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Suraj Paswan vs The State Of Bihar on 7 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.3056 of 2017
Arising Out of PS.Case No. -11 Year- 2014 Thana -DEO District- AURANGABAD

Suraj Paswan S/o Satya Narayan Paswan, R/o Village- Panchokhar, P.S.- Deo,
District- Aurangabad.

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

Appearance:

For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Adv.

Mr. Mithilesh Kr. Singh, Adv.

Smt. Meena Singh, Adv.

For the State : Mr. Bipin Kumar, APP

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 07-03-2018

Appellant, Suraj Paswan has been found guilty for an

offence punishable under Section 4 of POCSO Act and sentence to

undergo R.I. for se ven years vide judgment of conviction dated

08.09.2017 and order of sentence dated 14.09.2017 passed by First

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

Aurangabad in G.R. No.02/2014, Deo P.S. Case No.11/2014.

2. Victim (name withheld), PW.1 gave her fardbeyan on

10.03.2014 at 09:00 PM while she was admitted at Deo Hospital

alleging inter alia that on the same day at about 06:00 PM she had

gone to meet natures call. As soon as she proceeded from her house,

her co-villager, Jai Prakash Paswan aged about 18 years, son of

Satendra Paswan, Mithilesh Paswan son of Briksh Paswan along

with two unknown persons whom, she claimed to identify, caught

hold her. She tried to raise alarm whereupon Jai Prakash Paswan

pressed her mouth and then, Jai Prakash Paswan and Mithilesh

Paswan took her in an orchard (Khari) where Jai Prakash Paswan

and Mithilesh Paswan committed rape one by one. She became
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 2

unconscious. After sometime, she regained sense and then

thereafter, she raised alarm whereupon, wife of Mahendra Pathak

came. She again became unconscious. When she regained sense she

found herself admitted at Deo Hospital where she is making her

statement in presence of her cousin brother as well as mother.

3. After registration of Deo P.S. Case No.11/2014

investigation commenced and concluded by way of submission of

charge sheet against four accused including the appellant

whereupon trial commenced concluded in a manner, subject matter

of instant appeal.

4. Defence case as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is of complete denial. However, neither oral nor documentary

evidence has been adduced.

5. In order to substantiate its case prosecution had

examined altogether thirteen PWs, PW.1 victim herself, PW.2-

Hewanti Kunwar mother of the victim, PW.3 Suman De vi, PW.4-Anuj

Sharma, PW.5 Yogendra Vishwakarma, PW.6-Basanti Devi, PW.7-

Upendra Singh, PW.8 Anand singh, PW.9 Om Prakash Kumar,

PW.10 Rajiv Ranjan Kumar, PW.11 Dr. Lalsa Sinha, PW.12 Dr. Ram

Bhajan Choudhary, PW.13 Dr. Bibhuti. Side by side had also

exhibited Ext.1-Fardbeyan, Ext.2-Signature on fardbeyan, Ext.3-

Formal signature of FIR, Ext.4-Signature of Om Prakash, Ext.5-

Signature of Dr. Lalsa Sinha, Ext.5/1-Supplementary report of

informant, Ext.5/2-Report of Medical Board. As stated above,

nothing has been adduced in defence.

6. Learned counsel for the appellant while challenging the
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 3

judgment impugned has submitted that the same happens to be

perverse in the background of the fact that (a) the victim as well as

appellant happens to be co-villager but, appellant has not been

named by her during fardbeyan, statement under Section 164 Cr.P.C

(b) there happens to be specific allegation at the end of the victim

that only Jai Prakash Paswan and Mithilesh Paswan, though there

happens to be presence of two more unknown persons, lifted her,

gagged her mouth, taken to orchard (Khari) where she was raped by

those two persons, then in that circumstance there was no occasion

for third to have his presence in between as well as, to commit rape

though, during course of her statement under Section 164 Cr.P.C.

she had alleged that all the four had committed rape.

7. Furthermore, it has also been submitted that during

course of trial when victim had, during course of victim exonerated

Jai Prakash Paswan and Mithilesh Paswan, then in that

circumstance, her evidence would not have been accepted by the

learned lower court as, being unreliable in order to identify the

appellant to be one of the rapist. That being so, the evidence of the

victim of a rape, though has been found lies on upper pedestal and

has to be accepted as creditworthy, trustworthy, reliable unless and

until there happens to be cogent ground to discard. So far instant

case is concerned, from the evidence of the victim, it is apparent that

she happens to be unreliable and that being so, she lacks the

intensity in her evidence to justify the finding recorded by the

learned lower court.

8. Furthermore, magnifying the issue it has been

submitted that being co-villager it was expected at the end of the

victim to have properly identify the appellant, even in presence
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 4

thereof, there should have been positive, concrete evidence to

connect the appellant with the commission of rape. During course of

investigation appellant was not at all put on T.I. Parade. It is not the

rule that there should be always a T.I. Parade but, in the facts and

circumstances of the case, it was necessary and, the conduct of the

victim did not justify recognition of the appellant in court for the first

time at her end to be one of the culprit.

9. Furthermore, it has also been submitted that when

evidence of PW.1 is taken together with the other PWs, it is apparent

that they completely disowned any kind of occurrence having been

committed with the victim. Therefore, commission of rape is not at

all found duly substantiated more particularly by the appellant. That

being so, the judgment of conviction and sentence impugned is fit to

be set aside.

10. On the other hand, while refuting the submission

having made on behalf of learned counsel for the appellant, the

learned Additional Public Prosecutor has submitted that from the

medical evidence it is crystal clear that victim was raped. It has also

been submitted that though, appellant has not been named at initial

stage but during course of trial has been properly identified by the

victim to be one of her rapist whereupon, the finding so recorded by

the learned lower court did not attract interference.

11. PW.11 is Dr. Lalsa Sinha who was one of the member

of the board which was constituted by an order of Deputy

Superintendent for examination of the victim whom the board had

examined on 11.3.2014 and found the following:

1. Black til on left, 2. one black teel on right
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 5

cheek teeth 14/14 total 28 teethes. Dental
opinion by Dr. Vibhuti Parsanna report
attached. Secondary sexual character L.M.P.
22.2.14 as per statement given by her. Auxiliary
and pelvic hair developed, breast developed,
Auxiliary pubic hair curse black and curly.

General examination:-She is intelligent
adolescent looking well oriented in time and
space get normal. She is passing stool and urine
normally and washed her private part after the
incident. Injuries present over body. Multiple
small abrasion of different shapes and sizes
present over lower back with slight crushed on
surface and tendered to tough. Cause of injury-
friction on rough surface. Age of injury-24
hours.

(2) One round abrasion 5 mm x 5 m.m. on the
back of right elbow covered with crushed red-

dish in colour. Duration of injury written 24
hours. Cause of injury friction and rub on hard
surface.

(3) Multiple small abrasion on enterior surface of
both legs of different sizes in different direction
red-dish to deep red-dish looking. Cause of
injury friction by some rough object. Age of
injury within 24 hours.

(4) Pelvic examination:-Hymen raptured in
vagina admits one finger easily slight in direction
with redness seen on the fourth tee tenderness
to tough duration of 24 hours. Cause of injury
sexual act. No abnormal discharge no form body
seen rigor surfeit taken and sent to pathological
examination. Victim admitted for radiological
examination. No stencil on the surface of Salwar
opinion reserved till reports coming. Second
supplementary pathological and radiological
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 6

reports of Runa Kumari as above mentioned.

Pathological. Report submitted by Dr. R.B.

Choudhary. Report attached. As per his report
no spermatozoa found on either sides.

Radiological report by Dr. M.P. Sinha. Report
attached. Xray plate no.20593/dated 11.3.14 as
per his report of X-ray.1. X-ray right wristLAT
partial furrier of radios and ulna. 2. X-ray right
elbow. A.P. lateral head of radium Loleta none
process of ulna fused. 3. X-ray pelvis. A.P. vies
left pressed not found. 4.X-ray chest A.P. view
estronoclavichor joint not fused. X-ray face
lateral view right and left 7-1/1/7/7-1-1/728
teeth spacing present for eruption of third moral.
Opinion regarding sexual act on the basis of
finding disturb above. She seems to undergone
(sexual act recently with injuries caused over
body suggestion sign of struggle of victim on the
basis of general appearance. Dentist finding and
radiological finding members of broad opined
age of victim girl approximately 16.1/2 to 17.1/2
years. She has also stated that both reports are
in her pen and also hears the signature of board
members namely Dr. Vibhuti Parsanna, Dr. R.B.
Choudhary and Dr. M.P. Sinha. Both reports
has already been marked as Exts.5 and 5/1.

PW.10, PW.12 and PW.13 are other members of the

Board who had affirmed their presence, examination, finding.

12. As per medical report, although the same happens to

be contrary to the direction having given by the Apex Court time to

time that the age of the victim should not be ascertained, on the

basis of the medical report exclusively rather it should be

ascertained in accordance with the procedure, having prescribed

under Juvenile Justice Act to ascertain the age of Juvenile in conflict
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 7

as held with law in Jarnail Singh Vs. State of Haryana reported in

2013 Cr.L.J. 3976 and in State of M adhya Pradesh vs. Anoop

Singh reported in (2015) 7 SCC 773. However, the age of the victim

has been ascertained in between 16 ½ to 17 ½ years. That means to

say giving benefit of plus two years, victim happens to be major and

in the aforesaid background, there would not be application of

POSCO Act.

13. Now coming to other aspect, it is evident that PW.2

who happens to be her mother had simply corroborated the story of

teasing of the victim that too by unknown persons whereupon she

was declared hostile, even then nothing has been procured by the

prosecution and the same status happens to be with regard to

remaining material witnesses i.e. PW.3, PW.4, PW.5, PW.6, PW.7,

PW.8. That means to say there witnesses not only discarded event of

rape, rather having been teased that too by unknown persons.

14. Now remains sole testimony of PW.1, the victim. She

had shown her age to be 16 years on the date of her examination she

had deposed that she was raped about ten months ago. It was 06:00

PM. At that very time, she proceeded to meet natures call. She was

caught hold by Suraj then, after gagging her mouth she was taken

towards khand where shrubs were there and then she was raped.

She was raped by Suraj. Others fled away. She could not identify

others who were along with Suraj nor she knew them by name. At

that very time she was not conscious. After regaining her sense she

found herself at hospital. Police came at hospital. She was at Deo

Hospital. Police took her statement and then thereafter she put her

signature over the same after properly hearing, understanding the

same. Mother and her cousin brother were present at that very time
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 8

at the hospital who also to be signature (exhibited). Police had se ized

her apparel including panty. Identified the accused (appellant Suraj)

rest were not identified. During cross-examination on behalf of Jai

Prakash Paswan and Mithilesh Paswan she had categorically stated

that she was not raped by Jai Prakash Paswan and Mithilesh

Paswan. She had further stated that she had not named them

during course of statement before the police. She had not named

them during course of further statement. Then had said that she

knew only to sign. Fardbeyan was not read to her in presence of her

mother as well as brother. On behalf of Ravikant she had stated that

whatever been deposed by her, happens to be fully understood by

her. On behalf of Suraj (appellant) she had stated that she happens

to be her co-villager but she is not identifying him. Then had stated

that she could identify after seeing her. In para-7 she had stated that

her statement was recorded in court at an earlier occasion wherein

also, she had named Suraj. Then at para-9 had stated that she had

put her signature over the statement which was read over to her and

then, after getting it correct, she put her signature. She had also

stated that just after regaining her sense, she had disclosed

regarding the occurrence to her mother. In para-10 she had stated

that she was raped for an hour. It was not dead of night. In para-13

she had stated that her house lies 4-5 steps away from the place of

occurrence. While house of Suraj lies twenty meter away from the

place of occurrence. Again said that she had not seen house of Suraj

so, unable to disclose the same. In para-14 she had stated that she

was not acquainted with Suraj since before the occurrence.

15. PW.9 is the Investigating Officer. He had stated that on

10-03-2014 he was entrusted with the investigation of the case.
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 9

Accordingly, he visited place of occurrence. The place of occurrence

happens to be a land situated eastern-south side of Khari of the

barren land of Sunil Singh. Waste materials were found accumulated

thereupon. Panty was seized therefrom which belong to the victim as

was identified by her sister. Then had disclosed boundary of the P.O.

East-Surendra Pathak, West-Markat Pandey and then house of

Anjan Singh and then house of victim, North-house of Ramesh Sinha

and South-House of Pramod Pathak. He had examined witnesses,

recorded further statement of the victim, got the victim examined

under Section 164 Cr.P.C., apprehended the accused, procured

medical report, received supervision note, sent the seized material

for forensic examination and then submitted charge sheet. During

cross-examination nothing substantial is found. PW.10 is the formal

witness who had simply exhibited formal FIR.

16. After giving anxious consideration towards the

evidences having adduced on behalf of prosecution, it is apparent

that from PW.2 to PW.8 have not supported case of the prosecution.

The most devastating event to the prosecution happens to be, in

spite of discloser by the victim that she had narrated the occurrence

to her mother and cousin, who also stood as FIR attesting witness,

did not opt to corroborate the same. With regard to evidence of

doctors, it is evident that though the status of the victim is found to

be major but, there happens to be presence of injuries over the

person of the victim more particularly over her vagina and further

the doctor had also opined that she was subjected to sexual

intercourse recently. So, it is found supporting the case that she was

subjected to sexual intercourse.

17. It has been settled at rest by catena of decisions that
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 10

the evidences of victim, unless and until there happens to be cogent

ground or some sort of deficiency is found persisting, should be

accepted. More recently, in Mohd. Ali v. State of U.P. reported in

(2015) 7 SCC 272, it has been held:

“30. True it is, the grammar of law permits that
the testimony of a prosecutrix can be accepted
without any corroboration without material
particulars, for she has to be placed on a higher
pedestal than an injured witness, but, a pregnant
one, when a court, on studied scrutiny of the
evidence finds it difficult to accept the version of
the prosecutrix, because it is not unreproachable,
there is requirement for search of such direct or
circumstantial evidence which would lend
assurance to her testimony. As the present case
would show, her testimony does not inspire
confidence, and the circumstantial evidence
remotely does not lend any support to the same. In
the absence of both, we are compelled to hold that
the learned trial Judge has erroneously convicted
the appellant-accused for the alleged offences and
the High Court has fallen into error, without
reappreciating the material on record, by giving the
stamp of approval to the same.”

18. Now the evidence of PW.1 has to be tested within the

ambit of aforesaid frame work. Before adjudicating upon her

testimony, it is apparent that nothing has been cross-examined at

the end of the appellant with regard to her previous testimony

relating to her fardbeyan as well as her statement under Section 164

Cr.P.C coupled with her statement under section 161 of the Cr.P.C.

That being so, whatever deficiency does exist on the score of some

sort of unworthiness attributed against the victim that has not been

properly exposed at the end of the appellant and so, that part

remained unshattered save and except from para-9 of her cross-

examination it is apparent that she was tested over fardbyean

whereupon she had stated that before putting her signature over

fardbeyan same was read over to her as well as in presence of her
Patna High Court CR. APP (SJ) No.3056 o f 2017 dt.07-03-2018 11

cousin, mother and if it is taken together with the examination-in-

chief, the same is found duly substantiated. Furthermore, she had

also admitted that her statement was also recorded by the

magistrate. After perusal of both the statement, it is crystal clear

that name of appellant did not find place. Then in what basis she

has been charge sheeted was expected at the end of Investigating

Officer to be properly explained, wherein he failed. Though, PW.1

was not declared hostile which she ought to have been, but in the

fact and circumstances o the case, her testimony implicating the

appellant to be her rapist could be found truthful as, during

examination-in-chief, she identified the appellant by name as well as

also identified in dock, but during cross-examination, she

specifically stated that she was not knowing him since before. Thus,

the evidence in its entirety clearly suggest that prosecution could not

be able to substantiate its case.

19. That being so, the judgment of conviction and sentence

recorded by the learned lower court is set aside. Appeal is allowed.

Appellant is under custody, hence is directed to be released

forthwith, if not wanted in any other case.

(Aditya Kumar Trivedi, J.)

Prakash Narayan

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 13.03.2018
Transmission 13.03.2018
Date

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