Patna High Court
Anzar Ansari @ Md. Anzar Hussain vs The State Of Bihar on 14 December, 2023
Author: Nawneet Kumar Pandey
Bench: Chakradhari Sharan Singh, Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.600 of 2021
Arising Out of PS. Case No.-26 Year-2018 Thana- MAHILA PS District- Aurangabad
======================================================
ANZAR ANSARI @ MD. ANZAR HUSSAIN S/o LATE ZAMIR HASAN
R/o VILLAGE-KARA, P.S-OBRA, DISTRICT-AURANGABAD.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Pushpendra Priyadarshi
Mr. Surya Prakash Singh
Mr. Anand Prakash
For the State : Mrs. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY
Date : 14.12.2023
This appeal has been preferred by the appellant
under Section 374 (2) of the Code of Criminal Procedure, 1973
for setting aside the judgment dated 26.07.2021 and order of
sentence dated 30.07.2021 passed by the learned Additional
Sessions Judge-VI-cum-Special Judge, POCSO, Aurangabad,
in G.R.Case No. 62/2018, CIS No.62/2018, arising out of
Mahila P.S.Case No. 26 of 2018, whereby the appellant has been
convicted and sentenced as under:-
Conviction Sentence
under Imprisonment Fine (Rs.) In default of
Section fine
376(AB) IPC R.I. for 20 20,000/- SI for one
and 4 of the years year
POCSO Act
Patna High Court CR. APP (DB) No.600 of 2021 dt.14-12-2023
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342 IPC - 1,000/- S.I. for three
months
2. For the sake of confidentiality as well as to
avoid the possibility of disclosure of the identity of the victim,
who is a child about four years, her name is not being disclosed.
3. The mother of the victim (a child of 3-4 years)
lodged her fardbayan, stating therein that on 05.09.2018 at
about 11.00 A.M., the appellant brought the victim in his
bathroom for giving her a bath and in that course inserted his
finger into her vagina. The appellant left the victim when she
started crying. The victim came to her house and narrated the
occurrence to the informant. The informant went to the house of
the appellant to inquire about the occurrence, where his three
sons, namely, Gufran, Rizwan and Faizan threatened her to kill.
They also did not allow the informant to go out from the house
and she she got an opportunity, she went to the police station
and narrated the occurrence. It has also been mentioned in the
fardbayan that co-accused Gufran, one of the sons of the
appellant, a man of criminal disposition, and he is an accused in
a murder case.
4. On the basis of fardbayan of the informant,
Mahila P.S.Case No. 26 of 2018 was registered under Sections
342, 376, 506 and 120(B) of the IPC and Section 4 of the
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POCSO Act on 09.09.2018. After registration of the FIR, the
investigation was carried out and after completion of the
investigation, the investigating authorities submitted charge
sheet no. 02/19 on 10.03.2019 against the appellant and his
three sons, namely, Gufran, Rizwan and Faizan. The charges
were framed against all the four accused persons on 05.08.2019
for the offences punishable under Sections 342, 376 and
506/120(B) of the IPC and Section 4 of the POCSO Act. The
charges were read over and explained to the accused persons in
Hindi, to which they pleaded not guilty and claimed to be tried.
It is pertinent to mention here that the other three
accused persons, namely, Gufran, Rizwan and Faizan, who are
the three sons of the appellant, have been acquitted by the
learned trial court.
5. Altogether eight witnesses, including the doctor
and the I.O., were examined by the prosecution to substantiate
the charges against the accused persons. P.W.1 is the victim
herself. P.W.2 (the informant) is the mother of the victim.
P.W.3 is the grandmother of the victim. P.W.4 Farida Naz is the
sister-in-law (bhawa) of the appellant. P.W.5 is the cousin of the
victim, whereas P.W.6 is the sister of the victim. P.W.7 is the
I.O. and P.W.8 is Doctor, who had medically examined the
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victim girl.
6. After examination of the prosecution witnesses,
the appellant and other accused persons were questioned under
Section 313 of the Cr.P.C. to enable them to explain the
circumstances appearing in the evidence against them. The
appellant and co-accused persons answered those questions in
negative and their defence is complete innocence and false
implication due to dispute relating to the drainage of water.
7. The following documentary evidences have
been exhibited by the prosecution.:-
Exhibit-1 Signatures of victim and
her mother on 164
statement
Exhibit-2 Signature of the
informant on fardbayan
Exhibit-2/1 Fardbayan
Exhibit-3 Letter to examine the
victim and signature of
informant on it.
Exhibit-4 Formal FIR
Exhibit-5 Medical report of the
victim
8. One defence witness was also examined on
behalf of the defence.
9. P.W.2, the informant and mother of the
victim, stated during her deposition that the age of her daughter
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is more than three years. When she was playing outside her
house, the appellant came there and asked her to accompany
him for taking a bath and thereafter the appellant committed the
said misdeed with her daughter. The sister-in-law (Bhawaz)
P.W.4, of the appellant came to this witness and asked her to
take her daughter back to her house. The victim came to this
witness crying and apprised this witness that the appellant
(uncle) had inserted his hand. When the informant complained
to the sister-in-law of the appellant (P.W.4), she asked this
witness to complain the matter to the mother of the appellant.
When she made complaint to the mother of the appellant, she
sided with her son and did not pay heed to this witness. This
witness came to her house and informed her husband over
phone, who was in Delhi at the time of occurrence. Her
husband came to the village after 2-3 days and then the FIR was
lodged in Mahila police station. After lodging of the FIR, the
medical examination of the victim was conducted and the
statement of this witness was recorded under Section 164 of the
CrPC. She deposed that except this witness, none had rendered
the statement before the Magistrate under Section 164 of the
CrPC. This witness identified her signature on her statement
recorded under Section 164 of the CrPC. She also identified her
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signature on the fardbayan (Exhibit-2). This witness identified
the appellant, who was present in the dock at the time of
recording of her evidence.
10. P.W.1 is the victim herself. On asking of the
court, she disclosed her age as four years. While recording her
deposition the learned court below has mentioned that the
victim appeared to be wise enough in comparison to her age.
The learned trial court jotted down the examination-in-chief of
the victim in question-answer format. She deposed that uncle
inserted his hand. When the court asked as to where the
appellant inserted his hand, the witness pointed out the place
after lifting her clothes. The victim stated that the appellant did
nothing except the act she deposed. She identified the appellant,
who was present in the dock. In her cross-examination, the
victim accepted before the court that she had made such
statements before the court as was told by her mother to make.
11. P.W.3 is the grandmother of the victim. She
deposed that on the day of occurrence, the victim had gone for a
bath where the appellant inserted finger into her private part.
During her cross-examination, she stated that her vision is not
good and she is also hard of hearing. She did not see the
occurrence and the victim had narrated the occurrence to this
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witness.
12. P.W.5 is the cousin of the victim. This witness
stated that the appellant inserted his finger into the private part
of the victim. During his cross-examination, this witness
deposed that he is not an eye-witness to the occurrence. He was
not present in his house. His house is adjacent to the house of
the appellant. The victim had four sisters and one brother. They
all reside in the same house.
13. P.W.6 is the elder sister of the victim. She stated
that the occurrence had taken place on 19.09.2018 at about
10.00 a.m. She saw that the victim was taking a bath. She
deposed further that the appellant inserted his finger into the
private part of the victim. The appellant was present in the dock
to whom this witness identified. During her cross-examination,
this witness deposed that the appellant was about 75-80 years
old. She stated further that she saw the appellant applying
shampoo and soap on the person of the victim and except that
she did not see anything.
14. P.W.4 is sister-in-law (bhawa) of the appellant.
She has been declared hostile at the prayer of the prosecution.
This witness stated that some altercation had taken place
between the parties over drainage of water from the house of the
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informant into the house of the appellant. Co-accused Rizwan,
the son of the appellant, had asked the informant to refrain from
draining the water, due to which the altercation had taken place.
This witness expressed her complete ignorance about the
occurrence relating to the victim. She deposed further that the
informant falsely implicated the appellant and all his three sons.
15. P.W.8 is the doctor, who medically examined
the victim. She deposed that she did not find any injury on the
person of the victim. No any abrasion, injury was found on the
neck, chest, thigh and the leg of the victim. No any injury was
found on vulva or her private part. No tears, no bleeding nor any
type of abrasion was found. Hymen was totally intact.
As per the opinion of the doctor, no finding on her
body or private part was seen suggesting penetration of finger
into her private part. This witness identified her signature on
medical report, which was marked as Exhibit-5.
16. The I.O. was examined as P.W.7. She deposed
that she identified the signature of the then SHO on
endorsement of the FIR which is Exhibit-2/1. She also identified
the signature and the handwriting of the then SHO on Exhibit-4
which is formal FIR. After taking over the charge of the
investigation, she inspected the place of occurrence, recorded
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the statements of the witnesses, and after completion of
investigation, she submitted the charge sheet on 10.03.2019.
The statement of the informant has also been recorded under
Section 164 of the CrPC in which she stated the similar thing, as
mentioned in her fardbayan.
17. The victim was also produced before the
Magistrate for recording of her statement under Section 164 of
the CrPC. The learned Judicial Magistrate made efforts to record
her statement and asked some basic questions like occupation
of her father etc, but the learned Magistrate recorded that due to
very tender age, the victim could not understand those
questions.
18. One witness, namely, Md. Iftekhar was also
examined on behalf of the defence. This witness deposed that
the informant is the wife of his cousin. The houses of both the
parties are situated in front of each other. He stated further that
on 01.09.2018, some altercation had taken place between both
the parties for the reason that the hen of the informant had
entered into the house of the appellant and after that altercation,
the informant had blocked the drainage of the appellant and for
that again an altercation took place between the parties. On the
third day, a conciliation meeting (Panchayaiti) was convened,
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but the informant and her family members declined to abide by
the decision of the Punches. This witness along with other
Punches, went to their houses when the informant and her
family members had refused to follow the decision of the
punches. During his cross-examination, this witness deposed
that the appellant did not file any case relating to the dispute of
drainage of water.
19. The learned counsel for the appellant submitted
that the appellant has falsely been implicated in this case with
concocted story due to dispute over drainage of water between
the parties. He submits that the occurrence is alleged to have
taken place on 05.09.2018, but the matter was reported after
four days i.e. on 09.09.2018 without explaining the delay in
lodging of the FIR. Non-explanation of inordinate delay in
lodging of the FIR itself makes the prosecution case doubtful.
He also submitted that the informant states the date of
occurrence as 05.09.2018, but her daughter (P.W.6) states the
date of occurrence as 19.09.2018, as such, the statements of the
informant and that of her daughter are contradictory and this
contradiction is not a trivial contradiction, but is a material
contradiction, which goes to the root of the matter and makes
the prosecution case untrustworthy. The learned counsel
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submitted further that the victim is admittedly a minor girl of 3-
4 years of age and the organs of a girl of tender age are
delicate, but no mark of injury was found in medical report
corroborating the allegation of insertion of finger. He submitted
further that it is very easy to tutor something to a child of tender
age and get it be reproduced from the mouth of the child as and
when required. He submitted further that due to the vendetta
arising out of the dispute of drainage of water, at the behest of
her parents, the tutored child (alleged victim) reproduced the
things in the court, which were infused by her parents into her
brain, with an intention to implicate falsely not only an
octogenarian innocent but also all his three sons. He submitted
further that there is allegation against the appellant who is
admittedly an old man of 75-80 years that he inserted his finger
into the private part of the victim, but the doctor did not find
even a minor or slightest injury on her private part, and on the
basis of medical examination, the doctor (P.W.8) opined that
she did not find any evidence of penetration of finger into the
private part of the victim. As such, the medical report totally
negates the allegation levelled against the appellant. The
learned counsel submitted further that even if it is assumed to
be true that the appellant was bathing the victim, the intention of
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touching her body was not with the sexual intent. Usually, the
parents or elderly people of the house facilitate the child in
bathing and while bathing they apply shampoo and soap on
his/her person, and merely because that, their touch to the child
cannot be said to be a bad touch, rather it is only for bathing of
the child.
20. On the other hand, the learned Additional
Public Prosecution for the State has submitted that the
informant, the victim and family members of the informant
fully supported the prosecution case and they are unanimous in
their statements that the appellant inserted his finger into the
private part of the victim, who is a minor girl of tender age and
there is nothing on the record to discredit the testimony of the
witnesses. She submitted further that the victim was medically
examined after five days of the occurrence which was the reason
why no evidence of insertion of finger could be detected.
21. We have perused the impugned judgment of
the trial court and carefully perused the lower court's records.
We have given our thoughtful consideration to the rival
submissions advance on behalf of the parties.
22. As discussed above, there is allegation that the
appellant took the victim, who is a girl of four years of age, into
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his bathroom to give her bath and during bath he inserted finger
into her private part. The prosecution witnesses, who are family
members of the informant, supported the occurrence and they
stated that the appellant while facilitating bath to the victim
inserted finger into her private part. The occurrence is alleged to
have taken place on 05.09.2018 and the matter was reported on
09.09.2018
. There is no plausible explanation for delay in
lodging of the FIR. The informant attempted to explain the
delay by stating in her fardbayan that the sons of the appellant
threatened them, due to which the family members of the
informant could not come out from their house, but the
informant, during her deposition in court, deposed that at the
time of occurrence, her husband was in Delhi and after his
arrival from Delhi, the case was lodged. In her deposition, she
did not depose that due to threatening given by the sons of the
appellant, the FIR could not be lodged. Further, the occurrence,
as per the informant and other witnesses had taken place on
05.09.2018, but the daughter of the informant (elder sister of the
victim) who claims herself to be an eye-witness, stated the
occurrence to have taken place on 19.09.2018 and P.W.5, the
cousin of the victim, states the occurrence to have taken place
on 02.09.2018. As such, there is material contradiction in
Patna High Court CR. APP (DB) No.600 of 2021 dt.14-12-2023
depositions of the witnesses in respect of the date of occurrence.
Moreover, the ocular evidence is not corroborated by the
medical evidence.
23. On a cumulative and broad analysis of the
evidence adduced at the trial, it can be easily discerned that
according to the prosecution's case itself, it was not unusual for
the appellant to have taken the victim, aged less than four years,
for a bath. P.W.6 had seen that the appellant had applied soap on
the body of the victim while bathing her. From the evidence, it
also transpires that the appellant is an elderly person. In course
of giving bath to a child less than four years, it is natural that the
appellant's finger would have touched different parts of the
body of the victim. We, however, do not find any credible and
trustworthy evidence to substantiate that the appellant had
inserted his finger into the vagina of the victim to make out a
case of penetrative sexual assault within the meaning of Section
3 of the POCSO Act or 'rape' within the meaning of Section
375(b) of the IPC.
24. Accordingly, the impugned judgment dated
26.07.2021 and order of sentence dated 30.07.2021 passed by
the learned Additional Sessions Judge-VI-cum-Special Judge,
POCSO, Aurangabad, in G.R.Case No. 62/2018,CIS
Patna High Court CR. APP (DB) No.600 of 2021 dt.14-12-2023
No.62/2018, arising out of Mahila P.S.Case No. 26 of 2018, are
set aside.
25. Consequently, the appeal is allowed.
26. Since the appellant Anzar Ansari @ Anzar
Hussain is in custody, let him be released forthwith, if not
required in any other case.
(Nawneet Kumar Pandey, J)
I agree
(Chakradhari Sharan Singh, J)
(Chakradhari Sharan Singh, J)
HR/-Kundan
AFR/NAFR NAFR
CAV DATE 10.10.2023
Uploading Date 18. 12.2023
Transmission Date 18. .12.2023
