Patna High Court
Saryu Manjhi vs The State Of Bihar on 2 January, 2024
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.102 of 2022
Arising Out of PS. Case No.-124 Year-2019 Thana- FATEHPUR District- Gaya
======================================================
1. SARYU MANJHI Son of Briksh Manjhi Resident of village - Pakri, P.S. -
Fatehpur, District - Gaya.
2. Ajai Manjhi @ Ajay Son of Late Paro Manjhi Resident of village - Pakri,
P.S. - Fatehpur, District - Gaya.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Mrigendra Kumar, Adv
For the Respondent/s : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE JUSTICE SMT. G. ANUPAMA HAKRAVARTHY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)
Date : 02-01-2024
The appellants have preferred this appeal under Section
374(2) of the Code of Criminal Procedure assailing the
judgment of conviction dated 30.11.2021 and an order of
sentence dated 06.12.2021 passed by the Special Judge,
Exclusive POCSO Court cum ADJ-VI, Gaya, in connection with
POCSO Case No. 52 of 2019 CIS No. POCSO 52/2019 arising
out of Fatehpur P.S. Case No. 124 of 2019 whereby and
whereunder, the appellants have been convicted and sentenced
as under:-
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
2/16
Appellant Saryu Manjhi
Penal Sentence
Provision
Imprisonment Fine (Rs.) In default of
fine
Section 6 of RI for 25 years Rs. 10,000/- Six months
the POCSO
Act
Section ----------------- -------------------- ---------------
376AB
Appellant Ajai Manjhi
Penal Sentence
Provision
Imprisonment Fine (Rs.) In default of
fine
Section 6 of RI for 25 years Rs. 10,000/- Six months
the POCSO
Act
Section ----------------- -------------------- ---------------
376AB
2. The age of the victim for the purpose of present
adjudication is not in dispute. In the FIR, the victim's age has
been mentioned as three years by her mother who is the
informant. During the medical examination, her age has been
found to be 3 to 4 years. In the assessment of the trial court, as
on the date of her evidence on 27.01.2021, the victim's age was
four years.
3. A written complaint of the victim's mother (PW-1)
addressed to the Officer-in-charge of Fatehpur PS dated
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
3/16
24.05.2019
is the basis for registration of the connected
Fatehpur PS Case No. 124 of 2019 disclosing commission of
the offences punishable under Section 376AB of the Indian
Penal Code and Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to the as the
'POCSO Act' in short). It was alleged in the written complaint
of the informant that in the night of 23.05.2019, the informant
and other family members were sleeping after having taken their
meals. At about 3:00 am when the informant's son (not
examined), returned after having attended a marriage function,
he noticed the absence of the victim in the house. During the
course of rigorous search for her they learnt that these appellants
had kidnapped the victim and taken her to Sevari Nagar village
and and committed rape upon her. When the villagers raised
hulla, they escaped leaving the victim behind. The victim was
subjected to medical examination on 25.05.2018 at 2:25 pm.
The Doctor (PW-2) found rupture of hymen and third degree
perineal tear. Scratch marks on the face and neck of the victim
of 48-72 hours of duration were also found.
4. It is the prosecution's case that these appellants had
confessed their guilt in their statements made before the Sub
Inspector Abujar Ansari on 26.05.2019. In the wake of the
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
disclosures said to have been made by these appellants before
the police one Shintu Manjhi was also made an accused. Clothes
which the victim was wearing were sent for forensic
examination.
5. The police upon completion of investigation
submitted chargesheet on 31.10.2019 against three persons
including these two appellants for commission of the offences
punishable under Sections 376AB/376DB/120B/34 of the Indian
Penal Code and Section 6 of the POCSO Act, whereupon
cognizance of the aforesaid offences was taken.
6. It further appears that the case records of accused
Shintu Manjhi was separated and sent to the Juvenile Justice
Board in the light of claim of juvenility made on his behalf. It
was in that background that these two appellants stood charged
of commission of the offences punishable under Sections
376AB of the IPC and Section 6 of the POCSO Act. .
7. At the trial prosecution examined altogether six
witnesses including the victim (PW-5) and her mother, the
informant (PW-1). One Munni Devi, a resident of village Sevari
Nagar where the occurrence had taken place deposed at the trial
as PW-3. The Investigating Officer deposed as PW-6 and the
Doctor who had examined the victim as PW-2. The lady police
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
officer posted as Officer-in-charge of Mahila PS, Gaya who had
recorded the statement of the informant on 25.05.2019 deposed
as PW-4 at the trial. In addition to the oral evidence of the
prosecution's witnesses, the prosecution brought on record
following documentary evidence:-
Sr. Exhibit Number Description
No.
1. Exhibit P-1/PW1 Written application of FIR doc
2. Exhibit P-2/PW2 Medical Report of the victim
3. Exhibit P-3/PW4 Statement of informant
4. Exhibit P-4-PW6 Confessional Statement of accused
Ajai Manjhi
5. Exhibit P-4/1-PW6 Confessional statement of accused
Sintu Manjhi
6. Exhibit P-4/2-PW6 Confessional statement of accused
Sarju Manjhi
7. Exhibit P-5-PW6 Seizure list
8. Exhibit P-6 PW-6 Formal FIR
9. Exhibit P-7 Statement of victim recorded u/s
164 CrPC
10. Exhibit P-8 F.S.L report
8. After closure of the prosecution's evidence, the
appellants were examined under Section 313 of the CrPC so as
to give them an opportunity to explain the circumstances
emerging against them based on the evidence adduced at the
trial. The appellants denied the aforesaid circumstances.
9. The defence examined one witness namely
Bajrangi Kumar Bhuiya, who deposed at the trial that he had not
informed the informant about the commission of rape upon the
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
victim. He also deposed that these appellants had gone to their
respective in-laws' places on the date of occurrence and they
had been falsely implicated. Upon analysis and appreciation of
the evidence adduced at the trial, the trial court reached a
definite conclusion by its impugned judgment dated 30.11.2021
that the prosecution successfully proved the charge of
commission of the offences punishable under Sections 376AB
of the IPC and Section 6 of the POCSO Act. After having held
the appellants guilty of the charge, the trial court sentenced the
appellants to imprisonment and fine as has been noted above by
the order dated 06.12.2021.
10. Mr. Mrigendra Kumar, learned counsel appearing
on behalf of the appellants assailing the impugned judgment of
conviction passed by the trial court has submitted that even if it
is accepted that the prosecution could prove at the trial that the
victim was subjected to sexual assault, it miserably failed to
prove by cogent evidence, involvement of these appellants in
commission of such offence. He has submitted that despite
specific provision under Section 53A of the CrPC, the appellants
were not subjected to any medical examination to connect them
with the occurrence of sexual assault upon the victim. He has
also submitted that conviction of these appellants based on the
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
sole evidence of the child witness cannot be sustained as she
appears to be a tutored witness. He has also argued that the
victim (PW-5) in her statement under Section 164 of the CrPC
had not disclosed the name of appellant no. 2 as one of the
offenders and there is patent improvement in her evidence
before the court, wherein, she named appellant no. 2 also who
had physically abused her. He submits that this improvement is
essentially an outcome of tutoring by the family members of the
victim. He has also submitted that the evidence of the informant
(PW-1) becomes completely doubtful as in her evidence she
deposed inter alia at the trial that the information regarding
recovery of the victim was received on the mobile phone of a
co-villager Bajrangi Kumar Bhuiyan, whereafter she learnt
about the said recovery. The said co-villager of the informant
(PW-1) has deposed at the trial as a defence witness and has
denied that he had any knowledge about the recovery of the
victim or about the occurrence or rape. The DW-1 also deposed
in his evidence that on the date of occurrence these appellants
were not in the village and they had gone to their in-laws' place.
He has submitted that specific plea of alibi was taken on behalf
of the appellant at the trial which has not been duly considered
by the trial court.
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
11. Learned Additional Public Prosecutor, defending the
findings of conviction recorded by the trial court has submitted
that the same is based on due appreciation of evidence and
sound principles of law. She contends that the prosecution
successfully proved at the trial that the victim, a child, was
subjected to sexual assault. The evidence of the prosecution's
witnesses namely the victim (PW-5) and Munni Devi (PW-3)
made out a case before the trial court of commission of
aggravated penetrative sexual assault by the persons including
these appellants against whom the charge was framed. These
two basic ingredients having been proved at the trial, Section 29
of the POCSO Act fully applies. The appellants did not take any
step to prove their innocence at the trial. The weak and vague
plea of alibi taken on behalf of the appellants through DW-1 has
been duly dealt with by the trial court and rightly rejected. She
submits that the trial court, after having duly dealt with the
evidence of DW-1 has rightly held him not to be a reliable
witness.
12. We have carefully gone through the impugned
judgment and order of the trial court as well as the trial court's
records and we have given our thoughtful consideration to the
rival submissions advanced on behalf of the parties as noted
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
above.
13. On careful analysis of the evidence adduced at the
trial, it can be easily inferred that it was the prosecution's case
that the victim, aged three years, was sleeping in her house with
her mother (PW-1) and other siblings. One of the brothers of the
victim who had returned to his house after attending marriage
function was the first to notice the victim's absence in the house.
The victim was found in village Sevari Nagar, about one
kilometre from the house of the informant. PW-3, a resident of
village Sevari Nagar was the first to recover the victim when
she had heard a child wailing near her house. She was awake in
the night as she and her family members were engaged in
casting of a roof in their house. The time of occurrence,
according to PW-3 was 1:30 am. PW-3 had noticed that the
victim was bleeding from her genitalia. She disclosed, on being
asked by PW-3, that she was resident of village Pakri. The
parents of the victim were searching for her who came to her
(PW-3) place and took the victim to their house. The victim is
said to have disclosed to her mother (PW-1) that these
appellants had taken her away. Thereafter, the victim was taken
to Fatehpur Hospital where she was told by the Doctor that the
victim was subjected to sexual assault whereafter she had gone
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
to the police station to register the FIR. The appellant no. 1 was
almost next door neighbour of the informant as there was only
one house between his house and that of the informant. The
medical report suggests that the victim was subjected to sexual
assault. The victim, sitting in a child friendly witness room,
identified the appellants and stated at the trial that the appellants
had done "dirty acts" with her.
14. In our opinion, based on the evidence adduced the
prosecution successfully proved at the trial that the victim
(child) was subjected to penetrative sexual assault and according
to the victim herself the offence was committed by these
appellants and one more person. The primary fact that the victim
was a 'child' who had been subjected to sexual assault was thus
established by the prosecution. Given this situation, since the
appellants were facing prosecution for committing offence of
aggravated penetrative sexual assault defined under Section 5 of
the Act punishable under Section 6 of the POCSO Act thereof,
the statutory presumption of commission of the offence by the
appellant arose in terms of Section 29 of the POCSO Act, which
reads as under:-
"Section 29: Presumption as to certain
offences.
Where a person is prosecuted for
committing or abetting or attempting to commit any
offence under sections 3, 5, 7 and section 9 of this
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
Act, the Special Court shall presume, that such
person has committed or abetted or attempted to
commit the offence, as the case may be unless the
contrary is proved."
15. The presumption under Section 29 of the POCSO Act
is apparently not absolute rather it is rebuttable. In order to rebut
the said presumption, it was incumbent upon these appellants to
prove the contrary.
16. We find in the present case that the appellants facing
the trial set up a defence by way of plea of alibi through DW-1.
The defence got examined DW-1 firstly to counter the evidence
of the informant (PW-1) that the information regarding recovery
of the victim in village Sevari Nagar was given by DW-1 and
secondly that the appellants had gone to their in-laws' place on
23.05.2019, 24.05.2019, on the date of occurrence.
17. In the Courts opinion, the trial court has rightly held
in its judgment that DW-1 was not a truthful witness for the
reason that in his evidence, he deposed that he had not even
heard about any rape having been committed upon the victim.
Secondly, the fact that the appellants had gone to their in-laws'
place was not specific and that too was based on some
information which he had received from one of his friends,
without disclosing the name or identity of the said friend. The
plea of alibi taken by the defence at the trial based on the
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
evidence of DW-1, in our opinion, deserves to be rejected and
has rightly been rejected by the trial court. DW-1 does not
appear to be a reliable witness in our considered opinion.
18. Coming to the depositions of the prosecution's
witnesses; PW-1 deposed at the trial inter alia that she was
sleeping with her other children and in the night. Her son, after
returning from a marriage party told her that the victim was not
in the house. The fact that the victim was recovered was learnt
by her when Bajrangi Kumar Bhuiyan (DW-1) received a call
on his mobile phone, from Sevari Nagar. Bajrangi had informed
the informant that the victim was there in the house of Muniya
Gwalin (PW-3) whereafter she went there and brought the
victim back from the house of PW-3. According to her, the
victim was taken to Fatehpur Hospital for treatment where she
was told by the Doctor that the victim was subjected to sexual
assault (rape). The evidence of PW-1 stands fully corroborated
by the deposition of PW-3 which contains natural description of
the circumstance in which the presence of the victim was found
near her house at Sevari Nagar. In her examination-in-chief,
PW-3 deposed that when she heard the wailing sound of the
victim, she was initially under the fear that there was some
ghost. Later she realized that there was a child who was
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
weeping. She thereafter called the child whereupon she came.
PW-3 noticed that blood was oozing out from the genital organ
of the victim. She thereafter spread a gunny bag for her to lie
down and gave her a head massage with oil. She also fed her
with milk. There was an uproar in the village about the identity
of the child. The victim disclosed that she was resident of
village Pakri. Further, the victim's parents came to her house
who were already searching for her.
19. It would be apt to consider now the evidence of the
victim herself as has been noted above. The victim identified
both the appellants who had committed wrongful acts with her.
The evidence of PW-1, 3 and 5 consistently support the
prosecution's case of the victim having been taken to the place
of occurrence by these appellants and having sexually assaulted
her in a manner that she was bleeding and was found to have
been raped. The medical evidence, in our opinion corroborates
the prosecution's case of the victim having been sexually
assaulted. PW-2, the Doctor who had examined the victim,
proved the medical report. Rupture of hymen of the victim was
found. There were scratch marks found on the face and neck of
the victim of 48-72 hours of duration. The victim was examined
on 25.05.2019 at 2:25 pm. The Doctor proved at the trial
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
following conclusion which was recorded in her medical report
after examining the victim:-
"Conclusion:-
1. Age between 3-4 years.
2.About 48-72 hours back some incident
happened with victim, there is infected IIIrd degree
perineal tear. There is no spermatozoa live or dead in
HVS; It is difficult to say that it has been done by the
sexual intercourse or by any blunt object.
2.The medical report was prepared written
by me and it bears my signature which is mark as
exhibit 2."
20. The picture, thus, which emerges on scrutiny of the
evidence of the victim (PW-5), her mother (PW-1) and Munni
Devi (PW-3) read with the medical evidence is that the victim
was 3-4 years child who was noticed by PW-3 late in the night
in village Sevari Nagar where she was weeping and blood was
oozing out from her private parts; her hymen was found
ruptured in the medical examination. The victim herself had
disclosed the names of these appellants who had done dirty acts
with her. The victim identified the appellants in the court room
at the trial as the persons who had sexually abused her. The
prosecution, in our opinion, successfully established the case of
commission of rape by these appellants by adducing cogent
evidence. The appellants were given an opportunity to explain
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
the incriminating circumstances which had emerged against
them based on the evidence of the prosecution's witnesses while
being questioned under Section 313 of the CrPC. They did not
set up any defence at the trial and except for simple denial, the
appellants did not put forth any explanation in their examination
under Section 313 of the CrPC. They did not take any plea of
alibi while being questioned by the trial court under section 313
of the CrPC. No effort of any kind was made by the appellants
to rebut the legal presumption under section 29 of the POCSO
Act. In the aforesaid background, in our considered view we do
not find any reason to interfere with the finding of conviction
recorded by the trial court for the offence punishable under
Section 376 of the Indian Penal Code and Section 6 of the
POCSO Act. The impugned judgment of conviction passed by
the trial court is accordingly affirmed.
21. Coming now to the question of sentence, considering
the young age of the appellants and their chance of reformation,
the sentence of imprisonment imposed by the trial court is
modified to a term of 20 years of rigorous imprisonment instead
of 25 years for the offence punishable under Section 376AB of
the Indian Penal Code. No separate sentence is required to be
passed for the proved offence punishable under Section 6 of the
Patna High Court CR. APP (DB) No.102 of 2022 dt.02-01-2024
POCSO Act, applying Section 42 of the said Act. The sentence
of fine imposed by the trial court does not require any alteration.
22. This appeal is, accordingly, dismissed with the
modification in the sentence as noted above.
(Chakradhari Sharan Singh, J)
(G. Anupama Chakravarthy, J)
ranjan/-
AFR/NAFR NAFR
CAV DATE 02.01.2024
Uploading Date 10.01.2024
Transmission Date 10.01.2024
