Pawan Kumar Mahto @ Pawan Kumar ... vs The State Of Bihar
2021 Latest Caselaw 1642 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (SJ) No.4237 of 2018
   Arising Out of PS. Case No.-4 Year-2016 Thana- BABUBARHI District- Madhubani
======================================================

Pawan Kumar Mahto @ Pawan Kumar Singh Son of Ramvilas Mahto, Resident of Village-Hanuman Nagar Bathnaha, Police Station-Phulparas, District-Madhubani.

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

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

For the Appellant/s    :        Mr.Ramakant Sharma, Sr.Adv
                       :        Mr.Rakesh Kumar Sharma, Adv
For the Respondent/s   :        Mr.Sujit Kumar Singh, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR C.A.V. JUDGMENT Date : 23-03-2021

1. The sole appellant, above named, faced trial for

offences under Sections 366(A) and 376 of the Indian Penal Code

as well as for offence under Section 4 of the POCSO Act before

learned Additional Sessions Judge-Ist-cum-Special Judge,

Madhubani in connection with Babubarhi P.S.Case No.04 of 2016

corresponding to G.R.No.02 of 2016.

By the impugned judgment dated 24.09.2018, the

learned Trial Judge found the appellant guilty for all the aforesaid

offences and by the impugned order of sentence dated 01.10.2018,

sentenced the appellant to undergo rigorous imprisonment for 10

years and to pay a fine of Rs.10,000/-under each of the offences

under Sections 366(A)and 376 of the Indian Penal Code. In default

of payment of fine, three months imprisonment was ordered. Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

Under Section 4 of the POCSO Act, the appellant was sentenced to

07 years rigorous imprisonment and to pay a fine of Rs.10,000/-.

In default of payment of fine, three months imprisonment was

ordered. The sentences have been directed to run concurrently.

2. The prosecution case as disclosed in the written

report dated 09.01.2016 of Mr. Hari Narayan Yadav (P.W.8) is that

on 05.01.2016 at about 6.00 P.M., his minor daughter, aged about

16 years, had gone towards east of her house to answer the call of

nature but she did not return. The informant searched her hither

and thither including to the relatives but she could not be found.

On 08.01.2016, one Deo Narayan Yadav (P.W.4), a co-villager

stated that the daughter of the informant was seen on a motorcycle

with the appellant. The informant further disclosed that the

daughter was carrying a mobile phone in which SIM card

purchased in the name of appellant was being used. On the date of

occurrence, the victim had talked to the appellant, hence had belief

that the appellant had induced the victim to go with him and the

appellant might throw her in flesh trade or use her for immoral

purpose.

3. On the written report aforesaid, Babubarhi P.S.Case

No.04 of 2016 was registered and after completion of

investigation, the police submitted chargesheet only against the Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

appellant whereas investigation was kept pending against other co-

accused.

4. During trial, the prosecution examined altogether 13

witnesses. P.W.1 Ram Autar Singh. P.W.2 Ram Vilash Mahto.

P.W.9 Vijay Kumar Singh and P.W.10 Babloo Kumar Singh were

tendered by the prosecution for cross examination.

P.W.1 stated that the victim used to sit at the shop of the

appellant and there was dispute between the victim and the

appellant for dues of the cost of articles purchased from the shop

of the appellant. P.W.2 stated that appellant was not involved in the

occurrence. P.W.9 deposed that he knows nothing about the

occurrence and P.W.10 also deposed that he knows nothing about

the occurrence.

5. In Raja Ram Vs. State of Rajasthan, reported in

2005 (5)SCC 272, the Hon'ble Supreme Court held 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 view in Raja Ram was reiterated in Mukhtiar

Ahmad Ansari Vs. State (NCT of Delhi), reported in 2005

(5)SCC 258.

6. Thus the evidence of the aforesaid tendered

witnesses on which the prosecution has relied upon, seriously tells Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

upon the trustworthiness of the prosecution case because the

witnesses have completely denied knowledge about the occurrence

rather one of the witnesses stated that the appellant was not

involved in the occurrence.

7. P.W.3 is the victim girl, her evidence would be

discussed later on. P.W.4 Deo Narayan Yadav deposed that on

05.01.2016, when he was returning from the shop of the appellant

as the shop was closed, he saw that the appellant, the victim and

one Sanjay were going on a motorcycle. When the witness came to

the village, he heard about the kidnapping of the victim, then he

disclosed what he had seen. The witness was confronted with his

statement before the police and the attention of Investigating

Officer-P.W.11 was also drawn that the witness had not stated that

he had seen the trio going on a motorcycle. Even if the testimony

of this witness is believed to the aforesaid extent, it is evident that

the victim was not seen making any protest or alarm.

P.W.5 Ugra Narayan Yadav is a hearsay witness about

the actual occurrence, however, he stated that when he went to the

house of the appellant in the night, the appellant was there and

appellant stated that he had no knowledge about whereabout of

the victim rather one Sudha D/o Ahilya Devi should be contacted,

to know the whereabout of the victim. This witness stated that the Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

informant had lodged a subsequent FIR of kidnapping of the same

daughter against Ahilya Devi. According to P.W.5 the call details

disclosed that the victim and the appellant were found talking for

a long duration and on frequent intervals.

P.W.6 Sahdeo Yadav is also a hearsay witness. Likewise,

P.W.7 Raudi Yadav is a hearsay witness on the point of actual

occurrence.

P.W.8 Hari Narayan Yadav has supported his FIR as well

as occurrence as a hearsay witness. The witness had admitted that

in a subsequent act of inducement to the same victim girl by

Ahilya Devi and the appellant, a subsequent case has been lodged

which is pending in the court of learned Fast Track Court- I.

P.W.11 Ramnath Prasad, the Investigating Officer of the

case, has simply supported the investigation done by him.

P.W.12 Dr. Gargi Sinha and P.W.13 Dr. Rama Jha are

Doctors, who had medically examined the victim and were of the

opinion that there was no recent sign of rape. The age of the victim

was assessed on the basis of radiological examination report as 18

years. The Doctor, who had performed radiological examination

and opined about the age of the victim was not produced by the

prosecution.

Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

8. Learned counsel for the appellant would submit

that the prosecution case is based on the sole testimony of the

prosecutrix and her testimony is shrouded with suspicion and the

conduct of the victim would make it abundantly clear that she has

not come up with clean hands rather is suppressing some real facts

about the incident. According to learned counsel, in aforesaid

situation, in absence of corroboration of the testimony of the

victim, conviction cannot be sustained. Learned counsel for the

appellant contends that the testimony of the victim would reveal

that she was in consent and the prosecution has failed to establish

that the victim was not of the age to give valid consent. Hence, for

this reason also, the prosecution case is fit to be disbelieved.

9. Learned counsel for the respondent-State contends

that if the victim says that she had not consented, the court would

presume that she had not consented and the burden is on the

accused to establish that she was a consenting party. For minor

discrepancies, the evidence of prosecutrix cannot be thrown away

in absence of corroboration because the law does not require

plurality of evidence to prove a charge of rape nor a self-respecting

girl would be expected to make in a casual manner, a statement

which is self-humiliating against her honour. The learned Trial Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

Judge has examined in threadbare the prosecution evidence and

there is no cogent material to disagree with that.

10. The law is well settled that the evidence of victim

of sexual assault stands on a par with the evidence of an injured

witness. Corroboration is not an imperative component of judicial

credence in every case of rape. The Court while appreciating the

evidence of a prosecutrix may look for some assurance of her

statement to satisfy its judicial conscience, since the prosecutrix is

a witness, who is interested in the outcome of the charge levelled

by her. Reference may be made to the State of Punjab Vs.

Gurmit Singh & Ors., reported in (1996) 2 SCC 384.

11. However, in a case where the testimony of the

prosecutrix suffers from inherent and material improbabilities, and

her conduct depicts a case of suppression of material fact, the

Court may insist/look for corroboration to lend assurance that no

innocent is made to punish.

In Raju & Ors. Vs. State of Madhya Pradesh,

reported in (2008) 15 SCC 133, the Hon'ble Supreme Court said

that it cannot be lost sight of that rape causes the greatest distress

and humiliation to the victim, but at the same time, false allegation

of rape can cause equal distress, humiliation and damage to the Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

accused as well. The accused must also be protected against the

possibility of false implication.

12. In the case of Rai Sandeep @ Deepu, reported in

2012 (8) SCC 21, the Hon'ble Supreme Court said that before

relying on the sole testimony of the prosecutrix, the Court must be

satisfied that the prosecutrix is a "sterling witness".

Para 22 of the judgment is being reproduced below:

"22. In our considered opinion, the 'sterling witness'

should be of a very high quality and caliber whose

version should, therefore, be unassailable. The Court

considering the version of such witness should be in

a position to accept it for its face value without any

hesitation. To test the quality of such a witness, the

status of the witness would be immaterial and what

would be relevant is the truthfulness of the statement

made by such a witness. What would be more

relevant would be the consistency of the statement

right from the starting point till the end, namely, at

the time when the witness makes the initial statement

and ultimately before the Court. It should be natural

and consistent with the case of the prosecution qua

the accused. There should not be any prevarication Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

in the version of such a witness. The witness should

be in a position to withstand the cross- examination

of any length and howsoever strenuous it may be and

under no circumstance should give room for any

doubt as to the factum of the occurrence, the persons

involved, as well as, the sequence of it. Such a

version should have co-relation with each and

everyone of other supporting material such as the

recoveries made, the weapons used, the manner of

offence committed, the scientific evidence and the

expert opinion. The said version should consistently

match with the version of every other witness. It can

even be stated that it should be akin to the test

applied in the case of circumstantial evidence where

there should not be any missing link in the chain of

circumstances to hold the accused guilty of the

offence alleged against him. Only if the version of

such a witness qualifies the above test as well as all

other similar such tests to be applied, it can be held

that such a witness can be called as a 'sterling

witness' whose version can be accepted by the Court

without any corroboration and based on which the Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

guilty can be punished. To be more precise, the

version of the said witness on the core spectrum of

the crime should remain intact while all other

attendant materials, namely, oral, documentary and

material objects should match the said version in

material particulars in order to enable the Court

trying the offence to rely on the core version to sieve

the other supporting materials for holding the

offender guilty of the charge alleged".

13. Now the question is whether prosecutrix of this

case is a "sterling witness". In the statement recorded under

Section 164 Cr. P.C. (Ext.1), the victim stated that on 5 th of January

in the morning, she got a mobile call. She received the call and the

coller abused her, then she dropped the call. On the same day at

6.00 P.M., she had gone to attend the natural call. Two boys were

coming on a motorcycle, the boy, who was sitting on the rear, took

the victim in clutches, put his hands on her mouth and got her

seated on the motorcycle. They took her to the college nearby and

both, the appellant and co-accused-Sanjay Singh, ravished her.

Thereafter, the two took her to Jai Nagar Railway Station and all

boarded on a train. The appellant and co-accused Sanjay asked her

to sit while they would return after taking betel but they fled away Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

and the train moved on. When the train reached at Khathauli

Railway Station, a 3rd boy Sunil Das asked her to accompany him

and Sunil assured her that he would marry with her. The name of

Sunil was disclosed by the female passenger sitting there. Sunil

took her to Gujarat at Gandhi Dham. Sunil took her to the house of

a friend and asked her to wait till Sunil searches out a room. When

the "Seth Jee" got information that Sunil had eloped the girl, he

telephoned to the uncle of the victim at Banglore, then uncle came

and took the victim to Banglore and from there they reached to

Patna.

The prosecutrix examined as P.W.3 stated that on

05.01.2016 at about 6.00 P.M., she had gone to attend the call of

nature, co-accused Sanjay Singh and the appellant were coming on

a motorcycle from the eastern side, co-accused Sanjay Singh shut

the mouth of the prosecutrix and forcefully got her sitted on the

motorcycle. They took her to the college near Belhi Pool and both

ravished her. Thereafter, they took her to the Jai Nagar Railway

Station and boarded on a train. The accused persons told her that

they would return after eating betel but they did not return and the

train left the Station. When the train reached at Khathauli Station,

Sunil Das started insisting her for marriage and took her to

Gujarat. Sunil Das kept her in the house of one Ram Babu and Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

went to search for a room. When the "Seth Jee" of the Company

got information that she was made to elope by Sunil Das, he

telephoned to the father of the victim and the father reported the

matter to the uncle of the victim at Banglore and then the victim

was brought to the village. She stated that she had made statement

before the Magistrate under Section 164 Cr.P.C. On her

identification, the same was made as Ext.1. During cross

examination, she admitted that Sunil Das took her from

Madhubani to Delhi and thereafter to Gujarat. She did not make

any alarm while travelling alongwith Sunil Das.

14. The Investigating Officer P.W.11 stated that the

prosecutrix was recovered from nearby the Gate of Madhubani

police station on 22.01.2016. Then her statement under Section

164 Cr.P.C. was recorded on 23.01.2016 and on the same day her

medical examination was done.

15. In the case on hand, the conduct of the victim, in

accompanying, the accused persons even after commission of rape

by them, to the Jai Nagar Railway Station and boarding train

thereat alongwith the accused, relying on the statement of the

accused that they would return after taking betel, leaves

impression that she was a willing party. Moreover, on the train, she

met with an unknown person and accompanied him to Gujarat on Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

assurance of that person to marry with her knowing well that

someone had just cheated her, creates serious doubt that the victim

is not disclosing some more real facts about the case. The conduct

of the father of the victim, who got knowledge about kidnapping

of his daughter on 05.01.2016 itself as per P.W.2, but reporting the

matter to the police only on 09.01.2016 even after searching her to

different places including to the house of the relatives residing in

different villages, does not inspire confidence that the family

members were unaware of the actual affairs and if they were really

unaware, they levelled allegation against the appellant in an

afterthought and pre-planned manner. It is the prosecution case

that the victim went to Banglore alongwith her uncle and then

came to Patna by flight. From there it is missing whether uncle

took her to the police station or to her village or to which place

rather she alone was found at the Gate of Madhubani Police

Station on 22.01.2016.

16. On the touchstone of the test of "sterling witness"

and on consideration of the testimony of the prosecutrix, I do not

find that she is a "sterling witness". Since there is lack of

corroboration on material particulars, conviction of the appellant is

not sustainable on shaky evidence of the prosecutrix. The learned Patna High Court CR. APP (SJ) No.4237 of 2018 dt.23-03-2021

Trial Judge has not considered the aforesaid serious infirmity in

the prosecution case.

17. In the case of State of Madhya Pradesh Vs.

Munna, reported in 2016 (1)SCC 696, the Hon'ble Supreme

Court said that evidence of approximate age of the prosecutrix

would not be sufficient to any conclusion about the exact age of

the prosecutrix. In the case on hand, the prosecution has failed to

prove the exact age of the prosecutrix to substantiate that she was

incapable of giving a valid consent. If there is inkling of chances

of consent of the victim, the benefit of doubt must go to the

accused.

18. Accordingly, the appellant is acquitted of the

charge levelled against him giving benefit of doubt. The appeal

stands allowed. Let the appellant, who is serving out the sentence,

be set free at once.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR                NAFR
CAV DATE                18.03.2021
Uploading Date          23.03.2021
Transmission Date       23.03.2021