Patna High Court
Vijay Das vs The State Of Bihar on 7 August, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1120 of 2023
Arising Out of PS. Case No.-346 Year-2018 Thana- KAMTAUL District- Darbhanga
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Vijay Das Son of Ganesh Das Resident Of Village - Madhupur, Ps- Kamtaul,
Dist- Darbhanga
... ... Appellant/s
Versus
1. The State of Bihar
2. Mrs. XXX NA NA
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rakesh Kumar Srivastava, Advocate
Mr. Jitendra Kumar, Advocate
For the Respondent/s : Mr. Abhimanyu Sharma, APP
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 07-08-2024
Heard Mr. Rakesh Kumar Srivastava, learned
Advocate for the sole appellant and Mr. Abhimanyu
Sharma, learned APP for the State.
2. The appellant has been convicted under
Sections 376 (AB) and 341 of the IPC and Section 6 of the
POCSO Act vide judgment dated 25.08.2023 passed by the
learned Special Judge, POCSO Act, Darbhanga in POCSO
G.R. No. 57 of 2018/Registration No. 57/2018, arising out
of Kamtaul P.S. Case No. 346 of 2018. By order dated
29.08.2023
, he has been sentenced to undergo R.I. for 20
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
years, to pay a fine of Rs. 10,000/- and in default of
payment of fine, to further suffer S.I. for six months for the
offence under Sections 376 (AB) of the IPC. For the offence
under Section 341 of the IPC, the appellant has been
sentenced to undergo S.I. for one month, to pay a fine of
Rs. 500/- and in default of payment of fine, to further
undergo S.I. for one week. For the offence under Section 6
of the POCSO Act, 2012, the appellant has again been
sentenced to undergo R.I. for 20 years, to pay a fine of Rs.
10,000/- and in default of payment of fine, to further suffer
S.I. for six months.
3. All the aforenoted sentences have been directed
to run concurrently.
4. It may not be out of place here in this context
to state that along with the appellant, his mother Kaushalya
Devi also was put on Trial but she has been acquitted.
5. The FIR was lodged by the mother of the victim
(P.W. 2), who in her written report addressed to the officer-
in-charge of Kamtaul Police Station, Darbhanga had alleged
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
that her neighbour viz. the appellant while taking tuition of
the victim/her daughter and other pupils on her rooftop in
the night of 03.12.2018, tried to outrage the modesty of
the victim.
6. It was alleged by her that on some pretext, the
other pupils were allowed to go and the victim was asked to
stay back. It was then that the appellant sexually
misbehaved with the victim. When the victim narrated
about the incident to P.W. 2 in the evening, she went to the
house of the appellant where she was ill-treated by the
appellant and her mother/Kaushalya Devi. She was also
assaulted and was told to do whatever they could, as
nothing would happen to the appellant.
7. On the basis of the aforenoted written report
referred to above Kamtaul P.S. Case No. 346 of 2018
dated 04.12.2018, initially was registered for investigation
under Sections 341, 323, 354, 354(B), 504, 506 and 34 of
the IPC read with Sections 8 and 12 of the POCSO Act,
2012.
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
8. The learned Advocate for the appellant has
drawn special attention to the aforenoted fact that when the
written report was lodged, the only allegation against the
appellant was of having made some sexual overtures,
bordering on sexual misdemeanor. There was no allegation
of any sexual assault, attracting the offences under
Sections 4 or 6 of the POCSO Act, 2012. The victim was
spoken of by her mother/P.W. 2 as a girl of seven years.
9. The police after investigation submitted
chargesheet, whereupon cognizance was taken and the
appellant was tried.
10. The Trial Court after having examined eight
witnesses on behalf of the prosecution and two on behalf of
the defence, convicted the appellant but acquitted his
mother of the charges referred above.
11. Out of the eight prosecution witnesses,
Kamlesh Das and Ram Sristha Das (P.Ws. 1 and 5) have
been declared hostile.
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
12. It is also worthwhile to mention here that with
respect to the occurrence which had taken place in the
night of 03.12.2018 and for which the FIR was lodged on
04.12.2018, the victim was taken to the Magistrate on
13.12.2018, when her statement under Section 164
Cr.P.C. was recorded. The victim was subjected to medical
examination only on 18.02.2019 i.e. after a delay of 1½
months approximately.
13. It would be appropriate in our estimation to
first refer to the medical evidence, even being conscious of
the fact that medical testimony would not be the surest test
for finding the truthfulness of the allegations.
14. Dr. Sangeeta Singh (P.W. 6) had examined
the victim on 18.02.2019 as referred to above. She did not
see any sign of internal injury but noticed that the hymen
was partially torn. In the genital examination, except for
presence of RBC, epithelial cells and some pus cells,
nothing substantive was found. There was no spermatozoa
present in the vaginal swab. On the basis of radiological
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
examination, the victim was found to be between 8 to 9
years of age.
15. What is relevant to note is the disclosure of
P.W. 6 in her cross-examination. She has stated before the
Court that hymen gets fully developed in a girl at her 12 th
or 13th year. From the clinical examination, she found the
torn hymen of the victim to be of recent past. She has
specifically averred that the torn hymen could be only one
or two days earlier from the date of examination, which
could have happened also due to itching of vaginal cavity or
fingering. This declaration of P.W. 6 was not taken lightly
and she was subjected to further cross-examination and
was asked as to the basis for her disclosure that the torn
hymen was only one or two days old. The answer of P.W. 6
was that such deduction was on the basis of the colour of
the torn hymen.
16. In this context, it would be apposite to refer to
the deposition of the victim herself, who has been
examined as P.W. 3. The Trial Court tested her competence
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
to depose in the voir dire. She narrated about the incident
and disclosed before the Trial Court that the appellant
allowed the other pupils to leave the class. She was asked
to recite the table of three which she could not. Later, the
appellant is said to have mounted upon her and committed
rape.
17. In her cross-examination, however, she has
admitted that the appellant would stand in the relation of a
cousin to her and that his house is situated next to her
house.
18. What has struck our attention is her disclosure
that she was raped by the appellant, while he had mounted
himself on her back and in presence of her mother. The
victim claims to have shouted immediately on the appellant
having attempted to molest her and on such cries, her
mother (P.W. 2) had arrived. The appellant never ran away
even on seeing her mother. On further questioning, she has
stated that the appellant continued to rape her for about an
hour and her mother did not make any attempt to remove
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
her from the clutches of the appellant nor did she make any
attempt to stop the appellant or to apprehend him.
19. She has further disclosed that she had told the
police that when the appellant tried to molest her, she had
shouted whereafter the appellant left her and fled away.
20. The suggestions to her about there being
inimical relationship between the families was but denied.
21. The mother of the victim (P.W. 2) again does
not appear to be very truthful. All her effort was to deny
about any dispute over any portion of land. She has
wrongly denied that the appellant does not hail from the
same stock of family. From the tenor of her deposition, it
appears that she was badly assaulted on 04.12.2018, i.e.,
a day after the occurrence and that she had got herself
treated at D.M.C.H. There is incidentally no report
substantiating the aforenoted accusation.
22. Admittedly, the victim was medically examined
after two months and fifteen days. She denied that the
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
appellant was himself a person of young age, who was
prosecuting his studies at Pupri.
23. What is remarkably noticeable in her
deposition is that according to her and the victim also, the
appellant was teaching the pupils, including the victim, at
about 7.00 P.M. on the rooftop in the month of December.
This does not appear to be probable as by that time, winter
descends and it is not expected that classes would be taken
on the rooftop.
24. Dukhni Devi (P.W. 4) is the grand-mother of
the victim who though has supported the accusation but
was very ambivalent with respect to the relationship of the
appellant with the family of the victim. However, from the
family tree and genealogy given by her, it stood established
that the appellant came from the same stock of family.
25. This takes us to the evidence of the
investigator viz. Sudarshan Kumar Yadav (P.W. 8). He was
posted as ASI in Kamtaul Police Station at the relevant
time, who was handed over the investigation of this case.
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
He had taken the statement of the mother of the victim on
04.12.2018 and had also inspected the place of occurrence.
26. The only thing which he could find of
consequence was that the roof of the house of the appellant
and that of the informant was contiguous. He did not take
care to examine persons of the neighbourhood, but claims
to have examined few of the villagers, none of whom have
been examined at the Trial. He also did not care to find out
the age of the victim nor did he inquire about the school
where the victim went for studies. The statement of the
father of the victim also was not taken by him, without
there being any explanation whether he was present in the
village or had gone somewhere else to earn his livelihood.
27. The latter part of the investigation was
conducted by Anil Kumar (P.W. 7), who only seems to have
got the victim medically examined on 18.02.2019.
28. Apart from this, he was candid enough to
disclose before the Trial Court that he had no idea about
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
the case as he had not recorded the statement of anyone of
the witnesses.
29. On the contrary, the two defence witnesses,
viz., Md. Jaki Ahmad (D.W. 1) and Malkiniya Devi (D.W. 2)
have stated that the appellant never took tuitions and had
been prosecuting his studies in the house of his maternal
grand-father at Pupri, far away from the village of the
occurrence. Both of them also disclosed that there was a
land dispute between P.W. 2 and the mother of the
appellant. Since the houses of the appellant and the victim
are located side by side, very frequently they used to be
fight over the issue of disposal of garbage. They have thus
stated that the appellant has falsely been implicated.
30. True it is that in a case of rape, there may not
be any need for corroboration but only if the victim's
statement is truthful and trustworthy.
31. A victim and that also an 8 to 9 years old girl
is never to be treated as an accomplice in the crime.
However, it would be a travesty of justice, if the allegations
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
are not analyzed appropriately and seen in the correct
perceptive.
32. The evidence on record has to be scrutinized
with great care and circumspection.
33. On perusing the records in detail and on
hearing the parties, we have found that initially the case
was lodged only with the accusation of attempt at
molestation. The victim was examined medically after a
long time. In the medical examination, the torn hymen was
opined to have been caused a couple of days earlier. That
apart, we have taken due notice of the fact that the
allegation of the appellant having committed sexual
misdemeanor with the victim on the rooftop in the night of
a winter month. The victim herself has stated something
which makes her entire deposition untrustworthy.
34. According to her, the mother was present all
through when she was subjected to sexual intercourse. This
does not appear to be possible, especially when the
appellant is related to the victim and the informant. If the
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
victim is to be believed, then perhaps the mother did not
make any attempt to stop the appellant or to apprehend
him for his having committed such an offence with her
minor daughter.
35. It thus appears that the accusation have been
levelled for some ulterior purposes. Though it could not be
deciphered during Trial but from a close look at the
deposition, it appears that there was some dispute with
respect to a parcel of land near the temple and graveyard
in the village.
36. Was this allegation because of that is the
question which has been bothering us all this while.
37. The victim definitely is a minor, as it appears
from the assessment of her age on the basis of radiological
examination and also the date of birth in the school which
she attended.
38. This, itself, would not be sufficient to invoke
the mischief of Sections 29 and 30 of the POCSO Act,
2012, unless it were proved by the prosecution that the
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
offence had taken place and that appellant had committed
sexual intercourse with the victim.
39. We have also noticed that the other pupils
who were named by the victim and their mothers were not
examined. We do not find fault with the Trial Court not
taking any notice of the aforenoted non-examination as it
may not have been all that essential.
40. However, non-examination of one Jivesh Das,
who is said to have drafted the written report assumes
importance, especially when the victim was not subjected to
any medical examination for about more than a month. The
appellant also was not subjected to any medical
examination as mandated under Section 54A of the Cr.P.C.
All these, cumulatively, make the case doubtful against the
appellant.
41. Giving benefit of doubt to him, the appellant is
thus acquitted of the charges.
42. The appeal succeeds.
Patna High Court CR. APP (DB) No.1120 of 2023 dt.07-08-2024
43. The appellant is in jail. He is directed to be
released from jail forthwith, if not wanted or detained in
any other case.
44. Let a copy of this judgment be dispatched to
the Superintendent of the concerned Jail forthwith for
compliance and record.
45. The records of this case be returned to the
Trial Court forthwith.
46. Interlocutory application/s, if any, also stand
disposed off accordingly.
(Ashutosh Kumar, J)
(Jitendra Kumar, J)
krishna/ravi
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 08.08.2024
Transmission Date 08.08.2024
