Patna High Court
Dayji Devi vs The State Of Bihar on 18 December, 2023
Bench: Chakradhari Sharan Singh, Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.588 of 2022
Arising Out of PS. Case No.-104 Year-2018 Thana- MAHILA P.S District- Supaul
======================================================
SUBHASH KUMAR @ SUBHASH KUMAR SARDAR Son of Sri
Mahendra Sardar Resident of Village - Narhaiya, P.S.- chhatapur, District -
Supual.
... ... Appellant
Versus
THE STATE OF BIHAR
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 198 of 2022
In
CRIMINAL APPEAL (SJ) No.2672 of 2021
Arising Out of PS. Case No.-104 Year-2018 Thana- MAHILA P.S District- Supaul
======================================================
1. DAYJI DEVI W/o Mahendra Sardar R/o village- Narhaiya, P.S.- Chhatapur,
District- Supaul
2. Sanjeev Sardar @ Sanjay Sardar @ Sanjay Kumar Sardar S/o Mahendra
Sardar R/o village- Narhaiya, P.S.- Chhatapur, District- Supaul
... ... Appellants
Versus
THE STATE OF BIHAR
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 588 of 2022)
For the Appellant/s : Mrs.Veena Kumari Jaiswal, Advocate
Sri Upendra Prasad, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 198 of 2022)
For the Appellant/s : Mrs.Veena Kumari Jaiswal, Advocate
Sri Upendra Prasad, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE KHATIM REZA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 18-12-2023
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
These appeals have been preferred by the appellants
under Section 374(2) of the Code of Criminal Procedure, 1973
(CrPC for short), putting to challenge a judgment of conviction
dated 22.03.2021 and the order of sentence dated 25.03.2021,
passed by the learned Additional Sessions Judge-V1th-cum-
Special Judge, POCSO Court, Supaul, in POCSO Case No. 37 of
2018, arising out of Supaul Mahila P.S. Case No. 104 of 2018,
Trial No. 35 of 2020, whereby the appellants have been convicted
and sentenced as under:
Sentence
Appellant Penal provision In default of
Imprisonment Fine (Rs.)
fine
Section 376(1) of the Indian R.I. for 13 Rs. R.I. for six
Penal Code years 1,50,000/ months
Shubhash
Section 493 of the Indian R.I. for 10 Rs. S.I. for two
Kumar @ Penal Code years 70,000/- years
Subhash
Kumar Section 6 of the POCSO Act Life Rs. S.I. for three
imprisonment 1,00,000/- years
Sardar
Section 4 of the POCSO Act R.I. for 12 Rs. S.I. for three
years 1,00,000/- years
Sanjeev Section 493/34 of the Indian R.I. for three Rs. S.I. for nine
Sardar @ Penal Code years and six 50,000/- months
Sanjay months
Sardar @
Sanjay
Kumar
Sardar
Section 493/34 of the Indian R.I. for three Rs. S.I. for nine
Dayaji Devi Penal Code years and six 50,000/- months
months
2. All the sentences have been ordered to run
concurrently.
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
3. A written report of PW-2, addressed to Mahila Police
Station, Supaul dated 06.08.2018, is the basis for registration of
the concerned Mahila Police Station Case No. 104 of 2018
levelling offences punishable under Sections 376, 493 read with
Section 34 of the Indian Penal Code (IPC, in short) and Section 4
of the Protection of Children from Sexual Offences Act (POCSO
Act for short). Apart from Shubhash Kumar Sardar, who is the
appellant in Cr. Appeal (DB) No. 588 of 2022, his father Mahendra
Sardar, mother Dayaji Devi and brother Sanjeev Sardar (Dayaji
Devi and Sanjeev Sardar are the appellants in Cr. Appeal (DB) No.
198 of 2022) were named in the FIR. In her written report, the
informant stated her age to be 15 years and asserted that nearly one
year before the date of lodging of the FIR, when she was returning
to her maternal grandmother's house after attending a feast in the
village, at 9 pm, the appellant Subhash Kumar Sardar forcibly took
her to his house and committed rape upon her. He, thereafter,
promised to marry her and on the pretext of marrying her, he
continued to establish physical relationship with the informant,
consequent upon which, she became pregnant. She, thereafter,
narrated the occurrence to her Sister-in-law (Bhabhi, PW-4). After
the registration of the FIR, the statement of the informant was
recorded under Section 164 of the CrPC by learned A.C.J.M.,
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
Supaul on 28.08.2018 (Ext.-2). The informant reiterated her
narration of the appellant Subhash Kumar Sardar having
established physical relationship with her for last one year. In her
statement under Section 164 of the CrPC, she also mentioned that
a panchayat was held subsequently, in which, the appellant
Subhash Kumar Sardar declined to marry her, though the
informant was willing to marry him. It is pertinent to mention, at
this juncture, that it transpires from the statement of the informant
recorded under Section 164 of the CrPC that she mentioned her
age to be 18 years. The informant was examined by a medical
board on 06.08.2018. The medical board found the informant's age
to be between 17-19 years and, that there was no sign of rape. She
was carrying pregnancy of 24 weeks.
4. The police, upon completion of investigation,
submitted charge-sheet for the offences punishable under Sections
376, 493 read with Section 34 of the IPC and Sections 4/6 of the
POCSO Act against all the four persons named in the FIR,
whereupon cognizance was taken on 03.04.2019 of the aforesaid
offences. Charges were subsequently framed against the appellant
Subhash Kumar Sardar for the offences punishable under Sections
376, 493/34 and Sections 4/6 of the POCSO Act. Against rest three
accused persons, charges were framed for the offences punishable
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
under Section 493 read with 34 of the IPC and Section 17 of the
POCSO Act. All the four accused persons denied the charges and
claimed to be tried. They were accordingly put to trial.
5. At the trial, the prosecution got examined altogether
six witnesses, i.e., the informant (PW-2), her maternal uncles (PW-
1 and PW-3), sister-in-law of the informant (PW-4), the Doctor,
who was a member of the Medical Board (PW-5) and the
Investigating Officer (PW-6). In addition to the oral evidence of
the prosecution's witnesses, the prosecution brought on record
following documentary evidences:-
Sl. Description Exhibit Number
No.
1. Signature of the Informant on the written Exhibit-1
report
2. Signature of the informant on the Exhibit-2
statement under Section 164 of the CrPC
3. Signature over the Medical Report Exhibit-3
4. Medical Report Exhibit-4
5. Written endorsement over the written Exhibit-5
report
6. FIR Exhibit-6
6. After the closure of the prosecution's evidence, the
appellants were questioned by the trial court under Section 313 of
the CrPC, so as to give them an opportunity to explain the
incriminating circumstances emerging against them, based on the
evidence led by the prosecution, at the trial. The accused persons
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
answered the questions in negative. The defence got examined two
witnesses (DW-1 and DW-2). From the deposition of the defence
witnesses, it is manifest that they didn't dispute the relationship
between the appellant and the informant and further deposed that
the two wanted to marry each other.
7. The trial court, after having appreciated the evidence
adduced at the trial, has recorded acquittal of co-accused, namely,
Mahendra Sardar of the charges framed against him. However, as
regards the appellant Subhash Kumar Sardar, the trial court has
held him guilty of the offences punishable under Sections 376,
493/34 of the IPC and Sections 4/6 of the POCSO Act. Further, the
trial court has convicted the appellants Dayaji Devi and Sanjeev
Sardar of the offences punishable under Section 493 of the IPC.
After having held the appellants guilty of the aforesaid offences,
the trial court has sentenced them to imprisonment and fine, as has
been noted above.
8. Mr. Upendra Prasad, learned counsel appearing on
behalf of the appellants has argued that the Court's finding,
holding the appellants guilty of the offences punishable under the
provisions of the POCSO Act is patently illegal and erroneous for
the reason that the prosecution miserably failed to prove at the trial
that the age of the victim was less than 18 years and, therefore, a
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
'child' within the meaning of Section (2)(1)(d) of the POCSO Act.
To bolster his contentions, he has drawn the Court's attention to the
finding of the medical board which assessed the victim's age to be
between 17-19 years. He has also submitted that in her statement
under Section 164 of the CrPC, the informant (PW-2) herself
disclosed her age to be 18 years. In any event, he contends, the
trial court did not adopt the requisite procedure under Section 34
(2) of the POCSO Act read with Section 94 of the Juvenile Justice
(Protection and Care of Children) Act, 2015, for determination of
the victim's age which ought to have been mandatorily done. He
contends that it is evident from the evidence of the informant
herself that she had studied up to Class 8. No evidence was
brought on record regarding her date of birth based on the entries
made in the school admission register.
9. On the point of conviction of the appellants for the
offence punishable under Section 376 of the Indian Penal Code, he
has submitted that it is clear from the evidence of the informant
herself that the informant and appellant Subhash Kumar Sardar
had established physical relationship with their mutual consent.
Even the appellant Subhash Kumar Sardar has not denied that he
and the informant were in love with each other and they had
established physical relationship also. He further submits that there
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
is no evidence to the effect that the appellant Subhash Kumar
Sardar had ever denied to marry the informant, rather he wanted to
marry her. He accordingly contends that the prosecution's case that
the promise of the appellant Subhash Kumar Sardar, made to the
informant was false, has no basis. He argues that considering the
depositions of the prosecution's witnesses to the effect that the
informant and the appellant Subhash Kumar Sardar were in love
with each other and were having physical relationship with consent
since long, no offence of rape within the meaning of Section 375
of the Indian Penal Code is made out. Finding of the trial court,
convicting the appellant of the charge punishable under Section
376 of the Indian Penal Code, is completely erroneous, he argues.
10. He has further argued that the trial court has
committed gross error of law in holding the appellants Dayaji Devi
and Sanjeev Sardar of the offence punishable under Section 493 of
the IPC. Section 493 of the IPC will not have any application in so
far as the same relates to the appellants Dayaji Devi and Sanjeev
Sardar.
11. Learned Additional Public Prosecutor appearing on
behalf of the State has defended the finding of conviction recorded
by the trial court and has submitted that the evidence adduced at
the trial would suggest that the informant gave birth to a female
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
child after lodging of the FIR and, upon DNA test, the appellant
Shubhash Kumar Sardar has been found to be the biological father
of the child. She submits that the denial by the appellant Shubhash
Kumar Sardar to marry the informant after having remained in
physcial relationship with her for nearly one year on the false
promise to marry her does constitute an offence of rape within the
meaning of Section 375 of the IPC as the consent for such
relationship obtained by the appellant Subhash Kumar Sardar
cannot be said to be voluntary. She submits that the informant
claimed her age to be 15 years and the medical report also found
her age to be between 17-19 years. Thus, on the date of the first
offence of rape, committed by the said appellant, the victim should
be presumed to be a child and, therefore, the appellant's conviction
does not suffer from any legal infirmity requiring this Court's
interference.
12. We have perused the impugned judgment and order
of the trial court and the records of the trial court. We have given
our thoughtful consideration to the rival submissions made on
behalf of the parties.
13. The first question, which requires consideration in
the present appeals, is as to whether the prosecution could
establish at the trial that the victim was a 'child' within the
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
meaning of Section 2(1)(d) of the POCSO Act. The person can be
said to be a 'child' within the said provision of the POCSO Act, if
it is conclusively proved at the trial that he/she was not 18 years of
age. Sub-Section (2) of Section 34 of the POCSO Act requires the
Special Court under the Act to determine the age of victim of rape.
The Supreme Court has held in the case of Jarnail Singh v. State
of Haryana, reported in (2013) 7 SCC 263 that the procedure
prescribed for assessment of age of a juvenile under the provisions
of Juvenile Justice (Care and Protection of Children) Rules 2007
shall apply for the purpose of determination of age of a child
victim under the provisions of POCSO Act. Section 94(2) of the
Juvenile Justice (Care and Protection of Children) Act, 2015 lays
down definite procedure for age determination, which reads as
under:-
(2). In case, the Committee or the
Board has reasonable grounds for doubt
regarding whether the person brought before it is
a child or not, the Committee or the Board, as the
case may be, shall undertake the process of age
determination, by seeking evidence by obtaining
--
(i) the date of birth certificate from the
school, or the matriculation or equivalent
certificate from the concerned examination Board,
if available; and in the absence thereof;
(ii) the birth certificate given by a 2(1)
(d)corporation or a municipal authority or a
panchayat;
(iii) and only in the absence
of (i) and (ii) above, age shall be determined by
an ossification test or any other latest medical
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
age determination test conducted on the orders
of the Committee or the Board:
Provided such age determination
test conducted on the order of the Committee
or the Board shall be completed within fifteen
days from the date of such order.
14. In the present case, no procedure has been followed
to determine conclusively the age of the informant. Her age, based
on radiological examination, has been found to be between 17-19
years by the Medical Board. From her evidence, it transpires that
she had studied up to Class 8. No attempt was made by the
prosecution to prove her age before the Special Court, based on the
entry of date of birth made in the admission register of the school.
No other step was taken to prove the fact that the informant was
less then 18 years as on the date of occurrence, in accordance with
the requirement under sub-Section (2) of Section 94 of the
Juvenile Justice (Care and Protection of Children) Act, 2015. Even
as per the assessment made by the medical board, based on a
radiological examination, the age of the informant was between
17-19 years. No accuracy can be attached to such assesment. It is
clear from the requirement under sub-Section (2) of Section 94 of
the Juvenile Justice (Care and Protection of Children) Act, 2015
that in the absence of the documents under sub-Section 2(i) and
2(ii), the Court ought to have determined the age of the informant
based on the ossification test, which was not held in the present
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
case. Thus, in our view, the prosecution miserably failed at the trial
to establish that the victim was a 'child' within the meaning of
Section 2(1)(d) of the POCSO Act, so as to attract the provisions
of the Act. Accordingly, the conviction of the appellant Subhash
Kumar Sardar for the commission of offences punishable under the
provisions of the POCSO Act are unsustainable. Situated thus, the
appellant Subhash Kumar Sardar stands acquitted of the charge of
commission of offence punishable under Section 4 of the POCSO
Act.
15. Now, coming to the conviction of the appellant
Subhash Kumar Sardar for the offence punishable under Section
376 of the IPC, we notice from the records and consistent
depositions of the witnesses that the informant and the appellant
Subhash Kumar Sardar were in love with each other and wanted to
marry. They were in continued physical relationship for a
considerable period of time. There is no evidence on record to
suggest that the promise, said to have been given by the appellant
to the informant, was a false promise. Both of them knew each
other well. There is no evidence that the appellant Subhash Kumar
Sardar suffered from any legal incapacity to marry the informant
and knowing that well, he had given a false promise to marry the
informant. It is manifest from the consistent depositions of the
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
witnesses that refusal by the appellant Subhash Kumar Sardar to
marry the informant gave rise to cause of action for the informant
to file the FIR. The appellant Subhash Kumar Sardar, in response
to the questions put to him under Section 313 of the CrPC, has not
denied the factum of the nature of relationship between him and
the informant. After having considered the evidence of the
prosecution's witnesses, we find force in the submission advanced
on behalf of the appellant Subhash Kumar Sardar that it was a case
of consensual relationship between the informant and the appellant
Subhash Kumar Sardar, which does not fall within the definition of
rape under Section 375 of the IPC. The appellant's conviction for
the offence punishable under Section 376 of the IPC, in the Court's
opinion, is also unsustainable. The appellant Subhash Kumar
Sardar accordingly stands acquitted of the charges of offence
punishable under Section 376 of the IPC.
16. Coming to the conviction of the appellants Dayaji
Devi and Sanjeev Sardar for the offence punishable under Section
493 read with Section 34 of the IPC. We are of the view that the
said finding of the trial court is not at all sustainable. Section 493
of the IPC reads thus:-
"493. Cohabitation caused by a man
deceitfully inducing a belief of lawful
marriage.--Every man who by deceit causes
any woman who is not lawfully married to him
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
to believe that she is lawfully married to him
and to cohabit or have sexual intercourse with
him in that belief, shall be punished with
imprisonment of either description for a term
which may extend to ten years, and shall also
be liable to fine."
17. On a plain reading of the provision under Section
493 of the IPC in the background of the evidence adduced at the
trial, it is manifest that the said finding of conviction suffers from
perversity.
18. In the result, these appeals are allowed. The
appellants stand acquitted of the charges.
19. Accordingly, the impugned judgment of conviction
dated 22.03.2021 and the order of sentence dated 25.03.2021,
passed by the learned Additional Sessions Judge-V1th-cum-
Special Judge, POCSO Court, Supaul, in POCSO Case No. 37 of
2018, arising out of Supaul Mahila P.S. Case No. 104 of 2018,
Trial No. 35 of 2020, are set aside.
20. These appeals are allowed accordingly.
21. The appellant, namely, Shubhash Kumar Sardar in
Cr. Appeal (DB) No. 588 of 2022 is in jail custody. Let him be
released forthwith, if he is not required in any other case.
Patna High Court CR. APP (DB) No.588 of 2022 dt.18-12-2023
22. Appellants, namely, Dayaji Devi and Sanjeev
Kumar in Cr. Appeal (DB) No. 198 of 2022 are on bail. They stand
discharged from the liabilities of bail bonds and sureties, if any.
(Chakradhari Sharan Singh, J)
( Khatim Reza, J)
suraj/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 23.12.2023
Transmission Date 23.12.2023
