Patna High Court
Md. Perwez vs The State Of Bihar on 13 December, 2023
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1943 of 2017
Arising Out of PS. Case No.-89 Year-2014 Thana- SHAHKUND District- Bhagalpur
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Md. Perwez, Son of Kadir, Resident of Village- Khaira, P.S.- Shahkund,
District- Bhagalpur.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Siddharth Harsh, Amicus Curiae
For the Respondent/s : Mrs. Anita Kumari Singh, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 13-12-2023
1. Learned Amicus Curiae Mr. Siddharth Harsh
appearing for the appellant and learned APP Mrs. Anita Kumari
Singh for the State are present and they are heard on the merit of
this appeal.
2. The instant appeal has been filed by the sole
appellant Md. Parwez against the judgment of conviction dated
22.03.2017 and order of sentence dated 25.03.2017 passed by
the Additional Sessions Judge-I-cum- Special Judge (POCSO),
Bhagalpur in G.R. Case No. 2040/14 arising out of Shahkund
P.S. Case No. 89/14.
3. The appellant stood charged for the offences
punishable under Section 354B of the Indian Penal Code
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(hereinafter referred as "IPC") and Section 8 of POCSO Act and
the learned Trial Court convicted him for both the said offences
and sentenced him to undergo rigorous imprisonment for four
years for the offence punishable under Section 354B of IPC and a
fine of Rs. 5,000/- was also imposed upon him for the said
offence and he was directed to further undergo additional
imprisonment for three months in case of non payment of the
fine. No sentence was awarded upon the appellant by the Trial
Court for the offence under Section 8 of POCSO Act in view of
the provisions of Section 42 of POCSO Act.
4. The substance of the prosecution's allegation is that
on 09.06.2014 at about 11:00 P.M the appellant, who is stated to
be a neighbor of the victim, came at the informant's house and
lifted the informant's minor daughter aged about seven years
when she was in sleeping condition. It has been further alleged
that the informant raised an alarm on seeing the commission of
the said alleged act of the appellant and thereafter started chasing
the appellant and in that course, the appellant left the victim in
naked condition and thereafter, fled away, after that, the victim
was brought back to her home. The informant raised the
suspicion that the appellant had taken away her minor daughter
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with malice intention and unfastened her payjama but thereafter,
fled away when an alarm was raised by the prosecution party.
5. The informant filed a written application at
Shahkund police station describing the above allegations, on that
basis formal FIR bearing Shahkund P.S. Case No. 89 of 2014 was
registered for the offences punishable under Section 354B of IPC
and Section 8 of POCSO Act which set the criminal law in
motion.
6. After the completion of investigation the police
chargesheeted the appellant for the offences under Section 354B
of IPC and Section 8 of POCSO Act and thereafter, the learned
trial Court took cognizance of the alleged offences and started
trial of the appellant by framing charges upon him.
7. During trial the prosecution examined the following
four prosecution witnesses:-
P.W.1:- Bibi Roushan, Informant
P.W.2:- Victim
P.W.3:- Dr. Sushila Choudhary, Doctor
P.W.4:- Sri, Niwas Singh, Investigating Officer
8. In documentary evidences the prosecution proved
the following documents and got them exhibited which are as
follows:-
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Ext.1:- Medical Report of the Victim.
Ext.2:- FIR
9. After the completion of prosecution's evidence the
statement of the appellant was recorded by the Trial Court in
which he denied the main circumstances appearing against him
from the prosecution's evidences and claimed himself to be an
innocent person and took the defence that he had been falsely
implicated.
10. The appellant did not produce any evidence in his
defence.
11. It has been submitted by learned Amicus Curiae
that there is a vital contradiction regarding the manner of
occurrence in between the prosecution story described in the FIR
and described by the victim herself. As per the statement of the
victim, the Investigating Officer did not record her statement
during investigation and the doctor who medically examined the
victim did not give his concrete medical opinion to establish a
connection in between the laceration injury which is said to have
been found inside the vagina of the victim and the act of the
accused.
12. It has been argued by learned APP appearing for
the state that the allegations levelled against the appellant by the
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prosecution, stood proved before the Trial Court and the material
witnesses including the victim fully supported the said
allegations and the victim's Medical Report also proved the case
of prosecution and the victim is said to be seven years old at the
time of commission of the alleged occurrence and regarding her
age no dispute was made by the accused and prosecution fully
proved the allegation that the appellant took the victim away with
an intention to outrage her modesty and unfastened her payjama
but thereafter, he had to flee away as the informant reached at the
place of occurrence and raised an alarm and the said allegation
attracts the offence punishable under Section 354B of IPC for
which the appellant has been convicted, as such, there is no force
in the instant appeal and the same is liable to be dismissed.
13. Heard learned Amicus Curiae and learned APP for
the State and also perused the impugned judgment and evidences
available on the case record of the trial Court and gone through
the statement of the accused.
14. The important facts appearing from the
prosecution's story which are relevant to the alleged offences for
which the appellant has been convicted are that on 09.06.2014 at
about 11:00 pm the appellant forcibly lifted the victim when she
was in sleeping condition and thereafter, took her away with an
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intention to outrage her modesty. The informant who is stated to
be the mother of the victim, claimed to have seen the appellant
carrying the victim and on seeing the appellant's act she raised an
alarm, due to that reason the appellant had to flee away after
leaving the victim. When the victim was found by the appellant
her payjama which the victim wore on the day of alleged
occurrence, was found being in unfastened condition.
15. In the present matter the most important witness of
the prosecution is the victim herself who was examined as P.W.2.
P.W.2:- The victim deposed in the examination-in-
chief that the accused firstly lifted her and thereafter, took her at
pokhar (Pond) where he sexually assaulted her and he also put
his private part into her mouth. She further deposed in the cross-
examination that there are four brothers and two sisters of her
and at the time of the alleged occurrence, she was sleeping with
her siblings and mother and the accused was already known to
her and when she was being taken by him, she cried and the
accused had earlier also committed a wrong with her before the
commission of the alleged occurrence of the present matter. She
further deposed that after the occurrence she returned back in
weeping condition and thereafter, fell asleep and she did not say
anything about the occurrence to anyone and from the pond she
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returned back alone and till the time of her return, her all family
members were sleeping.
16. The material facts stated by the victim before the
Trial Court are quite different from the manner of occurrence as
described by victim's mother in the FIR, as firstly according to
the victim, after the occurrence she returned back alone while as
per the informant she was brought from the place of occurrence
by the informant herself and secondly, when the victim returned
back, all her family members including the informant were asleep
and thirdly, according to the victim nobody, even her mother
noticed the appellant's act of carrying the victim from her house,
when she was asleep. While as per the FIR, the informant noticed
the appellant's act as to carrying the victim from her house and
then she chased him and raised an alarm. The facts narrated in
the FIR and the facts deposed by the victim are completely
contradictory to each other which caste a serious doubt in the
reliability of the occurrence.
17. As per the FIR, when the accused lifted the victim
and started carrying her, the informant noticed the said act of the
appellant and thereafter, started chasing him but the accused fled
away after leaving the victim in naked position. If we take into
account all these events which are said to have happened in one
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sequence then it clearly appears that the appellant could not have
got sufficient time to sexually assault the victim, as he was being
chased by the victim's mother from the moment of carrying the
victim by him while as per the victim's evidence, the accused
sexually assaulted her in two manners which was not possible if
the incident narrated in the FIR is believed to be true.
18. Here it is important to mention that as per the
victim's evidence she was sleeping with her mother and siblings
but none of her siblings was produced and examined by the
prosecution.
19. The victim deposed in the cross-examination that
the police did not interrogate her which shows that her statement
was not recorded by the Investigating Officer.
20. So far as the medical evidence is concerned, though
the Doctor concerned, who was examined as P.W.3, found a
laceration inside the vagina of the victim but in the cross-
examination she could not explain the proper reason which might
be behind such laceration and she did not give any concrete
opinion to show that the alleged act of sexual assault committed
by the appellant might be a reason behind such injury of
laceration.
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21. All these contradictions and circumstances
appearing from the evidence of material witnesses of the
prosecution are completely against the prosecution and are
sufficient to caste a serious doubt in the prosecution's allegation.
22. In the light of above discussed facts and evidences
available on the case record of Trial Court, this Court forms the
opinion that there are so serious contradictions in between the
material facts narrated by the informant who is said to be victim's
mother and she claimed to be an eye-witness of the alleged
occurrence and the facts deposed by the victim herself that the
prosecution's allegation does not seem reliable and the
accused/appellant is entitled to get a benefit of doubt and there
are sufficient reasons discussed above to interfere in the
judgment impugned and acquit the accused/appellant of the
offences charged.
23. Accordingly, the impugned Judgment and Order
convicting and sentencing the appellant for the offences charged
are hereby set aside and the present appeal stands allowed.
24. The Judgment Impugned was delivered on
22.03.2017
by the Trial Court and thereafter the accused was
taken into custody and during appeal, he was not granted the
relief of bail under Section 389(1) of Cr.P.C., hence, the appellant
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has definitely served the complete sentence, so there is no need to
pass any direction with regard to release of the appellant.
25. Let a copy of the Judgment be sent to the
convicting Trial Court and jail Superintendent, for needful
information.
(Shailendra Singh, J)
Maynaz/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 19.12.2023
Transmission Date 19.12.2023
