Sikandar Patel vs The State Of Bihar
2021 Latest Caselaw 6248 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.749 of 2020
 Arising Out of PS. Case No.-626 Year-2013 Thana- MUFFASIL District- West Champaran
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Sikandar Patel S/o Sri Baidyanath Patel @ Baidhnath Raut Resident of Village- Mirzapur, P.S.-Bettiah Muffasil, District-West Champaran.

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

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

For the Appellant/s : Mr. Umesh Chandra Verma, Advocate For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 20-12-2021

The sole appellant Sikandar Patel faced trial before

the learned 1st Additional Sessions Judge-cum-Special Judge,

West Champaran, Bettiah, in connection with Bettiah Muffasil

P.S. Case No.626 of 2013, corresponding to CIS No.10914 of

2014. By judgment dated 07.01.2020 the learned trial Judge

found the appellant guilty for offences under Section 376 of the

Indian Penal Code and Section 4 of the POCSO Act. By order

of sentence dated 28.01.2020 ten years rigorous imprisonment

besides fine of rupees fifteen thousand and in default of

payment of fine two years rigorous imprisonment was awarded

under both the heads. The sentences have been ordered to run

concurrently.

The appellant has challenged the judgment of Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

conviction and order of sentence above in this appeal.

2. The prosecution case, as disclosed in the first

information report of the victim girl (PW 4), is that the victim,

aged about 12 years, had gone to ease towards the field side at

8:00 PM on 28.09.2013. Near the field of one Nand Kishore

Prasad the appellant caught her and dragged inside the paddy

crop in the field of Nand Kishore Prasad and forcefully opened

her lower garments and ravished her. The appellant threatened

her not to disclose the occurrence to anyone and fled away.

Thereafter, the victim went to her house but did not disclose

about the occurrence to anyone due to fear. However, the family

members realized some incident and took her to the police

station where the FIR was lodged. After investigation the police

submitted charge sheet against the appellant and appellant was

put on trial.

3. During trial the prosecution examined five

witnesses. PW 1 Suresh Raut and PW 2 Bipin Patel are co-

villagers of the informant. However, they have deposed that

they know nothing about the occurrence. These witnesses have

been declared hostile by the prosecution. PW 3 Sudama Patel is

father of the prosecutrix. Sudama Patel deposed that on the date

of occurrence he was not in the village. After return the Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

prosecutrix disclosed that the appellant had caught her arm.

That much is the evidence of PW 3 who is not a hostile witness.

PW 4, the prosecutrix, in her examination-in-chief supported

what is stated in the first information report. However, on

cross-examination she deposed that neither she nor her father

had given any written report to the police. The report was

penned down by Darogaji whose name she does not know. The

written report was not read over to her. She further deposed that

due to darkness at the time of occurrence and no light thereat

she could not identify anyone by face. The villagers had also

gone to the police station at the time of institution of FIR and

they had got written name of the appellant. She had never any

complain against the appellant nor she has. The appellant treats

her as sister. Since appellant was her brother, she identified him

in the Court.

4. PW 5 Dr. Rashmi Nand Kuliyar deposed that on

30.09.2013 she had examined the prosecutrix and found

secondary sex character developed. Both breast developed,

auxiliary and pubic hair present and no injury on her private

parts. The hymen was old ruptured. On radiological report the

victim was of around 15 years of age. No spermatozoa was there

on pathological examination.

Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

5. While recording the judgment of conviction what

weighed in the mind of the trial Judge was that:

(a) Though no evidence of date of birth of the

prosecutrix was brought by the prosecution but the medical

evidence suggests her age as 15 years. There was no cross-

examination by the defence even making suggestion that the

prosecutrix was a major on the date of occurrence. Hence, she

was a minor. The people belonging to the rural background and

in poverty seldom brings on record any document in proof of

date of birth.

(b) Since the victim had supported in her statement

under Section 164 Cr.P.C. what she disclosed in the FIR the

Court can look on that for proper appreciation of evidence in

view of the provisions of Section 80 of the Indian Evidence Act.

Even though the statement under Section 164 Cr.P.C. was not

brought on the record.

(c) The cross-examination of the victim as noted

was not to make her examination-in-chief unacceptable as

examination-in-chief was consistent with the police report as

well as statement under Section 164 Cr.P.C.

(d) Though the Investigating Officer was not

examined; the defence had not shown any prejudice due to non- Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

examination of the Investigating Officer.

(e) The presumption under Sections 29 and 30 of

the Protection of Children from Sexaul Offences Act, 2012, is

attracted in the facts and circumstances of this case and defence

has failed to rebut that presumption.

6. Mr. Umesh Chandra Verma, learned counsel for

the appellant, contends that the learned trial Judge misconstrued

the criminal jurisprudence inasmuch as the initial burden of

proof of criminal charges always rests with the prosecution and

the prosecution is bound to prove the charges beyond all

reasonable doubts. The prosecution cannot take benefit of the

lapses on the part of the defence. Even in cases where there is

provision for adverse burden of proof that would attract only on

discharge of initial burden by the prosecution.

Learned counsel submits that the prosecutrix has

disowned any written report to the police. She has not

whispered about any statement under Section 164 Cr.P.C. before

the Magistrate nor any other witness has come forward to

support the aforesaid fact. In the aforesaid circumstance, the

examination of the police officer who had recorded the

statement or the Investigating Officer to substantiate the

genuineness of the initial information to the police was Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

imperative. Hence, due to non-examination of the Investigating

Officer the defence has seriously prejudiced.

Learned counsel contends that the cross-

examination of the prosecutrix would show that she is not a

"sterling witness". Though, conviction is possible on the sole

testimony of the prosecutrix, however, before acceptance of her

testimony the Court must be satisfied that the witness is

consistent in her statement and withstands the test of cross-

examination. The father of the prosecutrix, i.e., PW 3, deposed

that the prosecutrix had only disclosed that the appellant had

caught her arm. The prosecutrix was examined as PW 4 but does

not confront the statement of her father. The aforesaid conflict in

the prosecution evidence goes to the root of the prosecution

case.

Learned counsel next contends that prosecution is

bound to prove the exact age of the prosecutrix and on mere

approximate age conviction cannot be sustained for any offence

committed against a child.

7. Mr. Syed Ashfaque Ahmad, learned Additional

Public Prosecutor for the State, has strenuously supported the

conviction of the appellant on the ground that the law is well

settled that once a prosecutrix says that she was ravished by the Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

appellant that cannot be lightly brushed-aside only for non-

corroboration by other witnesses, especially for the reason that

such offences are committed taking pre-cautions of non-

availability of any person.

FINDINGS

8. Testimony of PW 3 or PW 4 does not show that

who had written the first written information to the police. They

have simply identified their signature on the first written report.

None of the prosecution witnesses including the prosecutrix

have deposed that there was any statement under Section 164

Cr.P.C. before the Magistrate. The aforesaid lapses cannot be

filled up by conjectures and surmises. Hence, non-examination

of the Investigating Officer was serious lapse on the part of the

prosecution.

As referred above, the prosecutrix does not appear

to be an "sterling witness". In the cross-examination she said

that she could not identify the miscreant as there was darkness

in night. She had not named the appellant in the first written

report; rather villagers who had accompanied had named him.

No villager turned up to support that they had seen the appellant

committing the crime. The prosecutrix further clarifies that she

had never any complaint against the appellant nor she has now. Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

The appellant treats her as sister.

Should the trial-court have lightly ignored these

statements of the victim and accepted what she deposed in the

examination-in-chief to convict the appellant? The answer

would be emphatic no. The statement of a witness is to be read

as a whole and not in a piecemeal unless it is separable and

ignorable. Father of the prosecutrix, i.e., PW 3, deposes that the

prosecutrix had disclosed that the appellant had caught her

hand. The prosecutrix does not controvert nor PW 3 is a hostile

witness.

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. The aforesaid conflict between

statement of the prosecutrix and her father cannot be overlooked

which creates further doubt on the trustworthiness of the

prosecutrix.

In the case of Sunil V. The State of Haryana

reported in AIR 2010 SC 392, the Hon'ble Supreme Court said

that conviction cannot be based on an approximate age of the

victim.

Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

In State of Madhya Pradesh V. Munna @

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

Supreme Court held that the evidence on approximate age of the

victim would not be sufficient to any conclusion about the exact

age of the victim.

The prosecutrix was a literate girl as she has signed

everywhere. Therefore, she must have been getting education

somewhere. It is not the prosecution case or evidence that

prosecutrix did not attend any school.

In the case of Jarnail Singh V. State of Haryana

reported in 2013 CRI. L. J. 3976, the Hon'ble Supreme Court

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 Children) Rules, 2007, as there is no

difference as regards minority between the child in conflict with

law and the child who is victim of crime. Under Rule 12(3),

preference is to be given to the school documents in

determination of age of the victim and only in absence of the

school documents, opinion of the medical expert is permissible.

9. Rule 12 of the Juvenile Justice (Care and

Protection of Children) Rules, 2007 reads as follows:-

"12. Procedure to be followed in determination of Age.-

Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining

(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."

10. Identical provision is there under Section 94 of

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

which came into effect from 15.01.2016. However, in the Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

present case Rule 12 of Rules 2007 was applicable.

11. Thus, it was bounded duty of the prosecution to

bring evidence of the exact age which the prosecution has failed

to do. The evidence of approximate age of the doctor (PW 5) is

not wholly reliable in absence of the evidence of the expert who

had performed the radiological examination, or in absence of

the report of the radiological examination. PW 5 had not

performed the radiological examination. Hence, her testimony is

worthless to prove the age of the prosecutrix.

12. The presumption under Sections 29 and 30 of

the POCSO Act is attracted only after discharge of initial burden

by the prosecution which the prosecution has completely failed

to discharge in the present case.

Sections 29 and 30 of the POCSO Act reads as

follows:

"29. presumption as to certain offences.- where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved.

30. Presumption of culpable Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

mental state.-(1) In any prosecution for any offence under this act which requires a culpable mental state on the part of the accused, the special court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) for the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. "

13. It is evident that the presumptions under

Sections 29 and 30 above are rebuttable presumptions and

would arise only on proof of the charges by the prosecution. In

the case on hand, the sole testimony of prosecutrix is not

wholly reliable in view of her turnabout while being cross-

examined during trial as noticed above. Since the victim

disowned the first information report and she did not speak

anything about her statement before the Magistrate under

Section 164 Cr.P.C. the Court-below could not have stretched its

wisdom to corroborate the examination-in-chief with the Patna High Court CR. APP (SJ) No.749 of 2020 dt.20-12-2021

unsabstantive statements. The father of the victim does not

corroborate what the victim stated in examination-in-chief. Nor

the victim confronted that father was making wrong statement

to the extent that the appellant had only caught arm of the

victim. Since the prosecution has failed to prove the exact age

of the victim, conviction under Section 4 of the POCSO Act was

not sustainable in law.

14. In the result, in my view, the prosecution case

suffers from several infirmities, as noticed above, and it was not

a fit case wherein conviction could have been recorded. The

learned trial Judge fell in error of law as well as appreciation of

facts of the case in view of settled criminal jurisprudence.

Hence, the impugned judgment and order are hereby set aside

and this appeal is allowed.

Let the appellant be set free at once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                17.12.2021
Uploading Date          20.12.2021
Transmission Date       20.12.2021