Md Kainool vs The State Of Bihar
2023 Latest Caselaw 829 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.641 of 2021
       Arising Out of PS. Case No.-56 Year-2015 Thana- MAHILA P.S. District- Banka
======================================================

MD KAINOOL Son of Late Md. Wahid Resident of Village- Katiyama, P.S.- Rajoun, in the district of Banka.

... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== Appearance :

For the Appellant : Mr. Shashank Shekhar Sinha, Advocate Mr. Braj Nandan Kumar Tiwary, Advocate For the Respondent : Ms. Shashi Bala Verma, APP ====================================================== CORAM: HONOURABLE THE ACTING CHIEF JUSTICE and HONOURABLE MR. JUSTICE KHATIM REZA CAV JUDGMENT (Per: HONOURABLE THE ACTING CHIEF JUSTICE)

Date : 22-02-2023

The sole appellant has preferred this appeal under

Section 374(2) of the CrPC putting to challenge the judgment of

conviction dated 02.09.2021 and the order of sentence dated

03.09.2021, passed by the learned Additional Sessions Judge 6th-

cum-Special Judge (POCSO), Banka in G.R. No. 2642 of 2015

arising out of Banka Mahila Police Station Case No. 56 of 2015,

whereby the sole appellant has been convicted and sentenced as

under: -

Sentence Conviction under Section Imprisonment Fine (Rs.) In default of fine Section 4 POCSO Act R.I. for 10 years 25,000/- R.I. for 1 year Section 6 POCSO Act R.I. for 20 years 50,000/- R.I. for 2 years Section 376(2) of the IPC R.I. for 10 years 25,000/- R.I. for 1 year Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

2. All the sentences have been ordered to run concurrently.

3. So as to conceal identity of the victim, her name does

not figure in the present judgment and order and has been referred

to as 'the victim'.

4. A written report of the victim's mother (PW-4), dated

08.12.2015, is the basis for registration of the First Information

Report, i.e., Banka Mahila P.S. Case No. 56 of 2015, for the

offences punishable under Section 376(2)(i) of the IPC and

Sections 4 and 6 of the Protection of Children from Sexual

Offences Act, 2012 ('the Act' for short). The occurrence had taken

place, according to the written report, on the previous day, i.e., on

07.12.2015. The informant, the mother of the victim, disclosed in

her written report that this appellant was engaged by her for

milking her cow on the payment of Rs. 200 per month. On the date

of occurrence, at about 6:30 P.M., after having milked the cow, he

had entered into the informant's house and cajoled her eight years

old minor daughter, the victim, and had taken her to a cot and after

bolting the door from inside, sexually exploited her. When the

informant heard the victim crying, she rushed towards her house

and the moment she reached there, the appellant, after opening the

door, escaped. When the husband of the informant returned, the

victim explained the occurrence which had happened with her. Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

Subsequently, after consulting the co-villagers and near relatives,

the informant went to the police station with the victim for

registration of the FIR.

5. We consider it apposite to note, at this juncture, that

the victim was subjected to medical examination on 08.12.2015 at

04:30 P.M.. During the course of medical examination, no internal

or external injury was found on the body of the victim, except dark

coloured bruise around her vulva. Further, the statement of the

victim was recorded under Section 164 of the CrPC on

10.12.2015. She disclosed in her statement under Section 164 of

the CrPC that the appellant had kissed her and made her lay on the

cot after removing her panty. Thereafter, he had put off his pants,

which he was wearing and lay with her under a blanket and was

rubbing his penis with her vagina. She clearly stated that the

appellant had not inserted his penis in to her vagina. The appellant,

thereafter, lay over her and left the house thereafter. After the

appellant had left the house, the grandmother of the victim, who

lived in a nearby house came, to whom she explained about the

occurrence.

6. The police, upon completion of the investigation,

submitted charge-sheet, whereafter, cognizance was taken of the

offence punishable under Section 376(2)(i) of the IPC and Sections Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

4 and 6 of the Act. The appellant, upon execution of process under

Section 83 of the CrPC, was declared as an absconder, who,

subsequently, turned up on 19.05.2016 and faced trial.

7. The charges were framed for commission of the

offences punishable under Section 376(2)(i) of the IPC and

Sections 4 and 6 of the Act. The appellant pleaded not guilty and,

thus, claimed to face trial.

8. The prosecution examined at the trial altogether seven

witnesses, including Dr. Amitabh Arun (PW-6), who had examined

the victim. He, however, did not appear for his cross examination.

The mother of the victim came to be examined as PW-4 and

grandmother as PW-2. The victim was examined at the trial as

PW-5.

9. The trial court, in compliance with the requirement

under Section 313 of the CrPC, put questions to the appellant

based on the prosecution's evidence, which had emerged against

him and gave him an opportunity to explain the circumstances.

The appellant, however, denied the circumstances. Thereafter,

three defense witnesses were examined. From the evidence of the

defense witnesses, it appears that the defense attempted to develop

a case that it was because of some dispute in relation to payments Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

by the informant to the appellant for milking her cow that a false

case came to be registered.

10. The Investigating Officer was examined as PW-7.

Father of the victim was examined as PW-3. From the deposition

of PW-1, in paragraph 5, it appears that she was related to the

victim's father.

11. As has been noted above, the trial court, after having

scanned the evidence of the prosecution as well as the defense, has

held the appellant guilty of the offences for which he was charged

and sentenced him to imprisonment and fine, as has been noted at

the outset, by the judgment and order under challenge in the

present appeal.

12. Mr. Shashank Shekhar Sinha, learned counsel

appearing on behalf of the appellant has argued that the victim

does not appear to be a sterling witness on whose evidence only

the trial court could have recorded finding of conviction. He has

submitted that she is a child witness, whose deposition is required

to be seen by this Court with much care, caution and

circumspection in the wake of clear evidence of the defense

witnesses that there was dispute between the family of the victim

and the appellant in respect of payment of wages to the appellant

for milking cow. He has further argued that allegation made in the Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

FIR does not constitute an offence punishable under Section 376

of the IPC and Sections 4 and 6 of the Act in the absence of any

accusation of penetrative sexual assault. He has also argued that as

the Doctor, who had conducted the medical examination of the

victim, was not available for cross examination, the accusation of

sexual assault cannot be said to have been proved beyond all

reasonable doubts. It is his contention that the victim, a child, in no

circumstance, can be said to be a sterling witness, there being

patent contradictions in her statement recorded under Section 164

of the CrPC and in her deposition at the trial. In such view of the

matter, he has submitted that in the absence of corroboration of

evidence of the victim, the charge of commission of the offence

punishable under Section 376(2) and Sections 4 and 6 of the Act

cannot be said to have been proved. He has argued that the

appellant deserves to be given benefit of doubt as the prosecution

miserably failed to establish the charge of commission of offence

punishable under Section 376 of the IPC and Section 4 and 6 of

the Act.

13. The learned Magistrate, by whom the statement of

the victim was recorded under Section 164 of the CrPC, was not

examined at the trial and, in that backdrop, a submission has been

made on behalf of the State that the appellant cannot rely on the Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

said statement, which was not duly proved at the trial. In response

to the said submission, learned counsel for the appellant has relied

on Supreme Court's decision in case of Madi Ganga v. State of

Orissa, (AIR 1981 SC 1165).

14. An alternative submission has been made on behalf

of the appellant to the effect that in any event, no case of

penetrative sexual assault or aggravated penetrative sexual assault

is made out, even if the depositions of the prosecution's witnesses

are taken to be true, read with the medical evidence. He has argued

that no act of the appellant, said to have been proved by the

prosecution at the trial, constitutes penetrative sexual assault or

aggravated penetrative sexual assault within the meaning of

Sections 3 and 5 of the Act, punishable under Sections 4 and 6 of

the Act. At the utmost, he contends that the alleged act of the

appellant constitutes an offence punishable under Section 8 of the

Act. Heavy reliance has been placed in this regard on a recent

decision of the Supreme Court rendered on 18.11.2021, in the case

of Attorney General For India vs. Satish and Another. He has

argued that the prosecution's witnesses do not appear to be

trustworthy and their depositions are full of contradictions.

Referring to the evidence of PW 2, the grandmother of the victim,

he has submitted that, according to her, she had seen the victim in Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

blood stained wet clothes, whereas there is no other evidence to

the effect that blood stained clothes of the victim were seized. He

has contended that the prosecution's witnesses deposed at the trial

that they had rushed to the place of occurrence on hearing the

screams made by the victim, but the victim had herself not

deposed that she had screamed. Referring to the evidence of the IO

for establishing contradictions, he has contended that IO

specifically deposed that PW-1 had not made any statement during

the course of investigation that the victim had cried or rape was

committed on her. Further, PW-4 had not stated during the course

of investigation that the victim had cried and that she had seen the

appellant running away. These major contradictions demonstrate

that PWs 1 and 4 are not truthful. The summary of the submissions

advanced on behalf of the appellant is that the statement of the

victim recorded under Section 164 of the CrPC does not support

the prosecution's case of penetrative sexual assault, which has

been developed during the course of the trial by improving the

prosecution's version. The lodging of the criminal case is an

outcome of internal dispute between the parties over payments to

the appellant in relation to milking the informant's cow. There is

strong likelihood of the victim having been tutored to depose

against the appellant, she being a child witness. The accusation of Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

penetrative sexual assault is not corroborated by medical evidence.

Last but not the least, the victim herself does not appear to be

trustworthy, he has argued.

15. Ms. Shashi Bala Verma, learned Additional Public

Prosecutor representing the State, has, on the other hand,

submitted that there are insignificant contradictions in the evidence

of the prosecution's witnesses, which are natural and such

witnesses do not appear to be tutored witnesses. She has contended

that the victim, an innocent child, had candidly explained in her

evidence at the trial the manner of occurrence, whose evidence

appears to be consistent and truthful. The evidence of the victim

does not require any corroboration by medical evidence, she has

contended.

16. We have perused the impugned judgment and order

of the trial court, the lower court records and we have given our

anxious consideration to the rival submissions made on behalf of

the parties, as noted above. We, at the outset, point out that for the

reasons best known to the prosecution, the Doctor, who had

conducted the medical examination of the victim, was not

available for his cross-examination at the trial. His testimony at the

trial, therefore, cannot be taken into evidence. A question may

arise as to whether non-examination of the Doctor, in the present Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

facts and circumstances of the case, would have an impact on the

result of the present appeal. The said aspect, we shall deal with at

appropriate stage.

17. As has been noted above, the narrative of the

informant in her written report does not specifically disclose an act

of penetrative sexual assault though she has used the expression

'ययन शशषण' (sexual exploitation) in her written report, which is the

basis for registration of FIR. Two days after registration of the

FIR, on 10.12.2015, the victim, in her statement under Section 164

of the CrPC, disclosed unequivocally that there was no

penetration, though she asserted that the appellant rubbed his penis

with the vagina of the victim. Nearly two years after her statement

under Section 164 of the CrPC was recorded, during the course of

trial, the victim (PW-5) deposed, for the first time, that she had

screamed when the appellant was inserting his penis in her vagina

(paragraph 2) and that the penis had entered into her vagina.

Further, the medical report does not corroborate the prosecution's

case of penetrative sexual assault inasmuch as no mark of injury,

corroborating penetration, was found. It is true that no

corroboration by medical evidence is essential to establish an

offence of sexual assault, if the evidence of the victim is found to

be trustworthy and unblemished. It is apparent, however, that the Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

prosecution has introduced improvement in its case at the stage of

trial, which can be noticed from the evidence of the IO also. When

his attention was drawn to the evidence of PW-1, the IO deposed

in his cross-examination that she had not stated during the course

of investigation that the accused had opened the door after hearing

noise from outside nor Bibi Haider Khatoon had stated that the

victim was crying loud, whereafter when they went inside, the

appellant was seen fleeing away. It is pertinent to mention that the

victim's father Shabaz (PW-3), in his evidence at the trial, deposed

that he had returned in the night on the date of occurrence. He had

seen his mother, wife and aunt (Bua) weeping and, on being asked,

the victim had disclosed about the occurrence. The IO, in his

deposition, said that no such statement was made by PW-3 during

the course of investigation.

18. We are, thus, of the definite view that the

prosecution has introduced improvements in its case at the stage of

trial beyond what was disclosed in the FIR and subsequently in the

statement of the victim recorded under Section 164 of the CrPC. In

such circumstance, this Court is required to be cautious and

circumspect while evaluating the evidence of the witnesses.

19. There is no specific allegation in the FIR, which

constitutes an offence of penetrative sexual assault or aggravated Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

penetrative sexual assault. Similarly, if the statement of the victim

recorded under Section 164 of the CrPC is taken into account, the

case of penetrative sexual assault or aggravated penetrative sexual

assault is ruled out in the backdrop of her statement that there was

no penetration. We, at this juncture, need to notice the definitions

of penetrative sexual assault or aggravated penetrative sexual

assault under Sections 3 and 5 of the Act, which read as under: -

"3. Penetrative sexual assault.--A person is said to commit "penetrative sexual assault" if--

(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person; or

(b) he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or

(c) he manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes the child to do so with him or any other person; or

(d) he applies his mouth to the penis, vagina, anus, urethra of the child or makes the child to do so to such person or any other person.

Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

5. Aggravated penetrative sexual assault.--(a) Whoever, being a police officer, commits penetrative sexual assault on a child--

(i) within the limits of the police station or premises at which he is appointed; or

(ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or

(iii) in the course of his duties or otherwise; or

(iv) where he is known as, or identified as, a police officer; or

(b) whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child--

(i) within the limits of the area to which the person is deployed; or

(ii) in any areas under the command of the forces or armed forces; or

(iii) in the course of his duties or otherwise; or

(iv) where the said person is known or identified as a member of the security or armed forces; or

(c) whoever being a public servant commits penetrative sexual assault on a child; or

(d) whoever being on the management or on the staff of a jail, remand home, protection home, observation home, or other place of custody or care and protection established by or under any law for the time being in force, commits penetrative sexual assault on a child, being inmate of such jail, remand home, protection home, observation home, or other place of custody or care and protection; or Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

(e) whoever being on the management or staff of a hospital, whether Government or private, commits penetrative sexual assault on a child in that hospital; or

(f) whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution; or

(g) whoever commits gang penetrative sexual assault on a child.

Explanation.--When a child is subjected to sexual assault by one or more persons of a group in furtherance of their common intention, each of such persons shall be deemed to have committed gang penetrative sexual assault within the meaning of this clause and each of such person shall be liable for that act in the same manner as if it were done by him alone; or

(h) whoever commits penetrative sexual assault on a child using deadly weapons, fire, heated substance or corrosive substance; or

(i) whoever commits penetrative sexual assault causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child; or

(j) whoever commits penetrative sexual assault on a child, which--

(i) physically incapacitates the child or causes the child to become mentally ill as defined under clause (b) of Section 2 of the Mental Health Act, 1987 (14 of 1987) or causes impairment of any kind so as to render the child unable to Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

perform regular tasks, temporarily or permanently; 9[* * *]

(ii) in the case of female child, makes the child pregnant as a consequence of sexual assault;

(iii) inflicts the child with Human Immunodeficiency Virus or any other life threatening disease or infection which may either temporarily or permanently impair the child by rendering him physically incapacitated, or mentally ill to perform regular tasks; 10[* * *]

11[(iv) causes death of the child; or]

(k) whoever, taking advantage of a child's mental or physical disability, commits penetrative sexual assault on the child; or

(l) whoever commits penetrative sexual assault on the child more than once or repeatedly; or

(m) whoever commits penetrative sexual assault on a child below twelve years; or

(n) whoever being a relative of the child through blood or adoption or marriage or guardianship or in foster care or having a domestic relationship with a parent of the child or who is living in the same or shared household with the child, commits penetrative sexual assault on such child; or

(o) whoever being, in the ownership, or management, or staff, of any institution providing services to the child, commits penetrative sexual assault on the child; or

(p) whoever being in a position of trust or authority of a child commits penetrative sexual assault Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

on the child in an institution or home of the child or anywhere else; or

(q) whoever commits penetrative sexual assault on a child knowing the child is pregnant; or

(r) whoever commits penetrative sexual assault on a child and attempts to murder the child; or

(s) whoever commits penetrative sexual assault on a child in the course of 12[communal or sectarian violence or during any natural calamity or in similar situations]; or

(t) whoever commits penetrative sexual assault on a child and who has been previously convicted of having committed any offence under this Act or any sexual offence punishable under any other law for the time being in force; or

(u) whoever commits penetrative sexual assault on a child and makes the child to strip or parade naked in public, is said to commit aggravated penetrative sexual assault."

20. It would be apt to mention here that according to the

prosecution's witnesses, the undergarment of the victim was found

blood stained. The said undergarment of the victim was not seized

nor sent for medical examination. At the cost of repetition, it is

mentioned that the victim in her statement under Section 164 of

the CrPC had not complained of penetration. Such being the

circumstance, the evidence of the prosecution, to the extent it

relates to penetrative sexual assault on the victim, cannot be said to

be beyond suspicion particularly in the absence of corroboration Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

by medical evidence. Situated thus, the conviction of the appellant

for commission of the offence punishable under Sections 4 and 6

of the Act cannot be sustained by giving the appellant benefit of

doubt.

21. At the same time, on close scrutiny of the evidence

of the victim, we find that she cannot be said to be wholly

unreliable and tutored. Though the charge of penetrative sexual

assault or aggravated penetrative sexual assault punishable under

Sections 4 and 6 of the Act is not proved, she appears to be

consistent in her evidence that she was subjected to sexual assault

by the appellant within the meaning of Section 7 of the Act

punishable under Section 8 thereof. Section 7 of the Act reads as

under: -

"7. Sexual assault.--Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."

22. It may be easily culled out from the unambiguous

language of Section 7 of the Act that the act of touching any sexual

part of the body of a child with sexual intent or any other act

involving physical contact with sexual intent amounts to sexual

assault punishable under Section 8 of the Act. Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

23. We notice further that the appellant has not raised

any issue as regards the age of the victim to be below 12 years. A

sexual assault committed on a child below 12 years falls in the

category of aggravated penetrative sexual assault within the

meaning of Section 9(m) of the Act. Section 10 prescribes

punishment for aggravated penetrative sexual assault for a

minimum period of five years extendable to seven years and liable

for fine also.

24. For the reasons, as noted above, in the absence of

definite proof of penetrative sexual assault, the appellant's

conviction for commission of offence under Section 376(2) of the

IPC by the trial court is not sustainable. Further, based on the

evidence adduced at the trial, more particularly the evidence of the

victim herself, commission of offence of aggravated penetrative

sexual assault under Section 10 of the Act is proved, beyond all

reasonable doubt.

25. Accordingly, we set aside the impugned judgment of

conviction dated 02.09.2021 and the order of sentence dated

03.09.2021, passed by the learned Additional Sessions Judge 6th-

cum-Special Judge (POCSO), Banka in G.R. No. 2642 of 2015

arising out of Banka Mahila Police Station Case No. 56 of 2015

and modify the same by holding the appellant guilty of the offence Patna High Court CR. APP (DB) No.641 of 2021 dt.22-02-2023

punishable under Section 10 of the Act. Considering the age of the

victim and the circumstance in which the appellant committed the

offence by taking advantage of the absence of the parents of the

victim and her innocence, we deem it fit and proper to sentence

him to R.I. for a term of seven years with a fine of Rs.25000. The

period undergone in custody stands set off. In default of payment

of fine, the appellant is sentenced to undergo R.I. for two years and

a fine of Rs.20000.

26. This appeal is partly allowed.

(Chakradhari Sharan Singh, ACJ)

I Agree Khatim Reza, J:

(Khatim Reza, J)

Pawan/Nishant-

AFR/NAFR                NAFR
CAV DATE                13.10.2022
Uploading Date          25.02.2023
Transmission Date        25.02.2023