Sunaina Kumari vs State Of Bihar And Anr
2023 Latest Caselaw 4507 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.1087 of 2017

          Arising Out of PS. Case No.-271 Year-2015 Thana- DARIGAON District- Rohtas
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Sunaina Kumari D/o Suresh Singh, Resident of Village- Babhani, P.S.- Kargahar, District- Rohtas.

... ... Appellant/s Versus

1. State Of Bihar and Anr

2. Arun Kumar Singh, S/o Ramshray Singh, Resident of Village- Khaira, P.S.-

Darigawn Sasaram, District- Rohtas.

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

For the Appellant/s : Mr. D.K Sinha, Sr. Adv. For the Respondent No. 2 : Mr. Ansul, Adv.

For the State : Mr. Dilip Kumar Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 12-09-2023

1. We have heard Shri D.K Sinha, the learned

Senior Advocate for the appellant, who is the

victim of this case, Mr. Ansul the learned Advocate

for the respondent no. 2, who is alleged to have Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

subjected the victim to sexual intercourse and Mr.

Dilip Kumar Sinha, the learned counsel for the

State.

2. The Respondent No. 2 was charged for

kidnapping and raping the victim who shall

henceforth be referred to as 'X'.

3. Vide Judgment dated 09.07.2017 passed by

the learned First Additional Sessions Judge-Cum-

Special Court POCSO, Rohtas at Sasaram, the

Respondent No. 2 has been acquitted on account

of different statements made by the victim, her

father and her own uncle. Apart from this, the

learned Trial Court has disbelieved the version of

the victim on account of certain intrinsic anomalies

appearing in her statement before the Trial Court.

4. According to the prosecution case, the victim

was staying in the house of Respondent No. 2 with

the consent of her parents. She was prosecuting

her studies for acquiring computer knowledge while Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

residing with the Respondent No. 2 and his wife.

Respondent No. 2. is the Maternal uncle (Mausa)

of the victim. Evidence suggests that Respondent

No. 2 was posted at Uttar Pradesh when the

occurrence took place. The F.I.R was lodged by the

own aunt of the victim, alleging that the victim had

left the house for going to computer center on

25.02.2015 at about 8 'O' Clock in the morning

but did not come back till late in the night. A

search was made for her but to no avail. The aunt

who has been examined as P.W-3 waited for some

time before lodging the subject F.I.R against

unknown for offences under Section 363 and 365

of the I.P.C.

5. During the course of investigation, the victim

appears to have come back home and had made a

statement under Section 164 Cr.P.C alleging that

at the bus-depot, who insisted upon her to Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

accompany him to Mundeshwari temple. She was

not taken to Mundeshwari temple; rather she was

taken to a desolate place which appeared to be the

end of a village where there was no habitation. The

house in which the victim was kept by the

Respondent No. 2 was very inadequately furnished.

She alleges that she was kept in confinement in the

afore-noted room of the house in question where

nobody came except Respondent No. 2, for about

20 to 25 days and that but for the last day when

she was brought to a desolate place again for her

to go back home, every day she was subjected to

sexual intercourse. Before the learned Magistrate

who recorded her statement under Section 164

Cr.P.C, she expressed her desire of going back to

her parents.

6. This statement was given on 28.03.2015.

However, before that, the father of the victim who

would be referred to in the case as 'Y' henceforth, Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

and who has been examined as P.W-6, went to the

police station on 17.03.2015, i.e. much before the

victim had come back home and had given a

written report alleging that considering Respondent

No. 2 and his wife to be close relatives, he had

permitted his daughter to reside with them for the

purposes of prosecuting her studies. However, later

when he came to village Khaira to know about his

daughter, neither respondent no. 2 nor his wife

gave any plausible explanation about the absence

of her daughter at home. He, therefore, suspected

that perhaps the victim has been taken to some

unknown destination by Respondent No. 2, either

for the purposes of committing sexual intercourse

with her or to sell her off to some sex-selling

agency. He also went to the extent of alleging that

the father of Respondent No. 2 and his wife

admitted before him that Respondent No. 2 and

the victim had gone out and that shortly they will Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

come back. Any hue and cry if made by P.W-6

would only impinge on the family prestige.

7. On such report, no separate case was

registered against respondent no. 2 or for that

matter against the informant of this case (P.W-3),

who is also alleged to have abeted and assisted

Respondent No. 2 in committing this crime.

8. At the Trial, seven prosecution witnesses

were examined including the victim. The informant

(aunt) has not supported the prosecution case and

has only stated before the Trial Court that when

the victim did not come back home for a long time

and the search for her did not yield any result, she

lodged a case of abduction against unknown

persons. With respect to the charge against her

husband (Respondent No. 2), P.W-3 has stated

that the she had informed Respondent No. 2 also

about the incident, where after he came from Uttar

Pradesh where he had been working and also Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

looked around for the victim.

9. Sudarshan Sharma (P.W-1), a co-village of

respondent no. 2 did not allege anything against

either P.W-3 or Respondent No. 2. The allegations

against the Respondent No. 2 has been supported

only by Rampravesh Singh who is the own uncle of

the victim and has been examined as P.W-2 as well

as 'Y' who is the father of 'X' and who has been

examined as P.W-6. as noted above.

10. P.W-2 has stated at the Trial that he learnt

about the Respondent No. 2 having taken away the

victim and raping her. In this act, the wife of

Respondent No. 2, namely, P.W-3 has also played

a role. He has admitted that his elder brother, who

is the father of 'X' always stayed at Bombay and

'X' resided with P.W-3 and Respondent no. 2. P.W-

3 had informed him and another relatives about

the victim having gone missing. On this

information, he along with the father of the victim Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

had gone to the village Khaira, which is the village

of Respondent No. 2. Another information which he

has shared before the Trial Court was that

Respondent No. 2 and P.W 3 stayed separately

from their family members. Nobody including him

and P.W-6 ever saw Respondent No. 2 taking away

the victim to any destination. After about 20 to 25

days of the victim having gone missing, she

reached home whereafter the information regarding

her arrival was given to the police. He accompanied

the victim to the police station but was not

questioned by the police officer. Only his brother

was questioned by the police officer. He has denied

the suggestion that because of P.W-3 having

chastised the victim for having come home late in

the night, she became angry, left the home and

falsely alleged act of sexual intercourse against

Respondent No. 2.

11. Compared to this statement of P.W-2, it Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

would be profitable to refer to deposition of P.W-6,

('Y') the father. He claims to have gone to the

house of Respondent No. 2 on 17 th March, 2015

after coming back from Bombay. On the request of

P.W-3 and taking into account that wife of P.W-6

was not maintaining good health, he had permitted

his daughter to reside with Respondent No. 2 and

P.W-3 for prosecuting her studies at Sasaram.

12. On 17th March, 2015, when he had gone to

house of Respondent No. 2 to enquire about his

daughter, he did not get any cogent reply

regarding her absence. He was made to understand

that the victim is not to be found and that a case

has been lodged by P.W-3 against unknown for

having abducted the victim, which allegation

ofcourse was on the basis of presumption as the

victim had not returned home. At that time, being

dissatisfied with response of P.W-3 and others, he

went to the police station and gave a report Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

(Exhibit-2) in which he has alleged that the

Respondent No. 2 has intentionally kidnapped the

victim and he might have caused harm to her or

would have sold her to some persons.

13. What is noticeable in his deposition before

the Trial Court is that he claims to have come back

from Bombay on 8th February only. Another

statement which raises eye-brows regarding his

being truthful, is his disclosure before the Trial

Court that the victim came back after about 8 to 9

days and before she had gone missing, she had

been residing with Respondent No. 2 and P.W-3

only for two or three days. All the above noted

statements are not borne out by the records or the

statements made by other witnesses.

14. The victim, P.W-3 and the uncle of the

victim, namely, P.W-2 have all stated that the

victim came back home after 20 to 25 days and

had been residing with P.W-3 and Respondent No. Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

2 for the last 4 to 5 months. If the father of the

victim had come back to his home from Bombay on

8th of February, 2015, there was no justifiable

reason for his having visited the house of P.W-3

or Respondent No. 2 on 17th of March especially,

when he claims to be totally ignorant of the fact

that the victim had gone missing from 25.02.2015.

If P.W-6 is to be believed, he learnt about the

victim having gone missing only on 17 th of March

and not before.

15. How to reconcile the deposition of P.W-6 who

is the father of the victim and P.W-2 who is the

uncle of the victim and who has categorically

stated before the Trial Court that immediately after

the victim having gone missing? P.W-3 had

informed the family members including him about

the victim having gone missing. He has also stated

that on learning this fact, he along with P.W-6

visited the house of P.W-3 and Respondent No. 2. Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

16. Seen in this backdrop, we found it very

necessary to examine the deposition of the victim

rather intently. In her 164 Cr.P.C. statement, the

victim has disclosed her age to 16 ½ and the time

of Trial, she has stated her age to be 18 years.

17. The records reveal that she was subjected to

medical examination but the medical examination

report has not been brought on record. That would

have been the surest clincher about the victim

being a minor at the time of the occurrence.

18. The I.O of this case also has not been

examined.

19. The victim has stated before the Trial Court

that she had met Respondent No. 2 at the bus-

depot and on his insistence, accompanied him on a

bus to some destination which she later realized

was not on the way to Mundeshwari Temple where

respondent no. 2 had promised to take her. Rather,

she was made to walk on foot for a long time, Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

whereafter she was put up in a room with

practically no furnishing, in a stand alone house at

the end of a village. The victim did not find any

house in the neighbourhood or in her line of vision.

She claims to have been raped by Respondent No.

2 for all the 20 to 25 days that she was lodged in

that particular home.

20. The place where she was kept in confinement

was never visited by anyone.

21. Which was that place ? Was it in the same

district? All these facts remains unknown especially

because the I.O has not been examined in this

case. The victim has not made any statement with

respect to her fooding or regarding treatment to

her while she was in the captivity of Respondent

No. 2. All that she has stated is that the

Respondent No. 2 used to keep her locked in the

room whenever he went out. This continued for

about 20 to 25 days. On the last day of her Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

captivity, she has stated that Respondent No. 2

took her to a desolate place somewhere in middle

of the field and asked her to go back to her home

and not to report the occurrence to anybody or else

he would cause harm to his parents. While coming

back to her home from the place where she was

left, she met several persons of her own village,

but with them, she did share anything. Did she

walk the whole distance? Was the place she left

located close to her house? These are all questions

which have remained unanswered. Did the victim

ever come out of the room in the absence of

Respondent No. 2 ? Did Resondent No. 2 remain in

the house for all the 25 days ?

22. We are also in a quandary for another

reason. Did she suspect such foul intention of

Respondent No. 2 in whose house she has come to

reside voluntarily? Did she have complaints against

her aunt/P.W-3 ? It appears to be rather strange Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

that the victim would accompany Respondent No.

2 to a desolate place on his asking and luring her

to take a visit at the Mundeshwari Temple.

23. These aspects reveal that something may

have happened which may not meet the eye

especially in view of such mendacious statements

by the witnesses and the victim herself. What

provision was made by Respondent No. 2 for the

fooding of victim for all 25 days?

24. We do reckon that it is not necessary for a

victim of sexual assault, especially at the hands of

her own relative, to state everything in detail in her

164 statement or before the Trial Court. But if a

woman has remained in the captivity for 20 to 25

days, these small bits of facts would assume

importance, If not for the purposes of testing the

veracity of statements made by her then for

testing whether anybody visited the house in the

meanwhile or whether the victim had an Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

opportunity of exit in the absence of Respondent

No. 2.

25. Seen in this background, the entire story of

the captivity for 20 to 25 days in a desolate place

with nothing in the neighbourhood, appears to be

rather doubtful.

26. The victim came back home straightaway

from the place where she was left. P.W-2 took her

to the police station on the next day, on which

date, perhaps the 164 Cr.P.C statement of the

victim was recorded. This was on 28.03.2015.

P.W-2, as we have noted, had gone to the house

of Respondent No. 2 and he was accompanied by

P.W-6. This had happened immediately after the

lodging of the F.I.R by P.W-3.

27. Where was P.W-6 all this while? P.W-6,

according to him only, had come back from

Bombay on 8th of February, 2015 i.e. much before

the victim went missing.

Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

28. These are some of the aspects which were

taken note of by the learned Trial Court in rejecting

the prosecution case in its entirety.

29. That the I.O was not examined at Trial Court

and the medical examination report was not

brought on record further created doubt in the

mind of the Trial Court.

30. How to adjudge that the victim was a minor

at the time of occurrence for presuming the mental

culpability under the POCSO Act, 2012?

31. It has long been settled that determination of

age of a victim is also equally important, specially

in view of the stringent provisions in the POCSO

Act, 2012. This perhaps left the Court with no

other information about the age of the victim

except what was projected by the victim herself,

which may or may not have been correct.

32. The victim has not raised any accusative

finger at P.W-3 as an abettor to the crime. Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

33. Did something go wrong somewhere in the

relationship ?

34. The victim while narrating her woes in her

164 statement conceded that she used to cook

food for P.W-3 and Respondent No. 2. Was she

made to work like a maid-servant which had irked

her. Were the P.W-3 and Respondent No. 2 not

affectionate towards her ? Did they renege from

promise of keeping the victim well in their house,

which could have irked the victim in alleging such

things against Respondent No. 2? These are, for

sure, conjectures but in the absence of the

would be perfectly entitled to raise these doubts

against the accusation made against him.

35. Though in an appeal against an acquittal, the

Appellate Court can re-appreciate, review and

reappraise the evidence but what cannot be

forgotten is that in cases of acquittal, there is a Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

double presumption in favour of the accused.

Firstly, the presumption of innocence is available to

him under the fundamental principle of criminal

jurisprudence that every person should be

presumed to be innocent unless he is proved to be

guilty by a Court of law. Secondly, the accused

having secured an acquittal, the presumption of his

innocence is certainly not weakened but only

reinforced, re-affirmed and strengthened by the

Trial Court.

36. The law, we need not repeat, is well

explained and settled that while deciding an appeal

against an acquittal, the power of the Appellate

Court is no less than the power exercised by the

Trial Court, but the Appellate Court has to bear in

mind and adhere to the age-old principle that if two

reasonable conclusions are possible on the basis of

evidence on record, the Appellate Court ought not

to disturb the findings of acquittal recorded by the Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

Trial Court.

37. We are conscious of some of the decisions

which have struck a different note where it has

been held that unless there is a substantial and

compelling reason or good and sufficient grounds or

very strong circumstances, ordinarily the verdict of

the Trial Court ought not to be reversed. But

finding no such limitation under the proviso to

Section 372 and 378 of code of criminal procedure,

we have found that it is difficult to place complete

reliance on the deposition of the victim. In the

same breath, we may not shy away from holding

that the conclusions of the Trial Court do not

appear to be distorted to us. There is no glaring

mistake in the judgment of the Trial Court and all

the circumstances have been discussed in a cogent

manner.

38. The Trial Court has given benefit of doubt to

Respondent No. 2.

Patna High Court CR. APP (DB) No.1087 of 2017 dt.12-09-2023

39. We, for the reasons recorded in the preceding

paragraphs, put our imprimatur on such finding and

dismiss this appeal.

40. The appeal is dismissed.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J)

Mayank/Sunilkr.

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          15.09.2023
Transmission Date       15.09.2023