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Rajesh Kumar vs The State Of Bihar on 9 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.3372 of 2017
Arising Out of PS.Case No. -14 Year- 2013 Thana -M AHILA P.S. District- SEKHPURA

Rajesh Kumar, S/o Ram Briksh Saw, Resident of Village- Jaymangla,
P.S.+District- Sheikhpura.

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

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Rakesh Kumar Sharma, Advocate
For the State : Mr. Sadanand Paswan, APP

CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
ORAL JUDGMENT
Date: 09-03-2018

Rajesh Kumar, the appellant has been convicted

under Section 366(A)/34 of the Indian Penal Code by judgment dated

13.09.2017 passed by the learned Special Judge (POCSO Act

ST/ST Act)-cum-Additional Sessions Judge, 1st, Sheikhpura in

connection with SC/ST Case No. 54 of 2014, arising out of

Sheikhpura Mahila P.S. Case No. 14 of 2013 and by order dated

18.09.2017, he has been sentenced to undergo rigorous imprisonment

for five years, to pay a fine of Rs. 10,000/- and in default to payment

of fine, to suffer further rigorous imprisonment for six months.

2. The appellant is said to have kidnapped the
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victim girl aged about thirteen years (at the time of the occurrence)

and is also alleged to have subjected her to sexual intercourse.

3. The case of the prosecution is based on the

written report of Khakhri Devi, the mother of the victim girl, who has

been examined as P.W. 4 at the trial. In her written report which was

lodged on 03.05.2013, she has stated that on 27.04.2013, her daughter

viz. Khushboo Kumari aged thirteen years and student of Class-IX

was taken away while she and her daughter had gone to witness

Ramleela in the village. It was alleged by P.W. 4 that at the time when

her daughter was taken away, she was wearing gold ornaments. On

information to her that the appellant and two others have kidnapped

her daughter, she went to the house of the accused persons but was

abused and assaulted. On the basis of the aforesaid written report, a

case vide Sheikhpura Mahila P.S. Case No. 14 of 2013 dated

03.05.2013 was instituted for the offences under Sections 341, 323,

504, 506, 366(A) and 34 of the Indian Penal Code.

4. The police, after investigation submitted

charge-sheet, whereupon cognizance was taken and the case was

committed to the Court of Sessions for trial.

5. Learned Trial Court first examined eight

witnesses and thereafter on the insistence of the prosecution, framed

charge against the appellant under Section 6 of the Protection of
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Children From Sexual Offences Act (in short POCSO Act), 2012.

After framing of charge under Section 6 of the POCSO Act, out of

aforesaid eight witnesses, four witnesses were again examined and

thereafter, by the judgment and order of conviction and sentence

referred to above, the appellant was convicted and sentenced as

aforesaid.

6. The appellant was however acquitted of the

charges under Section 6 of the POCSO Act and Section 3(1)(X)(XI)

SC ST (Prevention of Atrocities) Act.

7. Learned counsel appearing for the appellant

has assailed the impugned judgment and order of conviction on

several grounds, some of them being that the deposition of the

witnesses including that of the victim are absolutely discrepant and

that it was highly unsafe for the Trial Court to have relied upon the

same for convicting the appellant under Section 366(A)/34 of the

Indian Penal Code. The F.I.R was registered after an unusually long

time and the explanation for such delayed lodging of the F.I.R is

absolutely unconvincing and, therefore, unacceptable. The victim

prevaricated in her statement before the Trial Court and finally never

turned-up in the witness box after the framing of charge under Section

6 of the POCSO Act. The Trial Court did not consider the fact that

two other persons along with the appellant were named but charges
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against them could not be established and that the conviction has only

been recorded under Section 366(A)/34 of the Indian Penal Code

which is not in consonance with the prosecution version at all.

8. In order to appreciate the contention on behalf

of the appellant, it would be necessary to go through the deposition of

the witnesses.

9. The mother of the victim/informant of this

case, who has been examined as P.W. 4 has deposed that on the day

when she along with her daughter had gone to witness Ramleela, her

daughter left her company for drinking water. She did not arrive for

quite some time and this forced the P.W. 4 to raise hue and cry. Some

of the persons present in the Ramleela informed her that the appellant

and one Gopal as well as Yogendra have taken her daughter to some

unknown destination. She, therefore, is said to have gone to the

houses of the co-accused persons but none of them were present in

their houses. The family members of the appellant and others abused

her and refused to hand over the daughter to her. She came back home

and thereafter lodged the case. On her own, she has deposed before

the Trial Court that the appellant asked her to search for her daughter

and that he would also help her in searching her. Again after 6-7 days,

a case was filed by her. She could meet the victim only after one and

half month. The victim girl disclosed before her that she was kept in
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Surat where she was subjected to rape. The victim girl was taken to

the Police Station where she was kept for about four days. Her

medical examination was done. It was also deposed by the aforesaid

witness that she had become pregnant but before she could deliver,

she started bleeding aborted. She has identified the appellant and

others in the dock.

10. After the addition of Section 6 of the POCSO

Act, the mother of the victim/informant P.W. 4 was again brought to

the Trial Court and was examined as P.W. 2. In the later deposition

before the Trial Court, she has made various improvements in her

earlier version. Later, she has deposed that when her daughter went

missing, she started looking for her but she could not find her. She

went back to her home and informed her husband. The villagers told

her that the appellant and two others viz Gopal and Yogendra (since

acquitted) have kidnapped her daughter. She herself went to the house

of the appellant where she did not meet anybody. Later, she again on

her own stated that the parents of the appellant met her and did not

treat her properly. While she was about to go to Serari for lodging a

case, the Officer-in-charge of Sheikhpura Mahila Police Station

assured her that he would search for her daughter. It took her almost

about a month in searching her daughter but one month later, while

she and her husband came to the railway station for going to
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Lakhisarai, she saw the victim at the railway station. On enquiry, she

is said to have told her that she was taken to Surat and the person who

had taken her to Surat only had reached her to Sirari railway station

and thereafter fled away. P.W. 4 has further stated that her daughter

stated the name of the appellant and two other accused persons viz.

Gopal and Yogendra.

11. What is surprising in her deposition is that

she has stated that her daughter told her that the aforesaid three

persons including the appellant fought among themselves for

marrying her daughter. The appellant was also alleged to have hit the

victim in her stomach. However, in her cross-examination, she has

stated that on the day of the occurrence i.e. on the day when her

daughter went missing, her husband was at Chandigarh and came

back only after few days. The husband of P.W. 4 was informed on

telephone.

12. From the deposition of the aforesaid witness,

learned counsel for the appellant has submitted, that no head or tale of

the story can be discerned. The entire story has been changed several

times. A different version was narrated in the written report from what

was deposed before the Court. It has further been submitted that it is

difficult to believe P.W. 4 for the simple reason that initially, she has

stated that she informed her husband after coming back home from
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Ramleela but later, after another charge was added, she stated before

the Trial Court that on the day that her daughter went missing, her

husband was in Chandigarh and came back only after six days. P.W. 3

has made different statement even with respect to her having gone to

the house of the appellant and others alone.

13. Thus, it has been submitted that the main

person who brought the criminal case into existence has not withstood

the rigors of cross-examination and has spoken something which goes

to the root of the matter.

14. The husband of P.W. 4 viz Balmiki Ram,

who is the father of the victim, has also been examined as P.W. 1. His

statement also is replete with contradictory statement which makes it

very obvious that he has only conjured up the facts for the purposes of

getting the appellant convicted and sentenced. He has deposed that in

the night of the occurrence, Ramleela was being performed in his

village, where his wife and daughter had gone for witnessing the same

but he stayed back at home. From the Ramleela, his daughter was

taken away by the miscreants. Their names were stated to be as that of

the appellant and two others. This information was given to him by

his wife. When the aforesaid prosecution witness went to the houses

of the aforesaid three accused persons including the appellant, they

were not found present in their houses. Their family members started
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abusing him. After the addition of Section 6 of the POCSO Act, he

was again examined at the trial as P.W. 1. In the later deposition, he

has stated that the Officer-in-charge of the Police Station assured him

that he will make efforts to find out his daughter and only thereafter

he would register the case. After that, the F.I.R was registered after 5-

6 days. A month later, he met his daughter who had detrained at

Lakhisarai. He was informed at the station by his daughter that the

appellant and two others had taken her away. This information was

given to him by his daughter only in the Police Station. The

information regarding his daughter having been ravished also was

given by her daughter at the Police Station.

15. This witness also does not appear to be

trustworthy for the different kinds of statements which he had made

before the Trial Court on two occasions.

16. Mannu Kumar @ Abhimanyu Kumar,

brother of the victim has been examined as P.W. 2 and the aforesaid

witness was not examined again after the addition of the charge under

Section 6 of the POCSO Act. He is only a hearsay witness who has

not spoken anything which should be taken advantage of for

unravelling the prosecution version.

17. The victim, who has been examined as P.W.

3 has also narrated a very different story. She alleges to have been
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kidnapped by the appellant and two others by gagging her on the point

of weapon. All the three i.e. the appellant and his two associates raped

her, whereafter she became unconscious and thereafter she could not

know where she was being taken. She has stated that all the three

accused persons wanted to marry her and on that issue, they fought

amongst themselves. The uncle of the appellant dropped her at Sirari

railway station and from there she came to the Mahila Police Station

and gave her statement. The aforesaid witness/victim, despite all

processes having been exhausted by the Trial Court, never turned up

again to depose after the addition of Section 6 of the POCSO Act

against the appellant.

18. Learned counsel for the appellant, therefore

has submitted that the evidence of the prosecutrix/victim cannot now

be taken into account as it would seriously prejudice the case of the

appellant. Her non-examination after the addition of the additional

charge renders her earlier statement completely inadmissible in the

eyes of law.

19. One Chandan Kumar, who has been

examined as P.W. 5 has become hostile and has not supported the

prosecution version.

20. The Investigating Officer of this case has

been examined as P.W. 6 who has only stated that he recorded the
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statements of the witnesses and had also got the 164 Cr. P.C.

statement of the victim recorded. He had sent the vaginal swab for

examination to the Forensic Science Laboratory. The victim,

according to P.W. 6, was examined on 14.06.2014 and her age was

assessed as 16 years. He has submitted the charge-sheet in the case.

21. Soni Devi and Gayatri Devi have been

examined as P.Ws. 7 and 8. Soni Devi has been declared hostile

whereas Gayatri Devi only claimed to be hearsay witness. She did not

identify the appellant as he did not hail from the same village.

22. The Medical Officer, who had examined the

victim, was brought to the witness box only after addition of Section 6

of the POCSO Act, who has deposed that she did not find any

evidence of rape. She has stated that a Medical Board had been

constituted which was requested by the Civil Surgeon for examination

of her age. The victim was examined by the Board and her age was

assessed at 16 years. She was part of the Medical Board which had

examined the victim. She has identified the signature of the other

members of the Medical Board (Ext-5).

23. Thus, from the conspectus of the evidence of

the aforesaid witness, it appears that the witnesses have faltered at the

trial and have not spoken consistently. Most of the witnesses are

hearsay witnesses who have neither seen the appellant taking away the
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victim or of her having been subjected to any sexual intercourse.

24. For the paucity of any evidence with respect

to rape of the victim and the appellant and others having not

committed the offence under Section 3(1)(X)(XI) of the SC ST

(Prevention of Atrocities) Act, the appellant was not convicted under

the aforesaid Section and was acquitted.

25. Thus, this Court finds that there is an

inordinate delay in lodging of the F.I.R and the explanation which has

been offered by the parents of the victim is highly unbelievable. The

medical evidence with respect to rape is also lacking. The victim had

come back to Sirari railway station of her own. The witnesses have

also not disclosed the names of the persons who had told them that

appellant and two others had taken away the victim.

26. In the absence of the victim’s deposition after

the addition of charge, even the identification of the appellant by her

in the dock looses all relevance.

27. Finding no cogent evidence against the

appellant, this Court is left with no option but to set aside the

judgment and order of conviction and sentence.

28. The appeal thus succeeds and the judgment

and order of conviction against the appellant are set aside.

29. The appellant is in custody. He is directed to
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be released forthwith, if not required in any other case.

30. A copy of the judgment be transmitted to the

Superintendent of the concerned Jail for information, compliance and

needful.

(Ashutosh Kumar, J)

Shageer/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 13/03/2018
Transmission 13/03/2018
Date

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