Shonu Kumar Paswan vs The State Of Bihar
2021 Latest Caselaw 5715 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.5420 of 2019
   Arising Out of PS. Case No.-168 Year-2016 Thana- JAYNAGAR District- Madhubani
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Shonu Kumar Paswan Son of Shivji Paswan Resident of Village - Khutauna, P.S. - Khutauna, District - Madhubani.

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

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

For the Appellant/s : Mr. Vikas Kumar Sharma, Advocate Mr. Subhash Kumar Jha, Advocate For the Respondent/s : Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V JUDGMENT Date : 01-12-2021

The sole appellant has questioned his conviction

for offences under Sections 366A and 376 of the Indian Penal

Code as well as under Section 4 of the POCSO Act, recorded by

the learned Special Judge, Madhubani, in Jaynagar P.S.

Case No.168 of 2016, corresponding to G.R. No.1548 of 2016.

The judgment of conviction was passed on 24.09.2019 and by

order of sentence dated 25.09.2019 the learned trial Judge

awarded ten years rigorous imprisonment and a fine of rupees

ten thousand for each of the three offences. Sentences are to run

concurrently.

2. The prosecution case as disclosed in the written

report of PW 7, Ashok Paswan, is that his daughter, aged about Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

12 years, had gone to the market on 09.07.2016, at about 5 PM,

along with her elder sister Chanda Kumari (PW 3) and a friend

Sarita Kumari (PW 2). Sarita and Chanda went inside a shop

whereas the daughter of the informant stayed on the road alone.

In the meantime, the appellant came on a motorcycle and got the

daughter of the informant seated on rear and kidnapped her. The

two girls made alarm, however, the appellant had already fled

away from there. The parents of the appellant were also alleged

to be involved in the said kidnapping. The informant kept

persuading the family members to bring back the girl, even

panchaity was convened but it proved futile.

3. Thereafter, the written report was lodged on

23.07.2016. The victim suo motu appeared before the Mahila

P.S. Madhubani and her medical examination was done on

27.08.2016 vide medical report as Exhibit-5 and her statement

under Section 164 Cr.P.C. was recorded on 29.08.2016 before

the Magistrate vide Exhibit-1.

4. During trial prosecution examined altogether ten

witnesses which are fully referred in the trial Court Judgment.

5. Mr. Vikas Kumar Sharma, learned counsel for

the appellant, contends that it is consistent version of the

defence and it would be evident from the testimony of the Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

prosecution witnesses especially PW 1 the victim girl that the

matter was of affairs between the appellant and the victim. That

is the reason that the so called victim never made any protest or

alarm while travelling on public conveyances, such as, bus or

train to different places along with the appellant. It would

further appear that she stayed along with the appellant in Nepal

for one month and, thereafter, at Delhi for one month. During

the period she had sufficient opportunity to meet other people

but she never made any complaint of any act of the appellant.

Only interested witnesses have been produced and no

independent witness has come to support the case of the

prosecution though the alleged kidnapping took place in the

market area. In fact, the victim was a major and the prosecution

deliberately did not produce her school document in support of

her date of birth nor her parents, who were examined as PW 5

Anila Devi and PW 7 Ashok Paswan, stated about her actual

date of birth. The doctor has found secondary sexual character

well developed vide evidence of PW 8 Dr. Gargi Singh and PW

9 Dr. Rama Jha. Though the medical Board opined that the

victim was in between 16 to 17 years but the finding is based on

radiological examination. Neither the radiological report was

produced before the Court nor the expert who had performed the Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

radiological examination was produced by the prosecution. The

delay in FIR is deliberate one and chances of concoction cannot

be ruled out because PW 7 in para-6 denied that he had ever

convened any panchayat whereas he has stated in the written

report (Exhibit-4) that the delay in lodging the FIR was due to

Panchayat of the occurrence convened by him.

Learned counsel contends that PW 3 vide

paragraph-6 has admitted that the victim was a student of Class-

VII. Therefore, the prosecution should have brought the best

evidence in support of date of birth of the victim to prove that

the victim was a minor on the date of occurrence.

Reliance has been placed on the judgment of this

Court in Arjun Kumar @ Prince V. State of Bihar reported in

2021(4) BLJ 260.

6. To contra, Mr. Sujit Kumar Singh, learned

Additional Public Prosecution, contends that if the victim of

sexual assault claims that she was ravished without her consent.

The Court will presume that she had not consented and the

burden of proof lies on the accused to prove consent which the

accused has completely failed. Therefore, conviction requires

no interference. Moreover, testimony of the prosecutrix is

corroborated by eyewitnesses PW 2 Sarita Kumari, PW 3 Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

Chanda Kumari, PW 4 Bechan Paswan and PW 6 Dayaram

Paswan, who had deposed that they saw the appellant taking

away the victim girl. Victim has consistently deposed that she

was ravished by the appellant. The prosecution witnesses who

deposed that the victim was a minor were not cross-examined

that they were making wrong statement regarding age of the

victim. Moreover, the medical evidence also says that the

victim was between 16 to 17 years. Therefore, the trial Court

judgment is consistent with the evidence on record and requires

no interference.

7. PW 1 the victim girl has deposed that when the

appellant took her on the motorcycle her sister and friend had

gone inside the shop and the victim was alone on the road. The

victim says that she had nothing to purchase in the market. The

appellant had come alone on the motorcycle and got her seated

at the back by putting her in fear to not to make any alarm. She

is specific that the appellant took her to Nepal from Madhubani

on a bus. Other passengers were also there in the bus. Later on,

the appellant took her from Madhubani to Delhi on a train the

appellant had purchased the tickets for both. Several passengers

were there on the platform as well as travelling on the train but

due to fear the victim did not make any protest. At Delhi she Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

remained for a month. She was along with the appellant for two

months in Nepal as well in Delhi and the appellant used to

ravish her in spite of her protest. From Delhi the appellant took

back the victim to Madhubani on a train and near Madhubani

police station the appellant left the victim and went away.

PW 2 deposed that though she had seen the

appellant taking away the victim but she did not see that the

victim was crying. PW 4 Bechan Paswan deposed that he saw

that the appellant had got the victim seated at the back of the

motorcycle.

8. A closure scrutiny of the testimony of

eyewitnesses including the victim would make it clear that the

victim had gone along with the appellant with her freewill. The

victim got seated on the motorcycle of the appellant as pillion

and no one was there to prevent her from jumping of the

motorcycle or to make alarm. Other eyewitnesses were there to

make alarm but they did not choose nor the victim made any

alarm, goes to show that she was not taken away by force.

Moreover, she traveled and stayed with the appellant for two

months at different places but she did not make any protest or

alarm in spite of the fact that she had sufficient opportunity

while travelling in a bus along with co-passengers or travelling Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

in a train along with co-passengers or staying in a room where

others were there in the vicinity. Only after institution of the

criminal case she appeared and levelled allegation against the

appellant. Therefore, in my view, the victim was in consensual

relationship with the appellant and unless it is proved that she

was a minor on the date of occurrence her consent assumes

importance to negate the charges against the appellant.

9. The prosecution evidence on the point would

reveal that the prosecution has relied only on approximate age

of the prosecutrix to prove that she was a minor. Though the

evidence of exact age, i.e., the school document and testimony

of the parents was available but school documents were not

brought on record nor the parents deposed, though examined,

about the exact date of birth of the victim. The medical opinion

would show that the doctor found secondary sexual character

well developed, both breast developed, auxiliary and pubic hair

present. However, opined that the victim was in between 16 to

17 years. This was mere opinion of approximate age and that

cannot be relied upon in absence of evidence or report of the

radiologist.

10. In Sunil V. State of Haryana reported in AIR

2010 SC 392, the radiologist who had examined the victim was Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

not produced before the Court. The Hon'ble Supreme Court said

that it was a serious lapse on the part of the prosecution which

would have been helpful in arriving at the conclusion regarding

the age of the prosecutrix. The prosecution had failed to

produce any school admission form which would have been the

primary evidence regarding the age of the prosecutrix. Though

school leaving certificate was produced in that case which was

obtained subsequent to the institution of the FIR.

In the case on hand, the prosecution has not

brought on the record the school document in support of the age

of the victim though the victim was a school going student as

claimed by her elder sister.

In the State of Madhya Pradesh V. Munna @

Shambhoo Nath reported in (2016) 1 SCC 696, the Hon'ble

Supreme Court relied on the judgment of Sunil (supra) and

held that evidence on approximate age of the victim would not

be sufficient to any conclusion about the exact age of the victim.

In the matter of how to prove the age of the victim,

the Hon'ble Supreme Court in Jarnail Singh V. State of

Haryana reported in 2013 CRI. L.J. 3976 said that "the age of

the victim of rape should be determined in the manner provided

under Rule 12 of the Juvenile Justice (Care and Protection of Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

Children) Rules, 2007, there is no difference as regards minority

between the child in conflict with law and the child who is

victim of crime." A similar provision is there in Section 94 of

the Juvenile Justice (Care and Protection of Children) Act, 2015

which came into effect from 15.01.2016 which is being

reproduced below:

"94. Presumption and determination of age.- (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

thereof;

(ii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person."

11. Thus, it is evident that the prosecution failed to

prove the exact age of the victim to substantiate that on the date

of occurrence the victim was a minor girl. The conduct of the

victim, as noticed above, would lead to only irresistible

conclusion that she was in consensual relationship with the

appellant. Therefore, none of the charges stand proved against

the appellant.

Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

12. Promptness, in lodging the First Information

Report is assurance regarding truthfulness of the informants'

version. If there is delay in lodging the FIR and there is no

reasonable explanation for the same it loses advantage of

spontaneity.

13. Tulshidas Kanolkar V. The State of Goa

reported in AIR 2004 SC 978, was a case of sexual assault and

the matter of delayed information, the Hon'ble Supreme Court

said as follows:-

"...... In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor.

On the other hand satisfactory explanation of the delay is waity enough to reject the plea of Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

false implication or vulnerability of the prosecution case."

14. In the case on hand, the first informant stated

in the written report that delay is due to the fact that there was a

panchaity of the occurrence going on; whereas in his evidence

as PW 7 he completely denied that he had convened any

panchaity. Moreover, if other witnesses of the occurrence are

believed they have claimed that they saw the appellant

kidnapping the victim, in that situation no room was left for the

prosecution to go for panchayat or wait for the result of the

panchayat because cognizable offences cannot be settled by

panchayat. Therefore, conduct of the informant leads to infer

that he was aware that the victim had left the house due to some

previous affairs. When the family members could not manage

her production the FIR was lodged.

15. To conclude, the learned trial Judge ignored

the following serious infirmities in the prosecution case and

evidence which leaves a lot of room to doubt the prosecution

case.

(a) The delayed information to the police is not

satisfactorily explained;

(b) The victim appears to have left along with the Patna High Court CR. APP (SJ) No.5420 of 2019 dt.01-12-2021

appellant due to some affairs with the appellant as she remained

with the appellant for two months without making any protest

though she had sufficient opportunity before the public at large.

As such, she was in consensual relationship.

(c) The prosecution has failed to prove the exact

age of the victim to substantiate that she was a minor on the date

of occurrence;

16. In the result, the prosecution miserably failed to

establish any of the charges against the appellant. Hence, the

appellant deserves acquittal.

Accordingly, the impugned judgment and order are

hereby set aside and the appellant is directed to be set free at

once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                NAFR
CAV DATE                26.11.2021
Uploading Date          01.12.2021
Transmission Date       01.12.2021