Sunny Deol vs The State Of Bihar
2021 Latest Caselaw 860 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No.798 of 2017
      Arising Out of PS. Case No.-489 Year-2014 Thana- KOTWALI District- Patna
======================================================

Sunny Deol Son of Suresh Prasad, Resident of village - Badki Delha, P.S. Delha, District - Gaya

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s

====================================================== Appearance :

For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Mr. Sanjay Kumar Sharma, Advocate For the Respondent/s : Mr. Shyed Ashfaque Ahmad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 12-02-2021

The sole appellant Sunny Deol has questioned the

correctness of his conviction in Special (POCSO) Case No.29 of

2014, arising out of Patna Kotwali P.S. Case No.489 of 2014.

The learned trial Judge (1stAdditional Sessions Judge, Patna) by

the impugned judgment dated 16.01.2017 found the appellant

guilty for offences under Section 376 of the Indian Penal Code

as well as under Section 4 of the POCSO Act. The learned trial

Judge has, by order dated 21.01.2017, awarded ten years

rigorous imprisonment and a fine of rupees ten thousand under

both the aforesaid heads. In default of payment of fine; the

appellant would undergo further six months imprisonment. The Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

sentences have been ordered to run concurrently.

2. A conjoint reading of the written report of the

victim dated 10.08.2014 (Exhibit-1) and her statement recorded

under Section 164 Cr.P.C. on 11.08.2014 vide Exhibit-2

discloses the following prosecution case:

The informant stated in her first information to the

police that she is aged about 14 years and is a student of Class-

VIII in Awadhpura Upgraded Middle School in the town of

Chapra. The appellant is relative of her Bhabhi and, as such,

was visiting the house of the informant since last two years.

The informant got intimacy. On 06.08.2014 when the informant

was standing near her school at 10:00 AM, the appellant reached

there on a motorcycle and asked her to accompany for a tour.

Since the appellant was known to the informant; she believed

and seated on the said motorcycle and they reached from Chapra

to Patna. At about 12:00 night the appellant took the informant

to the residence of one Ganesh Pal and ravished her. The

appellant kept the informant thereat on 06.08.2014 and

07.08.2014 and on both dates the appellant allegedly ravished

the informant. On 08.08.2014 Ganesh Pal took the informant to

his village Painal where full-brother of the informant Munna

(PW 3) was called on and everything was reported to Munna. Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

Thereafter, the informant went to Maner Police Station. The

Maner Police stated that the matter is of the jurisdiction of Patna

Kotwali. Hence, the written report was submitted to the Patna

Kotwali and FIR was registered.

In her statement, under Section 164 Cr.P.C., the

informant stated that her Bhabhi was sleeping at the roof of the

house along with her children. At about 10:00 PM mobile of

Bhabhi rang. The victim came down and saw that the caller was

the appellant. The appellant asked her to come out. The victim

went out. Thereafter the appellant forcibly took her on the

motorcycle and carried her to Patna at the residence of Ganesh

Pal and ravished her. She has stated that Ganesh Pal is her own

Mausa and the appellant addresses Ganesh Pal as grand-father.

In the prosecution evidence it has come that Ganesh Pal is

brother of father-in-law of PW 3 Munna Rai, who is full-brother

of the victim. In the statement under Section 164 Cr.P.C., the

victim further admitted that since several months the appellant

used to come to her house in the night and used to be in physical

relation with her. Thereafter, the victim conceived of the

appellant. When she was carrying five months pregnancy her

bhabhi Ms. Mamta (who was not examined as prosecution

witness but her husband has been examined as PW 3) took her Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

to the doctor and get aborted. Even after abortion the appellant

was in physical relation with the victim; rather the appellant had

physical relation with Mamta also as Mamta was allured by the

gifts of the appellant.

3. During trial prosecution examined altogether

seven witnesses. PW 1 Ramesh Rai is cousin brother of the

victim and is a hearsay witness of the occurrence. PW 2 Dr.

Bibha Sinha had medically examined the victim. PW 3 Munna

Rai is full brother of the victim and has supported the

prosecution case as hearsay witness, PW 4 Lakho Devi is

mother of the victim, PW 5 the victim girl herself and PW 6

Pappu Kumar Rai, a cousin brother of the victim has turned

hostile. PW 7 Punam Chaudhary is Investigating Officer of this

case.

4. The defence examined DW 1 Srikant Prasad,

DW 2 Indu Devi, DW 3 Anand Kumar, DW 4 Rajendra Prasad

and DW 5 Suresh Prasad. All these witnesses stated that since

marriage negotiation between the victim and the appellant failed

after getting information that the victim was not carrying good

reputation, the present FIR was lodged.

5. Mr. Ajay Kumar Thakur, learned counsel for the

appellant, submits that on a closure and careful scrutiny of the Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

prosecution case and prosecution evidence, it would be evident

that the victim was in consensual physical relationship with the

appellant. Because, since years both were in physical relation

which was known to the brother (PW 3) and Bhabhi of the

victim. The child in her womb was aborted, she voluntarily left

the house along with the appellant and travelled to different

places without any protest, she did not inform about the act of

the appellant to anyone even to Mr. Dinesh Prasad, an employee

residing near the residence of Ganesh Pal and victim simply

stated to Mr. Dinesh that she has come to see her Mausa.

According to learned counsel, the prosecution has failed to

prove that the victim was below 18 years of age on the date of

occurrence to bring the case under mischief of Clause "sixthly"

of Section 375 of the Indian Penal Code. Learned counsel

contends that the doctor who had performed the radiological

examination to determine the age of the victim was not

produced before the Court. Hence, opinion of the expert is not a

direct evidence on the record on the point of age of the victim;

rather hearsay evidence is there. Likewise, other prosecution

witnesses including mother of the victim have only deposed on

the basis of their assessment about the approximate age of the

victim. Therefore, this was a case wherein the trial Judge should Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

have held that the prosecution has failed to prove the charges

against the appellant. Reliance has been placed on the following

cases: Jarnail Singh V. State of Haryana reported in 2013

CRI.L.J. 3967, State of Madhya Pradesh V. Munna @

Shambhoo Nath reported in (2016) 1 SCC 696 and Rajak

Mohammad V. State of Himachal Pradesh reported in (2018)

9 SCC 248.

6. Learned counsel for the State-respondent Mr.

Shyed Ashfaque Ahmad submits that none of the prosecution

witnesses, who deposed that the victim was below 18 years of

age, was cross-examined on the point nor any suggestion was

made that the prosecution witnesses are telling lies. Hence, it

would amount to tacit acceptance by the defence of what the

prosecution witnesses stated. Therefore, it is well proved that

the victim was a minor on the date of occurrence. Moreover, the

act of the appellant committed on 6th and 7th of August, 2014

was against the consent of the victim and if the victim so says

the onus was on the accused to prove otherwise. Hence,

conviction of the appellant requires no interference.

7. PW 5 the victim girl in her deposition besides

supporting the statement made in the FIR has admitted that on

her dictation her cousin Anil Kumar had written the first Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

information to the police and she had signed on that. Likewise,

she had made statement before the Magistrate and had signed

on the said statement. The witness stated that she was married

few months back in the State of Uttar Pradesh. Mother had got

her admitted in the school in Class-VI and the school wherein

she had studied from Class-I was nearby the said school. When

she left Chapra along with the appellant there was crowd

everywhere but she did not make any alarm. PW 4 Lakho Devi

besides supporting the allegation as hearsay witness stated that

age of the victim is in between 17 to18 years. PW 3 Munna Rai,

the full brother of the victim, besides supporting the prosecution

case as hearsay witness admitted that his wife had participated

in abortion of the victim two months back. The termination of

pregnancy was done to the knowledge of this witness and all

family members. The police was not informed about the

termination of pregnancy. The victim was studying since Class-

IV and she failed in Class-VII for 3 to 4 times. PW 7, the

Investigating Officer, when confronted by the defence admitted

that she could not trace out the school where the victim was

studying. The victim had not produced any school certificate to

the I.O. neither the Investigating Officer asked for any school

certificate nor the family members had produced any such Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

certificate from any school.

8. PW 2 Dr. Bibha Sinha deposed that on the basis

of radiological examination, the age of the victim was assessed

between 16 to 17 years. The witness admitted that determination

of age was not done by her; rather it was done by the radiology

department. The determination of age of the victim by

ossification test is also done by the radiology department.

9. The conduct of the victim (a) in being physical

relation with the appellant since years together, (b) this fact

being known to the brother and bhabhi of the victim, (c) she got

termination of pregnancy with the consent of the family

members, (d) after termination of the pregnancy again she was

in physical relation with the appellant, (e) even on 6th and 7th

August, 2014 she had gone with the appellant from Chapra to

Patna on a motorcycle of the appellant without making any

protest or making any alarm, for help, to anyone, (f) she was in

physical relation with the appellant in the house of her own

relative Mr. Ganesh Pal, who was not examined, and (g) she did

not disclose this fact to anyone, goes to show that the victim

was a consenting party to the physical relation with the

appellant.

10. It is not the prosecution case that consent of the Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

victim was obtained by fraud, or by putting her or anyone in

whom she was interested in fear of death, or at the time of

giving consent she was of unsound mind or under influence of

intoxication, consequently unable to understand the nature and

consequence of that for which she gave consent. Rather

prosecution case is that at the said time the victim was under 18

years of age. Hence, her consent was immaterial.

11. Now the question would be whether the

prosecution has proved beyond reasonable doubts that the victim

was under 18 years of age at the time of physical relation with

the appellant to bring the case under the mischief of clause

'sixthly' of Section 375 of the Indian Penal Code.

12. The age of the victim has been sought to be

proved by the prosecution by asserting that from very inception

it is consistent case of the prosecution that the victim was aged

about 14 years. The prosecution witnesses including the victim

and her mother have deposed that the victim was below 18 years

of age. The medical report also revealed that the victim was

between 16 to 17 years. These witnesses were not cross-

examined nor any suggestion was made that they are making

wrong statement. Therefore, on the basis of aforesaid material

prosecution claims that it had proved that the victim was below Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

18 years of age on the date of occurrence. As such, her consent

or no consent was immaterial.

13. In the case of Sunil v. The State of Haryana

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

that conviction cannot be based on an approximate age of the

victim. 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 Juvenile Justice (Care

and Protection of 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. Under Rule 12 preference is to

be given to the school documents in determination of the age of

the victim. The prosecution has not produced any school

document to prove the age of the victim. Even the parent of the

victim gave an approximate age of the victim. The doctor, who

conducted the ossification/radiological examination of the

victim, was not produced by the prosecution. Hence, direct

evidence of age determination was not there.

14. It is trite proposition that in criminal trial the

prosecution is bound to prove the charges against the accused

beyond reasonable doubts and not by preponderance of Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

probability. Even where statutes provide for reverse burden of

proof on the accused, the prosecution must discharge its initial

burden by producing trustworthy and acceptable evidence.

Therefore, it cannot be argued by the State-respondent that non-

cross-examination of the prosecution witnesses on the point of

age of the victim exonerate the prosecution from the burden of

proving the age of the victim beyond all reasonable doubts.

15. In the case of State of Madhya Pradesh V.

Munna @ Shambhoo Nath reported in (2016) 1 SCC 696, the

consensual intercourse was proved and the prosecution failed to

prove the age of the victim below the statutory requirement of

that time beyond reasonable doubts. Hence, the Hon'ble

Supreme Court refused to interfere with the judgment of

acquittal recorded by the High Court. 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.

In the case of Rajak Mohammad V. State of

Himachal Pradesh reported in (2018) 9 SCC 248, where the

case was of consensual intercourse but the prosecution had

failed to prove that the victim was a minor on the date of

occurrence. Hence, the Hon'ble Supreme Court set aside the Patna High Court CR. APP (SJ) No.798 of 2017 dt.12-02-2021

conviction recorded by the High Court.

16. Thus, the irresistible conclusion in this case

would be that the victim was in consensual relationship with the

appellant and the prosecution has failed to prove that she was

below the age prescribed under the law. Hence, she was

competent to consent. Therefore, in my view, the prosecution

has failed to prove the charges against the appellant and the

learned trial Judge has failed to appreciate the aforesaid

infirmity in the prosecution case.

17. In the result, the impugned judgment and order

are hereby set aside and this appeal is allowed.

18. Let the appellant be set free at once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                09.02.2021
Uploading Date          12.02.2021
Transmission Date       12.02.2021