Patna High Court
Badruddin vs The State Of Bihar on 7 December, 2023
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2653 of 2017
Arising Out of PS. Case No.-27 Year-2016 Thana- DIGHALBANK District- Kishanganj
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Badruddin, Son of Arsad Ali resident of Village- Bairbanna, P.S. Dighalbank,
District- Kishanganj.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Amal Kumar Sinha, Advocate
For the Respondent/s : Mrs. Anita Kumari Singh, APP
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CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 07-12-2023
1. Learned counsel Mr. Amal Kumar Sinha appearing
for the appellant and learned APP Mrs. Anita Kumari Singh for the
State are present and they are heard on the merit of this appeal.
2. The instant Criminal Appeal has been filed against the
Judgment of Conviction dated 08.06.2017 and Order of Sentence
dated 14.06.2017, passed by learned 1st Addl. District & Sessions
Judge - Cum- Special Judge POCSO, SC/ST Act, Kishanganj, in
Special Case No. 03/2016 arising out of Dighalbank P.S. Case No.
27 of 2016, whereby and whereunder the appellant has been
convicted for the offences punishable under Sections 376 and
354(B) of the Indian Penal Code (hereinafter referred to as "IPC")
and under Section 18 of the POCSO Act and he has been
sentenced to undergo Rigorous Imprisonment for 10 years with a
fine of Rs. 20,000/- for the offence punishable under Section 376
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of IPC and it has been directed that 50% of the fine amount, after
realization, shall be paid to the victim apart form the amount paid
to the victim under Section 357A of Cr.P.C. and in default of
payment of fine, the appellant has been directed to undergo
additional Rigorous Imprisonment for two years. The trial Court
further sentenced the appellant to undergo Rigorous Imprisonment
for 5 years with a fine of Rs. 5,000/- for the offence punishable
under Section 354B of IPC, in default of payment of fine he has
been directed to undergo additional Rigorous Imprisonment for six
months and he has also been sentenced to undergo 5 years of
Rigorous Imprisonment for the offence under Section 18 of the
POCSO Act and all the said sentences have been directed to run
concurrently by the Trial Court.
3. The prosecution's story in brief is that on 18.04.2016,
the informant (hereinafter referred to as "Victim-X"), who is stated
to be one of the two victims, was going to a field where her son
Robin Soren was working and she was taking food for his son at
that time, when she reached in between the villages Dhantola and
Thuknabasti, one person came out from a paddy field and started
teasing her and when she tried to raise an alarm he closed her
mouth and forcibly lifted her, brought her in a wheat field and
committed rape on her. Later on when she raised an alarm the
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accused (appellant) was caught hold by the workers working
nearby fields and one person namely, Lakhiram Hansda, claimed
to have identified the appellant as Badruddin. The informant
further alleged that the persons who came on hearing her hulla told
that some time earlier, the accused had lifted one (Second Victim
hereinafter referred to as "Victim Y") aged about 13 years in
between the villages kharitola and Pipla for committing sexual
assault on her but on hulla, he fled away after throwing the said
victim.
4. With the above allegations the informant (victim-X)
recorded her fardbeyan, on that basis Dighalbank P.S. Case No.
27/2016 was lodged for the offences punishable under Sections
376, 354A, 354B of IPC, Section 3(1)(xi),(xii) of SC/ST Act and
under Section 18 of POCSO Act.
5. After the completion of investigation, police
chargesheeted the appellant for the offences under Sections 376,
354A, 354B of IPC, Section 3(1)(xi),(xii), 3(2)(v) of the SC/ST
Act and under Section 18 of POCSO Act and thereafter, learned
Special Judge took cognizance of the alleged offences.
6. The appellant stood charged for the offences
punishable under Sections 376 and 354B of IPC and under
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Sections 12 and 18 of the POCSO Act and also charged for the
offence punishable under Section 3(1)(xi) of SC/ST Act.
7. As the appellant did not plead guilty of the offences
charged, hence he was put on trial.
8. Altogether 15 witnesses were examined by the
prosecution and in documentary evidence, the following
documents were proved and marked as exhibits:-
Exhibit.1- Signature of Victim-Y on her statement.
Exhibit.2- Medical Examination report of accused.
Exhibit.2/1- Signature of Dr. Sunil Kumar (P.W.10) on
the medical report of the accused.
Exhibit.2/2- Signature of Dr. Anwar Hussain on the
medical report of accused.
Exhibit.3- The Medical Report of Prosecutrix.
Exhibit.3/1- Signature of Dr. Shabnam Yasmin on the
report regarding age of prosecutrix.
Exhibit.4- Receipt given by FSL department.
Exhibit.5- Signature of Victim-X on her fardbeyan.
Exhibit.6- Statement of Victim-Y.
Exhibit.7- Injury Report of Victim-X.
Exhibit.8- An endorsement of S.H.O on the
fardbeyan of Victim-X.
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Exhibit.8/1- Fardbeyan of victim-X.
9. After the completion of prosecution's evidence, the
accused/appellant's statement was recorded and he was given an
opportunity to explain the circumstances appearing against him
from the prosecution's evidences, which were denied by him and
he did not say anything in his defence.
10. The appellant examined one defence witness namely,
Dharam Lal Tuddu as D.W.-1.
11. It has been argued by learned counsel for the
appellant that the prosecution did not succeed to prove the offence
of rape against the appellant beyond reasonable doubt and one
person who claimed to have identified the appellant, was not
examined by the prosecution and the Medical Examination Report
of the victim-X does not suggest that she was raped by this
appellant and in respect of the allegation of using criminal force to
outrage the modesty of victim-Y, the prosecution's story is
completely vague and there are serious contradictions in between
the statements of the prosecution witnesses and the victim's
clothes, which were sent to FSL for chemical examination, were
not produced before the Trial Court nor FSL report was put up
before the Trial Court.
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12. Learned APP appearing for the State has argued that
both the victims fully supported the allegations levelled by them
against the convict/appellant in their statements recorded under
Section 164 of Cr.P.C. as well as in their Court evidence and both
the victims remained firm to their allegations and the accused did
not show any reason on the part of the victims to make a false
allegation against him and the FIR was lodged without any delay
and the doctor concerned who examined the victim-X opined that
possibility of the commission of rape could not be ruled out.
13. Heard both the sides, perused the Judgment
impugned and evidences available on the case record of Trial
Court and also have gone through the appellant's statement.
14. The important facts which are relevant to the alleged
offences for which the appellant was charged are as follows:-
(i) The alleged occurrence with victim-X is stated to
have taken place on 18.04.2016 at about 9:00 am and at that time,
the said victim was going to a field where his son was working,
when the victim was on way to the said field and reached near a
paddy field, one person, who was later on identified as appellant,
started teasing her and when she attempted to raise an alarm, he
pressed her mouth and forcefully lifted and threw her in a wheat
field and thereafter committed rape on her, after that she cried then
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the persons, who were working in nearby fields attempted to catch
the accused but he managed to escape.
(ii) Out of the persons who gathered one namely,
Lakhiram Hansda claimed to have identified the accused as the
appellant.
(iii) Some of the persons, who gathered on hearing hulla
of the victim, revealed that just some time before, the
accused(appellant) had been taking the victim-Y, aged about 13
years, with bad intention towards a field but he fled away when the
victim-Y raised an alarm.
15. From the above facts, two main allegations come out
against the appellant. First is that he raped victim-X and second is
that he used criminal force on the victim-Y with an intention to
outrage her modesty.
16. In respect of the allegation of rape, the victim's
evidence and the medical expert's opinion are very important and
relevant in this matter. As per fardbeyan of the victim-X, the
appellant managed to escape when the persons working in nearby
fields gathered on hearing the cry of the victim, out of them one
namely, Lakhiram Hansda claimed to have identified the accused
as being the appellant. But the prosecution failed to produce the
said person. The victim-X did not reveal the names of the persons,
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except one Lakhiram Hansda, who are stated to have gathered at
the place of occurrence and in this regard,victim's statement in her
fardbeyan remained vague. The victim-X alleged in her fardbeyan
that the accused/appellant forcefully lifted her and after that
pushed her in a wheat field and thereafter, committed rape on her.
In the light of this allegation, the alleged offence of rape was
committed in a wheat field but the said victim deposed before the
Trial Court that the occurrence of rape was committed with her in
a paddy field and the said contradiction with regard to the place of
occurrence in respect of the incident of rape with victim-X creates
a serious doubt in the first allegation of the prosecution.
17. The alleged occurrence of rape with victim-X is
stated to have taken place on 18.04.2016. The said victim was
medically examined on the same day. P.W.-13 Dr. Shabnam
Yashmin who examined the victim-X, deposed that she did not
find any external or internal injury on the private parts of the
victim-X and also did not find any stain of foreign body on the
clothes of the said victim and spermatozoa was also not found in
vaginal swab. These medical findings given by P.W.13 after the
examination of victim-X do not suggest the commission of rape
with her, though a contusion on lower lip and a small laceration on
inner side of lower lip were found on the body of the victim but
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the same are not sufficient to draw the inference that the victim
was sexually assaulted in the form of rape by the appellant. The
most important thing is that as per the prosecution, the S.H.O
concerned, who did preliminary investigation and was examined
as P.W.12, deposed that the clothes of the accused and victim were
sent to FSL for chemical examination after getting the necessary
permission from the Trial Court. In this regard the prosecution also
proved the receipt given by the FSL department in respect of
receiving the said articles which was marked as Exhibit-4. But
during trial, the prosecution failed to submit the FSL report with
regard to these articles and even the said articles were not
produced before the Trial Court.
18. P.W.15(Investigating Officer), who inspected the
place of occurrence where the alleged offence of rape is said to
have been committed with victim-X, gave the description of the
place of occurrence in his evidence before the Trial Court but the
same does not show that he found any incriminating material as to
suggest the commission of the offence of rape with victim-X and
according to his statement, there was paddy crop at the place of
occurrence while as per fardbeyan of the victim-X, the appellant
committed rape with her in a wheat field.
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19. The above-discussed circumstances appearing from
the prosecution's evidences go against the prosecution and create a
serious doubt in the allegation of rape made by the victim-X
against the appellant, in the opinion of this Court, the conclusion
of the Trial Court in holding the appellant guilty of the offence
punishable under Section 376 of IPC is not proper and legal and
the same requires interference by this Court.
20. So far as the second allegation made by the victim-Y
is concerned, in this regard her own evidence is very important and
relevant. The victim-Y has been examined as P.W.6. She deposed
that the alleged occurrence took place about one year ago at about
10:30 AM, at that time she was returning alone from a coaching
center and going to her home on foot then suddenly the accused
came and lifted her and when she cried, he pushed her in a pit and
thereafter, fled away in a maize field. These statements made by
victim-Y are important and corroborative to the allegation made by
the prosecution against the appellant and also relevant to the
alleged offence punishable under Section 354B of IPC for which
the appellant has been convicted. In respect of said allegation, the
evidence of P.W.7 is also important as he is stated to be an eye
witness of the said occurrence and he deposed that on the alleged
day and time of occurrence he was returning from a coaching
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center and going towards his house and at that time victim-Y was
also going on foot towards her home and when she cried, he
rushed to her and saw one person in fleeing position. The said
witness identified the appellant being present at the time of
recording his deposition before the Trial Court. Accordingly, the
evidence of P.W.7 is also supportive to the allegation made by
victim-Y.
21. P.W.15 who investigated the case, deposed in the
cross-examination that he inspected both the places of occurrence
and he found some crushed plants of paddy crop at the place of
occurrence. The said place is stated to be the place of occurrence
concerned to the victim-Y. The evidence of Investigating Officer
goes in favour of the prosecution in respect of the allegation
levelled by victim-Y. Other witnesses who claimed to have got the
knowledge of the incident which took place with victim-Y, gave
relevant evidence and supported the prosecution's case. From the
cross-examination of these witnesses including victim-Y and
Investigating Officer, the appellant did not succeed to elicit any
fact to create a serious doubt in the allegation levelled by the
victim-Y against him. As such the prosecution succeeded to prove
the alleged offences punishable under Section 354B of IPC and
Section 18 of POCSO Act. Accordingly, this Court finds the
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convicting Trial Court's conclusion with regard to both the said
offences to be proper and correct and finds no strong reason to
interfere in the said conclusion.
22. In the result, the impugned judgment of conviction
and order of sentence are hereby set aside in respect of the
offence of Section 376 of IPC for which the appellant has been
convicted and sentenced but appellant's conviction and sentence
for the offences punishable under Section 354B of IPC and under
Section 18 of POCSO Act are hereby confirmed.
23. As the appellant has been languishing in jail since
19.04.2016and he has served more than six years of Rigorous Imprisonment and the sentences awarded upon him by the Trial Court for the offences punishable under Section 354B of IPC is five years with a fine of Rs. 5,000/- and in default of payment of fine he was directed to undergo an additional Rigorous Imprisonment for six months and he was also sentenced to undergo five years of Rigorous Imprisonment for the offence punishable under Section 18 of POCSO Act and both the sentences were directed to run concurrently, so in the said situation the appellant is now entitled to be released from jail forthwith on account of having served the complete sentence for the offences for which his conviction has been upheld.
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24. As such, the instant appeal stands allowed partly.
25. Let the appellant be released at once, if his custody is not required in any other case.
26. Let the copy of the judgment be sent to the concerned Court and Jail Superintendent for needful and immediate compliance of this judgment.
27. Let the LCR be sent back to the Trial Court forthwith.
(Shailendra Singh, J) Maynaz/-
AFR/NAFR AFR CAV DATE NA Uploading Date 13.12.2023 Transmission Date 13.12.2023