Patna High Court
Doman Mahto vs The State Of Bihar on 6 August, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.274 of 2023
Arising Out of PS. Case No.-499 Year-2018 Thana- KAHALGAON District- Bhagalpur
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Doman Mahto, Son of Late Shankar Mahto, Resident of village-
Maheshmunda, Bind Toli, P.S.- Kahalgaon, Distt.- Bhagalpur
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant/s : Mr. Manoj Kumar Jha, Advocate
For the Respondent/s : Mr. Mukeshwar Dayal, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 06-08-2024
This appeal has been preferred by the
appellant/convict under Section 374(2) of the Code of
Criminal Procedure (hereinafter referred to as 'the Code')
challenging the impugned judgment of conviction dated
24.11.2022
and order of sentence dated 02.12.2022 passed
by learned Exclusive Special Court (POCSO Act)-cum-7th
Additional Sessions Judge, Bhagalpur in POCSO Case
No.3935 of 2018 arising out of Kahalgaon P.S. Case No.499
of 2018, whereby the concerned Trial Court has convicted
the appellant/convict for the offences punishable under
Section 376 of the Indian Penal Code (for short 'IPC') and
Section 6 of the Protection of Children from Sexual Offences
Act (for short 'POCSO Act) and sentenced to undergo
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
rigorous imprisonment for ten years with fine of Rs.10,000/-
and in default of payment of fine, to further undergo simple
imprisonment for three months under Section 6 of the
POCSO Act. No separate sentence is awarded for the offence
punishable under Section 376 of the IPC.
2. The case of prosecution, in brief, as available
through written information of informant/PW-1, which is the
basis of FIR is that on 31.07.2018 at about 11.00 A.M., her
neighbour, namely, Doman Mahto (appellant/convict), son of
late Shankar Mahto came to her house and took away her
daughter (victim)/PW-2 on pretext of providing biscuit.
Whereafter, at about 12 O' clock, her minor daughter
returned crying and said that appellant/convict made an
attempt to commit wrong with her, from where she anyhow
managed to escape. The appellant/convict was alleged to be
in drunken condition.
3. With aforesaid factual allegation, informant/PW-
1 requested to the S.H.O., Kahalgaon Police Station for
taking appropriate legal action against the appellant/convict,
whom she handed over to police after apprehending him with
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
the help of others.
4. On the basis of aforesaid information of
informant/PW-1, the police registered Kahalgaon P.S. Case
No.499 of 2018 dated 31.07.2018 for the offences
punishable under Sections 376, 511 of the IPC, Sections 3/4
of the POCSO Act and Section 37(c) of the Bihar Prohibition
and Excise Amendment Act, 2016, arraying
accused/appellant, Doman Mahto as an accused.
5. After completion of investigation and on the
basis of materials collected during investigation, the
Investigating Officer of this case (PW-4) submitted charge-
sheet No.227 of 2018 dated 24.09.2018 for the offences
punishable under Sections 376, 511 of the IPC, Section
37(c) of the Bihar Prohibition and Excise Act, 2016 and
Section 8 of the POCSO Act, 2012. The learned trial court
after supplying the police papers under Section 207 of the
Code framed charges under Sections 376, 511 of the IPC
and under Section ¾ of the POCSO Act and also under
Section 37(c) of the Bihar Prohibition and Excise Act, 2016
on 11.12.2020, later on, charges were altered and framed
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
under Section 5/6 of the POCSO Act vide order dated
03.01.2022 through order-sheet dated 24.11.2022, the date
on which the judgment was pronounced, which were
explained to the appellant/convict to which, he pleaded not
guilty and claimed to be tried.
6. To substantiate its case, the prosecution has
examined altogether four witnesses. They are:- (i) PW-1
Mother of the victim (X); (ii) PW-2 the victim (X-1);
(iii) PW-3 Dr. Pusp Sudha, who has examined the victim
and; (iv) PW-4 Mr. Sugriv Singh, who is Investigating
Officer of this case.
7. Apart from the oral evidence, the prosecution
has also relied upon following exhibits/documentary
evidences, which are:-
(i) Exhibit -P-1 Medical Report
(ii) Exhibit-P-2 Formal FIR
(iii) Exhibit-P-3 Charge-sheet
8. On the basis of evidences/circumstances as
surfaced during the trial, the learned trial court has
examined the appellant/accused under Section 313 of the
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
Code, where he completely denied all the evidences surfaced
during the trial and claimed his complete innocence.
9. The appellant/convict in order to prove his
innocence examined one defence witness, who is DW-1
namely, Amar Mahto.
10. Taking note of the evidence as surfaced during
the trial and after considering the arguments as advanced by
both the parties, the learned Trial Court has convicted the
appellant/convict/accused for the offences under Sections
376 of the IPC and Section 6 of the POCSO Act along with
fine whereas the learned trial court has acquitted the
appellant/convict for the offence under Section 37(c) of the
Bihar Prohibition and Excise Act.
11. Being aggrieved with the aforesaid judgment
of conviction and order of sentence, the appellant/convict
has preferred the present appeal.
12. Hence, the present appeal.
Argument on behalf of the appellant/convict:
13. Learned counsel appearing on behalf of the
appellant/convict submitted that the written information of
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
PW-1, which is the basis of present criminal proceeding was
not proved during the trial. It is submitted that the police
submitted charge-sheet in very contradictory manner i.e.
under Sections 376/511 of IPC and Sections ¾ of the
POCSO Act, which itself is sufficient to doubt the case of
prosecution from very inception, as prosecution in itself
under doubt that whether this is a case of attempt for
penetrative sexual assault or in actual penetrative sexual
assault was committed upon the victim. It is further
submitted by learned counsel that the place of occurrence
out of deposition of PW-1, 2 and 4 appears complete
contradictory, because PW-1 is stating that the occurrence
took place in forest, where PW-2, the victim said that the
occurrence took place in field, where as per the Investigating
Officer/PW-4, it appears that the occurrence took place in
the house of appellant/convict.
13.1. Learned counsel also pointed out that the
deposition of PW-3, who conducted medical examination
upon victim within 24 hours of the occurrence, did not find
any violence of sexual assault in or around the private part
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
of the victim. It is also highlighted out of deposition of PW-1
that the appellant/convict was in previous enmity with the
family of victim and there was a dispute regarding
passage/way between the parties. It is also submitted that
the time of occurrence out of deposition of victim is highly
doubtful, as she deposed that it took place at about 6.00
P.M., thus by falsifying the entire case of prosecution.
13.2. While concluding the argument, it is
submitted that as prosecution has failed to prove the
foundational aspect qua crime in question, therefore, the
provision of presumption as available under Section 29 of
the POCSO Act is bad in the eyes of law and, therefore, the
judgment of conviction as recorded by the learned trial court
is liable to be quashed/set aside.
Argument on behalf of the State:
14. Learned APP while opposing the appeal
submitted that the victim was between the age group of 5-6
years at the time of occurrence and she categorically stated
during trial that appellant/convict committed wrong work
with her. It is also submitted that the doctor, upon
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
examination, found the age of victim between 5-6 years also
and moreover, the victim as a child within the meaning of
Section 20(1)(d) of the POCSO Act was not disputed by
appellant/convict during the trial and, therefore, the import
of presumption as available under Section 29 of the POCSO
Act cannot be viewed with doubt.
14.1. It is submitted that in view of specific
deposition of victim against the appellant/convict as to
commit wrong work with her, who is much less than 12
years of age on the date of occurrence, the conviction
recorded under Section 6 of the POCSO Act is justified.
Hence, there is no occasion for this Court to interfere with
the present judgment of conviction as recorded by the
learned trial court.
15. I have perused the trial court records carefully
and gone through the evidences available on record as also
considered the rival submissions as canvassed by learned
counsel appearing on behalf of the parties.
Discussion and Conclusion:-
16. The most important witness of this case is the
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
victim herself, who at the time of occurrence was between
age group of 5-6 years. It appears from her deposition that
she came to court only to send the appellant/convict to jail.
While putting a question by the court to victim that what was
done by appellant/convict, it was deposed by her that while
her mother (PW-1) was sleeping, the appellant/convict came
to her house and after persuading her, taken to the field side
of the village, where he opened her paint and committed
wrong work with her. She returned back to home and
nothing disclosed to anyone. Upon cross-examination, she
stated that she has no knowledge about the date of
occurrence. She stated that occurrence took place at about
6.00 P.M. and she was examined medically. It also appears
from her deposition that she was the student of Class-II. In
view of aforesaid deposition of victim, facts which appears
regarding crime in question, is that the occurrence took place
in the field of village at about 6.00 P.M. whereafter victim
returned to home on her own and did not disclose the
occurrence to anyone.
17. From the deposition of PW-1/informant, who
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
is mother of the victim, it appears that at the time of
occurrence, the age of her daughter was about 8 years,
where occurrence took place before 3-3½ years,
contradicting the age of victim at the time of occurrence.
She stated that the appellant/convict accompanied her
daughter on pretext of providing biscuit and committed rape
upon her after taking her in a forest. When she called
appellant/convict on mobile, it was found switched off.
Thereafter, searching for victim along with others she went
upto near a temple of village and by that time, the
appellant/convict told her daughter to go with her mother
and he also came over there later on and stated that he
committed rape upon her daughter and now he will rape her
also. Upon cross-examination, she denied any relation with
appellant/convict. She further stated that on the date of
occurrence, appellant was in drunken condition. She arrested
appellant with the help of 2-4 persons. They also assaulted
him. She even failed to disclose that who called the police.
Though, she stated in her examination-in-chief that written
information was drafted by advocate, but in cross-
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
examination, she stated that she made her statement before
police, who reduced the same in writing. She further stated
that the appellant/convict prior to this occurrence assaulted
her and her husband. She denied the suggestion that there
is any dispute regrading passage with appellant/convict. She
failed to disclose about the date of occurrence.
18. As per deposition of PW-3 Dr. Pusp Sudha,
who is a doctor and conducted medical examination upon
victim, found the age of victim between the age group of 5-6
years. She specifically opined that as per clinical finding,
there is no clinical evidence of rape. She also found that
there is no sign of violence present in or around vagina or
any part of body. She also found that there is no sign of
foreign body/foreign discharge present in or around vagina
or any part of body. Upon pathological examination, there
was no spermatozoa in vaginal swab of victim.. The said
medical report was exhibited by Exhibit No. P-1. The
testimony of doctor clearly negate penetrative sexual assault
upon victim.
19. PW-4 is the Investigating Officer, who
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
categorically stated that the place of occurrence of crime in
question is the house of appellant/convict contradicting the
version of PW-1 and PW-2. He identified the signature of the
then S.H.O., namely, Baidya Nath Vedic Pathak upon formal
FIR and upon his identification, the formal FIR was exhibited
as Exhibit No. P-2. He also identified his hand-writing and
signature on charge-sheet dated 24.09.2018 bearing no.
227/2018, where he submitted charge-sheet against the
appellant/convict under Section 376, 511 of the IPC and
also Sections ¾ of POCSO Act. Upon his identification, the
said charge-sheet was exhibited as Exhibit No. P-3.
19.1. Upon cross-examination, he stated that the
appellant/convict was handed over to him by villagers in
drunken condition. He did not recorded the name of
villagers. He further stated that he did not recorded the
statement of victim during investigation and also her
statement under Section 164 of the CrPC.
20. From the aforesaid depositions, it appears
that the victim was a school going children and she was the
student of Class-II but, her birth certificate was not
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
produced/proved before the Court, which may be the best
document/evidence as to establish her "child" within the
meaning of Section 2(1)(d) of the POCSO Act.
21. Considering the statement of victim/PW-2, her
mother/PW-1, Doctor/PW-3, her age appears variable on the
date of occurrence. From the deposition of PW-4, it appears
that neither the statement of victim was recorded under
Section 161 of the CrPC nor under Section 164 of the CrPC.
The time of occurrence is also appears doubtful as PW-1
stated through her written information (not proved) that it
took place somewhere between 11.00-12 O'clock on
31.07.2018, whereas as per victim/PW-2, the occurrence
took place at about 6 P.M. The place of occurrence is also
appears variable, where PW-1 stated that it was the forest,
PW-2/victim stated that it was the field and PW-4/I.O.
stated that it was the house of appellant/convict.
22. If the statement of victim be taken into
consideration, it appears that she came to her house after
the occurrence on her own and she did not disclose the
occurrence to anyone, which appears completely contrary to
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
that of statement of PW-1/mother, who stated that her
victim daughter returned to home crying at about 12 O'
clock and stated that appellant/convict made an attempt to
commit rape upon her on pretext of providing biscuit. It is
also appearing from the testimony of PW-1 that it was the
appellant/convict, who asked the victim to go near the
temple, where her mother (PW-1) was standing along with
others and thereafter, he also came over there and said that
he committed rape upon her daughter and now he will
commit rape upon her. PW-1 categorically stated that the
accused/appellant was not apprehended by co-villagers,
whereas PW-4 stated that it was the co-villagers, who
handed over the appellant to him in drunken condition.
23. Having all such contradictions, it is clear
beyond any doubt that the prosecution has failed to
established the foundational aspect to import the
presumption as available under Section 29 of the POCSO
Act.
24. In view of above, it can be said safely that
the prosecution has failed to established its case during the
Patna High Court CR. APP (SJ) No.274 of 2023 dt.06-08-2024
trial by proving charges levelled against the
appellant/convict.
25. Accordingly, appeal stands allowed.
26. The impugned judgment of conviction dated
24.11.2022 and order of sentence dated 02.12.2022 passed
by learned Exclusive Special Court (POCSO Act)-cum-7th
Additional Sessions Judge, Bhagalpur in POCSO Case
No.3935 of 2018 arising out of Kahalgaon P.S. Case No.499
of 2018, is hereby quashed/set aside.
27. The appellant/convict, Doman Mahto is
acquitted from the aforesaid charges levelled against him.
He is directed to be released forthwith, if not required in any
other case.
28. Office is directed to send back the trial court
records along with a copy of the judgment to the learned
trial court forthwith.
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 09.08.2024
Transmission Date 09.08.2024
