Patna High Court
Sunil Kumar @ Sunil Yadav @ Sunil Kumar ... vs The State Of Bihar on 13 December, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.699 of 2023
Arising Out of PS. Case No.-221 Year-2014 Thana- NAWANAGAR District- Buxar
======================================================
1. Sunil Kumar @ Sunil Yadav @ Sunil Kumar Yadav, Son of Rangrot Singh,
Resident of village - Jagdishpur, P.S. - Jagdishpur, Distt. - Bhojpur (Ara)
2. Bhola Singh @ Bhola Yadav, Son of Rambyas Singh, Resident of village -
Nokhpur, P.S. - Nawanagar, Distt. - Buxar
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 639 of 2023
Arising Out of PS. Case No.-221 Year-2014 Thana- NAWANAGAR District- Buxar
======================================================
Chhotu Yadav @ Rama Shankar Yadav, S/O Nanhaku Singh @ Nand Kumar
Singh, R/O Village- Baluahi, P.S- Dhanghain, Distt.- Bhojpur (Ara).
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 699 of 2023)
For the Appellant/s : Mr. Arvind Kumar Pandey, Advocate.
Mr. Rang Nath Choubey, Advocate.
For the Respondent/s : Mr. Dilip Kumar Sinha, APP.
(In CRIMINAL APPEAL (DB) No. 639 of 2023)
For the Appellant/s : Mr. Bachan Jee Ojha, Advocate.
Mr. Akhilesh Kumar Pandey, Advocate.
For the Respondent/s : Mr. Binod Bihari Singh, APP.
======================================================
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
2/17
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 13-12-2023
1. Both these appeals (three appellants in all)
have been heard together and are being disposed off by
this common judgment.
2. We have heard Mr. Arvind Kumar Pandey,
learned Advocate for the appellants/Sunil Kumar @
Sunil Yadav @ Sunil Kumar Yadav and Bhola Singh @
Bhola Yadav in Criminal Appeal (DB) No. 699 of 2023
and Mr. Bachan Jee Ojha, learned Advocate for the
appellant/Chhotu Yadav @ Rama Shankar Yadav in
Criminal Appeal (DB) No. 639 of 2023. The State has
been represented by Mr. Binod Bihari Singh, learned
APP.
3. All the appellants have been convicted
under Sections 363, 366A and 376D/34 of the Indian
Penal Code and Section 6(1) of the Protection of
Children from Sexual Offences Act, 2012, vide
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
3/17
judgment dated 18.05.2023 passed by the learned
Additional Sessions Judge-VI-cum-Special Judge
POCSO Court, Buxar, in POCSO Case No. 13 of 2015,
C.I.S. No. 87 of 2018, arising out of Nawanagar
(Vasudeva O.P.) P.S. Case No. 221 of 2014. By order
dated 25.05.2023, they have been sentenced to
undergo R.I. for seven years each, to pay a fine of
Rs.10,000/- each and in default of payment of fine, to
further suffer S.I. for three months, each for the
offences under Sections 363/34 and 366A/34 of IPC
and to undergo R.I. for twenty years each, to pay a fine
of Rs.20,000/- each and in default of payment of fine,
to further suffer S.I. for six months, each for the
offences under Section 376D of IPC and Section 6(1) of
the POCSO Act, 2012.
4. The sentences have been ordered to run
concurrently.
5. The victim (P.W. 1) is alleged to have been
kidnapped sometimes in the month of April, 2014 but
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
4/17
was recovered at the instance of police on 20.04.2014.
The FIR has been lodged on 07.11.2014 by the father
of the victim (P.W. 6).
6. According to the written report lodged by
him, it has been alleged that his daughter (victim) was
not to be found in the house since 12.04.2014.
Initially, P.W. 6 suspected that she had run away with
jewellery and cash. A report was made about the victim
missing from the house with valuables on 17.04.2014.
7. While P.W. 6 had been searching for his
daughter everywhere, he along with his samdhi learnt
that the victim has been confined on the upper floor of
a hospital meant for paralytic patients, under the
territorial jurisdiction of New Bhojpur Police Station.
8. P.W. 6 claims to have gone to the police
station and accompanied by two of the policemen then
went to the hospital where the victim was recovered.
Along with the victim, appellant/Sunil was also arrested.
Both of them were brought to the police station but on
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
5/17
the advise of the Officer-in-Charge of the police station
that lodging any case by him would only bring bad
reputation to the family, no case was filed.
Appellant/Sunil was also allowed to go away.
Thereafter, P.W. 6 brought his daughter (victim) home,
where she narrated about the entire occurrence of her
having been kidnapped by the appellants, kept in a
moving truck for about three days and, thereafter,
confined in a room on the upper floor of the hospital.
During this period, the victim has also alleged to have
been raped a multiple times by all the three appellants.
9. Despite that, no case was filed.
10. P.W. 6 decided to file the case when
the demand of rupees five lakhs was made by the
appellants. P.W. 6 was offered that he should either
handover the victim to them or pay up rupees five
lakhs, failing which the family would meet dire
consequences.
11. On the basis of the afore-noted written
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
6/17
report, a case vide Nawanagar (Vasudeva O.P.) P.S.
Case No. 221 of 2014, dated 07.11.2014 was initially
instituted for the offences under Section 363, 366A and
34 of the IPC. However, later by order dated
10.04.2015
, Section 376(g) of the IPC and Section 8
and 9 of the POCSO Act, 2012 were also added.
12. The police after investigation
submitted charge-sheet upon the appellants whereupon
they were put on Trial.
13. The Trial Court, after having examined
nine witnesses on behalf of the prosecution, convicted
and sentenced the appellants as aforesaid.
14. It has been argued on behalf of the
appellants that an absolutely unbelievable story of gang
rape of the victim has been put up by the prosecution.
The falsity of the case appears from the very fact that
even after the recovery of the victim on 20.04.2014,
the FIR was lodged on 07.11.2014. The threat doled
out by the appellants is said to be the cause for the
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
delayed lodging the FIR by the father of the victim.
15. It has also been urged before us that
the story does not appear to be probable for another
very stark reason. If appellant/Sunil was arrested from
the place of recovery and brought to police station,
there would have been no reason for letting him go free
on the ostensible reason of the family prestige being
sullied.
16. For eight days, the victim had been
missing and was in the company of the appellants.
Ornaments and cash were also missing from the house
of P.W. 6. In such an event, the aforenoted explanation
of the delayed FIR does not appear to be acceptable.
17. Even otherwise, if P.W. 6 would have
agreed not to lodge any case against the appellants, the
Officer-in-Charge of the concerned police station ought
not to have allowed appellant/Sunil to have walked out
without there being any case registered against him.
18. The whole story, therefore, of the
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
recovery of the victim along with appellant/Sunil, thus,
appears to be imaginary.
19. Apart from this, it has been argued that
even the victim (P.W. 1) and her father (P.W. 6) have
not made any consistent statement at the Trial.
20. The Investigating Officer has not been
examined and only one Jay Kishun Yadav (P.W. 8), who
was posted in Nawanagar (Basudeva O.P.) Police Station
was examined at the Trial, who had identified the formal
FIR (Exhibit-4/1).
21. It has thus been argued that the
prosecution version is an imaginary story by P.W. 6,
which has been supported by the victim (P.W. 1) for
reasons unknown, even when P.W. 1 admittedly is
leading a married life with somebody else.
22. The learned counsel for the appellants
wonders as to how lodging of this case and deposing
before the Trial Court would have helped the family to
salvage their reputation in the society; rather such case
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
would only tarnish the reputation and it has the potency
of even disturbing the marital life of P.W. 1.
23. As opposed to the aforenoted
contention, the learned Additional Public Prosecutor
assisting the Court has submitted that all the
discrepancies in the deposition of the witnesses is
required to put aside and the allegation by the victim of
all the three appellants having raped her for four days,
should be considered and which actually has been
considered by the Trial Court. The victim was a minor
when such an occurrence had taken place and,
therefore, the Trial Court has rightly convicted the
appellants under Sections 363, 366A and 376D of the
Indian Penal Code and Section 6 of the POCSO Act,
2012.
24. On going through the records of this
case, we find the afore-noted arguments of the learned
State counsel to be over-simplification of facts and very
misplaced.
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
25. The fact that the case was lodged after
seven months of the victim having gone missing, is in
itself a circumstance which cannot be ignored.
26. Immediately after the recovery of the
victim on 20.04.2014, she narrated about the entire
occurrence to P.W. 6, but still no case was filed against
the appellants. Was that acquiescense or acceptance of
the fact that even though the victim had gone out of the
house on her own, perhaps because of her carrying an
affair with appellant/Bhola, and then agreed to come
back home after abandoning such relationship.
27. The story of the appellants demanding
rupees five lakhs or pressurizing the father (P.W. 6) to
handover the victim to them, in that background appears
to be absolutely unbelievable.
28. Had it been true, P.W. 6 would have
filed some complaint against the appellants.
29. Surprisingly, P.W. 6 has gone on record
to state that later, after the recovery of the victim, he
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
had filed a case of demand of ransom from him by the
appellants; but in that case, he had withheld the fact of
kidnapping of his daughter. Nothing is known about the
status of the afore-noted case. Even if it were true that
a case of that kind was filed, not talking about the entire
occurrence of the victim having been kidnapped, kept in
a moving truck for four days and then having been
brought to a hospital from where she was recovered,
only suggests that an imaginary story was spun by the
prosecution, perhaps for the purposes of keeping the
appellants, especially, appellant/Bhola at bay and not
insisting for continuing the relationship which he had
developed with the victim.
30. It appears that the victim came out of
her house with cash and jewellery, but later, when she
ran out of her cash or her plan with the appellants
having been busted, she came back home.
31. Does this therefore reflect that only in
order to protect the marriage of the victim with
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
somebody else, this case has been lodged?
32. On carefully examining the deposition
of the victim, her statement does not inspire confidence.
33. Though in her examination-in-chief, she
has repeated the allegation of all the appellants having
raped her and later after her recovery of the appellants
demanding rupees five lakhs from her father, but the
sequence of events narrated by her makes her
statement very doubtful.
34. Though she has denied of having any
truck or alliance with the appellants but she knew about
the relationship between appellants Sunil and Bhola.
From her statement, it also appears that Bhola and Sunil
had several occasion to visit the house of the victim.
35. It appears that P.W. 6 deals in sale and
purchase of food-grains whereas the brother of the
victim, who has been examined as P.W. 2, earns his
living by loading and unloading grains on vehicles.
36. Appellant/Sunil is said to be a truck
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
driver, whereas appellant/Bhola is a cleaner. Both are
related to each other as well.
37. Nothing is known about the relationship
of Chhotu Yadav, who also has been named in the FIR
as also by the victim (P.W. 1) and the informant (P.W.
6).
38. The victim was subjected to medical
examination, the report of which only suggests that she
did not have any injury on her person when she was
examined. This does not help either the appellants or the
prosecution for the reason that the case has been lodged
after seven months and later the victim was married to
someone else and had been residing in her matrimonial
home.
39. Two of the Doctors, who were part of
the medical team, viz., Dr. Gita Kumari and Dr. Anil
Kumar Singh have been examined as P.Ws. 4 and 5. Dr.
Pramod Kumar Kanaujiya (P.W. 9) has only proved the
age of the victim on the date of the examination. The
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
age of the victim was assessed to be 16 to 17 years.
This assessment, therefore, justifies the Trial to be held
by the Special POCSO Court for the victim would be a
minor at the time of the occurrence.
40. With the non-examination of the I.O.,
no fact which would have been necessary to take the
prosecution case to a logical conclusion, could be
unraveled and this has caused serious prejudice to the
appellants.
41. Similarly, the parents of the victim have
made totally contradictory statements, with respect to
kidnapping of the victim, her being kept in confinement
and then raped by three of the appellants.
42. There is no evidence with respect to
kidnapping of the victim. We say so for the reason that
the victim at one point claimed that she was gagged and
taken away from the house, whereas at some other
occasion, she alludes to her having been enticed away.
43. If she had not come out of the house
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
on her home, who had taken away the cash and
jewellery which could be detected by P.W. 6.
44. The parents and brother of the victim
were present in the house when the appellants are said
to have taken away the victim.
45. When and how, but remains under
wraps.
46. We cannot but reject the entire
prosecution story as a product of the fecundity of the
mind of the collaborators.
47. We are surprised as to what was
perceived by the Trial Court for recording conviction
under Sections 366A and 376D of the IPC and Section
6(1) of the POCSO Act, 2012 and sentencing the
appellants so severely.
48. There appears to be total non-
application of mind on the part of the Trial Court as well.
49. We find the Trial Court judgment to be
absolutely perverse and not fit to be sustained in the
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
eyes of law.
50. The prosecution case has failed
miserably. The charges against the appellants have not
been proved at all.
51. For the reasons aforenoted, the
conviction of the appellants, therefore, under all the
counts is set aside and the appellants are acquitted of
the charges levelled against them.
52. Both the appeals are allowed.
53. It is informed by the learned Advocates
that all the three appellants are in jail. They are directed
to be released forthwith from jail, if not detained or
wanted in any other case.
54. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
55. The records of this case be returned to
the Trial Court forthwith.
56. Interlocutory application/s, if any, also
Patna High Court CR. APP (DB) No.699 of 2023 dt.13-12-2023
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
manoj/suarav-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 14.12.2023
Transmission Date 14.12.2023
