Patna High Court
Vinay Rai vs The State Of Bihar on 14 December, 2023
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.96 of 2022
Arising Out of PS. Case No.-72 Year-2020 Thana- DIGHWARA District- Saran
======================================================
Dilip Rai Son of Prayag Rai Resident of Village- Manupur, P.S.- Dighwara,
District- Saran
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 101 of 2022
Arising Out of PS. Case No.-72 Year-2020 Thana- DIGHWARA District- Saran
======================================================
Vinay Rai Son of Sudish Rai Resident of Mauza- Manepur, P.S.- Dighwara,
District- Saran
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 96 of 2022)
For the Appellant/s : Mr.Bindhyachal Singh, Sr.Advocate
Mr.Vipin Kumar Singh, Advocate
Mr.RamBinod Singh, Advocate
Mr.A.Manikant Advocate
For the Informant : Mr.Ajay Kumar Sharma, Advocate
For the Respondent/s : Ms.Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 101 of 2022)
For the Appellant/s : Mr.Basant Kumar Singh, Advocate
Mr.Vishesh Kumar Singh, Advocate
For the Informant : Mr.Ajay Kumar Sharma, Advocate
For the Respondent/s : Ms.Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY
CAV JUDGMENT
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
2/16
(Per: HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY)
Date : 14-12-2023
Both the above stated criminal appeals have arisen out
of common judgment dated 07.12.2021 and sentence order
dated 14.12.2021 passed by learned Additional Sessions Judge
VI-cum-Exclusive Special Judge (POCSO), Saran at Chapra. In
all, two accused were prosecuted for the commission of alleged
offences under Section 6 of the POCSO Act and section 323/34,
341/34 and 376(D) of the Indian Penal Code for wrongfully
restraining the prosecutrix and then committing rape on her. The
trial court after appreciation of the evidence on record found
both the accused guilty for commission of the above-said
offences and convicted them as under:-
Cr. Appeal (DB) No. 96 of 2022
Convicted under Section Sentence
Imprisonment Fine (Rs.) In default of
fine
Dilip Rai U/s 6 of the RI for 25 years 1,00,000/- SI for one
and POCSO year
Vinay Act
Rai Section RI for 06 months
323/34 IPC
Section RI for 06 months
342/34 IPC
All the sentences shall run concurrently.
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
3/16
2. Being aggrieved by the judgment and order of
conviction recorded by the Additional Sessions Judge VI-cum-
Exclusive Special Judge (POCSO), Saran at Chapra dated
07.12.2021
and 14.12.2021 respectively, the present appeals are
filed by the appellants who are the accused in S.T. POCSO No.
28 of 2020 which arose out of Dighwara PS Case No. 72 of
2020.
3. A thumbnail sketch of the instant case is as
follows:-
The prosecutrix i.e. PW-5 was the resident of
Manopur Dighwara District-Saran. As per the written
application the prosecutrix's age was not mentioned. On
13.03.2020 at about 1.00 'O' clock (midnight) the appellants i.e.
Dilip Rai and Vinay Rai came to her, caught both her hands and
when she started shouting Dilip Rai tied her mouth with his
towel, took out a knife from his pocket and placed it on the
throat of the victim and threatened her stating that if she shouts
he would kill her and later he would also kill her father who was
at home. The written application further discloses that Dilip Rai
having caught hold of the hand of the victim, took her to Gachhi
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
in his lap for which the victim defended by hitting him with
punches and also slapped him. Further, Dilip Rai torn her
clothes due to which, she became naked and he started raping
her while the other appellant hold both of her hands. Later
Vinay Rai raped her then Dilip Rai caught hold of her hands and
the entire incident took place for more than an hour. Later, the
prosecutrix/victim reached home and informed the incident to
her family members. The written application also discloses that
both the accused threatened her not to inform about the incident
to anyone or else they would kill her and her father.
4. Basing on the written application, Dighwara PS of
Sone Sub-Division, Saran District has registered the FIR on the
file of Dighwara PS Case No. 72 of 2020 dated 13.03.2020 at
8.30 am. In the said FIR, the same content was mentioned that
both the accused had participated in the commission of the said
offence. On the strength of the said FIR investigating machinery
was set into motion and the prosecutrix was sent to medical
examination. On the same date ie. 13.03.2020 at about 3.40 pm,
the prosecutrix was examined by PW-6 Doctor Kiran Ojha of
Sadar Hospital, Chapra. Her medical report and the evidence
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
would be discussed at a later stage. The statement of the
prosecutrix was recorded under Section 164 of Cr.P.C by
Judicial Magistrate First Class, Saran at Chapra on 13.03.2020.
Thereafter, the statement of the victim was also recorded under
Section 161 of Cr.P.C. A perusal of both the aforesaid statements
clearly indicates that she had given the names of present
appellants describing as perpetrators of the offence.
5. The record also reveals that FIR lodged by the
prosecution was also sent to the Judicial Magistrate on the same
date. During course of investigation both the accused were
arrested.
6. After completion of the investigation chargesheet
was submitted by the police. The accused were put on trial for
commission of the said offence before the Additional District &
Sessions Judge VI-cum-Exclusive Special Judge (POCSO)
Saran at Chapra. Both the accused pleaded not guilty and
requested for judicial trial.
7. In order to bring home the charges levelled against
the accused, the prosecution has examined altogether eight
witnesses on its behalf. No witnesses were examined on behalf
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
of the defence.
During the course of trial, the prosecution has
examined total eight witnesses i.e., PWs-1 to PW-08 and got
marked Exhibits P-1 to 5 and Exhibit D-1 and Exhibit D-2.
PW-1 Cousin brother
PW-2 Uncle of victim
PW-3 Cousin brother
PW-4 Aunt of victim
PW-5 Victim
PW-6 Doctor
PW-7 Investigating Officer
PW-8 Father of victim
Exhibit P-1 Signature of PW-4 on fardbeyan
Exhibit P1/1 Identification of signature and handwriting
of the SHO, Dighwara PS below the
endorsement made on fardbeyan
Exhibit P-2 Signature of the victim on the statement
recorded under Section 164 Cr.P.C
Exhibit P-3 Injury report in the handwriting of and
signed by PW-6
Exhibit P-4 Identification of handwriting and signature
of the SHO, Dighwara PS by PW-7 on
formal FIR
Exhibit P-5 Contents of the statement recorded u/s 164
Cr.P.C
Exhibit D-1 Three sets of photo of the victim with a boy
namely, Rahul Kumar, as alleged with
objection by the prosecution.
Exhibit D-2 A photocopy of the application dated
16.03.2019 made to SP, Saran with
objection by the prosecution
8. On appreciation of the evidence available on
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
record, the trial court convicted the appellants as above-
mentioned and awarded sentences to both the accused.
9. We have accordingly heard Mr. Bindhyachal Singh
learned senior counsel and Mr. Basant Kumar Singh, learned
counsel appearing on behalf of the appellants, Mr. Ajay Kumar
Sharma learned counsel for the informant and learned APP Ms.
Shashi Bala Verma representing the State and have perused the
material available on record.
10. It is the specific contention of the learned counsel
for the appellants that the alleged incident did not happen and
the medical evidence did not corroborate the oral evidence of
the prosecutrix. Therefore, the conviction itself is bad and is
liable to be set aside. It is further contended that the trial court
ought not to have convicted the appellants as the defence
evidence clearly disclose that the prosecutrix is having love
affairs with one Rahul Kumar and when they were caught red-
handed by the appellants herein a false complaint was foisted
against them in order to overcome the situation.
11. On the other hand, learned APP contended that
there is no error or irregularity in the orders of the trial court and
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
therefore, prayed to confirm the judgment of the trial court.
12. The basic and foremost question that arose for
consideration in this appeal is that whether the appellants have
committed the offence under Section 6 of the POCSO Act and
under Indian Penal Code or whether they have been falsely
implicated.
13. According to the prosecutrix, both the accused
have wrongfully restrained her, lifted her to Gachhi and
committed rape against her one after the other. Admittedly, the
alleged incident took place in the midnight at about 1.00 am and
as per her testimony it took place for more than one hour. PW-5
ie. the prosecutrix in her cross-examination stated that she had
come out from house at 1.00 clock in the night to defecate and
both the accused caught hold of her and committed the offence
and also admitted that she was injured in the said incident and
received scratches on her back, hand and in cheek. However,
injuries are not found on the body as per the medical
examination report.
14. PW-6 who is the medical officer also testified that
no injury was found on the body of the prosecutrix. If that be so,
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
why did she said that she received injury during the course of
rape? The narration or improvement in her evidence speaks
volumes against her and her credibility stands shaken.
15. It is also to be noted that initially she reported in
the written application about the commission of offence, but did
not say about any injuries sustained by her and further nothing
was stated by the prosecutrix as to how she has identified these
persons when the incident occurred at midnight. These acts or
omissions of the prosecutrix cannot be said to be minor
contradictions as these are very relevant basis of evidence.
Further the entire case rests upon the evidence of the
prosecutrix. It is also relevant to mention that the written
application also do not contain the age of the victim/prosecutrix.
Furthermore, the evidence of PW-4 who is Aunt and PW-8 who
is father of the prosecutrix testified that the victim was aged
about 13 years on the date of occurrence. Contrary to it, PW-6
has testified that the age of the victim was about 18 years.
Because of such contradictions, an agile and active court can
differentiate between the genuine case from frivolous and
concocted one. The role of the courts in such cases is to see,
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
whether the evidence available before the court is enough and
cogent to prove the accused guilty.
16. In order to prove the offence under Section 376
and Section 6 of the POCSO Act, the medical evidence plays
crucial and important role. The medical officer i.e. P.W. 6
examined the victim on 13.03.2020 at about 3:40 pm and found
2 cm diameter abrasion on the right cheek. Except that no
injuries were found on the body and private parts. Further,
noticed old rupture on the hymen and the Vagina of the
prosecutrix. P.W. 6 further testified that vagina swabs were
collected and were sent to Histopathological Examination in
Sadar Hospital, Chapra and urine of victim was collected for the
purpose of pregnancy test. The witness i.e., P.W. 6, on perusal of
Histopathological Report testified that dead spermatozoa were
found and the victim was aged about 18 to 19 years. She opined
that there is a strong evidence of recent sexual inter-course with
the victim and that the age of the victim was above 19 years. In
the medical examination, the medical officer/P.W.6 admitted
that there were no injuries found on the victim's hands and back
and further basing on the dental examination, pelvic test and
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
other tests the prosecutrix was found adult. It is also admitted by
P.W. 6 that if live spermatozoa was found, the accused can be
examined and matched to ascertain whether he had committed
the offence or not, and even through investigation of DNA on
the dead spermatozoa the accused can be traced. On
appreciation of the evidence of the medical officer, we are of the
considerable view that the victim did not sustain any injury on
13.03.2020 on her private parts or on her body. The prosecution
has miserably failed to prove that sexual assault was committed
against the victim on 13.03.2020 as the prosecutrix evidence is
not corroborated with the medical evidence.
17. The object of the act for POCSO cases is that
children have to be protected from the offences of sexual assault
and sexual harassment etc. P.W. 5 is aged above 18 years.
Section 2(1)(d) defines "Child" means a person below the age of
18 years. As per the evidence of P.W. 6, the victim was aged
above 18 years or between 18 to 19 years and, therefore, the
trial court cannot punish the accused under Section 6 of the
POCSO Act. The trial court ought to have considered the
evidence of the doctor, in the absence of any documentary
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
evidence i.e., school certificate, study certificate etc., Therefore,
the conviction under Section 6 of the POCSO Act is liable to be
set aside.
18. In this case, P.Ws. 1, 2, 3, 4 and 8 are not at all the
eye witnesses. P.W. 5 is the victim. PW-6 is the Medical Officer.
P.W.7 is the Investigating Officer. The evidence of Pws 1, 2, 4
and 8 are hearsay evidences. We would reiterate once again that
the entire case rests on the sole testimony of the prosecutrix.
One of the appellants i.e., Dilip Rai had taken a plea before the
trial court, while examined under Section 313 of the Cr.P.C. that
one boy named, Rahul Kumar was having love-affair with the
victim/prosecutrix and they found the boy crossing them with
the towel over his mouth and talking on phone for which both
the appellants followed him to Gachhi and they also saw the
victim/prosecutrix going behind the bushes. As they caught hold
of the said Rahul Kumar beat him and when confronted Rahul
Kumar punched on the face of Vinay Rai and fled away, for
which they also went to the police station. The story of the
victim/prosecutrix appears to be unreliable. The evidence of
P.W. 5 has not been corroborated by any other evidences.
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
Furthermore, the evidence of the other witnesses is hearsay
evidence except the evidence of doctor and investigating officer.
There are various contradictions in the statements of each of the
witnesses. Further, the statement of the prosecutrix and the
improvements made by her in the testimony can be safely
concluded, that she was certainly not telling a gospel truth.
19. In order to support the contention, learned counsel
for the appellants relied on a judgment of the Apex Court
wherein their lordships have held that no DNA test was being
conducted to prove that the appellants have sexually assaulted
the prosecutrix.
It is further contended by the learned counsel for the
appellants that dead spermatozoa was found which was sent to
chemical analysis, but the prosecution failed to send it to DNA
test, to prove that the appellants have committed rape on the
prosecutrix. In Nandlal Wasudeo Badwik Vs. Lata Nandlal
Badwik And Anr.1 the Apex Court have held:
"that the result of the genuine DNA test is
scientifically accurate. It is nobody's case that the
result of the DNA test is not genuine and, therefore,
the Court has to proceed on an assumption that the
1 2014(2) SCC 576
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
result of the DNA test is accurate. The DNA test
reports show that the appellant is not the biological
father of the girl child."
Learned counsel for the appellants further relied upon
a judgment reported in Rajendra Pralhadrao Wasnik v. State
of Maharashtra 2wherein their lordships have held as under:
"DNA evidence
There have been remarkable technological
advancements in forensic science and in scientific
investigations. These must be made fully use of and the
somewhat archaic methods of investigations must be
given up. For the prosecution to decline to produce DNA
profiling is available in the country. The prosecution
would be well advised to take advantage of this,
particularly in view of the provisions of Section 53-A and
Section 164-A Cr.P.C.
DNA profiling is an extremely accurate way
to compare a suspect's DNA with crime scene specimens,
victim's DNA on the bloodstained clothes of the accused
or other articles recovered, DNA testing can make a
virtually positive identification when the two samples
match."
20. All the aforesaid citations are squarely applicable
to the facts and circumstances of the case. On incorporation of
section 53A of the Cr.P.C it has become necessary for the
2 (2019) 12 SCC 460
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
prosecution to go in for the DNA test, in order to connect crime
with that of the accused. In spite of having sufficient materials
to prove the guilt of the accused, the prosecutrix has failed to
send the dead spermatozoa for DNA test to prove that the
appellants have committed the offence against the prosecutrix.
21. Needless to say the solitary evidence of the
prosecutrix to bring home the charge of the offences under
Indian Penal Code and POCSO Act by the appellants do not
inspire the confidence and is not of sterling quality. In our
opinion, it is neither prudent nor safe to hold that the appellants
are guilty of commission of the said offence.
22. We have gone through the entire evidence on
record and on perusal of the records, it is evident that the
medical evidence is not corroborating with the oral evidence of
the witnesses. It is relevant to mention the judgment of the Apex
Court in Lallu Manjhi v. State of Jharkhand 3.
"Single eyewitness testimony can be
classified as (a) wholly reliable (b) wholly unreliable,
and (c) neither of the two. In the first two cases, there
may be no difficulty in accepting or rejecting the
testimony as the case may be. In the third case, court
has to be circumspect and look for corroboration by
reliable evidence; direct or circumstantial."
3 AIR 2003 SC 854
Patna High Court CR. APP (DB) No.96 of 2022 dt. 14-12-2023
In the present case the testimony of prosecutrix falls
under the third category i.e. neither of the two (wholly reliable
or wholly unreliable).
23. Therefore, benefit of doubt has to be extended to
the appellants. Thus, looking into the materials from all angles
we are of the considerate opinion that the conviction of the
appellants cannot be upheld, thus, these appeals are allowed.
24. The appellants are acquitted from all the charges,
let them be released forthwith, if they are not required in any
other case.
( G. Anupama Chakravarthy, J)
I agree
(Chakradhari Sharan Singh, J) :
(Chakradhari Sharan Singh, J)
vinita/aditi-
AFR/NAFR NAFR
CAV DATE 12.12.2023
Uploading Date 18.12.2023
Transmission Date 18.12.2023
