Lallu Rai vs The State Of Bihar
2021 Latest Caselaw 1963 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.2060 of 2017
        Arising Out of PS. Case No.-337 Year-2014 Thana- DIGHA District- Patna
======================================================

Nagina Choudhary, son of Late Keshwar Chaudhary, Resident of Mohalla Ramjeechak Digha, P.S.- Digha, District- Patna.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 2521 of 2017 Arising Out of PS. Case No.-337 Year-2014 Thana- DIGHA District- Patna ====================================================== Lallu Rai, Son of late Sidani Rai, Resident of Mohalla- Ramjichak, P.O. Bataganj, P.S. Digha, District- Patna.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (SJ) No. 2060 of 2017) For the Appellant/s : Mr.Alok, Advocate. For the Respondent/s : Smt. Abha Singh, APP. (In CRIMINAL APPEAL (SJ) No. 2521 of 2017) For the Appellant/s : Mr.Jitendra Kumar Rai, Advocate. For the Respondent/s : Mr.Zeyaul Hoda, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V JUDGMENT Date : 26-04-2021 Both the appellants aforesaid faced trial in

connection with Digha P.S. Case No. 337 of 2014 corresponding Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

to POCSO Case No. 76 of 2014 before learned Special Judge,

Patna and both were sentenced to undergo rigorous

imprisonment for 10 years and to pay a fine of Rs.25000/- for

offence under Section 4 of the POCSO Act. Three months

further imprisonment was ordered in default of payment of fine.

The appellants were acquitted of the charge under Section 376

(D) of the Indian Penal Code. The Judgment of conviction dated

13.06.2017 and order of sentence dated 15.06.2017 are under

challenge in these appeals.

2. When the matter was taken up for final hearing

on 16.04.2020, Mr. Jitendra Kumar Rai, learned counsel for

appellant Lallu Rai informed the Court that Lallu Rai has

already died while serving out the sentence. His legal heirs are

not ready to prosecute the matter.

Mr. Zeyaul Hoda, learned APP for the State

concedes that in the aforesaid circumstance, the appeal may be

dismissed as infructuous.

Accordingly, Cr. Appeal (SJ) No. 2521 of 2017

stands dismissed as infructuous.

3. Prosecution case as disclosed in the written

report dated 27.12.2014 of Phul Kumari Devi (PW-4) is that on

20.12.2014, a Saturday at 5 AM, both the appellants lifted to the Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

minor daughter of the informant from the house and took to the

brick kiln near Ganga Bank and both ravished her. At the time

of occurrence, the informant was at her vegetable shop near

Digha ghat. In the evening at 3 PM, neighbour informed about

the occurrence. Then the informant rushed to her house and

found her daughter in semi-unconscious condition. There was

injury and bleeding from the private parts of the victim. On the

basis of the statement aforesaid, Digha P.S. Case No. 337 of

2014 was registered under Section 376(2)(f)/34 IPC as well as

4 and 6 of the POCSO Act.

4. After investigation of the case, the police

submitted chargesheet as aforesaid, however charges were

framed, during trial, under Section 376 (D) IPC and 4 of the

POCSO Act.

5. The prosecution examined altogether six

witnesses. PW-1 Yogendra Rai deposed that he knows nothing

about the occurrence. PW-2 Subodh Kumar Pal was declared

hostile by the prosecution. PW-3 is the victim girl. PW-4 Phul

Kumari Devi, is mother of the victim and informant of the case.

PW-5 Kanchan Sinha is the Investigating Officer of the case.

PW-6 Dr. Pushpa Prakash had clinically examined the victim.

According to PW-3, she was at her house at the Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

time of occurrence. Both Lalu and Nagina Chaudhary came and

lifted her and took her near a bridge and Lalu ravished her. Both

the appellants allegedly threatened her not to disclose to anyone,

otherwise they would kill her and both fled away. Thereafter the

victim came to her house. In the cross-examination, there is

nothing to doubt the trustworthiness of her testimony. She has

denied any dispute between the two families leading to false

implication.

PW-4 has supported the prosecution case as

hearsay witness from the victim girl (PW-3) and has denied that

any dispute with the accused was reason for false implication.

PW-5 the Investigating Officer has supported the

investigation done by her.

PW-6 Dr. Pushpa Prakash examined the prosecutrix

on 17.01.2015. No spermatozoa was found on examination of

the vaginal swab. However, the doctor noticed a case of vaginal

penetration. Hymen was ruptured. There was vaginal swelling

and injury over vulva, redness and bleeding. The age of the

victim was less than 14 years.

The defence witnesses DW-1 Suchit Kumar and

DW-2 Bholi Rai stated that due to dispute between the

informant and the accused persons for non refund of the loan Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

taken, the false case has been lodged. However, PW-2 is specific

that money was not given to the informant by the accused in his

presence nor PW-1 is specific that money was paid in his

presence.

6. Mr. Alok, learned counsel for the appellant

contends that in the statement under Section 164 Cr.P.C., the

victim stated that both the appellants had ravished her, however

before the Court as PW-3, she stated that only appellant Lalu

(since deceased) had ravished her. This one is material

contradiction.

Since the victim girl was not confronted with her

earlier statement under Section 164 Cr.P.C., the aforesaid

argument has no leg to stand and the proved charge against the

appellant Nagina Chaudhary is that he was abettor of the

offence, as per definition of abetment under Section 16 of the

POCSO Act, which is being reproduced below:-

"16. Abetment of an offence.-A

person abets an offence, who-

First.-Instigates any person to do that offence; or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that offence, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

of that offence; or Thirdly.-Intentionally aids, by any act or illegal omission, the doing of that offence.

Explanation I.-A person who, by wilful misrepresentation, or by wilful concealment of a material fact, which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that offence.

Explanation II.-Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

Explanation III. Whoever employs, harbours, receives or transports a child, by means of threat or use of force or other forms of coercion, abduction, fraud, deception, abuse of power or of a position, vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of any offence under this Act, is said to aid the doing of that act."

The prosecutrix is consistent that appellant Nagina

Chaudhary and Lalu, both had lifted her from the house and

both were present at the time of occurrence of rape, hence

appellant Nagina Chaudhary cannot be absolved of his criminal

liability as an abettor.

Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

7. Learned counsel for the appellant next contends

that the informant has stated in the F.I.R. that the neighbour

informed about kidnapping of the victim girl, but that neighbour

has not been produced as prosecution witness.

For non-examination of the neighbour, the

testimony of the victim cannot be disbelieved. Especially, when

her testimony is corroborated by the medical evidence.

8. Learned counsel for the appellant contends that

the occurrence allegedly took place on 20.12.2014 and the F.I.R.

was lodged on 27.12.2014, however there is no explanation for

such delayed information to the police. Moreover, PW-4 stated

that on the very next day of the occurrence, she had lodged the

F.I.R.

The aforesaid minor contradiction is possible when

the F.I.R. was lodged by an illiterate lady and the same was

written by some other person. Aforesaid infirmity would be of

no consequence when the victim is consistent in the matter of

place of occurrence, manner of occurrence and identity of the

perpetrators of the crime. It is highly unbelievable and

unacceptable that the prosecutrix would make a self-humiliating

statement for the alleged dispute between the parties which is

itself of shaky nature and cannot take place of strong motive for Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

making false allegation.

9. Learned counsel for the appellant has placed

reliance on the Division Bench Judgment of Uttrakhand High

Court in Puran Singh and Anr. Vs. State of Uttrakhand

disposed of on 17.05.2017.

Puran Singh's case was of rape and murder. There

was material contradiction in the testimony of the eye witnesses.

The victim was not medically examined and there was no

evidence that who had strangulated the victim to death.

The present case is distinguishable as the

prosecutrix has come forward to fully support the prosecution

case and her testimony is corroborated by the medical evidence.

She has withstand the test of cross-examination. Hence, in my

view, there does not appear to be any reason to interfere with the

judgment of conviction.

10. The appellant Nagina Chaudhary is in custody

since 28.12.2014 and has almost completed more than six years

of the sentence awarded.

Since charge proved against Nagina Chaudhary is

of an abettor, this Court is of the view that if sentence is reduced

to period already undergone that would meet the ends of justice.

Patna High Court CR. APP (SJ) No.2060 of 2017 dt.26-04-2021

Accordingly, sentence is reduced to period already

undergone and with the aforesaid modification in sentence, the

Cr. Appeal (SJ) No. 2060 of 2017 stands dismissed.

Let appellant Nagina Chaudhary be set free.

(Birendra Kumar, J)

mantreshwar/-

AFR/NAFR                NAFR
CAV DATE                16.04.2021
Uploading Date          26.04.2021
Transmission Date       26.04.2021