Bipin Rajvanshi vs The State Of Bihar
2021 Latest Caselaw 3732 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.2662 of 2018
    Arising Out of PS. Case No.-173 Year-2015 Thana- NARDIGANJ District- Nawada
======================================================

Bipin Rajvanshi Son of Sri Saro Rajvanshi, Resident of Village- Narhat, P.S.- Narhat, District- Nawada.

... ... Appellant/s

Versus

The State Of Bihar

... ... Respondent/s

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

For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Md. Imteyaz Ahmad, Advocate For the Respondent/s : Mr. Bipin Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 28-07-2021

The sole appellant Bipin Rajvanshi got conviction

for offences under Sections 363 and 376 of the Indian Penal

Code as well as under Section 6 of the POCSO Act by learned

1st Additional Sessions Judge-cum-Special Judge (POCSO),

Nawada, in POCSO Case No. 4 of 2016, arising out of

Nardiganj P.S. Case No.173 of 2015. The learned trial Judge

awarded rigorous imprisonment for five years for offence under

Section 363 of the Indian Penal Code. A fine of rupees ten

thousand and in default of payment of fine three months simple

imprisonment was also ordered. No separate sentence was

awarded under Section 376 of the Indian Penal Code Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

considering the provisions of Section 42 of the POCSO Act;

rather ten years rigorous imprisonment and a fine of rupees fifty

thousand was awarded under Section 6 of the POCSO Act and

in default of payment of fine six months rigorous imprisonment

was ordered. The judgment of conviction dated 18.04.2018 and

order of sentence dated 20.04.2018 are under challenge in this

appeal.

2. The prosecution case as disclosed in the written

report dated 10.12.2015 of Gaya Mistri (PW 3) is that on

04.12.2015, at about 12:00 Noon, Shabo Kumari and Manoj

Kumar Rajvanshi, both daughter and son of Nande Rajvanshi,

came to the house of the informant and asked the minor

daughter of the informant to accompany for village Sobhiya

where marriage of the appellant was to be solemnized. They

further promised that they would return after solemnization of

the marriage. Nande Rajvanshi and his wife were also present

at that time. The appellant is Dewar of the daughter of Nande

Rajvanshi. It is further disclosed that the appellant, who is

disabled from one leg, was residing since last 2 to 3 months in

village Nardidih, i.e., village of the informant, and was doing

contract work at brick kiln in the village. After two days, the

family members of Nande Rajvanshi returned but the daughter Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

of the informant (PW 10) did not return. Then informant got

suspicion that all have kidnapped to his daughter for the

purpose of marriage. Thereafter informant and others started

search out of the victim but did not succeed to get her traced

out. Thereafter, FIR was lodged on 10.12.2015.

During investigation the appellant and the daughter

of the informant were recovered by the police from the house of

Naresh Rajvanshi in village Simarpole, P.S. Rujauli, District-

Nawada vide evidence of Investigating Officer (PW 12) at para-

6. Then the statement of the victim was recorded under Section

164 Cr.P.C. before the Magistrate. The victim has admitted

about her statement before the Magistrate, while being

examined as PW 10. According to the statement of the victim

under Section 164 Cr.P.C., on 04.12.2015 at about 10:00 AM,

she was going to school when she reached at the bridge near

Nardiganj P.S. the appellant was already standing there. The

appellant caught her hand and forcefully took her in a bus. Both

reached Patna and from Patna they took train for Mumbai. At

Mumbai the appellant and the victim remained in the rented

house for three days and the appellant was in physical relation

with her. Thereafter, appellant came along with the victim to

the village.

Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

After investigation the police submitted charge

sheet and accordingly the appellant was put on trial.

3. The prosecution examined altogether 12

witnesses. No defence evidence was produced. PW 1 Dinesh

Prasad Singh, PW 2 Rekha Devi, the mother of the prosecutrix,

PW 3 Gaya Mistri, the father of the victim girl, have

consistently supported the manner of occurrence as disclosed in

the FIR which is inconsistent with the statement of PW 10

regarding the place and manner of kidnapping of the victim.

PW 4-Upendra Paswan, PW 5-Raj Kumar Rajvanshi, PW 6-

Ratan Manjhi, PW 7-Nablesh Rajvanshi and PW 8-Shiv

Rajvanshi have supported the prosecution case as hearsay

witnesses. PW 9 Dr. Raj Kishore Prasad is a member of the

Medical Board which had examined the victim along with PW

11 Dr. Sudha Kumari Sharma.

PW 10 the victim girl deposed that her father had

lodged this case. She was at Rajauli. However, she corrected

herself by saying that she was going to school. From near the

bridge the appellant took her to Patna and from Patna to

Mumbai and kept there for three days. At Mumbai the

appellant forcefully established physical relation. From Mumbai

the appellant took her to the house of maternal uncle at Rajauli Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

and the police recovered her from there and the appellant was

also arrested thereat. The witness admitted that she was

medically examined and her statement was recorded under

Section 164 Cr.P.C. During cross-examination, the witness

stated that she was a student of Class-IX at the time of

occurrence. However, she could not remember her date of birth.

The witness deposed that she has proposed to return back to

village from Mumbai. Thereafter, appellant took her to the

house of his maternal uncle where the police came and took

both to its custody. The suggestion of the defence is that PW 10

had voluntarily accompanied the appellant with her sweet-will

and under the pressure of the parents made concocted statement.

PW 9 Dr. Raj Kishore Prasad simply stated that he

was a member of the Medical Board which had examined the

victim girl and medical report was prepared by Dr. Sudha

Kumari Sharma (PW 11). PW 11 Dr. Sudha Kumari Sharma

deposed that on 16.12.2015 she had examined the victim girl.

On the basis of pathological and radiological examination the

age of the victim was found in between 17 to 18 years. The

hymen of the victim was found ruptured and was in process of

healing. No spermatozoa was noticed. The pathological or

radiological report was not before the witness at the time of her Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

examination nor those experts who had performed pathological

or radiological examination appeared before the Court.

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

appellant, contends that there is serious contradiction between

the testimony of PW 1 to PW 3 and PW 10 as regards manner of

occurrence. According to PW 1 to PW 3, the family members of

the appellant had taken PW 10 on the pretext of participation in

marriage ceremony whereas according to PW 10 the appellant

had forcefully taken her inside the bus when she was on the way

to her school. None of the aforesaid prosecution witnesses are

hostile witnesses. Hence, the accused would be entitled to have

benefit of contradiction appearing in the prosecution evidence

regarding manner of occurrence.

Learned counsel next contends that the conduct of

the prosecutrix in not making any protest or alarm while

traveling along with the appellant in a bus to Patna and

thereafter in a train to Mumbai and residing thereat for three

days. She simply proposed to the appellant to return back and

both returned back to the house of the maternal uncle of the

appellant. The conduct of the victim apparently shows that she

was in consent with the appellant throughout.

Learned counsel next contends that the prosecution Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

has failed to prove the exact age of the prosecutrix to bring the

case within mischief of law which provides for minimum age

for giving valid consent. Learned counsel submits that the

prosecution has brought on the record only approximate age and

has not brought the evidence of exact age which was available

with them as prosecutrix has admitted that she was a school

going girl and was a student of Class-IX at the time of

occurrence. For the aforesaid reason, the prosecutrix cannot be

said to be a 'sterling witness' and the prosecution miserably

failed to prove the charges against the appellant. The learned

trial judge ignored the aforesaid infirmities in the prosecution

case.

5. Mr. Bipin Kumar, learned Additional Public

Prosecutor, contends that once the victim deposed that she was

physically exploited by the appellant without her consent, the

Court would presume that she had not consented. The burden

was on the defence to show that the victim was in consensual

relationship. Minor infirmities cannot come in the way of

conviction of the appellant when facing such a serious charge of

committing penetrating sexual assault upon a minor girl. If the

doctor has not found any spermatozoa that was obvious for the

reason that the victim was examined after about 12 days of the Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

alleged act of the appellant and in that period there is no

evidence that the victim had not taken bath or had not washed

her clothes. Hence, observation of the doctor was natural and

for that reason only the victim cannot be disbelieved.

6. The law is well settled that in criminal trial the

prosecution is bound to prove the charges against the accused

beyond reasonable doubts and not by preponderance of

probabilities. Even where statues 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 that non-crossexamination of the

prosecution witnesses on the point of age of the victim as

disclosed by the witnesses would exonerate the prosecution

from burden of proof of exact age of the victim.

In State of Madhya Pradesh v. Munna @

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

relationship was evident and the prosecutrix had failed to prove

the age of the victim, below the statutory requirement of that

time, beyond reasonable doubts. In the circumstances, Hon'ble

Supeme Court refused to interfere with the judgment of

acquittal recorded by the High Court and observed that the

evidence on approximate age of the victim would not be Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

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

In Rajjak Mohd. v. State of Madhya Pradesh

reported in (2009) 9 SCC 248, the case was of consensual

intercourse but the prosecution had failed to prove that the

victim was minor on the date of occurrence. The Hon'ble

Supreme Court set aside the conviction recorded by the High

Court.

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, 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. Only in absence of the school documents, the

opinion of medical expert is permissible.

11. 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.-
                                 (1) In every case concerning a child or a

juvenile in conflict with law, the court or Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

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 corporation or a municipal authority or a panchayat;

Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

(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 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 Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

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.

The aforesaid Rule was applicable on the date of

occurrence of this case. An 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,

admittedly after the date of occurrence of this case.

Thus, it is evident from perusal of Rule 12 above Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

that only in absence of the school documents, other evidences

are permissible to determine the age of the juvenile victim. In

this case, the victim has said that she was a student of Class-IX.

Therefore, school document of age of the victim was there

which was deliberately not brought on the record by the

prosecution. Even the report of ossification / radiological test

was not produced to have opportunity to the defence to cross-

examine the experts regarding scientific method adopted by

them while performing such examination. Therefore, the

evidence of exact date of birth of the victim, which was

available with the prosecution, was not brought on the record

and the evidence of approximate age cannot take the place of

proof of exact age. Once the prosecution failed to prove that the

victim was below 18 years of age, the above discussed evidence

of her consent, assumes importance.

As noticed above, the conduct of the victim depicts

that she had voluntarily accompanied the appellant to different

places without making any protest, alarm etc.

7. No doubt it settled proposition that the testimony

of the victim of rape stands at par with an injured witness and

there is no need for corroboration of the same if the victim is

found to be a 'sterling witness'. The conduct of the victim as Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

discussed above goes to show that she has merely levelled

allegation of use of force by the appellant. She never made any

protest or alarm when accompanying with the appellant in a bus

or in a train where other passengers were available and she

appeared only when the police raided the house of the maternal

uncle of the appellant where the victim was residing along with

the appellant. The prosecution has failed to prove the exact age

of the victim to make out a case that the victim was incapable of

making any consent at the time of occurrence. There is serious

contradiction as to from where the victim was taken by the

appellant as per the testimony of the victim and testimony of the

three prosecution witnesses PW 1 to PW 3. It is not

understandable as to which of the witnesses aforesaid are

reliable. The benefit of doubt must go to the accused. The

doctor who had performed the radiological examination or

pathological examination of the victim did not appear before the

Court nor any such report was there before the trial Judge. The

evidence of expert, who had performed the examination, is

relevant and not the evidence of some other person who had no

expertise or had not performed the examination. Therefore,

non-production of those doctors or their report tells upon the

trustworthiness of the prosecution case.

Patna High Court CR. APP (SJ) No.2662 of 2018 dt.28-07-2021

8. For the aforesaid infirmities in the prosecution

evidence, the conviction of the appellant is not sustainable in

law. Hence, the impugned judgment of conviction and order of

sentence are hereby set aside and this appeal is allowed.

9. The appellant is in jail since 15.12.2015. Let him

be set free at once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                NAFR
CAV DATE                08.07.2021
Uploading Date          28.07.2021
Transmission Date       28.07.2021