Patna High Court
Dilip Singh @ Dilip Kumar vs The State Of Bihar on 23 August, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.332 of 2021
Arising Out of PS. Case No.-59 Year-2019 Thana- MAHILA P.S. District- Bhojpur
======================================================
DILIP SINGH @ DILIP KUMAR Son of Lal Babu Singh Resident of village
- Sukhraulu, P.S. - Hasanpura, District - Bhojpur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Bikramdeo Singh, Advocate
Mr.Prabhat Kumar Singh, Advocate
Mr. Anirudh Kumar Singh, Advocate.
For the Respondent/s : Mr.Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 23-08-2023
This is an appeal under Section 374(2) of the
Code of Criminal Procedure, 1973 (CrPC in short).
2. By the impugned judgment and order of
sentence dated 20.01.2021 and 28.01.2021, respectively, passed
by the learned Additional District Sessions Judge-VI-cum-
Exclusive POCSO Court, Bhojpur at Ara in Special
Case(POCSO) 26/2019, arising out of Mahila P.S. Case No. 59
of 2019, the appellant has been convicted and sentenced as
under:-
Conviction under Sentence
Section Imprisonment Fine (Rs.) In default of fine
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
376(3) of the IPC R.I. for twenty 25,000/- R.I. for six
years months
6 of the POCSO X X X
Act
3. The victim's name and that of her mother (PW-2)
are not being mentioned in the present judgment, so that identity
of the victim does not come in public domain. The victim's
mother is the informant whose fard-beyan recorded by the
Station House Officer, Mahila Police Station, Ara, is the basis
for registration of Ara Mahila Police Station Case No. 59 of
2019 on 19.04.2019, disclosing commission of the offence
punishable under Sections 376, 323, 506 read with 34 of the IPC
and Section 6 of the POCSO Act. According to her fard-beyan,
the informant had gone for harvesting as a labour in an
agricultural field, owned by Lal Babu Singh (the appellant's
father). Her daughter, the victim was alone in her house. When
this appellant was supervising the harvesting work in the
morning at 6 a.m. on 19.04.2019, the informant is said to have
requested the appellant to ask the victim, aged about eight years,
to cook food. She alleged that, thereafter, the appellant went to
the informant's house and as the house was closed from inside,
he entered into the house by scaling over the boundary wall and
thereafter, committed rape upon her after putting off her pants.
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
The informant was given the information about the occurrence
by the victim after she had returned home from the work of
harvesting. When she went to the house of the appellant to
inquire from him and register a protest about the occurrence, the
appellant and his brother Pradeep Kumar (also an accused),
assaulted and abused her and threatened her of eliminating the
whole family. They asked her not to ever disclose the
occurrence to anyone. From the formal FIR, it transpires that it
was registered at 2.30 p.m. on 19.04.2019. It further appears that
the victim was medically examined on the same day i.e. on
19.04.2019. The doctor assessed her age to be between 12 to 14
years. From the report of the doctor (exhibit-5), it transpires that
no evidence of rape on the victim was found. Further, the
statement of the victim was recorded under Section 164 of the
CrPC before a learned Magistrate on 24.04.2019. She disclosed
in her statement to the learned Magistrate that on having been
asked by the victim's mother, the appellant had come to her
house and knocked the door, but as she was sleeping, she did not
open the door, whereafter the appellant scaled over the wall,
entered into her house and did something which was wrong
(galat kam kiya). As the victim gave the appellant teeth bite and
started crying, the appellant fell down. She further stated that
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
when she had gone to the house of the appellant, he assaulted
her. Thereafter, she went to the agricultural field and narrated
her mother about the occurrence.
4. The police, upon completion of the investigation,
submitted charge-sheet against the appellant on 22.07.2019 for
commission of the offence punishable under Sections 376, 323
and 506/34 of the IPC and Section 6 of the POCSO Act, while
keeping the investigation pending against co-accused Pradeep
Kumar. Cognizance was taken on 05.08.2018 and record of co-
accused Pradeep Kumar was split up. After compliance of the
requirements of the Section 207 of the CrPC, charge was
framed against the appellant on 19.08.2019 for commission of
the offences punishable under Sections 376, 323, 506/34 of the
IPC and Section 6 of the POCSO Act. The appellant pleaded not
guilty and claimed for trial.
5. At the trial, the prosecution examined altogether
six witnesses viz. the victim (PW 1), the victim's mother (PW
2), the doctor, who had conducted medical examination (PW 3),
the I.O. (PW 5). PW-4 and PW-6, who were examined as
prosecution's witnesses, came to be declared hostile at the
instance of the prosecution, as they did not support the
prosecution's case. It is worthwhile mentioning that PWs 4 and
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
6 happened to be the co-villagers. In addition to the oral
evidence of the witnesses, the prosecution got exhibited the
following documents at the trial to prove the charge against the
appellant:-
1.Statement of victim under Section 164 of the
CrPC (Exhibit-1).
2. The informant's fard-beyan (Exhibit-2).
3. The informant's signature over the victim's
statement under Section 164 of the CrPC (Exhibit-
3)
4. Signature of the informant on the seizure list
dated 19.04.2019 (Exhibit-4)
5. Medical report dated 19.04.2019 (Exhibit-5)
6. Seizure list dated 19.04.2019 (Exhibit-6)
7. Charge-sheet dated 22.07.2019 (Exhibit-7)
8. Signature of the SHO of Mahila Police Station
on the fard-beyan (Exhibit-8)
9. FSL report dated 22.10.2019 (Exhibit-9)
6. After closure of the prosecution's evidence, the
appellant was questioned by the trial court under Section 313 of
the CrPC, so as to give the appellant an opportunity to explain
the circumstances emerging against him, based on the
prosecution's evidence. The appellant denied the circumstances.
The defence did not produce any witness for examination at the
trial. The trial court, after having appreciated the evidence of the
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
prosecution's evidence, has concluded in the impugned
judgment that the prosecution was able to prove the charge of
commission of rape and aggravated penetrative sexual assault
by the appellant with cogent and reliable evidence and that the
defence failed in creating any dent to the prosecution's
allegation and further failed to rebut the presumption under
Sections 29 and 30 of the POCSO Act. The trial court found the
testimony of the victim in respect of allegation of rape to be
trustworthy and reliable.
7. Mr. Bikramdeo Singh, learned counsel appearing
on behalf of the appellant, has argued that in order to attract the
provisions under Sections 29 and 30 of the POCSO Act, it is
imperative on the part of the prosecution to establish basic
ingredients, which constitute penetrative sexual assault within
the meaning of Section 3 of the POCSO Act. He has submitted
that the victim's evidence does not make out clearly commission
of offence of penetrative sexual assault within the meaning of
Section 3 of the POCSO Act. He has, however, not raised any
controversy over the victim being a child within the meaning of
Section 2(1)(d) of the POCSO Act. He has submitted that it is
out and out a malicious prosecution and false implication of this
appellant because of certain disputes which had arisen between
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
the victim's mother and the appellant's father, as can be seen
from the evidence of the victim (PW 1) herself. He would argue
that on the one hand it is the narration of the informant in the
fard-beyan that the victim had informed her about the
occurrence on her return to her house from the field, the victim
in her statement recorded under Section164 of the CrPC stated
that after the occurrence she had gone to the agricultural field
where her mother was working and had narrated her the entire
occurrence. This patent contradiction in the prosecution's
version is irreconcilable and demonstrates that the prosecution's
witnesses are not trustworthy. He has further argued, with
reference to the evidence of PW-2, that according to her, she had
noticed white stain on the victim's pant, which was wet and for
that reason the victim's pant was sent for forensic examination.
Referring to the FSL report, he submits that no semen or human
blood on the victim's pant was detected. He further submits that
it is highly improbable that there would be no evidence of any
penetrative sexual assault on a child, aged nearly eight years,
during medical examination conducted within 12 hours of the
commission of rape. He, accordingly, submits that neither the
medical report nor the FSL report supports the prosecution's
case. The evidence of the victim does not make out a case of
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
penetrative sexual assault within the meaning of Section 3 of the
POCSO Act. The two of the prosecution's witnesses, i.e., PWs 4
and 6 have not supported the prosecution's case at all. In such
circumstance, the finding of guilt recorded by the trial court in
its impugned judgment of conviction is wholly unsustainable
and deserves interference.
8. Learned Additional Public Prosecutor,
representing the State of Bihar, defending the findings recorded
by the trial court, has argued that though not in so many words,
the victim has narrated in her deposition at the trial that the
appellant had committed sexual assault upon her, which falls
within the definition of penetrative sexual assault. He has
submitted that there is no reason to discredit the evidence of the
victim, an eight-year-old child, who has fully supported the
prosecution's case, as was disclosed in fard-beyan. Such
evidence cannot be discarded, he submits, merely on the ground
that the medical evidence and the FSL report do not corroborate
her evidence. He has submitted that the impugned judgment of
conviction and the order of sentence passed by the learned trial
court does not suffer from any legal infirmity, requiring this
Court's interference.
9. We have perused the impugned judgment and
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
order of the trial court as well as the lower court's records. We
have given our thoughtful consideration to the rival submissions
advanced on behalf of the parties. There does not appear to be
any controversy about the status of the victim, being a child
within the meaning of Section 2(1)(d) of the POCSO Act. The
question, which requires determination in the present case, is as
to whether based on evidence of the victim, it can be safely
stated that a foundation of case of commission penetrative
sexual assault within the meaning of Section 3 of the POCSO
Act was laid at the trial based on the evidence of the victim so
as to attract statutory presumptions under Sections 29 and 30 of
the POCSO Act. The victim, in her examination-in-chief,
deposed that the appellant scaled over the boundary wall of her
house and opened the door of the room in which she was
sleeping by kicking the door. She deposed that, thereafter, she
went to the house of the appellant to make a complaint and then
she disclosed the occurrence to her elder sister.
10. Section 3 of the POCSO Act reads thus:-
"(3) Penetrative sexual assault-- A
person is said to commit "penetrative sexual
assault" if-
(a) he penetrates his penis, to any extent, into
the vagina, mouth, urethra or anus of a child or
makes the child to do so with him or any other
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
person; or
(b) he inserts, to any extent, any object or a
part of the body, not being the penis, into the
vagina, the urethra or anus of the child or
makes the child to do so with him or any other
person; or
(c) he manipulates any part of the body of the
child so as to cause penetration into the vagina,
urethra, anus or any part of body of the child or
makes the child to do so with him or any other
person; or
(d) he applies his mouth to the penis, vagina,
anus, urethra of the child or makes the child to
do so to such person or any other person."
11. On a careful scrutiny of the evidence of PW-1,
we find that the same cannot be said to be constituting an act of
penetrative sexual assault within the meaning of Section 3 of the
Act by the appellant. This fact, coupled with the finding of the
doctor that no sign of rape was found on the victim, casts a
serious shadow of doubt on the prosecution's case of
commission of an act of penetrative sexual assault within the
meaning of Section 3 of the Act by the appellant. It is
noteworthy that the victim, in her cross-examination, admitted
that long before the occurrence, the victim's mother and the
appellant's father had quarrelled with each other and had
exchanged abuses. She, however, denied that it was because of
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
the animosity that a false case was registered. The victim's
mother (PW 2), in her deposition, reiterated that the story of
commission of rape was narrated by the victim to her after she
had returned home from the work of harvesting. The victim's
evidence on this point is materially different in her deposition.
According to her, she had disclosed about the occurrence to her
elder sister. The victim's mother (PW 2) also deposed at the trial
that she had noticed white stain on the victim's pant after the
victim had narrated her the story of the occurrence and had also
noticed that the pant was wet. The pant was handed over to the
police which was seized and sent for examination to the
Forensic Science Laboratory. The report of the Forensic Science
Laboratory has been brought on record by way of exhibit-9. It is
apparent from the FSL report that no presence of semen or
blood was detected on forensic examination.
12. On a conjoint reading of the deposition of the
victim (PW 1), her mother (PW 2), the doctor (PW 3), coupled
with the report of the Forensic Science Laboratory, we are of the
opinion that the prosecution was not able to conclusively prove
at the trial, the essential ingredients constituting an act of
penetrative sexual assault within the meaning of Section 3 of the
POCSO Act. For the said reason, it can be easily concluded that
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
the prosecution also failed to make out a case of commission of
aggravated penetrative sexual assault punishable under Section
6 of the POCSO Act.
13. Sexual assault has been defined under Section 7
of the Act, which reads as under:-
"7. Sexual assault. Whoever, with
sexual intent touches the vagina, penis, anus or
breast of the child or makes the child touch the
vagina, penis, anus or breast of such person or
any other person, or does any other act with
sexual intent which involves physical contact
without penetration is said to commit sexual
assault."
14. We find it difficult, based on the evidence of
the prosecution's witnesses that the prosecution was able to lay
down a foundation for constituting an act of sexual assault
within the meaning of Section 7 of the Act also. We are, thus, of
the view that Sections 29 and 30 of the Act could not be applied,
the prosecution having failed to establish primary facts
constituting the offence of penetrative sexual assault/sexual
assault.
15. There is yet another aspect, which cannot be
lost sight of. In relation to the occurrence, the First Information
Report was registered on 19.04.2019 at Ara. The victim was
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
examined by the doctor on the same day. It is manifest from the
records, however, that the FIR was received in the court on
22.04.2019.
16. Learned counsel, appearing on behalf of the
appellant, has argued that there is hardly any distance between
the police station and the court and there is no explanation
coming forth justifying three days delay in getting the FIR
received in the court.
17. In any event, we find, in the present case, that
the prosecution cannot be said to have adduced adequate
evidence to prove the basic essential ingredients for constituting
an act of penetrative sexual assault within the meaning of
Section 3 of the POCSO Act. We are, thus, of the view that in
the present set of facts and circumstances of the case, it would
be unsafe to uphold the impugned finding of conviction
recorded by the trial in its judgment dated 20.01.2021 passed in
POCSO Case No. 26 of 2019 by the learned Additional District
Sessions Judge-VI-cum-Exclusive POCSO Court, Bhojpur at
Ara.
18. Accordingly, the impugned judgment dated
20.01.2021, passed by the learned Additional District Sessions
Judge-VI-cum-Exclusive POCSO Court, Bhojpur at Ara in
Patna High Court CR. APP (DB) No.332 of 2021 dt.23-08-2023
Special Case(POCSO) 26/2019, arising out of Mahila P.S. Case
No. 59 of 2019, is set aside. A priori, the order of sentence dated
28.01.2021 is also set aside. This appeal is allowed.
19. The appellant is in custody. Let him be released
forthwith, if not required in any other case.
(Chakradhari Sharan Singh, J)
(Nawneet Kumar Pandey, J)
SONALI/-HR
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 30.08.2023.
Transmission Date 30.08.2023.
