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Ibrahim Kujra vs The State Of Bihar on 11 September, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.305 of 2016
Arising Out of PS. Case No.-87 Year-2014 Thana- MAHILA PS District- Darbhanga

Ibrahim Kujra son of Sultan Kujra, resident of Village- Benipur, Police
Station- Bahera and District- Darbhanga.

… … Appellant
Versus
The State Of Bihar
… … Respondent

Appearance :

For the Appellant/s : Mr. Girish Chandra Jha, Adv.

For the Respondent/s : Mr. Z. Hoda, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date : 11-09-2019
Appellant Ibrahim Kujra has been found guilty for an

offence punishable under section 376 of the Indian Penal Code and

sentenced to undergo R.I. for 8 years as well as to pay fine

appertaining to Rs.5,000/- and in default thereof, to undergo R.I.

for one year, additionally, under section 4 of the POCSO Act and

sentenced to undergo R.I. for 7 years as well as to pay fine

appertaining to Rs.5,000/- and in default thereof, to undergo R.I.

for one year, additionally, under section 3(i)(xi) of the SC/ ST

(P.O.A.)Act and sentenced to undergo R.I. for two years as well as

to pay fine appertaining to Rs.1,000/- and in default thereof, to

undergo R.I. for six months, additionally, under section 323 I.P.C.

and sentenced to undergo S.I. for one year as well as to pay fine

appertaining to Rs.500/- and in default thereof, to undergo S.I. for

one month, additionally, with a further direction that the sentences

should run concurrently by the Addl. Sessions Judge I cum Special
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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Judge, POCSO, Darbhanga in G.R.Case No. 22/2014 arising out of

Mahila (Bahera) P.S.Case No. 87/2014.

Name withheld (P.W.1) the victim filed a written report

on 1.8.2014 depicting therein that on 30.7.2014 at about 1 P.M.

while she had gone near bank of a river to ease herself, was caught

hold by Ibrahim Kujra from behind who, after overpowering her,

tied her both hands, undressed her, lie her down and then

committed rape. After commission of rape, he left her in necked

condition. Anyhow, she came to her house where, her Bhabhi

(Meena Devi) put clothe, untied her and whom she disclosed the

occurrence. Thereafter, she moved in surroundings and disclosed

the event, whereupon co-villagers including Sanjay Kumar,

Parwind Kumar Pawwan and Rohan Paswan gone in search of

Ibrahim Kujra who, after brandishing Chhura managed to succeed

in fleeing away. It has also been disclosed that during course of

rape Ibrahim Kujra also bit over her cheeck, lip and other places.

After registration of Mahila (Bahera) P.S.Case No.

87/2014 investigation followed and, after completing the same

charge sheet has been submitted facilitating the trial meeting with

the ultimate result, subject matter of the instant appeal.

Defence case as is evidence from the mode of cross-

examination as well as statement recorded under section 313
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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Cr.P.C. is that of complete denial. It has further been pleaded that

so alleged victim was accustomed to commit theft in the vegetable

field of the appellant/ accused and on the date of occurrence itself

she was caught red-handed and for that, she was scolded and in the

aforesaid background, this false case has been instituted putting

false and frivolous allegation. Two witnesses have also been

examined in support thereof.

Altogether 7 P.Ws. have been examined on behalf of the

prosecution in order to substantiate its case, who are P.W.1 the

victim herself, P.W. 2 Meena Devi, her Bhojai, P.W.3 Shambhu

Paswan, her brother, P.W.4 Sanjay Kumar Paswan, a co-villager,

P.W.5 Sunil Kumar, Judicial Magistrate, who had recorded

statement of the victim under section 164 Cr.P.C., P.W.6 Dr.

Vedanand Jha and P.W.7 Neelam Kumar, the I.O. Side by side also

exhibited signature of the informant Ext.1 over written report,

signature of the informant over the statement recorded under

section 164 Cr.P.C. 1/1, statement of the victim recorded under

section 164 Cr.P.C. Ext.2, Medical report Ext.3, formal F.I.R.

Ext.4, endorsement over the written report Ext.5. In likewise

manner, two D.Ws. have been examined on behalf of the defence,

D.W.1 Abdul Hakim and D.W.2 Noor Mohammad. Also exhibited
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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certificate granted by the Ward Counselor and Chief Ward

Counselor as Ext.A and Ext.B respectively.

In order to proper appreciation of respective argument

raised on behalf of respective parties when L.C.records has been

gone through, it is apparent that either learned P.O. had not cared

to strictly follow the procedure so prescribed under the POCSO

Act or, the learned P.O. was not knowing the relevant provisions

so enumerated therein guiding the trial. In likewise manner, during

course of investigation, the same mistake has been committed at

the end of the I.O.

In accordance with Section 27 of the POCSO Act when

the victim happens to be a girl child, there happens to be specific

direction that the medical examination shall be conducted by a

woman doctor. From the evidence of P.W.6 it is evident that he

happens to be a male doctor and although he had shown presence

of Dr. Poonam during course of examination of the victim but, the

same could not cure the mistakes in utter violation of Section

27(2) of the POCSO Act as he failed to narrate that person of the

victim was examined by the Gynecologist Dr. Poonam.

In likewise manner, in accordance of Section 35 of the

POCSO Act, the evidence of the child is to be taken within a

period of 30 days from the date of order of cognizance and delay if
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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any, has to be properly explained. From the L.C.records, it is

evident that in spite of case having been registered under the

POCSO Act alongwith other penal provisions and further under

section 33(1) of the POCSO Act, the Special Court so designated

is vested with the power of cognizance, even then the matter

remained pending before the magisterial court and cognizance was

taken on 18.10.2014 by the A.C.J.M. and then thereafter, vide

order dated 18.10.2014 itself it was committed to the court of

Sessions which ought not to be. Not only this, it is also apparent

that the evidence of the victim has been recorded beyond the

period of 30 days and for that there happens no explanation as

required under the Statute, at the end of the learned lower court.

It is further evident that in spite of the direction made by

the Apex Court repeatedly, in the case of Jarnail Singh v. State of

Haryana, reported in 2013 Cr.L.J. 3976 and in the case of State of

Madhya Pradesh v. Anoop Singh, reported in (2015)7 SCC 773

that the procedure so prescribed under the Juvenile Justice Act is

to be cared during course of ascertainment of the age of the victim.

It is evident from the evidence of P.W.6 doctor that they on their

own estimated the age of the victim in between 16-17 years over

which, neither the I.O. was attentive nor the doctor remained

sincere and in the aforesaid background, the learned counsel for
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the appellant vehemently submitted that it ought not to be a case

under the POCSO Act because of the fact that having variance plus

minus two years and further the age having in higher side of the

prosecutrix is to be accepted, crosses the limit identifying the

victim to be major by way of crossing the age of 18 years.

It is also evident from the evidence of P.W.1 victim that

she has been brutishly cross-examined at the end of the defence

counsel for so many days having been recorded just in 17 pages

without any break during cross-examination. Sub-section (2) of

Section 33 of the POCSO Act prohibits direct confrontation either

of the Public Prosecutor or of the defence counsel with the victim

rather, the questions are to be placed before the court and, the court

will consider the same whether fit to be allowed or not and then

the court will place before the victim but from the order sheet as

well as from the deposition of P.W.1 failed to trace out proper

compliance thereof.

By these submissions, the proceeding so raised before

the learned lower court suggests in a mechanical manner and on

account thereof, needs proper adjudication. Further more, it is also

evident from the order sheet that during course of examination-in-

chief, cross-examination of P.W.1 none was present in which the
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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victim has a confidence. That means to say, the object of the act

had been completely frustrated.

It is needless to remind, that the retrial should not be

allowed in ordinary course of nature but, this happens to be a

peculiar circumstance whereunder a minor, the victim for whose

benefit special Act has been introduced, by way of acknowledging

special status having all kind of protection so that, she could not

waylay during course of evidence, as the offence having been

committed upon her, on account of her tender age, deficient I/Q

helplessness, having deterrent punishment against the perpetrator

of the crime, has completely been frustrated, due to P.O. being

inert, indifferent towards the compliance of mandate of law. In the

aforesaid background, could it be said that the evidence deposed

by the victim P.W.1 happens to be in accordance with law. That

means to say, court could it be acceptable? The presence of the

person in whose favour there happens to be confidence of the

victim, as directed under the Statute, is only to have a confidence

during the court proceeding and avoiding the direct confrontation

is to keep her mental balance and further, the court, during course

of putting question before the victim was under obligation to see

the nature of question, whether it could be allowed or not, and

further having at the end of P.O., a solace for the time being, so
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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that she should not be afraid of. Such carelessness at the end of the

learned lower court has created mismatch and that being so,

irrespective of the fact that the appellant has been convicted and

sentenced for, could not be allowed to survive.

In Ata Ram ors. vs. State of Rajasthan, reported in

2019(3) BLJ 326 (S.C.) wherein it has been observed that in case

of utter violation of the mandate of law, requires de novo trial, For

better appreciation, relevant paragraph is quoted below:

“15. The cases cited by the learned Amicus Curiae
dealt with issues whether recording of evidence by video
conferencing satisfied the mandate of Section 273 of the Code.

A) In State of Maharashtra v. Dr. Praful B. Desai,
(2003)4 SCC601, it was observed:

“9. It was submitted on behalf of the respondents,
that the procedure governing a criminal trial is crucial to the
basic right of the accused under Articles 14 and 21 of the
Constitution of India. It was submitted that the procedure for
trial of a criminal case is expressly laid down, in India, in the
Code of Criminal Procedure. It was submitted that the Code of
Criminal Procedure lays down specific and express provisions
governing the procedure to be followed in a criminal trial. It
was submitted that the procedure laid down in the Code of
Criminal Procedure was the “procedure established by law”. It
was submitted that the legislature alone had the power to
change the procedure by enacting a law amending it, and that
when the procedure was so changed, that became “the
procedure established by law”. It was submitted that any
departure from the procedure laid down by law would be
contrary to Article 21. In support of this submission reliance
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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was placed on the cases of A.K. Gopalan v. State of Madras,
AIR 1950 SC 27, Nazir Ahmad v. King Emperor, AIR 1936 PC
253(2) and Siva Kumar Chadda v. Municipal Corpn. of Delhi,
AIR 1995 SC 915 (sic). There can be no dispute with these
propositions. However, if the existing provisions of the Criminal
Procedure Code permit recording of evidence by video-
conferencing then it could not be said that “procedure
established by law” has not been followed.

20. Recording of evidence by video-conferencing also
satisfies the object of providing, in Section 273, that evidence be
recorded in the presence of the accused. The accused and his
pleader can see the witness as clearly as if the witness was
actually sitting before them. In fact the accused may be able to
see the witness better than he may have been able to if he was
sitting in the dock in a crowded courtroom. They can observe
his or her demeanour. In fact the facility to playback would
enable better observation of demeanour. They can hear and
rehear the deposition of the witness. The accused would be able
to instruct his pleader immediately and thus cross-examination
of the witness is as effective, if not better. The facility of
playback would give an added advantage whilst cross-
examining the witness. The witness can be confronted with
documents or other material or statement in the same manner as
if he/she was in court. All these objects would be fully met when
evidence is recorded by video-conferencing. Thus no prejudice,
of whatsoever nature, is caused to the accused. Of course, as set
out hereinafter, evidence by video-conferencing has to be on
some conditions.”

B) In Sakshi vs. Union of India, (2004)5 SCC518,
the observations of this Court were:-

“27. The other aspect which has been highlighted
and needs consideration relates to providing protection to a
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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victim of sexual abuse at the time of recording his statement in
court. The main suggestions made by the petitioner are for
incorporating special provisions in child sexual abuse cases to
the following effect:

(i) Permitting use of a videotaped interview of the
child’s statement by the judge (in the presence of a child-support
person).

(ii) Allow a child to testify via closed-circuit
television or from behind a screen to obtain a full and candid
account of the acts complained of.

(iii) The cross-examination of a minor should only be
carried out by the judge based on written questions submitted by
the defence upon perusal of the testimony of the minor.

(iv) Whenever a child is required to give testimony,
sufficient breaks should be given as and when required by the
child.

C) Recently in Mahender Chawla and Ors. vs.
Union of India (UOI) and Ors., 2018(15) SCALE 497, this
Court stated:-

“29. As pointed out above, in Sakshi’s case, the
Court had insisted about the need to come up with a legislation
for the protection of witnesses. It had even requested the Law
Commission to examine certain aspects, which resulted to
172nd review of rape laws by the Law Commission. However,
the Court specifically rejected the suggestion of the Law
Commission regarding examination of vulnerable witnesses in
the absence of Accused. Having regard to the provisions of
Section 273 of the Code of Criminal Procedure, which is based
on the tenets of principle of natural justice, that the witness must
be examined in the presence of the Accused, such a principle
cannot be sacrificed in trials and in inquiries regarding sexual
offences. In such a scenario examination of these witnesses
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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through video conferencing provides the solution which
balances the interest of the Accused as well as vulnerable
witnesses.”

30. We will briefly refer to the statutory provisions
governing the situation. Section 273 Cr.P.C. lays down that:

“273. Except as otherwise expressly provided, all
evidence taken in the course of the trial or other proceeding
shall be taken in the presence of the accused, or, when his
personal attendance is dispensed with, in the presence of his
pleader.”

Sub-section (1) of Section 327 CrPC lays down that
any criminal court enquiring into or trying any offence shall be
deemed to be open court, to which the public generally may
have access, so far as the same can conveniently contain them.
Sub-section (2) of the same section says that:

“327. (2) Notwithstanding anything contained in
sub-section (1) the inquiry into and trial of rape or an offence
under Section 376, Section 376-A, Section 376-B, Section 376-C
or Section 376-D of the Indian Penal Code (45 of 1860) shall be
conducted in- camera.”

Under the proviso to this sub-section
“the Presiding Judge may, if he thinks fit, or on an
application made by either of the parties, allow any particular
person to have access to, or be or remain in, the room or
building used by the court”.

It is rather surprising that the legislature while
incorporating sub-section (2) to Section 327 by amending Act
43 of 1983 failed to take note of offences under Sections 354
and 377 IPC and omitted to mention the aforesaid provisions.
Deposition of the victims of offences under Sections 354 and
377 IPC can at times be very embarrassing to them.

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31. The whole inquiry before a court being to elicit
the truth, it is absolutely necessary that the victim or the
witnesses are able to depose about the entire incident in a free
atmosphere without any embarrassment. Section 273 CrPC
merely requires the evidence to be taken in the presence of the
accused. The section, however, does not say that the evidence
should be recorded in such a manner that the accused should
have full view of the victim or the witnesses. Recording of
evidence by way of video-conferencing vis-à-vis Section 273
CrPC has been held to be permissible in a recent decision of
this Court in State of Maharashtra v. Dr. Praful B. Desai1.
There is major difference between substantive provisions
defining crimes and providing punishment for the same and
procedural enactment laying down the procedure of trial of such
offences. Rules of procedure are handmaiden of justice and are
meant to advance and not to obstruct the cause of justice. It is,
therefore, permissible for the court to expand or enlarge the
meanings of such provisions in order to elicit the truth and do
justice with the parties.”

16. … … …
17. … … …
18. … … …
19. … … …
20. … … …
21. … … …
22. … … …

23. It is true that as consistently laid down by this
Court, an order of retrial of a criminal case is not to be taken
resort to easily and must be made in exceptional cases. For
example, it was observed by this Court in Pandit Ukha Kolhe vs
State of Maharashtra, as under:-

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“15. An order for retrial of a criminal
case is made in exceptional cases, and not unless the
appellate Court is satisfied that the Court trying the
proceeding had no jurisdiction to try it or that the
trial was vitiated by serious illegalities or
irregularities or on account of misconception of the
nature of the proceedings and on that account in
substance there had been no real trial or that the
Prosecutor or an accused was, for reasons over
which he had no control, prevented from leading or
tendering evidence material to the charge, and in the
interests of justice the appellate Court deems it
appropriate, having regard to the circumstances of
the case, that the accused should be put on his trial
again. An order of re-trial wipes out from the record
the earlier proceeding, and exposes the person
accused to another trial which affords the prosecutor
an opportunity to rectify the infirmities disclosed in
the earlier trial, and will not ordinarily be
countenanced when it is made merely to enable the
prosecutor to lead evidence which he could but has
not cared to lead either on account of insufficient
appreciation of the nature of the case or for other
reasons. Harries, C.J., in Ramanlal Rathi v. The
State, AIR (1951) Cal. 305.

“If at the end of a criminal prosecution the
evidence leaves the Court in doubt as to the guilt of
the accused the latter is entitled to a verdict of not
guilty. A retrial may be ordered when the original
trial has not been satisfactory for particular reasons,
for example, if evidence had been wrongly rejected
which should have been admitted, or admitted when
Patna High Court CR. APP (SJ) No.305 of 2016 dt.11-09-2019
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it should have been rejected, or the Court had
refused to hear certain witness who should have
been heard. But retrial cannot be ordered on the
ground that the prosecution did not produce the
proper evidence and did not know how to prove their
case.”

Consequent thereupon, the judgment impugned is set

aside. The appeal is allowed. The matter is remitted back to the

learned lower court to proceed afresh in accordance with law.

Considering the period of custody, learned lower court is directed

to complete the trial within one year but, with a caution that there

should be proper presence of the witnesses. Appellant, who is in

custody, is directed to be produced before the lower court. Office

is also directed to transmit the record to lower court, at once.

(Aditya Kumar Trivedi, J)
Surendra/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 17.09.2019
Transmission Date 17.09.2019

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