Indrajeet Paswan @ Indrajeet Rai @ ... vs The State Of Bihar
2023 Latest Caselaw 5636 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.212 of 2022
Arising Out of PS. Case No.-41 Year-2020 Thana- BARABAR TOURIST District- Jehanabad
======================================================

INDRAJEET PASWAN @ INDRAJEET RAI @ INDRAJEET KUMAR S/O MITHLESH RAY @ MITHLESH PASWAN R/o village- Bhaikh, P.S.- Makhdumpur (O.P.), Barawar, Prayatak, District- Jehanabad

... ... Appellant/s Versus THE STATE OF BIHAR

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

For the Appellant/s : Mr. Sharda Nand Mishra, Advocate For the Respondent/s : Mr. Manish Kumar No. 2, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE JUSTICE SMT. GUNNU ANUPAMA CHAKRAVARTHY

ORAL JUDGMENT

(Per: HONOURABLE JUSTICE SMT. GUNNU ANUPAMA CHAKRAVARTHY)

Date : 10-11-2023

This criminal appeal has been preferred against

Judgment of conviction dated 14.02.2022 and order of sentence

dated 16.02.2022 passed by the learned Additional Sessions Judge

VI - cum - Special Judge POCSO, Jehanabad, in POCSO Case

No. 24 of 2020 (arising out of Barabar Paryatan P.S. Case No. 41

of 2020. By the judgment and order aforesaid, the appellant has

been convicted and sentenced as under: -

Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

Convicted under Sections Sentence Imprisonment Fine In default of Indrajeet Paswan (Rs.) fine @ Indrajeet Rai @ 376 of the IPC R.I. for Life 10,000/- R.I. for one Indrajeet Kumar year 4 of the POCSO Act R.I. for Life 10,000/- R.I. for one year 363 of the IPC R.I. for Life 10,000/- R.I. for one year 365 of the IPC R.I. for Life 10,000/- R.I. for one year 506 of the IPC R.I. for Life 5,000/- R.I. for one year

All the sentences have been directed to run concurrently.

2. As the matter relates to Section 376 of the Indian

Penal Code and section 4 of the POCSO Act, we are of the

considered view that the names of the victim or the parents of the

victim shall not be disclosed in the judgment in order to safeguard

the identity of the victim girl as per the directions of the Hon'ble

Supreme Court.

3. We have heard Mr. Sharda Nand Mishra, learned

counsel for the appellant and Mr. Manish Kumar No. 2, learned

APP for the State.

4. The criminal case was set into motion basing on the

written information dated 10.06.2020 given by the father of the

victim, who is the informant (P.W.-9), to the Director General of

Police, Patna, for which an F.I.R. was registered as Barabar

Paryatan P.S. Case No. 41 of 2020.

Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

5. The brief contents culled out of the written application

are that the minor daughter of the informant has been eloped from

the window of the semi-furnished house by the appellant, who

happens to be the tuition teacher for his children. On 7.5.2020, the

appellant was hiding himself near the bathroom. The victim went

out for natural call at around 12.00 in the midnight. The appellant

covered her mouth with a cloth, took her to the corridor, continued

to rape her and also threatened her to kill. The wife of the

informant woke up at 3.00 A.M. for attending a natural call and

started shouting on seeing the victim in half naked condition. On

hearing the noise, the informant got up and the people nearby also

woke up, came to the place of occurrence saw the appellant.

Further, the informant hit the appellant 2-4 blows and in the

meantime the appellant escaped jumping over the semi

constructed wall, but the shirt, slipper and mobile of the appellant

were left in the corridor. Later the appellant called the informant

and threatened him that he would kill the family members in the

event of informing the said incident to the police and that due to

fear he did not inform about the incident to any one. Further, the

contents of the written application disclose that on 08.06.2020, the

appellant eloped the victim girl and she was traceless. The

appellant as a teacher used to teach the victim in the 9 th and 10th Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

standard and that the appellant has been sexually exploiting her

and threatened to kill her in the event of revealing the facts to

others. Therefore, they prayed to take an action against the

appellant.

6. Basing on the report / written application, the SHO,

Barabar Paryatan Police Station registered the case, against the

appellant vide FIR bearing Case No. 41 of 2020 dated 10.06.2020

for the alleged offences punishable under sections 363, 365, 376

and 506 of the IPC and under Section 4 of the POCSO Act.

7. During the course of investigation, the Investigating

Officer has recorded the statement of witnesses under Section 161

of the Cr.P.C., and also got examined the victim under Section 164

of the Cr.P.C.. Further the victim was refused to medical

examination. The Investigation Officer arrested the appellant and

produced before the Court for judicial remand. On completion of

the investigation and after receiving of the documents, the

Investigating Officer laid charge-sheet against the appellant for the

aforesaid offences.

8. The trial court took cognizance for the said offences

and during the course of trial charges were framed against the

appellant for the offences punishable under Sections 363, 365,

376 and 506 of the IPC and Section 4 of the POCSO Act on Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

18.12.2019, which were read over and explained to him and the

appellant pleaded not guilty and claimed to be tried.

9. In order to prove the case against the appellant

beyond the reasonable doubt, the prosecution has examined nine

witnesses i.e. PW1 - Sanjay Singh, P.W.2 - the mother of the

victim, PW 3 - Ashok Prasad (Co-villager), P.W. 4 - Pramod

Kumar Paswan (Constable No. 413), P.W. 5 - the victim herself,

P.W. 6 - Suresh Singh (Co-villager), P.W. 7 - doctors of Sadar

Hospital Jehanabad, P.W. 8 - the Investigating Officer and P.W. 9 -

the father of the victim (Informant).

10. In addition to the oral evidence of the prosecution's

witness, the prosecution also brought on record documentary

evidence i.e., Exhibits 1 to 8 viz. signature of the victim on her

statement under section 164 Cr.P.C. Ext. 1, Medical Report Ext. 2,

Forwarding on the written petition of the informant for registering

the case Ext. 3, Endorsement regarding registration of the case on

the written petition of the informant Ext. 4, Formal F.I.R. Ext 5,

Arrest memo of the accused Ext. 6, Written petition of the

informant Ext 8, Statement of the victim under section 164 Cr.P.C.

Ext 7, Sealed bag containing a pair of Chappal and cloths material

Ext I, Shirt material Ext II and Chappal material Ext. III. The

accused was examined under section 313 of the Cr.P.C. for the Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

incriminating evidence of the prosecution which was denied by the

appellant.

11. The trial court after considering entire material on

record has convicted the appellant for the above said offences as

stated supra.

12. It is contended by Learned counsel appearing on

behalf of the appellant that 164 Cr.P.C. statement of the victim

clearly disclose that the appellant and the victim had a love affair

and pursuant to it, they had made physical relationship several

times and at the instance of the victim they fled away from the

house on 09.06.2020, which was not at all considered by the trial

court. It is further contended that the medical evidence do not

support the oral evidence of the prosecution witnesses and in any

manner to show that the rape was committed against the victim

girl by the appellant. It is also the contention of the counsel for the

appellant that there is delay in lodging the FIR and no reasons

have been assigned as to why, the report was not given to the

police at the first instance, when the alleged offence took place on

07.05.2020 and as to why there is delay in lodging the complaint

on 08.06.2020 though the victim was said to be eloped with the

appellant on 06.06.2020. It is further contended that there is no

documentary evidence to prove that the victim was aged below 18 Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

years, in order to attract the offences punishable under the POCSO

Act. It is also contended by learned counsel for the appellant that

the evidence of PW-8 / Investigating Officer, reveal that the date

of birth of the victim is 10.12.2003 but no documents was filed to

prove the said fact and, therefore, contended that the judgment

passed in POCSO Case No. 24 of 2020 (arising out of Barabar

Paryatan P.S. Case No. 41 of 2020) is unsustainable and deserves

to be set aside.

13. On the other hand it is contended by learned

Additional Public Prosecutor for the State of Bihar that there is no

error or irregularity in the order passed by the trial court and the

victim herself has deposed that she has been sexually assaulted

and kidnapped by the appellant, therefore, the judgment of the

trial court need no interference and prayed to confirm the

judgment.

14. We have given a thoughtful consideration of the

submissions made by the rival parties and on re-appreciation of

the evidence, the points that arose for determination is that:-

(i) "whether the prosecution is able to prove the guilt of

the appellant beyond reasonable doubt for the alleged offences

punishable under Sections 363, 365, 376 and 506 of the IPC and

Section 4 of the POCSO Act?

Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

(ii) whether the appellant is able to reverse the burden

of proof under section 29 of the POCSO Act?

(iii) whether the trial court has rightly convicted the

appellant for the above said offences?

15. P.Ws.1 and 3 are the uncles of the victim. Their

evidence disclose, on hearing the noise, they went to the house of

the victim and saw her in a naked condition, near the door inside

the house and they were informed by the family members that the

appellant forcibly raped the victim. They further testified that the

victim used to take tuition from the appellant, further he came to

the victim's house in the mid-night and committed rape against the

victim. They also found the shirt and mobile of the appellant

which were left over by him. In the cross-examination, it is

admitted by both of them that written application was not given at

the time of the incident and the said incident took place on

07.05.2020. They also testified that do not know whether the

victim stated in her statement about the love-affair between her

and the accused.

16. P.W.-2 is the mother of the victim girl. Her evidence

disclose that the incident took place in the midnight of 08.06.2020

and the victim was aged 16 years on the date of occurrence. She

testified that she saw the appellant raping the minor by stuffing a Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

cloth in the mouth of the victim and when she raised an alarm, her

husband came and caught hold of the appellant slapped him twice

or thrice and the appellant got himself free by jumping over the

wall. P.W.-2 was not cross-examined as the defence did not appear

on the said date.

17. P.W.-4 is the constable, who has submitted the

seized articles before the Court, which is at Exhibit article I. It was

testified by him that he has no personal information as to when and

from whom the items were recovered. Therefore, much weightage

need not be given for appreciating the evidence of P.W.-4.

18. P.W.-5 is the victim. She testified that the incident

happened about 7 - 8 months back in the midnight. The accused

was hiding himself when she went to the bathroom and that he

closed her mouth with a Duppatta and he committed wrongful

acts on her. She further testified her mother witnessed the said

acts and screamed. On hearing the voice of her mother, her father

got up and came to the place of occurrence, slapped the appellant

twice and thrice, on that, the appellant fled away by jumping the

wall. She further testified that a month later, the appellant came to

her house and took her away. Further the appellant tied her mouth

and eyes, threatened her with a gun to kill her, if she makes any

noise and also threatened her that he would kill her parents. Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

Further the appellant kept her for two days and did wrong things.

After coming to know that her father filed a case, the appellant left

her at the Police Station's gate and asked her to go to the Police

Station otherwise he will beat her. She further testified that she

was treated by the doctor and her statement was recorded in the

Court. The 164 Cr.P.C. statement of the victim is marked as

Exhibit P1. Further the Exhibit material was opened in the Court,

where she identified the shirt and slippers as that of the appellant,

which were marked as Exhibits II and III. It is also testified by her

that the accused appellant used to come to their house to teach her

brothers and sisters and used to talk to her and that their parents

lived outside. Further testified that the second incident took one

month after the first incident. After the second incident, the

appellant took her to Vishnuganj O.P. Gate and she was nervous

and do not know whether the Police recorded her statement or not.

PW-5 admitted in her cross-examination that she had also said

something wrong in her statement in front of the Magistrate

because the appellant threatened to kill her and her parents and

further she did not inform the Police about the threats and did not

make any such application.

19. P.W.-6 is the neighbour. He testified that he heard the

noise, woke-up, went out and saw the victim in a naked condition Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

and also saw the appellant running away. Further they came to

know about the incident, that the appellant committed rape on the

victim girl.

20. P.W.-7 is the Medical Officer. His evidence disclose

that he is the member of the Medical Board constituted by the

Superintendent of Sadar Hospital for examining the victim on

11.06.2020. He examined the victim along with other doctor of

Board at 4:10 P.M. and found the followings :-

"(A) No external injury was present on the person of victim. (B) Pregnancy test was negative. (C) Secondly sexual characters were present. (D) Hymen was ruptured.

(E) No sign of internal injury was present. (F) No foreign body was present in private part. (2) On the basis of the aforesaid report the victim was sexually active.

(3) No spermatozoa was found in her private part. A few epithelial cells were present. W.B.C. - No R.B.C. - No Other findings - None"

21. It is opined by P.W.-7 that the victim was sexually

active and that she cannot say whether rape was committed or not?

It is admitted by P.W.-7 that in case of rape of woman, is

expected to protest for which there may be external or internal Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

injuries. Further, testified that the hymen of the victim was old

ruptured and there are so many reasons of hymen rupture such as

cycling, wrestling etc.

22. P.W.-8 is the Investigating Officer. His evidence

disclose that he received the written application of the victim's

father, for which he registered a case. During the course of

investigation, he recorded the statements of the witnesses,

collected the material objects from the scene of offence got the

statement of the victim recorded by the Judicial Officers under

Section 164 of Cr.P.C. referred the victim for medical examination.

Later he arrested the appellant on 17.06.2020. After completion of

the investigation laid charge-sheet against the accused/ appellant

for the offences punishable under sections 363, 365, 376 and 506

of the IPC and under Section 4 of the POCSO Act. In the cross-

examination, it is admitted by P.W.-8 that the written application

was addressed to Director General of Police, Patna, dated

10.06.2020 and as per the written application the F.I.R. was

registered on 16.06.2020 and the alleged incident of eloping the

victim took place on 08.06.2020. Later the victim came to the

Police Station with her relatives.

23. P.W.-9 / informant is the father of the victim. His

evidence clearly disclose that the first occurrence of the alleged Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

rape took place on 07.05.2020 in the midnight and it was

witnessed by his wife at 3:00 P.M., on 08.05.2020. Further, the

second occurrence took place on 08.06.2020, where the appellant

kidnapped the victim and the victim was traced after two days. In

the cross-examination, it is admitted by P.W..9 that he has not filed

any case at the time of first occurrence i.e., allege rape by the

appellant on the victim. But he filed the written application to the

DGP when his daughter was missing.

24. On the basis of the entire evidence on record, we are

of the considered view that P.Ws.1, 3 and 6 are not the eye

witnesses to the incident and they came to know about the incident

on 08.05.2020 early hours. But no complaint was made by P.W.-9,

i.e., the informant on the said day. P.W.-2 and P.W.-9 are the

parents of the victim. They too admit that the first occurrence

occurred on 07.05.2020 i.e., the alleged commission of rape by

the appellant on the victim. The second occurrence took place after

a month i.e. on 08.06.2020, where it is alleged that the appellant

has kidnapped the victim. It is also admitted by P.Ws. 2 and 9 that

they have not preferred any report/written application to the Police

when the commission of offence of rape was committed against

the victim.

Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

25. As already stated as supra, no weightage can be

given for the evidence of P.W.-4 as he has no knowledge about the

offence.

26. The crucial point which has to be re-appreciated is

that of the evidence of the victim. It is specifically admitted by the

victim that she gave statement to the Magistrate under Section 164

of the Cr.P.C.. On perusal of 164 Cr.P.C. statement of the victim

it is evident that the victim loved the appellant and had physical

relationship with him on several occasion. On 09.06.2020 at

around 11:00 A.M. she ran away from the house and asked the

appellant to marry her, for which the appellant stated that he will

marry her once she attains the age of 18 years. Her statement

further disclose that her parents have come home for Holi festival

and P.W.-9 i.e., the father, came to know about their love-affair and

admonished her not to talk with the appellant. On that she

informed everything to the appellant and when one day the

appellant came to his house to procure a book, the people outside

saw him and beat the appellant, for which the appellant left the

house by leaving his slippers and bag. It is also specifically stated

by P.W.-5 i.e., the victim, before the Magistrate that she intends to

stay with her parents, but was afraid that the parents might do

something to her.

Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

27. On perusal of the entire oral and documentary

evidence, this Court is of the considered view that the appellant

and the victim are in physical relationship, since long time that

too said relationship is with the consent of the victim girl. It can be

construed that no incident occurred (committing of rape) in the

midnight of 07.05.2019. If at all any such incident took place in

the midnight of 07.05.2020, P.W.-2 and P.W.-9 being parents ought

to have preferred a complaint against the appellant on the same

day. Further the medical evidence also do not support the case of

the prosecution in any manner. The evidence of P.W.-7 clearly

disclose that no external injuries were found on the victim girl.

The pregnancy test was negative, there are no signs of any internal

injuries or a foreign bodies and the victim was sexually active. It

is specifically opined by the P.W.-7 i.e., the Medical Officer that

hymen of the victim was old-ruptured and there are many reasons

for hymen rupture and the allegation of rape is not proved as per

the medical evidence.

28. Further the 161 Cr.P.C. statement of the witnesses

can be used for corroboration or for contradiction. The 164 Cr.P.C.

statement of the witness is contradicting with that of the evidence

of the testimony of the victim girl. The initial statement of the

victim clearly disclose that the appellant had love-affair with the Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

victim and they had physical relationship and even the appellant

intends to marry her once she attains the age of 18 years. Further

the statement clearly disclose that the victim voluntarily ran away

from the house and that the appellant has never kidnapped her and

further the victim was caught hold by the Police. The evidence of

Investigating Officer reveals that the victim herself came to the

Police Station along with the family members. Therefore, we are

of the considered view that the evidence of the victim is not

trustworthy and reliable as her statement before the Magistrate is

completely contradicting with that of her testimony. No reasons

have been assigned as to why there was no complaint registered

against the appellant when the alleged incident of rape took place

on 07.05.2020.

29. Further the age of the victim was also not

determined by the Trial Court so as to prove that she is aged

below 18 years so as to attract the provisions under POCSO Act

and, therefore, the appellant deserves for benefit of doubt.

30. In view of the above said discussions, the conviction

and the judgment of conviction and the sentences are not

sustainable and are liable to be set aside.

31. Accordingly, the impugned judgment of conviction

dated 14.02.2022 and order of sentence dated 16.02.2022 passed Patna High Court CR. APP (DB) No.212 of 2022 dt.10-11-2023

by the learned Additional Sessions Judge VI - cum - Special

Judge POCSO, Jehanabad, in POCSO Case No. 24 of 2020

(arising out of Barabar Paryatan P.S. Case No. 41 of 2020) is

hereby set aside.

32. Accordingly, the appeal is allowed.

33. The appellant, namely, Indrajeet Paswan @ Indrajeet

Rai @ Indrajeet Kumar is in custody. Let him be released

forthwith, if not required in any other matter.

                                                             (Chakradhari Sharan Singh, J)



                                                       (Gunnu Anupama Chakravarthy, J)



Spd/-Aditi


AFR/NAFR                AFR
CAV DATE                NA
Uploading Date             10.11.2023
Transmission Date          10.11.2023