Akhilesh Kumar vs The State Of Bihar
2023 Latest Caselaw 95 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.813 of 2019
         Arising Out of PS. Case No.-11 Year-2018 Thana- MAHILA P.S. District- Saharsa
     ======================================================

1. AKHILESH KUMAR Son of Sikandra Mahto Resident of Village - Chanan Siswa, Ward No. -9, P.S.- Salkhua, District- Saharsa

2. Nitish Kumar @ Nitish Kumar Yadav Son of Siko Yadav Resident of Village

- Chanan Siswa, Ward No. -9, P.S.- Salkhua, District- Saharsa

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (SJ) No. 2121 of 2019 Arising Out of PS. Case No.-11 Year-2018 Thana- MAHILA P.S. District- Saharsa ======================================================

1. SIKO YADAV @ SUKO YADAV Son of Chhotelal Yadav @ Chhoti Yadav Resident of Village - Chanan Siswa, P.S.- Salkhua, Dist.- Saharsa.

2. Vijay Mahto Son of Pasindra Mahto Resident of Village - Chanan Siswa, P.S.- Salkhua, Dist.- Saharsa.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 813 of 2019) For the Appellant/s : Mr. Diwakar Prasad Singh, Advocate Mr. Om Prakash Singh, Advocvate Mr. Amardeep Lokpriya, Advocate Mr. Hemant Kumar Sharan, Advocate For the Respondent/s : Mr. Sujit Kumar Singh, APP (In CRIMINAL APPEAL (SJ) No. 2121 of 2019) For the Appellant/s : Mr. Diwakar Prasad Singh, Advocate Mr. Om Prakash Singh, Advocvate Mr. Amardeep Lokpriya, Advocate Mr. Hemant Kumar Sharan, 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 Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 09-01-2023

As both these appeals arise out of the same judgment

and order of the trial court which are impugned, they have been

heard together and are being disposed of by the present common

judgment and order

2. By the impugned judgment and order dated

29.04.2019/ 30.04.2019 passed by the learned Additional

Sessions Judge-I-cum- Special Judge, Saharsa in POCSO 12 of

2018, corresponding to Mahila P.S. Case No. 11 of 2018, the

appellants have been convicted and sentenced as under:

Criminal Appeal DB No. 813 of 2019 Akhilesh Conviction Sentence Kumar under Section Imprisonment Fine (Rs.) In default of fine 323 of the IPC RI for one year 1,000/- RI for one month 504 of the IPC RI for two 2,000/- RI for 2 years months 506 of the IPC RI for three 3,000 RI for 3 years months 376(D) of the RI for 20 years 20,000/- RI for 20 IPC months 448 of the IPC RI for one year 1,000/- RI for one month 6 of the RI for ten years 10,000/- RI for 10 POCSO Act months Nitish Conviction Sentence Kumar under Section Imprisonment Fine (Rs.) In default of fine 323 of the IPC RI for one year 1,000/- RI for one Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

month 504 of the IPC RI for two years 2,000/- RI for 2 months 506 of the IPC RI for three 3,000 RI for 3 years months 376(D) of the RI for 20 years 20,000/- RI for 20 IPC months 448 of the IPC RI for one year 1,000/- RI for one month 6 of the RI for ten years 10,000/- RI for 10 POCSO Act months Criminal Appeal (SJ) No. 2121 of 2019 Siko Yadav Conviction Sentence @ Suko under Imprisonment Fine (Rs.) In default of Yadav Section fine 323 of the IPC RI for one year 1,000/- RI for one month 504 of the IPC RI for two 2,000/- RI for 2 years months 506 of the IPC RI for three 3,000 RI for 3 years months Vijay Mahto Conviction Sentence under Imprisonment Fine (Rs.) In default of Section fine 323 of the RI for one 1,000/- RI for one IPC year month 504 of the RI for two 2,000/- RI for 2 IPC years months 506 of the RI for three 3,000 RI for 3 IPC years months

3. The victim's name is not being disclosed in the

present judgment and order so as to conceal her identity.

4. The sister-in-law (elder brother's wife) of the

victim(PW-4) is the informant on whose written report dated

09.02.2018 in relation to an occurrence which had taken place

on 04.02.2018, the concerned Bakhtiarpur Mahila P.S. Case No. Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

11 of 2018 came to be registered levelling offences punishable

under Sections 448, 376, 323, 504, 506 of the Indian Penal Code

read with 34 thereof and Section 4 of the Protection of Children

from Sexual Offences Act (POCSO Act for short), on

10.02.2018. The prosecution's case as unfolded in the said

written report of the informant (PW-4) is that in the night of

04.02.2018, she and the victim were sleeping in the same house

but in different rooms. Other members of the family had gone to

witness a fair, namely, Kamla Mela. Age of the victim has been

described in the First Information Report as 14 years. At about

10:00 p.m., the appellants, Akhilesh Kumar and Nitish Kumar

(Appellants No. 1 and 2 of Criminal Appeal (DB) No. 813 of

2019) entered into her house and at the point of gun, they took

the victim to their house and committed rape on her one by one.

When the informant woke up, she did not find the victim present

in the house whereafter, she started searching for her. In the

meanwhile, the informant's husband and other family members

returned and they too started searching the victim. In that

course, they heard someone screaming in the house of appellant

Akhilesh Kumar whereupon they went to his (appellant

Akhilesh Kumar's) house where they found the victim in

dishevelled condition. When the family members of the Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

informant attempted to take the victim back to their house from

the house of the appellants, the appellants Siko Yadav and Vijay

Mahto (appellants of Criminal Appeal (SJ) No. 2121 of 2019)

obstructed and restrained them from doing so and attempted to

snatch the victim from the custody of the informant's family

members. Thereafter, somehow or the other, the victim was

brought back to her house. On the next day in the morning the

co-villagers dissuaded the informant and his family members

from lodging an F.I.R and suggested them to get the dispute

resolved through panchayat. A panchayat was thereafter held in

which the appellants Vijay Mahto and Siko Yadav agreed to pay

a fine of Rs. 35,000/-. She also stated in her written report that

the persons named in the F.I.R. had prevented the informant

from going to the nearest police station. On the date of

submission of written report, she (the informant) had

surreptitiously managed to come to the Mahila police station at

Saharsa with the victim, the informant's husband, the brother of

the informant's husband, her father-in-law and other villagers.

5. The victim was subjected to medical examination

on 10.02.2018 at 04:00 p.m. Based on radiological examination

the doctor opined the age of the victim to be below 18 years. It

came to be recorded in the medical report (Exhibit -2) that the Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

victim was not co-operative. The doctor, however, found signs

of forced sexual intercourse within seven days of the date of

medical examination. It also transpires that the statement of the

victim was recorded under Section 164 of the Cr.P.C. before the

Magistrate on 19.02.2018, which is available on record. In the

said statement under Section 164 of the Cr.P.C. she disclosed

that two boys who had masked their face had taken the victim

away from her house to their room on the point of gun where

they raped her. Her mouth was tightly shut with clothes by the

miscreants. She further stated in her statement under Section

164 of the Cr.P.C. that when the cloth tied on her mouth was

removed, she had screamed whereafter her brother had reached

the place of occurrence. Her clothes were soaked with blood.

Her apparels were not, however, seized by the police. She

further disclosed that a panchayat was held after the occurrence

whereafter a fine of Rs. 35,000/- was imposed upon them but

they did not agree to it. She, at the end of her statement

mentioned the names of these appellants as the persons who had

committed rape on her.

6. The police upon completion of investigation

submitted charge-sheet, whereafter cognizance was taken of the

offences punishable under Sections 448, 376, 376(D), 323, 504, Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

506 read with 34 of the Indian Penal Code and Section 4 of the

POCSO Act.

7. Against appellants Akhilesh Kumar and Nitish

Kumar charges under Sections 323, 504, 506 all read with 34 of

the Indian Penal Code, Sections 448 and 376(D) thereof and

Section 6 of the POCSO Act were framed. As regards the

appellants Siko Yadav and Vijay Mahto, charges under Sections

323, 504 and 506 read with 34 of the Indian Penal Code were

framed against them.

8. It is noted at this juncture that all these appellants

are co-villagers of the informant and the victim. Appellant Siko

Yadav is the father of appellant Nitish Kumar of Criminal

Appeal (DB) No. 813 of 2019 whereas appellant Vijay Mahto of

Criminal Appeal (SJ) No. 2121 of 2019 is the brother of

appellant Akhilesh Kumar of Criminal Appeal (DB) No. 813 of

2019.

9. At the trial, altogether seven witnesses came to be

examined including the doctor as PW-6 and Investigating

Officer as PW-7. The father of the victim (PW-1), one of the

brothers of the victim (PW-2) came to be declared hostile at the

instance of the prosecution as they did not support the

prosecution's case. PW-3, the brother of the victim and husband Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

of the informant in his deposition stated that he did not know as

to who had entered into his house. As the appellants had

declined to accept the decision of the panchayat, he had gone to

the police station for lodging the case. In his cross-examination,

he deposed that his wife i.e. the informant(PW-4) had not

disclosed anyone's name who had committed the offence.

Further, he was not able to say as to who had written the written

report at the police station. Furthermore, the written report was

not read over to him, though he had signed over the written

report. The informant (PW-4) in her deposition narrated that at

the time of occurrence she was sleeping in her room and the

victim was sleeping in the same house in another room.

Suddenly, she heard her screaming whereafter she had gone to

the room of the victim and found that she was not there in her

room. Subsequently, the victim was found outside the doorway

of the appellants Akhilesh Kumar and Nitish Kumar. The victim

had, thereafter, told her that she had been raped. It is significant

to note that in her deposition, PW-4 clearly stated that the victim

had not disclosed anyone's name who had committed the rape.

In her cross-examination, she testified that the accused persons

present in the court had not committed any crime with the

victim. She did not identify the appellants Akhilesh Kumar and Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

Nitish Kumar. After the occurrence, she was told by the persons

who had gathered there that the Darwaja in front of which, the

victim was found belonged to the appellants Akhilesh Kumar

and Nitish Kumar and otherwise, she would not have known

their names. It is manifest from the evidence of PW-4, the

informant, in paragraph 5 that she did not support the

prosecution's case that the appellants Akhilesh Kumar and

Nitish Kumar had committed the offences. PW-5, the victim in

her deposition testified that two boys had taken her away from

her house and thereafter they had committed rape on her. She

subsequently learnt that the said boys were the appellants

Akhilesh Kumar and Nitish Kumar. She had explained the entire

occurrence to her sister-in-law (PW-4) whereafter she lodged

the case. She declined to identify these appellants in the course

of trial. She clarified in her cross-examination that the

appellants Akhilesh Kumar and Nitish Kumar who were present

in the course had not committed any wrong with her. In

paragraph 5 of her deposition, she evidenced that she had taken

names of such persons whose names were mentioned to her by

others. In paragraph 6 of her deposition she stated that the

accused persons present in the court room were innocent.

10. We have already noticed the medical evidence in Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

the nature of injury report which came to be proved by PW-6,

the doctor. Based on the injury report, she deposed that sign of

forced intercourse within seven days was present, when the

victim was examined. On perusal of the evidence of the I.O. It

transpires that no sketch map or Najari Naxa was prepared of

the place of occurrence. Further, despite the specific case

asserted in the FIR regarding a panchayat having been held, the

I.O. had not conducted any investigation on the point of the said

panchayat.

11. Learned trial court, based on the evidence of the

witnesses as noted above has concluded in the impugned

judgment that the denial by the prosecution's witnesses

subsequently at the stage of the trial, appeared to be because of

some kind of compromise having been arrived at between the

prosecution's witnesses and the appellants. According to him,

the prosecution's case was based on credible evidence. The trial

court held that there were abundant materials on record to

establish the fact that the occurrence was committed at the time

of occurrence by no one else than the persons put to trial.

12. Learned counsel appearing on behalf of the

appellants has submitted that the finding of conviction recorded

by the trial court is perverse, the same being based on no Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

evidence. He has submitted that none of the prosecution's

witnesses has supported the prosecution's case that the

appellants Akhilesh Kumar and Nitish Kumar had committed

the rape upon the victim. Even the victim has, in her deposition,

stated that the offence was not committed by these appellants.

He has further submitted that the prosecution did not adopt a

fair, just and the prescribed procedure to correctly determine the

age of the victim, which has been found by the doctor to be

below 18 years. As the said determination of age made by the

doctor cannot be said to be accurate for the purpose of

prosecuting the appellants for the offences punishable under the

provisions of the POCSO Act, the conviction of the appellants

of Criminal Appeal (DB) No. 813 of 2019 is manifestly

erroneous.

13. Learned Additional Pubic Prosecutor representing

the State has though attempted to defend the findings recorded

by the trial court in its impugned judgment, she has not been

able to point out any evidence adduced at the trial which could

have resulted into finding of guilt of these appellants.

14. We have carefully perused the impugned judgment

and order of the trial court as well as the lower court's records.

We find force in the submission made on behalf of the Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

appellants that the finding recorded by the trial court of

conviction of all these appellants under various sections of the

Indian Penal Code and POCSO Act verges on perversity. It is

evident that none of the prosecution's witnesses has supported

the prosecution's case that the rape upon the victim was

committed by these appellants. These appellants are co-villagers

of the informant and the victim. Though the victim had not

denied that rape was committed on her, she has not supported

the prosecution's case that the appellants Akhilesh Kumar and

Nitish Kumar had committed the rape. Father of the victim

(PW-1) and one of the brothers (PW-2) have been declared

hostile as they did not support the prosecution's case. Neither

the victim nor the informant nor the informant's husband who

happens to be the brother of the victim has supported the

commission of any sexual assault by the appellants Akhilesh

Kumar and Nitish Kumar.

15. The evidence of the doctor may suggest that the

victim had suffered sexual assault within seven days from the

date of medical examination. The victim had not denied in her

evidence that sexual assault was not committed on her. Based on

the said evidence it could though be concluded that the victim

was sexually assaulted, there is absolutely no evidence to Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

indicate that the appellants Akhilesh Kumar and Nitish Kumar

had committed such assault.

16. As regards the conviction of the appellants Siko

Yadav @ Suko Yadav and Vijay Mahto of Criminal Appeal (SJ)

No. 2121 of 2019 is concerned, there is no iota of evidence to

justify their conviction for the offences punishable under

Sections 323, 504 and 506 read with 34 of the Indian Penal

Code.

17. For the foregoing reasons, the findings recorded by

the trial court are not at all sustainable. Accordingly, the

impugned judgment and order dated 29.04.2019/30.04.2019

passed by the learned Additional Sessions Judge-I-cum- Special

Judge, Saharsa in POCSO 12 of 2018, corresponding to Mahila

P.S. Case No. 11 of 2018 is set aside. The appellants Akhilesh

Kumar and Nitish Kumar of Criminal Appeal (DB) No. 813 of

2019 stand acquitted of the charge of the offences punishable

under Sections 323/34, 504/34, 506/34, 376(D) and 448 of the

IPC and Section 6 of the POCSO Act, and appellants Siko

Yadav @ Suko Yadav and Vijay Mahto of Criminal Appeal (SJ)

No. 2121 of 2019 are acquitted of the charge of the offences

punishable under Sections 323/34, 504/34, 506/34 of the IPC.

18. These appeals are accordingly allowed. Patna High Court CR. APP (DB) No.813 of 2019 dt.09-01-2023

19. The appellants Akhilesh Kumar and Nitish Kumar

of Criminal Appeal (DB) No. 813 of 2019 are in custody. Let

them be released forthwith, if not required in any other case.

Appellants Siko Yadav @ Suko Yadav and Vijay Mahto of

Criminal Appeal (SJ) No. 2121 of 2019 are on bail. Consequent

upon their acquittal by the present judgment and order they

stand discharged of the liabilities of their respective bail bonds

and sureties if any.

                                         (Chakradhari Sharan Singh, J)


                                                   ( Khatim Reza, J)
Rajesh/Sankalp
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          12.01.2023
Transmission Date       12.01.2023