Patna High Court
Prabhas Singh vs The State Of Bihar on 1 May, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.232 of 2023
Arising Out of PS. Case No.-175 Year-2019 Thana- MAHILA P.S. District- Nalanda
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Prabhas Singh, Son of Jai Prakash Chandra @ Dinesh Singh, male, aged
about 27 years, R/o Jagatpur, P.S. - Harnaut (Telmar) Distt. - Nalanda, Bihar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Bindhyachal Singh, Sr. Adv.
Mr. Sumit Shekhar Pandey, Adv.
For the Informant : Mr. Anil Chandra, Adv.
Mr. Amit Kumar, Adv.
For the State : Mr. Binod Bihari Singh, Adv.
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 01-05-2024
Heard the learned counsel for the parties.
2. The sole appellant/Prabhas Singh has
been convicted for the offence under Section 376 (3)
of the Protection of Children from Sexual Offences Act,
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
2/19
2012 vide judgment dated 04.01.2023 passed by the
learned Additional Sessions Judge-VI-cum-Special
Judge, POCSO Act, Nalanda, Biharsharif in
POCSO/G.R. Case No. 113 of 2019, arising out of
Mahila P.S. Case No. 175 of 2019. By order dated
06.02.2023
, he has been sentenced to undergo R.I. for
twenty years, to pay a fine of Rs. 5,000/- and in
default of payment of fine, to further suffer S.I. for six
months.
3. The victim has also been recommended
for being paid compensation by the DLSA, Nalanda of
an amount of Rs. 6,00,000/-.
4. The victim (P.W. 1) had lodged the
written report addressed to the Officer-in-Charge of
Mahila Police Station, Biharsharif on 24.10.2019, which
led to the registration of Mahila P.S. Case No. 175 of
2019 dated 24.10.2019 under Sections 376, 313, 506
and 34 of the I.P.C. and Section 6 of the Protection of
Children from Sexual Offences Act, 2012.
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
5. In the afore-noted written report, she had
alleged that about one and half years ago, she
developed friendship with the appellant while going and
coming back to school. The appellant obtained her
telephone number; developed friendship with her; and
on the pretext of taking her to Patna for showing her
the place, he took her to his brother's house, where he
established sexual relationship with her. All this was
done on the assurance of marrying the victim.
Whenever the victim protested, her nude photographs
were shown to her and she was threatened that such
photographs would be made public.
6. In the meantime, the victim became
pregnant. This was noticed by her mother and on her
asking, she disclosed everything to her. On knowing
the afore-noted facts from the victim, her parents met
the parents of the appellant. They advised the parents
of the victim that she should first get an abortion done
and then only the marriage proposal could be accepted.
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
7. The victim was initially reluctant to go for
such a proposal, but on the insistence of the appellant,
she agreed for abortion. The appellant is alleged to
have administered some medicine to her, as a result of
which she got her pregnancy aborted. Thereafter,
when the victim asked for the formality of marriage to
be completed, the appellant and his parents refused.
8. Hence, the written report by the victim.
9. After about thirteen days of the lodging of
the F.I.R., the victim gave her statement under Section
164 Cr.P.C. before the Magistrate on 06.11.2019. The
afore-noted statement makes an interesting read.
According to her, the appellant is the brother-in-law of
one of her cousins, namely, Puja, whom she had met
in a marriage ceremony. It was in that meeting with
the appellant that a proposal of marriage was given by
him to her. With consent, she entered into physical
relationship with the appellant and as a result of that
encounter, she had become pregnant. Later, the
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
appellant refused to marry her. Fearing public
onslaught and social derision, she filed a case against
the appellant.
10. On further questioning by the learned
Magistrate, she acknowledged the fact that the
appellant had married her in accordance with hindu
religious rites and that at the time of recording of her
statement, she was living happily in her matrimonial
home. She also specifically stated that she had no
complaints against appellant or his parents or any
member of his family. She expressed her willingness
to live with the appellant. In fact, her brother-in-law
(elder brother of the appellant) had come to the Court
to bring her back to the matrimonial home.
11. What had happened in the thirteen days
that intervened between the filing of the written report
and the 164 Cr.P.C. statement?
12. The case should have been closed by
then. But it appears that something else happened.
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
13. The relationship between the appellant
and the victim must have been strained after
sometime.
14. The investigation, therefore, continued
and charge-sheet was submitted against the appellant,
showing his parents and others, who were initially
made accused in the written report, as not sent up for
Trial.
15. Before we refer to the evidence of the
victim, it would be necessary to refer to the deposition
of Sima Kumari, the Investigator, who has been
examined as P.W. 6. She has clearly stated before the
Court that no medical examination of the victim was
conducted on 24.10.2019. An effort was made by the
Investigator to have the victim medically examined on
06.11.2019, which she declined. However, on the
same day, the statement of the victim was recorded
under Section 164 Cr.P.C. Ten days later, the
Investigator recorded the statements of Sabut Devi
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
(P.W. 3), Ram Singh (P.W. 5) and Bachhu Singh, who
supported the prosecution case. There is no reference
in her deposition of the developments which had taken
place between 24.10.2019 and 06.11.2019, when the
victim had expressed her willingness to go back to her
matrimonial home and live with the appellant as his
married wife.
16. The Investigator, thereafter, has only
listed the dates on which she received different
instructions from superior police officers. On
28.11.2019, supervision note was received by her
which was recorded in the case diary. Further reports
from superior officers came forth on 10.12.2019,
22.01.2019, 23.01.2020, 04.02.2020, 16.02.2020,
04.04.2020 and 31.03.2021. These were all progress-
reports and instructions from the superior police
officers.
17. Ultimately, charge-sheet was submitted
against the appellant, whereas his parents were let off.
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
18. From the narration made by P.W. 6, it
appears that no investigation was made with respect to
the age of the victim; the correctness of the allegation
made by her against the appellant and others; as also
the evidence of witnesses who would have been really
important to know about the actual state of affairs.
The age of the victim, as claimed by her in her written
report, was accepted to be ex-facie true by the
Investigator.
19. Precisely for this lack of investigation in
the matter, a space was made available to the victim to
keep changing her stand at different times.
20. In her cross-examination, she (the
Investigator) has stated that she did not record
anything in the police papers regarding the educational
certificate of the victim, which would have disclosed
the recorded age of the victim. On being specifically
questioned and her attention having been drawn to,
she denied that the victim ever stated before her that
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
she was thrown away from the matrimonial home.
21. The victim had not spoken about
Radhika Devi, who is the wife of the elder brother of
the appellant as having taken part in any manner
whatsoever in getting the victim aborted. None of the
allegations which the victim made before the Trial
Court was spoken of by her before the Investigator.
The story of demand of 12,00,000/- rupees or
alienating one and half bighas of land for continuing
with the marriage was also never spoken of before the
Investigator.
22. Even the father of the victim, who has
been examined as P.W. 4, did not state anything about
any demand of money from the side of the appellant or
any pressure for alienating one and half bighas of land
for keeping the marriage intact.
23. It, therefore, appears that the victim
had a field day when she approbated and reprobated,
depending upon her equation with the appellant and his
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
family members.
24. Many other interesting facts have come
to the fore in the deposition of the other witnesses.
25. Geeta Devi (P.W. 2) is the mother of the
victim, who has made categorical statement that when
the victim had become pregnant, she was never taken
to any Doctor. Before the victim had become
pregnant, she had no idea that she was seeing the
appellant. Whenever the victim arrived at home late,
her explanation was that she got delayed in the
coaching classes. P.W. 2 had no idea that the victim
had been going to Patna off and on along with the
appellant.
26. The other details regarding the marriage
of the victim with the appellant and later the victim
falling apart from her matrimonial family has not been
stated by her.
27. This appears to be deliberate so as to
make out a case of rape against the appellant. When
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
the victim has herself stated under Section 164 Cr.P.C.
as also before the Trial Court that she got married to
the appellant, it was an important fact to have been
disclosed before the Investigator as also before the
Trial Court. The very factum of marriage and the
victim staying in her matrimonial home for more than
two years would have made the allegations absolutely
false.
28. In this context, it would again be
profitable to refer to the deposition of the victim.
29. She, in her examination-in-chief,
referred to the members of the family of the appellant
as her in-laws. She has also admitted that she became
pregnant because of the association with the appellant,
but when the appellant refused to marry her, she
lodged a case. After the case was lodged, the appellant
married her and she was happily residing in her
matrimonial home.
30. One thing which is very important to
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
note is that all the while that she made statement
before the Magistrate under Section 164 Cr.P.C. and in
her deposition before the Trial Court, she had referred
to the appellant as having plighted his troth to her.
There was obviously love relationship between the
victim and the appellant.
31. It appears that the relationship went
sour because of some other factors about which
suggestion were given to the victim during Trial. The
victim was suggested that she has left the matrimonial
home of her own accord and is presently residing with
somebody else with whom she has a child in her lap.
In the end of her cross-examination, she has stated
that after seven to eight days of her lodging the written
report, her further statement was recorded in which
she did not state many things for the reason that by
that time, she was happily residing in her matrimonial
home with the appellant as her husband.
32. Something must have gone wrong
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
thereafter in the relationship.
33. Similarly, the father of the victim (P.W.
4) also expressed his complete ignorance about the
victim having married the appellant and having lived in
her matrimonial home for many years.
34. It may be noted here that the victim had
also stated before the Trial Court that even after she
was thrown out of her matrimonial home, the appellant
kept on visiting her parental home for about sixty to
seventy times.
35. All these are not isolated facts.
36. It appears that initially a relationship
had developed between the victim and the appellant.
The victim, perhaps, became pregnant. The appellant
developed a cold feet in marrying an already pregnant
lady. However, after the lodging of the case, out of
fear, the marriage ceremony was performed. The
victim gave birth to a child. After some time, the
victim fell out with the appellant and left the
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
matrimonial home. This, perhaps, would have
happened as it appears from the prevaricating
statements made by the witnesses including the victim.
That good relations were restored between the
appellant and the victim during the course of
investigation is evident from the fact that no further
investigation was done by the Investigator. Precisely
for this reason, no effort was made by the Investigator
to know about the age of the victim, especially at the
time of the first encounter, when she had become
pregnant.
37. Was she a minor at that time?
38. The issue was not decided perhaps for
lack of any objection with respect to the age of the
victim by the defence and any investigation by the
police on that account.
39. However, it appears that during the
course of Trial, Ext. P/6 was brought on record, viz.,
the matriculation certificate of the victim, which showed
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
her age to be 01.04.2003. Counting from that date of
birth, the victim was a minor when she had met the
appellant for the first time and had continued with her
relationship for a very long time during her minority.
40. In this context, we have examined the
deposition of the defence witnesses, who are known to
the family and one of whom is the elder brother of the
appellant.
41. Arvind Singh (D.W. 1) is a resident of
the same village, who knew about the affairs of the
family of the victim and the appellant. In fact, there
was a proposal of the marriage of the victim with the
appellant at the instance of the father of the victim, but
finding the victim to be not of the marriageable age,
the marriage ceremony was deferred for the victim to
attain majority. This, perhaps, was taken as a denial of
the offer of marriage and because of the existing love
relationship between the appellant and the victim,
pressure was put on the family of the appellant and,
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
thereafter, the marriage took place. After about two
months of her stay in her matrimonial home, the victim
is said to have eloped with another person and her
whereabouts were not known to anybody.
42. Almost similar statements have been
made by Subhash Singh (D.W. 2), who has affirmed
the fact that the offer of the marriage of the victim
with the appellant was delayed on account of the
minority of the victim. The marriage was performed
only after the subject F.I.R. was lodged. The victim
stayed in the matrimonial home for quite some time
and, thereafter, she left the company of the appellant
voluntarily.
43. Rampravesh Prasad (D.W. 3) and Navin
Kumar Singh (D.W. 4) have also made similar
statements before the Trial Court.
44. Seen in totality, thus, it appears that the
victim may have come across the appellant while she
was still a minor. Every effort was made by the
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
appellant and his family members to avoid marriage for
the victim being a minor at that time. This, as noted
above, may not have gone well with the family of the
victim and a case was lodged for the offence of rape.
Thereafter, the marriage was performed.
45. Some part of it happened when the
victim was still a minor, but was on the cusp of
attaining majority. When did she attain majority
remains unknown as no investigation was made on that
account.
46. Prima facie, it appears to be a case of a
gun-shot marriage and, thereafter, that marriage
having failed for some reason or the other.
47. For the reason of the victim having
voluntarily accepted the matrimonial relationship with
the appellant and staying in her matrimonial home for
three years, which fact was clearly admitted by her in
her deposition before the Trial Court and there being
no investigation about the minority of the victim, we do
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
not find it to be a case of rape. The Trial Court has
gone on the proposition of law with respect to the
determination of age and has referred to various
citations which are of no use in the facts of this case.
If the date of birth of the victim is taken into account,
one and half years before lodging of the written report,
she would be around fifteen years of age, but the
details of the year in which such association was made
by the appellant with the victim not being known or
referred to, there is no proof of the fact that the
relationship was consummated when the victim was
only a minor and had not crossed over the date of
majority.
48. For the afore-noted reasons, we find the
accusation against the appellant to be unworthy of
complete reliance. We, therefore, cannot put our
imprimatur to the opinion arrived at by the Trial Court.
49. The judgment and order of conviction,
referred to above, is set aside and the appellant is
Patna High Court CR. APP (DB) No.232 of 2023 dt.01-05-2024
acquitted of the charges leveled against him.
50. Since, the appellant/Prabhas Singh is in
jail, he is directed to be released from jail forthwith, if
his detention is not required in any other case.
51. The appeal stands allowed.
52. Let a copy of this judgment be
dispatched to the Superintendent of the concerned jail
forthwith for compliance and record.
53. The records of this case be returned to
the Trial Court forthwith.
54. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Jitendra Kumar, J)
Praveen-II/Manoj
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 02.05.2024
Transmission Date 02.05.2024
