Amar Sahani @ Amar Kumar vs The State Of Bihar
2023 Latest Caselaw 2029 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.143 of 2021
  Arising Out of PS. Case No.-277 Year-2019 Thana- BOCHAHAN District- Muzaffarpur
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AMAR SAHANI @ AMAR KUMAR Son of Chandradev Sahni Resident of Village- Ramdas Majhauli, P.S.- Bochaha, District- Muzaffarpur.

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

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

For the Appellant/s : Mr. Ajay Kumar Thakur, Adv Md. Imtiyaz Ahmad, Adv Mr. Ritwik Thakur, Adv Mrs. Vaishnavi Singh, Adv For the Respondent/s : Mr. Abhimanyu Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE RAJIV ROY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 01-05-2023 Heard learned counsel for the appellant and learned

APP for the State.

By the impugned judgement of conviction dated

28.02.2020 and order of sentence dated 29.02.2020 passed by

learned Additional District & Sessions Judge-1st Cum Special

Judge (POCSO Act), Muzaffarpur in Trial No. 22 of 2020

arising out of Bochaha P.S. Case No. 277 of 2019 corresponding

to G.R. Case No. 85 of 2019, the appellant has been convicted

and sentenced as under:

Patna High Court CR. APP (DB) No.143 of 2021 dt.01-05-2023

Conviction Sentence under Imprisonment Fine (Rs.) In default of Section fine under Section Rigorous 10,000/- RI for 6 376D of the Imprisonment for months IPC and 20 years Section 6 of the POCSO Act

The victim is the informant of the case on whose

fardbeyan recorded by Sub-Inspector of Bochaha Police Station,

Bochaha P.S. Case No. 277 of 2019 came to be registered. She

alleged in her fardbeyan that when she was sleeping with her

parents in her house after having had the dinner at about 11.00

P.M. in the night, the appellant and three associates entered into

her house, closed her mouth and abducted her. They took her to

a Litchi orchard and committed rape upon her one by one. The

F.I.R. was registered for the offences punishable under Section

376 of the IPC, 4/8 of POCSO Act and 3(i)(x) of the SC/ST Act.

The informant claimed her age to be 15 years as on the date of

occurrence. The police, upon completion of investigation,

submitted charge-sheet for the commission of the offence

punishable under Sections 376D, Section 6 of the POCSO Act

and 3(i)(r)(s) of the Scheduled Castes & Scheduled Tribes

(Prevention of Atrocities) Act, 1975, against this appellant, Patna High Court CR. APP (DB) No.143 of 2021 dt.01-05-2023

keeping investigation pending against others. After the

cognizance was subsequently taken of the aforesaid offences

and charges were framed against this appellant for commission

of the offences punishable under Section 376D of the IPC,

Section 6 of the POCSO Act and 3(i)(r)(s) of the Scheduled

Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1975.

The appellant pleaded not guilty and claimed to be tried.

At the trial altogether seven witnesses were examined

including Dr. Rashmi Ragani (PW5), Ratneshwar Prasad I.O.

(PW-6) and the Assistant Director Regional Forensic Science

Laboratory, Muzaffarpur, who had examined the clothes of the

victim. Father of the victim (PW-2), Mother of the victim (PW-

3) and her Aunt (PW-4) who deposed at the trial, did not support

the prosecution's case and accordingly, they came to be declared

hostile at the instance of the prosecution. PW-1, the victim

herself also did not support the prosecution's case at the trial.

She has not been declared hostile. She deposed that she had not

lodged the F.I.R. She, however, deposed that in the fateful night

five persons had abducted her on a Bullet/Apache motorcycle

who had left her in the Litchi orchard. She declined to identify

the appellant at the trial. On careful reading of her deposition,

we notice that she did not depose anything against this appellant Patna High Court CR. APP (DB) No.143 of 2021 dt.01-05-2023

in support of the charge in respect of which the appellant was

put on trial. The informant's mother deposed at the trial that in

the morning, she had not seen her daughter or victim (PW1) and

on an inquiry, she learnt that she had gone to her Maternal

Grandmother's (Nani's) place. The father of the victim (PW-2)

also deposed that in the morning he learnt that someone had

abducted her daughter but when the victim returned, she did not

disclose anything to him. PW-4 the victim's Aunt expressed

complete ignorance about the occurrence in her evidence at the

trial. PW-5 the Doctor who had examined the victim though

found that hymen was torn and slight bleeding was present, no

injury on her thigh or vagina was found. She expressed her

inability to say as to whether the victim was raped or not. From

the evidence of the I.O. it appears that the undergarments of the

victim were recovered and seized by the police which were sent

for forensic examination. Blood mixed semen had been detected

in the Exhibits A & B on the undergarments of the victim.

The R.F.S.L. report was proved by PW-7. He said that

he could not see as to whose blood stains/semen were found on

the undergarments sent for forensic examination. Learned trial

court, however, has recorded conviction based on above noted

evidence on the ground that there were overwhelming evidence Patna High Court CR. APP (DB) No.143 of 2021 dt.01-05-2023

and materials to point out guilt of the appellant.

We do not concur with the aforementioned finding of

conviction recorded by the trial court, as in our view, it is a case

of no evidence. The charges framed against the appellant cannot

be said to have been proved at the trial by any stretch of

imagination. The appellant stands acquitted of the charges

accordingly.

Situated thus the impugned judgment of conviction

dated 28.02.2020 is hereby set aside. Consequently, the order of

sentence dated 29.02.2020 is also set aside.

This appeal is allowed.

Since the appellant is in custody, let him be released

from jail forthwith, if not required in any other case.

(Chakradhari Sharan Singh, J)

( Rajiv Roy, J)

ranjan/ravi-

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