Patna High Court
Chhotu Kumar Yadav vs The State Of Bihar on 11 March, 2024
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.458 of 2023
Arising Out of PS. Case No.-347 Year-2019 Thana- GAYA MUFASIL District- Gaya
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Chhotu Kumar Yadav Son Of Ramjanam Yadav R/O Ward No.- 53, Bhusunda
Balapar, P.S.- Mufassil, District- Gaya
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur. Advocate
Mrs. Vaishnavi Singh, Advocate
For the State : Mr. Sujit Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 11-03-2024
The present appeal has been filed under
Section 374(2) of the Code of Criminal Procedure, 1973
(hereinafter referred as 'Code') challenging the judgment of
conviction dated 18.03.2023 and order of sentence dated
29.03.2023 passed by learned Special Judge, Exclusive POCSO
Court-cum-Additional District & Sessions Judge-VI, Gaya in
POCSO Case No. 77 of 2019, arising out of Muffasil P.S. Case
No. 347 of 2019, whereby the concerned Trial Court has convicted
the present appellant for the offences punishable under Sections
363, 366(A), 376 DA of the Indian Penal Act and Section 6 of the
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POCSO Act and sentenced him to undergo rigorous
imprisonment for five years and a fine of Rs. 1,000/- under
Section 363 of the Indian Penal Code and rigorous imprisonment
for twenty years and fine of Rs. 10,000/- under Section 6 of the
POCSO Act and in default of payment of fine, the convict shall
suffer further imprisonment for six months. No separate sentence
was awarded under Section 376DA of the Indian Penal Code in
view of Section 42 of the POCSO Act and it was ordered that all
the sentences shall run concurrently and the period of detention
undergone by the accused in this case shall be set off against the
sentence of imprisonment.
2. The brief facts leading to filing of the present appeal
are as under:-
2.1. On 24.07.2019, at about 8 o'clock in the night, the
victim went outside for tying a cow. Meanwhile, first Ranjit
Yadav, second Chhotu Yadav, both residents of Village-Bhusunda
Walapur, Police Station-Muffasil, District-Gaya, came on two
wheeler vehicle and forcefully dragged her on that vehicle to
station and brought her in a room near the station and both
persons did wrongful deeds with her. On 25.07.2019 at 5 o'clock
early in the morning, both above mentioned persons dropped her
in the street of her house and when there was a noise in the street
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then first Ranjit Yadav, second Aneeta Devi and third Surendra
Yadav came to her home and hit her family with lathi-danda,
brick-stone, due to which, her mother got injured on her forehead.
2.2. On the basis of the aforesaid written complaint
given by the victim, a formal F.I.R. came to be registered for the
alleged offences punishable under Sections 376 DA, 341, 323,
337 of the Indian Penal Code and Sections 4 and 6 of the POCSO
Act against the present appellant and other accused.
2.3. After the registration of the F.I.R., the Investigating
Officer carried out the investigation. During the course of
investigation, the statement of the victim under Section 164 of the
Code came to be recorded by the learned Magistrate and the
victim girl was sent for Medical Examination. The Investigating
Officer recorded the statement of the witnesses and also sent the
clothes of the victim to the F.S.L. After the investigation was
over, the Investigating Officer filed the charge-sheet against the
appellant and another accused before the concerned Court.
2.4. Before the Trial Court, the prosecution had
examined seven witnesses and also produced documentary
evidence. Thereafter, statement of the accused under Section 313
of the Code came to be recorded. After conclusion of the trial, the
Trial Court convicted the appellant for the offences punishable
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under Sections 363, 376 DA of the Indian Penal Code and under
Sections 4 and 6 of the POCSO Act, whereas two other accused
persons Surendra Yadav and Aneeta Devi were charged for the
offence punishable under Sections 341, 323, 337 and 504 of the
Indian Penal Code have been acquitted. The appellant/convict,
therefore, has filed the present appeal.
3. Heard learned counsel Mr. Ajay Kumar Thakur
assisted by Mrs. Vaishnavi Singh for the appellant and Mr. Sujit
Kumar Singh, learned A.P.P. for the Respondent-State.
4. Learned counsel Mr. Ajay Kumar Thakur appearing
for the appellant referred the deposition of the prosecution
witnesses and thereafter submitted that the conduct of the victim
creates doubt about the story put forward by the victim. It is
submitted that, as per the case of the victim, at about 08:00 pm,
when she went outside her house to tie the cow, one Ranjit Yadav
and the present appellant, both came on a two wheeler vehicle
and forcibly took her on that vehicle. She was thereafter kept in
one room near the station and thereafter both the accused
committed rape upon her. However, while giving statement
recorded under Section 164 of the Code, the victim has stated that
when she had gone out to the house to attend the call of nature,
both the accused came on the motorcycle and forcibly took her on
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the motorcycle. It is further submitted that the area in which the
victim was residing is a densely populated area and in between
the house of the victim and the station, two Police Stations are
situated. She has not raised hulla when she was taken on
motorcycle. Even nobody has seen the accused taking the victim
on the motorcycle, though the occurrence took place around
08:00 pm. Thus, the learned counsel submitted that the conduct of
the victim creates doubt and the present one is the case of false
implication.
4.1. Learned counsel would further submit that even the
medical evidence does not support the case of the victim. Even
F.S.L. Report with regard to the clothe of the victim does not
support the case of the prosecution.
5. Learned counsel would further submit that the
present appellant was not examined by the Doctor as per the
provisions contained in Section 53A of the Code. It is further
submitted that the Investigating Officer had not gone to the place
of occurrence where the alleged rape has been committed by the
accused. Thus, the place of occurrence is not established. Learned
counsel also contended that the prosecution has failed to prove
the age of the victim by producing any documentary evidence.
Even the Aadhar Card produced by the victim at the time of
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giving examination-in-chief is not exhibited. It is also contended
that the Doctor who had examined the victim has specifically
stated, on general examination of the victim girl, that she is 16-18
years old. The Doctor has further stated that, based on the
physical and radiological findings, the age of the victim is
between 16-17 years. At this stage, learned counsel has placed
reliance upon the decision rendered by the Hon'ble Supreme
Court in the case of Jaya Mala Vs. Home Secretary,
Government of Jammu & Kashmir and Others, reported in
(1982) 2 SCC 538.
6. Learned counsel has also placed reliance on the
decision in Rajak Mohammad Vs. State of Himachal Pradesh,
reported in (2018) 9 SCC 248. It is submitted that sufficient
margin either way has to be allowed when the age has been
determined on the basis of radiological examination. Learned
counsel, therefore, urged that when prosecution has failed to
prove the case against the appellant/accused beyond reasonable
doubt, the present appeal be allowed and the impugned order
passed by the Trial Court be quashed and set aside.
7. On the other hand, learned A.P.P. has submitted that
when the victim herself has given the complaint against the
appellant wherein specific allegations with regard to the rape has
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been levelled against the appellant, the learned Trial Court has not
committed any error while relying upon the deposition given by
the victim. It is further submitted that the victim was a minor girl
and with a view to prove the age of the victim she herself has
produced her Aadhar Card wherein her birth date has been shown
as 01.01.2006. Thus, the prosecution has proved the case against
the appellant beyond reasonable doubt and, therefore, the Trial
Court has rightly recorded the order of conviction against the
present appellant. Learned A.P.P., therefore, urged that the present
appeal be dismissed.
8. We have considered the submissions canvassed by
the learned counsels appearing for the parties. We have also gone
through the material placed on record and re-appreciated the
entire evidence laid by the prosecution before the Trial Court. It
would emerge from the record that PW-6 (victim) has alleged
that, on 24.07.2019 at about 08:00 pm, when she had gone out of
her house for tying the cow, the appellant and one Ranjit Kumar
came on the motorcycle. They were carrying a pistol in their hand
and they tied her mouth with a towel and also gave threat and
thereafter she was taken to the room near the station and at that
place, both the accused committed rape on her. However, in the
written complaint the victim has not stated that the accused were
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armed with a pistol and her mouth was tied with a towel. Further,
in the statement given by her under Section 164 of the Code
before the Magistrate, the victim has put forward a different story
and said that, at about 08:00 pm, when she had gone out of her
house to attend nature's call, both the accused came on the
motorcycle and forcibly took her near the station. Thus, in the
said statement also, there is no reference with regard to a pistol or
towel. Thus, there are major discrepancies in the deposition given
by the victim. Further, the conduct of the victim is also required
to be examined carefully. It is the case of the victim, in the
written complaint given by her, that at about 08:00 pm, she was
taken on a motorcycle by two accused persons. However, it has
come to record that the said area was a densely populated area
and between the house and the station there are two police
stations. The prosecution has not examined any independent
witness who had seen the victim in company with the accused
going towards the station on the motorcycle. Even the victim has
not raised any hulla at any time.
9. It also transpires from the record that PW-1 is the
mother of the victim and PW-2 is the father of the victim. They
have stated that they lodged the case when their daughter was
missing during night hours. However, the said complaint was not
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produced before the Court. Thus, it appears that the prosecution
has suppressed the said complaint and thereby correct facts are
not brought on record.
10. It is a specific case of the victim that the two
accused have committed rape on her during night hours in one
room near station. However, from the deposition given by the
Investigating Officer, it is revealed that the victim has not shown
the said place to the Investigating Officer nor he has inquired
about the place of occurrence where the alleged rape was
committed by the accused on the victim. Thus, the place of
occurrence is not also established by the prosecution.
11. At this stage, the medical evidence given by the
Doctor (PW-5), namely Dr. Shakuntala Nag, who had examined
the victim, is also required to be discussed. The said Doctor has
specifically stated, on general examination, that the age of the girl
was 16-18 years and in paragraph 15 of conclusions, the Doctor
has stated that, based on physical and radiological findings, the
age of the victim is between 15-17 years. It is pertinent to note
that the prosecution has not produced any documentary evidence
with a view to prove the age of the victim. Though, the victim has
produced photocopy of her Aadhar card, the said document has
not been duly exhibited. Thus, with a view to determine the age
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of the victim, the evidence given by the doctor on the basis of the
radiological finding is required to be kept in view.
12. At this stage, we would like to refer to the case of
Jaya Mala (supra), wherein the Hon'ble Supreme Court has
observed in Paragraph-9 as under:-
"9.Detenu was arrested and detained on October
18, 1981. The report by the expert is dated May 3, 1982, that
is nearly seven months after the date of detention. Growing
in age day by day is an involuntary process and the
anatomical changes in the structure of the body continuously
occur. Even on normal calculation, if seven months are
deducted from the approximate age opined by the expert, in
October 1981 detenu was around 17 years of age,
consequently the statement made in the petition turns out to
be wholly true. However, it is notorious and one can take
judicial notice that the margin of error in age ascertained by
radiological examination is two years on either side.
Undoubtedly, therefore, the detenu was a young school-going
boy. It equally appears that there was some upheaval in the
educational institutions. This young school-going boy may
be enthusiastic about the students' rights and on two
different dates he marginally crossed the bounds of law. It
passes comprehension to believe that he can be visited with
drastic measure of preventive detention. One cannot treat
young people, may be immature, may be even slightly
misdirected, may be a little more enthusiastic, with a sledge
hammer. In our opinion, in the facts and circumstances of
this case the detention order was wholly unwarranted and
deserved to be quashed."
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13. In the case of Rajak Mohammad (supra), the
Hon'ble Supreme Court observed in Paragraph-9 as under:-
"9. While it is correct that the age determined on
the basis of a radiological examination may not be an
accurate determination and sufficient margin either way has
to be allowed, yet the totality of the facts stated above read
with the report of the radiological examination leaves room
for ample doubt with regard to the correct age of the
prosecutrix. The benefit of the aforesaid doubt, naturally,
must go in favour of the accused."
14. Thus, from the aforesaid decisions, it can be said
that sufficient margin either way has to be allowed while
determining the age on the basis of the radiological examination.
In the present case, the age of the victim can be said to be in
between 17-18 years and the benefit of the same is required to be
given to the accused.
15. It is also relevant to note, at this stage, that the
Doctor (PW-5) who had examined the victim has specifically
stated in Paragraph 10 that Hymen lacerated but laceration are
radial old and healed. In Paragraph-15, it has been specifically
stated that there is no sign and symptoms of present sexual
intercourse.
15.1. Further, during cross-examination, the Doctor has
specifically stated that if two persons have committed rape on
victim then, within 24 hours of her examination, there must be
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spermatozoa, injury would have been on the person of the victim.
In reply, the said witness has said yes. It has been further
submitted that there is no injury or spermatozoa found in the
inner or outer part of the victim. She has further specifically
admitted that she has found hymen lacerated old and, in the
present case, she has not found any spermatozoa or any violence
on any part of the victim's body.
15.2. Thus, from the aforesaid deposition of the Doctor,
it can be said that the medical evidence does not support the
allegations levelled by the victim with regard to the gang-rape
committed by the accused upon her.
16. We have also gone through the F.S.L. Report.
Salwar of the victim was sent for necessary analysis to the F.S.L.
and, after the examination, the concerned expert has stated that
blood could not be detected in the Exhibit Mark-A. Semen could
not be detected in the Exhibit Mark-A. No any foreign material
like hair found adhered with Exhibit Mark-A. Thus, we are of the
view that the aforesaid F.S.L. Report also does not support the
version given by the victim.
17. It is pertinent to note that, at this stage, that the
version of the prosecution with regard to the assault made by the
other two accused i.e., father and mother of the accused Ranjit
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Yadav on the mother of the victim has not been believed by the
Trial Court and, therefore, the two other accused, namely
Surendra Yadav and Aneeta Devi, against whom charge of
offences punishable under Sections 341, 337, 504 was levelled
against them have been acquitted by the Trial Court. Thus, it
appears that the trial court has believed the part of the story of the
prosecution qua the appellant whereas the story of the
prosecution qua the aforesaid two accused has not been believed.
18. Looking to the aforesaid facts and circumstances of
the present case, we are of the view that the prosecution has failed
to prove the case against the appellant/accused beyond reasonable
doubt, despite which, the Trial Court has passed the impugned
order. Hence, the impugned order requires to be quashed and set
aside.
19. The impugned judgment of conviction dated
18.03.2023and order of sentence dated 29.03.2023 passed by learned Special Judge, Exclusive POCSO Court-cum-Additional District and Sessions Judge-VI, Gaya in POCSO Case No. 77 of 2019, arising out of Muffasil P.S. Case No. 347 of 2019 is quashed and set aside. The appellant, namely, Chhotu Kumar Yadav, is acquitted of the charges levelled against him the learned Patna High Court CR. APP (DB) No.458 of 2023 dt.11-03-2024 14/14 Trial Court. He is directed to be released forthwith, if not required in any other case.
20. The appeal stands allowed.
(Vipul M. Pancholi, J) (Sunil Dutta Mishra, J) Sachin/Gaurav/-
AFR/NAFR CAV DATE N.A. Uploading Date 13.03.2024 Transmission Date 13.03.2024