Patna High Court
Raushan Kumar vs The State Of Bihar on 8 January, 2024
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.277 of 2022
Arising Out of PS. Case No.-297 Year-2018 Thana- MADHEPURA District- Madhepura
======================================================
RAUSHAN KUMAR S/o Naresh Paswan R/o Azad Nagar, Ward No. 8, P.S.
and District- Madhepura
... ... Appellant
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Baxi S.R.P. Sinha, Sr. Advocate
Mr. Rupesh Kumar, Advocate
Mr. Rajnish Kumar Singh, Advocate
Mr. Laxmi Kumari, Advocate
Ms. Ankita Kumari, Advocate
For the State : Ms. Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 08-01-2024
This appeal has been preferred by the sole appellant
under Section 374(2) of the Code of Criminal Procedure, 1973
(CrPC for short), putting to challenge a judgment of conviction
dated 14.12.2022 and the order of sentence dated 22.02.2022,
passed by the learned VIthAdditional Sessions Judge Cum Special
Judge (POCSO), Madhepura, in POCSO Case No. 21/2018/C.I.S.
No. - 21/18 of Madhepura P.S. Case No. 297 of 2018 whereby the
appellant has been convicted and sentenced as under:
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
2/19
Cr. Appeal (DB) No. 277 of 2022
Sentence
Appellant Penal provision In default of
Imprisonment Fine (Rs.)
fine
Section 366-A of the IPC R.I. for seven 10,000/- S.I. for three
years months
Raushan
Section 376 of the IPC X X X
Kumar
Section 4 of the POCSO Act R.I. for 20 Rs. S.I. for three
years 20,000/- months
2. All the sentences have been ordered to run
concurrently.
3. We are not disclosing the names of the victim and her
near relatives who have deposed at the trial, so as to protect the
victim's identity. The victim's father (PW-4) is the informant
whose written report addressed to the Officer-in-Charge of
Madhepura Police Station dated 10.05.2018 is the basis for
registration of the concerned Madhepura P.S. Case No. 297 of
2018, for an occurrence which had taken place on 05.05.2018. It
was alleged in the FIR that the informant's daughter, aged nearly
13 years, was student of Class VIII and on the date of occurrence
she had left for coaching centre at about 01:00 PM. She, however,
did not return after the coaching hours and on enquiry from the
teachers of the coaching centre, the informant learnt that she had
left the coaching centre long back for her house. Despite a
thorough search, the victim could not be found. On 10.05.2018, he
learnt that Suresh Paswan, his son Chhotu Kumar, Naresh Paswan,
his son Raushan Kumar (the appellant), Ashok Yadav and his son
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
3/19
Manish Kumar under a conspiracy had kidnapped the victim.
Thus, altogether six persons were named in the FIR including this
appellant by the informant based on suspicion.
4. It transpires from the materials on record that
according to the prosecution's case, the Investigating Officer
received an information on 26.06.2018 about the presence of the
victim somewhere near Civil Court, Madhepura. He proceeded for
the Civil Court and recovered the victim. On 26.06.2018 itself, the
victim was subjected to medical examination. A Medical Board
was constituted and based on the radiological examination, the
victim's age was found to be between 14-16 years. The doctor did
not find any bruise or abrasion on any part of the body of the
victim including her private parts. On internal examination, no
internal injury was found, though the features of sexual intercourse
were found to be present. Spermatozoa was not found in the
vaginal swab test. The victim's statement was recorded under
Section 164 of the Cr.P.C. before a Magistrate on 28.06.2018 (Ext.
1). The statement of victim under Section 164 of the Cr.P.C. is
significant in the present case which is the first version of the
victim about the occurrence. She stated that when she was on her
way to the coaching centre on 05.05.2018, the appellant made the
victim elope with him to Delhi where he forcibly performed
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
4/19
marriage with her. The appellant would make her consume
intoxicants. She all through remained unconscious. She had not
gone with the appellant out of her on volition and that he had
kidnapped her. The statement of the victim under Section 164 of
the CrPC does not disclose any sexual act committed by the
appellant on her. She did not allege any act of rape against the
appellant. She alleged that the appellant had kidnapped her and
married her against her willingness. The statement of the victim
under Section 164 of the CrPC needs to be read with the FIR in the
present facts and circumstances. If what is alleged in the FIR is to
be considered, the victim, on the date of occurrence, had reached
the coaching centre and thereafter she had left the coaching centre
for her house. This has emerged after the informant had made
inquiries from the teachers of the coaching centre. As has been
noticed above, it transpires from the statement of the victim under
Section 164 of the CrPC that on the date of occurrence, i.e.,
05.05.2018
, she had not reached the coaching centre rather she
was kidnapped on her way to the coaching centre. It is also
relevant to reiterate, at this juncture, that the victim in her
statement under Section 164 of the CrPC did not mention anyone's
role in her kidnapping other than this appellant.
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
5. Be that as it may, the police upon completion of
investigation submitted its first charge-sheet on 19.07.2018 against
accused Naresh Paswan. A supplementary charge-sheet was
submitted on 27.10.2018 against this appellant and accused
Manish Kumar. A second supplementary charge-sheet was
submitted on 31.12.2018 against the co-accused Ashok Yadav and
Chhotu Kumar.
6. After submissions of charge-sheet cognizance was
taken of the offences punishable under Sections 366-A read with
Sections 34, 376, 120B of the I.P.C. and Section 4 of the POCSO
Act. Charges were subsequently framed against Naresh Paswan,
Raushan Kumar (the appellant), Ashok Yadav, Suresh Paswan and
Chhotu Kumar for commission of the aforesaid offences. The
accused persons denied the charge and claimed to be tried.
Accordingly, they were put to trial.
7. At the trial, the prosecution got examined altogether
seven witnesses including two medical experts (PWs 5 and 7) and
the Investigating Officer (PW-6). The victim was examined as
PW-1, her father as PW-4 and her mother as PW-3. Khokhan
Yadav, a person acquainted with the family of the victim, deposed
at the trial as PW-2. Apart from the oral evidence of prosecution's
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
witnesses, the prosecution brought on record following
documentary evidence at the trial to prove the charges:-
Sl. Description Exhibit Number
No.
1. Signature of the victim 'X' Kumari on Exhibit-1
her statement recorded u/s 164 CrPC
2. Signature of victim 'X' Kumari on the Exhibit- 1/1
report of the Medical Board
3. Signature of victim 'X' Kumari on her Exhibit- 1/2
medical examination report
4. Signature of informant Suresh Malakar Exhibit- 2
at the foot of the written report
5. Medical Examination Report of victim Exhibit- 3
'X' Kumari
6. Report of the Medical Board. Exhibit- 3/1
7. Endorsement of S.H.O., Madhepura on Exhibit- 4
the written report.
8 Report of the duly constituted Medical Exhibit- 5
Board.
8. After closure of the evidence of the prosecution's
witnesses, the persons facing trial including this appellant was
questioned under Section 313 of the CrPC, so as to give them an
opportunity to explain the incriminating circumstances which
emerged against them. Following was the only question put to the
appellant by the trial court under Section 313 of the Cr.P.C.
प्रशन:- आपके ववरद आरोप एवम साक् है वक आपने वदनांक को
सम् दोपहर के बजे से बजे सं ध्ा के वबच सूचक सु रेश मालाकार के
नाबावलग पु तर् ी का अपहरण क् र वलए तथा उसके साथ बलातकार
वक्। इस सं बंध मे क्ा कहना है ?
उतर :- जी, नही।
9. The appellant reiterated his plea of innocence in
response. The defence thereafter, examined two witnesses, namely,
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
Bramhdeo Paswan (DW-1) and Vijay Paswan (DW-2) to make out
a case that the victim, in fact, had gone to some unknown
destination from the coaching centre with her brother-in-law
(Bahnoi) and the entire case of the prosecution against the
appellant and other accused persons was completely false. The
trial court, after dealing with the evidence adduced at the trial
reached a conclusion in its impugned judgment dated 14.02.2022
that the charges levelled against other persons, namely, Naresh
Paswan, Suresh Paswan, Ashok Yadav and Chhotu Kumar could
not be established beyond all reasonable doubts. However, the
prosecution could successfully substantiate the charge of offence
punishable under Sections 366-A, 120B, 376 of the IPC and
Section 4 of the POCSO Act against the appellant. After having
held the appellant guilty of the aforesaid offences, the trial court
has sentenced the appellant to imprisonment and fine as noted
above.
10. It is worthwhile mentioning that the trial against the
co-accused Manish Kumar was split up by the trial court as he
could not be produced at the trial.
11. Assailing the impugned judgment of conviction Mr.
Baxi S.R.P. Sinha, learned senior counsel appearing on behalf of
the appellant has argued that the prosecution has failed in its duty
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
and the trial court has not performed its obligation to conclusively
determine the victim's age requisite under Section 34(2) of the
POCSO Act. He submits that it was incumbent upon the trial court
as well as the prosecution to establish that the victim was a 'child'
within the meaning of Section 2(1)(d) of the POCSO Act by
following the procedure prescribed by the Supreme Court in case
Jarnail Singh v. State of Haryana, reported in (2013)7 SCC 263
read with Section 34(2) of the POCSO Act and Section 94 of the
Juvenile Justice Care and Protection Act, 2015. He has argued that
to bring home any charge of commission of offence punishable
under the provisions of the POCSO Act, it is essential and primary
obligation of the prosecution to prove that the victim is a 'child'
within the meaning of Section 2(1)(d) of the POCSO Act. He
submits that the prosecution has failed to discharge its obligation
and the appellant's conviction for the offence punishable under
Section 4 of the POCSO Act is not at all sustainable.
12. Addressing the appellant's conviction for the offence
punishable under Section 376 of the IPC he has submitted that the
victim in her first statement under Section 164 of the CrPC had not
alleged any instance of sexual assault caused by the appellant upon
her. He contends that there is apparent improvement in the
evidence of the victim (PW-1) at the stage of trial. He has further
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
argued that the investigation in the present case has been
completely perfunctory inasmuch as the Investigating Officer did
not bother even to find out the place where the victim was
allegedly made to live with the appellant in Delhi after she was
kidnapped. The Investigating Officer did not examine the victim
nor did he visit the places of occurrence. He did not even bother
to go to the coaching centre to find out as to whether the victim
had in fact attended her coaching class or not on the date of
occurrence. He has also submitted that the statement of the victim
under Section 164 of the CrPC gives an impression that the victim
and the appellant had eloped. The victim has not mentioned in her
statement made under Section 164 of the CrPC that any force was
used or she was otherwise induced to go with the appellant to
Delhi. He has submitted that the victim made substantial
improvement for the first time at the trial in her deposition. For the
first time, she asserted in her evidence that this appellant, co-
accused Manish and Chhotu Kumar sprinkled some medicine
around her mouth and tied her mouth with some cloth. She had,
thereafter became unconscious and regained her consciousness at
a place Sukhasan in the house of one of the appellant's friends.
The appellant, according to her, took her to Delhi and did some
wrongful acts (गलत काम) after making her unconscious. On
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
26.06.2018, the appellant brought the victim back to Madhepura
and dropped her at the Madhepura Bus-stand whereafter, she was
recovered by the police. He submits that the victim is not at all a
truthful witness whose evidence ought not to have been the basis
for recording the appellant's conviction by the trial court. He has
argued that based on what has been deposed at the trial by the
prosecution's witnesses, the trial court ought not have held the
appellant guilty of commission of offence punishable under
Sections 366A and 376 of the IPC. He has further argued that there
is no explanation for delay of five days in lodging of the FIR
inasmuch as according to the informant, the victim was missing
since 05.05.2018 and the FIR was registered on 10.05.2018.
13. Learned Additional Public Prosecutor representing
the State, defending the finding recorded by the trial court, has
argued that the victim appeared to be a minor to the court. During
the medical examination, her approximate age, based on
radiological test, was found to be 14 to 16 years. She contends that
there was no dispute as such relating to the victim's age which
required determination in the light of the provision under Section
34(2) of the POCSO Act by taking recourse to the law laid down
by the Supreme Court in case of Jarnail Singh (supra). She has
further argued that generally the witnesses of such age are not
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
expected to be explicit while describing acts of sexual violence
and the expression ' गलत काम' used by the victim at the trial
should be treated by this Court to be an act of sexual assault. She
has accordingly submitted that the trial court, applying the
principle underlying Section 29 of the POCSO Act and upon due
appreciation of the evidence, has rightly held the appellant guilty
of the offence punishable under Section 4 of the POCSO Act and
Sections 366-A and 376 of the IPC.
14. We have perused the impugned judgment and order
of the trial court and we have gone through the lower court's
records. We have given our thoughtful consideration to the rival
submissions advanced on behalf of the parties. There is no scope
of any doubt that so as to prove the commission of an offence
under the provisions of the POCSO Act, it is obligatory on the part
of the prosecution to conclusively prove a victim to be a 'child'
with the meaning of Section 2(1)(d) of the said act.
15. At the same time, it is the duty of the trial court cast
under Section 34(2) of the Act to determine the age of the victim.
Such determination may not be required in a case where it is
apparent on the face of it that the victim is a child. We do not find
from the judgment of the trial court that the victim has been found
to be a child based on an assessment done by the trial court. The
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
trial court has held the victim to be a child on the basis of her
approximate age assessed by the Medical Board based on
radiological examination. Her age, according to the Medical
Board, was between 14 to 16 years.
16. Mr. Baxi S.R.P. Sinha, learned senior counsel
appearing on behalf of the appellant has rightly placed reliance on
a Division Bench's decision of this Court rendered on 15.12.2023
in Criminal Appeal (DB) No. 262 of 2022, wherein referring to the
decisions in case of Jarnail Singh (Supra) and P. Yuvaprakash vs
State Rep. By Inspector of Police (AIR 2023 SC3525) following
has been held in paragraphs 20 and 21 as under:-
"20. In our opinion, it has rightly being argued on
behalf of the appellant, referring to the case of P. Yuvaprakash
(supra) that Section 94(2)(iii) of the Juvenile Justice(Care and
Protection of Children) Act, 2015 clearly indicates that the date
of birth certificate from the school or matriculation or
equivalent certificate by the concerned examination board has
to be firstly preferred, in the absence of which the birth
certificate issued by the Corporation or Municipal Authority or
Panchayat shall be taken into account. Only in case of absence
of these documents, the age is to be determined through "an
ossification test" or "any other latest medical age
determination test" conducted on the orders of the concerned
authority. We may also usefully refer to the Supreme Court's
decision in case of Rishipal Singh Solanki v. State of U.P.,
reported in (2022) 8 SCC 602, paragraph 20 of which reads
thus:-
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
"... 22.Rule 12 of the JJ Rules, 2007 deals
with the procedure to be followed in determination of
age. The juvenility of a person in conflict with law had
to be decided prima facie on the basis of physical
appearance, or documents, if available. But an inquiry
into the determination of age by the Court or the JJ
Board was by seeking evidence by obtaining : (i) the
matriculation or equivalent certificates, if available
and in the absence whereof; (ii) the date of birth
certificate from the school (other than a play school)
first attended; and in the absence whereof; the birth
certificate given by a corporation or a municipal
authority or a panchayat. Only in the absence of either
(i), (ii) and (iii) above, the medical opinion could be
sought from a duly constituted Medical Board to
declare the age of the juvenile or child. It was also
provided that while determination was being made,
benefit could be given to the child or juvenile by
considering the age on lower side within the margin of
one year. If a juvenile in conflict with law was found to
be below 18 years, an order had to be passed
declaring the status of the juvenility by the Court. The
said procedure was also applicable to dispose of cases
where the status of the juvenility had not been
determined in accordance with the Act and the Rules
made thereunder..."
21. We need not encumber our decision with the
other Supreme Court's decisions and this Court's decisions on
the point of the statutory mandate of determination of age of a
person said to be a victim of sexual assault in accordance with
Section 94 of the Juvenile Justice (Care and Protection of
Children) Act, 2015 for the purpose of invoking the provisions of
the POCSO Act. It is settled legal position by now that to bring
an offence within the ambit of the provisions of the POCSO Act,
when a question of age of the person, who is said to be victim of
sexual assault, arises, the prosecution and the Court will have to
undertake the procedure prescribed under Section 94 of the
Juvenile Justice (Care and Protection of Children) Act, 2015."
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
17. There is no gainsaying that a medical report
determining age of a person has never been considered by the
courts of law as also by the medical scientists to be conclusive in
nature as held in case of Jyoti Prakash Rai v. State of Bihar,
reported in (2008) 15 SCC 223.
18. At this juncture, we reiterate again the observation
made in Criminal Appeal (DB) No. 262 of 2022 in the case of
Raushan Kumar vs The State of Bihar, paragraphs 25 to 27 of
which are relevant and are being reproduced hereinbelow:-
".....25. We reiterate that in a trial relating
to an offence punishable under the provisions of the
POCSO Act, it is obligatory for the trial court to
undertake the procedure for determination of age of
the victim of sexual assault under the Act as
prescribed under Section 94 of the J.J. Act, 2015. This
is for the reason that unless such determination is
conclusively made, the provisions of the POCSO Act
cannot be applied. It is high time when the trial court
must appreciate the significance of the statutory
requirement under sub-section (2) of Section 34 of the
POCSO Act which casts upon them an obligation to
first conclusively determine the age of the victim of a
sexual assault strictly in accordance with the
requirement under sub-section (2) of Section 94 of the
J.J. Act, 2015 as explained by the Supreme Court in
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
the case of Jarnail Singh (supra) and Jaya Mala v.
Govt. of J & K, reported (1982) 2 SCC 538. This is
important also for the reason that the provisions under
the POCSO Act are stringent and contain special
provision under sections 29 and 30 of the POCSO Act,
which cast reverse burden of proof on an accused of
the offence of his innocence. There is vast difference
between prosecution of a person for an offence
punishable under the provisions of the POCSO Act
and for those other offences punishable under Indian
Penal Code or other penal provisions, which require
no reverse burden of proof. A person charged of
offence punishable under the provisions of the POCSO
Act act is presumed to have committed or abated or
attempted to commit the offence under section 29 of
the POCSO Act contrary to the general principle of
presumption of innocence of an accused under
criminal jurisprudence. Culpable mental state of the
person facing trial in respect of an offence is presumed
under section 30 of the POCSO Act, which is not the
general rule.
26. In the light of the aforementioned
observations, we hold that it is mandatory for the
prosecution to prove and the Special Courts under the
POCSO Act to determine the age of the victim as
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
prescribed by the law, in a proceeding dealing with
offences punishable under the POCSO Act.
27. We further hold that age determination
based only on radiological examination is
impermissible under section 34(2) of the POCSO Act
read with Section 94 of the J.J. Act, 2015. There is no
gainsaying that the provision under section 34(2) of
the POCSO Act is mandatory in character."
19. In the present case, the prosecution cannot be said to
have proved in accordance with law that the victim was a 'child'
within the meaning of Section 2(1)(d) of the Act and, therefore, the
appellant's conviction for the offence punishable under Section 4
of the POCSO Act cannot be sustained and is accordingly set
aside.
20. Coming on the point of the appellant's conviction for
the offence punishable under Sections 366-A and 376 of the IPC,
we find major lacunae in the prosecution's case. Surprisingly, the
victim's statement was not recorded by the Investigating Officer at
any stage of the trial under Section 161 of the CrPC. The statement
of the victim under Section 164 of the CrPC and the facts
disclosed in the FIR are conflicting. This aspect has been
mentioned in the present judgment in the very beginning. It is the
victim's version that she was kidnapped when she was on her way
to the coaching centre, meaning thereby that she had not reached
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
the coaching centre. Her father, the informant, in the FIR has
mentioned that in search of the victim he had gone to the coaching
centre and the teachers of the coaching centre had informed him
that the victim had left the coaching centre much before. Thus,
contrary to the statement of the victim, according to the informant,
the victim had attended the coaching centre on the date of
occurrence. The two conflicting stands taken by the victim and her
father (the informant) cannot be reconciled. We are conscious of
the fact that neither the First Information Report nor the statement
of the victim under Section 164 of the CrPC are substantive piece
of evidence. Yet, those being the foundational facts, they cannot be
completely overlooked in the background of the nature of evidence
adduced at the trial.
21. There is another disturbing aspect of the entire
matter. According to the victim, she was taken by the appellant to
Delhi and she was made to stay with the appellant in Delhi at a
place not known to her, where the appellant forcibly married her
and committed rape upon her. No effort at all was made by the
investigating agency to locate and prove the place of occurrence
in Delhi. The prosecution has completely failed to prove the place
from where the victim is said to have been kidnapped by the
appellant. It is pertinent to mention at the cost of repetition that the
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
statement of the victim recorded under Section 164 of the CrPC
gives an indication that the victim and the appellant had eloped
together. According to the victim, however, the appellant had made
her to elope with him. Further, the mode of transport of the
journey of the appellant with the victim to Delhi has not been
disclosed at any point of time in the evidence. In our considered
view, the victim does not appear to be truthful and reliable, based
on whose sole testimony, the appellant could have been convicted
by the trial court. The conviction of the appellant for the offence
punishable under Section 366-A of the IPC is not sustainable also
on the ground that the prosecution failed to prove that the victim
was a minor, i.e., under the age of 18 years, which is a condition
precedent for invoking the said provision.
22. We fail to understand as to why the investigating
agency did not resort to the procedure prescribed under Section 24
of the POCSO Act for recording the statement of the victim, if
according to it, the victim was a 'child' within the meaning of
Section 2(1)(d) of the POCSO Act.
23. For the reasons noted above, the appellant deserves
to be given benefit of doubt and, therefore, acquitted of the charge
for the offence punishable under Section 366-A and 376 of the
IPC.
Patna High Court CR. APP (DB) No.277 of 2022 dt.08-01-2024
24. In the result, the impugned judgment of conviction
dated 14.02.2022 and the order of sentence dated 22.02.2022,
passed by the learned VIthAdditional Sessions Judge Cum Special
Judge (POCSO), Madhepura, in POCSO Case No. 21/2018/C.I.S.
No. - 21/18 of Madhepura P.S. Case No. 297 of 2018 are set aside.
The appellant stands acquitted of the charges of commission of
offences punishable under Sections 366-A and 376 of the IPC and
Section 4 of the POCSO Act by giving him benefit of doubt.
25. This appeal is allowed accordingly.
26. The appellant is in jail custody. Let him be released
forthwith, if he is not required in any other case.
(Chakradhari Sharan Singh, J)
Suraj/Amit- ( G. Anupama Chakravarthy, J)
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.01.2024
Transmission Date 22.01.2024
