Patna High Court
Sanjeet Das vs The State Of Bihar on 11 December, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.353 of 2023
Arising Out of PS. Case No.-68 Year-2018 Thana- MAHILA P.S. District- Nalanda
======================================================
Sanjeet Das, Son of Late Banwari Das @ Banwari Mochi, Resident of Village
- Oiyaw, P.S. - Asthawan, Distt. - Nalanda
... ... Appellant/S
Versus
The State of Bihar
... ... Respondent/S
======================================================
Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mrs. Vaishnavi Singh, Adv.
Mrs. Kiran Kumari, Adv.
Mr. Ritwik Thakur, Adv.
For the Respondent/s : Mr. Bipin Kumar, APP.
For the Informant : Mr. Dharmendra Kumar Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 11-12-2023
1. We have heard Mr. Ajay Kumar Thakur,
learned Advocate for the sole appellant; Mr.
Dharmendra Kumar Singh, learned Advocate for the
informant (mother of victim) and Mr. Bipin Kumar,
learned APP for the State.
2. The appellant has been convicted under
Sections 376(3) of the Indian Penal Code and Section 4
and 6 of the Protection of Children from Sexual
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
Offences Act, 2012, vide judgment dated 23.02.2023
passed by the learned Additional Sessions Judge-VI-
cum-Special Judge POCSO Act, Nalanda, Biharsharif in
POCSO/G.R. Case No. 2673 of 2018, arising out of
Mahila P.S. Case No. 68 of 2018. He has but been
acquitted for the charges under Sections 365, 342,
504 and 506 of the IPC. By order dated 28.02.2023,
curiously, the Trial Court has sentenced the appellant
also for the offence under Section 366 of the IPC, in
which there does not appear to be any recorded
conviction, to undergo R.I. for seven years and a fine of
Rs.10,000/-, which amount has been directed to be
given to the victim. In the event of default of payment
of fine, the appellant has been ordered to further suffer
S.I. for six months. For the offence under Section
376(3) of the IPC, the appellant has been sentenced to
undergo R.I. for twenty years, to pay a fine of Rs.
10,000/-, which amount shall also be given to the
victim. In case of default of payment of fine, the
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
appellant would have to suffer S.I. for six months.
3. The sentences have been ordered to run
concurrently.
4. The victim (P.W. 2) disappeared for about
six years. No case was lodged with respect to her
disappearance. She resurfaced only on 03.07.2018 with
two children in her lap. She told her mother about what
had happened to her in the past six years.
5. This perhaps is the basis for the mother of
the victim (P.W. 1) to lodge the written report,
addressed to the Officer-in-Charge of Mahila Police
Station, Biharsharif, leading to the registration of the
Mahila P.S. Case No. 68 of 2018, dated 08.07.2018,
under Sections 365, 376, 504 and 506 of the IPC and
Sections 4/6 of the POCSO Act, 2012.
6. According to the written report lodged by
P.W. 1, as referred to above, it has been alleged that
the victim reached her home on 03.07.2018 and
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
informed her that she was kidnapped by the appellant
and kept in confinement. During the period of
confinement, she was raped a multiple of times and she
also was forced to deliver two babies. P.W. 1 has
further asserted that the appellant, who is a teacher in
a local government school, had always put up a
pretence of helping the family in searching out the
victim, but nobody knew that he himself was the
perpetrator of the crime. The appellant is said to have
threatened the victim of serious consequences in case
she reported about the occurrence.
7. On the basis of the aforenoted written
report, the subject FIR was lodged. The police after
investigation submitted charge-sheet, whereupon
cognizance was taken and the case was tried.
8. The Trial Court, after having examined
eight witnesses on behalf of the prosecution found the
prosecution version to be correct, so far as the
appellant is concerned.
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
9. The informant (mother of the victim),
however, has not supported the prosecution story at the
Trial. She, in her cross-examination has stated that she
had never given any statement to the police. The victim
had never told her after her re-emergence after six
years as to who had kidnapped her. The victim is
already married and resides in her matrimonial home.
The victim was in constant communication with her and
had never complained against anything. She could
identify the appellant in the dock only because the
appellant is a co-villager.
10. The father of the victim though has
not given a complete go by to the prosecution case, but
has expressed his clear intention of not prosecuting the
appellant.
11. It has been argued that from the
deposition of the father of the victim, it would appear
that his reluctance to support the prosecution case is
not out of his having been won over by the defence; but
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
for the appellant being innocent.
12. Vijay, the father, has been examined
as P.W. 4. At the time when the victim had come to her
home after six years, he was at Mumbai and was
communicated about that fact by his wife. The police
had taken his statement after 2-3 days of the victim
coming back home. He has also admitted that when the
victim was not to be found in the year 2011, no case
was filed by him or anyone of his family members. The
reason ascribed was the belief that somebody may have
kidnapped and perhaps killed the victim. About the case
at hand, P.W. 4 has stated that his wife is illiterate and
had put her thumb impression on whichever document
was given to her. He has also curiously admitted of
having given his daughter in marriage but has not
stated the details of the new matrimonial home of the
victim. He also knew the appellant because the
appellant had been teaching in a local government
school. The victim was studying in school, but not in the
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
same school where the appellant taught. The appellant
in fact, according to the P.W. 4, helped the family in
searching out the victim. P.W. 4 has but vehemently
denied the suggestion that the instant case has been
filed for appropriating compensation amount from the
government.
13. P.Ws. 5 and 6, viz., Dr. Ram Kumar
Prasad and Dr. Kumkum Kumari are the members of the
Medical Board which had assessed the age of the victim.
The assessment by the medical team appears to be
based only on the X-ray reports, holding the age of the
victim to be 17 to 18 years.
14. The victim was put to the aforesaid test
on 09.07.2018.
15. If this assessment of the age of the
victim is accepted to be true, then the victim would have
been 11 to 12 years of age when she had gone missing.
16. The prosecution has chosen to bring
one Musraf Jamal to the witness-stand to confirm the
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
age of the victim. He has proved the admission register
of the school in which, in the year 2009 (28.08.2009),
the victim had taken admission and her date of birth was
recorded 03.03.1999.
17. By this account also, the victim would
be around 11 to 12 years of age, when she had gone
missing.
18. The investigation of this case, as we
have found, is totally perfunctory. No effort was made
by the Investigator to find out the parentage of the
children, who were in the lap of the victim when she had
re-surfaced. How old were they? All these facts were
necessarily to be investigated.
19. It appears that the Investigator
completely forgot about the accusation of the victim
having come to her mother first after six years, with two
children in her lap. Where had the victim been residing
all this while and what is her present address also was
never taken into account by the Investigator.
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
20. Prabha Kumari (P.W. 7), therefore,
displays complete ineptitude and lack of professionalism
in investigating a case with such a serious allegation of
the victim having been kept in confinement when she
was only ten years of age and then making her deliver
two babies in succession.
21. She had recorded the FIR by the
mother of the victim and had ensured the recording of
the statement of the victim under Section 164 of the
Cr.P.C. She had investigated the place where the victim
was kept in confinement but the victim could not
specifically state or identify such places. It was only
found by her that the place from where the victim was
taken away was only at a distance of 100 meters from
the house of the victim.
22. In her cross-examination, she has
specifically admitted of not having questioned any
person of the neighbourhood or having inquired about
the parentage of the two babies in the lap of the victim.
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
No effort was made by her also to know about the date
of birth of the victim. She has only told the Trial Court
that at the time of her kidnapping, she was studying in
class VI.
23. It would be appropriate, if we examine
in some greater detail, the deposition of the victim
herself, who has been examined as P.W. 2.
24. The story, which the victim had
narrated to her mother was repeated at the Trial in the
examination-in-chief.
25. However, in cross-examination, she has
stated that the appellant is a co-villager and a school
teacher. She has admitted of being married, but to
whom, she does not disclose. When further questioned,
she admitted of having married somebody on 27 th of
November, 2020. She, therefore, expressed surprise and
asserted that it would be the appellant only who would
have fathered two children.
26. We have already noted that the age of
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
the two babies was neither disclosed nor investigated.
Where were the babies being kept all this while has also
not been stated.
27. The victim admits of staying in her
matrimonial home with her husband.
28. It was of extreme importance for the
Investigator to have found out, as to with whom was she
married in the year 2020. If she had been married in
2020, there is every possibility that she would have
given birth to a child from her union with her husband.
29. At this juncture, the Trial Court also
should have asked questions from the victim. The Trial
Court appears to have only recorded the statement
without actually playing the role of a Trial Court, in quest
for truth.
30. With such passive approach of the
Investigator and of the Trial Court, the truth in this case
has become the casualty.
31. The entire story narrated by the victim
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
to her mother, who ultimately has not supported the
prosecution case, is highly unbelievable. It is absolutely
inexplicable as to how the victim would remain in
confinement, unknown to the world when she had been
residing in the neighbourhood only and during this
period, had delivered two babies. There were several
opportunities when the deceased would not have been
immobilized by the appellant. She claims to have come
out of her confinement only when the appellant had
visited some place, leaving the room in which the victim
had been residing, unlocked. This may have happened a
number of times in six years.
32. The story also does not appear to be
reliable to us for the reason that nothing is known about
the two babies in her lap. The details of the present
matrimonial home of the victim also was necessarily to
be inquired into for finding out whether the allegations
against the appellant was correct.
33. The suggestion to the father of the
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
victim that the case has been lodged for earning
compensation amount, therefore, appears to be true.
34. Most surprisingly, the appellant has got
himself examined as a defence witness and he has
admitted that he had married the victim and that she
was of marriageable age when he had married her.
35. With these set of facts, it appears that
all the specifics given by the prosecution regarding the
date of birth of the victim, her admission in the school
and the fact that she delivered two babies, are all
incorrect.
36. Seen in this background, we are unable
to understand as to why the appellant told the Trial
Court under Section 313 of the Cr.P.C. that he has been
framed because of village politics.
37. All this never raised the eyebrows of
the Trial Court who merely recorded the deposition and
after noting down many paragraphs of the various
judgment of the Supreme Court, has convicted the
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
appellant under Section 376(3) of the Indian Penal Code
and Section 4 and 6 of the POCSO Act, 2012.
38. He has very queerly sentenced the
appellant under Section 366 of the IPC also without
recording any conviction under that Section.
39. The reasoning of the Trial Court is as
specious and skewed as the prosecution story itself.
40. We can only express our regret by
saying "O tempora, O mores".
41. For the reasons aforenoted, the
judgment and order of conviction is set aside and the
appellant is acquitted of all the charges levelled against
him, giving him the benefit of doubt.
42. The appeal stands allowed.
43. It is informed by the learned Advocate
that the appellant is in jail. He directed to be released
forthwith from jail, if not detained or wanted in any
other case.
44. Let a copy of this judgment be
Patna High Court CR. APP (DB) No.353 of 2023 dt.11-12-2023
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
45. The records of this case be returned to
the Trial Court forthwith.
46. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
manoj/saurav-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 12.12.2023
Transmission Date 12.12.2023
