Deepak Kumar vs The State Of Bihar
2023 Latest Caselaw 1228 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.1011 of 2022
Arising Out of PS. Case No.-121 Year-2015 Thana- RAMNAGAR District- West Champaran
======================================================

DEEPAK KUMAR S/o Raghunath Sah R/o village- Sabuni Chowk, P.S.- Ramnagar, District- West Champaran.

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

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

For the Appellant/s : Mr.Bimlesh Kumar Pandey, Advocate For the Respondent/s : Smt Abha Singh, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY CAV JUDGMENT Date : 29-03-2023

1. The present appeal has been preferred against the

judgment of conviction dated 07.02.2022 and order of sentence

dated 08.02.2022 passed by learned Additional Sessions Judge, 7 th

cum Special Judge, Protection of Children from Sexual Offences

Act (hereinafter referred to as POCSO), Bettiah, West Champaran

in Ramnagar P.S. Case No. 121 of 2015, CIS No. 04/2018 whereby

and whereunder the learned trial court has found the appellant

guilty for the offences punishable under Sections 366A and 376 of

the Indian Penal Code (hereinafter referred to as IPC) and under

Section 4 of POCSO Act and sentenced him to undergo ten years

imprisonment for the offence punishable under Section 366A of

the IPC, to undergo seven years rigorous imprisonment for the

offence punishable under Section 376 of the IPC and to undergo

ten years rigorous imprisonment along with fine of Rs. 20,000/- Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

for the offence punishable under Section 4 of POCSO Act and in

default of payment of fine he has to suffer two months additional

imprisonment. All the sentences were ordered to run concurrently.

2. The name of informant and victim have been

concealed in the present judgment to protect their prestige and

dignity.

3. A written report submitted to S.H.O., Ramnagar

Thana, Bagha, West Champaran under the thumb impression of

informant is the basis for registration of First Information Report

(hereinafter referred to as FIR).

4. According to written report of informant (PW-9), the

occurrence is of 08.06.2015 at about 7:00 PM for which

information was given on 10.06.2015 at 17 hours and immediately

whereafter FIR was registered. The prosecution case in brief is that

victim (daughter of informant/PW-3) aged about 14 years was

kidnapped by the appellant with intention of marriage. It is further

claimed that appellant was present at his house till morning of

09.06.2015. It is further claimed on the basis of communication

held between informant and appellant that informant's daughter

would reach at her house. It is further stated that mobile number as

mentioned in the FIR was available with daughter of informant

(PW-3).

Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

5. On the basis of written report of informant,

Ramnagar P.S. Case No. 121 of 2015 was initially registered under

Section 366(A) of the IPC and later on Sections 376/34 of IPC and

4 of POCSO Act were added. Routine investigation followed.

Statement of witnesses came to be recorded and on completion of

investigation appellant along with acquitted accused namely Imran

Ali came to be charge sheeted under Sections 366A, 376/34 of the

IPC and 4 of POCSO Act. Rest others were not sent up for trial.

Thereafter, the learned trial court took cognizance for the said

offences against the accused persons and pleased to frame charges

for the above stated offences. The charges were read over and

explained to the accused persons to which they pleaded not guilty

and claimed to be tried.

6. In order to bring home guilt of the accused persons,

prosecution has examined altogether nine witnesses. PW-1 Lal

Babu Prasad, PW-2 Subash Gupta, PW-3 (victim), PW-4

Achchelal Sah, PW-5 Dhruv Prasad, PW-6 Afroj Alam, PW-7

Sonal Sah, PW-8 Dr. Rashmi, PW-9 (informant). Defence of the

accused persons as gathered from the line of cross examination of

prosecution witnesses as well as from statement under Section 313

of the Cr.P.C. is that of total denial. However, they did not enter in

the defence.

Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

7. After hearing the parties, the learned trial court was

pleased to convict the appellant-accused and to sentence him as

indicated in the opening paragraph of this judgment. However, co-

accused Imran Ali stood acquitted by the learned trial court by the

same judgment.

8. Heard Mr. Bimlesh Kumar Pandey learned counsel

appearing for the appellant at sufficient length of time. Following

submissions were made on behalf of learned counsel for the

appellant:-

Learned counsel for the appellant submitted that the

prosecution completely failed to discharge its onus of proving

beyond all reasonable doubt that the victim was minor on the date

of occurrence. On the said point he further submitted that victim

claimed herself that her age is 20 years while adducing evidence as

PW-3 on 10.11.2016. The learned trial court has also recorded the

age of the victim as 20 years while taking the evidence of PW-3

(victim). The prosecution has not challenged or even suggested the

victim (PW-3) on the point of her age as she has claimed herself to

be 20 years old. The informant (PW-9) has not stated the date of

birth of victim even on specific question being raised. He further

submitted that Medical Board suggested the age of the victim

between 17-18 years showing variation would not be sufficient to Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

come to any conclusion about the exact age. On the point of age

variation the learned counsel for the appellant relied upon

judgment of Hasmuddin and others vs. The State of Bihar

reported in PLJR 2018 (3) 62 and specifically referred para 17 of

the said judgment in which it has been mentioned that victim has

been found in between 17 years to 19 years, which is subject to

variance of two years and the age befitting with the defence case is

to be accepted. Learned counsel submitted that in light of said

observation, variation in age as opined by medical evidence should

go in favour of the appellant. Learned counsel for the appellant

further submitted that neither victim nor any witness has given

evidence of physical relation of victim with the appellant and no

evidence to the effect that appellant had induced the minor girl

with intention or knowledge that she will be forced or seduced to

illicit intercourse with any other person, hence, there is no question

for conviction under Sections 376, 366(A) of the IPC and Section

4 of POCSO Act. Learned counsel of the appellant further

submitted that PW-1, PW-2, PW-3(victim), PW-4, PW-5 and PW-7

have not supported the case of the prosecution and they have been

declared hostile. PW-3 victim has not supported the charge

levelled against the appellant in her deposition. Md. Saheb who

was the witness on the written report has not been examined nor Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

any explanation for his non examination was given by the

prosecution side. The Investigating Officer has not been examined

which has seriously caused prejudice to the defence since defence

has got no proper opportunity to contradict the evidence of

witnesses. No evidence has been deposed regarding sexual

intercourse. PW-6 is a hearsay witness whose evidence cannot be

basis for conviction and PW-9 (informant) who has proved his

thumb impression as Ext-1 and he has deposed that he is not aware

as to what has been written in the initial version of the story of the

prosecution. Learned counsel of the appellant further submitted

that in the present case appellant is not guilty for taking away the

victim as there is no averment made by the victim in her

deposition that appellant is responsible for taking away the victim

rather she went to Bettiah with her own volition. To buttress the

said submission counsel of the appellant relied upon the case of S.

Varadarajan vs. State of Madras reported in AIR 1965, 942 and

referred paragraphs no. 7 and 9 of the said judgment in which at

para 7 it has been clarified that "when the victim willingly

accompanied the appellant, law did not caste upon him duty of

taking her back to her father's house or even of telling her not to

accompany him as she was on the verge of attaining majority and Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

she was capable of knowing what was good and what was bad for

her."

9. Learned counsel of the appellant further submitted

that at para 9 of the said judgment it is clarified that "there is a

distinction between taking and allowing a minor to accompany a

person. In order to prove taking away from the keeping of lawful

guardian something more has to be shown in a case of this kind

and that is some kind of inducement held out by the accused

person or an active participation by him in the formation of

intention of the minor to leave the house of the guardian."

10. Learned counsel further submitted that the court

below has not ascertained the age of the victim as per statutory

provision and there is no finding with regard to age of the victim

in judgment under challenge. He further submitted that statement

under Section 164 of the Cr.P.C. is required to be specifically put

to contradict the witnesses and the said statement is not substantive

piece of evidence rather it can be used to corroborate and

contradict the witnesses and on the said point learned counsel for

the appellant relied upon a decision of State of Delhi vs Shri Ram

Lohia reported in AIR 1960 SC 490. He further submitted that

presumption under Section 29 of POCSO Act is rebuttable in law

and for the same he has relied upon judgment of Navin Dhaniram Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

Baraiye vs. The State of Maharashtra reported in 2018 2 AIR

(Bom)(R)(Cri) 897 in which it has been held that "statutory

presumption would stand activated only if prosecution proves the

foundational facts and then, even if the statutory provision is

activated, the burden of accused is not to rebut the presumption

beyond reasonable doubt."

11. Learned counsel for the appellant further submitted

that the prosecution did not place the contents of statement of

victim recorded under Section 164 of the Cr.P.C. while cross

examining the victim. He further submitted that in the present case

audio/video footage with regard to recording of statement of

victim has not been done which would be proved fatal for the

prosecution in view of Section 26(4) of the POCSO Act.

12. Smt. Abha Singh, learned Additional Public

Prosecutor appearing for the State submitted that PW-6, PW-8 and

PW-9 have supported the case of the prosecution and they have

also supported the age of the victim. She further submitted that at

the time of incident victim was minor. She further submitted that

PW-9 (informant) clearly stated that victim was kidnapped by the

appellant. She further submitted that in her statement recorded

under Section 164 of the Cr.P.C. the victim has supported story of

prosecution and victim further stated that she had been pressurized Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

to give contrary statement under Section 164 of the Cr.P.C. but she

gave her statement voluntarily under Section 164 of the Cr.P.C.

Learned Additional Public Prosecutor further submitted that

finding of the trial court is just and due appreciation of the

evidence and impugned judgment is based on sound principle of

law and hence the impugned judgment does not require any

interference.

13. I have perused the impugned judgment, order of trial

court and lower court records. I have given my thoughtful

consideration to the rival contention made on behalf of the parties

as noted above.

14. Based on the scrutiny of evidence adduced at the

trial, I find substance in submission made on behalf of the

appellant that the prosecution failed to prove, beyond all

reasonable doubts, the fact that the victim was minor as on the date

of occurrence. The Hon'ble Supreme Court has held in case of

Jarnail Singh v. State of Haryana reported in (2013) 7 SCC 263

that "though Rule 12 of the Juvenile Justice (Care and Protection

of Children) Rules, 2007 have been framed under the provisions of

Juvenile Justice (Care and Protection of Children) Act, 2000

(hereinafter referred to as Act 2000) is applicable to determine the

age of child in conflict with law, the aforesaid provision should be Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

the basis for determination of age even of a child who is a victim

of crime. The Court remarked that there was hardly any difference

insofar as the issue of minority was concerned, between a child in

conflict with law, and a child who is a victim of crime. Paragraph

22 and 23 of the said decision in case of Jarnail Singh (supra) can

be usefully referred to for clarity:-

"22. On the issue of determination of

age of a minor, one only needs to make a

reference to Rule 12 of the

Juvenile Justice (Care and Protection of

Children) Rules, 2007 (hereinafter referred to as

"the 2007 Rules"). The aforestated 2007 Rules

have been framed under Section 68(1) of the

Juvenile Justice (Care and Protection of

Children) Act, 2000. Rule 12 referred to

hereinabove reads as under:

"12. Procedure to be followed in

determination of age- (1) in every case

concerning a child or a juvenile

in conflict with law, the court or the Board or as

the case may be, the Committee referred to in

Rule 19 of these Rules shall determine the age of Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

such juvenile or child or a juvenile in conflict

with law within a period of thirty days from the

date of making of the application for that

purpose.

(2) The court or the Board or as the

case may be the Committee shall decide the

juvenility or otherwise of the juvenile or the child

or as the case may be the juvenile in conflict with

law, prima facie on the basis of

physical appearance or documents, if available,

and send him to the observation home or in jail.

(3) In every case concerning a child or

juvenile in conflict with law, the age

determination inquiry shall be conducted by the

court or the Board or, as the case

may be, the Committee by seeking evidence by

obtaining--

(a)(i) the matriculation or equivalent

certificates, if available; and in the absence

whereof;

Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

(ii) the date of birth certificate from the

school (other than a play school) first attended;

and in the absence whereof;

(iii) the birth certificate given by a

corporation or a municipal authority or a

panchayat;

(b) and only in the absence of either (i),

(ii) or (iii) of clause (a) above, the medical

opinion will be sought from a duly constituted

Medical Board, which will declare the age of the

juvenile or child. In case exact assessment of

the age cannot be done, the court or the Board

or, as the case may be, the Committee, for the

reasons to be recorded by them, may, if

considered necessary, give benefit to the child

or juvenile by considering his/her age on lower

side within the margin of one year,

and, while passing orders in such case

shall, after taking into consideration such

evidence as may be available, or the medical

opinion, as the case may be, record a finding in

respect of his age and either of the evidence Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

specified in any of the clauses (a)(i), (ii), (iii)

or in the absence whereof, clause (b) shall be the

conclusive proof of the age as regards such child

or the juvenile in conflict with law.

(4) If the age of a juvenile or child or

the juvenile in conflict with law is found to be

below 18 years on the

date of offence, on the basis of any of the

conclusive proof specified in sub-rule (3), the

court or the Board or as the case may be the

Committee shall in writing

pass an order stating the age and declaring the

status of juvenility or otherwise, for the purpose

of the Act and these Rules and a copy of the order

shall be given to such juvenile or the person

concerned.

(5) Save and except where, further

inquiry or otherwise is required, inter alia, in

terms of Section 7-A, Section 64 of the Act and

these Rules, no further inquiry shall be conducted

by the court or the Board

after examining and obtaining the certificate or Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

any other documentary proof referred to in sub-

rule (3) of this Rule.

(6) The provisions contained in this

Rule shall also apply to those disposed of cases,

where the status of juvenility has not been

determined in accordance with the provisions

contained in sub-rule (3) and the Act, requiring

dispensation of the sentence under the Act for

passing appropriate order in the interest of the

juvenile in conflict with law."

23. Even though Rule 12 is strictly

applicable only to determine the age of a child in

conflict with law, we are of the view that the

aforesaid statutory provision should be the basis

for determining age, even of a child who is

a victim of crime. For, in our view, there is hardly

any difference insofar as the issue of minority is

concerned, between a child in conflict with law,

and a child who is a victim of crime. Therefore, in

our considered opinion, it would be just and

appropriate to apply Rule 12 of the

2007 Rules, to determine the age of the Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

prosecutrix VW, PW 6. The manner of

determining age conclusively has

been expressed in sub-rule (3) of Rule 12

extracted above. Under the aforesaid provision,

the age of a child is ascertained by adopting the

first available basis out of a number of options

postulated in Rule 12(3). If, in the scheme of

options under Rule 12(3), an option is

expressed in a preceding clause, it has overriding

effect over an option expressed in a subsequent

clause. The highest rated option available would

conclusively determine the age of a minor. In the

scheme of Rule 12(3), matriculation (or

equivalent) certificate of the child concerned is

the highest rated option. In case, the

said certificate is available, no other evidence

can be relied upon. Only in the absence of the

said certificate, Rule 12(3) envisages

consideration of the date of birth entered in the

school first attended by the child. In case such an

entry of date of birth is available, the date of

birth depicted therein is liable to be treated as Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

final and conclusive, and no other material is to

be relied upon. Only in the absence of such entry,

Rule 12(3) postulates reliance on a birth

certificate issued by a corporation or a municipal

authority or a panchayat. Yet again, if

such a certificate is available, then no other

material whatsoever is to be taken into

consideration for determining the age of the child

concerned, as the said certificate would

conclusively determine the age of the

child. It is only in the absence of any of the

aforesaid, that Rule 12(3) postulates the

determination of age of the child concerned, on

the basis of medical opinion."

15. Identical provision is thereunder 94 of Juvenile

Justice Care and Protection of Children Act, 2015 which came into

effect from 15.01.2016. In the present case, date of occurrence is

08.06.2015. However, in the present case Rule 12 of Rules 2007

was applicable.

16. Apparently, no exercise was carried out by the

prosecution to establish that the victim was minor as on the date of

occurrence by following the procedure prescribed under the Act in Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

the light of reasoning put forth by the Supreme Court in case of

Jarnail Singh (Supra). Further, in case of Rajak Mohammad vs.

State of H.P. reported in (2018) 9 SCC 248 the Hon'ble Supreme

Court has noted that the age determined on the basis of a

radiological examination may not be an accurate determination

and sufficient margin either way has to be allowed. The Supreme

Court, taking into account the facts and circumstances of that case

opined in the said case that the report of radiological examination

left room for ample doubt with regard to the correct age of

prosecutrix. In such case, the benefit of aforesaid doubt, naturally,

must go in favour of the accused. In the case of Sunil v. the State

of Haryana reported in AIR 2010 SC 392, the Hon'ble Supreme

Court observed that conviction cannot be based on an approximate

age of the victim. In State of Madhya Pradesh vs. Munna @

Shambhoo Nath reported in (2016) 1 SCC 696, the Hon'ble

Supreme Court held that the evidence of approximate age of the

victim would not be sufficient to any conclusion about the exact

age of the victim.

17. In the present case, the prosecutrix was a literate girl

as she has signed everywhere. Therefore, she must have been

getting education somewhere. It is not the prosecution case or

evidence that prosecutrix did not attend any school. The finding Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

recorded by the doctor in the medical report which has determined

the victim's age to be 17-18 years based on radiological

examination and opinion of the dentist is not available in the

medical report and said finding in court opinion cannot be treated

to be accurate for the purpose of applying the provision of POCSO

Act. As a matter of fact, no effort was made by the prosecution to

establish the age of the victim in accordance with statutory

provision. It is necessary to evaluate, analyze and screen out the

evidences of witnesses adduced before the trial court in the light of

the offence punishable under Section 366A, 376/34 of the IPC and

4 of POCSO Act.

18. PW-1 Lal Babu Prasad during examination in chief

has stated that he did not know about the occurrence and his

statement was not recorded by the police and he has been declared

hostile. In this way he has not supported the story of prosecution.

19. Evidence of PW-2 Subash Gupta is quite similar

with the evidence adduced by the PW-1. In this way he has not

supported the case of the prosecution and he has been declared

hostile.

20. PW-3 is victim of the present case. She has stated in

examination in chief that the occurrence took place one year ago

and she went to Bettiah with her own volition and she has stated Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

that appellant took away her. She has also stated that her statement

was recorded in the court and she has identified her signature on

the said statement. She has further stated that she did not give her

statement in court voluntarily. It is stated by her that she was

threatened by daroga and her family member that if she did not

give her statement else she would be sent to jail. She has been

declared hostile and she has denied the suggestion that she has

given her statement in order to save the accused. In the statement

under Section 164 of the Cr.P.C. she has stated that appellant took

away by act of inducement for the purpose of marriage. She has

further stated that Imran took away her alongwith Deepak

(appellant) on motorcycle to station and she has stated that Deepak

(appellant) took away to hotel and committed wrong against her.

21. From perusal of statement under Section 164 of the

Cr.P.C., it is crystal clear that her testimony during adducing

evidence before the trial court is totally inconsistent with the

statement recorded under Section 164 of the Cr.P.C. The statement

of victim before the trial court has not supported story of

prosecution and she has been declared hostile.

22. It is well settled law that evidence given in court on

oath coupled with opportunity of cross examination to the accused

has great sanctity and that is why same is called substantive Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

evidence. It is well settled by catena of judicial pronouncement

that statement under Section 154 Cr.P.C. or under 161 Cr.P.C. or

under 164 Cr.P.C. can be used for corroboration and contradiction

only. In R. Shaji vs. State of Kerala reported in (2013) 14 SCC

266, the Hon'ble Supreme Court said that a proposition to the

effect that if statement of a witness is recorded under Section 164

of the Cr.P.C., his evidence in court should be discarded, is not at

all warranted. As the defence had no opportunity to cross examine

the witness whose statement was recorded under Section 164

Cr.P.C. or under Section 161 Cr.P.C., such statements cannot be

treated as substantive evidence.

23. Statement of victim cannot be trustworthy in the

light of the fact adduced during evidence before the court is quite

inconsistent with the story of prosecution. Her evidence does not

inspire confidence and such evidence cannot be trustworthy.

24. Statement of PW-4 Achchelal Sah is quite similar to

the statement made by PW-1 and PW-2 and he has also been

declared hostile as he has not supported the case of the

prosecution.

25. Statement of PW-5 Dhruv Prasad is quite similar to

the statement made by PW-1 and PW-2 and he has also not Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

supported the case of the prosecution and has been declared

hostile.

26. PW-6 Afroj Alam has stated that the occurrence took

place one year ago at about 7 PM and victim fled away with

Deepak (appellant) and she at the relevant time was 14 years of

age. He further stated that the appellant told that victim would

reach next day but she did not return till today. During cross

examination he stated that he could not tell as to who has pointed

out regarding the said occurrence as he has not seen the

occurrence. From perusal of evidence adduced by PW-6 it is

crystal clear that he is not eye witness to the actual occurrence

rather he is hearsay witness of the said occurrence.

27. Evidence adduced by PW-7 Sonal Sah is quite

similar to the evidence adduced by PW-1 and PW-2. He has also

been declared hostile as he did not know the occurrence and his

statement has not been recorded by the police.

28. PW-8 Dr. Rashmi has examined the victim. She has

opined that no injury was found on her body and her private parts

and in her opinion on the basis of pathological and radiological

findings, there is no sign of sexual assault and the age of the victim

is about 17-18 years. Medical report is marked as Exhibit-X. Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

29. PW-9 is none else than informant of the present

case. He has stated that he is informant of the case and victim is

her daughter and at the time of occurrence, the age of the victim

was 14 years and occurrence took place four years ago at 7 PM.

He has stated that victim went for natural call and from there she

was found missing. He has further stated that he came to know that

her daughter went away with Deepak appellant. This witness (PW-

9) went to the father of Deepak and requested for getting back her

daughter. The father of Deepak Kumar (appellant) told that he did

not know. Deepak was also present there. It was assured by

Deepak (appellant) to bring back the victim at 4 O'clock but

appellant was not found at there after 4 O'Clock. He further stated

that he went to thana and got the application written which was

read over and explained over to him and he has put thumb

impression which is marked as Exhibit-1. He has also identified

the signature of the victim made under section 164 of the Cr.P.C.

which has been marked as Exhibit-2. He has also stated that Imran

was also associated with Deepak in the said occurrence and victim

was taken away from the motorcycle of Imran. During cross

examination he has stated that he did not know as to who has

written the application. He has further stated that he did not know

as to what is written in the said application. When specific Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

question was asked regarding the date of birth of his daughter, he

has stated that he did not know the date of birth of his daughter but

he has stated that her age was 14 years on the date of occurrence.

He has also stated that he has not seen the taking away of victim.

From perusal of statement of informant (PW-9) upon whose

statement the initial version of prosecution story has been set into

motion, his version during examination in chief is quite

inconsistent with the initial version of story of prosecution on the

point that there is no whispering regarding the point of time upon

which victim would be returned back to her house by the appellant

but during examination in chief he has clearly stated that it was

stated by the appellant that the victim would return back till 4

O'Clock. It is also stated by PW-9 (informant) that Deepak Kumar

(appellant) went away after 4 O'Clock but during initial version of

prosecution story it is stated that the said appellant was available

till early morning of 09.06.2015 which is next date after the

occurrence which took place on 08.06.2015. In this way the

statement of PW-9 which has been adduced during the course of

trial is quite inconsistent with the initial version of prosecution

story. During cross examination he has clearly stated that he did

not know the contents of application and though he has

specifically mentioned that the said application was read over and Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

explained to him and he has put signature after being fully aware

of the facts and contents of the said application. In this way the

story of prosecution creates doubt surrounded with suspicion

regarding the occurrence which has been stated in the initial

version of the prosecution story. Even the FIR is treated as correct

information for the purpose of prosecution, it is held in the catena

of judgment passed by the Hon'ble Supreme Court that FIR is

never treated as substantive piece of evidence it can only be used

for corroborating and contradicting its maker when he appears in

the court as witness as it was held in Dharma Rama Bhagare v.

State of Maharashtra reported in (1973) 1 SCC 537.

30. Now, in the light of evidence adduced by the

prosecution it is crystal clear that PW-1, PW-2, PW-3, PW-4, PW-5

and PW-7 have not supported the case of the prosecution and they

have been declared hostile. PW-6 and PW-9 (informant) have not

been declared hostile but they themselves have stated that they

have not seen the actual occurrence. PW-6 has not even pointed

out that as to who has told him about the said occurrence and

statement of PW-9 is very contradictory that he did not know the

contents of the application upon which he has put thumb

impression. On the said score the whole prosecution story is full of

doubt. The statement of victim which was adduced before the trial Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

court is quite inconsistent with the statement under Section 164

Cr.P.C. which does not inspire confidence.

31. From perusal of the FIR it is crystal clear that initial

version of the prosecution story has been narrated by none else

than informant who is father of the victim himself but so far as

deposition of PW-9 (informant) is concerned, during cross

examination informant has stated that neither he is aware of the

author of the FIR nor does he know about the contents of the same

then the question arises who has prepared the initial version of FIR

which puts question mark on the said version of prosecution. From

perusal of record it is crystal clear that out of eight factual

witnesses, PW-1, PW-2, PW-3, PW-4, PW-5 and PW-7 (six in

numbers) have been declared hostile and so far as PW-9

(informant) and PW-6 are concerned, they have not been declared

hostile but they are not eye witness of the actual occurrence. PW-9

who is informant of the case during cross examination he has

stated that he did not know who is the author of the written report

and he cannot point out what is mentioned in the said written

report which makes the whole prosecution story doubtful. One of

the witnesses namely Md. Saheb who puts signature on written

report has not been examined. Apart from the said discussions

made above, story of prosecution creates doubt in light of the fact Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

that occurrence took place on 08.06.2015 and information

regarding the said occurrence was given to concerned police

station on 10.06.2015 when place of occurrence is merely 2 km

away from the concerned police station. He further submitted that

in one column of formal FIR, there is interpolation regarding

entries and no plausible explanation has been given regarding the

said delay in lodging the FIR and said interpolation.

32. It is worth to note that I.O. has not been examined

and contention of learned counsel of the appellant is quite

sustainable in the light of the fact that on account of non

examination of the investigating officer, the place of occurrence

has not been identified and the veracity of the prosecution

witnesses has not been tested as defence has not got opportunity to

test the veracity of prosecution witnesses in the light of oral

statement given before the investigating officer.

33. Learned counsel of the appellant submitted that in

light of Section 53 A of the Cr.P.C., the appellant has not been

examined and non examination of appellant was certainly fatal to

prosecution case.

34. I consider at this juncture useful to refer to Section

53 A of the Cr.P.C., which ordains that when a person is arrested

on a charge of committing an offence of rape or an attempt to Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

commit rape and there are reasonable grounds for believing that an

examination of his person will afford evidence as to the

commission of such offence, it shall be lawful for a registered

medical practitioner, as mentioned in the said provision. Section

53 A of the Cr.PC., read as under:-

53-A. Examination of person accused of rape

by medical practitioner-(1) When a person is arrested on

a charge of committing an offence of rape or an attempt to

commit rape and there are reasonable grounds for

believing that an examination of his person will afford

evidence as to the commission of such offence, it shall be

lawful for a registered medical practitioner employed in a

hospital run by the Government or by a local authority and

in the absence of such a practitioner within the radius of

sixteen kilometers from the place where the offence has

been committed by any other registered medical

practitioner, acting at the request of a police officer not

below the rank of a sub-inspector, and for any person

acting in good faith in his aid and under his direction, to

make such an examination of the arrested person and to

use such force as is reasonably necessary for that purpose.

Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

(2) The registered medical practitioner

conducting such examination shall, without delay, examine

such person and prepare a report of his examination giving

the following particulars, namely:-

(i) the name and address of the accused and of

the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the

accused,

(iv) the description of material taken from the

person of the accused for DNA profiling, and

(v) other material particulars in reasonable

detail.

(3) The report shall state precisely the reasons

for each conclusion arrived at.

(4) The exact time of commencement and

completion of the examination shall also be noted in the

report.

(5) The registered medical practitioner shall,

without delay, forward the report to the investigating

officer, who shall forward it to the Magistrate referred to in Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

Section 173 as part of the documents referred to in clause

(a) of sub-section (5) of that section.]

35. It is true that said provision is not mandatory in

character, in court's opinion the said provision enables the

prosecution to conduct the examination of victim in a manner as to

substantially establish a charge of committing an offence of rape.

36. In this respect, it is necessary to discuss oft quoted

judgment of Hon'ble Supreme Court in case of Chotkau v. State

of Uttar Pradesh reported in AIR 2022 SC 4688 whereby it has

been observed that failure of the prosecution to subject the

appellant to medical examination was certainly fatal to the

prosecution's case especially when the ocular evidence was found

to be not trustworthy.

37. The contention of appellant in the light of Section 29

of POCSO Act is quite tenable in the light of fact that there was

failure on the part of prosecution to establish the essential

fundamental facts to attract the provision of POCSO Act.

38. From all counts from the analysis of evidence

adduced during trial, contention of learned counsel of the appellant

it is crystal clear that offence under Section 366A, 376 of the IPC

and 4 of POCSO Act have not been proved beyond reasonable

doubt and benefit of doubt goes in favour of the appellant.

Patna High Court CR. APP (SJ) No.1011 of 2022 dt.29-03-2023

39. In the result, in my view, prosecution case suffers

from several infirmities, as noticed above, and it was not a fit case

where conviction could have been recorded. The learned trial court

fell in error of law as well as appreciation of facts of the case in

view of settled criminal jurisprudence. Hence, impugned judgment

and order of sentence are hereby set aside and this appeal stands

allowed. The appellant is in custody. Let him be released

forthwith, if he is not warranted in any other case.

(Alok Kumar Pandey, J)

shahzad/-

AFR/NAFR                AFR
CAV DATE                21.03.2023
Uploading Date          29.03.2023
Transmission Date       29.03.2023