Patna High Court
Mahesh Trivedi vs The State Of Bihar on 25 January, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.566 of 2017
Arising Out of PS. Case No.-60 Year-2013 Thana- CHACKMEHSI District- Samastipur
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Mahesh Trivedi S/o Mahendra Trivedi, Resident of Village Utrasadhi, P.S.-
Chakmahesi, Distt.- Samastipur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Ms. Surya Nilambari, Amicus Curiae
For the State : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA)
Date : 25-01-2024
The present appeal is filed under Section 374(2) of
the Code of Criminal Procedure, 1973 (hereinafter to be referred
to as "the Code") against the judgment of conviction dated
01.04.2017
and order of sentence dated 03.04.2017, passed by
the learned Additional Sessions Judge, 1st - cum - Special
Judge, POCSO Act, Samastipur in S.T. No. 516 of 2013 (Regd.
No. 615 of 2014), arising out of Chakmahesi P.S. Case No. 60
of 2013, whereby and whereunder, the Trial Court concerned
has convicted the sole appellant/Mahesh Trivedi for the offences
punishable under Section 376 of the Indian Penal Code and
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
Section 4 of the POCSO Act and sentenced him to undergo life
imprisonment, to pay a fine of Rs. 10,000/- and in default of
payment of fine, to further undergo imprisonment for six
months for offence under Section 376 of the I.P.C. The appellant
was further sentenced to undergo imprisonment for life, to pay a
fine of Rs. 10,000/- and in default of payment of fine, to further
undergo imprisonment for six months for offence under Section
4 of the POCSO Act. The sentences have been ordered to run
concurrently.
2. The instant case arise with the recording of
fardbeyan of P.W.2/Rajani Devi/mother of the victim girl, by
R.N. Roy, the then S.I. Chakmahesi Police Station, recorded on
06.07.2013 at about 8.30 A.M. at Sadar Hospital, Samastipur. As
per prosecution case, which is based on the fardbeyan of the
Informant/mother of the victim, she came to know at 7.00
O'clock in the evening of 05.07.2013 that her daughter/victim
girl, aged about five years, who was at her parents' house at
Chakmahesi, P.S. Chakmahesi, has been lifted by Mahesh
Trivedi (the appellant) and taken her away. The husband of the
Informant resided at Samastipur and today also, he was here. On
receipt of such information, she and her husband came at native
place Parana and thereafter, they started to search her daughter.
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
In course of such search, they heard the sound of screaming
which was coming out from the maize field whereafter they
went there and found the victim girl there. Mahesh Trivedi
was standing behind her daughter. On seeing the Informant and
others, Mahesh Trivedi started to flee from there. The villagers
chased him, nabbed and handed him over to the police station.
The victim girl was brought home. Thereafter, she was taken to
Sadar Hospital, Samastipur in unconscious condition where she
was being treated. After gaining senses, the victim girl disclosed
that Mahesh Trivedi/the appellant had taken her away. The
Informant examined the body of her daughter and found that
there was scratch over her mouth, neck and blood was oozing
out from her private part. Panty was not on her body. Nectar was
found in her body and the same being thrown at another place
and the victim was found at the pool of blood.
3. The fardbeyan of the Informant was forwarded to
the Chakmehasi police station as the place of occurrence was
under the jurisdiction of Chakmahesi police station. On receipt
of the aforesaid fardbeyan, the formal F.I.R. was registered.
4. After completion of investigation, the
Investigating Officer filed charge-sheet against the
accused/appellant for offence punishable under Section 376 of
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
the I.P.C. and Section 4 of the POCSO Act before the concerned
Magistrate Court. Thereafter, the learned C.J.M., Samastipur
took cognizance of the offence. As the case was exclusively
triable by Court of Sessions, the concerned Magistrate
committed the same to the Sessions Court for trial where the
same was registered as Sessions Trial No. 516 of 2013. Case
proceeded for trial and after closing the evidence of prosecution,
the statement of the accused was recorded under Section 313
Cr.P.C. in which the accused/appellant reiterated himself
innocent.
5. During course of trial, the prosecution has
examined altogether 11 witnesses in the charge-sheet but, the
prosecution has brought out 10 witnesses, namely, P.W.1 Ranjit
Kumar Choudhary, P.W.2 Rajani Devi (Informant), P.W.3
Kaushal Kishore Roy, P.W.4 /victim girl, P.W.5 Anita Devi,
P.W.6 Narendra Thakur, P.W.7 Kapileshwar Thakur, P.W.8
Bibha Devi, P.W.9 Ram Niwas (I.O.) and P.W.10 Dr. Lalita
Singh who have been examined in support of the prosecution.
The prosecution has also exhibited documents in support of the
allegation against the accused which are; Exhibit-1 signature of
Ranjit Kumar Choudhary on fardbeyan, Exhibit 1/1 signature of
Informant/Ranjani Devi on the fardbeyan, Exhibit 2 Signature
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
of P.W.3 Kaushal Kishore Roy on the seizure list, Exhibit 2/1
signature of witness Narendra Kumar Thakur, Exhibit 2/2
signature of Kaushal Kishore Roy on 2nd seizure list, Exhibit 2/3
signature of witness Narendra Kumar Thakur on 2 nd seizure list,
Exhibit 2/4 signature of Kaushal Kishore Roy on 3rd seizure list,
Exhibit 2/5 signature of witness Narendra Kumar Thakur,
Exhibit 2/6 signature of Narendra Kumar Thakur on 4 seizure
list, Exhibit 2/7 signature of Kaushal Kishore Roy on 4 seizure
list, Exhibit-3 registration and endorsement on fardbeyan,
Exhibit-4 formal F.I.R., Exhibit-5 four seizure list, Exhibit-6
medical report of the victim.
6. However, the Defence has not adduced any
evidence as a rebuttal of prosecution case as well as supporting
his defence.
7. The Trial Court, after considering the
documentary as well as oral evidence produced by the
prosecution, passed the impugned order of conviction and
sentence, as observed herein above. The sole appellant/convict
has, therefore, filed the present appeal.
8. Today, when the case was called out, no one has
put in appearance to press this appeal. Yesterday also, nobody
had appeared on behalf of the appellant. Therefore, in view of
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
the order passed by this Court dated 23.01.2024, we deem it
expedient in the interest of justice to appoint Ms. Surya
Nilambari as amicus curiae to assist the Court by appearing on
behalf of the appellant. Hence, we have heard learned advocate
Ms. Surya Nilambari for the appellant/accused as Amicus
Curiae and Mr. Ajay Mishra, learned Additional Public
Prosecutor, representing the respondent-State.
9. Learned counsel appearing on behalf of the
appellant has mainly contended that in the present case, there is
no eye-witness to the incident, (except P.W.4/victim girl) and the
case of the prosecution rests on suspicion as well as
circumstantial evidence.
10. Learned counsel for the appellant further
submits that the Trial Court was duty bound to at least put some
formal questions to her to ascertain her level of maturity
whether she is not just capable of giving her evidence in court
but, also understanding the alleged activity that took place with
her. Neither any such procedure was followed by the Trial
Court.
11. She further submits that children can be easily
tutored or taught and hence be played like puppets in the hands
of elders. Hence the testimony of a child witness can only be
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
relied after the Judge has recorded that the child is fit enough to
be testified and there is corroborative evidence for the same also
but, the Trial Court has also not followed the same. She further
submits that the victim girl in this case is unable to withstand
the rigors of cross-examination. She makes a contradictory
statement as to how the appellant accosted her. She says that she
fell unconscious immediately after undergarment was removed
which is just replica of the statement made by her mother. She
further states that the victim girl has denied making any
statement to the police rather the I.O. has stated that her
statement was recorded. So, her testimony when examined as
holistic prosecution story in keeping with the testimony of other
witnesses, it does not stand the test of falling within the realm of
beyond reasonable doubt. Thus, she submits that it seems highly
improbable, incredible and she does not come across as a
witness whose testimony can be relied upon safely.
12. At this stage, learned counsel for the appellant
has placed reliance upon the decision rendered by the Hon'ble
Supreme Court in the case of P. Ramesh Vs. State represented
by Inspector of Police, reported in (2019) 20 SCC 593 as also
another decision rendered in the case of Pradeep Vs. State of
Haryana, reported in 2023 SCC OnLine SC 777 and also
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
placed reliance on a judgment of this Court in the case of
Munna Sah vs. State of Bihar since reported in 2023 SCC
Online Pat 5099 in which this Hon'ble Court after considering
the various decision rendered by the Hon'ble Supreme Court,
has held that if the Trial Court has not carried out exercise of
putting question to the child witness with a view to ascertain
whether the said child witness is capable of understanding the
questions put to him and is able to give rational answers, the
deposition of such child witness cannot be relied upon more
particularly in absence of any corroboration thereof.
13. Learned counsel for the appellant next submits
that the P.W.9/I.O. has deposed that a Sanha was lodged on
06.07.2013 at about 1.00 O'clock in the night in the Station
Dairy bearing Sanha No. 84/13 but, the question now is that
what was the nature of this information and whether the
appellant was named in this information or not and if all the
details had indeed been revealed in this information itself then
why was the formal F.I.R. was lodged and why not the
investigation initiated there and then. Thus, the information
given at 1 O'clock in the night was suppressed by the
prosecution. These are the questions which creates a grave
doubt and lacuna in the prosecution case and falsifies the
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
impugned judgment passed by the learned Trial Court.
14. She further submits that non-production of the
station diary entry before the Court indicates that after
consultation and due deliberation subsequently on the basis of
false prosecution story, the present case has been instituted.
Reliance has been made by the learned counsel for the appellant
on the judgment of the Patna High Court in the case of Kamlesh
Kumar Rai Vs. State of Bihar reported in (2005)1 PLJR 446.
Paragraph no.17 being relevant is quoted herein below:-
"17. The counsel for the appellant has
also stated that non-production of the station diary
entry before the court also indicates that after
consultation and due deliberation subsequently on
the basis of false prosecution story the present case
was instituted. P.W.3 in his evidence has admitted
that two Chawkidar and one Dinbandhu Tiwary had
gone to police station to give information about the
occurrence. They stayed there for 45 minutes and the
I.O. came at the place of occurrence with them.
P.W.12 though suppressed this fact that three persons
had gone to inform him as he stated that he came to
know about cognizable offence, but his conduct
shows that he has substantive information regarding
the occurrence and on that basis he made entry in the
station diary and he proceeded with other police
personnel for the place of occurrence and started
writing the case diary at the police station itself
before recording the fard beyan of P.W.8 in this
circumstances the entry made by P.W.12 at the police
station was a valuable piece of evidence and non-
production before the court has made the prosecution
story doubtful and adverse inference can be drawn
against the prosecution. Considering the evidence of
P.W.3 and non-explanation by the prosecution as well
as by the I.O. P.W.12 about the non production of the
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
station diary entry in the court is vital in the present
case. The evidence of I.O. indicating that he started
writing the case diary at the police station itself
meant that the Sanha was the first information of the
occurrence lodged at the police station and it should
have been treated as F.I.R. in this case, but the same
has been withheld by the prosecution purposely for
the reason best known to them. Subsequently after
consultation and deliberation some other prosecution
story was concocted. It has rightly been argued by
the appellants counsel that an adverse inference can
be drawn against the prosecution for non-production
of Sanha entry specially in the present case when it
has been admitted by the I.O. that he made Sanha
entry and thereafter started writing the case diary as
such started investigation thereafter."
15. She further states that the victim girl was found
in unconscious state at 10-10.30 PM on 05.07.2013, the Sanha
in this regard was given to the police station at 1 O'clock on
06.07.2013, the fardbeyan of the Informant/P.W.2 was recorded
at 8.30 AM next morning which was sent to the police station
and the formal F.I.R. was registered at 11 AM on 06.07.2013.
Thus, there is a delay of approximately 12 hours in registering
the F.I.R. and, there is no any plausible explanation for the
delay caused in registering the F.I.R. which also creates a great
doubt in the prosecution case and thus, falsifies the impugned
judgment passed by the Trial Court.
16. Learned counsel for the appellant further states
that the I.O. in his evidence has stated that the statement of the
victim girl under Section 161 Cr.P.C. was recorded but, it was
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
the duty of the police officer to take immediate steps to take the
victim to the competent Judicial Magistrate for the purpose of
recording her statement under Section 164 Cr.P.C. but, he failed
to do so which also creates a grave lacuna in the prosecution
case.
17. She further submits that sub-section 5A reads as
a mandatory provision for recording the statement of the
prosecutrix under Section 164(5A) of Cr.P.C. by the Magistrate.
She submits that as soon as the crime is brought to the
knowledge of the police officer, he is duty bound to take the
victim girl to the nearest Judicial Magistrate for recording her
statement and it is the duty of the Magistrate to record her
statement. But, in this case, the provision made under Section
164(5A) has not been complied with which creates a grave
lacuna in the prosecution case.
18. Learned counsel for the appellant has again
pointed out that the occurrence had taken place at 7 PM in the
evening and the victim girl was found at around 10-10.30 PM
and, at the same time, the appellant was also caught by the
villagers and handed over to the police station but, there is no
satisfactory explanation as to what happened in between 7 to
10.30 PM.
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
19. She further submits that the statement made of
the accused/appellant under Section 313 Cr.P.C. is nothing but
mere a formality as nothing concrete has been asked from him.
20. She has further pointed out that in the
fardbeyan, there is no mention of Kalyanpur Hospital but, the
P.Ws.1 & 7 in their examination-in-chief have stated that firstly
the victim was taken to Kalyanpur Hospital from where she was
referred to Sadar Hospital, Samastipur. The doctor has also
stated that the victim was referred from the Kalyanpur PHC.
Thus there is contradictory statement between the prosecution
witnesses.
21. Learned counsel for the appellant lastly submits
that despite the availability of the victim and the appellant also
having been taken into custody on 06.07.2013, he was not put to
make medical examination although there was already a medical
report of the victim girl. The prosecution was required to
examine the accused, collect the bio-specimen of both of them,
sent it to the laboratory and strengthen the prosecution case
despite the fact that the appellant also was available to them,
victim was also available there but, they did not take any such
steps to get the medical examination of the accused/appellant
done which would have established whether he was the person
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
responsible for the rape committed upon the victim girl. Thus,
these are the defects which creates grave lacuna in the
prosecution story. In this regard, learned counsel for the
appellant has placed reliance on the judgment of this Court
dated 18.09.2023 passed in Cr. App. (DB) No. 807 of 2015.
22. Mr. Ajay Mishra, learned A.P.P. representing the
State, on the other hand, has submitted that the prosecution has
clearly established the guilt of the accused/appellant and no
exceptions can be taken to the reasons indicated by the Trial
Court under the well-reasoned judgment. He further submits
that the evidences have also been analyzed in great detail by the
Trial Court and, thus, no question of any interference is called
for with the conviction recorded by the impugned judgment
passed by the court below. He further states that whenever the
victim girl has stated in her evidence has been corroborated by
all the prosecution witnesses and, thus, there is no ground to
disbelieve the evidence of the victim given in examination-in-
chief. She has also corroborated that the accused has lifted her
and brought in the maize field. The victim had also identified
the accused in the Court. Thus, this is sufficient to convict the
accused/appellant and the judgment passed by the Trial Court
need not be interfered and has committed no error in passing the
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
impugned judgment. He further states that though there is no
eye-witness to the incident, in question, but, the prosecution has
proved the case against the appellant/accused beyond all
reasonable doubt by producing the cogent and relevant
evidence. He further submits that though the accused/appellant
was medically examined but, nothing was found so as to send
the same to the F.S.L. for examination. The learned counsel for
the State has placed reliance on the judgment passed by the
Hon'ble Apex Court in the case of B.C. Deva alias Dyava Vs.
State of Karnataka reported in (2007) 12 SCC 122, paragraph
19 being relevant is quoted herein below;
"19. Though, the FSL Report marked
as Ex.C-1 pertaining to the undergarments of the
accused and the victim did not contain any seminal
stains, yet the said report cannot be given any
importance because the underwear of the accused
was taken into possession by the police on the next
day of the incident when he was arrested. There is
no evidence brought on record to show that the
accused handed over the same under wear to the
police, which he was wearing on the day of
incident or he had handed over some other
underwear which was seized under mahazer (Ex.P-
5) by the police. The possibility of absence of
seminal stains on petticoat of the prosecutrix which
she was wearing at the time of the incident, could
not be ruled out due to the fact that the petticoat
got drenched in the water and the seminal stains
might have been washed away."
23. In order to appreciate the arguments advanced
by the learned counsel for the rival parties and to determine the
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
correctness of the conclusions recorded in the judgment passed
by the Trial Court, it will be necessary to discuss the evidence
adduced by the witnesses examined by the prosecution.
24. P.W.1- Ranjit Kumar Choudhary is the husband
of the Informant/father of the victim girl. Though, this witness
has claimed to identify the accused/appellant but, has not been
cross-examined by the defence and he was discharged. Thus, the
evidence of the P.W.1 lost all credibility.
25. P.W.2- Rajni Devi is the Informant/mother of
the victim girl and she has deposed on 22.11.2013 that she
received information at about 7.00 PM that her daughter is
missing from her parental house and on getting such
information, she and her husband arrived at her Naihar and
started to search out her daughter. Her daughter was found in the
maize field. She was naked, unconscious and the blood was
oozing out from her vagina. Thereafter, she was brought to
Sadar Hospital, Samastipur. When she regained her conscious,
she disclosed that Mahesh Trivedi/appellant took her away and
committed rape upon her. Daroga has recorded her ferdbeyan on
the same place. Further, on 18.01.2014, she has stated that on
05.07.2013 in the evening at 8 O'clock, she got information by
her mother on mobile bearing mobile no. 9801394077 that her
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
daughter was missing. On receipt of such information, she
reached at her maternal house by motorcycle at 10 O'clock in
the night and she along with her mother, father, brother and
sister-in-law started to search her daughter. In para-4 of her
statement, she has stated that the corn field is about one and half
to two lagghi distance from her house. She arrived at the field at
around 10.30 PM in the night. Further in para-5, she has stated
that she was the first who saw the girl who was in unconscious
condition and her panty was missing. She saw the panty in the
field which was of black colour. She brought the child to her
house and from there took her to hospital. She was unconscious
when the doctor was attending her. She took the child to the
hospital at 2 PM. The daughter was examined by the doctor at
2.30 PM. After one hour, she regained her conscious. Her
statement was recorded in the Hospital. Thereafter, the police
had recorded her statement again. The S.I. of Police had seized
the sleepers, hair-clip of her child and half filled packet of
Dream Carder Biscuit. In para-6, she has stated that her
daughter had told her that her panty was thrown off after
removing it and she got unconscious after that. She has further
stated that the house of the accused is after one or two houses
adjacent to her father's house. She has further stated that there is
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
no land dispute between her father and the accused. It is also not
that there was a land dispute between the accused and her father
and due to that, they have implicated him.
26. P.W.3 Kaushal Kishore Rai is the hearsay and
seizure list witness. In his examination-in-chief, he has stated
that when he came to know that the victim girl was missing, he
along with others started searching her. They found the girl in
Ole farm of Ganesh Tiwari. Manesh Trivedi was also there who
was running away. The villagers caught him and handed over to
the police. The girl was naked and in a distressed state and
blood was oozing out from her private part. They brought her
home and sent to Samastipur Sadar Hospital by car. In para-2,
he has stated that he and Narendra Kumar Thakur signed in the
seizure list as witnesses. He also singed in the arrest memo of
Mahesh Trivedi.
27. During cross-examination, he has stated that he
was asked to sign on the paper and he signed. In para-6, he has
stated that the wife of Mahesh Trivedi's wife is his sister-in-law
(Mauseri). At the time of occurrence, there were corn crops in
the farm. In para-7, he has stated that the victim girl was
missing from home since 7 O'clock in the evening. He got to
know about her missing at 8 O'clock in the night. He was also
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
among the family members of the victim who were searching
her. He has further stated that the police had recorded his
statement.
28. P.W.4 is the victim girl in the instant case. She
has stated in the examination-in-chief that when she had gone to
purchase a matchbox then Mahesh Trivedi slapped her twice
and he removed her panty, brought at the field and opened her
panty when she became fainted and then he left the place and
blood was coming out from her urinal passage. He had bitten
her cheek. She was treated in the hospital and she identified the
accused/Mahesh Trivedi.
29. During cross-examination, she has stated that
she was residing at her Nana's place for five years. She had
gone to get the matchstick at 4 O'clock in the evening. Mahesh
Trivedi was near the Gachhi (garden) next to the shop and was
urinating there. She has further stated that when she went a little
distance with the matchstick, she saw Mahesh while putting his
hand on her mouth, forcibly took her to the garden and bitten
her cheek. She shouted, called her grand-mother (Nani) but, no
one else came. He forcibly took her in the farm on foot and
suppressing her mouth which is at a short distance away from
the garden. The house of Mahesh is at a little distance from her
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
Nana's house. She has further stated that she did not understand
as to why Mahesh was putting off her panty. She got
unconscious as Mahesh put off her panty and she does not know
the further facts. She could not say regarding the farm where
Mahesh took her away. When her Chhotu Mama came to her,
she could know that her Mama has come who carried her in his
lap. In para-3 of the cross-examination, she has stated that on
the day of incident, she wore a frock and panty and she did not
know whether the police had handed over her panty to the
Darogaji or not. She does not know the meaning of rape. She
has again stated that Mahesh brought her at 3 O'clock in the day
in the field. Mahesh uncle had taken her after giving her
Chocolate and, that is why, she was not fearing at that time. In
para-4, she has stated that whatever she has to say today was not
taught by her mother, father and grand-mother.
30. P.W.5 Anita Devi is the shop-keeper and is also
a hear-say witness. She has corroborated that the victim girl had
come at her shop for buying a matchbox with Rs. 10/- to which
she returned Rs. 5 to her and she went to her home with the
matchstick. In para-2, she has stated that after an hour, the
maternal grand-mother of the victim girl came there searching
her. She told her that she had gone with matchstick. After one
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
hour, it came to light that Mahesh Trivei had taken the victim
girl to the garden and raped her.
31. During cross-examination, she has stated in
para-3 that the house of the accused is four-five houses away
from her house. In para-4, she has stated that there was an
uproar that Mahesh Trivedi took the victim girl away and raped
her. The victim girl had went away from her shop at about 7
O'clock.
32. P.W.6 Narendra Thakur is a resident of the same
village and is a seizure list witness in the present case. He has
deposed that the maternal grand-mother of the victim girl had
come to his house searching her. He has further stated that the
girl was found moaning and screaming in Ganesh Tiwari's corn
field at 10-10.30 PM. When they ran towards the sound, Mahesh
Trivedi was running away wearing Lungi after raping her.
People caught Mahesh Trivedi, police came and the accused was
arrested. The girl was naked. He has interalia stated that the
victim girl was sent for treatment in Sadar hospital where she
was treated.
33. During cross examination, he has stated that
Darogaji prepared the seizure list and after reading the same, he
put his signature. In para-9, he has stated that he had not seen
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
the accused rapping the girl. In para-10, he has stated that the
police had registered his statement at the incident site itself. In
para-11, he has stated that he saw the accused running wearing a
lungi after rape.
34. P.W.7 Kapileshwar Thakur is the maternal
grand-father of the victim girl. In the examination-in-chief, he
has stated that the incident dates back to 9 months ago at around
7 O'clock in the evening. His grand-daughter/the victim girl is
five years old. He has further stated that his wife had sent her
with ten rupees to buy matchstick from the shop. When she did
not return back from the shop, then he informed his daughter
and son-in-law. They came together and started searching out
the girl. Later on, at around 10 PM, in the Oal field of Ganesh
Tiwari, she was found. She was crying in pain in the Oal field.
Mahesh Trivedi was seen running from the same field. He saw
that his grand-daughter was in naked state, blood was oozing
out from her private part. He asked the victim girl then she told
that Mahesh Mama has raped her. Mahesh Trivedi was chased
away by the people and caught and was handed over to the
police. He has further stated that his grand-daughter was taken
to Kalyanpur Hospital for treatment from where she was
referred to Sadar Hospital. He has further stated that the police
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
came to the village and one slipper of Mahesh Trivedi and the
victim girl each and her hair-clip and underpants were seized
from the spot.
35. During cross-examination, in para-3, he has
stated that he has not seen Mahesh Trivedi raping. He has seen
the accused running away. In para-4, he has stated that the
accused has his own land and the land on which he saw the
victim girl is the land of Ganesh Tiwari. In para-5, he has stated
that he saw the accused Mahesh Trivedi at a distance of seven
laggas. At that time, 25-30 people were with him. At that time, it
was 10-11 O'clock in the night. In para-7, he has stated that he
had sent the girl to bring matchstick at 7 O'clock in the evening
from the shop. The shop is at 5-60 laggas distance from his
house. When the girl did not came back till half hour then they
started searching. The field of incident is at a distance of 400-
500 laggas.
36. P.W.8 Vibha Devi is the maternal grand-mother
of victim girl. This witness has stated in her examination-in-
chief that at the time of occurrence, the victim girl was living at
her house. She has further deposed that the occurrence took
place ten months ago at about 7 PM. At that time, she had sent
the victim girl to purchase matchbox from the shop of Daya
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
Baitha but, when she did not return till the half an hour then
they all started tracing her out but, she could not be traced out.
Then her parents was informed through mobile, both had come
and contacted and thereafter all started tracing her out. During
course of search, her grand-daughter was found in the Oal field
of Ganesh Tiwari in naked condition and she was groaning.
Mahesh Trivedi was seen running away from such field then the
people chased him and nabbed. Thereafter, the victim was
brought her home, she regained her sense and disclosed that
Mahesh Mamu has committed rape with her in the Oal field.
Slipper of Mahesh Trivedi and the victim girl, hair clutcher and
underwear were recovered from such Oal field. She was treated
at the Samastipur Hospital.
37. During cross-examination, she has stated in
para-6 that the Oal field belongs to Ganesh Tiwari. In para-9,
she has stated that there was a Oal field at the time of incident.
She did not see the rape taking place and the witness herself
says that she saw the accused running away from there. In para-
10, she has identified the slipper of the accused. The police took
her statement at her home. The police took her statement the day
after the incident. In para-12, she had denied any conflict
between her husband and the accused before the incident.
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
38. P.W.9 Ram Niwas is the Investigating Officer of
this case. He has stated in examination-in-chief that on
06.07.2013, he was posted as S.H.O. of the police station
Chakmaihasi and on the same day at around 11 AM, he received
the fardbeyan of the Informant/Rajni Devi which was in the
writing and signature of R.N. Roy, S.I. Samastipur, Town. He
has also deposed that a Sanha was also lodged on 06.07.2013 at
about 1 AM in night in the station diary, bearing Sanha No.
84/13. He has further stated that he himself took over the
investigation and visited at the place of occurrence. He further
described the place of occurrence by stating that the place of
occurrence is situated in the village Uttrasadhi under
Chakmahesi police station which comes under the Lakwapatti
Sivan, which is situated in western side of orchard of Haridev
Trivedi, which is surrounded by Banana, Sisam and Jangali
grass. He has further deposed that the place of occurrence has
been found to be pressed by the steps. Right leg sky coloured
slipper of accused, hair clutcher of the victim, half empty packet
of biscuit of the Dream lite, 5 pouch Pan Mashala and black
coloured underwear of the victim were recovered. He has
further described the second place of occurrence stating that the
same is located in the maize and Oal field of Ganesh Tiwari
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
which is situated in village Uttrasadhi coming under the
Lakwasivan. He has further disclosed that the victim girl was
found in groaning condition inside of the field at the distance of
10 feet away from southern-western corner and the accused was
nabbed running away from the vicinity of such place. The I.O.
has prepared the seizure list of the recovered article. He has also
stated that he has recorded the re-statement of the Informant and
the statement of the witnesses as well as statement of the victim
girl. The defence statement of the accused was also recorded.
39. During cross-examination, he has stated that he
has made the Nazri map of the incident site but, has not made
the Nazri map of second incident. In para-11, he has stated that
none of the materials seized has any mark on the basis of which
he can say whether it belongs to the accused or the complainant.
40. P.W. 10 Dr. Lalita Singh is the doctor who was
one of the member of the Medical Board constituted for
examining the victim girl. She has deposed she was posted as
Dy. Superintendent of S.D. Hospital, Dalsing Sarai. On the same
day, a Medical Board was constituted under the Chairmanship
of Dr. S.N. Das and the members were Dr. Anu Ranjan Kr. and
herself. She has further deposed that on 06.07.2013 at about
4.00 AM, the medical board examined the victim girl who was
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
referred from Kalyanpur PHC and found following injuries on
her body:- (i) Multiple abrasion on the face (including
mandibular region), (ii) Lacerated wound over angle of mouth
and lip, both lips swollen and inflamed, Multiple abrasion over
the front of neck size varying from 2-5 mm plus bruise, Two
abrasions 4-5 mm + bruise on inguinal region, Multiple abrasion
over back, P/A - above mentioned, P/B - lacerated wound over
the inner part of the Libia Majora and Labia Minora. There is a
tear of perineum and vaginal wall. Hymen ruptured. There is
thick discharge over the vagina and libia majore but, there was
no active bleeding. The Doctor has assessed the age of injury
within 24 hours and deposed that vaginal swab taken for
microscopic examination, there is no foreign hair. It has also
been interalia found that the vaginal swab examination for
presence of spermatozoa shows spermatozoa not found and the
USG normal. The Doctor has assessed the age of the girl to be 5
to 6 years. The Medical Board has also opined that the
evidences found on her body and private parts are suggestive of
rape.
41. On re-appreciation of evidence of the
prosecution witnesses, it is noted that the prosecution case is
based on the fardbeyan given by the P.W. 2/Informant/mother of
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
the victim girl recorded on 06.07.2013 at about 8.30 A.M. at
Sadar Hospital, Samastipur stating therein that she came to
know at 7.00 O'clock in the evening of 05.07.2013 that her
daughter/ the victim girl, aged about five years, was at her
parents' house at Chakmahesi, P.S. Chakmahesi, she was lifted
by Mahesh Trivedi (the appellant) and taken away her. The
husband of the Informant resided at Samastipur on receipt of
such information came at native place Parana and thereafter, the
Informant and her husband started to search her daughter. In
course of such search, they heard the sound of screaming which
was coming out from the maize field whereafter they went there
and found the victim girl there and Mahesh Trivedi was standing
behind her daughter. On seeing the Informant and others,
Mahesh Trivedi started to flee away from there. The villagers
chased him, nabbed and handed him over to the police station.
The victim girl was brought home. Thereafter, she was taken to
Sadar Hospital, Samastipur in unconscious condition where she
was being treated. After gaining senses, the victim girl disclosed
that Mahesh Trivedi/the appellant had taken her away. The
Informant examined the body of her daughter and found that
there was scratch over her mouth and neck and blood was
oozing out from her private part. Nectar was found in her body,
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
she was undressed by the accused and thrown at another place
and the victim was found at the pool of blood.
42. From perusal of the prosecution case, after
hearing both the sides as also perusing the evidences of the
witnesses, it is found that the date of occurrence is 05.07.2013,
fardbeyan of the Informant was recorded 06.07.2013 at 8.30 AM
in the morning but, the F.I.R. was instituted at 11.00 AM and
there is no plausible explanation for delay in instituting the
F.I.R. which creates a grave doubt in the prosecution case. It is
well known that when an FIR is delayed, in absence of proper
explanation, the courts must be on guard and test the evidence
meticulously to rule out possibility of embellishments in the
prosecution story, inasmuch as, delay gives opportunity for
deliberation and guess work.
43. From perusal of the records, it also appears that
the the P.W.9/I.O. has deposed that a Sanha was lodged on
06.07.2013 at about 1.00 O'clock in the night in the Station
Dairy bearing Sanha No. 84/13 but, the same was suppressed by
the prosecution and was not made base of the F.I.R. and is also
not on record. Whether the name of the appellant was there is
also not known. What the allegation made therein is also not
known to anyone. Thus, under this circumstances, the Sanha
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
was the valuable piece of evidence and non-production of the
same before the court has made the prosecution story doubtful
and adverse inference can be drawn against the prosecution.
44. The Criminal Law (Amendment Act) 2013,
among its various sweeping changes, inserted a new provision
5A (a) into the Section 164 of the CrPC, making it mandatory
that when an offence of rape is committed and the same is
brought to the knowledge of the police officer he is bound to
take the victim to the nearest Judicial Magistrate for recording
of her statement. Thus, the I.O. has not followed the mandatory
provision contained under Section 164 (5A) of the Cr.P.C. which
creates a grave lacuna in the prosecution case. For the
convenience, Section 164(5A)(a) of the Cr.P.C. is quoted herein
below:-
"164(5A) (a) In cases punishable under section
354, section 354A, section 354B, section 354C, section
354D, sub-section (1) or sub-section (2) of section 376,
3[section 376A, section 376AB, section 376B, section 376C,
section 376D, section 376DA, section 376DB,] section 376E
or section 509 of the Indian Penal Code (45 of 1860), the
Judicial Magistrate shall record the statement of the person
against whom such offence has been committed in the
manner prescribed in sub-section (5), as soon as the
commission of the offence is brought to the notice of the
police:
Provided that if the person making the statement is
temporarily or permanently mentally or physically disabled,
the Magistrate shall take the assistance of an interpreter or
a special educator in recording the statement:
Provided further that if the person making the
statement is temporarily or permanently mentally or
physically disabled, the statement made by the person, with
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
the assistance of an interpreter or a special educator, shall
be video graphed."
45. This Court also finds that although the
statement of victim girl under Section 161 was recorded by the
I.O. but, she was not produced before the competent Magistrate
to get her statement recorded under Section 164 of the Cr.P.C.
and she was directly examined as witness before the Trial Court
which also creates a great doubt in the prosecution case. This
Court also finds that the victim girl, who is a five years old girl
at the time of occurrence, has not gone through the Voir dire test
(a preliminary examination to determine the competency of
witness or juror) before taking evidence. Under this, the court
may ask questions to the child witness which are not connected
to the case to test the competency, such as questions about
name, name of parents, residence, education etc. It is very
desirable that a trial judge, who has a child witness before him,
should preserve on record, apart from the child witnesses
evidence in the case, some other questions and answers which
could help the higher courts or courts of appeal to come to
conclusion whether the trial judge's decision of competency was
right or wrong. If the testimony of the child witness is credible
and truthful and supported by other evidence conviction can be
based on it. Corroboration of evidence with testimony of a child
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
is also desirable in order to make conviction. Children are often
the most dangerous witnesses, as they can be easily tutored or
taught and hence be played like puppets in the hands of elders.
Hence the testimony should always be relied upon only after the
judge has recorded that the child is fit enough to testify and
there is corroborative evidence for the same also, but not in all
cases is the corroborative evidence necessary.
46. At this stage, we would like to refer the decision
passed by this Court in the case of Munna Sah (supra) wherein
this Court has observed in paragraph nos. 24, 25, 26 and 27
which reads as follows:-
"24. 18.1. In the case of Pradeep (supra), the
Hon'ble Supreme Court has observed in Para-7 to
10 as under:-
"7. We have carefully considered the
submissions. The fate of the case depends on
the testimony of the minor witness Ajay (PW-
1). Under Section 118 of the Evidence Act,
1872 (for short, "the Evidence Act"), a child
witness is competent to depose unless the
Court considers that he is prevented from
understanding the questions put to him, or
from giving rational answers by the reason of
his tender age. As regards the administration
of oath to a child witness, Section 4 of the
Oaths Act, 1969 (for short "Oaths Act") is
relevant. Section 4 reads thus:
"4. Oaths or affirmations to be made by witnesses,
interpreters and jurors.--(1) Oaths or affirmations
shall be made by the following persons, namely:--
(a) all witnesses, that is to say, all persons
who may lawfully be examined, or give, or be
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
required to give, evidence by or before any
court or person having by law or consent of
parties authority to examine such persons or
to receive evidence;
(b) interpreters of questions put to, and
evidence given by, witnesses; and
(c) jurors:
Provided that where the witness is a
child under twelve years of age, and
the court or person having authority to
examine such witness is of opinion
that, though the witness understands
the duty of speaking the truth, he does
not understand the nature of an oath
or affirmation, the foregoing
provisions of this section and the
provisions of Section 5 shall not apply
to such witness; but in any such case
the absence of an oath or affirmation
shall not render inadmissible any
evidence given by such witness nor
affect the obligation of the witness to
state the truth.
(2) .. .. .. .. .. .. .. .. .. .. .. .. .."
8. Under the proviso to sub-Section (1) of
Section 4, it is laid down that in case of a
child witness under 12 years of age, unless
satisfaction as required by the said proviso is
recorded, an oath cannot be administered to
the child witness. In this case, in the
deposition of PW-1 Ajay, it is mentioned that
his age was 12 years at the time of the
recording of evidence. Therefore, the proviso
to Section 4 of the Oaths Act will not apply in
this case. However, in view of the
requirement of Section 118 of the Evidence
Act, the learned Trial Judge was under a duty
to record his opinion that the child is able to
understand the questions put to him and that
he is able to give rational answers to the
questions put to him. The Trial Judge must
also record his opinion that the child witness
understands the duty of speaking the truth
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
and state why he is of the opinion that the
child understands the duty of speaking the
truth.
9. It is a well-settled principle that
corroboration of the testimony of a child
witness is not a rule but a measure of caution
and prudence. A child witness of tender age
is easily susceptible to tutoring. However,
that by itself is no ground to reject the
evidence of a child witness. The Court must
make careful scrutiny of the evidence of a
child witness. The Court must apply its mind
to the question whether there is a possibility
of the child witness being tutored. Therefore,
scrutiny of the evidence of a child witness is
required to be made by the Court with care
and caution.
10. Before recording evidence of a minor, it is
the duty of a Judicial Officer to ask
preliminary questions to him with a view to
ascertain whether the minor can understand
the questions put to him and is in a position
to give rational answers. The Judge must be
satisfied that the minor is able to understand
the questions and respond to them and
understands the importance of speaking the
truth. Therefore, the role of the Judge who
records the evidence is very crucial. He has
to make a proper preliminary examination of
the minor by putting appropriate questions to
ascertain whether the minor is capable of
understanding the questions put to him and is
able to give rational answers. It is advisable
to record the preliminary questions and
answers so that the Appellate Court can go
into the correctness of the opinion of the Trial
Court."
25. 18.2. In the case of P. Ramesh (supra), the
Hon'ble Supreme Court has observed in
Paragraphs-13 to 16 as under:-
"13. Section 118 [ "118. Who may testify.--
All persons shall be competent to testify
unless the Court considers that they are
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
prevented from understanding the questions
put to them, or from giving rational answers
to those questions, by tender years, extreme
old age, disease, whether of body or mind, or
any other cause of the same kind.
Explanation.--A lunatic is not incompetent to
testify, unless he is prevented by his lunacy
from understanding the questions put to him
and giving rational answers to them."] of the
Evidence Act, 1872 deals with the
competence of a person to testify before the
court. Section 4 [ "4. Oaths or affirmations
to be made by witnesses, interpreter and
jurors.--(1) Oaths or affirmations shall be
made by the following persons, namely:(a)
all witnesses, that is to say, all persons who
may lawfully be examined, or give, or be
required to give, evidence by or before any
court or person having by law or consent of
parties authority to examine such persons or
to receive evidence;(b) interpreters of
questions put to, and evidence given by,
witnesses; and(c) jurors:Provided that where
the witness is a child under twelve years of
age, and the court or person having authority
to examine such witness is of opinion that,
though the witness understands the duty of
speaking the truth, he does not understand
the nature of an oath or affirmation, the
foregoing provisions of this section and the
provisions of Section 5 shall not apply to
such witness; but in any such case the
absence of an oath or affirmation shall not
render inadmissible any evidence given by
such witness nor affect the obligation of the
witness to state the truth.(2) Nothing in this
section shall render it lawful to administer, in
a criminal proceeding, an oath or affirmation
to the accused person, unless he is examined
as a witness for the defence, or necessary to
administer to the official interpreter of any
court, after he has entered on the execution
of the duties of his office, an oath or
affirmation that he will faithfully discharge
those duties."] of the Oaths Act, 1969
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
requires all witnesses to take oath or
affirmation, with an exception for child
witnesses under the age of twelve years.
Therefore, if the court is satisfied that the
child witness below the age of twelve years is
a competent witness, such a witness can be
examined without oath or affirmation. The
rule was stated in Dattu Ramrao Sakhare v.
State of Maharashtra [Dattu Ramrao
Sakhare v. State of Maharashtra, (1997) 5
SCC 341 : 1997 SCC (Cri) 685] , where this
Court, in relation to child witnesses, held
thus : (SCC p. 343, para 5)
"5. ... A child witness if found
competent to depose to the facts and reliable
one such evidence could be the basis of
conviction. In other words even in the
absence of oath the evidence of a child
witness can be considered under Section 118
of the Evidence Act provided that such
witness is able to understand the questions
and able to give rational answers thereof.
The evidence of a child witness and
credibility thereof would depend upon the
circumstances of each case. The only
precaution which the court should bear in
mind while assessing the evidence of a child
witness is that the witness must be a reliable
one and his/her demeanour must be like any
other competent witness and there is no
likelihood of being tutored."
14. A child has to be a competent witness
first, only then is her/his statement
admissible. The rule was laid down in a
decision of the US Supreme Court in Wheeler
v. United States [Wheeler v. United States,
1895 SCC OnLine US SC 220 : 40 L Ed 244 :
159 US 523 (1895)] , wherein it was held
thus : (SCC OnLine US SC para 5)
"5. ... While no one would think of calling as
a witness an infant only two or three years
old, there is no precise age which determines
the question of competency. This depends on
the capacity and intelligence of the child, his
appreciation of the difference between truth
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
and falsehood, as well as of his duty to tell
the former. The decision of this question rests
primarily with the trial Judge, who sees the
proposed witness, notices his manner, his
apparent possession or lack of intelligence,
and may resort to any examination which will
tend to disclose his capacity and intelligence
as well as his understanding of the
obligations of an oath. As many of these
matters cannot be photographed into the
record the decision of the trial Judge will not
be disturbed on review unless from that
which is preserved it is clear that it was
erroneous."
15. In Ratansinh Dalsukhbhai Nayak v. State
of Gujarat [Ratansinh Dalsukhbhai Nayak v.
State of Gujarat, (2004) 1 SCC 64 : 2004
SCC (Cri) 7. Subsequently, relied upon in
Nivrutti Pandurang Kokate v. State of
Maharashtra, (2008) 12 SCC 565 : (2009) 1
SCC (Cri) 454] , this Court held thus : (SCC
pp. 67-68, para 7)
"7. ... The decision on the question whether
the child witness has sufficient intelligence
primarily rests with the trial Judge who
notices his manners, his apparent possession
or lack of intelligence, and the said Judge
may resort to any examination which will
tend to disclose his capacity and intelligence
as well as his understanding of the obligation
of Patna High Court CR. APP (DB) No.1039
of 2015 dt.01-11-2023 20/24 an oath. The
decision of the trial court may, however, be
disturbed by the higher court if from what is
preserved in the records, it is clear that his
conclusion was erroneous. This precaution is
necessary because child witnesses are
amenable to tutoring and often live in a
world of makebelieve. Though it is an
established principle that child witnesses are
dangerous witnesses as they are pliable and
liable to be influenced easily, shaped and
moulded, but it is also an accepted norm that
if after careful scrutiny of their evidence the
court comes to the conclusion that there is an
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
impress of truth in it, there is no obstacle in
the way of accepting the evidence of a child
witness."
16. In order to determine the competency of a
child witness, the Judge has to form her or
his opinion. The Judge is at liberty to test the
capacity of a child witness and no precise
rule can be laid down regarding the degree of
intelligence and knowledge which will render
the child a competent witness. The
competency of a child witness can be
ascertained by questioning her/him to find
out the capability to understand the
occurrence witnessed and to speak the truth
before the court. In criminal proceedings, a
person of any age is competent to give
evidence if she/he is able to (i) understand
questions put as a witness; and (ii) give such
answers to the questions that can be
understood. A child of tender age can be
allowed to testify if she/he has the intellectual
capacity to understand questions and give
rational answers thereto. [Ratansinh
Dalsukhbhai Nayak v. State of Gujarat,
(2004) 1 SCC 64 : 2004 SCC (Cri) 7] A child
becomes incompetent only in case the court
considers that the child was unable to
understand the questions and answer them in
a coherent and comprehensible manner.
[ Sarkar, Law of Evidence, 19th Edn., Vol. 2,
Lexis Nexis, p. 2678 citing Director of Public
Prosecutions v. M, 1998 QB 913 :(1998) 2
WLR 604 : (1997) 2 All ER 749 (QBD)] If the
child understands the questions put to
her/him and gives rational answers to those
questions, it can be taken that she/he is a
competent witness to be examined."
26. From the aforesaid decisions rendered by the
Hon'ble Supreme Court, it can be said that before
recording evidence of a minor, it is the duty of
Judicial Officer to ask preliminary question to
him/her with a view to ascertain whether the minor
can understand the questions put to him/her and is
in a position to give rational answers. The Judge
must be satisfied that the minor is able to
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
understand the questions and respond to them and
understands the importance of speaking the truth.
The Judge has to make a proper preliminary
examination of a minor by putting appropriate
questions to ascertain whether the minor is capable
of understanding the question put to him. It can be
further said that in order to determine the
competency of the child witness, the Judge has to
form his/her opinion. The Judge is at liberty to test
the capacity of a child witness. The competency of a
child witness can be ascertained by questioning him
to find out the capability to understand the
occurrence witnessed and to speak the truth before
the Court. In criminal proceedings, the person of
any age, is competent to give evidence if he is able
to understand questions put as a witness and give
such answers to the questions that can be
understood. A child of tender age can be allowed to
testify if he has the intellectual capacity to
understand the questions and give rational answers
thereto. However, a child becomes incompetent in a
case the Court considers that the child was unable
to understand the questions and answer them in a
coherent and comprehensible manner.
27. Keeping in view the aforesaid decisions, if the
facts of the present case are examined, it transpires
that the concerned Trial Judge has not carried out
the aforesaid exercise by putting question to the
child witness with a view to ascertain whether the
PW-8 (child witness) is capable to understand the
question put to her. Thus, we are of the view that the
reliance placed by the learned Trial Court only on
the deposition given by PW-8 who is the child
witness, aged about 10 yrs. and was aged about 7.5
yrs. at the time of occurrence, is misplaced.
Therefore, the Trial Court has wrongly placed the
reliance upon the said deposition of the child
witness."
47. This Court also finds that the statement made of
the accused under Section 313 Cr.P.C. is just a formality. In a
criminal trial, the purpose of examining the accused person
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
under Section 313 Cr.P.C., is to meet the requirement of the
principles of natural justice i.e. audi alterum partem. This
means that the accused may be asked to furnish some
explanation as regards the incriminating circumstances
associated with him, and the court must take note of such
explanation. In a case of circumstantial evidence, the same is
essential to decide whether or not the chain of circumstances is
complete. No matter how weak the evidence of the prosecution
may be, it is the duty of the court to examine the accused, and to
seek his explanation as regards the incriminating material that
has surfaced against him. The answers by an accused under
Section 313 of the Cr.PC are of relevance for finding out the
truth and examining the veracity of the case of the prosecution.
The scope of Section 313 of the Cr.PC is wide and is not a mere
formality. While examining the accused, Trial Court has to take
into consideration that the questions should be based on the
evidence adduced by the prosecution witnesses. The questions
should be formulated in clear, logical and understandable
leaving no ambiguity in questioning the accused.
48. It is a fundamental principle of criminal
jurisprudence that the prosecution must prove the case against
the appellant/accused beyond all reasonable doubt and if the
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
prosecution fails to prove its case beyond reasonable doubt, the
benefit goes to the accused person.
49. Looking to the over all facts and circumstances
of the present case, we are of the view that the Trial Court has
committed grave error in convicting the appellant. Thus, we are
inclined to allow this appeal and, accordingly, the appeal stands
allowed.
50. Thus, the impugned judgment of conviction
dated 01.04.2017 and order of sentence dated 03.04.2017,
passed by the learned Additional Sessions Judge, 1st - cum -
Special Judge, POCSO Act, Samastipur in S.T. No. 516 of 2013
(Regd. No. 615 of 2014), arising out of Chakmahesi P.S. Case
No. 60 of 2013 is quashed and set aside. The appellant, namely,
Mahesh Trivedi is acquitted of the charges levelled against him
by the learned Trial Court.
51. Since the appellant, above named, is in jail, he
is directed to be released forthwith, if his presence is not
required in any other case.
52. It goes without saying that if the
appellant/accused has deposited the fine, the same shall be
returned to him.
53. Before parting with the appeal, we record our
Patna High Court CR. APP (DB) No.566 of 2017 dt.25-01-2024
appreciation for the able assistance rendered by Ms. Surya
Nilambari, learned Amicus Curiae.
54. The Patna High Court, Legal Services
Committee is, hereby, directed to pay 5,000 (Rupees Five
Thousand) to Ms. Surya Nilambari, learned Amicus Curiae in
Criminal Appeal (DB) No. 566 of 217 as consolidated fee for
the services rendered by her.
(Vipul M. Pancholi, J)
(Rudra Prakash Mishra, J)
rishi/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 03.02.2024
Transmission Date 03.02.2024
