Srilal Yadav vs The State Of Bihar
2021 Latest Caselaw 5913 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.569 of 2020
  Arising Out of PS. Case No.-242 Year-2016 Thana- RAXAUL District- East Champaran
======================================================

Srilal Yadav, Male, Aged about 23 years, Son of Late Kamal Yadav @ Late Kamal Ray, Resident of Village - Ahirwa Tola, Ward No.07, Raxaul, P.S.- Raxaul, Distt.- East Champaran.

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

For the Appellant/s : Mr. Krishna Kant Singh, Advocate. For the Respondent/s : Mr. Sunil Kumar Pandey, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 07-12-2021 This Criminal Appeal is against conviction. The

sole appellant faced trial before learned Special Judge, POCSO,

East Champaran in POCSO Trial No. 47 of 2017 corresponding

to CIS No. 47 of 2017, arising out of Raxaul P.S. Case No. 242

of 2016.

By the impugned judgment dated 14.11.2019, the

learned trial Judge convicted the appellant for offences under

Sections 341, 323 and 366 of the Indian Penal Code as well as

under Section 8 of the POCSO Act. By the impugned order of

sentence dated 19.11.2019, one month simple imprisonment was

awarded for offence under Section 341 IPC, 6 months

imprisonment was awarded for offence under Section 323 IPC

and 6 years imprisonment along with fine of Rs. 10,000/- was

awarded for offence under Section 366 IPC. Four years Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

imprisonment along with fine of Rs.10,000/- was awarded for

offence under Section 8 of the POCSO Act.

The learned trial Judge acquitted the appellant of

the charges under Sections 376(D) and 504 IPC.

2. PW-1 Shankar Sah initially filed a complaint

case before the Chief Judicial Magistrate, Raxaul vide

complaint case no. 240 of 2016 on 22.09.2016 which was

transmitted by the Magistrate for institution of a police case on

25.10.2016 and accordingly the F.I.R. of Raxaul P.S. Case No.

242 of 2016 was registered on 03.11.2016 for offences under

Sections 366A, 376, 323, 341 and 504/34 of the Indian Penal

Code as well as under Sections 4 and 5 of the POCSO Act.

3. According to complaint based F.I.R., the minor

daughter of the informant aged about 14 years who was a

student of class VIII in Phulchand Sah Middle School, Raxaul

had gone to attend call of nature at 7 PM on 18.09.2016. At that

time, appellant and other six named who are father and siblings

of the appellant forcefully kidnapped her with intent to ravish

her. When the complainant asked the accused persons about

whereabout of his daughter, they started hurling abuses and

committed assault. The complainant went to the police station,

but the police refused to register the case, hence complaint

petition was filed on 22.09.2016 after recovery of the victim girl Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

on 21.09.2016 in unconscious condition near railway crossing.

On gaining consciousness, the victim disclosed that she was

taken to Nepal by the kidnappers.

4. After investigation, the police submitted

chargesheet against the appellant and investigation against

others was kept pending. During trial, prosecution examined

altogether seven witnesses. All are witnesses of the occurrence.

The investigating officer or the doctor who had medically

examined the victim were not produced before the Court nor

any medical evidence is there.

5. PW-1 Shankar Sah deposed that the victim girl

had gone to ease on the date of occurrence at about 7 PM when

she was kidnapped. In the cross-examination, the witness stated

that he had not seen the occurrence. The witness denied any

love affairs between the victim and the appellant, however is

specific that he does not want to proceed with the criminal case

as he has already married the victim with some other man.

PW-2 Rajesh Kumar Sah is a hearsay witness on

the occurrence of kidnapping. However he is specific that he

does not know who had kidnapped to the daughter of Shankar

Sah. The witness is not a hostile witness.

PW-3 Ashok Sah deposed that he knows nothing

about the occurrence. Though the witness was declared hostile Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

by the prosecution, but his statement before the police was also

as a hearsay witness.

PW-4 Krishna Sah has also not supported the

prosecution case and has been declared hostile by the

prosecution. The cross-examination of the witness also reveals

that he was a hearsay witness of the occurrence.

PW-5 Urmila Devi has deposed that there was

relationship between the daughter of the informant Shankar Sah

and the appellant since before and for that reason quarrel had

taken place between the two families. The witness is specific

that she had seen the daughter of the informant going along with

the appellant. The witness stated that the victim was aged about

19-20 years. She had voluntarily left her house and gone along

with the appellant and no one had forcefully taken her. The

victim girl voluntarily returned on the following day. The

informant has lodged a false case. The witness is not a hostile

witness.

PW-7 Radhika Devi is mother of the victim. She

has deposed that the victim had left the house to attend call of

nature, but she got missing and could not be traced out. After

two days, she was found near railway crossing. The victim was

aged about 20 years at the time of occurrence. She was in the

habit of going anywhere and returning back. The witness is Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

specific that the victim did not disclose to her or to the father

about the occurrence. In fact, she had gone to the house of

maternal uncle after being irritated in the house. This witness is

also not a hostile witness.

PW-6 is the victim girl has deposed that at 6 PM on

the date of occurrence, she had gone to ease. The appellant came

there and pressed on her mouth and took her to Raxaul and then

to Nepal. Brought her back to Raxaul, thereafter father took her

to the house. The police came and she made statement before

the police. She was medically examined. The witness is specific

that the appellant is her neighbour and prior to the occurrence,

there was dispute between the two families and for that dispute

a panchayati was convened and the dispute was settled. But both

sides were not pulling well even after Panchayati. She stated

that she has already been married by the father three months

back. She has stated that she has no documentary evidence of

her date of birth.

6. Mr. Krishna Kant Singh, learned counsel for the

appellant submits that the testimony of the prosecutrix would

reveal that she is not a "sterling witness" as she is not consistent

with her earlier statement. Moreover her testimony finds

confronted by the evidence of other prosecution witnesses,

especially PW-2, PW-5 and PW-7 her mother. The prosecution Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

witnesses who are not hostile and have deposed about a quite

different occurrence can be relied by the defence to disbelieve

the testimony of the prosecutrix.

7. Mr. Sunil Kumar Pandey, learned Additional

Public Prosecutor contends that the victim of the crime cannot

be disbelieved and there is no bar for recording conviction on

the basis of sole testimony of the witness of the occurrence.

Learned counsel contends that, in fact, it is a case of sole

evidence of the prosecutrix who was kidnapped and she has

consistently supported that she was taken out of India by the

appellant. On the date of occurrence, she was a minor. Hence

conviction does not require interference.

8. In Raja Ram V. The State of Rajasthan

reported in (2005) 5 SCC 272, the Hon'ble Supreme Court said

that if a witness is not declared hostile by the prosecution, the

defence can rely upon the evidence of such witness and it would

be binding on the prosecution.

9. The aforesaid view was reiterated in Mukhtiar

Ahmed Ansari V. The State (NCT of Delhi) reported in

(2005) 5 SCC 258. Paragraphs 29 to 31 of the judgment are

being reproduced below:

"29. The learned counsel for

the appellant also urged that it was the case Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

of the prosecution that the police had

requisitioned a Maruti car from Ved Prakash

Goel. Ved Prakash Goel had been examined

as a prosecution witness in this case as PW

1. He, however, did not support the

prosecution. The prosecution never declared

PW 1 "hostile". His evidence did not

support the prosecution. Instead, it

supported the defence. The accused hence

can rely on that evidence.

30. A similar question came up

for consideration before this Court in Raja

Ram V. State of Rajasthan (supra). In that

case, the evidence of the doctor who was

examined as a prosecution witness showed

that the deceased was being told by one K

that she should implicate the accused or else

she might have to face prosecution. The

doctor was not declared "hostile". The

High Court, however, convicted the accused.

This Court held that it was open to the

defence to rely on the evidence of the doctor Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

and it was binding on the prosecution.

31. In the present case, evidence of

PW 1 Ved Prakash Goel destroyed the genesis of

the prosecution that he had given his Maruti car to

the police in which the police had gone to Bahai

Temple and apprehended the accused. When Goel

did not support that case, the accused can rely on

that evidence."

10. In the case on hand, PW-5 Urmila Devi is not a

hostile witness. She is consistent in her testimony that the victim

was in affair with the appellant. Victim was aged about 19-20

years at the time of occurrence. She was seen going along with

the appellant near the orchard on the alleged date of occurrence.

The case of the informant is false one. There is no material to

say that the witness is not reliable. Hence the evidence of this

witness coupled with the testimony of PW-7 Radhika Devi, the

mother of the victim creates serious doubt on the acceptance of

prosecution evidence. The mother of the victim said that the

victim was not kidnapped rather being annoyed for some reason,

she had left the house to go to the house of her maternal uncle.

She was aged about 20 years at the time of occurrence. She was

in the habit of leaving the house for anywhere and returning

back thereafter. The victim did not disclose anything to her or to Patna High Court CR. APP (SJ) No.569 of 2020 dt.07-12-2021

the informant about the occurrence. The testimony of these two

witnesses are sufficient to disbelieve the testimony of the victim

as these witnesses are not hostile witnesses.

11. The learned trial Judge has not considered the

aforesaid contradiction of the prosecution evidence while

recording the conviction against the appellant.

12. Considering the fact that the prosecution

evidence on the record contradicts the testimony of the victim

whose evidence appears to be shaky one, hence the appellant

deserves benefit of doubt. Accordingly, the judgment of

conviction and order of sentence passed against the appellant

are hereby set aside and this appeal is allowed.

Let the appellant be set free at once.

mantreshwar/-                                                             (Birendra Kumar, J)
AFR/NAFR                NAFR
CAV DATE                02.12.2021
Uploading Date          07.12.2021
Transmission Date       07.12.2021