Patna High Court
Arun Tiwari vs The State Of Bihar on 25 January, 2024
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.319 of 2022
Arising Out of PS. Case No.-74 Year-2018 Thana- MAHILA P.S. District- Siwan
======================================================
ARUN TIWARI, Son of Late Chandra Shekhar Tiwari, Resident of Village -
Bharatpura, P.S.- G.B. Nagar (Tarwara), Dist.- Siwan
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : M/s Ajay Kumar Thakur,
Vashnavi Singh
Ritwik Thakur,
Kiran Kumari,
For the Respondent/s : Ms. Usha Kumari, Spl.P.P.
For the Informant/s : Ms. Kumari Anupma, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY
CAV JUDGMENT
(Per: HONOURABLE JUSTICE SMT. G. ANUPAMA
CHAKRAVARTHY)
Date : 25-01-2024
This criminal appeal has been preferred against
judgment of conviction dated 28.03.2022 and order of sentence
dated 30.03.2022 passed by the learned Special Judge POCSO,
Siwan, in Special POCSO Case No. 120 of 2019, arising out of
Siwan Mahila P.S. Case No. 74 of 2018. By the judgment and
order aforesaid, the appellant has been convicted and sentenced as
under: -
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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Cr. Appeal (D.B.) No. 319 of 2022
Sentence
Appellant's
Penal Provision Fine In default
Name Imprisonment
(Rs.) of fine
Convicted under
R.I. for one
Arun Tiwari Section 376(D) of the R.I. for 20 years 10,000/-
year
IPC
2. As the matter relates to Section 376(D) of the Indian
Penal Code, we are of the considered view that the names of the
victims and their parents shall not be disclosed in the judgment in
order to safeguard the identity of the victim girls as per the
directions of the Hon'ble Supreme Court.
3. We have heard Mr. Ajay Kumar Thakur, learned
counsel for the appellant and Ms. Usha Kumari, learned Spl.P.P.
for the State and learned counsel for the victims. For the purpose
of appreciation, victims i.e., P.W. 1 and P.W. 2 can be referred as
'X and 'Y, wherever they are to be referred.
4. The criminal case was set into motion, basing on the
written information given by one of the victim, who is the
informant (P.W.1/X), (undated) to the S.H.O., Mahila P.S., Siwan,
wherein the informant has stated that she along with her friend
P.W.2/Y was going to Tarwara to see the fair. On the way to
Tarwara at lonely place, the appellant with other four accused
namely, Guddu Tiwari, Ranjeet Tiwari and two other people
assaulted and committed rape on both of them, one after another
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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and also threatened them not to disclose the incident otherwise,
whole of their family would be killed. She also disclosed the age
and name of three of the accused including the appellant, who are
aged between 24 to 30 years.
5. Basing on the report, the SHO, Mahila P.S., Siwan
registered the case against the appellant/Arun Tiwari along with
four others vide FIR bearing Siwan Mahila P.S. Case No. 74 of
2018 dated 19.10.2018 for the alleged offence punishable under
sections 376D, Sections 4, 6, 8 and 10 of the POCSO Act and
also under Sections 3(2)(va) of the SC & ST (Prevention of
Atrocities) Act.
6. During the course of investigation, the Investigating
Officer has recorded the statement of witnesses under Section 161
of the Cr.P.C., who also got examined the victims under Section
164 of the Cr.P.C.. He also referred the victim girls for medical
examination. On completion of the investigation and after
receiving of the documents, laid charge-sheet against the appellant
and two others for the aforesaid offences. It is pertinent to mention
that as two of the accused were juveniles, they were referred to
Juvenile Justice Board.
7. The trial court took cognizance against the appellant
and two others for the aforesaid Sections and later charges were
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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framed under sections 376(D) of IPC, Sections 4, 6, 8 and 10 of
the POCSO Act and under Sections 3(2)(va) of the SC & ST
(Prevention of Atrocities) Act on 28.02.2019, against the appellant,
read over and explained to him.
The appellant pleaded not guilty and claimed to be
tried.
8. In order to prove the case against the appellant
beyond the reasonable doubt, the prosecution has examined
seven witnesses which are as follows:
Rank Name
P.W. 1 The victim (X)
P.W. 2 The Victim (Y)
P.W. 3
The sister of victim Y
P.W. 4 Manju Singh (I.O.)
P.W. 5 Dr. Rabina Khatoon
(Medical Officer)
P.W. 6 The father of the victim (Y)
P.W. 7 Anand Kumar Tripathi,
(Judicial Officer)
9. In addition to the oral evidence of the prosecution's
witnesses, the prosecution also brought on record several
documentary evidence which are as follows:
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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S. No. Exhibit No. Description
1. Exhibit -1 Signature of the victim(X) Informant on her
written application
2. Exhibit-1/1 Signature of the victim(X) Informant on the
statement u/s 164 Cr.P.C.
3. Exhibit-2 Signature of the victim (Y) on written application
4. Exhibit-2/1 Signature of the victim(Y) Informant on the
statement u/s 164 Cr.P.C.
5. Exhibit-3 Endorsement of the SHO on the written application
6. Exhibit-4 Signature of I.O. on formal FIR
7. Exhibit-5 Medical report of victim(X)
8. Exhibit-6 Age test report of victim (X)
9. Exhibit-7 Medical report of victim(Y)
10 Exhibit -8 Age test report of victim (Y)
11. Exhibit-9 Statement of victim(X) under Section 164 Cr.P.C.
12. Exhibit-10 Statement of victim(Y) under Section 164 Cr.P.C.
10. Further the appellant was examined under Section
313 Cr.P.C bringing to his notice incriminating evidence found
against him from the evidence of the prosecution witnesses for
which he denied and reported no defence evidence. The trial court
after considering the oral and documentary evidence convicted the
appellant for the offence punishable under Section 376(D) of the
IPC and appellant was acquitted for offences under POCSO Act
and under SC/ST Act.
11. P.W. 1 is the informant (victim/X). Her evidence
disclose that the appellant and four others, namely, Ranjeet
Tiwari, Guddu Tiwari, Shiv Kumar Tiwari and Krishna Mahto
came in Auto and stopped them and forcibly took her and
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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victim Y 100 yards to the south of the road, near a Mahua tree
and assaulted and committed rape on both of them, one after
another and also threatened them not to disclose the incident
otherwise, whole of their family would be killed. She further
testified that they arrived their house at 12:00 in the night and
informed her Sister PW3 about the incident, but as it was late in
the night, they prefered a case at the Mahila P.S., Siwan on the
next day.
12. PW 1 further stated that medical test was done at
Sadar Hospital, Siwan and also admitted about giving the
statement under Section 164 of the Cr.P.C. to the Magistrate. It
is specifically stated by PW 1 that she belongs to Harijan caste
and identified all the five accused.
In the cross-examination she admitted that Ashok
Sharma is Mukhiya of her Panchayat and her family was in
support of Ashok Sharma. She further admits that the accused
persons are not on visiting term with them and she did not know
them from before and she identified them during the occurrence.
It was moonlight at the time of occurrence. PW 1 further admits
that they tried their best to defend themselves from the accused
persons but they threatened them and also assaulted her on the
face and mouth, due to which she sustained injuries on face,
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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hands and eyes and that she has shown these injuries to the
doctor.
13. PW 2 is the victim Y. Her evidence discloses that
she alongwith victim X Aunty(Bua) was going to see Tarwara
Durga Puja Fair, on the way, five accused including appellant
beat and dragged them and took them to the field and
committed rape upon them one after another. PW 2 further
testified that Ranjit Tiwari committed rape on her Bua and on
the next day of the incident they went to the police station and
an FIR was lodged. PW 2 also stated as of the same of PW 1
with respect to her medical examination, recording of 161 and
164 Cr.P.C. statements. It is specifically testified by PW 2 that in
the said incident, her mouth was injured and her aunt's eyes
were injured, but we did not consult with doctor for the eye and
facial injuries.
14. PW 3 is sister of victim Y. She is not the eye
witness to the incident. Her evidence is a hearsay evidence. She
also testified as that of the same of PWs 1 & 2 as to the manner
and mode of occurrence, which was stated to her by PWs 1 and
2.
15. Further PW 6 who is the father of PW 2, also
testified as of the same of PW 3. It is specifically stated by him
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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that he was present at the house, when PWs 1 and 2 returned
home at 12.00 am (midnight) and heard from them about the
occurrence of the incident.
In the cross-examination, he admitted that he stated
before the Court as taught by the lawyer and that PW 3 has not
told anything. He admits that he does not know the name of
fathers of Guddu Tiwari, Arun Tiwari (appellant) and Ranjit
Tiwari and that his wife cannot hear.
16. Learned counsel appearing on behalf of the appellant
contended that the trial court had convicted the appellant for the
offence punishable under Section 376D which is erroneous and
perverse. Further, the prosecution has miserably failed to prove
that the appellant has committed rape upon the victim girls.
17. It is also the specific contention of the learned
counsel for the appellant that the oral evidence of the victims X &
Y contradicts with their medical reports i.e., Exhibits-5 & 7 and
also with the oral evidence of PW-5, Dr. Rabina Khatoon. In a case
of sexual assault/ rape, it is for the prosecution to prove that the
victims are sexually assaulted by the appellant for which the
medical evidence plays an important and crucial role. It is also
contended that the written application of PW-1 was undated and it
only reveals the names of appellant and two other, though, it
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
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disclose that five of the accused have committed assault and rape
on victims X & Y. It is also contended by learned counsel for the
appellant that for the first time, the names of the other accused
were revealed by the victims X & Y, before the Judicial
Magistrate 1st Class, i.e., PW-7 on 25.10.2018 i.e., after seven days
of alleged commission of offence, therefore, it can be understood
that a false case has been instituted against the appellant and
others. It is further contended by the learned counsel for the
appellant that initially a case was registered against the appellant
and others for the offences punishable under special enactment
under Section 4/8 of POCSO Act as well as under special
enactment under Section 3(2)(va) of SC/ST Act, along with
Section 376D of the IPC, whereas the trial court has acquitted the
appellant for the offences punishable under Sections 4, 6, 8 and 10
of POCSO Act as well as Section 3(2)(va) of the SC/ST Act, as the
age of the victims have been considered as above 18 years and
further there is no specific allegation against the appellant for the
offence punishable under Section 3(2)(va) of the SC/ST Act and,
therefore, prayed to set aside the judgment and order dated
28.03.2022
& 30.03.2022.
18. On behalf of the prosecution, the learned Spl. Public
Prosecutor contended that the material evidence of the prosecutrix
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
witnesses i.e., X & Y cannot be discarded, which corroborates with
the evidence of PWs-3 & 6, who have learnt from the victim girls
about the incident immediately after commission of the offence. It
is further contended that there is no error or irregularity in the
order of the trial court, so as to interfare the same and, therefore,
prayed to confirm the judgment and order of the trial court.
19. On the other hand, the learned counsel who appears
on behalf of the victims deposed that there is a delay of two days
in referring the victims to medical examination, therefore, the
medical evidence could not be corroborated with that of the
version stated by the victims and further contended that there is no
necessity for the victims to unnecessarily allege against the
appellant herein, and the 164 Cr.P.C. statement of the victims
disclose that the appellant along with 4 others committed sexual
assault / rape against the victim girls and, therefore, the judgment
passed in Special POCSO Case No. 120 of 2019, arising out of
Siwan Mahila P.S. Case No. 74 of 2018 deserves no interference
and prayed to confirm the judgment of trial court.
20. We have perused the impugned judgment of the
Trial Court and also perused the records. On consideration of rival
contentions of both the parties, the point for determination which
arose for determination in the appeal is that:-
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
(i) "whether the prosecution has proved the guilt of the
appellant beyond reasonable doubt for the alleged offence
punishable under Section 376D of the Indian Penal Code?
(ii) whether the Trial Court have rightly convicted the
accused for the aforesaid offences?
21. It is relevant to mention that the FIR neither
disclose the date of the offence nor the names of the other
accused, who alleged to have committed rape against the victims
X & Y one after the other. Further, the written report also do not
disclose that PW 1 informed about the incident to her father and
sister or the reasons for delay in preferring the report. The
signature of Investigating Officer on formal FIR is marked as
Exhibit-4.
22. On perusal of the formal FIR, on which the signature
of the Investigating Officer was present, it is evident that the
Investigating Officer received the written report on 19.10.2018, at
23:00 hrs i.e., at 11:00 PM.
23. It is relevant to refer the 164 Cr.P.C. statement of the
victims i.e., Exhibits 1/1 & 2/1. On perusal of the statements, it is
evident that both the victims have mentioned the names of five
accused who had committed rape on them, one after the other, and
that they reached the home at 12:00 PM and informed the elder
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
sister of PW-2/Y about the incident. It is specifically stated in the
164 Cr.P.C. statement that as there was no male member in the
house at that particular point of time, they have preferred the case
on the next day in the police station. If the contents of 164 Cr.P.C.
statement dated 25.10.2018 was taken into consideration, then the
presence of PW-6 at the house is to unbelieved and his evidence
has to be discarded. But the evidence of PW-6 clearly disclose that
he was present at the house and the victims came home crying and
informed about the incident. If at all the version of PW-6 is to be
taken into consideration then the statements of the victims under
Section 164 of the Cr.P.C. have to be discarded, as they are
contradicting the evidence of PW-6.
24. Furthermore, the 164 Cr.P.C. statements has to be
considered as a weak piece of evidence and it can be used only for
corroboration and cannot be treated as the evidence of the victims.
It is relevant to mention that the said 164 Cr.P.C. statements were
recorded after 7 days of the date of occurrence.
25. Though, the written report was undated, victims i.e.,
PWs-1 and 2 and PW 3 categorically testified that the incident
occurred on 18.10.2018. It is also relevant to mention that the 164
Cr.P.C. statements of the victims clearly disclose that they did not
approach the police station on the date of incident, as it was night
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
and there was no male member in their house. Surprisingly, the
victims approached the police station at 11:00 PM on 19.10.2018
for registering the case against the accused and no male member
accompanied them.
26. PW-4 is the Investigating Officer, who investigated
the case. Her evidence clearly discloses that the victims gave a
written application to her on 19.10.2018 and basing on it, she
registered a case No. 74 of 2018 and took up investigation in the
midnight. Again recorded the statements of the victims, inspected
the body of both the victims and referred them to District Hospital
Siwan along with a lady constable for medical examination. Her
evidence further disclose that on the same night she inspected the
place of occurrence i.e., at 12:30 AM (midnight) in the light of a
torch but did not find any trampling of Maize plants. As per the
Investigating Officer and the victims, the place of occurrence was
nearby a Maize field. There were no trampling of maize plants at
the place of occurrence. Both the victims have testified that five of
the male persons including the appellant have forcefully raped
them one after the other, if at all the said incident had occurred
there should be some marks available at the place of occurrence.
Furthermore, there should be injuries found on the body of the
victims.
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
27. The appellant has been convicted for offence
punishable under Section 376D of the Indian Penal Code. The
medical evidence plays crucial role to prove the offence under
Section 376D of the Indian Penal Code. The evidence of Dr.
Rabina Khatun, P.W. 5, who is the female doctor, has to be
scrutinized. P.W. 5 Dr. Rabina Khatun, Dr. Rashmi and Dr. Rita
Sinha Dr. Mitali are the members of the Medical Board constituted
by the order of Dy. Superintendent Dr. M.K.Alam in order to
examine the victims. The victims were examined by the Board of
Doctors. The following findings have been given by the doctors :-
Examination of victim X
"On Examination: - There was no any fresh injury on
her whole external body and private part.
Finding:-
Hymen not intact. Breast well developed. Auxiliary and
pubic hair present.
Investigation:- Vaginal swab taken and send to the
Histopathological medical examination. No spermatozoa present
dead or alive seen.
Plain X-ray : Pelvic AP view - Complete fusion on the
illiac creast.
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
Plain x-ray o both wrists - AP view - complete fusion of
the lower radial epiphyses. On the basis of Radiological
examination the age of victim X is 18-19 years.
Opinion: Age of victim X 18-19 years.
No evidence of recent sexual contact."
Examination of victim Y
"On Examination: - There was no any fresh injury on
her whole external body and private part.
Finding:
Hymen not intact. Breast well developed. Auxiliary and
pubic hair present.
Investigation:- Took Vaginal swab taken and send to the
Histopathological medical examination.
No spermatozoa present dead or alive seen. Epithelial
cell 6-8 HPF. RBC seen a few.
Plain X-ray : Pelvic AP view - Partial fusion of the illiac
crest.
Plain x-ray both wrists - AP view - complete fusion of
the lower radial epiphysis.
On the basis of Radiological examination the age of
victim Y is 17-18 years.
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
Opinion: On the basis of radiological examination age
of victim Y 17-18 years.
No evidence of recent sexual contact."
28. PW-5 is the Medical Officer. Her evidence discloses
that they examined both the victims and no fresh injury or scratch
was found on any part of their bodies. She opined that there are no
evidence of recent sexual contact on both of the victims. If at all
five of the male persons have committed rape on the victim girls,
there should be sufficient/adequate medical evidence to
corroborate the oral and evidence of the victims.
29. On the basis of the above findings, it can be
construed that the evidence of the prosecutrix are not reliable,
therefore, conviction is liable to be set aside.
30. As per the aforesaid discussion, we are of the
considered view that the evidence of the prosecution witnesses do
not appear to be trustworthy and the manner of occurrence is itself
doubtful. There is no iota of evidence and prosecution has
miserably failed to establish that the appellant has committed rape
on the victims. Hence, it is not safe to confirm the judgment of the
Trial Court and the appellant deserves for benefit of doubt.
Therefore, the conviction and sentence of the Trial Court are
liable to be set aside.
Patna High Court CR. APP (DB) No.319 of 2022 dt.25-01-2024
31. In view of the above discussion, the appellant is
acquitted for the charges punishable under Section 376D of the
Indian Penal Code.
32. Accordingly, the impugned judgment of conviction
dated 28.03.2022 and order of sentence dated 30.03.2022 passed
by the learned Special Judge POCSO, Siwan, in Special POCSO
Case No. 120 of 2019, arising out of Siwan Mahila P.S. Case No.
74 of 2018 is hereby set aside.
33. Accordingly, the appeal is allowed.
34. The appellant, namely, Arun Tiwari is in custody. Let
him be released forthwith, if not required in any other matter.
(G. Anupama Chakravarthy, J)
I agree
(Chakradhari Sharan Singh, J):-
(Chakradhari Sharan Singh, J)
Spd/-
AFR/NAFR
CAV DATE 23.01.2024
Uploading Date 31.01.2024
Transmission Date 31.01.2024
