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Chhotu Kumar vs The State Of Bihar on 19 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.1420 of 2017
Arising Out of PS.Case No. -151 Year- 2013 Thana -BARUN
District- AURANGABAD

Chhotu Kumar son of Sri Mahamaya Prasad Singh resident of
village : Jangi Bigha, P.S.: Baroon, District : Aurangabad.

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

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Ravindra Kumar, Advocate
For the Respondent/s : Mr. Sujit Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT

Date: 19-03-2018

The appellant/Chhotu Kumar has been convicted under

Section 376/34 of the Indian Penal Code and Section 4 of the

Protection of Children From Sexual Offences Act, 2012 (in short

POCSO Act) vide judgment dated 22nd of March, 2017 passed by

the learned Special Judge, POCSO Act-cum-Additional Sessions

Judge, 1st, Aurangabad in connection with Baroon P.S. Case No.

151 of 2013, corresponding to CIS No. 15614 of 2014 and by

order dated 28th of March, 2017, he has been sentenced to

undergo rigorous imprisonment for seven years and fine of Rs.

5000/- for each of the offences viz. under Section 376/34 I.P.C

and Section 4 of the POCSO Act; the sentences, however having

been ordered to run concurrently.

Patna High Court CR. APP (SJ) No.1420 o f 2017 dt.19-03-2018

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2. The prosecutrix/P.W. 3 is said to have been

subjected to sexual intercourse by one Binod Choudhary and the

appellant. The records reveal that the case of Binod Choudhary,

on his being found juvenile, has been sent to the Juvenile Court

for trial.

3. The victim/P.W. 3 has lodged the F.I.R on

04.07.2013 alleging that two days prior i.e. on 02.07.2013, at

about 12 O’ clock in the night, she has gone to the ground floor

for operating the changer-switch as at that time, the electric line

had been disconnected, when two persons, who were present

there from before, gagged her and took her to a room by the

side of the staircase. It has then been alleged that she was

subjected to rape by the aforesaid two persons. She was also

threatened of dire consequences in case she narrated about the

occurrence to anybody. At the time of the occurrence only, her

grand-father was available in the house. She did not awake her

grand-father out of fear. Two days later, her mother, aunt and

grand-mother arrived home on 04.07.2013 at about 7:00 A.M in

the morning. She thereafter disclosed about the occurrence to

them. All the family members of the prosecutrix had gone to

attend a Saradh ceremony in house of a relative at Mahadeva,

Nasriganj.

4. On the basis of the aforesaid written report, Baroon

P.S. Case No. 151 of 2013 dated 04.07.2013 was instituted for
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the offence under Section 376/34 of the Indian Penal Code.

5. The Trial Court, after examining eight witnesses on

behalf of the prosecution, convicted and sentenced the appellant

as aforesaid.

6. Two of the prosecution witnesses viz. P.W.

1/Lalmuni Choudhary and P.W. 2/Basunath Choudhary, co-

villagers of the victim have not supported the prosecution

version and have been declared hostile.

7. P.W. 3, the victim has however, during the trial has

stated that the changer-switch which she had gone to operate in

the night of the occurrence is inside the main gate. She was

carrying a mobile which also had a torch fitted in it. The

changer- switch was located around five feet above the ground.

The main gate as well as the gate of the guest-room where she

had been raped, was locked from inside. After the occurrence,

she claimed to have come back to her room but did not inform

anybody. Next day, her grand-father came in her room for

asking her as to why she was so late in getting-up. She only told

him that she was not feeling well. She did not ask her grand-

father to get her examined by any Doctor. It has further been

stated by her that she took bath with the clothes which she was

wearing in the night of the occurrence. For two days, she did not

do any work in the house. On the third day, when her mother

arrived, she told her about everything what had happened to
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her. After the accused persons had left the place of occurrence,

she had a mind to inform her grand-father who was present in

the house but, out of fear, she did not do so. She was taken to

Police Station by her mother where she had to stay for whole of

the night. She did not inform the Police about the name of her

friends. She did not even know one of the named accused

persons viz. Binod Choudhary.

8. During trial, she has admitted that there was no Test

Identification Parade. She has denied that she had ever told the

Investigating Officer that a boy, who studies in D.A.V School,

had been accompanying Binod Choudhary, co-accused and that

both of them had raped her.

9. From the deposition of P.W. 3, what appears to be

clearly established that the changer-switch was located inside

the main gate which was locked. The room where the

prosecutrix was said to have been raped, also had an exit door,

but that too was locked. The prosecutrix has not stated that the

miscreants viz. Binod Choudhary and the appellant were inside

the house when they caught hold of her and raped her. She has

also not stated as to how they entered the house.

10. So far as identification of the appellant is

concerned, in the F.I.R, she has clearly stated that Binod

Choudhary was being accompanied by another person, who had

concealed his face. During investigation as well as in the trial,
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she never made any statement disclosing that she had identified

the other person as the appellant. She has also not stated that

while at the act, the appellant removed Gamcha from his face.

11. In this context, it would be necessary to go through

the deposition of the father of the prosecutrix viz. Avinash

Kumar, who has been examined as P.W. 4. He has stated that he

owns his house in Baroon. His family members had gone to

house of a relative for participating in a Saradh ceremony. On

04.07.2013, he learnt on telephone through his father that his

daughter has been raped on 02.07.2013. He was further

informed that amongst the accused persons, one was Binod

Choudhary, who resided in the neighborhood. The other person,

who was accompanying the Binod Choudhary had concealed his

face with a Gamcha. On telephone only, he claims to have told

his father to get a case registered. He also tried to know about

the identity of the other accused person on phone but could not

get any clue. He came back home only on 10.07.2013 after

taking leave from his work. While trying to enquire about the

accused persons, he learnt in the market that in the night of the

occurrence, Binod Choudhary and the appellant were seen

moving around near his house. He was also informed that the

appellant was showing a photograph of rape to other persons.

On the basis of the aforesaid information, he could gather that

apart from Binod Choudhary, the appellant was also involved in
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the occurrence of rape of his daughter.

12. In his cross-examination, he has deposed that both

the accused persons are residents of the same village and the

participation of the appellant in the case was disclosed to him by

some of the persons of the village.

13. Similar statement has been made by P.W. 5, who is

mother of the victim.

14. From the deposition of P.W. 4, it becomes very

clear that his wife i.e. the mother of the victim had come back

home on 04.07.2013. Till 10.07.2013 i.e. till the time, he had

come back from his place of work to his village home, he did not

have any idea about the appellant. Only while trying to enquire

from the neighbourhood about the accused persons, he learnt ,

through the mouth of the villagers, that the appellant along with

co-accused Binod Choudhary was seen roaming near his house

at about 11-12 P.M. in the night of the occurrence. The other

source of information was that the appellant was heard and seen

showing photographs of rape to some other persons.

15. What becomes obvious from the deposition of P.W.

4 is that till about seven days from the date of occurrence, there

was no clue about the other associate of Binod Choudhary. It

was only later that the name of the appellant transpired; that

also under a peculiar circumstance.

16. The deposition of P.W. 4, it has been argued,
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cannot be relied upon for the simple reason that P.W. 4 has

failed to disclose the name of the persons who had told him that

the appellant was seen moving near his house in the night of the

occurrence. He has also not disclosed the names of the persons

who had told him that the appellant was seen showing

photographs of rape. What was that photograph, by what mode

was the photograph taken and what part of the photograph was

being shown by the appellant, is also not known.

17. Thus, identification of the appellant is absolutely

doubtful.

18. The victim was examined by the Medical Board

which was constituted for the purpose of examining her. The

report of the Medical Board has been proved by Dr. Reena

Kumari, P.W. 7, who was part of the Medical Board. No definite

opinion of sexual intercourse could be given on the physical

examination of the victim. It has only been stated that the

report reveals that the victim had undergone sexual act. This

opinion was based on the fact that vagina admitted one finger.

19. Sri. Santosh Kumar Singh, Investigating Officer of

this case has been examined as P.W. 8. He also, on examination

of the place of occurrence, found the changer-switch to be inside

the main gate. He had got the statement of the victim girl

recorded under Section 164 of the Code of Criminal Procedure.

In the aforesaid statement, the victim did not take the name of
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the appellant. The aforesaid prosecution witness did not know as

to what was being done by the victim/prosecutrix between the

period that the occurrence had taken place and the case was

lodged. During the investigation, he could not know whether the

prosecutrix slept in the same room after the occurrence or had

gone to another room to sleep. He had recorded the statement

of the 68 years old grand-father of the victim also. For two days

before the lodging of the case, she had not spoken anything to

her grand-father. In para 6 of his cross-examination, P.W. 8 has

clearly stated that the two doors of the house through which

there could be an entry of the outsider was completely locked.

Nobody entered the house and nobody made any attempt to run

away from the house. The neighbours of the prosecutrix or her

father were not examined by him. P.W. 8 had actually found out

during the investigation that the appellant and the other accused

person had scaled over the wall by using a staircase. The

staircase was seized but no sketch map was prepared. P.W. 8,

on being specifically questioned, did not reveal as to how the

staircase was used from the house of the neighbour/Pramod

Kumar.

20. Thus, from the conspectus of the deposition of the

witnesses, what appears to be very evident is that the

prosecutrix did not identify another accused apart from Binod

Choudhary, who was named by her in the F.I.R. This gets further
Patna High Court CR. APP (SJ) No.1420 o f 2017 dt.19-03-2018

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confirmed by the fact that no Test Identification Parade was

held. There is no statement of the prosecutrix that any attempt

was made by the appellant to expose his face to her, giving her

any opportunity of recognizing her. The name of the appellant

only transpired when the father of the prosecutrix was enquiring

about the name of the other accused person apart from Binod

Choudhary.

21. The statement of the father of the victim also

cannot be accepted on the point of identity of the appellant for

the reason that his statement stands completely uncorroborated.

Who gave him the information that the appellant was showing

photographs, is not known. Those persons also have not been

brought to the witness box. Thus, there is no connecting link of

the appellant with the crime, for which, he has been charged,

tried and convicted.

22. The evidences of P.W.s 3 and 4, therefore, on the

issue of identity of the appellant, are not cogent enough to be

relied upon.

23. For the aforesaid reasons, the judgment and order

of conviction and sentence against the appellant cannot be

sustained in the eyes of law.

24. Accordingly, the judgment of conviction dated

22.03.2017 and the order of sentence dated 28.03.2017 passed

by learned Special Judge, POCSO Act -cum-Additional Sessions
Patna High Court CR. APP (SJ) No.1420 o f 2017 dt.19-03-2018

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Judge, Ist, Aurangabad in G.R. No. 8 of 2013, arising out of

Baroon P.S. Case No. 151 of 2013 are set aside.

25. The appeal succeeds.

26. The appellant is in jail. He is directed to be released

forthwith from jail, if not wanted in any other case.

27. A copy of the judgment be transmitted to the

Superintendent of Jail for information, compliance and needful

action.

(Ashutosh Kumar, J)

Shageer/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 22/03/2018
Transmission Date 22/03/2018

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