Patna High Court
Sukat Sah vs The State Of Bihar on 8 January, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.969 of 2022
Arising Out of PS. Case No.-425 Year-2017 Thana- RAMNAGAR District- West Champaran
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Sukat Sah, son of late Yamuna Sah, Resident of Village - Narayanpur,
P.s.- Ramnagar, Distt.- West Champaran.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellant : Ravishankar Sahay, Advocate
Ms.Prerna Anand, Advocate
For the Respondent : Mr.Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 08-01-2024
Heard learned counsel for the appellant and learned
Additional Public Prosecutor for the State.
2. The present appeal has been preferred
challenging the impugned judgment of conviction dated
19.02.2022
and order of sentence dated 21.02.2022,
respectively passed by learned Additional Sessions Judge -
VIIth-cum-Special Judge (POCSO), West Champaran, Bettiah
in connection with Ramnagar P.S. Case No. 425 of 2017,
whereby and whereunder the appellant/accused was found
guilty under Section 376 of the Indian Penal Code (in short
the 'I.P.C.') and Section 4 of the Protection of Children from
Sexual Offences Act (hereinafter referred to as the 'POCSO
Act') and sentenced him to undergo rigorous imprisonment
Patna High Court CR. APP (SJ) No.969 of 2022 dt.08-01-2024
for a period of seven years and R.I. for ten years with a fine of
Rs. 20,000/-, and in default of payment of fine, to further
undergo imprisonment for one month.
3. The prosecution case in brief is that on
09.11.2017, while the informant had gone to attend the call of
nature at 6:00 P.M. in the field of sugarcane behind her house,
one villager namely, Sukat Sah (the appellant), who was there
from before, caught her and dragged in the sugarcane field
and after shutting her mouth, committed rape upon her. The
appellant kept her whole night, but anyhow she managed to
escape from there and narrated the whole story to her parents,
thereafter her father brought her to police station and filed
written information in this regard.
4. On the basis of aforesaid information, police
registered a case as Ramnagar P.S. Case No. 425 of 2017
dated 10.11.2017 for the offences under Section 376 of the
Indian Penal Code and 4, 6 of the POCSO Act, whereafter
investigation the charge-sheet was submitted on 31.12.2017
under the above-mentioned sections and thereafter charges
were framed on 28.02.2019, which he pleaded "not guilty"
and claimed trial.
5. To substantiate it's case, prosecution examined
Patna High Court CR. APP (SJ) No.969 of 2022 dt.08-01-2024
total of two witnesses in support of it's case, who are
Chhotelal Choudhary (PW-1), who is the father of the victim
and Sarita Devi (PW-2), who is the mother.
6. On the basis of evidences/incriminating
circumstance as surfaced during the trial, statement of accused
was recorded under section 313 of the Cr.P.C. by explaining
those evidences/ circumstances to him, for which he shows
his complete innocence.
7. No witness was examined in defence.
8. After conclusion of trial, the learned trial court
has awarded the sentence as stated hereinabove, being
aggrieved of which, appellant/convict preferred the present
appeal.
9. Hence, the appeal.
10. Learned counsel appearing on behalf of the
appellant-convict submitted that the trial court has failed to
appreciate the fact that the parents of the victim, who were
examined as PW-1 and PW-2, were not supported the case of
the prosecution rather denied the offences. It is submitted that
neither the manner nor the place of occurrence has been found
proved as Investigating Officer and doctor were not
examined. It is stated that the learned trial court has erred in
Patna High Court CR. APP (SJ) No.969 of 2022 dt.08-01-2024
recording finding of conviction as most important witness i.e.
victim of this case has also not been examined in this case.
11. Learned Additional Public Prosecutor while
arguing for the State submitted that learned trial court has
rightly convicted the appellant/convict under section 376 of
the I.P.C. and section 4 of the POCSO Act. Learned A.P.P.
submitted that the mother of the victim has supported the case
of the prosecution and victim has given her statement under
Section 164 Cr.P.C. that rape/penetrative sexual assault was
committed upon him by the appellant/accused.
12. Lower Court records and proceeding was
perused and also upon consideration of arguments as raised by
learned counsel appearing on behalf of the parties, it appears
apposite to discuss evidence for the sake of re-appreciation
which is as under:-
13. PW-1 namely, Chotelal Choudhary, who is
the father of the victim deposed through his examination-in-
chief that on the alleged date of occurrence, the age of his
daughter was 14 years, she had gone to attend the call of
nature but did not return back. PW-1 stated that his daughter
had returned home herself on next day and she stated that
Sukat Sah (the appellant) had abducted and taken her in
Patna High Court CR. APP (SJ) No.969 of 2022 dt.08-01-2024
sugarcane field and committed rape upon her. PW-1 further
stated that he had submitted an application before the S.H.O.
and signature of his daughter is there on the application and
he had put his thumb impression on the application which is
exhibited as Exhibit -1. He further stated that statement of the
victim under Section 164 Cr.P.C. was recorded in the court of
Bagaha and his daughter was medically examined by the
doctor at M.J.K. Hopspital, Bettiah.
13.1. In Cross examination, PW-1 stated that no
rape has been committed with the victim. He has filed a case
against the villagers of his village and the thumb impression,
which he had put on the application, was put in the village. He
further stated that there was a quarrel in the village and people
of the village had lodged the case. He denied that he had gone
to the police station, police had never taken his statement and
the case, which was filed, he is giving his statement, whereas
this type of incident never happened.
14. PW-2 namely, Sarita Devi, who is the mother
of the victim, deposed through her examination-in-chief that
the victim is her step-daughter and the incident is more than
one year. The alleged occurrence has taken place at 7:00 P.M.
She further alleged that Sukat Sah has committed rape upon
Patna High Court CR. APP (SJ) No.969 of 2022 dt.08-01-2024
her daughter while she had gone to attend the call of nature.
She stated that she received this information from one Madhu
Sah not from the victim. She further deposed that she
recognised Sukat Sah (the appellant), who is present in the
court.
14.1. In her cross examination, PW-2 deposed that
She knows Sukat Sah (the appellant) because he resides in her
neighbourhood. She deposed that she had no knowledge about
the alleged occurrence personally. She states that the victim
doesn't tell her anything because she scold her every time and
she further deposed that one Madhu Sah had given the alleged
information at 7:00 P.M.
15. It appears from the testimony of PW-1 and PW-
2, who are the father and mother of the victim respectively, is
not supporting the prosecution case. In cross-examination,
PW-1 clearly denied the allegation of rape committed upon
the victim. He has stated that no rape has been committed
with the victim/his daughter. PW-1 stated that he had put his
thumb impression on the application in village and lastly he
has again denied the allegation of rape committed by the
appellant. PW-2 who is the mother of the victim, has deposed
in her cross examination that she knows Sukat Sah because he
Patna High Court CR. APP (SJ) No.969 of 2022 dt.08-01-2024
is her neighbour and she had no knowledge about the alleged
incident.
16. It further appears from perusal of impugned
judgment that the conviction was made by considering the
statement of victim as made under Section 164 Cr.P.C. It is
well settled law that the statement under Section 164 Cr.P.C.
can be used only for purpose of corroboration/contradiction
and is not a substantial piece of evidence, on the basis of
which conviction can be secured. Moreover, the place of
occurrence also not appears to establish in this case as the
Investigating Officer of this case was not examined. Doctor
was also not examined. Interestingly, the victim was also
failed to examine in this case.
17. Having aforesaid evidence in hand, it cannot be
said that prosecution established it's case during trial beyond
reasonable doubt and, as such, the judgment of conviction and
order of sentence is hereby quashed and set-aside.
18. Accordingly, the present appeal is allowed.
19. The impugned judgment of conviction dated
19.02.2022 and order of sentence dated 21.02.2022
respectively passed by learned Additional Sessions Judge -
VIIth-cum-Special Judge (POCSO), West Champaran, Bettiah
Patna High Court CR. APP (SJ) No.969 of 2022 dt.08-01-2024
in connection with Ramnagar P.S. Case No. 425 of 2017 is
set-aside
20. The appellant/convict is acquitted of the
charges levelled against him. He is directed to be set at liberty
forthwith unless his detention is required in any other case.
Fine, if any, paid be also returned to appellant-convict
immediately.
21. LCR of this case along with copy of the
judgment be returned to learned trial court forthwith.
(Chandra Shekhar Jha, J.)
Rajeev/-
AFR/NAFR NAFR
CAV DATE
Uploading Date 11.01.2024
Transmission Date 11.01.2024
