Suraj Kumar vs The State Of Bihar
2023 Latest Caselaw 5263 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.690 of 2021
    Arising Out of PS. Case No.-10 Year-2020 Thana- MAHILA P.S. District- Bhagalpur
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SURAJ KUMAR Son of Vindeshwari Mandal Resident of Village - Goshaygaon, P.S. - Gopalpur, District - Bhagalpur.

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

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

For the Appellant/s      :        Mr. Ajay Kumar Thakur, Adv
                                  Mr.Ranjan Kumar Jha, Adv
                                  Mr. Rana Pratap Singh, Adv
                                  Mr. Vikas Kumar, Adv
For the State            :        Ms. Shashi Bala Verma, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 11-10-2023 The appellant has preferred this appeal under Section

374(2) of the Code of Criminal Procedure assailing the

judgment of conviction dated 22.09.2021 and an order of

sentence dated 28.09.2021 passed by the learned Exclusive

Special Court (POCSO-II) cum-7th Additional Sessions Judge,

Bhagalpur, in POCSO Case No. 52 of 2020 arising out of

Naugachia P.S. Case No. 10 of 2020, whereby and whereunder

the appellant has been convicted and sentenced as under :- Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

Penal Sentence provision Imprisonment Fine (Rs.) In default of fine Section ---------------------- --------------------- ------------------

               376(A)(B)
               of the IPC
               Section 4 r/w Rigorous                Rs. 25,000/-            SI for 6 months
               section 5(m) Imprisonment for
               of the        life
               POCSO Act

2. There does not appear to be any controversy over the

fact that the victim (not examined) who was an infant, aged less

than five years, as on the date of occurrence. Her mother (PW-5)

is the informant. She alleged in her written complaint addressed

to the Officer-in-Charge, Naugachiya (Bhagalpur) Police Station

that it was raining at 2:00 pm. on 21.05.2020, when the victim

had gone out of her house to ease herself. The appellant aged 18

years, a cousin of the husband of the informant committed rape

upon her, taking advantage of the victim's solitude being alone.

The victim returned with litchis in her hand and by her gestures

she disclosed that her uncle (the appellant) had gagged her

mouth and caused penetration. On further queries made by the

informant, the victim disclosed that the appellant had taken her

to the cattle shed. Based on the aforesaid circumstance, the

informant believed that the appellant had committed rape upon

the victim. The informant's husband was not there in the house. Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

The occurrence was narrated to him when he returned at 4:00

pm in the evening. Thereafter, the informant's husband (PW-8)

took the victim for treatment to a village quack (PW-3). The

written complaint was filed with the police on 22.05.2020. The

informant, thus, explained the delay in lodging of FIR on the

next day.

3. The victim was examined by a Doctor on

22.05.2020. While opining that the age of the victim was

between 3 to 5 years, the Doctor opined that there was evidence

of sexual assault. The statements of the victim and the informant

were recorded under Section 164 of the CrPC.

4. The police, upon completion of investigation

submitted chargesheet for commission of the offence punishable

under Section 376(A)(B) of the IPC and Section 4 of the

POCSO Act against the appellant. After taking cognizance,

charges were framed against the appellant for commission of

offence punishable under Section 376(A)(B) of the IPC and

Sections 4 and 6 read with Section 5(m) of the Protection of

Children from Sexual Offences Act, 2012 (hereinafter referred

to as the 'POCSO Act' in short). The appellant denied the charge

and claimed to be tried. Accordingly, he was put to trial.

5. At the trial, the prosecution examined altogether Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

eight witnesses including the victim's father (PW-8), victim's

mother (PW-5), victim's grandfather (PW-1), the village quack

who had treated the victim first (PW-3) and sister of husband of

the informant (PW-4). The Doctor who had examined the victim

deposed at the trial as PW-7 and the Investigating Officers as

PWs 2 and 6. In addition to the oral evidence of the

prosecution's witnesses, the prosecution brought on record

following documentary evidences at the trial:-

                            Sl.                   Description           Exhibit
                            No.                                         Number

1. Endorsement over written complaint Exhibit-1

2. Formal FIR Exhibit-1/A

3. Chargesheet Exhibit-2

4. Report of the Doctor Exhibit-3

6. It is evident from the list of the documentary

evidence adduced at the trial that even the statement of the

informant and that of the victim said to have been recorded

under Section 164 of the CrPC were not proved by getting them

exhibited.

7. After conclusion of the trial, the appellant's statement

was recorded under Section 313 of the CrPC so as to give him

an opportunity to explain the incriminating circumstances

emerging against him based on the evidence of the prosecution's

witnesses. While answering in negative, the said circumstances Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

explained to him, he took a plea that a quarrel had taken place

earlier in relation to a land dispute because of which he was

falsely implicated. In response to one of the questions, he

answered in affirmative saying that blood was oozing out from

the private part of the victim and he had seen her weeping

before she was taken to the Doctor. The trial Court, after having

appreciated the evidence adduced at the trial, reached a

conclusion that the prosecution was able to establish the charge

against the appellant of commission of offence punishable under

Section 376(A)(B) of the IPC and Section 4 read with Section 5

(m) of the POCSO Act beyond all reasonable doubts and after

having convicted the appellant of the said offence sentenced him

to imprisonment and fine as noted above.

8. Mr. Ajay Kumar Thakur, learned counsel appearing

on behalf of the appellant has submitted that none of the

witnesses have supported the prosecution's case of commission

of sexual assault on the victim by the appellant. He contends

that the prosecution's witnesses have rather denied the

occurrence of any sexual assault on the victim and have

explained that the victim had sustained such injuries because of

her fall on some substance injuring her private parts. He

contends that even the informant and father of the victim have Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

not supported the prosecution's case. He submits that the

evidence of the Doctor (PW-7) is the only material in support of

the fact that the victim was subjected to sexual assault. Even if

the said finding is treated to be correct, the prosecution has

miserably failed to connect this appellant with the injury said to

have been sustained by the victim as appearing in the medical

evidence. He has submitted that the witnesses who have not

supported the prosecution's case have not been declared hostile

at the instance of the prosecution and therefore, it is permissible

for appellant to rely on their evidence in support of his defense

of innocence. Mr. Thakur has further submitted that under

Section 164A(3)(4) of the CrPC the registered medical

practitioner is obligated to record the consent of the woman or

of the person competent to give such consent on her behalf for

such examination but in this case no consent has been obtained

before undertaking the exercise of medical examination of

victim of rape. Further, sub-section (3) of Section 27 of the

POCSO Act requires that the medical examination of a child

should be conducted in the presence of the parents of the child

or any other person in whom the child reposes trust or

confidence. In the present case, the doctor has neither recorded

that the permission was obtained before undertaking medical Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

examination requisite under Section 164 A(3)(4) of the CrPC

nor the presence of the parents of the child in the medical report.

He has further argued that even if it is accepted for the sake of

argument that the appellant was subjected to penetrative sexual

assault, the prosecution has miserably failed to establish that it

was the appellant, who committed the said criminal misconduct.

He submits that though Section 53(A) of the CrPC is directory

in nature and not mandatory, in the facts and circumstances of

the present case, the appellant ought to have been subjected to

medical examination in accordance with the requirement under

Section 53(A) of the CrPC.

9. Learned Additional Public Prosecutor, representing

the State, has submitted that the medical evidence eloquently

suggests that the victim was subjected to sexual assault.

Considering the minor age of the victim, who was an infant on

the date of occurrence, it cannot be expected that she would be

in a position to describe the occurrence like a mature person.

She had disclosed the occurrence to her mother whereupon, the

FIR was registered. She submits that based on the evidence of

and other attending circumstances, the learned trial court has

rightly appreciated the evidence adduced at the trial. Taking aid

of Section 29 of the POCSO Act, the trial court convicted the Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

appellant of the offence punishable under Section 376(A)(B) of

the IPC and Section 4 read with Section 5(m) of the POCSO

Act. She submits that there is no illegality in the impugned order

which requires this Court's interference.

10. We have perused the impugned order and judgment

of the trial court as well as the lower court's records. We have

given our thoughtful consideration to the rival submissions

advanced on behalf of the parties.

11. In the present case, none of the prosecution's

witnesses, namely, the victim's mother and informant (PW-5),

victim's father (PW-8), victim's grandmother (PW-1) and the

victim's aunt (PW-4) have supported the prosecution's case.

They have categorically deposed at the trial that no occurrence

of rape had taken place; rather because of fall, the victim had

sustained certain injuries whereafter she was taken to PW-3 for

treatment. PW-3 in his evidence deposed that the victim got

injured by kick of a calf, whereafter, the victim's father had

called him to his house for treatment and he had given one

injection. He deposed that the appellant was innocent.

12. In response to a query during the cross-

examination, PW 7, the Doctor, deposed that the nature of injury

sustained by the victim could not have been caused by falling on Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

any sharp-edged material. She had noticed vaginal tear with

blood and redness of vulva.

13. From the evidence of the prosecution's witnesses, it

transpires that according to them, the victim had not stated

anything to anyone. The Investigating Officer (PW-2) interacted

with the victim in the presence of her parents, but she had not

disclosed anything to her. PW-6, another I.O. deposed at the

trial, inter alia, that in his statement recorded under Section 161

of the CrPC, Umesh Das (PW-3) had stated that the father of the

victim (PW-8) told him that the victim was kicked by a cattle on

21.05.2020 and he (PW-8) had requested PW-3 to treat his

daughter.

14. On careful scrutiny of the evidence of the

prosecution's witnesses, we are of the considered view that the

prosecution has not been able to establish at the trial that the

victim, a minor, was subjected to sexual intercourse by the

appellant. The conviction of the appellant recorded by the trial

court for commission of offence punishable under Sections

376(A)(B) of the IPC and Section 4 of the POCSO Act cannot

be sustained. The appellant deserves to be given benefit of doubt

as none of the prosecution's witnesses have supported the case

of the prosecution of sexual assault except the Doctor.

Patna High Court CR. APP (DB) No.690 of 2021 dt.11-10-2023

15. The appellant, accordingly, stands acquitted of the

charge of commission of offence punishable under section

376(A)(B) of the IPC and Sections 4 and 6 of the POCSO Act

by giving him benefit of doubt.

16. Accordingly, the judgment of conviction judgment

conviction dated 22.09.2021 and the order of sentence dated

28.09.2021 passed by the learned Exclusive Special Court

(POCSO-II) cum-7th Additional Sessions Judge, Bhagalpur, in

POCSO Case No. 52 of 2020 arising out of Naugachia P.S. Case

No. 10 of 2020, are set aside.

17. This appeal is allowed.

18. Since the appellant is in custody, let him be released

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

(Chakradhari Sharan Singh, J)

( Nawneet Kumar Pandey, J) ranjan/sonali-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          17.10.2023
Transmission Date       17.10.2023