Giri Shankar Bind vs The State Of Bihar
2023 Latest Caselaw 5454 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.528 of 2017
        Arising Out of PS. Case No.-12 Year-2014 Thana- SIGAUDI District- Patna
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Giri Shankar Bind, son of Late Krishna Bind, Resident of Village - Jarkha, P.S. Sigori, District - Patna.

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

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

For the Appellant : Mr. Ramakant Sharma, Senior Advocate Mr. Amresh Kumar, Advocate Mr. Rakesh Kumar Sharma, Advocate 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 : 31-10-2023

The appellant has preferred this appeal under Section

374(2) of the CrPC putting to challenge the judgment of

conviction dated 17.03.2017 and the order of sentence dated

22.03.2017, passed by the learned Additional Sessions Judge-I,

Patna in Sigori P.S. Case No. 12 of 2014 and Special (POCSO)

Case no. 18 of 2014, whereby the appellant has been convicted

and sentenced as under: -

Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

Cr. Appeal (DB) No. 528 of 2017 Sentence Appellant Penal Provision In default of Imprisonment Fine (Rs.) fine Section 6 of the POCSO R.I. for 12 20,000/- S.I for six Act years months Section 8 of the R.I. for four 5,000/- S.I. for three Giri POCSO Act years months Shankar Bind Section 307 of the IPC R.I. for 10 15,000/- S.I. for five years months Section 201 of the IPC S.I. for three 3000/- S.I. for three years months.

2. All the sentences have been ordered to run

concurrently.

3. The Victim's name is not being disclosed nor those of

her close relatives, who have deposed at the trial as prosecution's

witnesses and they have been referred to as PW-1, PW-2 and so

on.

4. The victim's father (PW-5) is the informant. A written

report submitted by him (PW-5) before the Officer-in-charge of

Sigori police station (Patna) on 24.02.2014, is the basis for

registration of Sigori P.S. Case No. 12/2014 disclosing

commission of offences punishable under Sections 376 and 307 of

the IPC and Sections 8/12 of the Protection of Children from

Sexual Offences Act, 2012 (hereinafter referred to as the 'POCSO Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

Act' in short). According to the said written report, the informant's

ten years old daughter had gone to an orchard in the evening of

23.02.2014 for eating plum (Bair). In the meanwhile, the appellant

forcibly took the victim across the river and committed rape upon

her. As the victim had became unconscious as a result of the sexual

assault, the appellant shrouded her under the sand on the river

bank and escaped. Despite the efforts having been made by the

family members of the victim, she could not be traced. In the next

morning, i.e., on 24.02.2014, some people of village Gularia Bigha

noticed the presence of the victim. The family members of the

informant were also searching for her. With their joint effort, the

victim was rescued and brought back to the house. The victim was

subjected to medical examination on 24.02.2014 at 5:00 pm. The

victim's age, in the opinion of the doctor, was between six to seven

years based on radiological examination. Further, multiple teeth

bites were found over the left side of the cheek. Following injuries

were found on examination of her private parts:-

(i) Hymen torn ½ cm in length

(ii) Lacerated wound found over labia minora

(iii)Sand particles were seen over the body and private

parts.

(iv)Painful movement during walking.

Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

5. The police upon completion of investigation,

submitted chargesheet against this appellant for commission of

offences punishable under Sections 376, 307 read with Section 201

of the IPC and Sections 8/12 of the POCSO Act. Cognizance was

taken and thereafter charge was framed for commission of the

offences punishable under Sections 6 and 8 of the POCSO Act and

Sections 376(2)(f), 307 and 201 of the IPC. The appellant denied

the charges and claimed to be tried. Accordingly, he was put to

trial.

6. At the trial, the prosecution examined altogether 10

witnesses including the victim (PW-6), the victim's mother (PW-

4), the victim's father (PW-5), victim's uncle (PW-1). Ram

Keshwar Yadav (PW-2), had noticed the victim first on the banks

of the river where according to the prosecution's case, she was

nearly buried after commission of rape upon her by the appellant.

Bhuvneshwar Bind (PW-3) is the person to whom PW-2 had

informed about the victim having been found by him (PW-2) who

was describing herself to be the grand daughter of the father of

PW-5. The Investigating Officer deposed at the trial as PW-7 and

the doctor as PW-8. Two other prosecution's witnesses, namely,

PW-9 and PW-10 came to be declared hostile at the instance of the

prosecution.

Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

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

witnesses, the prosecution also brought on record following

documentary evidences in support of the charge:-

                        Sl. No.   Exhibit       Details
                                  No.
                        1         Exhibit 1     Formal FIR
                        2         Exhibit 2     Medical report
                        3         Exhibit 3     Supplementary medical report

8. After closure of the prosecution's evidence, the trial

court questioned the appellant so as to give him an opportunity to

explain the incriminating circumstances emerging against him

based on the evidence of the prosecution's witnesses. The

appellant answered in negative, in response to the questions put by

the trial court and reiterated his claim of innocence.

9. The trial court after having appreciated the evidence

adduced at the trial has reached a conclusion that the prosecution

successfully proved the charges of commission of the offences

punishable under Sections 376(2) (f), 307, 201 of the Indian Penal

Code and Sections 6 & 8 of the POCSO Act beyond all reasonable

doubts and after having convicted the appellant of the aforesaid

offence has sentenced him to imprisonment and fine as has been

noted hereinabove.

10. Mr. Ramakant Sharma, learned Senior counsel

appearing on behalf of the appellant has submitted that the Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

implication of the appellant is manifestly false because of previous

animosity between the two families as can be seen from the

evidence of the victim herself. He has submitted that it was

incumbent upon the prosecution to have got medically examined

the appellant in accordance with the requirement under Section

53A of the CrPC. He submits that the investigation has not been

carried out in the present case in a proper manner, inasmuch as,

there is no cogent scientific evidence to connect commission of

sexual assault upon the victim with the appellant. He has further

submitted that in this case, the appellant has already remained in

custody for nine years and eight months as against the sentence of

12 years of imprisonment imposed by the trial court. He argues

that subsequent to the occurrence on 23.02.2014, father of the

appellant has been killed, in respect of which, a criminal case has

been instituted and in which the victim's father is an accused. He

also submits alternatively that if his submissions do not find favour

with the Court on the point of conviction, the Court may consider

reducing the sentence of imprisonment taking into account

mitigating circumstances including the fact that the appellant's

father has been killed. He has also submitted that the appellant has

clean antecedent which is also a mitigating circumstance for this

Court to consider reduction of sentence.

Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

11. Ms. Shashi Bala Verma, learned Additional Public

Prosecutor representing the State has submitted that the

prosecution has successfully proved at the trial that the victim was

less than 12 years of age as on the date of occurrence. The victim,

in her deposition at the trial, has fully supported the prosecution's

case of commission of rape upon her by the appellant. The

evidence of the victim stands fully corroborated by the medical

evidence. Such being the circumstance, Section 29 of the POCSO

Act applies with full force in this case and therefore, it was

incumbent upon the appellant to prove his innocence. She

contends that the appellant, beyond mere denial of the charges

against him, did not make any effort to establish his innocence

even on the standard of preponderance of probabilities. She

contends that in such view of the matter, the finding of conviction

recorded by the trial court does not require any interference. On

the point of sentence, she has submitted that the trial court has

already taken a lenient view by imposing sentence of 12 years of

imprisonment. She argues that the age of the victim was assessed

as 6 to 7 years, based on radiological examination. Commission of

sexual assault by the appellant on a child of such age is a heinous

offence and the sentence of imprisonment imposed by the trial

court cannot be considered to be excessive. Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

12. We have perused the impugned judgment and the

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.

13. As has been noted above, it was the prosecution's

case that a child (victim) was found missing since the evening of

23.02.2014. The child was noticed by Ram Keshwar Yadav (PW-2)

on the banks of a river. It has come in the evidence that the victim

had become unconscious and after regaining consciousness, there

was movement in her body and when she met PW-2, she disclosed

her identity.

14. PW-2, telephonically informed PW-3 about recovery

of the child. The victim's family members including her father

(PW-5) and mother (PW-4) also learnt about the recovery of the

victim. The victim disclosed to them about the commission of

sexual assault by the appellant, whereafter the FIR was registered.

15. We have carefully gone through the evidence of the

victim (PW-6) who has in no uncertain terms described the manner

in which the offence of sexual assault was committed by the

appellant. An attempt has been made by learned Senior counsel

appearing on behalf of the appellant to convince this Court that

PW-6, a child witness appears to be a tutored witness. We are Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

unable to accept the said submission. The victim identified the

appellant in the court. The evidence of the doctor (PW-8) fully

corroborates the evidence of the victim (PW-6). Further, her

evidence is also corroborated by the evidence of Ram Keshwar

Yadav (PW-2). It is noticeable that the informant mentioned in his

FIR that villagers of adjacent village i.e. Gularia Bigha had seen

the victim first after she had disappeared. PW-2 is a resident of

Gularia Bigha who has, in his evidence, supported the

prosecution's case to the aforesaid extent. In such view of the

matter, we do not find any legal infirmity in the finding recorded

by the trial court holding the appellant guilty of the offences

punishable under Sections 376(2)(f), 307, 201 of the Indian Penal

Code and Sections 6 & 8 of the POCSO Act.

16. On the point of sentence, we are of the considered

view that learned Additional Public Prosecutor is correct in her

submission that the sentence of imprisonment imposed by the trial

court is in no way excessive or disproportionate to the seriousness

of the proved offence against the appellant. The impugned

judgment and order in the Court's opinion, does not require any

interference. This appeal is accordingly dismissed.

17. Mr. Ramakant Sharma, learned Senior Counsel

appearing on behalf of the appellant has further submitted that Patna High Court CR. APP (DB) No.528 of 2017 dt.31-10-2023

benefit of remission in accordance with law may be considered by

the competent authority. It goes without saying that the appellant

shall be at liberty to approach for grant of remission, if

permissible, in accordance with law.

(Chakradhari Sharan Singh, J)

(Nawneet Kumar Pandey, J)

Suraj/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          06.11.2023
Transmission Date       06.11.2023