Anil Mahto @ Anil Nonia vs The State Of Bihar
2023 Latest Caselaw 5287 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (DB) No.789 of 2021
    Arising Out of PS. Case No.-32 Year-2016 Thana- RANIYATALAB District- Patna
======================================================

ANIL MAHTO @ ANIL NONIA Son of Sri Ram Kishore Nonia Resident of Village- Patut, P.S.- Rani Talab, District- Patna.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 31 of 2022 Arising Out of PS. Case No.-32 Year-2016 Thana- RANIYATALAB District- Patna ====================================================== JITU SAO Son of Ram Vinay Saw Resident of Village Patoot, P.S. Rani Talab, District -Patna.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 47 of 2022 Arising Out of PS. Case No.-32 Year-2016 Thana- RANIYATALAB District- Patna ====================================================== VIKASH KUMAR MOCHI Son of Sri Rakesh Mochi @ Rakesh Kumar Mochi Resident of Village- Patut, P.S.- Rani Talab, District- Patna.

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

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

(In CRIMINAL APPEAL (DB) No. 789 of 2021) For the Appellant/s : Mr. S.K. Verma, Advocate Mr. Binay Kumar, Advocate For the State : Mr. A. Sharma, APP (In CRIMINAL APPEAL (DB) No. 31 of 2022) For the Appellant/s : Mr.Ajay Kumar Thakur, Advocate Md. Imteyaz Ahmad, Advocate Mr. Ritwaz Raman, Advocate Mrs. Vaishnavi Singh, Advocate For the State : Mr. S.B. Verma, APP (In CRIMINAL APPEAL (DB) No. 47 of 2022) Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

For the Appellant/s : Mr.Ashok Kumar Sinha, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, 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 : 12-10-2023 The appellants have preferred these appeals under

Section 374(2) of the Code of Criminal Procedure against the

judgment of conviction dated 17.11.2021 and order of sentence

dated 29.11.2021 passed by the learned Additional District &

Sessions Judge (POCSO), Patna in Special(POCSO) Case No.42

of 2016, arising out of Ranitalab P.S. Case No. 32 of 2016,

whereby and whereunder the appellants have been convicted

and sentenced as under:-

Cr. Appeal (D.B.) No. 789 of 2021 Appellant Convicted under Sentence sections Imprisonment Fine in default Anil Mahto @Anil (Rs.) of fine Nonia 376 of the Indian R.I. for Life 25,000/- S.I. for three Penal Code months

302 of the Indian R.I. for Life 25,000/- S.I. for three Penal Code months

6 of the POCSO Act R.I. for Life 25,000/- S.I. for three months

Cr. Appeal (D.B.) No. 31 of 2022 Jitu Sao 376 of the Indian R.I. for Life 25,000/- S.I. for three Penal Code months

302 of the Indian R.I. for Life 25,000/- S.I. for three Penal Code months

6 of the POCSO Act R.I. for Life 25,000/- S.I. for three months Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

Cr. Appeal (D.B.) No. 47 of 2022 Vikash Kumar 376 of the Indian Penal R.I. for Life 25,000/- S.I. for three Mochi Code months 302 of the Indian Penal R.I. for Life 25,000/- S.I. for three Code months 6 of the POCSO Act R.I. for Life 25,000/- S.I. for three months All the sentences have been ordered to run concurrently.

2. The victim's father (PW 4) is the informant, who

made a written report to the SHO, Rani Talaab police station in

the district of Patna alleging therein that on 24.03.2016, the

victim aged 16 years had gone out of the house for defecating, in

the evening. As she did not return till late, they started searching

for her. On the next day, i.e., 25.03.2016, at about 11:00 AM,

they learnt that a dead body had been seen hanging from the

branch of a tree in the outskirts of village Raghopur. The

informant identified the dead body of the deceased to that of his

daughter, the victim. He suspected that the victim was raped and

subsequently killed. Allegation of the aforesaid effect gave rise

to registration of Rani Taalab P.S. Case No. 32 of 2016,

disclosing commission of offence punishable under Sections

302, 376, 201 read with 34 of the IPC and Sections 6, 8 and 10

of the Protection of Children from Sexual Offences (POCSO

Act) at 1:30 PM on 25.03.2016. Inquest report was prepared on

25.03.2016 and post-mortem examination was conducted. Based

on the disclosures said to have been made by the witnesses, the Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

Officer, who prepared the inquest report recorded that it was a

case of murder of the victim after commission of rape upon her.

Post-mortem examination of the dead body of the deceased was

also conducted on 25.03.2016. The approximate age of the

victim was assessed as 15 years and cause of death, asphyxia

leading to cardio-respiratory failure as a result of strangulation

by soft ligature. The Medical Board reserved its opinion

regarding sexual assault on the victim.

3. The police, upon completion of investigation,

submitted charge-sheet against the appellants Jitu Sao and Anil

Mahto on 08.06.2016, and kept the investigation pending as

against appellant Vikash Kumar Mochi and Punyadev Yadav. A

supplementary charge-sheet was submitted against the appellant

Vikash Kumar Mochi on 22.11.2016 for the offences punishable

under Section 376, 302, 201, 120B read with 34 of the Indian

Penal Code and Section 6, 8 and 10 of the POCSO Act.

Cognizance was subsequently taken. Investigation remained

pending as against the co-accused Punyadev Yadav. Later, these

appellants came to be charged of commission of offences

punishable under Sections 376, 302 read with 34, 201 and 120B

of the IPC and Sections 6 and 8 of the POCSO Act. As the

appellants denied the charge and claimed to be tried, they were Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

put on trial. At the trial, the prosecution examined seven

witnesses including the two Investigating Officers namely

Prabhat Kumar Sharma (PW 5) and Nidhi Rani (PW 7). The

Doctor, who had conducted the post-mortem examination,

deposed at the trial as PW 2. The victim's father/informant came

to be examined as PW 4 and victim's sister as PW 6. Husband of

PW 6 deposed at the trial as PW 3. In addition to the oral

evidence of the prosecution's witnesses, the prosecution brought

on record following documentary evidences to prove the

charge:-

               Sl.                 Description                 Exhibit No.
               No.
               1.      Post-mortem report                    Exhibit-1
               2.      The swab report                       Exhibit-2
               3.      Signature of the SHO on the Exhibit-3
                       written report of the informant
               4.      Seizure list                          Exhibit-4

4. The trial court, after having appreciated the

evidence adduced at the trial, has concluded in its impugned

judgment dated 07.11.2021 that the prosecution successfully

proved the charges for the offences punishable under Sections

376 and 302 read with 34 of the IPC and Section 6 of the

POCSO Act against all these appellants and has convicted them

accordingly. The trial court further viewed that the offence

punishable under Sections 120B and 201 of the IPC and Section Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

8 of the POCSO Act could not be proved against the appellants

and accordingly, the appellants stood acquitted of the aforesaid

charges. After having held the appellants guilty of the aforesaid

charges, the trial court sentenced them to imprisonment and fine,

as has been noted above.

5. We have heard Mr. Ajay Kumar Thakur, Mr. S.K.

Verma and Ashok Kumar Sinha, learned counsels appearing on

behalf of the appellants and Ms. Shashi Bala Verma, learned

Additional Public Prosecutor for the State.

6. It has been argued on behalf of the appellants

that it is a case of no evidence as the prosecution failed to bring

on record any cogent evidence, even to make out a case of

strong suspicion against these appellants for commission of

offence, let alone circumstantial evidence to prove the charge of

the offences for which they were put to trial. It has been argued

that there is no eye-witness to the occurrence and it is not a case

even of any of these appellants having been last seen with the

victim. It has been argued that the finding of conviction

recorded by the trial court suffers from perversity inasmuch as

there is absolutely no evidence adduced at the trial to establish

the prosecution's case of commission of rape by these appellants

on the victim. As a matter of fact, the prosecution failed to Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

establish that the victim was subjected to sexual assault at all. It

has been argued that according to the Investigating Officer (PW

7), the appellant Jitu Sao had confessed his involvement and

involvement of other persons, who were made accused on the

point of killing of the victim, after committing rape upon her.

There is absolutely no evidence beyond the said deposition of

the Investigating Officer at the trial, which has no evidentiary

value. It has been argued that even the informant is a hearsay

witness inasmuch as in his evidence, he deposed that he had

learnt that the victim was raped and killed by these appellants.

Evidence of PW 1 is of no worth as he came to be declared

hostile at the instance of the prosecution. Evidence of the other

two witnesses namely PW 3 and PW 6 are also not of much

relevance to the extent the same relate to proof of rape and

murder of the victim by these appellants.

7. Learned Additional Public Prosecutor,

representing the State, has defended the finding recorded by the

trial court and has submitted that though the FIR was registered

against unknown, during the course of investigation, name of

appellant Jitu Sao had surfaced who was extensively

interrogated by the Investigation Officer during which he

confessed his involvement and disclosed names of other two Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

appellants and one Punyadev Yadav, who were involved in

commission of the offence. She contends that it has been

consistent case of the prosecution that the victim was a child

within the meaning of Section 2(d) of the POCSO Act, which

stands corroborated by the medical evidence also. She submits

that the finding recorded by the trial court in the aforesaid

background does not require any interference by this Court as

PWs 3, 4 and 6 have supported the prosecution's case of

commission of the offence by these appellants.

8. We have perused the impugned judgment and

order 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.

9. It can be easily discerned from the records that

the appellants were not named in the FIR and they came to be

arrested during the course of investigation. From the evidence of

PW 7 (the Investigating Officer), it appears that in course of

investigation, a phone number was found written on a chit of

paper kept in the vanity box of the deceased. The family

members did not know as to whose telephone number was

written on the said chit of paper. After taking assistance from the

technical section, the Investigating Officer learnt that the Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

appellant Jitu Sao was using the said number and was working

in the brick-kiln where the informant also worked as labour.

Further, after the occurrence, the appellant Jitu Sao had stopped

coming to the brick-kiln and his mobile number was found to be

switched off. The circumstances led to the suspicion in the mind

of the Investigating Officer, leading to arrest of the appellant Jitu

Sao. Appellant Jitu Sao, according to the police, confessed his

guilt before the police and disclosed that the appellants Anil

Mahto and Vikash Kumar Mochi were also involved in

commission of the crime. Other two appellants were also

apprehended whose confessional statements were recorded by

the Investigating Officer.

10. The summary of the case, in the court's opinion,

is that the entire prosecution's case is based on the disclosures

said to have been made by these appellants to the Investigating

Officer in their confessional statements recorded during the

course of investigation under Section 161 of the CrPC, while in

custody. The said confessional statements said to have been

made before the police when the appellants were in police

custody has no evidentiary value. The confessional statements

said to have been recorded by the Investigating Officer have not

been proved at the trial.

Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

11. Learned counsels appearing on behalf of the

appellants appear to be correct in their submissions that there is

no eye-witness to the occurrence and the prosecution has

miserably failed to prove complete chain of circumstances at the

trial based on which it can be inferred that the guilt of these

appellants is the only possibility ruling out any other hypothesis.

From the evidence of the informant (PW 4), it is evident that he

had simply learnt that these appellants had taken the victim to

some place in the nature of ditch where he had found the dead

body of the deceased hanging from a tree. Her pyjamas was

found untied. In his cross-examination, he deposed that the

victim had not told him before leaving the house that she was

going to answer the call of the nature. The information regarding

the occurrence was transmitted to the police by the owner of the

brick-kiln. The nature of information which was transmitted to

the police, it appears from the evidence of PW 4, was the first

and foremost version of the occurrence. The said owner of the

brick-kiln has not been examined at the trial. The prosecution,

thus, suppressed the initial version of the occurrence. On close

scrutiny of the evidence of PW 4, it can be safely said that the

said evidence does not support the prosecution's case against

these appellants of commission of offence of murder and rape of Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

the victim. PW 6, a sister of the victim deposed that on the date

of occurrence, she had got a missed call from the appellant Jitu

Sao. The status of the PW 6 is not even of a hearsay witness for

the reason that in her cross-examination, she deposed that no

person had told her that he/she had seen committing rape upon

the victim or killing her. PW 3, the husband of PW 6 is also a

hearsay witness.

12. After having carefully scrutinized the evidence

of the prosecution's witnesses adduced at the trial, we are of the

view that it has rightly been argued on behalf of the appellants

that it is a case of no evidence. The prosecution miserably failed

to prove the charge of commission of offence punishable under

Sections 302 and 376 of the IPC and Section 6 and 8 of the

POCSO Act.

13. The finding of conviction recorded by the trial

court is not at all sustainable. Accordingly, the impugned

judgment of conviction dated 17.11.2021 and order of sentence

dated 29.11.2021, passed by the learned Additional District &

Sessions Judge (POCSO), Patna in Special(POCSO) Case No.

42 of 2016, arising out of Ranitalab P.S. Case No. 32 of 2016,

are set-aside.

14. These appeals are allowed.

Patna High Court CR. APP (DB) No.789 of 2021 dt.12-10-2023

15. The appellants, namely, Anil Mahto and Vikash

Kumar Mochi are on bail. They stand discharged from the

liability of the bail bonds and sureties, if any.

16. The appellant Jitu Sao of Criminal Appeal (DB)

No. 31 of 2022 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)

SONALI/Kundan

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