed to identify both the accused persons.
9.i. In her cross examination she stated the name
of her father as Ram Bilash Mochi and has said that she do not
remember as to when her father had come as she was child at
the time of occurrence. In para 2 of her cross-examination she
stated that her mother has not said anything to her rather she is
speaking what she has seen. In para No.3 of her cross-
examination she stated that her house is at chamar toli and she
knows Dinesh Rai, Vishwanath Rai, Ram Balak Rai who are
Babhan and their house is at bhabhan tola.
10. The accused has totally denied his
involvement in the alleged occurrence of this case in his
statement under Section 313 of the Cr.P.C. On behalf of the
defence, 3 witnesses were examined DW-1 Jageshwar Mochi,
DW-2 Ram Binod Rai and DW-3 Md. Sultan.
11. DW-1 Jageshwar Mochi has stated in his
examination-in-chief that he is the brother of the accused
Bhuneshwar @ Ram Nandan Mochi and cousin brother of
Madan Mochi, the deceased accused of this case. He further
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stated in his examination-in-chief that on 22.6.2002 Siyaram Rai
had written a Sale-deed in favour of Marni Devi and the
husband of the complainant was willing to purchase the land of
the said sale deed which sale deed has been later on been
marked as Ext. C. He further stated in his examination-in-chief
that the sister in law of the accused Madan Mochi namely Sobha
Devi has executed a sale deed on 21.4.2003 in the name of
Sunita Devi w/o Kanhaiya Rai in which the husband is the
complainant of this case has settled and so said Kanhaiya Rai
has got this false case filed standing the complainant.
12. DW-2 Ram Binod Rai has also come to say
that the complainant Sonmain Devi is Raiyat of Kanhaiya Rai
and is settled in his land due to which she has falsely implicated
the accused in this fabricated case on his saying due to land
dispute. In his cross-examination, he could not say the khata
number or plot number of the land in which the home of the
complainant is and also could not say as to how many cases has
been filed in his village.
13. Learned counsel for the appellant submits
that appellant has falsely been implicated in this case and the
impugned judgment of conviction and order of sentence are not
sustainable in the eyes of law or on facts. Learned trial Court
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has not applied its judicial mind and erroneously passed the
judgment of conviction and order of sentence. From perusal of
the evidences adduced on behalf of the prosecution, it is crystal
clear that the prosecution case has not been supported by anyone
other than the informant/victim herself and it is relevant to note
here that all other witnesses are interested witnesses. Learned
counsel further submitted that there is delay of 5 days in filing
the complaint for which the complainant had not given any
explanation for delay. It is opined that there was no mark of any
injury on private part of the victim. He further submitted that
accused/appellant is agriculturist and important witnesses like
Investigating Officer and Doctor for proving the offence have
not been examined which shows serious irregularities and
lacunae in the conduct of the investigation and the prosecution
case is doubtful.
13.i. Learned counsel next submits that appellant
/accused were not given opportunity to be contradicted the
statement of the informant along with her 3 daughters under
Section 164 of the Cr.P.C by marking the same in terms of
Section 294 of the Cr.P.C. Learned counsel further submitted
that the Investigating Officer of this case as well as the medical
officer who prepared the medical report of the victim has not
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been examined and only the interested witnesses who are either
family members or neighbor of the victim has given their
deposition and there are no any independent witnesses and, thus,
the case is not proved beyond all reasonable doubts, and the
conviction passed by the learned trial Court be set aside.
14. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellant beyond all reasonable doubts. In
view of the aforesaid statements and the evidence on record,
learned trial Court has rightly convicted the appellant and the
present appeal should not be entertained.
15. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court and have thoroughly perused the
materials on record as well as given thoughtful consideration to
the submissions advanced by both the parties.
16. Having deeply studied and scrutinized the
facts and the materials available on record of the present case, it
is evident to note here that there are material inconsistencies in
the deposition of the witnesses. The prosecution case has not
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been supported by anyone other than the informant/victim
herself and it is relevant to note that all other witnesses are
interested and related witnesses and no independent witnesses
have been examined during the course of trial.
17. Further, the contents of the FIR and Medical
Report have also not been proved as the evidence of the
Investigating Officer as well as the doctor who have not been
examined during the course of trial and non-examination of
Investigating Officer and doctor concerned is fatal to the case of
the prosecution. The Supreme Court in Habeeb Mohammad vs
The State of Hyderabad 1954 AIR 51, 1954 SCR 475 pointed
out that-
“It was the duty of the prosecution to
examine all material witnesses who could
give an account of the narrative of the
events on which the prosecution is
essentially based and that the question
depended on the circumstances of each
case. In our opinion, the appellant was
considerably prejudiced by the omission on
the part of the prosecution to examine
Biabani and the other officers in the
circumstances of this case and his
conviction merely based on the testimony of
the police jamedar, in the absence of
Biabani and other witnesses admittedly
present on the scene, cannot be said to have
been arrived at after a fair trial,
particularly when no satisfactory
explanation has been given or even
Patna High Court CR. APP (SJ) No.155 of 2014 dt.08-04-2025
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Jamedar, in the absence of Biabani and
other witnesses admittedly present on the
scene, cannot be said to have been arrived
at after a fair trial, particularly when no
satisfactory explanation has been given or
even attempted for this omission.”
18. The Hon’ble Apex Court in the case of
Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC
OnLine SC 80, whose relevant paragraph Nos.- 28 and 39 of the
said judgment are reproduced here-in-below:
“28. Before embarking on the exercise of
deciding the fate of these appellants, it
would be apt to take note of certain
principles relevant for a decision on these
two appeals. Needless to observe, such
principles have evolved over the years and
crystallized into ‘settled principles of law.’
These are:
(a)………
(b)………
(c). A defective investigation is not always
fatal to the prosecution where ocular
testimony is found credible and cogent.
While in such a case the court has to be
circumspect in evaluating the evidence, a
faulty investigation cannot in all cases be a
determinative factor to throw out a credible
prosecution version.
(d). Non-examination of the Investigating
Officer must result in prejudice to the
accused; if no prejudice is caused, mere
non-examination would not render the
prosecution case fatal.
(e)………
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“39. Secondly, though PW-4 is said to have
reached the place of occurrence at 1.30
p.m. on 5th September, 1985 and recovered
a bullet in the blood oozing out from the
injury at the hip of the dead body, no effort
worthy of consideration appears to have
been made to seize the weapons by which
the murderous attack was launched. It is
true that mere failure/neglect to effect
seizure of the weapon(s) cannot be the sole
reason for discarding the prosecution case
but the same assumes importance on the
face of the oral testimony of the so-called
eye- witnesses, i.e., PW-2 and PW-3, not
being found by this Court to be wholly
reliable. The missing links could have been
provided by the Investigating Officer who,
again, did not enter the witness box.
Whether or not non-examination of a
witness has caused prejudice to the defence
is essentially a question of fact and an
inference is required to be drawn having
regard to the facts and circumstances
obtaining in each case. The reason why the
Investigating Officer could not depose as a
witness, as told by PW-4, is that he had
been sent for training. It was not shown that
the Investigating Officer under no
circumstances could have left the course for
recording of his deposition in the trial
court. It is worthy of being noted that
neither the trial court nor the High Court
considered the issue of non-examination of
the Investigating Officer. In the facts of the
present case, particularly conspicuous gaps
in the prosecution case and the evidence of
PW-2 and PW-3 not being wholly reliable,
this Court holds the present case as one
where examination of the Investigating
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Officer was vital since he could have
adduced the expected evidence. His non-
examination creates a material lacuna in
the effort of the prosecution to nail the
appellants, thereby creating reasonable
doubt in the prosecution case.”
emphasis applied
19. Further prosecution has failed to prove the
injury sustained by the victim as neither any medical report has
been exhibited nor any medical practitioner has been examined
during the course of the trial. Investigating Officer has also not
been examined during the course of trial as it was fatal since he
could have adduced the expected evidence and his non-
examination creates a material lacuna in the effort of the
prosecution to nail the appellant, thereby creating reasonable
doubt in the prosecution case as PW-1 declared hostile and PW-
2 in her deposition stated that Madan Mochi first came and
raped her mother thereinafter Bhuneshwar came whereas the
victim in her deposition para 15 stated that first Bhuneshwar
yadav came and raped her thereinafter Madan Mochi came. Pw-
2 further in her deposition stated that she saw her mother naked
at the time of occurrence in para 20 whereas PW-4 in her
deposition para 14 stated that accused/appellant did not
completely removed her cloths and she was not naked. There are
material inconsistencies in the depositions made by all
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prosecution witnesses as all daughters of the victim were minor
i.e., PW-2, 5 and 6 and magistrate can’t order for recording of
the 164 statement on request of the informant during the trial.
20. The learned trial Court failed to scrutinize the
evidence brought on record regarding deficiencies, drawbacks
and infirmities crept during course of trial and passed the
impugned judgment in complete ignorance of criminal
jurisprudence. Moreover, there are discrepancies regarding the
sequence of events and the presence of individuals at the place
of occurrence. Considering this fact, prosecution has failed to
establish this case beyond all reasonable doubt, therefore, in
such circumstances, it may not be proper to convict the
appellant/accused on the materials available on record. Hence,
the judgment of conviction and order of sentence in this present
matter is fit to be set aside
21. Hence, the Judgment of conviction dated
14.02.2014 and order of sentence dated 22.02.2014 in Sessions
Trial No. 438 of 2007/172 of 2010 arising out of Hassanpur P.S.
Case No. 179 of 2004 passed by learned 1st, Additional District
and Sessions Judge, Samastipur is set aside and the accused
/appellant is acquitted from the charges leveled against him. As
the appellant is on bail, he is discharged from liability of his bail
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bond.
22. Accordingly, this appeal stands allowed.
(Ramesh Chand Malviya, J)
Anand Kr.
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