Patna High Court
Sonu Kumar Gupta vs The State Of Bihar on 1 May, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.268 of 2019
Arising Out of PS. Case No.-104 Year-2017 Thana- RAMGARH District- Kaimur (Bhabua)
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Sonu Kumar Gupta, Male, aged about 30 years (Male), Son Of Rameshwar
Sah, Resident Of Mohalla - Parasthua, P.S.- Ramgarh, Distt - Kaimur At
Bhabhua
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. R.K. Sinha No. 2, Advocate
For the Informant/s : Mr. Gajendra Nath Ojha, Advocate
For the State : Mr. Sujit Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA)
Date : 01-05-2024
The instant appeal has been filed under Section 374(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred as
'Code') challenging the judgment of conviction dated
07.12.2018
and order of sentence dated 18.12.2018 passed by
learned Special Judge, POCSO Act, Kaimur at Bhabhua in
connection with Sessions Trial (POCSO) No. 27 of 2017 arising
out of Ramgarh P.S. Case No. 104 of 2017, whereby the
concerned Trial Court has convicted the present appellant for the
offences punishable under Section 366A and 376 of the Indian
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
Penal Code and Section 4 of the Protection of Children from
Sexual Offences Act, 2012, whereby and whereunder the
appellant has been found guilty for committing offence under
Section 376 (2) (N) of the I.P.C. and sentence of 12 years has
been awarded to convict with a fine of Rs. 50,000/- and in
default of payment of fine, additional punishment of rigorous
imprisonment for 6 months has been awarded. Sunita Kumari,
who is also a co-accused in this present matter, has already been
acquitted.
2. As per the prosecution case, the victim went to
Ramgarh Bazaar with Rashmi Devi, Rashmi Devi got a call
from Sunita Kumari wherein a male started talking and said that
he is the son of victim's maternal uncle and is coming to pick up
her at Durga Chowk. Thereafter, victim went to Durga Chowk
with Rashmi Devi and Rashmi Devi left for the Hospital. Sunita
Kumari was there at Durga Chowk and the victim met some
person with towel wrapped over his head who was siting on bike
wherein Sunita Kumari had given some water to drink to the
victim, which was alleged to be intoxicated and then she was
taken away by the accused person on his bike. The same
information was given later on 07.05.2017 to the police station
at Ramgarh.
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
3. On the basis of written complaint, Ramgarh P.S.
Case No. 104 of 2017 dated 07.05.2017 was registered and
thereafter investigating officer commenced investigation. After
investigation, the investigating officer submitted the chargesheet
against the present Appellant.
4. During the course of trial, the prosecution has
examined 17 witnesses namely, PW 1 - Ramraj Singh, PW 2 -
Victim, PW 3 - Dr. Badrudin Ansari, PW 4 - Dr. Krishna
Mohan Singh, PW 5 - Dr. Mrs. Amber, PW 6 - Dr. Manish
Kumar, PW-7 Baby Devi, PW-8 Santosh Kumar Gupta, PW-9
Reshmi Devi, PW-10 Vidya Kumari, PW-11 Rajesh Kumar, PW-
12 Ranjeet Kumar Yadav, PW-13 Buddhiram. Singh, PW-14
Surendra Yadav, PW-15 Vishwamitra alias Khannu Yadav, PW-
16 Vinod Kumar Singh and PW-17 Istiaq Khan. As documentary
evidence on behalf of the prosecution, as documentary evidence,
Exhibit-1- Signature of the informant on the written application,
Exhibit-2, Signature of the victim on the statement under section
164 of CrPC, 16 Exhibit-3, Medical report of the victim,
Exhibit- 4 letter sent for X-ray of the victim , Exhibit-5 letter
sent to Forensic Science Laboratory (with protest), Exhibit-6
Microscopic examination report, Exhibit-7 Dental examination
report of the victim, Exhibit-2/1 Witness on presentation cum
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
seizure list Signature of Rajesh Kumar, Exhibit-2/2 Signature of
witness Ranjit Kumar Yadav on the seizure list, Exhibit-8
Mobile presentation cum seizure list, Exhibit-9 CDR of mobile
dated 25.04.2017 to 11.05.2017. (including protest), Exhibit-10
Statement of the victim under section 164 of CrPC dated
25.04.20, Exhibit-11 Formal FIR, Exhibit-12 Endorsement on
written application and further statement of the accused under
section 313 of the code along with DW -1 Lalji Bind and DW -2
Bechu Bind was also recorded. After conclusion of the trial, the
trial Court convicted the present appellant for the aforesaid
offences as stated hereinabove.
5. Heard, Mr. Ajay Kumar Thakur, learned counsel
assisted by Mrs. Vaishnavi Singh and Mr. R.K Sinha 2 for the
appellant and Mr. Sujit Kumar Singh, learned APP for the State
along with Mr. Gajendra Nath Ojha, learned counsel for the
informant. Learned counsel for the appellant submits that, in the
present case, the appellant has falsely been implicated in this
case and further submitted that he has no relation with the
victim and the co-accused Sunita Kumari. It has been only
alleged that the accused Sonu Kumar Gupta took her to his
house where his wife was also living with him and raped her for
seven days. He further submitted that there is no case of alleged
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
rape of the victim and the victim had gone with someone else
and not with the accused Sonu Kumar Gupta.
6. Learned counsel Mr. Thakur submitted that there
was previous enmity between the family of the accused person
and brother in-law of victim for borrowing articles from his
spectacles shop which was near to the shop of the accused
person. He further submitted that the victim had gone out at her
own free will and she was not taken by anyone to anywhere or
even she was raped or kidnapped by the accused persons. He
further contended that the victim is said to be minor of 12 years
of age as per the written application of her father but no such
documentary evidence has been produced with regard to the
same. The medical board has determined the age of the victim,
which is only an opinion and not a strong ground to determine
the age of the victim.
7. Learned counsel for the appellant further contended
that the victim stated in her deposition that she was raped and
was also beaten up by the accused persons, but there is no sign
of injury on the body of the victim, and there is also no sign of
struggle on victim. The victim further stated that she was
shouting all the time but her shouting was not heard by anyone
and no one came to rescue her for 7 days when she was
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
kidnapped by the accused persons.
8. Learned counsel for the appellant further contended
that deposition of victim has various discrepancy as her
statement before the police and under section 164 of the code
did not reveal the name of the parents of accused persons but in
the trial, she has disclosed the accused person's parent name.
The CDR was also not produced for investigation as to whether
the mobile number of accused was used to contact Sunita
Kumari's mobile phone to bring the victim to Durga Chowk
where she was alleged to have been kidnapped. He further
submits that the informant is not an eye-witness to the
occurrence.
9. Learned counsel at this stage also contended and
submitted that the prosecution has failed to prove the case
against the appellant /accused beyond the shadow of all
reasonable doubt, but the trial court has passed the impugned
judgment of conviction and order of sentence against the
appellant and therefore, the same be quashed and set aside.
10. On the other hand, the learned APP and
learned counsel for the informant have vehemently opposed the
present appeal. The learned counsel for the informant submits
that the accused Sonu Kumar Gupta falsely used the name of the
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
victim's maternal uncle's son to lure the victim by covering his
face and took her to his house and raped her for seven days and
on protest by his person's parents and his wife he later on
brought her to Ramgarh and left her there. The medical
examination was conducted at Sadar Hospital, Bhabhua wherein
injuries were found on her body and genitals and evidence of
penetrative sexual assault was also found. The statement given
by the victim under Section 164 of the Code has also supported
the prosecution story implicating the accused who took her to
Parasathua on his motorcycle with the help of Sunita Kumari
who gave her medicated water to drink which was intoxicated
by her and after that victim was not able to do anything and was
taken away. It is further submitted that the victim as well as her
parents have deposed before the Trial Court against the appellant
beyond reasonable doubt and no error apparent is committed by
the Trial Court while passing the impugned Judgment of
conviction and order of sentence. The learned APP and learned
counsel for the informant, therefore, urged that the present
appeal be dismissed.
11. Having heard the learned counsel for the
parties and having gone through the material placed on record, it
would emerge that the prosecution had examined 17 witnesses
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
with a view to prove the case against the appellant.
12. PW-1 is the father (informant) of the victim
girl. At the time of the incident he was in Durg and his son
informed him that the daughter of the informant (victim) has
been kidnapped. He came to know that Sunita Kumari took the
victim to Durga Chowk stating that the victim's maternal uncle's
son came to take her and she was later kidnapped by the boy. He
further stated that Sunita Kumari broke the mobile phone of the
victim. He has named the accused Sonu Gupta and also
recognized the accused. He further stated that Sunita Kumari's
father Dayanand is his neighbor and cousin and they are not in a
good family relation and there is fight between both the families.
The informant has three daughters. He further stated that the
wife of the informant was not at home on the date of the
occurrence The father-in-law of the informant died and the wife
of the informant was there at the funeral of his father and the
informant's wife did not take the victim with her. The informant
further stated in his deposition that he has been living in Durg
for four years. The informant and his family members searched
for victim but could not find her and they did not know that the
victim was in Parasathua. The informant does not know where
Sunita is studying. The victim stated before the police that she
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
was in Parasathua from 01.05.2017 to 08.05.2017. The
informant has been in Parasathua many times but he has not
seen the house of Sonu Gupta, he saw Sonu Gupta at the police
station and he was told that Sonu Gupta and his wife brought the
victim to Durga Chowk and left. While going to the police
station, the informant saw his daughter on the way to the police
station and he picked up the victim and took her to police
station. The victim stayed in the police station for two days. The
Sub-Inspector, watchman and the informant went to Sonu
Gupta's cloth's shop which was in Parasathua market for further
investigation.
12.1. In his cross-examination, he has stated that,
he was in Chhattisgarh, Durg. He has registered the FIR on the
basis of what he heard from his daughter who told him about
Sonu Gupta. He met his daughter at police station at a distance
of 40 bighas. He stated that there is shop 40 to 50 bighas east of
the police station and there are settlements in the east of the
police station. He further stated that he met his daughter at the
place where in the east, there is a High School, in the West, there
is a shop and in the North, also there is a shop and in the South,
there is a road which goes to Nuav Buxar. He met his
daughter/victim and she was alone. A boy of the village of the
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
informant has seen the victim who studies in Inter college. He
brought the informant to the victim where she was sitting and
from there, the informant took her to the police station where
she gave her statement that Sonu Gupta kidnapped her and raped
her and later on brought her to Ramgarh and left.
13. P.W. 2 is the victim of the present case. She
has stated that Sunita Kumari is her cousin and Sunita Kumari
came to her house on 30.04.2017 and asked her to go to
Ramgarh on 01.05.2017 for her sister's admission in the
morning. When the victim refused to go, Sunita Kumari wrote
two mobile numbers (i) 7979786053 and the other she does not
remember and said that it belonged to her brother Mukesh and
asked her to talk to him on the number. Later on 01.05.2017,
Sunita Kumari called on Reshmi Devi's mobile and asked her to
go to Ramgarh. After this, when the victim went to Ramgarh
market with Reshmi Bhabhi, she got a call again on Reshmi
Devi's mobile, which came from Sunita's mobile and some
unknown boy asked "where are you"?, then the victim said that
it was a wrong number, to which he said "I am your cousin
brother Ramlakhan and your grandmother has died and your
mother has gone there and called you to come to the place", then
she went to Ramgarh Durga Chowk. Sunita Kumari was
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
standing there who gave the victim some water from the bottle
and after drinking the water, she got intoxicated and whatever
Sunita was saying seemed right. Sunita asked her to go on her
cousin brother's bike who was wearing a shawl on his mouth, so
Sunita made her sit on the bike. The boy, then took her to
Parasathua (his home) and locked her in his house, where she
was screaming. The name of that boy is Sonu Gupta (accused)
and he forcibly raped her at night and on the second night when
his wife came, she started shouting and asked Sonu Gupta from
where he brought the girl to the house, then he said from
wherever he brought her, he will leave her there in the morning.
After this, Sonu Gupta gave a tablet to the victim. After eating
the tablet, she started feeling dizzy and later on fainted. This
victim has further stated that from 01.05.2017 to 08.05.2017, he
kept her in his room and sexually abused her. This victim further
stated that when Sonu Gupta's parents threatened him, he left
her to Ramgarh and when she was going to the police station,
her brother and father met her and took her to the police station.
The victim has further stated that her statement was recorded on
09.05.2017 at 12 o'clock in the day and her statement was
recorded in the court on 11.05.2017. This victim has identified
her signature on the statement under section 164 of the Code and
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
the statement given in the Court which is marked as Exhibit-2.
This witness has said that her medical examination was done at
Mohaniya Government Hospital on 11.05.2017 and she has also
identified the accused.
13.1. In her cross-examination, this witness has
said that even before 01.05.2017, she had gone to Ramgarh with
her mother, but has never been to Parasathua before the incident.
She has further stated that Sonu's (appellant) parents do not live
in Parasthua's house. She does not know whether his two
brothers are studying there or not. The victim came to know the
names of her brothers which she heard from the closed room.
This victim has further stated that she was not conscious when
she went inside the Parasathua house and she regained
consciousness when she went inside the house. This victim has
also stated that the wife of the accused was in that house from
02.05.2017 to 08.05.2017. The accused used to live with his
wife and also used to threaten her. She further stated that the
accused would come to her at night. The victim also stated that
she had come to Parasathua to Ramgarh on a bike where the
victim was sitting on the bike and wife of the accused was
sitting behind her.
14. PW- 3, 4, 5 and 6 are the doctors, consisting
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
of the medical board namely, Dr. Badruddin Ansari along with
Dr. K.M. Singh, Dr. Manish Kumar and Dr. Mrs. Ambar
examined the victim on 11.05.2017 at 1:41 PM and they found:-
1) Two bruises along the medial border of the Palmer
surface of the right hand.
i) Dimension 2.5 cm x 5 cm yellow in color.
ii) 1.25 cm x .75 cm yellow in color
2) Punctured wound on the hipothinner region of the
Palmer surface of the right hand about .75 cm diameter.
Soft reddish scap formation with inflammation and
tenderness in the adjoining area.
3) Punctured wound on the Palmer surface of the terminal
(illegible) on the right middle finger .75 cm diameter with
soft reddish scap, inflammation and tenderness.
4) A bruise behind the left ear 2.5 cm x 2.5 cm.
Age of the injury:- one to two weeks
Cause :- Injury No. 1 & 4 hard blunt object and 2&3 by
pointed substance. All are Simple in nature.
Internal examination: done by Dr. Miss. Amber with
Urmila Kumari ANM, Assistant.
Injury on mid-line tear on the posterior forchet covered
with granulation tissue, collagen tissue and beed of pus-
age one to two week. An epithelial tag hangs from upper
left lateral in troitus about 1cm. in size irregular margin of
epithalamium showing heling raw bed. The hymen was
not present.
Age- On to two weeks
Auxiliary & pubic hair mainly along labia enlargement &
elevation of breast and iliac with no separation their
contour, papilla very small.
Microscopic examination shows two-three epithelial cells.
Erythrocytes & pus cell - Nil, Spermatozoa - live or dead
not found. The report given by KM Pathologist SDH,
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
Mohania. X-ray of dead not found. The report right & the
left shoulder joint & both knee joint & pelvis wrist, both
low their corresponding epiphysis the centre for lateral.
epicondyle iliac crest & adial tuberosity has appeared. On
the basis of physical feature, menstrual history
development of sexual character dentition and radio-
logical examination her age is 12- 14 years. There is
evidence of forceful vaginal penetration, penile
penetration can not be ruled out. F.S.L report is
awaited. Sign of struggle is present.
Rrine- Preg. Test is negative.
14.1. They further stated that the girl's statement
was verified through her report. They gave a report and stated
that if one commits forceful sex with a virgin girl, injuries stated
in the report would definitely occur. There is also sign of
struggle. Bruises and abrasions are very superficial injuries and
superficial injuries cannot be manufactured. In case of abrasion,
the outer layer of skin partly gets damaged. If any part of the
body is rubbed, the abrasion may be punctured and wound may
be caused on pointed surface such as bricks or tiles. The
suggestive of age victim is 12-14 years. A 14-year-old girl has a
second molar. Two molars area on top and two are at the bottom.
The third molar grows after the age of 17 years. Apart from the
molars, at the age of 14 there are five teeth on top and five teeth
on the bottom. There are 7 teeth above and 7 below in the report.
According to the report, including both sides, there are 14 teeth
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
on top and 14 teeth on bottom.
14.2. In his cross examination, PW-3 has stated
that he had received a demand letter for examination from police
and he along with the board of doctors have prepared the report
after getting the X-ray report. The witness has also stated that he
did not write the statement recorded by the police. He has also
stated that the wounds are not doctored wounds and they cannot
be created. He also mentioned that no case history has been told
by the victim.
15. PW-4 Dr. Krishna Mohan Singh, was a
member of the Medical Board, through whom age verification
and medical examination of the victim was done. This witness
has stated in his evidence that on 11.05.2017, he was posted as
Medical Officer in the Sub-Divisional Hospital, Mohaniya, and
he examined the vaginal swab of the victim, on the basis of the
demand letter of Dr. Badruddin Ansari. The sperm was not
found alive or dead. This witness has identified his investigation
report which is in his own handwriting (Exhibit-6). He has
stated in his cross-examination that he was not acquainted with
the victim before the examination and only the vaginal swab
was produced before him.
16. PW No. 5 Dr. Mrs. Amber, who was a
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
member of the Medical Board, has stated in her evidence that
she was posted as Lady Medical Officer in Subdivision Hospital,
Mohaniyan on 11.05.2017 and was a member of the Medical
Board, which was constituted to examine the victim (daughter of
Ram Raj Singh, resident of village- Isri, police station-
Ramgarh, district- Kaimur) and she examined the victim at
01:44 pm with the help of Urmila Kumari ANM and found-
injury on middle line tear on the posterior forchet covered with
granulation tissues, collagen tissues and bead of pus- Age one to
two week and epithelial tag hangs from upper left lateral
introites about 1cm. in size. The injury has irregular margin
epithelium showing healing raw bed. The hymen is not present.
Her auxiliary and pubic hair very sparse and light brown color.
Her pubic hair mainly along labia. Enlargement and elevation of
breast areola with no separation of their Contour, papilla very
small. She has given her report which has been marked as
Exhibit 5.
16.1. This witness has stated in cross-examination
that the wound found on the body of the victim was healed. This
witness has further said that once the hymen is ruptured, it does
not come back and she has not recorded the time of rupture of
the hymen. This witness has also stated that the wound has
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
healed and turned light pink color and there was swelling around
the wound from where the pus was coming which was visible
from outside.
17. PW-6, Dr. Manish Kumar, a dentist and a
member of the Medical Board, has stated that he had examined
the condition of the teeth of the victim and had found that she
had seven upper and seven lower teeth and her age could be 12-
14 years. This witness has identified his report as Exhibit-7. This
witness has also said that children get second molar at the age of
14 years.
18. PW-7, who is wife of the appellant stated that
she didn't know about the victim and if any incident took place,
she didn't know anything with regard to it. This witness was
declared hostile on the request of the prosecution.
18.1. In her cross examination, she states that she
had been married for 15-16 years and have 2 boys aged about 4-
5 years and 2 girls aged about 12-13 years. She further stated
that appellant is in textile business and there is no case
registered against him except this case and she has a good
relationship with her husband (appellant). She also stated that
she didn't knew anything about a girl named Sunita Kumari.
19. P.W.-8, who is brother of the appellant, stated
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
that he does not know the victim of this crime and have not even
heard her name and he do not even know if any such incident
occurrence. On request of the prosecution, this witness was also
declared hostile. He further stated that accused person has a
house in Parasthua and he do not recognize Sunita Kumari.
19.1. In his cross examination he stated that he is
running his shop for almost 6 years and the appellant began his
shop after 2 years of his shop and there are no criminal case
against the appellant and his conduct is fine.
20. PW No.- 9, Reshmi Devi is the co-villager of
the victim, with whom the victim has been said to have gone to
Ramgarh. This witness has stated in her evidence that in the
morning of 01.05.2017, the victim came to her house and said
that she wanted to talk to Sunita Kumari and asked for her
mobile, then she gave her mobile to the victim and the victim
talked to Sunita Kumari and returned the mobile. After an hour,
she went to Ramgarh market with the victim, where she got a
call on her mobile from Sunita Kumari who asked her to make
her talk to the victim , then she gave her mobile to the victim to
talk to Sunita. The victim talked and said that Sunita was calling
her and she was going to Durga temple. Saying this, she left
from there and this witness went to get medicine from doctor.
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
This witness has further stated that she has given a statement to
the police and she recognizes Sunita. This witness has further
stated that she later came to know that a boy named Sonu Gupta,
a resident of Parasathua, had run away with the victim. This
witness has further stated that his statement was recorded by the
police and she had told that the victim had talked to Sunita
Kumari by taking her mobile. This witness has denied that she
has testified falsely.
21. P.W.-10, Vidya Kumari d/o Subhash Yadav,
has stated in her evidence that the incident occurred on
04.05.2017. On that day she her sister-in-law Reshmi Devi and
her mother were going to Ramgarh market to buy medicines and
when they reached Ramgarh Chowk, victim and Sunita Kumari
of her village were talking amongst themselves and were also
talking on mobile. A boy was standing with a motorcycle with a
towel tied on his face, standing 10 feet from Durga Chowk and
victim said "we are going, you all go to the hospital", then these
people went to the hospital. This witness has further stated that
later she heard that Sonu Gupta had kidnapped her, in which
Sunita Kumari was also involved. This witness has identified
Sunita, but has not identified Sonu Gupta.
21.1. She has stated in her cross-examination that
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
she studies in class 8 and victim studies in class 7 in her school,
who is her elder uncle's daughter. This witness has also stated
that she met victim on 01.05.2017 at 1:30 pm. While she was
leaving for the market with her sister-in-law and mother, the
victim was going alone to Ramgarh and told that her maternal
uncle's son had come to pick her up, she was going to visit
Ramgarh to her maternal uncle's village. This witness has also
said that at Durga Chowk, victim had not talked by taking her
sister-in-law's mobile. The boy she had talked to was sitting on
the motorcycle with his face tied with towel. This witness has
also stated that she had not taken the name of Sonu Gupta before
the police.
22. PW-11, Rajesh Kumar, is a witness to the
seizure list, who has stated that Sub-inspector of Police had
prepared a seizure list in front of him at Ramgarh police station
of blue coloured mobile model - factor company's Hero 2 SIM
mobile, in which the SIM and the battery were missing and the
lid was broken on 09.05.2017 at 10:30 am. Similarly, PW No.
12, Ranjit Kumar Yadav is also a witness to the seizure list and
he has identified his signature on the seizure list, which was
prepared by Inspector Vinod Kumar at Ramgarh police station,
which is marked Exhibit-2/2.
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
23. PW-13, Buddhiram Singh has stated in his
evidence that he has no information about the incident, nor his
statement was recorded by the police. Thus, this witness has
been declared hostile by the prosecution and in the cross-
examination on behalf of the prosecution, this witness has
denied that he had told the police that the victim was his cousin
and that she had asked for Sunita Kumari's mobile and was
talking to someone. On 01.05.2017, the victim went to Ramgarh
market with her sister-in-law and talked from Reshmi's mobile,
whose number was 7979785053 on 8757079816 and when
Ramraj Singh scolded Sunita for making her talk from her
mobile, she got angry and removed the SIM and battery, broke it
and threw it away. This witness has identified Sunita Kumari,
but has not identified Sonu Kumar.
24. PW-14 has also not supported the incident
and has been declared hostile. In his cross-examination, he has
denied that he had told the police that both Mamta Kumari and
victim are sisters and Puja Kumari had a mobile phone and
victim went to Ramgarh market with Reshmi Bhabhi of the
village on 01.05.2017 and talked on two mobile numbers from
Reshmi's mobile. She went with the boy, who was standing near
the gate with his face tied with a towel, on the motorcycle. She
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
told Reshmi's sister in law that he was her maternal uncle's son
and would take her to her grandmother's place, but when victim
did not reach her maternal uncle's place, search for her began
and Ramraj Singh inquired Sunita Kumari and scolded her for
making the victim talk on mobile due to which Sunita got angry
and broke her mobile and threw it and Sunita Kumari has been
accused of helping in kidnapping because of making the victim
talk on mobile.
25. PW-15, Vishwamitra alias Kanu Yadav has
stated in his evidence that he has neither any information nor
heard anything about the incident and his statement was not
recorded by the police.
25.1. In the cross-examination on behalf of the
prosecution, it has been denied that the victim used to from the
mobile of her cousin sister Sunita Kumari and victim went to
Ramgarh market with Reshmi Bhabhi of the village and from
there talked on two mobile numbers from Reshmi's mobile and
the person to whom she talked was standing near the gate of the
block with a motorcycle covering his face with a towel and
victim told Reshmi that she was going with her maternal uncle's
son and went with him.
26. PW-16 Vinod Kumar Singh is the
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
Investigating Officer of this case, who has stated in his evidence
that on 01.05.2017, he was posted at Ramgarh police station and
on that day, he undertook the charge of investigation of case no.
104/2017 on the orders of SHO. Thereafter, after recording the
presentation cum seizure in the case diary, recorded the
statement of the informant and proceeded to the spot of incident.
The place of incident of this incident is 200 meters north of
Durga Chowk Park under Ramgarh police station, situated on
the south-north corner, adjacent to the main gate of the East
Office, where the accused was standing with a motorcycle,
covering his face with a towel. The boundary of the incident
site, there is the block office and consolidation office in the east,
to the west is the gate of the block office and Ajay Chaurasia's
paan kiosk, Durga temple and Dharamshala in the north and
paved road in the south. Later, he went from the incident site to
village Isri, and recorded the statements of witnesses Reshmi,
Vishwamitra Yadav, and Sanjay Yadav who supported the
incident. This witness has further stated that on 09.05.2017, the
victim came to the police station with her parents and on that
day he recorded the statement of the victim, but due to the court
being closed, her statement under Section 164 Cr.P.C could not
be recorded. Later, on 11.05.2017, the statement of the victim
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
u/s 164 Cr.P.C was recorded in the court and her medical
examination was done at Mohaniya Hospital and the victim's
statement was recorded by the Dy SP. In the light of the victim's
statement, he reached village Parasthua, arrested Sonu from
there and statements of residents of the village namely, Santosh
Kumar Gupta, Shyam Bihari Sah, Manta Sah, Guput Sharma,
and Ashok Sah were recorded. He inspected the place where the
victim was kept, which is a three-room terraced house, which
has an iron gate and the exit is towards the west. There is a hand
pump and a staircase in the middle of the house and it is the
house of the appellant Sonu Gupta. Thereafter, he obtained the
statement of the victim under Section 164 and the medical
examination report and after receiving the slide given by doctor,
he sent it to the Forensic Science Laboratory for examination on
25.07.2017. This witness has also said that he obtained the call
details of the appellant and Sunita Kumari from the mobile
company, which revealed that the mobile numbers of the
appellant were 7979785053 and 8757079816 and the IMEI No.
of Sunita Kumari's mobile was 911487600160474 and
9114876003854779 and call was placed between Sunita
Kumari's mobile no. 7319775465 and 9065027741 and Sonu
Kumar Gupta's (appellant) mobile no. 8757079816 on
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
26.04.2017, 09.05.2017 and 01.05.2017. The call details of
Reshmi Kumari's mobile number revealed that conversation
took place on Sonu Kumar Gupta's (appellant) number from her
mobile number 8573305749 on 02.05.2017, 03.05.2017 and
08.05.2017. Subsequently, in the light of the facts found during
the investigation, this witness submitted the first charge sheet
against the appellant under Section 366A, 376 of the Indian
Penal Code and Section 4 of the POCSO Act on charge sheet
No. 125/2017 dated 11.07.2017 and Second charge sheet No.
149/2017 dated 31.07.2017 was submitted against accused
Sunita Kumari under Section 366A and 376 of the IPC and
Section 4 of POCSO Act. This witness has identified the
presentation-cum-seizure list, which is marked Exhibit-8 and
has identified the CDR of the mobile dated 25.04.2017 to
11.05.2017, which is enclosed at page no. 23 to 45 of the diary,
which was marked as Exhibit-9 along with the objection.
26.1. In his cross-examination, this witness has
stated that Chaurasia paan shop is next to the place of incident,
but his statement was not recorded and that place remains busy
till 10 pm. This witness has further stated that in the
presentation-cum-seizure list, it is not written that who produced
the broken mobile and that it has been left out by mistake. This
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
witness has also stated that the call details were obtained after
the seizure list was prepared. He has also stated that he had
received the CDR from the clerk of the SP office, but it has not
been written in the diary. This witness has also stated that
witness Vidya Kumari had stated in her statement that on
01.05.2017, she was going to Ramgarh market with her mother
and sister-in-law at 2 o'clock in the day. While leaving the
village, victim told that her maternal uncle's son had come to
pick her up in Ramgarh and she went to Durga Chowk and
called the number on Reshmi Bhabhi's mobile and talked and
saw the boy who was riding a motorcycle with his face tied with
a towel who was standing at the Block office gate and victim
went away saying that "you go with Reshmi Bhabhi, I am going
to my grandmother's place along with my cousin brother". This
witness has also stated that the informant, Ramraj Singh had
said that before the incident, so he had gone to his in-laws house
with his wife for his mother-in-law's last rites where he got
information that his daughter was not at home, then he came
home and searched. But this witness, in his statement, did not
say that the girl was raped, but rather said that she was
kidnapped. This witness has stated that the victim had stated in
her statement that on 01.05.2017, Sunita told Reshmi Devi on
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
her mobile to hurriedly go to Ramgarh, to which she said that
she would reach Durga Chowk in five minutes and was on the
way to Ramgarh. Then, there was a call again on Reshmi Devi's
mobile, which came from Sunita's mobile, in which the boy's
voice was coming, he asked "where are you"?, then she said that
it is a wrong number, then he said "This is your brother Ram
Lakhan, your grandmother has died and your mother has gone
there and has called you there". Sunita was also standing there,
where she gave her water from the bottle, after drinking it, she
could not understand anything. Sunita Devi said "you should go
on your cousin brother's bike" and she was in a state of
intoxication and Sunita had helped in the kidnapping and rape
incident. Sunita also made her sit on the bike and herself sat on
it. This witness has further said that this witness did not say that
Sonu Gupta (appellant) had physical relations with her from
01.05.2017 to 08.05.2017 and used to beat her and when Sonu's
parents threatened Sonu then brought and dropped her at
Ramgarh market. This witness has also stated that he had talked
about his wife's protest, but he had not said that Sonu Gupta had
given her the tablet to eat due to which she got intoxicated and
he had also not said that Sonu Gupta had locked her inside the
house and she kept screaming out of fear. This witness has
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
denied that his investigation is erroneous.
27. PW No. 17 is a formal witness, who has
identified the endorsement on the formal FIR of Ramgarh Police
Station Case No. 104/2017 dated 07.05.2017 and on the written
application, which have been marked as Exhibit-11 and 12.
28. Two witnesses have been produced on behalf
of the defence side.
29. D.W. 1 is Lalji Hind, a resident of Mauza-
Binpurwa police station- Ramgarh district- Kaimur, who has
stated in his evidence that he knows the appellant . Along with
this, he also knows the informant Ramraj Singh. He has further
stated that Shiv Kumar Singh, son-in-law of Ramraj Singh, has a
spectacles shop in Parasathua and appellant has a cloth shop
near Dak Bungalow in Parasathua. Appellant lives with his
family in Parasathua and he had heard that Shiv Kumar's family
used to visit his house in Parasathua. This witness has further
stated that Shiv Kumar Singh had taken clothes from appellant's
shop two years ago and there was dispute between appellant and
Shivkumar Singh over money. Appellant's ancestral house is in
Badhupar and he also has his own house in Parasathua.
29.1. In the cross-examination, this witness has
stated that he does business in Parasathua and has further stated
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
that he does not remember the date and month of him visiting
appellant's shop. He has further deposed that he has not bought
spectacles from Shiv Kumar's shop, nor does he has any
document. The appellant had not shown any document for the
outstanding money. His house is in Bindpurwa, Police station-
Ramgarh.
30. D.W. 2 Baiju Bind is also a resident of
village Bindpurwa, police station Ramgarh district Kaimur. He
has stated that he knows informant Ramraj Singh and appellant.
He also knows Shiv Kumar, who is Ram Raj's son-in-law. This
witness has further stated that Shiv Kumar has spectacles shop
in Parasathua and appellant has a clothes shop in Parasathua.
Shiv Kumar lives with his family in a rented house in
Parasathua, where his in-laws and the victim visit. appellant
Kumar also has a house in Parasathua and both shops are nearby.
This witness has further stated that there was a fight between
appellant and Shiv Kumar about some issue one and a half years
ago regarding borrowing of clothes.
30.1. In his cross-examination, this witness has
stated that his village is two and a half kms away from
Parasathua and Isri, the village of the victim, is at a distance of
10 Kms from Parasathua. This witness has further stated that he
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
does not remember the date of the dispute nor did he see any
receipt for the outstanding amount. His house is also in
Bindpurwa, Police station- Ramgarh.
31. We have considered the submissions
canvassed by the learned advocates appearing on behalf of the
parties. We have also perused the material placed on record,
including depositions. From the evidences led by the
prosecution, it would emerge that the prosecution had examined
seventeen witnesses and it is not in dispute that the victim was
not found anywhere between 01.05.2017 to 08.05.2017 and was
later found out while the informant was going to file a missing
complaint and he thereafter took her to the police station where
the victim gave her statement before the police officers that the
accused kidnapped her and sexually assaulted and raped her for
seven days and thereafter brought her back to Ramgarh and left
her.
32. At this stage, we would like to refer to the
deposition given by PW-03 namely, Dr. Badruddin Ansari along
with the board of doctors including, Dr. K.M. Singh, Dr. Manish
Kumar, Dr. Mrs. Ambar, who examined the victim girl and
stated in his deposition in examination-in-chief as under: -
1) Two bruises along the medical border of the Palmer
surface of the right hand.
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
i) Dimensions 2.5cm x 5 cm yellow in color.
ii) 1.25 cm x .75 cm yellow in color.
2) Punctured wound on hipothinner region of the Palmer
surface of the right hand about .75 cm diameter.
3) Soft reddish scap formation with inflammation and
tenderness in the adjoining area. Punctured wound on the
Palmer surface of the terminal on the right middle finger .
75 cm diameter with soft reddish scap, inflammation and
tenderness.
4) A bruise behind left ear 2.5 cm x 2.5 cm.
33. The age of injury is stated to have been one
or two weeks old. The medical examination is done on
03.01.2018.
34. According to the internal examination
conducted by Dr. Mrs. Ambar with Urmila Kumari A.N.M. as
assistant, there is injury on mid-line tear on the posterior surface
covered with granulation tissue collasion tissue and beed pus.
The hymen is also not present. As per microscopic examination,
spermatozoa was not found.
35. As per the dental report given by Dr. K.M.
Singh, the suggested dental age is of 12-14 years. On the basis
of physical feature, menstrual history, development of secondary
sexual characters, dentism and radio-logical examination, the
age of the victim is 12-14 years. There is evidence of forceful
vaginal penetration. Penile penetration cannot be ruled out. Sign
of struggle is present.
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
35.1. In his cross examination he has specifically
stated the injury to be around one to two weeks old and there
was sign of struggle on the basis of injury suffered by survivor.
He further stated that these injuries could not be manufactured
and the injury is caused by hard and blunt substance.
36. The report given by the medical board and
the depositions given in their examination-in-chief, it is prima
facie clear and evident that the victim is a minor aged about 12-
14 years, according to the dental report and radio-logical
examination. The victim, in her statement under section 164 of
the Code, has stated that her age is 12 years, which is recorded
by the Magistrate. Under Rule 12 of the J.J. Rules, 2007, in the
absence of relevant documents, a medical opinion had to be
sought from a duly constituted Medical Board which would
declare the age of the juvenile or child.
37. Taking into consideration of the fact that the
prosecution has failed to provide any documentary evidence
with regard to the age of the victim. It has been categorically
decided in a catena of judgments that if there is no documentary
evidence available to decide the age of the victim, the report of
the medical board is to be taken into consideration, medical
opinion thus assumed importance. In the case of Om Prakash
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
vs State of Rajasthan reported in, (2012) 5 SCC 201, the
Hon'ble Supreme Court has held as under-
"While considering the relevance
and value of the medical
evidence, the doctor's estimation
of age although is not a sturdy
substance of proof as it is only an
opinion, such opinion based on
scientific medical tests like
ossification and radio-logical
examination will have to be
treated as strong evidence having
corroborative value while
determining the age of the alleged
juvenile accused."
38. In another judgment in the case of Ramdeo
Chauhan Vs State of Assam (2001) 5 SCC 714, the Hon'ble
Supreme Court has held as under-
"Of course, the doctors
estimation of age is not a sturdy
substitute for proof as it is only
his opinion. But such opinion of
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
an expert cannot be sidelined in
the realm where the court gropes
in the dark to find out what would
possibly have been the age of a
citizen for the purpose of
affording him a constitutional
protection. In the absence of all
other acceptable materials, if
such opinion points to a
reasonable possibility regarding
the range of his age it has
certainly to be considered."
39. Considering the above judgments, it is clear
that when there is no documentary evidence available to
substitute the age of a person as to whether he/she is a minor or
a major, the medical examinations boards report is valid
evidence.
40. The victim has further stated that she does
not know if the shop of the brother-in-law of the victim is
neighboring appellant's shop. Further, she also does not have
any knowledge about the enmity and borrowings between her
family and the appellant. Though, P.W. 8 has been declared
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
hostile at request of the prosecution, but in his cross-
examination P.W. 8 has also not stated that the shop of brother-
in-law of the victim is nearby or close to the appellant's shop.
41. In this present case the age of the victim is
stated to be 12 -14 years. Taking the margin of error into account
of two years, the age of the victim is still 16 years which is two
years below the age of majority. The age of consent is 18 years.
The victim is aged about 14 to 16 years, which is below the age
of consent.
42. Learned counsel for the appellant has
submitted that the victim has consented to the sexual
intercourse/relation with the appellant. Regarding this
submission of the learned counsel for the appellant, it is clear
that the victim being a minor and minor has no consent to sexual
relation/intercourse and it will be considered as sexual assault in
every situation. Considering this fact and statement of the
prosecution witnesses and defence witnesses, there is no such
evidence or fact amongst all of it, that the victim had earlier
relation with the accused and they have not suggested anything
regarding the same.
43. There cannot be any rational conclusion that
the victim has consented to the sexual intercourse and thus it is
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
clear that the victim was raped by the appellant. The injuries
sustained by the victim on her body parts was caused by hard
blunt object was examined by the board of doctors, which
showed sign of struggle suffered by the survivor victim. The
victim was also examined internally and the hymen was not
present and there was evidence of forceful vaginal penetration.
The Medical Board also concluded that the injuries sustained by
the victim cannot be manufactured or self-implicated.
44. Coming to the point that the accused is guilty
of the offense or not, it comes down to the point that the accused
has to prove whether he has committed the offence or not. The
accused is not innocent until proven guilty but he has to prove
that he is not guilty. Section 29 of the POCSO Act lays down
that when a person is prosecuted for committing or abetting or
attempting to commit any offence under the POCSO Act, the
Special Court shall presume, that such person has committed or
abetted or attempted to commit the offence, as the case may be,
unless the contrary is proved, an accused has to prove the
contrary, i.e., he has to prove that he has not committed the
offence and he is innocent. It is trite law that negative cannot be
proved in order to prove a contrary fact, the fact whose opposite
is sought to be established must be proposed first. It is,
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
therefore, an essential prerequisite that the foundational facts of
the prosecution case must be established by leading evidence
before the aforesaid statutory presumption is triggered in to shift
the onus on the accused to prove the contrary. The presumption
does not take away the essential duty of the Court to analyze the
evidence on record in the light of the special features of a
particular case, e.g., patent absurdities or inherent infirmities in
the prosecution version or existence of entrenched enmity
between the accused and the victim giving rise to an irresistible
inference of falsehood in the prosecution case while determining
whether the accused has discharged his onus and established his
innocence in the given facts of a case. Section 114B of the
Indian Evidence Act, 1872, deals with the presumptions as to the
offense and reads as under-
"114B. Presumption as to offences
committed under section 354, section
354A, section 354B, section 354C, section
354D, section 509, section 509A or section
509B of the Indian Penal Code, 1860.-
When the question is whether a person has
committed an offence under Section 354,
section 354A, section354B, section 354C,
section 354D, section 509, section 509A, or
section 509B of the Indian Penal Code and
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
if the victim deposes before the court that
she has been subjected to sexual
harassment or her modesty was outraged
or she was disrobed or she was stalked or
her privacy was intruded or she was
sexually harassed by any means, as the
case may be, the court may, unless
contrary is proved, presume that such
offence has been committed by that
person.
45. In Ragul v. State (Crl.Appeal. No.391 of
2016) learned Single Judge of the Madras High Court had
occasion to consider the scope of the presumptions under the
POCSO Act, at the instance of the accused who challenged the
conviction. It was held that section 29 of the POCSO Act has to
be strictly construed inasmuch as penal consequences are
involved. It was held that, the said section does not say that it
was ir-rebuttable presumption and in this context, it can be
safely concluded that the presumption to be drawn under the
provision is a rebuttable presumption. The Court proceeded to
consider whether the prosecution has put forth and established
the foundational facts to draw presumption under section 29 of
the POCSO Act.
46. After examining the defence witness nos.1
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
and 2, they have stated that the appellant and the brother-in-law
of the victim had previous enmity regarding some money for
taking cloths from shop of victim's brother in law and not
paying for it and due to which both accused and brother-in-law
of the victim had verbal fights with each other, the exact dates of
which is not known to both defence witnesses. D.W.1 Lalji Bind
in his statement has stated that he has heard that brother-in-law
of the victim has a clothes shop in Parasthua. Considering the
statements given by both the witnesses, the defence witnesses
have stated that the appellant has been falsely implicating that
due to previous enmity and the victim girl has named the
appellant in this present case. The victim in her cross-
examination, had clearly stated that she has knowledge of the
spectacles shop of the brother-in-law of the victim, but she has
also mentioned that she does not have any knowledge about the
shop or house of the appellant adjacent to shop of the brother-in
law of the victim. She has also mentioned that she no
acquaintance with the appellant. The victim has also stated that
she knows that her maternal uncle has two sons, namely,
Mukesh and Ramlakhan, but she does not know them and she
has never been to her maternal home.
47. The prosecution has clearly established the
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
case against the accused person and, thus, the onus shifts on the
appellant as to whether he has committed such crime or not.
Basing our opinion on the above facts and circumstances, we are
of the view that the appellant has not been able to prove that he
is not guilty of committing the crime.
48. Learned counsel for the appellant has also
taken a plea that the family of the victim did not file any
complaint against the police or any authority for 8 days when
the victim was missing, they only filed a case after finding the
girl on the last occasion. Any prudent person, whose minor child
of 12 years goes missing for even a single day, would leave no
stone unturned to find the child. The only person who has stated
that the offense has been committed is the victim girl only and
corroboration of the same is erroneous. Coming to this
contention, we are of the view that if evidence of the prosecutrix
inspires confidence, it must be relied upon without seeking
corroboration of her statement in material particulars. A rapist
not only violates the victim's privacy and personal integrity but
inevitably causes serious psychological as well as physical harm
in the process. Rape is not merely a physical assault but it is
often destructive of the whole personality of the victim. A rapist
degrades the very soul of the helpless female, the Courts,
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
therefore, should have a great responsibility while trying an
accused charged of rape. The Court should also examine the
broader probabilities of a case and not get swayed by minor
contradictions and insignificant discrepancies in the statement of
the prosecutrix, which are not fatal in nature, to throughout an
otherwise reliable prosecution case. victim of a rape, the
Statement given by her and the testimony of the offence should
be appreciated on the basis of probabilities like testimony of
other witness and conviction can be based solely on such
testimony.
49. In our Indian Society, the dignity of a girl
child and a woman is of a paramount importance. Even a
woman/girl is considered to be goddess. Considering this fact
and the status of dignity of a girl, which altogether holds the
dignity of a family, would not go out of the way and file a false
rape case against a person to satisfy the enmity of her family.
The father of the prosecutrix would also not ordinarily subscribe
the false story of the rape on his daughter and thereby bring a
public shame and embarrassment. In the present case, the father
was living in Durg for a significant period of time and his
statement is only hearsay. Still the statement given by him
corroborates with the statement given by the victim under
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
Section 164 of the Code.
50. Rape is defined under Section 375 of IPC-
Under Section 375, a man is said to commit rape if he;
Penetrates his penis into a woman's vagina, mouth, urethra, or
anus to any amount, or forces her to do so with him or anybody
else; or Inserts any object or portion of the body, other than the
penis, into the vagina, urethra, anus, or any other part of her
body, or forces her to do so with him or another person.
Manipulates any part of a woman's body to produce penetration
into the vagina, urethra, anus, or any other part of her body, or
forces her to do so with him or anybody else; or Applying his
tongue to a woman's vagina, anus, or urethra, or forcing her to
do so with him or another person, or Any of the seven clauses
laid down under Section 375 of the Indian Penal Code, 1860.
The provision embraced with seven clauses that majorly lays
down circumstances that if takes place, can be quoted to be
amounting to the offence of rape. Sixth and seventh clause :
sexual intercourse with a minor and when the woman is unable
to communicate consent.
51. As per the sixth clause, if the offensive act
is done with or without the consent of the girl and the girl is
under the age of eighteen, it is termed rape. The seventh clause
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
states that if the offensive act is performed on a woman who was
not in a position to consent at the time of the intercourse, the
same will also be considered to be rape. Under these
circumstances, where a person whom rape is committed is under
16 years of age, her consent is immaterial and penetration is
sufficient to constitute the offense. All other facts are immaterial
and considering the fact that the medical examination board has
also concluded that there was injury on the body of the victim
and the hymen was not present, and there is sign of struggle,
corroborates with the prosecutrix version of the case. Also,
Considering the fact that under Indian Evidence Act, 1872, there
is provision regarding presumption as to absence of consent in
certain prosecution for rape-
"114A. Presumption as to absence of consent
in certain prosecution for rape. --In a
prosecution for rape under clause (a), clause
(b), clause (c), clause (d), clause (e), clause (f),
clause (g), clause (h), clause (i), clause (j),
clause (k), clause (l), clause (m) or clause (n)
of sub-section (2) of section 376 of the Indian
Penal Code (45 of 1860), where sexual
intercourse by the accused is proved and the
question is whether it was without the consent
of the woman alleged to have been raped and
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
such woman states in her evidence before the
court that she did not consent, the court shall
presume that she did not consent."
In the present appeal, there is clear absence of consent discussed
above as the victim girl is a minor and consent of a minor is
immaterial. Even though it is immaterial, in this present case,
the statement given by the victim under section 164 of the Code
and other corroborating evidence and substantive evidence
clearly suggest that there was no consent given by the victim
which altogether negates the point of consent of the victim.
52. While concluding the matter, the learned
counsel for the appellant further contended that the period of
punishment of the appellant shall be reduced considering that
the appellant has already spent approximately 7 (seven) years of
sentence in prison and he shall be given a lower punishment.
Coming to this submission, the injury sustained by the victim,
the medical report of the board of doctors and the trial Court
record, it is clear to us that the victim was sexually assaulted and
thus, the sentence of 12 years and fine is appropriate and should
not be changed.
53. Considering the above facts and
circumstances, we are of the view that the trial Court has not
committed any error while passing the impugned judgment and
Patna High Court CR. APP (DB) No.268 of 2019 dt.01-05-2024
order. Thus, looking to the overall facts and circumstances of the
present case, we are not inclined to interfere with impugned
judgment and order and the judgment passed by the trial Court is
confirmed.
54. Accordingly, the present appeal is dismissed.
(Vipul M. Pancholi, J)
( Ramesh Chand Malviya, J)
Brajesh Kumar/-
AFR/NAFR AFR
Uploading Date 14.05.2024
Transmission Date 14.05.2024
