Deepak Mahto vs The State Of Bihar
2021 Latest Caselaw 1929 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.2932 of 2019
   Arising Out of PS. Case No.-43 Year-2018 Thana- INARWA District- West Champaran
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DEEPAK MAHTO @ Deepak Kumar, Son of Gudar Mahto, Resident of Village- Khamhiya, P.S.- Inarwa, District- West Champaran.

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

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr.N. K. Agrawal, Sr. Advocate.

Mr. Vijay Anand, Advocate.

For the Respondent/s : Mr. Zeyaul Hoda, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date :12-04-2021 The sole appellant Deepak Mahto was charged under

Section 376 of the Indian Penal Code and Section 6 of the

POCSO Act in connection with Inarwa P.S. Case No. 43 of 2018

corresponding to CIS No. 218 of 2018. However the learned

trial Judge convicted the appellant for offence under Section 18

of the POCSO Act for the reason that the trial Judge was of the

view that no case of aggravated penetrative sexual assault was

made out rather a case of attempt to commit penetrative sexual

assault was proved against the appellant. Accordingly, the

learned Special Judge, POCSO, West Champaran at Bettiah Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

sentenced the appellant to undergo rigorous imprisonment for

10 years and to pay a fine of Rs. 2 lacs. In default of payment of

fine, two years further imprisonment was ordered. Out of the

aforesaid fine amount, Rs.1 lac was ordered to go to the victim.

The judgment of conviction dated 12.06.2019 and order of

sentence dated 15.06.2019 are under challenge in this appeal.

2. The prosecution case as disclosed in the written

report (Ext.2) in the pen of Isteyaq is that the prosecutrix aged

about 13 years was in her house in village-Khamhiya, P.S.-

Inarwa, District-West Champaran. On 16.06.2018 at about 12

night, the appellant entered into her house and forcefully

established sexual relationship. The informant tried to make

alarm, but the appellant pressed on her mouth. Further

allegation is that the appellant lifted her and was carrying her to

commit her murder, but the family members came and the

appellant was apprehended and was handed over to the police.

3. On the basis of the statement aforesaid, Inarwa P.S.

Case No. 43 of 2018 was registered on 17.06.2018 under

Section 376 IPC and Section 6 of the POCSO Act vide Ext.-2.

4. After investigation, the police submitted

chargesheet under Sections 376 and 511 of the Indian Penal

Code and Section 6 of the POCSO Act. Accordingly the Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

appellant was put on trial.

In the statement recorded under Section 164 Cr.P.C.

on 18.06.2018, the prosecutrix stated that the appellant had not

ravished her rather attempted to commit rape, but he could not

succeed. A copy of the statement under Section 164 Cr.P.C. is

Ext.-X.

During trial, the prosecution examined altogether

seven witnesses. The medical examination report of the victim

is Ext.-5 on the record, whereas chargesheet submitted by the

police under Section 173 Cr.P.C. is Ext.-4. The production cum

seizure list is Ext.-3.

5. Learned counsel for the appellant contends that

none of the prosecution witnesses produced have supported any

allegation against the appellant, hence the case is of "no

evidence", but the learned trial Judge misunderstood the legal

principles and relied upon the statement recorded under Section

154 Cr.P.C. as well as under Section 164 Cr.P.C. for coming to

the conclusion that the prosecution has proved the charge

against the appellant beyond reasonable doubt. Learned counsel

contends that Dr. K.M.P. Parwe who had performed radiological

examination of the prosecutrix was not produced in Court nor

Dr. Rubi Kumari who had examined the victim was produced by Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

the prosecution rather injury report has been proved by Dr.

Keshwar Jamil (PW-7) who was not present at the time of

examination of the victim. Hence his evidence was completely

hearsay evidence and the accused prejudiced in not getting

opportunity to cross-examine the expert.

6. Learned counsel for the State contends that a victim

of rape hesitates in disclosing what has happened against her

openly at each and every opportunity faced by her and the

statement of the prosecutrix as PW-1 would reveal that she has

supported her earlier statement given before the police or before

the Magistrate. Therefore, she is wholly a reliable witness and

corroboration is not the requirement of law. Hence, the

judgment of conviction requires no interference.

7. PW-1, the prosecutrix of the case has deposed as

follows:-

"I am informant of this case.

After the occurrence, I was medically

examined. A lady doctor had examined me.

In the past also, I had made statement before

the Court. A female constable had

accompanied me for statement along with

Daroga Jee. The same female constable took Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

me to M. J. K. hospital before a doctor. A

female doctor there-at examined me. In

Court, "Judge Sahab" had recorded my

statement in the past and I had stated

everything correctly before him."

"On my complaint, the police

had come into action and investigated the

case. It is not a fact that the parents had

expelled me from the house. I am still

residing with my parents. At the police

station, a lady police officer had made

queries from me. Police had arrested the

accused. I am not in love with that boy nor I

want to marry with him."

"At the time of occurrence, my

family members were not at the house. On

their arrival, I disclosed about the occurrence

to them. The villagers caught the accused

Deepak Mahto and handed over him to the

police."

"The occurrence took place in the

night. At present, I could not remember what Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

I had stated before Judge Sahab. If the boy

comes before me, now I could not recognize

him. At the time of occurrence, father was in

jail and mother was not in the house."

8. The aforesaid statement of the prosecutrix does not

disclose as to what offence was committed against her.

Evidence given in a Court on oath coupled with

opportunity of cross-examination to the accused has great

sanctity and that is why the same is called substantive evidence.

It is well settled by a catena of judicial pronouncements that

statements under Section 154 Cr.P.C. or under Section 161

Cr.P.C. or under Section 164 Cr.P.C. can be used for

corroboration and contradictions only.

9. In R. Shaji v. State of Kerala reported in (2013)

14 SCC 266, the Hon'ble Supreme Court said that a proposition

to the effect that if statement of a witness is recorded under

Section 164 Cr.P.C., his evidence in Court should be discarded,

is not at all warranted. As the defence had no opportunity to

cross-examine the witness whose statement was recorded under

Section 164 Cr.P.C. or under Section 161 Cr.P.C., such

statements cannot be treated as substantive evidence.

10. In Dharma Rama Bhagare v. State of Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

Maharashtra reported in (1973) 1 SCC 537, the Hon'ble

Supreme Court said that the first information report is never

treated as a substantive piece of evidence. It can only be used

for corroborating or contradicting its maker when he appears in

Court as a witness.

11. In Utpal Das and Anr. v. State of West Bengal

reported in (2010) 6 SCC 493, the Hon'ble Supreme Court said

as follows:-

"15. It is needless to restate that the first information report does not constitute substantive evidence. It can, however, only be used as a previous statement for the purposes of either corroborating its maker or for contradicting him and in such a case the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness. In this case the attention of the witness (PW-14) has not been drawn to those parts of the F.I.R. which according to the appellants are not in conformity with her evidence.

16. Likewise the statement recorded under Section 164 Cr.P.C. can never be used as substantive evidence of truth of the facts but may be used for Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

contradictions and corroboration of a witness who made it. The statement made under Section 164 Cr.P.C. can be used to cross-examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. In the present case it was for the defence to invite the victim's attention as to what she stated in the first information report and the statement made under Section 164 Cr.P.C. for the purposes of bringing out the contradictions, if any, in her evidence. In the absence of the same the court cannot read the Section 164 statement and compare the same with her evidence."

12. The impugned judgment reveals that the learned

trial Court has accepted, the statements of the prosecutrix made

prior to her examination as a prosecution witness as substantive

evidence. As such, the impugned judgment suffers from non-

application of correct principle of law while appreciating the

evidence during a criminal trial.

13. PW-2 Mona Khatoon is mother of the prosecutrix.

In her examination-in-chief, she stated that when she woke up in

the night and came out of the room, the accused had already fled

away and the prosecutrix disclosed about the occurrence. In the Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

cross-examination, she stated that she does not know who had

entered into her house. Subsequent to the occurrence, she could

not make any attempt to know about the person who had entered

into the house. The witness is not specific what the victim

disclosed to her about the incident nor the victim (PW-1) stated

that she had disclosed anything to PW-2.

14. PW-3 Sabra Khatoon is sister of the father of the

prosecutrix. PW-4 Saddam Mian is full brother of the

prosecutrix. Both the witnesses have been declared hostile by

the prosecution. Though their attention was drawn to their

statement made before the police which they denied but

attention of the investigating officer PW-6 Manoj Kumar was

not drawn to the confrontations to PW-3 or PW-4. Unless Manoj

Kumar deposes that PW-3 and PW-4 had made such contrary

statement before him that has got no legal value. Therefore, the

fact remains that even the family members of the prosecutrix

have not supported the prosecution case.

15. PW-5 Vina Devi had recorded the statement of the

victim under Section 161 Cr.P.C. Since she was a female and the

investigating officer PW-6 Manoj Kumar was a male, recording

of statement by the female officer was not against the mandate

of Section 161 Cr.P.C. However unless the victim deposes that Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

she had made such statement to PW-5, the testimony of PW-5 is

not a direct evidence and as such is fit to be rejected only for the

reason that oral evidence must be direct.

16. As noticed above, none of the doctors who had

occasion to examine the victim were produced as witness during

the trial. PW-7 deposed that since the Dr. Rubi Kumari was on

maternity leave and was likely to join on 15th of June, she could

not appear before the Court. PW-7 was examined on

31.05.2019. Therefore, attendance of Dr. Rubi Kumari was

feasible after 15th of June 2019. Hence non-examination of Dr.

Rubi Kumari or the doctor who had performed the radiological

examination would be fatal for the prosecution case as the

accused could not get opportunity to cross-examine them.

Moreover, their report at Exhibit-5 is not a substantive piece of

evidence unless the expert appears before the Court and

supports the medical performance done by them. Therefore, in

fact, this is a case of no evidence. Hence the impugned

judgment of conviction and sentence is fit to be set aside.

17. The learned trial Judge has referred to Sanskrit

shloka and gajals of Late Jagjit Singh while awarding the

sentence against the appellant. A trial Judge especially a Judge

having power to award death sentence must have correct Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

knowledge of legal principles and zeal to its proper application

while exercising the most onerous responsibility of taking

decision on the life and liberty of person before him. Lack of

knowledge of legal principles leads to miscarriage of justice and

unnecessary harassment to the parties to the litigation. Bias and

prejudices, conjectures and surmises and personal views

contrary to the material on the record have no place in the court

of law.

18. The impugned judgment reveals that the trial

Judge has accepted the conflicting prosecution case as disclosed

in the statement of the prosecutrix under Section 154 Cr.P.C.

and under Section 164 Cr.P.C. for recording conviction without

appreciating the fact that the aforesaid are not substantive piece

of evidences and the evidence brought during trial does not

disclose commission of any offence or identity of the perpetrator

of the offence.

19. In the result, the impugned judgment and sentence

passed against the appellant are hereby set aside and this appeal

is allowed.

Let the appellant be set free at once.

20. In my view, this judgment as well as the judgment

of the learned trial Judge requires to be forwarded to the Patna High Court CR. APP (SJ) No.2932 of 2019 dt. 12-04-2021

Director, Bihar Judicial Academy to ensure proper academic

training to the judicial officers to make them conversant with

the correct legal proposition.

21. Hon'ble the Chief Justice may deem it proper that

the trial Judge who has passed the impugned judgment needs

special training at the Judicial Academy. Hence let a copy of this

judgment along with trial court judgment be placed before

Hon'ble the Chief Justice for needful.

(Birendra Kumar, J)

mantreshwar/-

AFR/NAFR               A.F.R.
CAV DATE               06.04.2021
Uploading Date         12.04.2021
Transmission Date      12.04.2021