IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.727 of 2019
Arising Out of PS. Case No.-30 Year-2017 Thana- MAHILA P.S. District- Munger

RAJIV KUMAR Son of Late Batoran Choudhary Resident of Maa Ambe
Chowk, P.S.- Kasim Bazar, Distt – Munger. … … Appellant/s
Versus
THE STATE OF BIHAR … … Respondent/s

Appearance :

For the Appellant/s : Mr.Manoj Kumar Jha, Adv.

For the Respondent/s : Mr.Zeyaul Hoda, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT

29-08-2019 Appellant, Rajiv Kumar has been found guilty

for an offence punishable under Section 8 of the POCSO Act

and sentenced to undergo SI for three years as well as to pay

fine of Rs. 10,000/- in default thereof, to undergo SI for one

month, additionally, vide judgment of conviction dated

11.12.2018 and order of sentence dated 02.01.2019 passed by

Additional Sessions Judge-1st-cum-Special Judge, POCSO Act,

Munger in Mahila PS Case No. 30/2017 (G.R. No. 2820/2017).

2. Guria Devi (PW 1) gave her Fardbeyan while

she was at Sadar Hospital, Munger where her daughter, victim

aged about four years (name withheld), PW-1 was admitted on

07.11.2017 disclosing therein that on the same day at about 5.30

PM, while her daughter was playing outside her house, came

trembling weeping and began to wipe her thigh, private part

with a handkerchief. She out of anxiety inquired as to what has
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happened over which, she disclosed that Rajiv Kaka got some

adhesive fallen over her thigh as well as genital. She is also

feeling pain. Thereafter, she consoled her and then, she detailed

on query that while she was playing, Rajiv came, allured her

away to his house, got closed in a room and then directed her to

lie over a Chowki, where he after undressing himself came,

rubbed his penis over her genital and then tried to penetrate over

which, she began to cry. Till then, he got the adhesive substance

fallen over her genital as well as over her thigh. Thereafter, as

she was released, came to house and engaged herself in wiping

the aforesaid adhesive substance. After hearing all these things,

she has gone to the house of Rajiv in order to make a complaint

over which, his family members engaged in quarrel attracting so

many persons including her husband, whom she disclosed the

incident. After seeing the condition of the victim, they took her

to hospital where police and got her Fardbeyan.

3. After registration of Mahila PS Case No.

30/2017, investigation commenced followed with submission

of the charge-sheet facilitating the trial, meeting with ultimate

result, subject matter of the instant appeal.

4. Defence case as is evident from the mode of

cross-examination as well as statement recorded under Section
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313 of the SectionCrPC is that of complete denial. It has further

specifically been pleaded that houses of both i.e. prosecution

party as well as that of accused are contiguous to each other and

during course of construction of double storey, certain

projection of house of prosecution party was towards the house

of the accused and for that, the prosecution party was directed to

remove and during course thereof, there was an altercation and

in the aforesaid background, this false case has been instituted.

However, nothing has been adduced in defence.

5. In order to substantiate its case, prosecution

has examined altogether 8 PWs out of whom PW-1, Victim,

PW-2, Guria Devi, mother of victim, PW-3 Narain Chaubey,

PW-4, Chulhai Rajak, PW-5, Chandrashekar Pd. Sah, PW-6,

Shanta Suman, PW-7, Dr. Nishi and PW-8, Dr. Niranjan Kumar

as well as has also exhibited Ext-1, Fardbeyan, Ext-1/1,

Signature of attesting witnesses, Ext-2, Seizure list relating to

Panty, blue half pant and a dirty handkerchief, Ext-3, another

seizure list relating to undergarments of coca-cola colour, Ext-4,

Medical report, Ext-5, Statement of victim under Section 164

CrPC, Ext-6, Medical report relating to ascertainment of age of

the victim and Ext-7, FSL report. As stated above, nothing has

been adduced in defence.

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6. Learned counsel for the appellant while

assailing the judgment of conviction and sentence has submitted

that the finding recorded by the learned lower court is non

sustainable in the eye of law. To substantiate the same, it has

been submitted that none is an eyewitness to the occurrence.

Medical evidence is worthless as completely ruled out the intial

version, and so will give an adverse impact over the

genuineness of the prosecution case.

7. The only evidence, now remains is that of

victim. The status of the victim being of so tender age inspires a

clear-cut picturisation on two scores. The first one, vulnerable to

tutoring and the second one, she would not be able to recall the

memory after a lapse of such a long duration from the alleged

dated of occurrence. If the status of the victim is taken together

with the evidence of PW-2, she at paras-8, 9 has admitted that

projection of her house was towards the land of the accused but,

she has stated that at the time of construction of the house, she

on her own removed the projection but that was not the real

picture so, she was suggested otherwise being aggrieved

thereby, cause of false implication. In the aforesaid facts and

circumstances of the case, the evidence of the victim could not

be relied upon as her mother has taken all possible effort to take
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revenge.

8. Per contra, learned APP while supporting the

findings, has submitted that the appellant was charged for an

offence punishable under Section 376 IPC as well as Section 4

of the POCSO Act but, the evidence having been available on

the record, does not substantiate the same, on the other hand,

substantiated the case to be punishable under Section 8 of the

POCSO Act, whereupon, appellant has been convicted and

sentenced. So, the learned lower court after appreciating the

materials available on the record in its right perspective laid

down the judgment by holding the appellant to be guilty for an

offence punishable under Section 8 of the POCSO Act which

does not require interference.

9. PW-7 is the doctor who was one of the

members of the Medical Board constituted for determination of

the age of the victim and further being a Gynaecologist, she was

also directed to examine the victim. In her individual capacity,

she had examined the victim on 07.11.2017 itself but, her

objective finding happens to be adverse to the prosecution as

nothing has been found over the person as well as over the

genital of the victim. However, she perceived spot over apparel

which the victim was wearing at the time of examination and
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accordingly, those clothes were taken out and sealed and handed

over to the I.O. for chemical examination.

10. PW-8 is another member of the Medical

Board including that of PW-7 who was engaged in

ascertainment of the the age of the victim and the same has been

ascertained to be 4 to 5 years.

11. PW-6 is the I.O. who has recorded the

Fardbeyan of the victim and, also investigated the case. During

course thereof, apprehended the accused. Inspected the P.O.,

seized the undergarments of the victim as well as that of

accused, sent to the same for FSL examination. Recorded

statement of independent witnesses. Received supervision note

and then, after completing the investigation submitted charge-

sheet. During course of cross-examination, she at para-14 has

admitted that she had not mentioned in the case diary regarding

sealing of seized article but she had sealed. Those articles are

not present before her during course of deposition. In para-19,

she has stated that during course of inspection of the P.O., she

had not found spot of semen over the Chowki or at surrounding

nearby. At para-24, she has stated that she had not found any

spot over undergarment of the accused. Hence, she denied the

suggestion that her investigation happens to be a collusive one.
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12. Now coming to the remaining witnesses

i.e. Pws-3, 4, and 5, they are hearsay and so, their evidences

could be seen as corroborative in nature as admitted based upon

whatever been disclosed.

13. PW-2 is the informant. During her

examination-in-chief, she has reiterated the version. During

cross-examination at para-7, 8, 9 as disclosed above is with

regard to presence of house of the accused as well as she herself

contiguous to each other and further, during course of

construction of the house of the accused, she on her own

removed the projection of her house having towards land of the

accused though, at para-10, she was suggested contrary to it. In

para-12, she has stated that they have tried to carry out Rajiv

from his house but his family members protested and said that

he had not done anything. They did not remain as they carried

the victim to the hospital. In para-16, she has stated with regard

to statement being given by her as well as by the victim before

the police. In para-17, she has disclosed with regard to treatment

having been given to the victim at the hospital. Para-18 is

virtually, the gist of the occurrence and has stated that she has

seen some wound over genital as well as it was swollen. At that

very time, her daughter was wearing panty and Ganji. She has
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seen the spot of semen over the same. She herself removed the

semen from her thigh with handkerchief. Then she has stated

that those clothes were given by the doctor to the police. The

most surprising suggestion is at para-24 wherein, she was

suggested that no occurrence had taken place in the house of

Rajiv. Then she denied the suggestion that in the background of

land dispute, this case has been instituted.

14. PW-1 is the victim. In examination-in-chief,

she has stated that the occurrence took place about eight months

ago. It was evening. At that very time, she was playing at her

Darwaza. Rajiv took her to his house, closed the door and then

after undressing her, lied her down. He also lied upon her and

then, he had dropped something over her thigh, then she rushed

therefrom shouting. Then thereafter, she was taken to hospital

where she was treated. She has also given her statement before

the Magistrate.

15. During cross-examination at para-3, she has

stated that accused had not bitten her. At para-4, she has stated

that none has tutored her to depose. In para-5, she has stated that

on the date of occurrence itself, she was taken to the hospital. In

para-7, she has stated that at the time of occurrence, she had

worn half pant and Ganji. At para-8, she has stated that the
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house of Rajiv lies by the side of her house.

16. From the evidence available on the record, it

is needless to say with regard to status of PWs-2, 3, 4, 5, being

corroborative in nature falling under category of hearsay.

Evidence of PW-2, the mother has got additional relevance as

she had seen the activity of the victim while after coming to her

house, she began to remove the semen having over her thigh,

genital from a handkerchief. It is needless to say that from the

FSL report, Ext-7, presence of semen has been found over the

panty of the victim as well as over handkerchief. So, these

events interlink the assertion of the PW-1, the victim to the

effect that she was subjected to some sort of lecherous activity

and on that very score, she has properly identified the appellant

and the most surprising feature is that she was not at all cross-

examined over the material aspect.

17. The Hon’ble Apex Court in SectionGian Chand

others v. State of Haryana reported in 2013(4) PLJR 7 (SC) it

has been held:-

“11. The effect of not cross-examining a

witness on a particular fact/circumstance has been dealt with

and explained by this Court in Laxmibai (Dead) Thr. SectionL.Rs.

Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. Ors., AIR
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2013 SC 1204 observing as under:

“31. Furthermore, there cannot be
any dispute with respect to the settled legal
proposition, that if a party wishes to raise any doubt
as regards the correctness of the statement of a
witness, the said witness must be given an
opportunity to explain his statement by drawing his
attention to that part of it, which has been objected
to by the other party, as being untrue. Without
this, it is not possible to impeach his credibility.
Such a law has been advanced in view of the
statutory provisions enshrined in Section 138 of the
Evidence Act, 1872, which enable the opposite party
to cross-examine a witness as regards information
tendered in evidence by him during his initial
examination in chief, and the scope of this provision
stands enlarged by Section 146 of the Evidence Act,
which permits a witness to be questioned, inter-alia,
in order to test his veracity. Thereafter, the
unchallenged part of his evidence is to be relied
upon, for the reason that it is impossible for the
witness to explain or elaborate upon any doubts as
regards the same, in the absence of questions put to
him with respect to the circumstances which indicate
that the version of events provided by him, is not fit
to be believed, and the witness himself, is unworthy
of credit. Thus, if a party intends to impeach a
witness, he must provide adequate opportunity to
the witness in the witness box, to give a full and
proper explanation. The same is essential to ensure
fair play and fairness in dealing with witnesses.”

18. So, after having minute observation of the

evidence available on the record along with exhibits, it is found

and held that the findings so rendered by the learned lower court

does not attract interference. Consequent thereupon, instant

appeal sans merit and is, accordingly, dismissed.

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19. Appellant is under custody which he will

remain till saturation of the sentence.

(Aditya Kumar Trivedi, J)
perwez
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 02.09.2019
Transmission Date 02.09.2019