Sakir @ Sakir Khan @ Jhunnu vs The State Of Bihar
2023 Latest Caselaw 2909 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.112 of 2020
     Arising Out of PS. Case No.-68 Year-2018 Thana- MAHILA P.S. District- Araria
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Sakir @ Sakir Khan @ Jhunnu S/o Kabir @ Kabir Khan Resident of Village- Gachi Tola, Ward No.24, P.S.- Araria, Distt- Araria.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 24 of 2020 Arising Out of PS. Case No.-68 Year-2018 Thana- MAHILA P.S. District- Araria ====================================================== Md. Samsher Khan @ Shera @ Md. Shamsher Son of Salim Resident of - Gachi Tola Ward No. 24, P.S.- Araria, Distt - Araria.

... ... Appellant Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 112 of 2020) For the Appellant/s : Mr. Baleshwar Kamat, Advocate Mr. Kumar Uday Bhanu Ray, Advocate For the Respondent/s : Mr. Satya Narayan Prasad, APP Mr. Sujit Kumar Singh, APP (In CRIMINAL APPEAL (DB) No. 24 of 2020) For the Appellant/s : Mr.Anupa Nand Jha, Advocate Mr. Anil Kumar Tiwari, Advocate Mr. Alok Kumar, Advocate For the Respondent/s : Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 11-07-2023

Heard learned counsel for the appellants and learned

A.P.P. for the State.

Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

2. Both the criminal appeals arise out of common

judgment of conviction dated 21.11.2019 and order of sentence

dated 27.11.2019 and hence after being heard together, they are

being disposed of by a common judgment.

3. By the judgment of conviction dated 21.11.2019 and

order of sentence dated 27.11.2019 passed by Sri Sanjay Kumar-

I, 1st Addl. Sessions Judge-cum- Special Judge, Araria in Spl.

(POCSO) No. 32/18/ CIS No. 32/18 arising out of Araria Mahila

P.S. case No. 68/18, the appellants, namely, Sakir @ Sakir Khan

@ Jhunnu (appellant in Cr. Appeal (DB) No. 112 of 2020) and

Md. Samsher Khan @ Shera @ Md. Shamsher (appellant in Cr.

Appeal (DB) No. 24 of 2020) have been convicted for the

offences under section 376 of the Indian Penal Code (hereinafter

referred to as 'IPC') and Section 4 of the POCSO Act, 2012 and

have been sentenced to undergo rigorous imprisonment for 20

years and fine of Rs. 50,000/- each under Section 376 IPC has

been imposed and in case of default of payment of fine they have

been directed to further undergo simple imprisonment of six

months. The appellants have further been sentenced to undergo

rigorous imprisonment for 10 years and fine of Rs. 50,000/- each

under Section 4 of the POCSO Act has been imposed and in case

of default of payment of fine they have been directed to undergo Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

simple imprisonment of six months. But in view of Section 42 of

the POCSO Act, the appellants have been sentenced to undergo

rigorous imprisonment for 20 years and fine of Rs. 50,000/- each

under Section 376 IPC and in case of default of payment of fine

to further undergo simple imprisonment of six months. It was

further directed that the period undergone in jail custody during

the trial of the convicts will be adjusted in their sentences.

4. The prosecution case, as per the fardbeyan of

informant-victim recorded by A.S.I. Seema Kumari of Mahila

Police Station, Araria dated 11.07.2018 at 11.45 P.M. at Sadar

Hospital, Araria is that on 11.07.2018 at about 02:00 p.m., she

went to her maternal grandmother's house for taking books from

his younger brother and while she was returning from Azad

Nagar to her house, on the way when she reached near the clinic

of Dr. Satyabardhan, one boy namely Md. Jhunnu @ Sakir met

her and asked from where and for what purpose she was going.

Thereupon, at the iron shop near the clinic of Dr. Satyabardhan,

she felt dizziness and sat there. Thereafter Jhunnu @ Sakir gave

her water to drink and after taking water, she became senseless

and when she regained her sense, she found herself in Sadar

hospital, Araria and got knowledge that rape has been committed

upon her. On the basis of fardbeyan of the informant, Araria Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

Mahila P.S. case No. 68/18 dated 12.07.2018 was registered

against Jhunnu @ Sakir.

5. The police after investigation submitted charge-sheet

against the appellants Jhunnu @ Sakir and Samsher @ Shera.

Cognizance was taken by the Court under Section 376 of the

IPC and 3/4 of the POCSO Act. Charges were framed against the

appellants on which they pleaded not guilty and claimed to be

tried.

6. During the trial, in order to substantiate the charges

against the accused persons, the prosecution examined as many

as seven witnesses, namely, PW1 Mansoor Alam, PW2 Samina

Khatoon @ Samima, PW3 victim (informant), PW4 Dr. Reshma

Raja, PW5 Meera Kumari (S.H.O.), PW6 Seema Kumari

(investigating officer) and PW7 Md. Imityaz. The prosecution

has also produced exhibits namely Ext. 1 -signature of PW2 on

the fardbeyan, Ext.1/1 -signature of victim on the fardbeyan, Ext.

2- signature of witness victim on Section 164 CR.P.C. statement,

Ext. 3 -injury report, Ext. 4 -registration slip, Ext. 5 -discharge

summary of hospital, Ext. 6 -registration of the case, Ext. 7

-formal F.I.R., Ext. 8 -fardbeyan of victim recorded by A.S.I.

Seema Kumari, Ext. 9 - confessional statement of Sakir @

Jhunnu, Ext. 9/1 -confessional statement of appellant Samsher @ Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

Shera, Ext. 10 - requisition for fitness of appellant Samsher @

Shera, Ext. 11 - writing and signature of Seema Kumar (PW6) on

certified copy of Sanha. The defence has not produced any

witness in support of its defence. Thereafter, the statements of

the appellants were recorded under section 313 of the Cr.P.C. and

after conclusion of the trial, the learned trial Court convicted the

appellants in the manner stated above.

7. Learned counsel for the appellants has submitted that

the judgment of conviction suffers from several infirmities that

have been overlooked by the learned trial Court and therefore,

the impugned judgment is not sustainable in the eyes of law. It

has been contended that the PW 1 (father of the victim) and PW 2

(mother) are not eye witnesses to the alleged occurrence. Rather,

the said witnesses are hearsay witnesses. It has been further

pointed out that the victim of the case has turned hostile and has

not supported the case of the prosecution. Moreover, the Doctor

(PW 4) in his medical opinion has not given any conclusive

opinion regarding sexual assault. The learned counsel for the

appellant has further contended that there is no compliance of

section 34 (2) of POCSO and section 53A of Cr.P.C. and thus, the

benefit ultimately goes in favour of the appellant. Therefore, it

has been argued that there are severe lacunae in case of the Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

prosecution and the chain of circumstances do not unerringly

point towards the guilt of the appellants. Hence, the findings of

the learned trial Court are bad in law, wrong on facts, bereft of

legal reasoning, devoid of merit and the judgment of conviction

is fit to be set aside.

8. Learned APP for the State, on the other hand, has

submitted that the judgment of conviction and order of sentence

under challenge require no interference as the prosecution proved

the case beyond all reasonable doubts. It has been asserted that

the victim has specifically named the appellants in her statement

under section 164 of Cr.P.C. Therefore, there does not remain any

hiatus in the chain of circumstances and the guilt of the

appellants has been satisfactorily proved by the evidences

adduced during the course of trial and hence, there is no infirmity

in the judgment of conviction of the learned trial Court.

9. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough

examination of the entire material available on the record, the

following issues arise for consideration in the present appeal:

(I) Whether the material witnesses in their ocular

evidence have supported the case of the prosecution? Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

(II) Whether there is any positive medical finding to

hold that the victim has been subjected to rape?

(III) Whether there is any other evidence to hold the

appellants guilty?

(IV) Whether non-compliance of section 34(2) of

POCSO Act causes a dent in the case of the

prosecution?

(V) Whether the failure of the prosecution to conduct

medical examination of the appellants under section

53A of Cr.P.C. is fatal for the case?

10. With reference to issue no. I, it is found upon thorough

examination of the entire material available on the record that the

PW 1 (i.e. father of the victim) and PW 2 (mother of the victim)

are not eye witnesses to the incidence. The PW 1 has specifically

deposed that he came to know about the incident from others and

that the present case was lodged under the influence of co-

villagers due to suspicion. Furthermore, the PW 2 has deposed

that no rape was committed upon her daughter and upon knowing

the truth, they had retracted from the case. The PW 3, who is the

victim of this case, has turned hostile and has not supported the

case of the prosecution. She has specifically deposed during the

course of trial that on account of scorching heat of the sun, she Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

had fainted while coming to her house and the by-standers present

on the road had taken her to the hospital. Furthermore, the PW 7

has also turned hostile. The remaining witnesses, viz, PW 4, PW

5, PW 6 are formal witnesses and they have also not made any

statement about their presence at the place of occurrence at the

time of the incident.

Accordingly, the issue no. I is decided in the negative.

11. With reference to issue no. II, it is worthy to reproduce

the medical report of the victim (Ext.3) which reads as follows:

"i. Auxiliary and pubic hairs developed, breast developed.

Injury:- vaginal wall tear with laceration and bleeding per vagina fowl smelling discharge. Hymen ruptured. Microscopic Examination:- No spermatozoa either dead or alive seen in any of the micro field. Slide reported by Dr. Rajeev Basak, M.O. S.D.H.. Forbesganj. Pregnancy test negative, Ultrasound report- thick endometrium and cervicitis reported on 27-07-2018 after treatment at JNMCH Bhagalpur.

X-ray:- X-ray pelvis shows fused epiphysis of illiac crast.

X-ray wrist shows fused digital redial epiphysis. Discharge summary from JNMCH Bhagalpur:- As per the certified photocopy of D.T. presented by Seema Kumari, Incharge Officer, Mahila Thana, Araria- Hymen ruptured with posterior vaginal wall tear. In my opinion about sexual assault:- As per above finding it may be a case of sexual assault.

Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

In our opinion about age:- As per above finding, she is about 19-20 years of age."

From perusal of the said medical report of the victim, it is

found that the medical examination of the victim was conducted

within 24 hours of the incident, still no spermatozoa, dead or

alive was found. The pregnancy test is found to be negative.

Though the Doctor has found vaginal wall tear with laceration,

nonetheless, it has been opined that such vaginal tear may be

possible by fall from a cycle on a hard surface. As such, we find

that there is no positive medical finding to support the contention

of the prosecution that the victim was subjected to the

commission of rape.

Accordingly the issue no. II is decided in the negative.

12. With reference to issue no. III, it is found that there are

severe lacunae in the case of the prosecution. It has been stated in

the fardbeyan by the informant-cum-victim that she fell

unconscious near the clinic of Dr. Satyavardhan at a place where

the clothes ironing shop was present. However, the PW 6, while

giving description about the place of occurrence, has stated that

the victim's mother had said that the incident took place near the

house of one Akhtar Rahmani. Also, there is no mention of any

clinic or any shop in the description of place of occurrence by the

PW 6. In light of the facts stated above, the place of occurrence Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

becomes doubtful. It has been held by the Supreme Court in the

case of Syed Ibrahim versus State of Andhra Pradesh, reported

in (2008) 10 SCC 601, that when the place of occurrence itself

has not been established, it would not be proper to accept the

version of the prosecution. It is furthermore found, that the victim

in her statement under section 164 of Cr.P.C. has narrated a

different story about the occurrence. However, during the course

of trial, the victim has deposed that she was not fully conscious

when her statement was recorded under section 164 of Cr.P.C. and

she does not remember what had been written therein. As such,

there exists severe doubts on the genuineness, truthfulness and

veracity of the statement made under Section 164 Cr.P.C. and the

same cannot be relied upon as a cogent piece of evidence. We

also taken note of the fact that the time of occurrence as stated in

the fardbeyan is on 12.07.2018 at 14:00 hours, and the presence

of other people on the road has also been admitted by the victim.

Thus, the contention of the prosecution that the appellants were

last with the victim is found to be erroneous and does not inspire

the confidence of this Court. It is well settled legal position that in

order to bring home the charges on ground of 'last seen theory',

the prosecution has the onus to prove that the time gap since the

victim was last seen together with the accused and the subsequent Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

recovery of the victim is so less that there is no possibility of

intervention by any third person. Though no straight jacket

formula can be devised in such cases to determine as to what will

be considered a reasonable time, but it should be established in

light of the facts and circumstances of the case, that the chain of

circumstances is so proximately connected that the possibility of

intervention by any other individual within the time frame is ruled

out in entirety. In this regard, it would be relevant to refer to the

decision of Bodhraj vs. State of J&K reported in (2002) 8 SCC

45 wherein it was held that:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

Accordingly, the issue no. III is decided in the negative.

Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

13. With reference to issue no. IV, it is evident from

thorough examination of the entire material available on the

record that there is omission to comply with the statutory

mandate, as stipulated in section 34(2) of the POCSO Act.

Section 34(2) states:

"If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination."

In view of the authoritative pronouncement of the Hon'ble

Supreme Court in the case of Jarnail Singh versus State of

Haryana reported in (2013) 7 SCC 263, it is amply clear that the

word 'person' in section 34 (2) of the POCSO Act, will include

not only a child who is accused of committing offence, but also a

child who is victim of the offence. The legislative intent behind

making cautious use of the word 'person' has to be paid proper

homage by interpreting the word 'child' in a broader manner to

include even a 'child victim'. Thus, section 34 (2) of the POCSO

Act casts a positive duty on the Special Court to satisfy itself

with recorded reasons as to whether the 'person' is a child or not.

Establishing minority of the victim child is a condition precedent

to proceeding with a case under the POCSO Act. However, in the

present case, there is no such finding of the learned trial court as Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

to whether the victim was a child at the time of alleged

occurrence. Non-compliance of such procedural requirements per

se amounts to failure of justice and the benefit would certainly go

in favour of the accused.

Accordingly, the issue no. IV is decided in the affirmative.

14. With reference to issue no. V, it is found upon thorough

examination of the entire material available on the record that

there is failure on part of the prosecution to subject the appellants

to medical examination, as stipulated under section 53A of

Cr.P.C. In this context, it is pertinent to refer to decision of the

Hon'ble Supreme Court, passed in the case of Rajendra

Pralhadreo Wasnik versus State of Maharashtra reported in

(2019) 12 SC 460, wherein it has been observed that the

prosecution would be well advised to take advantage of section

53A of Cr.P.C. where reasonable grounds exist to believe that

medical examination will afford sufficient evidence. It has also

been observed in the case of Krishna Kumar Mallick versus

State of Haryana reported in (2011) 7 SCC 130 that after the

incorporation of section 53A of Cr.P.C, it becomes necessary for

the prosecution to conduct medical examination as it would

facilitate the prosecution to prove its case against the accused.

Furthermore, three judge bench of the Supreme Court in the case Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

Chotkau versus State of Uttar Pradesh reported in 2022 SCC

OnLine SCC 1313 in para no. 80 has observed that failure of the

prosecution to subject the appellant to medical examination

under Section 53A of Cr.P.C is certainly fatal for the

prosecution's case especially when the ocular evidence is found

to be not trustworthy. We have also taken note of the recent

judgment of the Hon'ble Supreme Court passed in the case of

Prakash Nishad @ Kewat Zinak Nishad versus State of

Maharashtra in Criminal Appeal no. 1636-1637 of 2023 vide

judgment dated 19.05.2023 wherein it was observed that medical

examination of the appellant under Section 53A of Cr.P.C would

enable the Court to ascertain the involvement of appellant and

where there is failure to subject the appellants to medical

examination, it would create a gap in the chain of circumstances.

Accordingly, the issue no. IV is decided in the affirmative.

15. Every trial is a voyage of discovery in which truth is the

ultimate quest. In the present case, on the basis of the discussions

made above, we are of the considered opinion that the

prosecution has utterly failed to prove any cogent evidence to

substantiate the allegations raised against the appellants.

Furthermore, there is failure on part of the prosecution in

complying with the statutory mandate as provided under section Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

53A of Cr.P.C. and section 34 (2) of POCSO Act. We find it

pertinent to emphasize at this juncture that the procedural

requirements cannot be taken to be mere procedural formalities.

Rather, they are the procedural safeguards provided in the justice

delivery mechanism in order to prevent excesses by the State

machinery. Non-compliance of such procedural requirements per

se amounts to failure of justice. Holding the appellants hostage to

the uncorroborated allegations and latches on part of the

prosecution is against justice, fairness and reasonableness. As

such, we are of the firm view that the dark clouds of suspicion

looming large on the story of the prosecution have poured down

heavily to wash away the entire dust ridden allegations. The

conviction of the appellants in the present case is not sustainable

in the eyes of law.

16. Hence, both the appeals stand allowed and the judgment

of conviction dated 21.11.2019 and order of sentence dated

27.11.2019 passed by Sri Sanjay Kumar- I, 1st Addl. Sessions

Judge-cum- Special Judge, Araria in Spl. (POCSO) No. 32/18/

CIS No. 32/18, arising out of Araria Mahila P.S. case No. 68/18,

are set aside.

17. Appellant Sakir @ Sakir Khan @ Jhunnu of Cr. Appeal

(DB) No. 112 of 2020 is in jail custody, he is directed to be Patna High Court CR. APP (DB) No.112 of 2020 dt.11-07-2023

released from custody forthwith, if not wanted in any other case.

Since, appellant Md. Samsher Khan @ Shera @ Md. Shamsher

of Cr. Appeal (DB) No. 24 of 2020 is on bail, he is discharged

from the liability of his bail bonds.

(Sudhir Singh, J)

( Chandra Prakash Singh, J) Pankaj/-

AFR/NAFR                AFR
CAV DATE                03.07.2023
Uploading Date          12.07.2023
Transmission Date       12.07.2023