Patna High Court
Alok Kumar vs The State Of Bihar on 8 August, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.567 of 2023
Arising Out of PS. Case No.-97 Year-2021 Thana- ROSHANGANJ District- Gaya
======================================================
1. Alok Kumar, aged about 24 years, male, Son of Charitar Choudhary @
Chalitar Choudhary, R/o Village-Tarwan, Saifganj, P.S.-Bankey Bazar,
District-Gaya.
2. Birju Kumar, aged about 25 years, male, Son of Mahendra Choudhary, R/o
Village-Tarwan, Saifganj, P.S.-Bankey Bazar, District-Gaya.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 830 of 2023
Arising Out of PS. Case No.-97 Year-2021 Thana- ROSHANGANJ District- Gaya
======================================================
Pradeep Kumar @ Zero, aged about 26 years, male, Son of Munna Bhuiyan
Arjun @ Arjun Rikyashan, R/o Village-Tarwar, P.S.-Roushanganj, District-
Gaya.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 567 of 2023)
For the Appellant/s : Ms. Soni Shrivastava, Adv.
Mr. Yogesh Kumar, Adv.
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
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Mr. Ravi Bhardwaj, Adv.
For the State : Mr. Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 830 of 2023)
For the Appellant/s : Mr. Rama Kant Singh, Adv.
For the State : Mr. Ajay Mishra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 08-08-2024
Both the appeals have been taken up
together and are being disposed off by this common
judgment.
2. We have heard Ms. Soni Shrivastava, the
learned Advocate for the appellants/Alok Kumar and
Birju Kumar in Cr. Appeal (DB) No. 567 of 2023 and
Mr. Rama Kant Singh, the learned Advocate for the
appellant/Pradeep Kumar @ Zero in Cr. Appeal (DB) No.
830 of 2023.
3. The State, in both the appeals, has been
represented by Mr. Bipin Kumar and Mr. Ajay Mishra,
the learned Additional Public Prosecutors respectively.
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
3/16
4. Appellant/Pradeep Kumar [Cr. Appeal
(DB) No. 830 of 2023] has been convicted for the
offences under Section 4 of the Protection of Children
from Sexual Offences Act, 2012 (in short the POCSO
Act, 2012) as also under Sections 376 and 366-A of the
Indian Penal Code (in short the IPC) vide judgment
dated 26.04.2023 passed by the learned Exclusive
Special Judge, POCSO-Cum-Additional Sessions Judge-
VII, Gaya in POCSO Case No. 109 of 2021 arising out
of Roushanganj (Banke Bazar) P.S. Case No. 97 of
2021. By the same judgment, appellants/Alok Kumar
and Birju Kumar [Cr. Appeal (DB) No. 567 of 2023]
have been convicted for the offences under Section 17
read with Section 4 of the POCSO Act, 2012 and Section
366-A of the IPC. By order dated 29.04.2023,
appellant/Pradeep Kumar @ Zero has been sentenced to
undergo R.I. for life and to pay a fine of Rs. 50,000/-
for the offences under Section 4 of the POCSO Act,
2012 and Section 376 of the IPC. For the offence under
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
4/16
Section 366-A of the IPC, he has been sentenced to
undergo R.I. for five years and to pay a fine of Rs.
25,000/-. By the same order, appellants/Alok Kumar
and Birju Kumar have been sentenced to undergo R.I.
for life and to pay a fine of Rs. 50,000/- each for the
offence under Section 17 read with Section 4 of the
POCSO Act, 2012. They have further been sentenced to
undergo R.I. for five years and to pay a fine of Rs.
25,000/- each for the offence under Section 366-A of
the IPC.
5. The sentences have been ordered to run
concurrently.
6. The victim, touted to be 17 years old at
the time of the occurrence, was kidnapped on
27.07.2021
. The FIR was registered by her father on
28.07.2021 alleging that the appellant/Pradeep Kumar
has enticed away her daughter for the purposes of
marrying her. He also provided the mobile telephone
number of afore-noted Pradeep Kumar. Appellant/Alok
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
Kumar and Birju Kumar were named by the informant as
the associates of Pradeep Kumar, who helped him in
taking away the victim.
7. On the basis of the afore-noted written
report by the father of the victim, namely, Kauleshwar
Sao (P.W. 4), a case vide Raushanganj (Banke Bazar)
P.S. Case No. 97 of 2021 was registered for
investigation on 28.07.2021 for the offences under
Sections 366-A/34 of the IPC and Sections 8 and 12 of
the POCSO Act, 2012.
8. It appears that the victim was recovered
on the very next day. However, according to the version
of the victim herself, she was kept in confinement for
three days, whereafter she was brought to Dumariya
Police Station by appellant/Pradeep Kumar @ Zero.
9. The learned Advocates for the appellants
have submitted that an absolutely false case has been
lodged by the father of the victim, which would appear
from the very fact that he knew about the identity of
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
appellant/Pradeep Kumar as well as of appellants/Alok
Kumar and Birju Kumar. He also knew about the mobile
telephone number of appellant/Pradeep Kumar. It has
further been submitted that evidence has been garnered
during Trial that near the house of appellant/Pradeep
Kumar, there is a ditch where the rain water gets
accumulated, which is the bone of contention between
his family and the family of the victim.
10. Apart from this, it has been pointed out
by the learned Advocates for the appellants that Ram
Ratni Devi, who was tried along with the appellants but
who has been acquitted, is not a member of the family
of the informant but is only distantly related, whose
house is situated at some distance.
11. It would be more apposite to first refer
to the deposition of the victim herself in order to find out
whether the contention of the appellants that they have
been falsely implicated in this case is correct.
12. The victim (P.W. 2) claims to be of 17
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
years of age when the occurrence had taken place. She
had taken admission in 9th standard and her date of
birth, according to her, is 04.02.2005. However, with
respect to the date of occurrence, P.W. 2 repeatedly
spoke about the occurrence having taken place on 27 th
of March, 2021 and not 27th of July, 2021. While she
was going to a shop to bring some colouring agent and
reached near the house of appellant/Pradeep, she met
Ram Ratni Devi who ushered her to her home.
Thereafter, Pradeep came. He was followed by 3 - 4
other boys including appellants/Alok Kumar and Birju
Kumar. The room was locked from outside and
appellant/Alok took a video-graph of the victim and
appellant/Pradeep. The video-graph was also uploaded
on the Whatsapp. Thereafter, according to P.W. 2, she
was forced to come to Dobhi park where she and
Pradeep were left alone and the other accused
persons/appellants went away. She was kept at Gaya
Railway Station where she was subjected to rape for
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
whole night. On the next day, she was taken to
Dumariya Police Station by appellant/Pradeep Kumar
himself.
13. This appears to be rather strange for
two reasons. The victim came on foot from the house of
appellant/Pradeep to the Railway Station, Gaya. She
was kept at Gaya Railway Station for whole of the night.
It is absolutely unbelievable that she would be subjected
to sexual intercourse on the railway platform and if that
were so, appellant/Pradeep, the perpetrator of the
offence, would have himself volunteered to bring her to
Dumariya Police Station.
14. The story does not appear to be
probable.
15. P.W. 2, in her cross-examination, has
spoken about the members of her family, but what is
most noticeable is that she has claimed to come back to
her home only after three days. While she was at Banke
Bazar Police Station, her father and brother were
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
present there and in their presence, the case was
lodged. She has stated before the Trial Court that she
had lodged the case.
16. It was pointed out by the learned
Advocates appearing for the appellants that if she was
the informant of the case, her FIR is inexplicably non-
existent and the police had proceeded on the FIR lodged
by her father in Banke Bazar Police Station.
17. After speaking about Ram Ratni Devi, a
co-accused who has since been acquitted, P.W. 2 has
also spoken about the dispute between Ram Ratni Devi
and her family. On being specifically questioned, she
has stated that even though she was threatened by the
accused persons including the appellants, she never
sought any help and did not shout to attract the
attention of people. She saw many pedestrians while
coming to the railway station. There is nothing in her
deposition which would indicate that she was under any
threat for her life if she ever shouted. She has also
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
gone to the extent of saying that she was brought to
railway station on a motorcycle and all the three
appellants were seated on the same motorcycle along
with her.
18. This again does not appear to be
believable.
19. She was brought to the Gaya Railway
Station at about 08:00 P.M., when no effort was made
by her to run away to safety. A close look at her
deposition makes the entire fabric of the prosecution
absolutely doubtful.
20. It appears that P.W. 2/victim had come
out of her house of her own volition, but for some
reason or the other, she was brought to Dumaria Police
Station by Pradeep from there, information was sent to
Bankey Bazar Police Station. Then, perhaps the victim
was brought to Bankey Bazar Police Station and the case
lodged by her father was proceeded upon and
investigation was carried out mechanically.
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
21. We say so for the reason of the
disclosures made by the Investigators of this case.
22. Shankar Kumar Sinha, the first of the
Investigators (P.W. 9), has stated that on registering the
FIR at Bankey Bazar Police Station, he learnt that the
victim has presented herself at Dumaria Police Station.
He also learnt from the members of the family of the
victim that appellant/Pradeep is waiting at the bus stand.
On such information, appellant/Pradeep Kumar was
arrested and later, was remanded to custody.
23. This fact itself demonstrates that since
appellant/Pradeep had brought the victim to Dumaria
Police Station, for reasons which remain unknown to us,
the Police Officers at Dumaria Police Station, on learning
the identity of the victim, informed the Bankey Bazar
Police Station where the father of the victim also arrived.
24. This proposition gets support from the
deposition of the father of the victim, viz., Kaleshwar
Prasad @ Kaleshwar Sao/P.W. 4. In his examination-in-
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
chief, P.W. 4 has stated that he received a telephone call
from Bankey Bazar Police Station on 28th of July, when
he visited the police station. The written report was
drafted by one Naresh Jee of Bankey Bazar, which was
signed by him. He was told there that his daughter and
appellant/Pradeep Kumar are at Dumaria Police Station.
He, thereafter, went to Dumaria Police Station where he
met his daughter. His daughter gave her statement then
and, thereafter, was subjected to medical examination.
All these only signify that, perhaps, the victim ran away
from her home out of her association and liking for
appellant/Pradeep Kumar, and Pradeep, in order to avoid
any further confusion and problem, surrendered before
the Dumaria Police Station.
25. As analyzed by us, these facts clearly
reveal that P.W. 4 did not have any idea about his
daughter having been enticed away, but only learnt
about the presence of his daughter and
appellant/Pradeep Kumar at Dumaria Police Station
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
when he received a telephone from Bankey Bazar Police
Station.
26. There could have been no other reason
for the appellant/Pradeep Kumar to have himself gone to
Dumaria Police Station along with the victim except for
presenting himself before the police, so that he is not
accused of any other offence later.
27. It appears that only thereafter, the
story of the victim being kept at railway station in
confinement for two more days was developed by the
prosecution.
28. The entire story line of the prosecution
is fraught with absurdities.
29. Per-force, we have examined the
deposition of the Doctor who had examined the victim,
viz., Dr. Sushma Verma (P.W. 3). She had examined
the victim on 30th of July, 2021. She had found no
mark of violence on any part of her body. No external
injuries were found on the private parts of the victim.
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
The fusion was evident from the radiological
examination, which depicted the adulthood of the victim.
She was assessed to be of 19 years of age.
30. The hymen though was found to be
ruptured.
31. Though an attempt has been made by
the prosecution through the mouth of ten of the
witnesses, two of whom have been declared hostile, to
put up a case of the victim having been enticed away
and raped by appellant/Pradeep Kumar and the two
other appellants, viz., Alok Kumar and Birju Kumar
having assisted Pradeep, but the statement of the victim
and her father as also of the Investigators make it clear
that the entire story was cooked up.
32. However, we are surprised and
perplexed to to find that police also resorted to such
falsehood.
33. We find the prosecution case to be
tottering at all fronts.
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
34. There is no way in which the judgment
and order of conviction of the appellants can be
sustained in the eyes of law.
35. The judgment and order of conviction
and sentence, referred to above, is set aside and the
appellants are acquitted of all the charges levelled
against them.
36. Both the appeals stand allowed and
disposed off accordingly.
37. Since all the appellants, viz., Alok
Kumar, Birju Kumar [Cr. Appeal (DB) No. 567 of 2023]
and Pradeep Kumar @ Zero [Cr. Appeal (DB) No. 830
of 2023] are in jail, they are directed to be released
forthwith, if they are not detained or wanted in any
other case.
38. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
39. The records of these cases be returned
Patna High Court CR. APP (DB) No.567 of 2023 dt.08-08-2024
to the Trial Court forthwith.
40. Interlocutory application/s, if any in
both the appeals, also stand disposed off accordingly.
(Ashutosh Kumar, J)
(Jitendra Kumar, J)
Praveen-II/Saurav
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 08.08.2024
Transmission Date 08.08.2024
