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Arjun Kumar @ Prince vs The State Of Bihar on 7 July, 2021

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IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.159 of 2018
Arising Out of PS. Case No.-396 Year-2015 Thana- DUMRAO District- Buxar

Arjun Kumar @ Prince S/o Ram Prakash Shah, R/o Village- Simari Deo, P.S.-
Karahgar, District- Rohtas.

… … Appellant/s
Versus
The State of Bihar
… … Respondent/s

Appearance :

For the Appellant/s : Mr. Vikram Deo Singh, Advocate.

Mr. Arabind Nath Pandey, Advocate.

For the Respondent/s : Mr. Bipin Kumar, APP.

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
C.A.V. JUDGMENT
Date : 07-07-2021
The sole appellant Arjun Kumar @ Prince faced

trial in POCSO Case No. 06 of 2016 arising out of Dumrao P.S.

Case No. 396 of 2015 for offence under Sections 363, 366A and

376 of the Indian Penal Code as well as 4 of the POCSO Act.

By the impugned judgment dated 13.11.2017, the learned trial

Judged found guilty and convicted to the appellant for offences

under Sections 366A and 376 of the Indian Penal Code and 4 of

the POCSO Act. By the impugned order of sentence dated

17.11.2017, the appellant was directed to undergo rigorous

imprisonment for seven years and to pay a fine of Rs. 20,000/-

for offence under Section 366A IPC. Three months

imprisonment was ordered for non-payment of the fine

aforesaid. For the offence under Section 376 IPC, the appellant

was sentenced to undergo rigorous imprisonment of 10 years
Patna High Court CR. APP (SJ) No.159 of 2018 dt.07-07-2021
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and to pay a fine of Rs. 20,000/-. In default of payment of fine,

three months imprisonment was ordered. No separate sentence

under Section 4 of the POCSO Act was passed considering the

provisions of Section 42 of the POCSO Act.

2. The prosecution case as disclosed in the written

report of Pushpa Devi (PW-3) the mother of the victim girl, is

that on 29.11.2015 at about 10 a.m., her daughter aged about 13

years left the house for getting tuition. The youngest son Niku

Kumar aged about 10 years reported that he had seen the victim

girl going on an auto rickshaw towards the railway station. Soon

thereafter the appellant, from the referred mobile, called to the

informant and said that he is along with the victim girl and he is

taking her to Patna for marrying with her. The informant alleges

that her minor daughter was induced by the appellant for the

purpose of marriage. On the written report aforesaid, Dumrao

P.S. Case No. 396 of 2015 was registered on 29.11.2015 itself.

On 03.12.2015, the victim girl was found at the railway station

Dumrao by the police vide evidence of the investigating officer

(PW-6) in Para-6. Medical examination of the victim was done

on 04.12.2015 vide report at Ext.-2 and her statement under

Section 164 Cr.P.C. was recorded on 04.12.2015 itself vide Ext.-

1.
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3. After investigation, the police submitted

chargesheet and accordingly the appellant was put on trial. The

prosecution examined altogether 10 witnesses.

4. PW-1 the victim girl consistent with her

statement before the Magistrate under Section 164 Cr.P.C

deposed that one year ago at 10 a.m., she was ready to go for

tuition. Just then a mobile call came on the mobile of her

mother. The victim received the call. The appellant said that he

wants to meet her and called her at once and proposed that

appellant wants to marry with her. She left her house along with

her brother, but the appellant induced her to go with him.

Thereafter the appellant was in physical relation with her for

three days. Later on brought her to railway station Dumrao and

left her there-at. Then the victim telephonically informed to her

mother. Her mother came and she went to her house. She went

to the police station and her statement was recorded before the

Magistrate. She was medically examined by the doctor. In the

cross-examination, the witness said that the appellant had met

her at the railway station. The people were coming and going at

the railway station. She had not disclosed anyone that the

appellant had induced her to go with him. Then the appellant

purchased ticket and both took a train. Neither at the time of
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boarding the train nor getting off the train, she made any alarm.

She was kept in a house at Patna where no one was there. On all

the three days, she had herself locked the room from inside.

However whenever the appellant used to go outside he was

locking the room from outside. After three days, both came at

Patna railway station and from there they again returned to

Dumrao railway station.

PW-2 Dr. Bharti Dwivedi had medically examined

the victim vide report at Ext.-2. According to PW-2, there was

no external injury on the person of the victim. Her breasts were

well developed. Axillary hairs and pubic hairs were present. The

hymen was found ruptured. No spermatozoa was noticed in the

vaginal swab. On the basis of dental and radiological

examination, the age of the victim was assessed between 15-16

years.

PW-5 Dr. Yogendra Kumar had taken X-ray of the

victim and submitted a report on the basis of X-ray examination.

However, that report was not before him at the time of

examination in court nor the same was brought on the record.

PW-10 Dr. Ritesh Kumar Singh had submitted

dental examination report of the victim, but this report was also

not brought on the record nor was there before PW-10 on the
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date of his examination before the Court.

PW-3 Pushpa Devi is mother of the victim and she

has supported what she had disclosed in the first information

report.

PW-4 Ram Niwas Singh is maternal grand father of

the victim and he has supported the occurrence as a hearsay

witness.

PW-6 Deepak Kumar is first investigating officer

of the case and PW-7 Tarkeshwar Rai is second investigating

officer of the case. Both have supported the investigation done

by them.

PW-8 Nikku Kumar Singh is younger brother of

the victim. He has deposed that the appellant forcefully took the

victim on an auto rickshaw going towards Dumrao railway

station. His statement was got recorded before the police and the

aforesaid statement is inconsistent with the case of PW-1, the

victim girl who has said that the appellant was there at the

railway station and was not in the auto rickshaw.

PW-9 Navin Kumar Dubey is a witness on the first

information report.

5. Mr. Vikram Deo Singh, learned counsel for the

appellant submits that on bare perusal of the prosecution case
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and prosecution evidences, there is no case at all that the

appellant committed offence under Section 366A IPC. Even if it

is assumed for argument sake that a minor girl was induced to

go, there is no allegation that purpose was of illicit intercourse

with another person. Therefore, conviction under Section 366A

IPC is bad in law.

Learned counsel next contends that in her statement

under Section 164 Cr.P.C., the victim stated that 3-4 months

back, the appellant had phoned on the mobile of her mother

which the victim had received. The appellant disclosed his name

and the victim voluntarily left her house to meet the appellant at

Dumrao railway station. The conduct of the victim in

voluntarily leaving the house alone, meeting the appellant at the

railway station and accompanying the appellant for Patna on a

train, and lack of evidence that the appellant had persuaded the

victim to go to Patna on the pretext of some unreal purpose for

taking her to Patna would make it clear that the prosecutrix had

gone along with the appellant voluntarily. Moreover, when she

was in physical relation with the appellant for three days, she

did not make any protest nor any complain to anyone.

The prosecution has failed to prove the exact age of

the victim to substantiate that on the alleged date of occurrence
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she was incapable of giving consent. The evidence of

approximate age cannot take the place of proof of exact age.

6. Mr. Bipin Kumar, learned APP contends that

since the victim was a minor and there is no cross-examination,

to the prosecution witnesses who had deposed that the victim

was a minor including to the victim girl, regarding correctness

of her age. Therefore, in absence of any other evidence, the

available evidence would show that the victim was a minor.

Once she was a minor, her consent or no consent is immaterial

for the purpose of consideration of charge against the appellant.

The victim is consistent that she was sexually exploited by the

appellant. Therefore, conviction requires no interference.

FINDING

7. It is not the prosecution case that the consent of

the victim was obtained by fraud, or by putting her or anyone in

whom she was interested in fear of death, or at the time of

giving consent she was of unsound mind or under influence of

intoxication, consequently unable to understand the nature and

consequence of that for which she gave consent. Rather

prosecution case is that at the time of incident the victim was

under 18 years of her age. Hence, her consent was immaterial.

8. Now the question would be whether the
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prosecution has proved beyond reasonable doubts that the

victim was under 18 years of age at the time of physical relation

with the appellant to bring the case under the mischief of clause

‘sixthly’ of Section 375 of the Indian Penal Code.

9. The prosecution has sought to prove the age of

the victim by asserting that from very inception it is case of the

prosecution that the victim was aged about 13-14 years. The

medical report also revealed that she was in between 15-16

years. The prosecution witnesses were not cross-examined nor

any suggestion was put forward by the defence that the

witnesses were making wrong statement regarding age of the

prosecutrix. On the basis of aforesaid material, the prosecution

claims that it has proved that the victim was below 18 years of

age on the date of occurrence. As such, her consent or no

consent was immaterial.

10. In the case of Sunil v. The State of Haryana

reported in AIR 2010 SC 392, the Hon’ble Supreme Court held

that conviction cannot be based on an approximate age of the

victim.

Similarly in State of Madhya Pradesh v. Munna

@ Shambhoo Nath reported in (2016) 1 SCC 696, the Hon’ble

Supreme Court held that the evidence on approximate age of the
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victim would not be sufficient to any conclusion about the exact

age of the victim.

In the case of Jarnail Singh v. State of Haryana

reported in 2013 CRI. L.J. 3976, the Hon’ble Supreme Court

said that the age of the victim of rape should be determined in

the manner provided under Rule 12 of the Juvenile Justice (Care

and Protection of Children) Rules, 2007, there is no difference

as regards minority between the child in conflict with law and

the child who is victim of crime. Under Rule 12(3), preference

is to be given to the school documents in determination of age

of the victim. Only in absence of the school documents, the

opinion of medical expert is permissible.

11. Rule 12 of the Juvenile Justice (Care and

Protection of Children) Rules, 2007 reads as follows:-

“12. Procedure to be followed
in determination of Age.-

(1) In every case concerning a
child or a juvenile in conflict with law, the
court or the Board or as the case may be the
Committee referred to in rule 19 of these
rules shall determine the age of such juvenile
or child or a juvenile in conflict with law
within a period of thirty days from the date
of making of the application for that purpose.

(2) The Court or the Board or
as the case may be the Committee shall
decide the juvenility or otherwise of the
juvenile or the child or as the case may be
the juvenile in conflict with law, prima facie
on the basis of physical appearance or
documents, if available, and send him to the
observation home or in jail.

(3) In every case concerning
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a child or juvenile in conflict with law, the
age determination inquiry shall be conducted
by the court or the Board or, as the case may
be, the Committee by seeking evidence by
obtaining

(a) (i) the matriculation or
equivalent certificates, if available; and in
the absence whereof;

(ii) the date of birth
certificate from the school (other than a play
school) first attended; and in the absence
whereof;

(iii) the birth certificate
given by a corporation or a municipal
authority or a panchayat;

(b) and only in the absence
of either (i), (ii) or (iii) of clause (a) above,
the medical opinion will be sought from a
duly constituted Medical Board, which will
declare the age of the juvenile or child. In
case exact assessment of the age cannot be
done, the Court or the Board or, as the case
may be, the Committee, for the reasons to be
recorded by them, may, if considered
necessary, give benefit to the child or
juvenile by considering his/her age on lower
side within the margin of one year.

and, while passing orders in such case shall,
after taking into consideration such evidence
as may be available, or the medical opinion,
as the case may be, record a finding in
respect of his age and either of the evidence
specified in any of the clauses (a)(i), (ii), (iii)
or in the absence whereof, clause (b) shall be
the conclusive proof of the age as regards
such child or the juvenile in conflict with
law.

(4) If the age of a juvenile or
child or the juvenile in conflict with law is
found to be below 18 years on the date of
offence, on the basis of any of the conclusive
proof specified in sub-rule (3), the Court or
the Board or as the case may be the
Committee shall in writing pass an order
stating the age and declaring the status of
juvenility or otherwise, for the purpose of the
Act and these rules and a copy of the order
shall be given to such juvenile or the person
concerned.

(5) Save and except where,
further inquiry or otherwise is required, inter
alia, in terms of
section 7A, section 64 of the
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Act and these rules, no further inquiry shall
be conducted by the court or the Board after
examining and obtaining the certificate or
any other documentary proof referred to in
sub-rule (3) of this rule.

(6) The provisions
contained in this rule shall also apply to
those disposed of cases, where the status of
juvenility has not been determined in
accordance with the provisions contained in
sub-rule (3) and the Act, requiring
dispensation of the sentence under the Act
for passing appropriate order in the interest
of the juvenile in conflict with law.

The aforesaid Rule was applicable on the date of

occurrence of this case. An identical provision is there under

Section 94 of the Juvenile Justice (Care and Protection of

Children) Act, 2015 which came into effect from 15.01.2016,

admittedly after the date of occurrence of this case.

Thus, it is evident from perusal of the Rule 12

above that only in absence of the school documents, other

evidences are permissible to determine the age of the juvenile

victim. In this case, the mother of the victim (PW-3) has said

that the victim was a student of Class-VII. Therefore, school

document of age of the victim was there which was deliberately

not brought on the record by the prosecution. Even the report of

ossification / radiological test was not produced to have

opportunity to the defence to cross-examine the experts

regarding scientific method adopted by them while performing

such examination. Therefore, the evidence of exact date of birth
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of the victim which was available with the prosecution was not

brought on the record and the evidence of approximate age

cannot take the place of proof of exact age. Once the

prosecution failed to prove that the victim was below 18 years

of age, the above discussed evidence of her consent, assumes

importance. As noticed above, the victim was in consensual

relationship with the appellant. Therefore, charge under Section

376 IPC and 4 of the POCSO Act fails.

12. Section 366A of the Indian Penal Code reads as

follows:-

366A. Procuration of minor girl.

–Whoever, by any means whatsoever, induces any
minor girl under the age of eighteen years to go from any
place or to do any act with intent that such girl may be, or
knowing that it is likely that she will be, forced or
seduced to illicit intercourse with another person shall be
punishable with imprisonment which may extend to ten
years, and shall also be liable to fine.

Evidently, there is no prosecution case that a minor

was induced to go for the purpose of illicit intercourse with

another person. Therefore, conviction of the appellant is illegal

under Section 366A of the Indian Penal Code also.

13. Thus, the irresistible conclusion is that the

prosecutrix was in consensual relationship with the appellant,

the prosecution has failed to prove that the victim was of the age
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incapable of giving consent. Likewise the prosecution has failed

to prove that the victim was induced to go with the appellant for

the purpose of illicit intercourse with another person.

14. In the result, the impugned judgment of

conviction and order of sentence are hereby set aside and this

appeal is allowed.

Let the appellant be set free at once.

(Birendra Kumar, J)

mantreshwar
AFR/NAFR A.F.R.
CAV DATE 30.06.2021
Uploading Date 07.07.2021
Transmission Date 07.07.2021

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