Patna High Court
Sukumar Jana vs The State Of Bihar on 6 December, 2023
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh, Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.304 of 2021
Arising Out of PS. Case No.-576 Year-2019 Thana- SAHARSA SADAR District- Saharsa
======================================================
Sukumar Jana, Son of Paresh Jana, Resident of Village Ekpura, Post Office
Ekpura, Police Station Mohanpur, District West Medinapur (W.B)
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Sanjeev Kumar, Advocate
Mr. Ashish Kumar Sinha, Advocate
Ms. Preeti, Advocate
For the Informant : Mr. Shashank Shekhar Sinha, Advocate
Mr. Rishit Deo Kumar Singh, Advocate
For the State : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 06-12-2023
This appeal has been preferred by the appellant under
Section 374(2) of the Code of Criminal Procedure, putting to
challenge a judgment of conviction dated 27.01.2021 and an
order of sentence dated 30.01.2021, passed by learned
Additional Sessions Judge-1-cum-Special Judge, Saharsa, in S.T.
No. 180 of 2019, arising out of Saharsa P.S. Case No. 576 of
2019, whereby the appellant has been convicted and sentenced
as under:-
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
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Sentence
Appellant Penal Provision In default of
Imprisonment Fine (Rs.)
fine
376 of the IPC RI for 20 years 50,000/- SI for three
Sukumar months
Jana 384 of the IPC RI for three 10,000/- SI for one
years month
2. The appellant and his wife were charged of the
offences punishable under Sections 384, 386 read with 34 of the
IPC and Sections 500 and 501 thereof. They were also charged
of the offences punishable under Sections 67 and 67A of the
Information Technology Act, 2000 ('IT Act' in short) in the
aforesaid trial. Additionally, the appellant was charged of the
offences punishable under Sections 376, 354C and 354D of the
IPC. By the impugned judgment and order, the trial court has
recorded acquittal of the appellant's wife/co-accused of all the
charges for lack of evidence against her. The trial court has
acquitted the appellant of the charge of offences punishable
under Sections 67 and 67A of the IT Act, 354C, 500 and 386 of
the IPC in absence of any cogent evidence adduced by the
prosecution to establish the said charges against him. The trial
court has concluded, on appreciation of evidence adduced at the
trial, that the prosecution successfully proved beyond all
reasonable doubts the charge of commission of offences
punishable under Sections 376 and 384 of the IPC against the
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appellant and accordingly the appellant has been sentenced to
imprisonment and fine, as noted above.
3. The prosecutrix (PW-2) is the informant, whose
computer typed written report dated 28.06.2019 addressed to the
Officer-in-Charge, Sadar P.S., Saharsa is the basis for
registration of the concerned Saharsa Sadar P.S. Case No. 576 of
2019, disclosing commission of the offences punishable under
Sections 384, 386, 506 read with Section 34 of the IPC to which
Sections 354C, 354D, 376, 420, 500 and 501 of the IPC and
Sections 67 and 67A of the IT Act were subsequently added
under an order dated 08.08.2019 passed by the court below.
4. From the written report of the prosecutrix (PW-2), it
transpires that few months before the registration of the FIR, her
husband was posted at Gaya. During the said posting at Gaya,
the appellant used to come to the residence of the prosecutrix
(PW-2) as a domestic help. The prosecutrix (PW-2) alleged in
her written report that the other day when her husband had gone
to office and her children to school, the appellant was working in
her house. On her asking, the appellant prepared tea and gave it
to her. The appellant thereafter went to the kitchen. Soon after
having taken tea, the prosecutrix (PW-2) collapsed in the bed
and became unconscious. Upon regaining consciousness, she
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realized that something wrong had been committed with her. The
appellant had disappeared in the meanwhile. The prosecutrix
(PW-2), out of fear, did not disclose anything about the
occurrence to her husband. The next day the appellant again
came to the prosecutrix's residence on the pretext as a domestic
help. He thereafter displayed to the prosecutrix (PW-2) the
photographs and videos, apparently in relation to what he had
committed with her the previous day. Under the threat of making
the photographs and videos viral on social media, the appellant
told her to abide by his wishes. Out of fear the prosecutrix (PW-
2) touched his feet and beseeched him not to make the
photographs and videos viral. He, however, did not relent and
put off her clothes, committed rape upon her and again prepared
numerous photographs and videos. He continued doing such acts
subsequently under the threat of making the photographs and
videos viral. In the meanwhile, the appellant made the
prosecutrix (PW-2) pay to him Rs. 50,000-50,000/- on two
occasions. She (the prosecutrix) would request her husband to
transfer money in the account of the appellant on the false
pretext of illness of the appellant's wife. Further, when the
appellant was going to his hometown, the prosecutrix had given
to him a sum of Rs. 30,000/-. After the appellant went back to
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
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his hometown in West Bengal, the appellant and his wife (the co-
accused) both started blackmailing her asking the prosecutrix
(PW-2) to pay a sum of Rs. 1,00,000/- failing which they would
put the photos and videos on social media. The husband of the
prosecutrix, in the meanwhile, had been transferred to Saharsa
from Gaya. Under the threat of losing her prestige, she got
transferred by her husband in two accounts of the appellant
sums of Rs. 50,000/- each in State Bank of India (Account No.
20321003893) and Punjab National Bank (Account No.
26020000100650596) again on the false pretext of treatment of
the appellant's wife. Seven days before the date of lodging of the
FIR, the appellant's wife sent through her WhatsApp her
Account Number (0693010440370) maintained in United Bank
of India, asking her (the informant) to deposit Rs. 3 lakhs in the
said account by 26.06.2019 else she would make the
photographs and videos viral. Out of fear, the prosecutrix (PW-
2) was about to commit suicide on 20.06.2019 which was
noticed by her husband, who saved her and thereafter the
prosecutrix (PW-2) narrated to her husband the entire story.
Enclosing the copies of the bank statements and the printout of
WhatsApp messages, the written report was presented to the
Officer-in-Charge of the police station on 28.06.2019.
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5. During the course of investigation, the statement of
the prosecutrix (PW-2) was recorded under Section 164 of the
CrPC on 26.07.2019 by the learned Judicial Magistrate 1st Class,
Saharsa (PW-5). In her statement recorded under Section 164 of
the CrPC, the prosecutrix (PW-2) reiterated that she had become
unconscious after taking tea given by the appellant and upon
regaining consciousness she found herself nude and had felt that
something wrong was committed with her. The appellant had
disappeared. Out of fear, the prosecutrix did not disclose the
incident to her husband. Two-three days thereafter, the appellant
returned and started working in her house as a domestic help.
When her husband (PW-1) had left the house for office and the
children had gone to school, appellant showed the photographs
and videos which he had captured while committing wrong with
her and threatened that he would make them viral and show
them to her husband also. When prosecutrix requested her not to
do so, the appellant asked her to keep giving him money as and
when he needed it. The appellant continued blackmailing the
prosecutrix (PW-2) under the threat of making the photographs
and videos viral. She also stated that she got transferred sums of
Rs. 1,50,000/-, 50,000/-, 50,000/- and one lakh by her husband
(PW-1) in the account of the appellant and his wife (co-accused).
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Thereafter, the appellant's wife threatened her of making the
photos and videos viral on social media if she did not deposit a
sum of rupees four lakhs in her account. Only thereafter, the
prosecutrix disclosed the entire incident to her husband. She
further disclosed in her statement under Section 164 of the CrPC
that in May 2019, the husband of the prosecutrix was transferred
to Saharsa. The demand for transfer of money by the appellant
and his wife persisted. A sum of Rs. 1 lakh was transferred from
Saharsa also in the account of the appellant. When further
demand of Rs. 4 lakh was made, the prosecutrix (PW-2) was left
with no other option but to disclose the entire occurrence to her
husband (PW-1).
6. The police upon completion of investigation
submitted chargesheet against the appellant and his wife (co-
accused) for commission of the offences punishable under
Sections 354C, 354D, 384, 386, 376, 420, 500 and 501 read with
Section 34 of the IPC and Sections 67 and 67A of the IT Act on
22.08.2019
. Thereafter cognizance was taken by the learned
Chief Judicial Magistrate on 02.09.2019 of the aforesaid
offences against this appellant and his wife who are named in the
FIR. Subsequently charges were framed by the trial court against
the appellant and his wife, as has been mentioned hereinabove.
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
7. Five witnesses came to be examined at the trial by
the prosecution to establish the charges against the appellant and
the co-accused. PW-1 is the husband of the prosecutrix whereas
PW-2 is the prosecutrix herself. PW-3, at the relevant point of
time was posted as Incharge Technical Cell in Confidential
Section of the office of Superintended of Police, Saharsa on the
date of registration of the FIR. He had taken out the printout of
WhatsApp messages which contained threatening and
blackmailing messages which he had handed over to the
Investigating Officer. PW-4 is the IO whereas PW-5 is the
Magistrate, who had recorded the statement of the prosecutrix
under Section 164 of the CrPC and proved the statement so
recorded, which came to be marked as Exhibit-7. The
prosecution, in addition to the oral evidence of the witnesses,
brought on record following documentary evidences in support
of the charge :-
Sl. Description Exhibit
No. Number
1. Written report of the prosecutrix Exhibit-1
2. Statement recorded under Section 164 of the Exhibit-2
CrPC of the prosecutrix
3. Endorsement of the Officer-in-Incharge of Exhibit-3
the Police Station on the written report
4. Search/Seizure list of mobile phones from Exhibit-4
the possession of the appellant
5. Search/Seizure list regarding seizure of Exhibit-4/1
mobile phones from the possession of the co-
accused, i.e., the appellant's wife
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
6. Charge-sheet Exhibit-5
7 Case diary Exhibit-6
8 Signature of PW-5 on the statement recorded Exhibit-7
under Section 164 of the CrPC
8. Further, following material exhibits were produced
at the trial:-
Sl. No. Description Exhibit Number
i Mobile Galaxy A50 Exhibit- I
ii. Micromax Mobile Exhibit-II
iii. Galaxy J4 Exhibit-III
9. After closure of the evidence of the prosecution's
witnesses the trial court examined the appellant and the co-
accused under Section 313 of the CrPC so as to give them an
opportunity to explain the incriminating circumstances which
emerged against them based on the evidence of the prosecution's
witnesses. We consider it beneficial to reproduce the
circumstances brought to the notice of the appellant which,
according to the trial court, were incriminating in nature against
the appellant:-
"प्रशन - कया आपने साककयो का बयान सु ना ?
उतर- हाँ ।
प्रशन - साककयो का साकय है कक आप सु कचका के यहाँ गरे लु काम
ककया करते थे ?
उतर - गलत है ।
प्रशन - आपके कवरद साककयो का साकय है कक आपने सु कचका
पीकड़ता को चाय मे नशीली पदाथर कमलाकर उसे बे होश कर नाजायज़
सबं ध बनाया और मोबाइल मे से गलत वीकडयो एवं फोटो खींच कलया
?
उतर - गलत है ।
प्रशन - साककयो का यह भी साकय है कक सूकचका को मोबाइल से
खींचे गए फोटो और वीकडयो कदखाकर और फेसबु क एवं वहाट् सअप
पर वायरल कर दे ने की धमकी दे कर बराबर शारीकरक शोषण करते रहे
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
?
उतर - गलत है ।
प्रशन - साककयो का यह भी साकय आया है कक आपने अपनी
पतनी( सहअकभयु ककत) से कमलकर सूकचका को मोबाइल मे कलए गए
फोटो एवं वीकडयो को कदखाकर फेसबु क एवं वहाट् सअप पर वायरल
कर दे ने की धमकी दे कर बलै कमे कलं ग कर बराबर रपये ले ता रहा ?
उतर- गलत है ।
प्रशन - सफाई मे कया कहना है ?
उतर - मै कनदोरष हँ ।ू सफाई मे साकय दं ग ू ा।"
10. The defence got examined four witnesses at the
trial to make out a case that the appellant was working on
temporary basis at Gaya under Power Grid Corporation and for
making his employment permanent, the husband of the
prosecutrix had demanded some money from him which the
appellant had paid after borrowing loans from his friends and
relatives. Since, despite the assurance, the appellant's
employment could not be made permanent, on persistent
demand, the prosecutrix/her husband had returned part of the
said amount through bank transactions.
11. As has been noticed hereinabove, the trial court,
after having appreciated the evidence adduced at the trial has
convicted the appellant of the charge punishable under Sections
376 and 384 of the IPC and has acquitted him of rest of the
charges.
12. Mr. Sanjeev Kumar, learned counsel appearing on
behalf of the appellant has submitted that there are material
contradictions in the narration of the prosecution's case in the
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
written report, which is the basis for registration of FIR, her
statement recorded under Section 164 of the CrPC and her
evidence adduced at the trial. He has argued that the prosecutrix
has been found to be untruthful in her deposition on oath at the
trial on the point as to who had typed the written report. He
contends that it is evident from her deposition that the
prosecutrix was incapable of typing on computer, inasmuch as,
she was not knowing as to which buttons on the keyboard were
to be pressed for typing her own name in Hindi, though she
deposed at the trial that the written report was typed by her on a
computer. He accordingly contends that the prosecutrix is not a
sterling witness and conviction based on the sole evidence of the
prosecutrix uncorroborated by any other evidence, for offence
punishable under Section 376 of the IPC, is not at all sustainable.
He has further argued that it is the prosecution's case that the
prosecutrix was blackmailed and exploited under the threat of
making the photos and videos viral. The said photos or videos
were never produced by the prosecution at any stage. He further
submits that the place of the alleged occurrence of rape was
located at Gaya, according to the prosecutrix where she was
residing with her family in a multistorey building in which many
families resided. It is evident that the said place of occurrence
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
was not even visited by the Investigating Officer, much less the
same having been proved at the trial. On the point of conviction
of the appellant for the offence punishable under Section 384 of
the IPC he has submitted that the learned trial court has referred
to two transactions each of Rs. 50,000/- deposited in the account
of the appellant. He contends that the said amounts were
deposited in the account of the appellant as part re-payment of
the amount which the husband of the prosecutrix had taken an
assurance that the appellant's employment would be made
permanent. He further submits that it is highly improbable that
someone will obtain extortion money through bank transactions.
He further argues that in order to convict the appellant for the
offence punishable under Section 384 of the IPC the trial court
has relied on the screenshots of the WhatsApp messages which
form part of the FIR. He submits that the trial court ought not to
have taken in evidence the said messages/screenshots in the
absence of non-compliance of the requirement of Section 65B of
the Indian Evidence Act. An argument has also been made that
the bank statements were obtained on 29.06.2019 which have
been made part of the FIR registered on 28.06.2019. He
contends that the bank's statements obtained on a date
subsequent to lodging of the FIR could not form part of the FIR
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
and, therefore, the entire case of the prosecution becomes
unreliable.
13. Mr. Dilip Kumar Sinha, learned Additional Public
Prosecutor appearing on behalf of the State has defended the
finding recorded by the trial court. He has submitted that there is
no reason why the prosecutrix would make false accusation
against the appellant of such nature at the risk of her social
reputation, prestige and dignity. He contends that the minor
inconsistencies in the statement of the prosecutrix may not be a
reason for this Court to interfere with the finding of conviction
since she has been substantially consistent in her evidence and
the fact that the prosecutrix was being constantly blackmailed
and successfully exploited under the threat of making
inappropriate photographs and videos viral, corroborated by the
bank transaction, do not render the finding of conviction
recorded by the trial court untenable. He has submitted that the
trial court upon due appreciation of evidence on record has
rightly convicted the appellant of the offences under Sections
376 and 384 of the IPC.
14. Mr. Shashank Shekhar Sinha, learned counsel
representing the informant has submitted that there is no material
discrepancy in the evidence of the prosecutrix which is
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
trustworthy and is of sterling quality. He contends that the texts
of WhatsApp messenger indicating threatening and blackmailing
of the prosecutrix by the accused go to prove that the
prosecutrix was put in the fear of harm to deliver money which
falls within the definition of extortion under Section 383 of the
IPC. He has argued that the trial court ought to have framed
charge for the offence punishable under Section 506 of the IPC
also, there being sufficient material for the same and, therefore, a
de novo trial or adducement of additional evidence is required.
He further submits that the three seized mobile phones of the
accused persons were exhibited as Exhibit-1, Exhibit-2 and
Exhibit-3 and seizure-list of the mobile phones by way of
Exhibit-4 and Exhibit-4/1 respectively. The analysis of Call
Detail Record (CDR) and analysis of Customer Acquisition
Form (CAF) including the printout of the text of WhatsApp
messages were handed over to the IO by PW-3 but the same
were not duly appreciated by the trial court. He has argued that
the primary evidence (mobile phones) from which electronic
messages i.e. WhatsApp messages originated in the original
form and the same were preserved and available for inspection
of learned trial court, there was no requirement to prove the
WhatsApp text in accordance with the provisions of Section 65B
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
of the Indian Evidence Act. He has relied on the Supreme
Court's decision in case of Anvar P.V. vs. P.K. Basheer & Ors.
reported in (2014) 10 SCC 473. He has argued that non-
production of certificate under Section 65B of the Evidence Act
at an earlier stage is not fatal and it is a curable defect. He
contends that the persons facing trial do not deny their
connection with the mobile numbers used in the said mobile
phones. He has emphatically argued that the analysis report
prepared by PW-3 is a public document in terms of Section 35 of
the Evidence Act and, therefore, the court should presume
genuineness of the said document under Section 80 of the
Evidence Act. He has also argued that the trial court has rightly
noted absence of any denial as regards transfer of a sum of Rs.
50,000/- by PW-1 in the account of the appellant. As no question
or suggestion was put to PW-1, it amounts to admission that the
said amount was received in the account and some other amount
was received by him in cash.
15. Written notes of arguments have been submitted
on behalf of the appellant and the informant, which are there on
record.
16. We have carefully perused the impugned judgment
and order of the trial court as well as the lower court's records.
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
We have given our thoughtful consideration to the rival
submissions advanced on behalf of the parties. We have also
perused the written notes of arguments submitted on behalf of
the appellant and the prosecutrix.
17. In the present case, the appellant has been
convicted of the offences punishable under Sections 376 and 384
of the IPC and has been acquitted of other charges which were
framed against him. In our considered view, the foremost
question which requires consideration in the present appeal is as
to whether the prosecutrix can be said to be trustworthy and
reliable and she can be said to be sterling witness of a very high
quality and caliber, whose version, for the said reason, cannot be
said to be unassailable; in peculiar facts and circumstances of the
present case, for sustaining the appellant's conviction under
Section 376 of the IPC.
18. It is her own disclosure in the FIR that the
occurrence had taken place at Gaya when her husband was
posted at Gaya. She disclosed in her written report that she had
become unconscious after taking tea given by the appellant. On
regaining consciousness she realised that some wrong was
committed with her, apparently during the state of her
unconsciousness. On the next day, the appellant showed to the
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
prosecutrix her inappropriate photographs and videos. Under the
threat of making them viral on social media, according the
prosecutrix, the appellant raped her again, prepared photographs
and videos and continued doing so repeatedly during subsequent
days. In the meanwhile, he would extort money from the
prosecutrix. It is also her disclosure that she had given a sum of
Rs. 30,000/- to the appellant when he was going to his native
place. The FIR is totally silent on the date or month when the
first occurrence had taken place. From what has been alleged in
the FIR, it appears that there was nothing to the fore till the
husband of the prosecutrix was transferred from Gaya to Saharsa
and the appellant had gone to his native place in West Bengal.
What is culled out from the FIR is that after the appellant
reached his native place, he and his wife both started
blackmailing the prosecutrix under the threat of making the
photographs and videos viral, whereafter certain amount was
transferred in the account of the appellant from Saharsa.
19. It has been rightly pointed out by the learned
counsel for the appellant that the story of the prosecutrix as
narrated in the FIR is materially different from what she alleged
in her statement recorded under Section 164 of the CrPC.
Whereas in the FIR the prosecutrix alleged that after the first
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
occurrence of rape committed by the appellant when she was
unconscious, the prosecutrix was raped multiple times and
thereafter the prosecutrix was compelled to have sexual
intercourse with the appellant under the threat of making the
photographs and videos viral; there is no such allegation in the
statement recorded under Section 164 of the CrPC. There is no
allegation in the statement made under Section 164 of the CrPC
that after the first alleged act of the appellant the prosecutrix was
subsequently compelled to agree for sexual intercourse under the
threat of making the photographs and video viral. In her
deposition at the trial, the prosecutrix reiterated what he had
disclosed in the FIR of commission of rape multiple times by the
appellant after the first occurrence under the threat of making the
photographs and video viral. She alleged that the appellant had
videographed subsequent events of sexual intercourse which the
appellant had committed. She also deposed that she had paid the
appellant two times sums of Rs. 50,000/- and subsequently Rs.
30,000/-. Thereafter he had gone to his native place, in the
meanwhile, the husband of the prosecutrix was transferred to
Saharsa and from Saharsa sums of Rs. 50,000/- were deposited
in two accounts of the appellant maintained in State Bank of
India and Punjab National Bank. The appellant would further
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
make demand of payment of Rs. 3 lakhs whereafter she had
decided to commit suicide. When her husband had noticed the
prosecutrix weeping, he enquired from her, whereafter she
explained to her husband the entire fact. She further deposed that
after knowing these facts the husband of the prosecutrix also
attempted to convince the appellant and his wife that what they
were doing was not correct. They, however, did not give any
heed to the advice of her husband (PW-1) and told him that by
26.06.2019 he must pay a sum of Rs. 3 lakhs, whereafter they
met the Superintendent of Police, explained to him all the
circumstances and got the FIR registered.
20. It is also worthwhile mentioning that in the FIR the
prosecutrix alleged that the wife of the appellant (co-accused)
was demanding a sum of Rs. 3 lakhs to be deposited in her
account by 26.06.2019, in her statement under Section 164 of the
CrPC she described the said amount to be four lakhs. In her
evidence at the trial, the prosecutrix deposed that a sum of Rs. 3
lakhs was being demanded by the co-accused to be deposited in
her account by 26.06.2019.
21. In her cross-examination, the prosecutrix
categorically deposed that she herself had typed the written
report and when she was typing the written report neither her
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
husband nor anyone else was there. On further cross-
examination, she deposed that she was not in a position to say as
to which button of the keyboard was to be pressed for typing her
own name in computer. Further, she denied the suggestion that
she had not stated before the police and in her statement under
Section 164 of the CrPC that the appellant had committed rape
upon her several times. She was not able to disclose her own
mobile phone number. She admitted that though the appellant
was threatened to make objectionable photographs viral on
social media, he did not ever do so. It is pertinent to mention that
even at the trial the prosecutrix did not disclose the date or
month when the occurrence had taken place at Gaya.
22. From the original trial court's records we notice
that the photostat copies of the screenshots of WhatsApp chats
between the prosecutrix and the co-accused Parma was made
part of the FIR by way of enclosures. The contents of the
WhatsApp chats have, however, not been duly proved at the
trial. Further, the photostat copies of the three bank account
statements were made part of the FIR which was registered on
28.06.2019. The said bank account statements were enclosed
with the FIR to make out a case that from the account of the
prosecutrix amounts were transferred in the account of the
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
appellant.
23. Learned counsel appearing on behalf of the
appellant, in our opinion, is correct in his submission that the
said bank statements were issued on 29.06.2019. The detailed
account statement issued by ICICI bank in the name of the
prosecutrix is apparently dated 29.06.2019 and the transaction
period is from 09.05.2019 to 29.06.2019. Similarly, statement of
SBI account of the husband of the prosecutrix (PW-1) was
issued on 29.06.2019. The third statement of account issued by
the State Bank of India in relation to the account of the
prosecutrix is also dated 29.06.2019. The act of annexing bank
statement of bank accounts dated 29.06.2019 with the FIR said
to have been registered on 28.06.2019 itself, in the Court's
opinion, is apparent an act of interpolation and fabrication. By
no means statement of bank accounts issued on 29.06.2019
could form part of the FIR registered on 28.06.2019 without
acts, interpolation and fabrication. In the aforesaid background,
if the contents of the FIR, statement of the prosecutrix recorded
under Section 164 of the CrPC and her deposition at the trial are
considered together, in our opinion, PW-2, the prosecutrix does
not appear to be a sterling witness. It is settled law that the
solitary evidence of victim of rape without any corroboration can
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
be the basis for conviction but it is subject to the condition that
the victim should be a sterling witness.
24. In case of Rai Sandeep v. State (NCT of Delhi)
reported in (2012) 8 SCC 21, the Supreme Court elucidated that
a sterling witness should be of high quality and caliber and the
Court considering the version of such witness should be in a
position to accept 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 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, the
Supreme Court observed.
25. The Supreme Court further held in case of Rai
Sandeep (supra) that such 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. The said version should
constantly match with the version of every other witness. It can
even be stated that it should be akin to the test applied in the
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
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. The Supreme Court
emphasized "...... only if the version of such a witness qualifies
the above tests as well as all other such similar tests to be
applied, can it 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 guilty can be
punished". The Supreme Court concluded in case of Rai
Sandeep (supra) as under:-
"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."
26. The said decision in case of Rai Sandeep (Supra)
has been followed in case of Santosh Prasad v. State of Bihar,
reported in (2020) 3 SCC 443.
27. What is noticeable in the present case is that
according to the prosecutrix, the first occurrence of rape had
taken place at Gaya when she had become unconscious. The
appellant had taken her semi-nude photographs and videos while
committing the offence of rape. Subsequently, under the threat of
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
making the photos and videos viral, he committed rape on the
prosecutrix at Gaya multiple times and extorted money from her
several times under the same threat of making the videos and
photos viral. After the prosecutrix left Gaya for Saharsa on
transfer of her husband and the appellant left for his native place
in West Bengal, appellant and his wife joined together for
extortion of money from the prosecutrix under the threat of the
photographs and videos being made viral.
28. In the First Information Report, the prosecutrix
alleged that she was going to commit suicide which was noticed
by her husband, who rescued her. In her evidence at the trial,
there is no deposition of the prosecutrix to the effect that she had
made any attempt to commit suicide. She rather deposed at the
trial that her husband had seen her weeping and upon inquiry she
had disclosed the entire fact to him.
29. In our opinion, the prosecutrix, in the above
mentioned circumstance, cannot be said to be a sterling witness
whose solitary evidence could be the basis for convicting the
appellant for commission of rape in the peculiar facts and
circumstances of the present case emerging from the First
Information Report, the statement of the prosecutrix under
Section 164 of the CrPC and her deposition at the trial.
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
30. There is another glaring aspect in the present case.
According to the prosecutrix, the rape upon her was committed
by the appellant at Gaya. The IO (PW-4) in his cross-
examination at the trial has clearly stated that he had not visited
the place of occurrence at Gaya. Thus, neither the date(s) of the
occurrence, months of occurrence nor the place of occurrence of
rape said to have been committed by the appellant can be said to
have been proved at the trial.
31. On careful scrutiny of the evidence adduced at the
trial, we are of the considered view that the trial court has rightly
acquitted the appellant of the charge of offences punishable
under Sections 67 and 67A of the IT Act.
32. The husband of the prosecutrix (PW-1) is a hearsay
witness on the point of sexual exploitation by the appellant on
the threat of making objectionable photographs and videos viral.
From his (PW-1) deposition it appears that he was holding a
managerial position in Power Grid Corporation at Gaya and was
posted as Chief Manager, Power Grid at Saharsa when the FIR
was lodged.
33. Taking into account a holistic view of the entire
facts and circumstances, we are of the considered opinion that it
would be unsafe for this Court to uphold the finding of the
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
appellant's conviction recorded by the trial court for commission
of the offence punishable under Section 376 of the IPC based on
uncorroborated evidence of the prosecutrix who does not appear
to be a sterling witness, taking into account the patent
inconsistencies in the prosecution's case.
34. As regards the appellant's conviction for the
offences punishable under Section 384 of the IPC, we are of the
view that the same is also unsustainable. Section 383 of the IPC
defines 'extortion' as under:-
"383. Whoever intentionally puts any
person in fear of any injury to that person, or to any
other, and thereby dishonestly induces the person so put
in fear to deliver to any person any property, or valuable
security or anything signed or sealed which may be
converted into a valuable security, commits "extortion".
35. Though there is evidence that certain amount was
deposited in the account of the appellant by the prosecutrix, the
prosecution, in the Court's opinion, cannot be said to have
established beyond all reasonable doubts that the prosecutrix
was put by the appellant in fear of any injury to her and thereby
dishonestly induced her to deliver the said amount in the
account. The entire case of the prosecution becomes doubtful
right from the very beginning, i.e., the registration of the FIR, as
has been noted above. The evidence only to the effect that some
amount was deposited in the account of the appellant by or at the
Patna High Court CR. APP (DB) No.304 of 2021 dt. 06-12-2023
instance of the prosecutrix, in the Court's opinion, cannot be the
basis for upholding the appellant's conviction for the offence
punishable under Section 384 of the IPC.
36. Accordingly, the impugned judgment of conviction
and order of sentence dated 27.01.2021/ 30.01.2021, passed by
learned Additional Sessions Judge-1-cum-Special Judge,
Saharsa, in S.T. No. 180 of 2019, arising out of Saharsa P.S.
Case No. 576 of 2019 are set aside. The appellant stands
acquitted of the charge of offence punishable under Sections 376
and 384 of the Indian Penal Code by giving him benefit of
doubt.
37. This appeal is allowed accordingly.
38. The appellant is in jail custody. Let him be
released forthwith, if he is not required in any other case.
(Chakradhari Sharan Singh, J)
I agree.
Nawneet Kumar Pandey, J
Rajesh/Suraj (Nawneet Kumar Pandey, J)
AFR/NAFR NAFR
CAV DATE 25.09.2023
Uploading Date 11.12.2023
Transmission Date 11.12.2023
