Patna High Court
Md. Amin vs The State Of Bihar on 20 November, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.5040 of 2023
Arising Out of PS. Case No.-69 Year-2021 Thana- KHARIK District- Bhagalpur
======================================================
MD. AMIN, Son of Late Chulo Phakeer Resident of Village - Kharik
Usmanpur Tola, P.S.- Kharik, District - Bhagalpur. ... ... Appellant/s
Versus
1. The State of Bihar.
2. Manoj Thakur, Son of Late Ram Thakur Resident of Village - Kharik Bazar,
Ward No.10, P.S.- Kharik, District - Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Ranjan Kumar Jha, Advocate
Mr. Sanjeev Kumar, Advocate
Mr. Mritunjay Kumar, Advocate
Mr. Vikash Kumar, Advocate
Mr. Rana Pratap Singh, Advocate
For the Respondent/s : Mr. A.M.P. Mehta, APP
For the Informant : Mr. Rajesh Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 20-11-2024
The present appeal preferred by
appellant/convict Md. Amin against judgment of
conviction dated 18.09.2023 and the impugned order of
sentence dated 22.09.2023 passed by the learned
Exclusive Special Judge (POCSO Act)-cum-Addl. District
& Sessions Judge-VII, Bhagalpur, in POCSO Case No. 86
of 2021 arising out of Kharik P.S. Case No. 69 of 2021,
whereby and whereunder the appellant/convict has been
convicted for the offences under Sections 363 and 376 of
the Indian Penal Code and Section 4 of the POCSO Act
and ordered to undergo sentence for R.I. of ten years and
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
2/21
fine of Rs. 20,000/- (Rupees twenty thousand only) for
the offence under Section 4 of the POCSO Act and in
default of payment of fine, he shall further undergo six
months of S.I. Further sentenced him to undergo R.I. for
five years and fine of Rs. 10,000/- (Rupees ten thousand
only) for the offence under Section 363 of the Indian
Penal Code and in default of payment of fine, he shall
further undergo three months of S.I.
2. The crux of prosecution case, as it appears
from the written information of the informant, namely,
Manoj Thakur (PW-1) that on 08.04.2021 at about 9:00
AM, his minor daughter went on missing, so he began to
search. During course of search, he came to know that
Md. Amin (appellant) enticed his minor daughter. Further
alleged that his minor daughter has also taken away Rs.
16000/- and golden chain alongwith her. It was also
alleged that when he asked brother of Amin about this,
then he abused him, so he suspect that Md. Irshad and
Md. Iliyas and Amin all having common intention have
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
3/21
enticed away her for the purpose of marriage with his
minor daughter.
3. With aforesaid written information of
informant/PW-1, Kharik P.S. Case No. 69/2021 dated
9.4.2021
was lodged for the offences under Sections
363,366(A),379/34 of the Indian Penal Code.
4. After investigation, police submitted charge
sheet No. 151/21 on 07.08.2021 for the offences under
Sections 363,366(A)/34 of the Indian Penal Code.
Thereafter, learned trial court took cognizance against the
appellant for the offences under Sections 363, 366A, 376
of the Indian Penal Code and Section 4 of the POCSO Act
for trial and disposal.
5. To established its case before the learned trial
court, the prosecution altogether examined total of seven
witnesses, namely, PW-1 Manoj Thakur (informant and
father of the victim) PW-2 Funia Devi (mother of the
victim), PW-3 victim, PW-4 Prabhat Kumar (1st I.O.),
PW-5 Mausam Kumar, PW-6 Praveen Kumar Yadav and
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
PW-7 Manoj Kumar (2nd I.O. of the case).
6. Total of two court witnesses were also
examined as C.W.-1 Dr. A.K. Murarka and C.W. 2 Dr.
Anju Turir.
7. The prosecution also exhibited following
documents during the trial to substantiate its case which
are as:-
Exhibit no. I -Signature of victim on
statement under Section 161 of Cr.P.C.
Exhibit-P-2 The formal FIR.
Exhibit-2- Signature of victim on
statement under Section 164 of Cr.P.C.
Exhibit-3- Writing and signature on
FIR.
Exhibit-1/1- Writing and signature on
statement under Section 161 of Cr.P.C.
Exhibit-4- Writing on search-Cum-
Seizure list.
Exhibit-5- Entire charge sheet.
C.I- Entire Radiological report of
Doctor.
C.2- Entire Medical Report.
8. On the basis of evidences, as surfaced
during the trial, the appellant/convict was examined
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
under Section 313 of the Cr.P.C., where he denied all the
evidences as surfaced against him during trial and
claimed his complete innocence and false implication.
9. Total of two defence witnesses were
examined on behalf of accused/appellant during the trial.
10. On the basis of aforesaid evidences,
learned trial court convicted the appellant and passed
order of sentence, as aforesaid, being aggrieved with,
appellant/convict preferred the present appeal.
11. Hence the present appeal.
12. Learned counsel appearing on behalf of
the appellant submitted that the fact of love affairs as
appears out of testimony of PW-5 and PW-6 and further
land dispute out of testimony of victim/PW-3 herself was
completely ignored by the learned trial court while
recording the judgment of conviction for appellant. It is
pointed out that victim could not proved "child" within the
meaning of Section 2(1)(d) of the POCSO Act, as her age
was not proved during trial in terms of Section 94(2) of
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
the Juvenile Justice Act, 2015 as approved by Hon'ble
Supreme Court through Jarnail Singh v. State of
Haryana, (2013) 7 SCC 263. In this context, it is
further submitted that though victim testified that she
passed her matriculation examination with 3rd division,
where her date of birth mentioned as 15.05.2005 but no
any document was produced during the trial. It is
submitted that in such circumstances the only option in
view of Section 94(2) of J.J. Act, as to ascertain date of
birth is radiological examination report of the victim. It
appears that from the radiological examination of PW-3,
the age of victim was found between 16 to 18 years,
where after giving a marginal benefit of +2 years in the
terms of the legal ratio in terms of Hon'ble Supreme
Court legal report as available through Rajak
Mohammad Vs. State of Himachal Pradesh , reported
in (2018) 9 SCC 248, the victim appears major on the
date of occurrence and, therefore, the provision of
POCSO Act and the conviction secured there appearing
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
bad in eye of law.
13. Learned counsel further submitted that if
the deposition of PW-5 and PW-6 be relied upon then
certainly, it is a case of love affairs, which suggest that
victim went with appellant out of her sweet will and,
therefore, the allegation of kidnapping and conviction
thereto by learned trial court is also appearing bad in eye
of law.
14. Finally, as far allegation of
rape/penetrative sexual assault is concerned, it is pointed
out that the conviction was secured on the sole testimony
of victim/PW-3 herself. It is submitted that by taking note
of statement of victim as recorded under Section 164 of
the Cr.P.C. and also upon perusal of her testimony as she
deposed before the Court being PW-3, lot of major
contradictions qua crime in question and also qua manner
of occurrence surfaced, out of which it can be said safely
that the victim cannot be said "Sterling witness" so as to
secure the conviction on her sole testimony. While
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
concluding argument, it is submitted that the medical
report of victim also suggest that no internal or external
injury was found upon her, prima facie negating
allegation of gang rape at Delhi. Beside above, it is
submitted that investigating officer of this case/PW-4
never visited place of occurrence at Delhi to ascertain the
trustworthiness of victim/PW-3.
15. While concluding the argument, it is
submitted that having all such discrepancies and major
contradictions, it can be said safely that balance of appeal
is in favour of appellant and, therefore, the impugned
judgment of conviction be quashed/set aside.
16. The learned APP duly assisted by learned
counsel appearing for the informant Mr. Rajesh Kumar
while opposing the appeal submitted that the victim was
eloped by appellant whereas he could not disputed the
fact of land dispute. It is submitted that non-finding of
any injury upon victim does not lead to conclusion ipso
facto that rape was not committed upon her as rape is a
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
legal finding not a medical one. It is also pointed out that
the minor contradictions correctly overlooked by the
learned trial court considering the rustic and rural
background of victim. It is submitted that doctor found
victim within the age group of 16-18 years and, as such,
she was minor on the date of occurrence and, therefore,
the learned trial court correctly import the provision of
presumption as available under Sections 29 and 30 of the
POCSO Act. Considering aforesaid, the impugned
judgment did not require any interference at appellate
stage.
17. I have perused the trial court records
carefully and gone through the evidences available on
record and also considered the rival submissions as
canvassed by the learned counsel appearing on behalf of
the parties.
18. As to re-appreciate the evidence, while
disposing the present appeal, it appears apposite to
discuss the evidences available on record, which are as
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
under:-
19. The most important witness of present
crime in question is victim/PW-3 herself. It appears from
her deposition that on 08.04.2021 she went for bringing
water from a near by hand pump, where five boys was
already present, who forcibly spread some substance on
her mouth, as a result, she loosed her sense and when
she regained sense, she found herself at Delhi. It was
deposed that appellant alongwith co-accused Pintu
Thakur, Kunal Thakur committed rape upon her. They
were also said to be accompanied by Vijay Thakur and
Domi Thakur. Appellant also took away her golden chain
and cash of Rs. 16,000/-. It was deposed that she also
signed on her statement given before the police under
Section 161 of the Cr.P.C. She identified the signature,
which was exhibited during the trial as Exhibit P-1. She
also identified her signature upon her statement recorded
under Section 164 of the Cr.P.C., which upon her
identification, exhibited as Exhibit-P-2.
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
20. Upon cross-examination, she denied the
suggestion that she never disclosed to police that
appellant committed rape upon her or took away her
golden chain and cash of Rs. 16,000/-. She also denied
that she was not medically examined. Her statement was
recorded before the Magistrate after 5-6 months of the
occurrence. She denied suggestion that she did not
disclose before Magistrate that appellant not taken away
cash of Rs. 16,000/- and golden chain. She testified as to
pass class 10th with 3rd division, where her date of birth
was mentioned as 15.05.2005. Her date of birth as per
Aadhar Card is also 15.05.2005. She approved the land
dispute between her father, Manoj Thakur and Vijay
Thakur and also stated that a title suit for said dispute is
pending before the court concerned. She denied that out
of said land dispute, implicated appellant falsely.
21. PW-1 is Manoj Thakur, who is the father
of the victim/PW-3. He also supported the occurrence as
same took place on 08.04.2021. It appears from his
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
examination-in-chief that he only supported the
occurrence by saying that his daughter was eloped by
appellant after offering some adulterated food. It appears
from his examination-in-chief that the police recovered
his daughter from Saharsa Police Station, whereafter, she
was medically examined.
22. Upon cross-examination, it was stated by
him that he lodged this case after 36 hours of the
occurrence. He appears failed to disclose the date of
birth/age of his daughter. He came to know about the
occurrence from the victim. It was stated that now the
victim is married. He also denied false implication due to
land dispute.
23. PW-2 is Funia Devi, who is the mother of
the victim. She almost deposed on the same line as of her
husband/PW-1 as discussed above. She is also not
appearing the eye-witness of the occurrence. She also
denied false implication due to land dispute. It was stated
by her that golden chain was given to victim by her but
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
the receipt of said purchase is not available.
24. PW-4 is Prabhat Kumar, who is the
investigating officer of this case. Upon the information of
PW-1, who is the father of the victim, who reported the
occurrence to police as Exhibit-P-1 (who is nothing but his
fardbeyan), PW-4 on 09.04.2021 lodged the present case
as Kharik P.S. Case No. 69/2021 as per instruction of
SHO Pankaj Kumar and assumed the charge of
investigation. He identified the handwriting of Pankaj
Kumar, which upon his identification exhibited as
Exhibit-P-3. He visited the place of occurrence, which is
the house of informant/PW-1 but it appears from his
testimony that at no point of time, he visited Delhi where
victim after alleged kidnapping was kept for long days
where alleged rape was committed upon her on several
occasions. He arrested appellant from Saharsa railway
station. He also got recorded the statement of victim
through lady SHO under Section 161 of the Cr.P.C. and
also got recorded the statement of victim under Section
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
164 of the Cr.P.C. It was stated that he never looked for
people related with age or date of birth of the victim. It
was neither produced before him during investigation by
victim or her family members.
25. PW- 5 and PW-6 are Mausam Kumar
and Praveen Kumar Yadav respectively. Both appears
co-villagers. From their depositions, it appears that the
appellant was in love affair with victim and, therefore,
appellant fled away with daughter of informant. It was
started by PW-5 that now victim solemnized her marriage
with other person. Both these witnesses were not cross-
examined by appellant during the trial.
26. PW-7 is Manoj Kumar, who is also
investigating officer of this case, he appears only to
submit charge sheet regarding present case after
completion of investigation. He submitted charge sheet
bearing no. 151/2021 dated 07.08.2021 for the offences
under Sections 363, 366A/34 of the Indian Penal Code
against the appellant. He identified his handwriting and
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
signature over there, which upon his identification
exhibited as Exhibit No. P-5/PW-7.
27. Appellant also examined two witnesses in
his defence, who are DW-1 Md. Kyum and DW-2 Md.
Riyaz. Both of these two defence witnesses supported the
factum of land dispute between the informant and father
of victim and out of said dispute, the present false
implication was raised.
28. Besides above, two court witnesses were
examined, who are none but the doctor, who examined
victim medically. These two doctors were examined as
court witness CW-1 and CW-2 respectively, where A.K.
Murarka was examined as CW-1 and Dr. Anju Turir was
examined as CW-2. As per medical report, which was
identified by CW-1 and exhibited as Exhibit No. C/CW-1,
victim was assessed somewhere between 16-18 years on
the basis of her radiological examination, whereas, as per
the testimony of CW-2, it appears that no mark of
violence, external or internal found upon the victim.
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
29. Admittedly, the statement of victim as
recorded under Section 164 of the Cr.P.C. is not the
substantial piece of evidence but its value as a
corroborative evidence cannot be ruled out. Considering
the same, it would be apposite to take note of the
statement of victim as available under Section 164 of the
Cr.P.C., where she stated that on 08.04.2021 when she
went to attend the call of nature at about 6:00 AM, the
five boys were standing on the way alongwith appellant
and all five forcibly after pressing and closing her mouth
by "Dupatta" forcibly dragged her inside the vehicle and
took her to Delhi where after keeping at unknown place in
a room, they committed rape upon her.
30. Considering the contradiction, as appears
out of testimony of victim/PW-3 and her statement as
discussed above under Section 164 of Cr.P.C., it would be
apposite to say that the victim cannot b accepted as
"Sterling witness". The testimony of CW-1 and CW-2 also
not appears corroborating with allegation of gang rape.
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
Hence, having such evidence in hand, the conviction as
secured by the learned trial court on the sole testimony of
victim appears questionable.
31. It would be apposite to reproduce the
relevant paragraph of Rai Sandeep @ Deepu, v. State
(NCT of Delhi), (2012) 8 SCC 21, where the Hon'ble
Apex Court held in paragraph 22 that who can be said to
be a "sterling witness". It is observed and held as
under:
"22 In our considered opinion, the
"sterling witness" should be of a very high
quality and calibre whose version should,
therefore, be unassailable. The court
considering the version of such witness
should be in a position to accept it for its
face value without any hesitation. To test
the quality of such a witness, the status of
the witness would be immaterial and what
would be relevant is the truthfulness of the
statement made by such a witness. What
would be more relevant would be the
consistency of the statement right from the
starting point till the end, namely, at the
time when the witness makes the initial
statement and ultimately before the court.
It should be natural and consistent with the
case of the prosecution qua the accused.
There should not be any prevarication in
the version of such a witness. The witness
should be in a position to withstand the
cross-examination of any length and
howsoever strenuous it may be and under
no circumstance should give room for any
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
doubt as to the factum of the occurrence,
the persons involved, as well as the
sequence of it. Such a version should have
co-relation with each and every one of
other supporting material such as the
recoveries made, the weapons used, the
manner of offence committed, the scientific
evidence and the expert opinion. The said
version should consistently match with the
version of every other witness. It can even
be stated that it should be akin to the test
applied in the case of circumstantial
evidence where there should not be any
missing link in the chain of circumstances
to hold the accused guilty of the offence
alleged against him. Only if the version of
such a witness qualifies the above test as
well as all other such similar tests to be
applied, can it be held that such a witness
can be called as a "sterling witness" whose
version can be accepted by the court
without any corroboration and based on
which the guilty can be punished. To be
more precise, the version of the said
witness on the core spectrum of the crime
should remain intact while all other
attendant materials, namely, oral,
documentary and material objects should
match the said version in material
particulars in order to enable the court
trying the offence to rely on the core
version to sieve the other supporting
materials for holding the offender guilty of
the charge alleged."
32. Admittedly, no documents regarding date of
birth/age was brought on record in view of Section 94(2)
of the J.J. Act. Victim was accepted minor within the
meaning of Section 2(1)(d) of the POCSO Act by the
learned trial court on the basis of her radiological age as
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
she was assessed between 16-18 years.
33. In this context, it would be apposite to
reproduce paragraph nos. 9 and 10 of the Rajak
Mohammad(supra), which reads as under:
"9. While it is correct that the age
determined on the basis of a radiological
examination may not be an accurate
determination and sufficient margin either way has
to be allowed, yet the totality of the facts stated
above read with the report of the radiological
examination leaves room for ample doubt with
regard to the correct age of the prosecutrix. The
benefit of the aforesaid doubt, naturally, must go
in favour of the accused.
10. We will, therefore, have to hold that in
the present case the prosecution has not
succeeded in proving that the prosecutrix was a
minor on the date of the alleged occurrence. If
that is so, based on the evidence on record,
already referred to, we will further have to hold
that the possibility of the prosecutrix being a
consenting party cannot be altogether ruled out.
34. By taking note of the legal ratio as
available through Rajak Md (supra), if a marginal
benefit of + 2 years be given then certainly on the date of
occurrence, victim appears stands major and, therefore,
the conviction as recorded under POCSO Act appears
questionable. Certainly to import presumption available
under any law as per basic principle of criminal
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
jurisprudence, can be imported only after establishing
foundational aspect of crime in question by prosecution,
similarly, in the case of POCSO also. With aforesaid
discussion, it can be said safely that the prosecution failed
to established the foundational aspect qua crime in
question so as to import the provision of presumption as
available under Sections 29 and 30 of POCSO Act."
35. Hence, taking note of totality of evidences
as available on record, where victim/PW-3 not proved
"Sterling witness", where prosecution also failed to
established victim/PW-3 as a "child" within the meaning
of Section 2(1)(d) of the POCSO Act, the conviction as
recorded by the learned trial court cannot be said
sustainable in the eye of law.
36. Hence, appeal stands allowed.
37. Accordingly, the impugned judgment
dated 18.09.2023 and the impugned order of sentence
dated 22.09.2023 passed by the learned Exclusive
Special Judge (POCSO Act)-cum-Addl. District &
Patna High Court CR. APP (SJ) No.5040 of 2023 dt.20-11-2024
Sessions Judge-VII, Bhagalpur, in POCSO Case No. 86 of
2021 arising out of Kharik P.S. Case No. 69 of 2021, is
hereby set aside/quashed.
38. Appellant namely, Md. Amin is in custody
in connection with this case, he is directed to be released
forthwith, if not required in any other case.
39. Fine, if any, paid be returned to the
appellant immediately.
40. Office is directed to send back the trial
court records along with a copy of this judgment to the
trial court, forthwith.
(Chandra Shekhar Jha, J)
veena/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22.11.2024
Transmission Date 22.11.2024
