Patna High Court
Pradeep Srivastava vs The State Of Bihar on 11 September, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1133 of 2024
Arising Out of PS. Case No.-850 Year-2019 Thana- TURKAULIYA District- East
Champaran
======================================================
Pradeep Srivastava S/O Lalan Srivastava R/O Village- Chilwaniya, P.S-
Turkaulia (Banjariya), Distt.- East Champaran.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant/s : Mr.Sudhir Kumar Singh, Advocate
Mr.Priyesh Kumar, Advocate
For the Respondent/s : Mrs.Anita Kumari Singh, Addl.PP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 11-09-2024
Heard Mr. Sudhir Kumar Singh, learned counsel
appearing on behalf of the appellant and Mrs. Anita Kumari
Singh, Additional Public Prosecutor for the State.
2. The present memo of appeal has been filed for
setting-aside the judgment of conviction dated 28.01.2023
and order of sentence dated 09.02.2023 passed by learned
6th Additional Sessions Judge-cum-Special Judge, POCSO
Act, East Champaran, Motihari in connection with P.Tr. No.
14/2020 arising out of Turkauliya (Banjariya) P.S. Case No.
850 of 2019, whereby and whereunder the learned trial
court has awarded with rigorous imprisonment of ten (10)
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years with a fine of Rs. 20,000/- under Section 4(1) of the
POCSO Act, in default of payment of fine, S.I. of one month.
Further, convict is ordered to undergo S.I. of five (5) years
with a fine of Rs. 10,000/- under Section 10 of the POCSO
Act, in default of payment of fine, S.I. of fifteen (15) days.
Further, the learned trial court convicted the appellant to
undergo imprisonment of seven (7) years with a fine of Rs.
10,000/- for the offence under Section 363 of the Indian
Penal Code and in default of payment of fine, convict is
ordered to undergo S.I. of one month and further ordered
that all the sentences shall run concurrently.
3. The brief facts of this case as it appears from
the written information of the father of victim (PW-2), that
while his minor daughter aged about 12 years, was going to
'Chhath Ghat' on 03.11.2019 at around 4:00 a.m., two
accused persons namely, Pradeep Srivastava (appellant)
alongwith co-accused Suman Srivastava forcibly dragged and
seated her in the middle of their motorcycle and taken away
towards Ambika Nagar. The informant alleged that some
villagers had seen that accused persons were taken away his
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minor daughter on the motorcycle. The villagers informed
the informant regarding the occurrence, thereafter the
informant alongwith family members followed the accused
persons but they were not caught. The informant stated that
when he reached at the house of the accused persons and
met with their father, he assured him to return his minor
daughter. The informant further stated that he never made
any application to the concerned police station regarding the
occurrence. He stated that the accused persons left his minor
daughter at 'Chati Mai' after 8 to 10 days of the occurrence.
He alleged that the accused namely, Pradeep Srivastava
(appellant) repeatedly raped his minor daughter ten days of
her captivity and also abused him by taking caste name and
threatened him that he will upload the photos and video,
which he has created with his daughter during the aforesaid
period. He further stated that when his son opened the social
media account on facebook, he found those photos and
videos were uploaded. Thereafter, the informant lodged the
present F.I.R.
4. On the basis of aforesaid written report, police
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drawn formal F.I.R. being Turkauliya (Banjariya) P.S. Case
No. 850 of 2019 registered for the offence punishable under
Section 363, 366(A), 376 and 34 of the Indian Penal Code
read with Section 4/8 of the Protection of Children from
Sexual Offence Act and Section 3(i)(r)(w) of Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities), Act.
After conclusion of investigation, police submitted charge-
sheet being No. 21/2020 dated 27.02.2020 and, on the
basis of which, cognizance was taken against the accused
persons under section 363 and 365 of the I.P.C. read with
section 8 of the POCSO Act on 18.03.2020 but upon perusal
of materials collected during investigation, charges were
framed against the accused persons under Section 363, 365,
370, 376(3) of the I.P.C. alongwith Section 4, 10 & 14 of
the POCSO Act, Sections 3(i)(w) of the SC/ST (POA) Act &
Section 67(B) of the I.T. Act on 09.09.2021.
5. Learned trial court explained the aforesaid
charges to appellants/accused, which he pleaded "not guilty"
and claimed trial.
6. To establish its case before the learned trial
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court, the prosecution altogether examined total Seven (7)
witnesses including the minor victim, which are as under: -
PW-1 namely, x (victim)
PW-2 namely, Umesh Paswan (informant and
father of the victim)
PW-3 namely, Manorama Devi (mother of the
victim).
PW-4 namely, Ramesh Ram
PW-5 namely, Dr. Manoj Kumar
PW-6 namely, Santosh Kumar Singh (I.O.)
PW-7 namely, Pramod Kumar Paswan (Braj In-
charge Police Line)
7. The prosecution has produced and relied upon
following documentary evidences also as to substantiate its
case during trial, which are as under:
Exhibit List of documents
No(s).
Exhibit-1 Statement of the victim u/s 164 Cr.P.C.
Exhibit-1/1 Signature of victim on her statement u/s 164
Cr.P.C.
Exhibit-2 Age determination report of the victim
Exhibit-2/2 Signature of victim on her age determination
report.
Exhibit-3 Written complaint.
Exhibit-3/1 Thumb impression of informant on his written
complaint.
Exhibit-4 Arrest Memo
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Exhibit-5 Formal F.I.R.
8. After examination of prosecution witnesses and
by taking note of evidence and incriminating circumstances
as surfaced during trial, statement of accused/appellant was
recorded under Section 313 of the Cr.P.C. on 23.03.2022
which was denied by the appellant in totality by claiming his
complete innocence and false implication.
9. On the basis of evidences as surfaced during the
trial, the learned trial court convicted and sentenced the
appellant/convict, in aforesaid terms. Being aggrieved of
which present appeal was preferred.
10. Hence, the present appeal.
Submission on behalf of the appellant/convict
11. While arguing the argument, Mr. Sudhir Kumar
Singh, learned counsel appearing on behalf of the appellant
submitted that mainly on two main scores the present
judgment of conviction as recorded by the learned trial court
is fit to be set-aside/quashed. In support of his submission,
it is submitted firstly, that the victim during the trial could
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not proved by the prosecution as 'child' within the meaning
of Section 2(i)(d) of the POCSO Act as only document in
support of her death of birth was medical examination report
i.e. Exhibit '2' showing the date of birth of victim between
15 to 16 years. It is submitted that victim was not declared
'child' on the basis of document as referred under Section
94(2) of the Juvenile Justice (Care and Protection of
Children) Act, 2015 (hereafter referred to as the "J.J. Act"),
which also approved by Hon'ble Supreme Court through its
legal report as available through Jarnail Singh Vs. State of
Haryana reported in (2013) 7 SCC 263.
12. The second issue, which was raised by learned
counsel for the appellant/convict, is that deposition of victim
qua occurrence is not of sterling quality and, therefore,
conviction, as recorded to be set-aside in want of any further
corroboration.
13. It is submitted that no doubt the conviction can
be recorded on the sole testimony of victim, but it must be
trustworthy, unblemished and should be of sterling quality.
In support of his submission, learned counsel relied upon of
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Hon'ble Supreme Court as available through Krishna
Kumar Malik v. State of Haryana, (2011) 7 SCC 130
and also relied upon Rai Sandeep @ Deepu, v. State
(NCT of Delhi), reported in (2012) 8 SCC 21.
14. Learned counsel for appellant/convict also
relied upon the legal report of Hon'ble Apex Court as
available through Rajak Mohammad Vs. State of
Himachal Pradesh, reported in (2018) 9 SCC 248; where
it has been held that determination of age on the basis of
radiological examination be not accepted accurate
determination and sufficient margin either way has to be
allowed.
15. While concluding argument, it is submitted by
learned counsel that even the Investigating Officer/PW-7 of
this case failed to established the place of occurrence as he
categorically deposed during the trial that he did not visited
the place of occurrence during investigation of this case and,
therefore, considering aforesaid, the impugned judgment of
conviction qua appellant is fit to be quashed/set-aside.
16. Learned A.P.P. for the State, Mrs. Anita Kumari
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Singh, while opposing the appeal of the appellant/convict,
submitted that the victim specifically deposed against the
appellant to commit rape upon her, while she was sleeping in
her room. It is submitted by learned A.P.P. that minor
contradictions are bound to be surfaced during the trial and,
on this score alone, conviction, as recorded by learned trial
court, cannot be viewed with doubt. It is also submitted that
as per radiological examination victim appears minor i.e. less
than 18 years on the date of occurrence and, therefore,
conviction as recorded under POCSO Act is also justified and,
as such, the judgment of conviction as recorded by learned
trial court, is not required to be interfered.
17. I have perused the trial court records carefully
and gone through the evidences available on record and also
considered the rival submissions as canvassed by learned
counsel appearing on behalf of the parties.
18. As to re-appreciate the evidences, while
dealing with present appeal, it would be apposite to discuss
the evidences as available on record, which are as under:-
19. PW-1 namely, X/victim, who is the most
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important witness of the occurrence, deposed during the trial
explaining the occurrence that on the day of "Chhath Puja"
while she was sleeping in her room, in early morning,
appellant entered her room and committed rape upon her.
She also deposed that she was taken far away from her
house, where rape was also committed upon her. It was
further deposed categorically that she was traced by police
and thereafter she was brought back to her home. She
deposed that nobody had witnessed her while she was taken
away by the accused persons. She deposed that she was
kidnapped by two persons including the appellant, who kept
her in forest area (jungle). It was further deposed that
appellant captured her objectionable photos and made videos
and uploaded said photos and videos on social media
platform like Facebook. It was deposed that appellant
committed rape on several time during the period of her
captivity. It was stated that her statement was recorded
under Section 164 of the Cr.P.C. before the court which she
identified and same was exhibited upon her identification as
Exhbit '1'. She also identified her signature there which was
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exhibited as Exhibit '1/1'. She also identified her signature
upon medical report regarding her age determination which
upon her identification, exhibited as Exhibit '2', where her
signature was exhibited as Exhibit 2/1.
19.1. Upon cross-examination, she stated that she
was not acquainted with the appellant prior to the
occurrence. She also denied any love affairs with the
appellant. She categorically stated that at the time of
occurrence she was in her house and was working, when
appellant entered her house. Door of the house was said to
be opened. It was stated that at the time of the occurrence,
her parents were at "Chhath Ghat". The occurrence took
place at 3:00 A.M. in the night. It was stated that she was
senseless at the time of kidnapping. It was stated that the
kidnapper was none but Pradeep Srivastava (appellant). She
denied the suggestion that she went alongwith appellant out
of her love affairs. She was again recalled for her
examination on 13th May, 2022 where she identified the
appellant as the same person who kidnapped her and
committed rape upon her. It was stated in her cross-
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examination that she came to know Pradeep Srivastava only
after the occurrence.
20. PW-2 is Umesh Paswan, who is the father
of the victim/X/PW-1 and also the informant of the present
occurrence. It was deposed by him that at the time of
occurrence, victim was working at home and by that time
appellant entered his house and outraged the modesty of his
daughter, whereafter alarm was raised, resultantly appellant
after assaulting the victim and tiding her with motorcycle,
kidnapped her. Subsequently, he also deposed that victim
was threatened on the point of knife. He came to know all
such facts from the mouth of victim. It was further deposed
by him that appellant dropped the victim at Motihari Station
and fled away. He also deposed that the case was lodged
with delay as to save his time and also the police atrocities.
It was deposed that initially objectionable photographs were
sent by the appellant to his neighbour and subsequently, it
was sent to him, only after that, he went to police station as
to lodge the present case. He identified his thumb impression
on his written complaint, which upon his identification was
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exhibited as Exhibit '3' and his thumb impression was also
exhibited as Exhibit 3/1. It was deposed that the victim
was examined medically at Sadar Hospital, Motihari and her
statement was also recorded in court. He claimed to identify
the appellant.
20.1. Upon cross-examination, it was stated by him
that he is not the eye witness of the occurrence of
kidnapping. He came to know about the occurrence at 6:00
A.M. that his daughter was kidnapped. He claimed to make
self-search for next 2 to 3 days and thereafter, he came to
know that on the date of occurrence appellant was found
roaming around his house/place of occurrence, and,
thereafter, he went to the house of appellant, where, he
found the appellant traceless. It was further deposed by him
that he reported this occurrence to the police only after
receiving objectionable photographs of his daughter. He
could not know when it was sent for the first time. He came
to know regarding viral photographs of his daughter by his
sister-in-law. He did not lodged any Sanha (informatory
petition under Section 39 of the Cr.P.C.) regarding the
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occurrence before police. He denied the suggestion of false
implication.
21. PW-3 is Manorama Devi. She is the mother
of the victim and PW-4 is Ramesh Ram, who is neighbour of
informant/PW-2. Both these witnesses are hearsay witnesses
and stated the entire version on the basis of their hearsay
inputs and, therefore, their testimony is not appearing so
relevant as to discuss qua crime in question. However, PW-3
deposed that she saw naked photographs of her daughter on
mobile and her daughter was recovered by police. She
deposed that she met with her daughter first time after the
occurrence in police station and, thereafter, she remained
with her. She stated to be present in court premises on the
date of recording of statement of her daughter under Section
164 of the Cr.P.C.
22. PW-5 is Dr. Manoj Kumar. He was posted at
Sadar Hospital, Motihari as Deputy Superintendent. He
examined the victim/X on 8th March, 2022. It would be
apposite to reproduce the relevant part of medical
examination of the victim, which are as under:
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"Upon examination of victim, the medical board found
the age of the victim to be 15- 16 years. The age
determination test was opined on the basis of X-ray
report of the victim/girl. In cannot recall as to whether
the victim had signed the instant report in my presence
or not."
22.1. Upon cross-examination, he stated that "It is
correct that the X-ray plate which was taken for the purpose
of determination of age of victim was not handed over to the
police/I.O."
23. PW-6 is Santosh Kumar Singh. He was
second Investigating Officer of this case. He only submitted
the charge-sheet bearing No. 21/20 dated 27.02.202 under
Section 363, 365 of the I.P.C. and section 8 of the POCSO
Act and section 3(i)(w) of the SC/ST (POA) Act against the
appellant. In cross-examination, he stated that he did not
investigated this case.
24. PW-7 is Pramod Kumar Paswan. He is the
Investigating Officer of this case and deposed that he had
visited the place of occurrence i.e. house of PW-2/victim
during investigation. He also produced victim before court
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for recording her statement under Section 164 of the Cr.P.C.
It was deposed that upon medical examination, the age of
the victim was found between the age group of 15-16 years
as per medical examination. Thereafter, she handed over the
victim to her parents. He also identified the signature of
arrest memo of appellant which upon his identification
exhibited as Exhibit '4'.
24.1. Upon cross-examination, it was stated by him
that he arrested the appellant on 22.12.2019 and when he
arrested appellant, at that point of time, victim was not
there. Victim was recovered prior to the arrest of the
appellant. He affirmed that during investigation, he did not
ask any caste certificate from informant. He visited the place
of occurrence on the same day, immediately after receiving
charge of this case to investigate the matter.
25. In the backdrop of aforesaid discussed
evidence, now the first and foremost issue which is required
to be decided in this case whether the prosecution
established the victim as a 'child' within the meaning of
Section 2(1)(d) of the POCSO Act or not during the trial.
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26. In this aspect, it would be apposite to
reproduce Section 94 of the J.J. Act, which reads as under
for ready reference:
"94. Presumption and determination of age - (1)
Where, it is obvious to the Committee or the Board, based
on the appearance of the person brought before it under
any of the provisions of this Act (other than for the
purpose of giving evidence) that the said person is a child,
the Committee or the Board shall record such observation
stating the age of the child as nearly as may be and
proceed with the inquiry under Section 14 or Section 36,
as the case may be, without waiting for further
confirmation of the age.
(2) In case, the Committee or the Board has reasonable
grounds for doubt regarding whether the person brought
before it is a child or not, the Committee or the Board, as
the case may be, shall undertake the process of age
determination, by seeking evidence by obtaining -
(i) the date of birth certificate from the school, or the
matriculation or equivalent certificate from the concerned
examination Board, if available; and in the absence
thereof;
(ii) the birth certificate given by a corporation or a
municipal authority or a panchayat;
(iii) and only in the absence of (i) and (ii) above, age shall
be determined by an ossification test or any other latest
medical age determination test conducted on the orders of
the Committee or the Board:
Provided such age determination test conducted on the
order of the Committee or the Board shall be completed
within fifteen days from the date of such order.
(3) The age recorded by the Committee or the Board to be
the age of person so brought before it shall, for the
purpose of this Act, be deemed to be the true age of that
person".
27. It would further be apposite to reproduce para
22 & 23 of the judgment of Hon'ble Supreme Court as
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available through Jarnail Singh's case (supra) which is as
under:
"22. 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 Protection 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 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
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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 7-A, Section 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 of 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."
23. 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-
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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 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."
28. Coming to the facts of this case, it appears that
the age of victim was mentioned in F.I.R. by the
informant/PW-2 who is none but her father as 12 years. The
victim was recovered after about 10 days of the occurrence
and thereafter her statement was recorded under section
164 of the Cr.P.C., whether her age was disclosed as 16
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years. There is no matriculation certificate or certificate from
the first attending school in view of section 94(2) of the J.J.
Act of the victim. There is no certificate from local
municipality also suggesting the date of birth of the victim.
The only option left was to determine the age of the victim
on the basis of radiological examination. It appears from
deposition of PW-5 and also the Exhibit '2', which is the
medical report ascertaining the age of the victim, suggesting
her age between the age group of 15 to 16 years.
29. It is settled law that the age which was
assessed on the basis of radiological examination cannot be
said absolute in view of legal report as available through
Rajak Mohammad's case (supra), therefore, if the age of
victim be assessed by giving a margin of plus minus (+) two
years at both end, in that case, the victim appears major on
the date of occurrence. It also appears from perusal of
record that the basis of ascertaining age out of radiological
examination i.e. X-ray report and other allied materials were
not properly exhibited during the trial.
30. Having all such backgrounds, it can be safely
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said that prosecution could not proved the victim as 'child'
within the meaning of section 2(1)(d) of the POCSO Act
and, therefore, the conviction as recorded by the learned
trial court under POCSO Act is appearing not convincing and,
therefore, available presumption under the Act, as available
under Section 29 and 30, is of no bearing in the present
case.
31. As far the second issue, which was raised by
Mr. Sudhir Kumar Singh, learned counsel appearing on
behalf of the appellant, that whether the victim appears to
qualified the test of sterling witnesses during the trial so as
the conviction under Section 376 of the I.P.C. or for
penetrative sexual assault can be believed on her sole
testimony.
32. In aforesaid context, it would be apposite to
discuss the first statement of victim which is available on
record i.e. her statement recorded under Section 164 of the
Cr.P.C. It appears from her said statement that while she
was cooking at about 5:00 A.M. on the occasion of 'Chhath
Puja' in her home, the appellant entered into her house and
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tied her mouth by 'Orhani' making her senseless, thereafter
kidnapped her. When she regain to herself, she found herself
in the forest (Jungle). She requested the appellant to return
back her home but on the point of knife, he captured several
objectionable photographs and also created videos, which
made viral. She categorically stated that except that
appellant did nothing with her. She also claimed to saw the
photographs. She stated that she went with appellant to
Sitamarhi where she was with her aunty.
33. Now coming to her deposition as she deposed
during the trial as PW-1, where it appears that on the date
of occurrence she was sleeping in her room when appellant
entered there and committed rape upon her. She stated to
be recovered by the police, whereas in her cross-examination
again she stated that she was working in her house at the
time of occurrence i.e. about 3:00 A.M. Taking note of her
two aforesaid statements, it appears that she disputed the
allegation of penetrative sexual assault/rape. She also stated
different time of occurrence. She, for the first time, raised
allegation of committing rape upon her before the court
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during the trial. In view of all such major discrepancies and
improved variations, she, at the first instance, cannot be
accepted as 'sterling witness' and, therefore, further
corroboration of allegation from the rest of evidences are
required. Now, it would be apposite to reproduce para '22'
of the judgment of Hon'ble Supreme Court as available
through Rai Sandeep @ Deepu's case (supra), which
reads as under:
"22. In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose
version should, therefore, be unassailable. The court
considering the version of such witness should be in a
position to accept it for its face value without any
hesitation. To test the quality of such a witness, the
status of the witness would be immaterial and what
would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant
would be the consistency of the statement right from
the starting point till the end, namely, at the time when
the witness makes the initial statement and ultimately
before the court. It should be natural and consistent
with the case of the prosecution qua the accused. There
should not be any prevarication in the version of such a
witness. The witness should be in a position to
withstand the cross-examination of any length and
howsoever strenuous it may be and under no
circumstance should give room for any doubt as to the
factum of the occurrence, the persons involved, as well
as the sequence of it. Such a version should have co-
relation with each and every one of other supporting
material such as the recoveries made, the weapons
used, the manner of offence committed, the scientific
evidence and the expert opinion. The said version
should consistently match with the version of every
other witness. It can even be stated that it should be
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akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in
the chain of circumstances to hold the accused guilty of
the offence alleged against him. Only if the version of
such a witness qualifies the above test as well as all
other such similar tests to be applied, can it be held that
such a witness can be called as a "sterling witness"
whose version can be accepted by the court without any
corroboration and based on which the guilty can be
punished. To be more precise, the version of the said
witness on the core spectrum of the crime should
remain intact while all other attendant materials,
namely, oral, documentary and material objects should
match the said version in material particulars in order to
enable the court trying the offence to rely on the core
version to sieve the other supporting materials for
holding the offender guilty of the charge alleged."
34. Taking a corroborative note after doubting the
victim as 'sterling witness', the first and foremost
important evidence in this context is medical evidence. It
appears from perusal of record that only doctor, who
examined in this case is PW-5 namely, Dr. Manoj Kumar,
who only stated about the age of victim, where he found the
victim between the age group of 15 to 16 years, except that,
entire examination is silent over sexual assault/physical
assault, doubting whether any penetrative sexual assault was
committed upon victim. It is important to mention in this
context that not even injury report of victim was brought on
record despite of the fact that she was medically examined
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at Sadar Hospital, Motihari.
35. Deposition of PW-2, who is none but the father
of the victim, is also relevant to discuss qua crime in
question as far kidnapping of victim is concerned, which is
the genesis of the present occurrence. It appears from his
deposition that the occurrence took place while the victim
was coming to "Chhatt Ghat". If his deposition be taken into
consideration, what he came to know from the mouth of
victim herself, as it was deposed by him, then, certainly the
occurrence of kidnapping took place on way to "Chhath
Ghat" and thus, same creating a serious doubt also
regarding kidnapping as stated earlier by the victim herself.
It further appears from F.I.R./Exhibit-3 which is written
complaint/information, that the victim was dropped by the
appellant at "Chatti Mai" (name of place), whereas during
the trial, he deposed that the victim was dropped at Motihari
Railway Station by the appellant.
36. Coming again to the deposition of PW-1/victim,
it appears that she was neither dropped by appellant at
"Chhath Mai" not at "Motihari Railway Station", rather she
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was recovered by the police. The entire version of
kidnapping and recovery of victim makes a serious doubt
regarding the occurrence. Moreover, it is an admitted
position that the F.I.R. was lodged after 15 days of the
recovery of victim and in total after 25 days of the
occurrence. An explanation was offered by PW-2 that to save
from police atrocities and time also, F.I.R. was not lodged
immediately but said explanation is not appearing
convincing. The appellant, upon specific question during his
examination under Section 313 of the Cr.P.C., stated that he
was implicated falsely with this case for the reason that
before 2 to 3 days of the alleged occurrence, a quarrel
developed between his father and the father of victim and,
therefore, he was implicated falsely with the present case.
Unconvincing explanation of delay as to lodge the present
F.I.R. after 25 days of the occurrence giving a sufficient
time-gap for afterthought.
37. Hence, the present appeal stands allowed.
38. Accordingly, the impugned judgment of
conviction dated 28.01.2023 and order of sentence dated
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09.02.2023passed by learned 6th Additional Sessions Judge-
cum-Special Judge, POCSO Act, East Champaran, Motihari in connection with P.Tr. No. 14/2020 arising out of Turkauliya (Banjariya) P.S. Case No. 850 of 2019, is quashed and set aside. Resultantly, the appellant, namely, Pradeep Srivastava is acquitted from the charges leveled against him by the Trial Court.
39. Since appellant is in custody in connection with aforesaid case, he is directed to be released forthwith, if not required in any other case. Fine, if any, deposited be returned to the appellant forthwith.
40. Office is directed to send back the Trial Court Records (TCRs) along with a copy of this judgment to the learned trial court, without delay.
(Chandra Shekhar Jha, J.) Rajeev/-
AFR/NAFR AFR CAV DATE NA Uploading Date 13.09.2024 Transmission Date 13.09.2024