Patna High Court
Md. Sabir Hussain @ Md. Sabir vs The State Of Bihar on 24 January, 2024
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1169 of 2023
Arising Out of PS. Case No.-21 Year-2016 Thana- KRITYANAND NAGAR District- Purnia
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MD. SABIR HUSSAIN @ MD. SABIR Son of Md. Khairul Hussain @ Md.
Khairul Resident of Village - Chimani Bazar Ward No.- 33, P.S.- Sadar,
District - Purnea
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Amit Kumar Jha, Adv.
For the Respondent/s : Mrs. Anita Kumari Singh, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 24-01-2024
1. Heard learned counsel for the appellant and learned
APP for the State.
2. The present appeal has been filed against the
Judgement of Conviction dated 09.01.2021 and Order of Sentence
dated 16.01.2021 passed by learned Additional Sessions Judge-VI-
cum- Special Judge, POCSO Act, Purnea in Special Case No. 76/
2016, C.I.S- 346/2017, arising out of K Nagar PS case No. 21/
2016, whereby and whereunder the appellant has been convicted
for the offence punishable under Section 4 of Protection of
Children from Sexual Offences Act ( in short POCSO Act) and
sentenced to undergo rigorous imprisonment for 7 years with a
fine of Rs. 50,000/- and in case of default of payment of fine, to
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
2/13
further undergo simple imprisonment for six months. The
appellant has been further convicted and sentenced to undergo
rigorous imprisonment for five years with a fine of Rs. 25,000/-
for the offence punishable under Section 363 of the Indian Penal
Code (in short IPC) and in case of default of payment of fine, to
further undergo simple imprisonment for three months. No
separate sentence has been awarded to the appellant under Section
376 of the IPC on account of he being convicted under Section 4
of POCSO Act and all the sentences of imprisonment have been
directed to run concurrently.
3. The substance of the prosecution's story is that the
informant, Rahul Kumar Rai, who is said to be father of the
victim, filed a written application (Exhibit-1/A) at K. Nagar P.S.
on 23.01. 2016 with this allegation that his daughter (hereinafter
referred to as the victim), who was a student of Purnea Inter
College at Purnea, at that time, left her house for college on
15.01.2016
at about 11 AM but thereafter she did not return back
to home and after that he and others began to search for the victim
and in that course they came to know that one person, namely,
Neeraj Kumar Yadav, had kidnapped the victim with ill intention
and some other unknown persons were also involved in the said
crime.
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
4. On the basis of said written application filed by the
informant, the formal F.I.R. bearing K. Nagar P.S. case No. 21/
2016 was lodged at K. Nagar P.S. for the alleged offences under
Sections 363, 366A read with Section 34 of the Indian Penal Code
against Neeraj Kumar Yadav and after investigation, police
submitted charge sheet against the appellant for the offences
punishable under Sections 363, 366A, 376 of the IPC and under
Section 4 of POCSO Act and thereafter the concerned court took
cognizance of the alleged offences.
5. The appellant stood charged for the offences
punishable under Sections 363, 366A, 376 of the IPC and under
Section 4 of POCSO Act.
6. During trial, the prosecution examined following
witnesses:-(i). PW. 1- Lakhan Kumar Lal;
(ii). PW. 2- Manoj Sah;
(iii).PW. 3- Vandana Devi;
(iv).PW.4- Jaitun Nisha;
(v). PW.5- Victim;
(vi). PW.6.- Rahul Kumar Rai;
(vii).PW.7- Dr. Shivani Singh;
(viii).PW.8-Md. Salim; and
(ix). PW 9- Subhash Chandra Mandal
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
7. In documentary evidence, the prosecution produced
and proved following documents and got them marked as exhibits
which are as under:-
(i). Exhibit-1- Victim's signature upon her statement
recorded under Section 164 of the Code of Criminal Procedure
(hereinafter referred to as CrPC);
(ii) Exhibit-1/A- Informant's signature upon his written
application on which basis F.I.R. was registered;
(iii) Exhibit-2- Medical examination report of the
victim;
(iv) Exhibit-3- Statement of victim recorded under
Section 164 of the CrPC.
8. After completion of prosecution's evidence, the
appellant's statement was recorded under Section 313 of the CrPC,
in which he denied the circumstances appearing against him from
the prosecution's evidences and claimed himself to be an innocent
person and mainly took the defence that he had been falsely
implicated. The appellant/ convict did not give any evidence in his
defence.
9. Learned trial court convicted the appellant for the
offences punishable under Sections 363, 376 of the IPC and under
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
Section 4 of POCSO Act but acquitted the appellant of the offence
punishable under Section 366A of the IPC.
10. In order to attract the offence under Section 363 of
the IPC and under Section 4 of POCSO Act, the victim's age is
considered to be very crucial when it is alleged that the victim was
below 18 years of age at the time of commission of the alleged
occurrence. In the present matter the victim's father disclosed the
victim's age as 16 years in his written FIR. The victim herself
disclosed her age as 18 years before learned Judicial Magistrate
while recording her statement under Section 164 of the CrPC.
Before the trial court, the victim disclosed her age as 16 years and
in this way, contradictory statements were made by the victim
regarding her age. PW.7, who medically examined the victim,
opined the victim's age about 17-18 years on the basis of
radiological report. Admittedly, the so- called victim was a college
going girl when the alleged occurrence was committed with her as
per FIR as well as her evidence. So in such a situation, the best
proof in respect of victim's age, in the form of documentary
evidence was the victim's educational certificates but in this
regard, no attempt was made by the prosecution to produce any of
the educational certificates of the so-called victim to prove the
victim's age and it appears that the said documentary evidence was
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
withheld by the prosecution intentionally to conceal the victim's
actual age and this circumstance completely goes against the
prosecution particularly with regard to the offence punishable
under Section 4 of the POCSO Act.
11. In order to attract the offence punishable under
Section 4 of POCSO Act, it must be proved that victim is a child in
view of the definition given in the POCSO Act and as per the said
definition, a child means a person who is below the age of 18
years. As per Section 34 of POCSO Act the age of the victim must
be determined by the trial court. In the opinion of this court, such
provision must be complied with when there is some doubt or
objection by a party regarding the victim's age and particularly
when documentary evidence in the form of educational certificate,
which can be easily produced, is withheld by the prosecution. In
the instant matter contradictory statements were made by the
victim regarding her age, hence the trial court ought to have
ascertained the victim's age as per procedure prescribed in Section
94 of Juvenile Justice Act and flexibility of two years always
remains in upper side as well as lower side in the age of a child
which is determined with the help of medical opinion. Hence, in
the present matter, on account of victim's age not being proved by
the prosecution and also due to withholding the victim's
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
educational certificates by not producing the same before the trial
court, an adverse inference should be drawn against the
prosecution. Accordingly, this court is of the opinion that the
victim should not be treated as a child in view of the definition
given in POCSO Act, at the time, when the alleged occurrence is
stated to have been committed with her. Therefore, the conviction
of the appellant for the offence punishable under Section 4 of the
POCO Act is completely bad in the eyes of law.
12. In respect of the offence of kidnapping or abduction
and rape as alleged in the present matter, the victim's own
evidence is the most important. In order to see whether the
ingredients of the offences of Sections 363 and 376 of the IPC are
attracted in this case or not, at first, I would like to discuss the
evidence of the victim given by her before the trial court.
13. According to victim's evidence, she was alone when
the alleged occurrence took place with her, hence, the
prosecution's case completely depends upon her evidence. The
victim was examined as PW 5. She deposed that on 15.01.2016 at
about 11 AM, when she was going from her house to college then
suddenly a white coloured Bolero vehicle which was passing near
her stopped and thereafter the appellant forcefully caught her and
got her inside the said vehicle and after that glasses of the
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
windows of the said vehicle were closed and music was started in
loud sound. The victim further deposed that the appellant assaulted
and threatened her and brought her at Purnea bus stand and from
there she was taken by the appellant to Katihar by a bus and from
there she travelled in a train for three days with the appellant and
she was brought at some place where she was locked in a room
and she lived there for one month and thereafter she was brought
at Purnea. The victim further deposed that the appellant took a
room on rent in the house of one Md. Salim at Mirza Hata in
Purnea and there also the appellant assaulted and threatened her
and on one day she got the mobile phone of the appellant then she
informed her mother by using the said mobile phone and thereafter
her parents came at the said place with the police and recovered
her. The victim stated in her cross-examination that she talked to
the wife of the house owner where the appellant took a room on
rent and regarding rent the appellant talked before her. She further
deposed in the cross-examination that she lived with the appellant
in rented room for about five months and during that period she
did not say anything to the house owner or his wife about the
wrongs which were committed with her by the appellant. From
these statements, it is clearly evident that the so-called victim got
several opportunities to resist against the appellant's acts but she
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
remained silent and did not disclose the conduct of the appellant to
the several persons of public and she also remained silent for five
months in the house where she admittedly resided with the
appellant for five months despite having got several opportunities
to raise her grievance before the house owner or his wife.
14. The house owner, Md. Salim, and his wife were
examined as PW 8 and PW 4 respectively. PW 8 deposed that the
appellant was known to him as he had worked as mason in his
house, hence, he rented a portion of his house to the appellant and
at that time the appellant came with the so-called victim and both
resided in his house for about six months in well manner and
during that period the so-called victim did not raise any complain
against the appellant before him. Similar evidence was given by
PW 4 (wife of PW 8). The circumstances appearing from the
evidence of victim and material witnesses clearly go to show that
the victim was never abducted or kept in captivity by the appellant
as she remained silent for about six months while on many
occasions she got several opportunities to resist against the
appellant's acts before the public or some other persons and it
shows that the so-called victim was a consented party in going
with the appellant and in residing with him for about six months in
rented room of a house and in this regard the observation made by
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
Hon'ble Division Bench of this court in the case of Avinash Kumar
Ranjan vs. the State of Bihar in Cr. Appeal (DB) No. 244 of 2022,
upon which learned counsel for the appellant has placed reliance,
is important. The relevant observation made in paragraph 29 of
the judgement is reproduced herein as under:
"29. If this were so, the victim would not have been
recovered from the house of the appellant after two months. It
would be too much to expect that the victim was only hallucinating
about the stay with the appellant at Kanpur in a rented
accommodation. It, therefore, is a bygone conclusion that the
victim was in the company of the appellant for about two months
at a different place. The victim was never kidnapped or kept in
captivity which would become very evident from the fact that no
hue and cry was raised by the victim while she was being taken to
Kanpur and while she stayed in the rented accommodating with
the appellant".
15. The prosecution placed reliance upon the victim's
statement recorded under Section 164 of CrPC. The victim stated
in the said statement that on 15.01.2016 at about 11 AM, she came
out from her house alone and went with appellant at Mirja
Chowk, from where she first travelled in a bus and thereafter in a
train. The said statement is completely contradictory to the
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
evidence of victim given by her before the trial court as she
deposed in her evidence that she was forcefully pulled by the
appellant inside a four-wheeler vehicle when she was going to her
college. Though, a statement made under Section 164 of CrPC is
not considered as a substantive piece of evidence but such
statement can be used for the purpose of contradiction of the
statement of deponent under Section 145 of the Indian Evidence
Act. The said contradiction appearing in between the victim's
statement recorded under Section 164 of the CrPC and her
evidence deposed by her before the trial court is a material
contradiction and it casts a serious doubt in the prosecution's
allegation.
16. As per allegation, the victim was subjected to
physical torture when she resided with the appellant but the doctor,
who examined the victim, did not find any type of injury on her
person. If the appellant had been torturing the victim physically
during captivity period then definitely some old sign of physical
assault might have been present over the body of victim but such
evidence was not found by the doctor and the said circumstance
also goes against the prosecution.
17. As per Exhibit-2, which is victim's medical
examination report, she was pregnant at the time of medical
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
examination and the trial court placed reliance upon this report and
took into account the said medical finding as a cogent evidence to
prove the sexual relationship between the victim and appellant.
But merely on account of victim being pregnant at the time of her
medical examination, it cannot be deemed that she conceived on
account of appellant's sexual relation with her and in this regard,
some other scientific examination ought to have been made by the
prosecution to establish appellant's paternity with the victim's
unborn child but no such step was taken by the police or
prosecution. If we deem the victim to have conceived due to
appellant's sexual relation with her even then the alleged offence
of Section 376 of the IPC does not attract in this matter as from the
above discussions it is clearly evident that the victim was a
consented party to the alleged sexual relation and the best evidence
with regard to the victim's age was victim's educational
certificates which were withheld by the prosecution and the victim
made contradictory statements regarding her age. Furthermore, the
Medical Board's opinion with regard to the victim's age also
confirms the victim as being major if two years flexibility is given
to upper side of her age, which was opined by the medical board in
respect of her age.
Patna High Court CR. APP (SJ) No.1169 of 2023 dt.24-01-2024
18. In the light of the circumstances appearing from the
above- discussed evidences of the prosecution, this court finds that
the appellant's conviction under Section 4 of POCSO Act and
under Sections 363 and 376 of the IPC is not proper and legal and
the same is not sustainable in the eye of law, so it cannot be
upheld. Hence, the instant appeal stands allowed and the impugned
judgement and order convicting and sentencing the appellant for
the said offences are set aside.
19. As per learned counsel for the appellant, the
appellant has already completed his sentence, so there is no
requirement to pass any direction with regard to his release.
20. Let the Judgement's copy be sent to the learned trial
court for information and needful.
21. Let the L.C.R. be sent back to the learned trial court.
(Shailendra Singh, J)
BKS/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 31.01.2024
Transmission Date 31.01.2024
