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Naveen Kuwar vs The State Of Bihar on 18 December, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.268 of 2016
Arising Out of PS. Case No.-236 Year-2013 Thana- MAJHAULIA District- West Champaran

Naveen Kuwar S/o late Babunand Kuwar Resident of Village- Patbandi, Babu
tola, PS Majhauliya, District West Champaran. .. … Appellant/s
Versus
The State Of Bihar … … Respondent/s

Appearance :

For the Appellant/s : Mr.Sanjeev Kumar, Adv
For the Respondent/s : Mr. Z.Hoda, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT

18-12-2019 Vide judgment of conviction dated 19.03.2016

and order of sentence dated 28.03.2016, appellant, Naveen

Kuwar has been found guilty for an offence punishable under

Section 376 IPC and sentenced to undergo RI for ten years as

well as to pay fine of Rs. Three Lacs in default thereof, to

undergo RI for two years additionally by the Additional

Sessions Judge-6th, West Champaran at Bettiah in connection

with Sessions Trial No. 1124/2013 arising out of Majhaulia PS

Case No. 236/2013.

2. Victim, PW-1 (name withheld) filed a written

report on 09.06.2013 disclosing therein that about five months

age, she had gone to the house of Naveen Kuwar S/o late

Babunand Kuwar in order to give her service as a cook for 2-3

days and during course thereof, Naveen committed rape on her.

As, she became terrified by way of threatening at the end of

accused, Naveen, she did not dare to speak about the

occurrence. At present, she found herself to be impregnated.

3. It is further evident from the records that after

some time, victim was married and, at her Sasural, female folk,
Patna High Court CR. APP (SJ) No.268 of 2016
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on account of their perception, identified the victim to be

pregnant, whereupon, she was kicked out. Then she came to

know that she was pregnant as she was novice till then. The

accused and his wife on being approached in order to raise

grievance, tried to persuade her and during course thereof, wife

of the accused, administered one tablet, whereupon she

developed complication as a result of which, she was taken to

hospital and during course thereof, she aborted. After institution

of case, investigation was taken up and, witnesses including

victim were examined and on the basis thereof, after completing

the investigation, I.O. had submitted charge-sheet against

Naveen Kuwar only, keeping investigation pending against

remaining including his wife.

4. Accordingly, on the basis of material so

produced under Section 173 CrPC, followed with order of

cognizance, there happens to be commencement of trial and

after concluding the same, as is evident, appellant has been

acquitted for an offence punishable under Section 312 of the

IPC, on the ground that his wife has not been made an accused

irrespective of the fact that there was ample material and, from

the order sheet of the lower court, it is evident that neither

prosecution nor the court on its own exercised its power either
Patna High Court CR. APP (SJ) No.268 of 2016
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under Section 193 CrPC or under Section 319 of the CrPC,

coupled with the fact that investigation against her was alreadyt

pending though convicted and sentenced under Section 376 IPC,

subject matter of the instant appeal. (Wife is not an accused as

observed under para-26), though investigation against her

remains pending.

5. Defence case as is evident from the mode of

cross-examination as well as statement recorded under Section

313 of the CrPC is that of complete denial. Furthermore, it has

specially been pleaded that this case has purposely been filed at

the instance of father of the victim with false and frivolous

allegation in the background of dispute having with Naveen,

appellant/accused and for that, oral evidences have also been

led.

6. In order to substantiate its case, altogether six

PWs have been examined who are PW-1, Victim, PW-2,

Ramesh Singh PW-3, Janak Dulari, PW-4, Ram Joti Kuwar,

PW-5, Surendra Kumar, I.O., and PW-6, Dr. M. S. Rahim. Side

by side, has also exhibited Ext-1, Signature of victim over

Fardbeyan, Ext-2, signature of victim over statement recorded

under Section 164 CrPC, Ext-3, endorsement over written

report, Ext-4, Formal FIR, Ext-5, Medical Report. Defence has
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also examined three DWs, DW-1, Chuman Kunwar, DW-2,

Abhimanyu Kuwar and DW-3, Satyanarayan Sah. No

documentary evidence has been adduced.

7. In order to assail the finding recorded by the

learned lower court, it has been submitted at the end of learned

counsel for the appellant that from perusal of the judgment

impugned, it is evident that the learned lower court acted in a

slip-slot manner which, if would have been taken into

consideration, would not have led the said result, along with the

inherent lacuna, the first and foremost argument is that

prosecution case could not be accepted as, it lacks truthfulness

on account of (a) had there been commission of rape at the end

of appellant, then in that circumstances, there would not have

been continued presence of the victim subsequently, at his place,

more particularly, in the background of the fact that she had not

shown herself as a consenting party, (b) the victim had not

claimed herself to be a minor, that being so, is major and her

continued presence at the place of appellant is indicative of the

fact that she was a consenting party, (c) had there been

commission of rape at the end of appellant, resulting her

pregnancy, ought to have been known to her just after a month

having stoppage of menstruation, would have an opportunity to
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disclose the same at least to her mother but, keeping mum gives

otherwise inspiration than so alleged, (d) the victim had no

grievance till she was ousted from her Sasural on the ground of

being pregnant since before, then in that circumstance, there

would have been proper connectivity so far appellant is

concerned, (e) there happens to be no corroborative evidence

relating to the allegation having at the end of the victim, (f)

there happens to be inconsistency amongst the initial version as

well as statement recorded under Section 164 CrPC in

consonance with the evidence and on that very score, her

attention has duly been drawn, (g) Apart from others, her mother

also dislodged her allegation. That being so, the judgment

impugned does not justify its sustenance, whereupon, is fit to be

set aside.

8. Learned APP controverted the submission

made on behalf of the appellant and submitted that from the

judgment impugned, it is manifest that after proper scrutiny of

the medical evidence in consonance with materials available on

the record including evidence of the victim having been

adduced at the end of prosecution as well as defence version,

learned lower court has arrived at the conclusion which happens

to be just, legal and proper and is, accordingly, fit to be
Patna High Court CR. APP (SJ) No.268 of 2016
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confirmed.

9. PW-1 is the victim herself. She has deposed to

the effect that the occurrence is of about a year ago. As wife of

Naveen Kuwar, her co-villager was unwell, under the aforesaid

pretext, Naveen came at her house and disclosed to her parents,

that for the time being, she, (victim) be directed to cook his

food. Considering thereupon, she was instructed to cook food

for them at their place. Accordingly, she began to visit the place

of accused in order to cook the food. About 5-6 days thereafter,

Naveen committed rape upon her which he continued on

successive days. Being thunders, trucked with baffled situation,

she could not resist at the relevant moment. But, when she

resisted his further attempt, he threatened her of dire

consequence. Due to timidness as well as lack of courage and

further in order to protect her own prestige as well as that of her

family, out of shame, she could not disclose. Further, she was so

novice that she failed to perceive changes. Subsequently, she

was married and, when she had gone to her Sasural, the

experienced, curious eyes of the female folk caught hold of the

changes who disclosed and then, she acknowledged herself to be

pregnant. Then thereafter, she was kicked out therefrom. She

came to her Maika where, she narrated the whole event. Then,
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she had gone to the place of Naveen along with her father where

she busted and said that “you have spoiled my life, now she has

no option.” Naveen said, “all will be corrected, you have

nothing to say to anybody.” At that very moment, wife of

Naveen came from inside of her house and gave her a medicine

instructing her to swallow as, the situation will be properly

cared with. As soon as, she consumed the medicine, she began

to bleed. Then she was taken to Manjhaulia Hospital by her

father where doctor, after examination, disclosed that on account

of administration of medicine, abortion has been effected. Then

she has disclosed to the doctor that on account of giving

medicine by the wife of Naveen, she has been confronted with

such situation. Thereafter, she immediately, rushed to the police

station and narrated the incident which was ascribed and then,

her signature was taken thereupon,(exhibited). Thereafter, she

was taken to Bettiah court where her statement was recorded by

a Magistrate. After going through the same, she had put her

signature thereupon, (exhibited). Identified the accused. During

cross-examination, she at para-2 has stated that she was married

about four months ago. After marriage, she resided at her

Sasural for 2-3 days and then thereafter, she was chased away.

At para-3, she has stated that at the time of marriage, her parents
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were not knowing that she was pregnant. After marriage, when

menstruation was stopped, she came to know that she is

carrying pregnancy. Before marriage, menses was going on. 5-6

days after marriage, she perceived the same. At para-4, she has

stated that she had not shown herself to the doctor before

marriage nor her husband took her to the doctor after marriage.

In para-5, she has stated that her mother-in-law, after seeing her

belly, perceived her pregnancy. In para-6, she has stated that she

is not remembering how much days after coming from her

Sasural, she was taken to the doctor. She is not remembering

whether she was medically examined or not. In para-7, she has

stated that she is not knowing whether her Sasuralwala ever

talked after her departure therefrom. In para-9, she has stated

that she had gone to the place of Naveen in order to cook food

for 2-3 days. Then thereafter, she had not gone there. In para-11,

she has stated that whenever she had gone to the place of

Naveen to cook, his wife was present in the house. She had not

gone to any other place for cooking. She visited the place of

Naveen at the morning as well as at evening hour. At that very

moment, she also used to provide nursing to the wife of

Naveen. In para-12, she has stated that Naveen had not engaged

any other maid-servant or servant. In para-13, she has stated that
Patna High Court CR. APP (SJ) No.268 of 2016
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she had discharged all kinds of domestic work, like cleaning of

utensil, washing clothes etc. She was not to be paid. In para-14,

she has stated that neither she nor her parents had demanded. In

para-15, she has stated that after having been ousted from her

Sasural, she came at her Naihar where she disclosed regarding

her pregnancy. Her parents have not said anything. In para-16,

she has stated that after having been ousted from her Sasural,

she had not gone to her Sasural, subsequently. Then she denied

the suggestion at Para-16 that she is telling lie. She aborted

herself and during course thereof, she took all kinds of help

from her Sasural. At para-17, she has stated that she is not

knowing what the police had recorded. She has simply put her

signature. Then at para-18, she denied the suggestion that she

was not raped rather in order to have her wages, this false case

has been instituted with false and frivolous allegation. Then she

also denied the suggestion that Naveen happens to be

respectable person of the locality, and he never committed rape

upon her.

10. PW-2 is the father of PW-1 who during his

examination-in-chief has stated that on account of illness of

wife of Naveen, he came at his house and requested him to send

his daughter to his place in order to cook food, whereupon, he
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allowed his daughter to go to the place of Naveen for cooking

food. After 5-6 days condition of Pramila improved. During

midst thereof, he finalized affiance of his daughter and, after

four months, she was married. After going to her Sasural, the

family members of her Sasural raised eyes as, they had found

her pregnant since before whereupon, she was ousted. He

brought her to his place and then, on query, she disclosed that

while she was cooking at the place of Naveen, he committed

rape on her and also threatened that in case of disclosure to her

family members, she will be eliminated. Then thereafter, he

along with his daughter have conjointly gone to the place of

Naveen and raised voice against illegal activity. At that very

time, the wife of Naveen said that all the matter is going to be

resolved within a fraction of minute. Then thereafter, she had

gone inside her house, came out with a medicine, got

administered the same to her. Within fifteen minutes, she

perceived pain. She was taken to the Govt. Hospital where she

was examined and during course thereof, the doctor opined that

it was a case of abortion on account of administration of

medicine. He has further stated that they had gone to the police

station where his daughter had filed written report. Identified the

accused. During cross-examination at para-2, he has stated that
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at the time of marriage of his daughter, she was aged about 18

years. Then there happens to be cross-examination relating to

her husband, father-in-law and the status of the family. In para-

3, he has stated that till the time when his daughter had gone to

her Sasural, he was knowing nothing. His daughter remained at

her Sasural for 4-5 days. Mother-in-law of his daughter had

telephonically informed his sister, Gulrani Devi. In para-4, he

has stated that he had gone to her Sasural on the following day

after receiving telephonic information and then, on the

following day, he accompanied his daughter. Since thereafter,

she is residing at his place. In para-5, he has stated that his

daughter had already disclosed regarding the incident to his

son-in-law whereupon, his son-in-law disclosed that he is not

inclined to keep the child going to be begotten at the instance of

Naveen. He also came to his village and communicated to each

and every person. In para-6, he has stated that he had not

inflicted any kind of punishment to his daughter even after

coming to know about her pregnancy. After coming from

Sasural of his daugher, he had gone to the place of Naveen.

After coming from the place of Naveen, he had gone to the

doctor. His daughter remained there for a day and then, she was

referred to Bettiah Hospital. While she was at Majhauliya
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Hospital, her statement was recorded by the police. At para-7,

he has stated that, for the present, he is unable to disclose as for

how many days, her daughter remained in the hospital. In para-

9, he has stated that police had recorded his statement after

registration of FIR. In para-10, he has stated that he is not

remembering whether his daughter had incorporated in the

written report that medicine was administered at the place of

Naveen. At para-11, there happens to be contradiction. In para-

12, he has stated that in his presence also, Naveen had

threatened. In para-13, he has stated that he had not seen the

accused committing rape upon his daughter. In para-16, he has

stated that he as well as Naveen were on cordial relation. Then

he denied the suggestion that he was looking after the affairs of

Naveen. In para-18, he has stated that his daughter had not gone

to the place of any other else for the purpose of cooking. In

para-19, he has stated that he inquired from his daughter

regarding delay in disclosing the incident, whereupon, she

disclosed that out of fear, she did not muster courage to divulge

the incident. Then, he denied the suggestion that Naveen resides

at Delhi with his family members and, the agriculture work was

being looked after by him and, as he misappropriated for which

there happens to be persisting demand at the end of Naveen and
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in order to pressurize upon him, this false case has been

registered with a mala fide intention.

11. PW-3 is the mother of PW-1, the victim. She,

during course of her evidence, has stated that this case has been

lodged by her daughter against Naveen. Naveen had committed

sin with her daughter but, she is not knowing whether her

daughter became pregnant. She has not made statement before

the police, whereupon, she was declared hostile and, during

course thereof, she was confronted with her previous statement.

During cross-examination at para-4, she has stated that both the

family members are on strained relationship. Victim neither had

gone to the place of victim nor did Naveen ever come to call

her. Victim never became pregnant.

12. PW-4, during her examination, has stated that

about two years ago, father of victim as well as Naveen

quarreled. She does not know about the occurrence whereupon,

she was also declared hostile. During cross-examination, she has

stated that she had not seen the victim going to the place of

Naveen.

13. PW-5 is the Investigating Officer. He during

his examination-in-chief, has stated that after registration of the

case, investigation was entrusted to him and accordingly, he
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proceeded therewith. He took further statement of the informant.

Injury report had already been issued by the O/C. Then he

recorded statement of witnesses including her parents. He did

not get the victim medically examined rather O/C had sent her

along with the police. However, he had received medical report.

Then statement of PW-3 has been confronted to him and in

likewise manner, that of PW-4. He conducted raid at the house

of accused and found him absconding. He had inspected the

place of occurrence which happens to be house of accused.

Identified the same by the boundary. But as it was closed, so he

could not gone inside the house. Received supervision note,

completed investigation, submitted charge-sheet against the

accused, keeping the investigation pending against others. Then

has exhibited the relevant documents. During cross-examination

at para-2, he has stated that he had not filed any petition before

the Magistrate for getting the lock opened in order to inspect the

place of occurrence. He had not gone to the Sasural of Naveen

in order to trace out his wife. He had not gone to inspect the

place of occurrence subsequently. He had not gone to Sasural of

the victim. At para-4, he has stated that from PHC report

pregnancy followed with abortion is found substantiated but, he

had not received any information from Bettiah Hospital where
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the victim was referred to. In para-5, he has stated that he had

investigated upon how the accused carried the victim for

cooking to his house. In para-6, he has stated that he had not

investigated whether after the occurrence the victim continued

with cooking. In para-8, he has stated that none of the witnesses

had claimed to have seen the accused in company of the victim.

In para-9, he has stated that he had not investigated over on the

point as to whether after cooking in the night, the victim used to

stay at the house of the accused. In para-11, he has stated that he

had not investigated on which date rape was committed. At

para-14, he has stated that he had not inquired from the victim

whether she indulged in physical relationship with her husband

after the marriage.

14. PW-6 is the doctor who had examined the

victim on 09.06.2013 at PHC, Majhaulia and found the

following:-

1. Found complaint of pain in abdomen
followed by instantaneous abortion. No external
injury seen over her body. So after giving
primary aid patient was referred to MJK
Hospital, Bettiah for further treatment.

2. M.I. A mole over left neck.

Over which, he was not at all examined.

15. It is evident that three DWs namely, DW-1,

Chuman Kuwar, DW-2, Abhimanyu Singh and DW-3,
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Satyanarayan Sah have been examined on behalf of defence.

16. DW-1 has stated that for the last twenty

years, Naveen and his wife reside at Delhi. Ramesh Singh has

been engaged to look after the affairs at the village and during

course thereof, there was an altercation, as a result of which,

both families developed strained relationship. He has further

stated that daughter of Ramesh is residing at her Sasural after

the marriage. Then has stated that at an earlier occasion, Naveen

used to visit the village at an interval of 1-2 months. After

dispute, Naveen had gone to Delhi. During cross-examination at

para-6, he has stated that he came to depose on the request of

Naveen. Then at para-10, he has stated that the occurrence

relating to the present case took place about 2-3 years ago.

17. DW-2, during course of his evidence, has

reiterated the same version. DW-3 who claimed himself to be a

Sarpanch of the locality, during course of his examination-in-

chief reiterated the same version with an addition that after

dispute both the parties were on strained relationship but, in due

course of time, they resolved the same and now, they resumed

their social relation. During cross-examination, he has stated

that he came to depose as instructed by the wife of Naveen.

18. From the record, it is evident that since
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inception of the instant case, the victim had not disclosed her

status whether she happens to be minor or major. Though, from

the deposition form, it is evident that she disclosed her age

about 17 years while, the court had estimated her age as 18

years. Even then, she was not tested on that very score but,

during course of cross-examination of PW-2, her father at para-

2, he was tested on that very score and during course thereof, he

replied that at the time of marriage, the victim was aged about

18 years. Marriage was solemnized five months after the

occurrence. That means to say, on the alleged date and time of

occurrence, she was below the age of 18 years. During course of

further cross-examination neither PW-2 has been controverted,

suggested contrary to the aforesaid discloser nor, PW-3, mother

of the victim was ever tested irrespective of the fact that she

became hostile to the prosecution to some extent. On account

thereof, the status of the victim has become that of below the

age of 18 years. PW-6, the doctor simply examined the victim

with regard to the complaint having at her end and nothing

more. So, the approximate age of the victim through medical

examination is not on the record though, the Hon’ble Apex

Court consistently, deprecated the ascertaining the age of the

victim through medical examination, on the other hand, allowed
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mode of ascertainment of age of the victim in accordance with

J.J. Act as held in the case of SectionJernail Singh v. Haryana as

reported in 2013 Cr.L.J. 3976 wherein it has been held as

follows:-

“20. On the issue of determination of age of
a minor, one only needs to make a reference to
Rule 12 of the Juvenile Justice (Care and
Protection of Children) Rules, 2007 (hereinafter
referred to as the 2007 Rules). The aforestated
2007 Rules have been framed under Section 68(1)
of the Juvenile Justice (Care and SectionProtection of
Children) Act, 2000. Rule 12 referred to
hereinabove reads as under :

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 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
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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
Patna High Court CR. APP (SJ) No.268 of 2016
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7A, Sectionsection 64 of the 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 off 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.

Even though Rule 12 is strictly applicable
only to determine the age of a child in conflict with
law, we are of the view that the aforesaid statutory
provision should be the basis for determining age,
even for a child who is a victim of crime. For, in
our view, there is hardly any difference in so far as
the issue of minority is concerned, between a child
in conflict with law, and a child who is a victim of
crime. Therefore, in our considered opinion, it
would be just and appropriate to apply Rule 12 of
the 2007 Rules, to determine the age of the
prosecutrix VW-PW6. The manner of determining
age conclusively, has been expressed in sub-rule
(3) of Rule 12 extracted above. Under the aforesaid
provision, the age of a child is ascertained, by
adopting the first available basis, out of a number
of options postulated in Rule 12(3). If, in the
scheme of options under Rule 12(3), an option is
expressed in a preceding clause, it has overriding
effect over an option expressed in a subsequent
clause. The highest rated option available, would
conclusively determine the age of a minor. In the
scheme of Rule 12(3), matriculation (or equivalent)
certificate of the concerned child, is the highest
rated option. In case, the said certificate is
available, no other evidence can be relied upon.
Only in the absence of the said certificate, Rule
12(3), envisages consideration of the date of birth
entered, in the school first attended by the child. In
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case such an entry of date of birth is available, the
date of birth depicted therein is liable to be treated
as final and conclusive, and no other material is to
be relied upon. Only in the absence of such entry,
Rule 12(3) postulates reliance on a birth certificate
issued by a corporation or a municipal authority or
a panchayat. Yet again, if such a certificate is
available, then no other material whatsoever is to
be taken into consideration, for determining the age
of the child concerned, as the said certificate would
conclusively determine the age of the child. It is
only in the absence of any of the aforesaid, that
Rule 12(3) postulates the determination of age of
the concerned child, on the basis of medical
opinion.

19. In the aforesaid background, now two kinds

of eventualities are visualizing from the facts of the case (a)

whether the age of the victim on the alleged date of commission

of occurrence be considered below 18 years (b) whether she

should be considered above the age of 18 years. It has got

relevancy in the background of the fact that in case of she being

less than 18 years, the whole scenario will change apart from

being minor consent has got no relevancy coupled with the fact

that prosecution would not have sailed under SectionIPC rather, under

the POCSO Act, on the other hand, if she is being treated as

major, then in that event, her subsequent conduct has got

bearing over the fate of the instant appeal.

20. As stated above, victim on her own, had not

disclosed her age, during course of her evidence but from the
Patna High Court CR. APP (SJ) No.268 of 2016
22/33

deposition form, it is crystal clear that she had shown her age as

17 years while court estimated her age as 18 years. That means

to say, on the alleged date of occurrence, she was minor, and

that was within full knowledge of the appellant and that happens

to be reason behind that ignoring the PW-1 to be cross-

examined on that very score, during course of cross-examining

PW-2, her father was tested, and during course thereof, at the

time of marriage as 18 years is the specific claim which never

been challenged nor controverted, subsequently by suggesting

PW-2 or PW-3, parents. That being so, there happens to be no

occasion to discredit the aforesaid testament. As the date of

occurrence happens to be five months prior to the date of

marriage and so certainly, she was below the age 18 years,

minor under the ambit of POCSO Act.

21. SectionIn Brij Mohan Singh vs. Priya Brat Narain

Sinha and Ors. as reported in AIR 1965 SC 282 wherein, it has

been held as follows:-

“18. ……..The reason why an entry made by
a public servant in a public or other official book,
register, or record stating a fact in issue or a
relevant fact has been made relevant is that when
a public servant makes it himself in the discharge
of his official duty, the probability if its being
truly and correctly recorded is high.

22. SectionIn State of Punjab vs. Gurmit Singh and
Patna High Court CR. APP (SJ) No.268 of 2016
23/33

Ors. reported in (1996) 2 SCC 384, it has been held as follows:-

“13. ………However, in the present case,
there is evidence on the record to establish that
on the date of the occurrence, the prosecutrix
was below 16 years of age. The prosecutrix
herself and her parents deposed at the trial that
her age was less than 16 years on the date of the
occurrence. …….

23. The occurrence is of the year 2013. On that

day, the sexual offence against children properly identified in

accordance with Section 2 of the POCSO Act up to the age of

18 years is to be sailed in accordance therewith, irrespective of

the fact that the applicability of proper penal Section under SectionIPC

or other enactment was also permissible in terms of Section 42

of the Act. However, the charge under POCSO Act must be

there. The reason best known to the learned lower court, as is

evident, neither cognizance has been taken under POCSO Act

nor charge has been framed under the said Act even during

course of trial neither prosecution took care nor the court on its

own invoked Section 216, Section217 CrPC in order to add the charge.

Section 221(2) of the CrPC authorizes the court to inflict the

sentence under proper head coming out and substantiated from

the materials available on the record irrespective of the fact that

charge has not been framed under the aforesaid Section and is

found properly cared with by Section 464 CrPC.
Patna High Court CR. APP (SJ) No.268 of 2016
24/33

24. But, criminal law is commanded by the

principle based upon natural justice as at every occasion, the

person has to be heard before passing of an order against him

under the banner of audi alteram partem and so, appellant must

have an opportunity to be heard more particularly, in the

background of presence of Section 29 under POCSO Act which

completely changes the basic theory of the criminal

jurisprudence, “prosecution has to prove its case beyond all

reasonable doubts”, as court has to presume and the obligation

is on the accused to rebut.

25. After going through Section 29, it is apparent

that whenever an offence categorized under Section 3, Section5 and Section7

come up before the court, the court has to presume commission

of the aforesaid offence and the burden lies upon the accused to

controvert the same. In case of applicability of Sub-clause-B of

221 of the SectionCrPC, the appellant would be deprived of an

opportunity to rebut the presumption. Not only this, in

accordance with Section 42A of the POCSO Act, the higher

sentence under either of the two is to be inflicted and, by such

activity again the prosecution would not be justified, more

particularly, in accordance with Section 235 (2) of the SectionCrPC, the

accused has to be heard before infliction of the sentence.
Patna High Court CR. APP (SJ) No.268 of 2016
25/33

26. Now the question remains for consideration

whether the aforesaid lapses could be considered as illegal or

irregular.

27. In Rattiram and Ors. vs. State of M.P.

through Inspector of Police as reported in (2012) 4 SCC 561, it

has been held as follows:-

“39. The question posed by us
fundamentally relates to the non-compliance of
such interdict. The crux of the matter is whether
it is such a substantial interdict which impinges
upon the fate of the trial beyond any redemption
or, for that matter it is such an omission or it is
such an act that defeats the basic conception of
fair trial. Fundamentally, a fair and impartial trial
has a sacrosanct purpose. It has a demonstrable
object that the accused should not be prejudiced.
A fair trial is required to be conducted in such a
manner which would totally ostracize injustice,
prejudice, dishonesty and favoritism.

******
******

62. We have referred to the aforesaid
authorities to illumine and elucidate that the
delay in conclusion of trial has a direct nexus
with the collective cry of the society and the
anguish and agony of an accused. Decidedly,
there has to be a fair trial and no miscarriage of
justice and under no circumstances, prejudice
should be caused to the accused but, a pregnant
one, every procedural lapse or every interdict
that has been acceded to and not objected at the
appropriate stage would not get the trial dented
or make it unfair. Treating it to be unfair would
amount to an undesirable state of pink of
perfection in procedure. An absolute apple pie
order in carrying out the adjective law, would
only be sound and fury signifying nothing.

Patna High Court CR. APP (SJ) No.268 of 2016
26/33

28. SectionIn Selvi J. Jayalalithaa and Ors. vs. State of

Karnataka and Ors as reported in (2014)2 SCC 401, it has been

held as follows:-

“29. Denial of a fair trial is as much
injustice to the accused as is to the victim and the
society. It necessarily requires a trial before an
impartial judge, a fair prosecutor and an
atmosphere of judicial calm. Since the object of
the trial is to mete out justice and to convict the
guilty and protect the innocent, the trial should
be a search for the truth and not a bout over
technicalities and must be conducted under such
rules as will protect the innocent and punish the
guilty. Justice should not only be done but should
be seem to have been done. Therefore, free and
fair trial is a sine qua non of SectionArticle 21 of the
Constitution. Right to get a fair trial is not only a
basic fundamental right but a human right also.
Therefore, any hindrance in a fair trial could be
violative of SectionArticle 14 of the Constitution. No
trial can be allowed to prolong indefinitely due to
the lethargy of the prosecuting agency or the
State machinery and that is the raison d’etre in
prescribing the time frame” for conclusion of the
trial.

29. SectionIn Bablu Kumar and Ors. vs. State of Bihar

and Ors. as reported in (2015) 8 SCC 787 wherein it has been

held as follows:-

“22. Keeping in view the concept of fair
trial, the obligation of the prosecution, the
interest of the community and the duty of the
Court, it can irrefragably be stated that the Court
cannot be a silent spectator or a mute observer
when it presides over a trial. It is the duty of the
court, to see that neither the prosecution nor the
accused play truancy with the criminal trial or
Patna High Court CR. APP (SJ) No.268 of 2016
27/33

corrode the sanctity of the proceeding. They
cannot expropriate or hijack the community
interest by conducting themselves in such a
manner as a consequence of which the trial
becomes a farcical one. Law does not
countenance a ‘mock trial’. It is a serious concern
of the society. Every member of the collective
has an inherent interest in such a trial. No one
can be allowed to create a dent in the same. The
court is duty bound to see that neither the
prosecution nor the defence takes unnecessary
adjournments and take the trial under their
control. The court is under the legal obligation to
see that the witnesses who have been cited by the
prosecution are produced by it or if summons are
issued, they are actually served on the witnesses.
If the court is of the opinion that the material
witnesses have not been examined, it should not
allow the prosecution to close the evidence.
There can be no doubt that the prosecution may
not examine all the material witnesses but that
does not necessarily mean that the prosecution
can choose not to examine any witness and
convey to the court that it does not intend to cite
the witnesses. The Public Prosecutor who
conducts the trial, has a statutory duty to
perform. He cannot afford to take things in a
light manner. The Court also is not expected to
accept the version of the prosecution as if it is
sacred. It has to apply its mind on every
occasion. Non-application of mind by the trial
court has the potentiality to lead to the paralysis
of the conception of fair trial.

30. SectionIn Atma Ram Anr v. State of Rajasthan

reported in 2019 SCC OnLine SC 523, it has been held as

follows:-

“22. According to Section 366 when a
Court of Sessions passes a sentence of
death, the proceedings must be submitted to
Patna High Court CR. APP (SJ) No.268 of 2016
28/33

the High Court and the sentence of death is
not to be executed unless it is confirmed by
the High Court. Section 367 then proceeds
to lay down the power of the High Court to
direct further enquiry to be made or
additional evidence to be taken. Section
368, thereafter, lays down the power of the
High Court to confirm the sentence so
imposed or annul the conviction. One of the
powers which the High Court can exercise
is one Under Section 368 (c) of the Code
and that is to “acquit the Accused person”.

Pertinently, the power to acquit the person
can be exercised by the High Court even
without there being any substantive appeal
on the part of the Accused challenging his
conviction. To that extent the proceedings
under Chapter XXVIII which deals with
“submission of death sentences for
confirmation” is a proceeding in
continuation of the trial. These provisions
thus entitle the High Court to direct further
enquiry or to take additional evidence and
the High Court may, in a given case, even
acquit the Accused person. The scope of the
chapter is wider. Chapter XXIX of the Code
deals with “Appeals”. Section 391 also
entitles the Appellate Court to take further
evidence or direct such further evidence to
be taken. Section 386 then enumerates
powers of the Appellate Court which inter
alia includes the power to “reverse the
finding and sentence and acquit or
discharge the Accused, or order him to be
re-tried by a Court of competent jurisdiction
subordinate to such Appellate Court or
committed for trial”. The powers of
Appellate Court are equally wide. The High
Court in the present case was exercising
powers both under Chapters XXVIII and
XXIX of the Code. If the power can go to
the extent of ordering a complete re-trial,
the exercise of power to a lesser extent
namely ordering de novo examination of
Patna High Court CR. APP (SJ) No.268 of 2016
29/33

twelve witnesses with further directions as
the High Court has imposed in the present
matter, was certainly within the powers of
the High Court. There is, thus, no infraction
or jurisdictional error on the part of the
High Court.

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 SectionPandit Ukha Kolhe v. State of
Maharashtra : (1964) 1 SCR 926, as under:

“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
SectionRamanlal Rathi v. The State : AIR (1951)
Patna High Court CR. APP (SJ) No.268 of 2016
30/33

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 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.”

31. The same view has also been followd in SectionP.

Ramesh v. State as reported in 2019 SCC OnLine SC 929.

32. The Hon’ble Apex Court in the case of

SectionIssac @ Kishor v. Ronald Cheriyan reported in 2018(2) PLJR

57 (SC) dealt with a situation whereunder retrial could be

directed, explained under para-11 as follows:-

“10. Under Section 386(a) and (b)(i), the
power to direct retrial has been conferred upon the
Appellate Court when it deals either with an appeal
against judgment of conviction or an appeal against
acquittal (High Court). There is a difference
between the powers of an Appellate Court under
Clauses (a) and (b). Under Clause (b), the Court is
required to touch the finding and sentence, but
under Clause (a), the Court may reverse the order
of acquittal and direct that further enquiry be made
or the accused may be retried or may find him
guilty and pass sentence on him according to law.

11. Normally, retrial should not be
Patna High Court CR. APP (SJ) No.268 of 2016
31/33

ordered when there is some infirmity rendering the
trial defective. A retrial may be ordered when the
original trial has not been satisfactory for particular
reasons like…, appropriate charge not framed,
evidence wrongly rejected which could have been
admitted or evidence admitted which could have
been rejected etc. Retrial cannot be ordered when
there is a mere irregularity or where it does not
cause any prejudice, the Appellate Court may not
direct retrial. The power to order retrial should be
exercised only in exceptional cases.

12. SectionIn K. Chinnaswamy Ready v. State
of Andhra Pradesh and Another, AIR 1962 SC
1788, the accused had been convicted by the trial
court. The Sessions Court took the view that an
important piece of evidence held against the
accused was inadmissible and acquitted him. The
High Court in revision by the de facto complainant
held that the evidence held to be inadmissible by
the Sessions Court was admissible and set aside the
acquittal directing the accused to be retried on the
same charges. The Supreme Court agreed with the
High Court that the acquittal deserved to be set
aside. In para (7), this Court has spelt out what
could be termed as exceptional circumstances
which reads as under:-

“7. It is true that it is open to a High
Court in revision to set aside an order of acquittal
even at the instance of private parties, though the
State may not have thought fit to appeal; but this
jurisdiction should in our opinion be exercised by
the High Court only in exceptional cases, when
there is some glaring defect in the procedure or
there is a manifest error on a point of law and
consequently there has been a flagrant miscarriage
of justice. Sub-section (4) of Section 439 forbids a
High Court from converting a finding of acquittal
into one of conviction and that makes it all the
more incumbent on the High Court to see that it
does not convert the finding of acquittal into one of
conviction by the indirect method of ordering
retrial, when it cannot itself directly convert a
Patna High Court CR. APP (SJ) No.268 of 2016
32/33

finding of acquittal into a finding of conviction.

This places limitations on the power of
the High Court to set aside a finding of acquittal in
revision and it is only in exceptional cases that this
power should be exercised. It is not possible to lay
down the criteria for determining such exceptional
cases which would cover all contingencies. We may
however indicate some cases of this kind, which
would in our opinion justify the High Court in
interfering with a finding of acquittal in revision.

These cases may be: where the trial
court has no jurisdiction to try the case but has still
acquitted the accused, or where the trial court has
wrongly shut out evidence which the prosecution
wished to produce, or where the appeal court has
wrongly held evidence which was admitted by the
trial court to be inadmissible, or where material
evidence has been overlooked either by the trial
court or by the appeal court, or where the acquittal
is based on a compounding of the offence, which is
invalid under the law.

These and other cases of similar nature
can properly be held to be cases of exceptional
nature, where the High Court can justifiably
interfere with an order of acquittal; and in such a
case it is obvious that it cannot be said that the
High Court was doing indirectly what it could not
do directly in view of the provisions of Section
439(4)……”

33. From the lower court records, as discussed

hereinabove, it is apparent that learned lower court had sailed

with the trial in mechanical manner, without identifying the

status of the victim to be child within the definition of POCSO

Act and failed to exercise the privilege so provided under

Section 216 and Section217 of the CrPC by way of adding the charge
Patna High Court CR. APP (SJ) No.268 of 2016
33/33

and thus, by such activity, not only deprived of the victim to be

protected under the guise of the POCSO Act rather, also put the

court in deprivation of drawing of a presumption in accordance

with Section 29 and, exonerated the accused to rebut the

presumption.

34. That being so, by such lapses, allowed the

proceeding to sail in illegal manner whereupon, attracts

retrial/de novo trial.

35. Consequent thereupon, the judgment

impugned is set aside. Appeal is allowed.

36. The matter is remitted back to the learned

lower court to proceed afresh after invoking the provisions as

envisaged under Section 216, Section217 of the CrPC. Appellant who

is under custody is to be produced before the learned lower

court. Because of the fact that the appellant is under custody, the

learned lower court will endeavour to conclude the trial within

six months from the date of receipt of the lower court record.

(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE 18.09.2019
Uploading Date 18-12-2019
Transmission Date 18-12-2019

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