Patna High Court
Sheo Kumar @ Shiv Kumar vs The State Of Bihar on 5 October, 2021
Equivalent citations: AIRONLINE 2021 PAT 1479
Author: Birendra Kumar
Bench: Birendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.3340 of 2019
Arising Out of PS. Case No.-79 Year-2016 Thana- MAHILA PS District- Gaya
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SHEO KUMAR @ SHIV KUMAR, Son of Late Poon Singh, Resident of
Village - Dandibag, Raj Kumar Nagar, Road No. 1, P.S. - Vishnupath, Dist. -
Gaya.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ramakant Sharma, Sr. Advocate
Mr. Anil Kumar Saxena, Advocate
For the State : Mr. Shyam Kumar Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
C.A.V. JUDGMENT
Date : 05-10-2021
The sole appellant-Sheo Kumar @ Shiv Kumar has
challenged herein, his conviction for offences under Section 376
of the Indian Penal Code and Section 4 of the Protection of
Children from Sexual Offenses Act, 2012 (in short 'POCSO
Act') by learned Special Judge, POCSO, Gaya in POCSO Case
No. 57 of 2016 arising out of Gaya Mahila P.S. Case No. 79 of
2016. By the same judgment dated 20.05.2019, the learned Trial
Judge acquitted the appellant of the charge under Section 3(1)
(w) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. By the impugned order of
sentence dated 25.05.2019, the learned Trial Judge awarded
single punishment i.e. ten years rigorous imprisonment and a
fine of rupees twenty thousand for the proved offences under
Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021
2/27
Section 376 of the Indian Penal Code and Section 4 of the
POCSO Act. In default of payment of fine, three months
rigorous imprisonment was ordered. The learned Trial Judge has
ordered for compensation also, to be paid to the victim.
2. The prosecution case as disclosed in the written
report of the victim-girl is that the victim, aged about fifteen
years, was a student of Class-VIII in the Middle School,
Sonbarsa. On 25.11.2016, a Friday, half-yearly examination was
going on in the school and the victim had also gone to the
school to appear in the examination. P.W. 5 Naveen Kumar
Singh, a school teacher asked the victim to bring adhesive from
the children in the new school building. At about 11:00, the
victim went to the new building. There the appellant, who was
another teacher in the school, caught her and dragged her inside
the room and forcefully ravished her by opening her lower
garments. When the victim was crying at the time of
commission of rape, out of two students passing therefrom,
Sonu Kumar @ Ravi Ranjan Kumar (P.W. 4) opened the door of
the room then the appellant left the victim. Victim came to her
parents and the teacher (appellant) fled away from the school.
The victim disclosed everything what had happened against her
to her mother. Thereafter, the parents went to school on
Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021
3/27
Saturday but all had left the school till their arrival. On
28.11.2016i.e. Monday, the appellant was caught by the villagers in the school and light assault was committed against him by the mob. Thereafter, appellant was handed over to the police.
3. The written report is Ext. 1 and the formal FIR is Ext. 3. The written report was submitted to the police on 28.11.2016 and the aforesaid FIR was registered. During investigation, the victim was medically examined by P.W. 14 Dr. Shakuntla Nag. The medical report is Ext. 5. On the very next day i.e. 29.11.2016 statement of the victim was recorded under Section 164 Cr.P.C. before the Magistrate. A copy of the same is Ext. 1/1. Ext. 4 is school transfer certificate of the victim wherein her date of birth is recorded as 4th February, 2000. The school certificate has been proved by P.W. 13 Akhilesh Das, who said that the certificate was in the writing of the Headmaster of the school, namely, Yugal Kishor Singh (D.W.
1). D.W. 1 has also supported that he had issued the transfer certificate. Ext. 2 is endorsement on the first written report by the police officer disclosing registration of the police case number.
4. The prosecution produced altogether fourteen Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 4/27 witnesses whereas the defence examined two witnesses. D.W. 1 Yougal Kishor Singh and D.W. 2 Jamuna Yadav.
5. Mr. Ramakant Sharma, learned Senior Counsel for the appellant contends that the false allegation is due to enmity between the appellant and the local Chawkidar. Learned Senior Counsel has drawn attention of the Court to the prosecution evidence and submits that it has come in the evidence that appellant was authorized to complete the construction of the new school building. Ajay Yadav, son of local Chawkidar Lal Bahadur Yadav was supplier of the bricks. Appellant had issued a cheque of rupees one lakh in favour of Ajay Yadav but the bricks were not supplied of whole amount and there was dispute between the two for the aforesaid reason. Since the parents of the prosecutrix were Bataidars on the land of Chawkidar Lal Bahadur, at the instigation of Lal Bahadur, the present false case was lodged.
Thus, there is no evidence of direct enmity between the appellant and the prosecutrix.
6. Now the question for consideration would be whether the remote and feeble case of enmity would come in the way of otherwise acceptable prosecution evidence?
7. Learned Senior Counsel next contends that three Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 5/27 female cooks were present in the school, namely, P.W. 1 Shiv Ratiya Devi, P.W. 2 Ram Pyari Devi and P.W. 9 Kanti Devi. It has also come in evidence that along with appellant another teacher Naveen Kumar Singh (P.W. 5) was also in the school besides children who had come to the school on the date of incident. These prosecution witnesses have denied that they had heard about any such incident in the school on the day of alleged occurrence or on any subsequent date. Learned Senior Counsel contends that the testimony of the aforesaid witnesses creates doubt on the acceptance of the prosecution version.
Learned Senior Counsel contends that P.W. 7 Abhishek Kumar another student, who was said to be present at the time of opening of the door of the room by P.W. 4 Ravi Ranjan Kumar, has not supported the prosecution case and has been declared hostile. P.W. 8 Munni Lal @ Munni Lal Paswan is hearsay witness and he has also not supported the prosecution case.
8. Again the question would be whether due to non-support of the prosecution case by the aforesaid prosecution witnesses would lead to disbelieve the prosecution version.
9. Learned Senior Counsel next contends that there is unexplained delay in reporting the matter to the police. The Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 6/27 occurrence allegedly took place on 25.11.2016. However, no information was given to Paraiya Police Station or to Gaya Mahila Police Station on 26th or 27th of November, 2016. Hence, chances of concoction and deliberation cannot be ruled out.
10. Learned Senior Counsel contends that the medical report of the prosecutrix vide Ext. 5 and evidence of the Doctor vide P.W. 14 would show that on radiological and pathological examination, the age of the victim was assessed above nineteen years. Therefore, conviction should not have been recorded under Section 4 of the POCSO Act.
Learned Senior Counsel has relied upon the judgment of this Court in Cr. Appeal (SJ) No. 4237 of 2018 Pawan Kumar Mahto @ Pawan Kumar Singh Versus The State of Bihar disposed of on 23.03.2021 and Cr. Appeal (SJ) No. 1711 of 2019 Aman Raj @ Bitu Singh Versus The State of Bihar disposed of on 24.08.2021
11. To contra, Mr. Shyam Kumar Singh, learned counsel for the State contends that from the testimony of the prosecutrix, it would be evident that she is consistent throughout in the matter of place of occurrence, manner of occurrence, date of occurrence and identity of the perpetrator of the crime. The prosecutrix has not been cross-examined confronting her with Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 7/27 previous statements for evident reason that there is no contradiction. As such, the prosecutrix is a "sterling witness".
12. Once the Court finds that the prosecutrix is a sterling witness, the law does not require plurality of the evidence, especially, where allegation is of commission of rape which is mostly committed within four-walls of a room or at a lonely place. Learned counsel next contends that P.W. 3 Gyanti Devi the mother of the victim and P.W. 10 Shambhu Chaudhary the father of the victim have consistently deposed that the victim came to the field where they were working, soon after the occurrence and narrated about the incident what had happened with her. The victim P.W. 11 has also deposed that after the occurrence, she left the examination and soon reached to her parents in the field and narrated everything to them. Learned counsel contends that when such offences are committed, the victim or her family members being scared of the social stigma, hesitates and ponders many times whether to disclose the fact before the public which would in all probability be stigma against her honour and dignity. Moreover, in the present case, there is explanation in the evidence of P.W. 3 para 9 that since the villagers and well-wishers advised that if she would immediately lodged the case, the appellant would be aware of Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 8/27 that and would flee away. Hence, let the matter of reporting the incident to the police be deferred till the appellant is apprehended. On Monday i.e. 28.11.2016, the appellant was apprehended from the school by the villagers which has come in the evidence of the prosecution witness and thereafter the case was lodged. There is no material to prove any strong motive to the victim to falsely implicate the appellant.
13. The nature of enmity claimed by the appellant would not permit the conscience of any dignified person to make a statement which would be taken against the chastity of the maker thereof as well.
EVIDENCE
14. Amongst fourteen prosecution witnesses P.W. 1 Shiv Ratiya Devi, P.W. 2 Ram Pyari Devi and P.W. 9 Kanti Devi were cooks in the said school. These witnesses have admitted that prosecutrix was a student of that school and the appellant was a teacher. However, they deposed that they know nothing about any incident happened with the prosecutrix. P.W. 2 and P.W. 9 have been declared hostile as they had supported the prosecution case as hearsay witness before the police.
Likewise, P.W. 6 Pintu Kumar, P.W. 8 Munni Lal @ Munni Lal Paswan were also hearsay witnesses before Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 9/27 the Police. P.W. 8 has been declared hostile by the prosecution.
15. The uncontroverted evidence on the record is that prosecutrix was a student of Madhya Vidyalay, Sonbarsa and the appellant was a teacher in that school. It is also established that on 25.11.2016, the appellant and the prosecutrix were present in the school. Presence of appellant has been proved by the oral evidence of the prosecution witnesses and the school attendance register brought on the record by D.W. 1 Yugal Kishor Singh who was the Headmaster of that school and was not present on the date of occurrence. The attendance register is Ext. A and A/1. It is also established that on the date of occurrence, out of six teachers working in the school, only two were present, namely, the appellant and P.W. 5 Naveen Kumar Singh. P.W. 5 has deposed that on the date of occurrence, he was in the school. The prosecutrix was a student of Class- VIII in that school. Age of the prosecutrix was about fourteen years. However, incident allegedly happened against the prosecutrix was not heard by this witness. The witness has been declared hostile by the prosecution.
P.W. 6 Pintu Kumar deposed that two students of that school, at the time of launch break, came out and said that Sheo Guru Ji (appellant) had done wrong with the Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 10/27 prosecutrix.
16. The most important prosecution witness of the occurrence is prosecutrix herself who has been examined as P.W. 11. According to P.W. 11, on the date of incident, she had gone to the school to appear in the half-yearly examination/mid term examination. Naveen Sir (P.W. 5) asked her to bring adhesive from the new building of the school. When she was returning along with the adhesive down the stairs, the appellant caught her and dragged her inside a room of the school and bolted the door from inside. No student was there in the room. The appellant disrobed her and ravished her. When the prosecutrix was weeping, two students of the school Ravi Ranjan Kumar (P.W. 4) and Abhishek Kumar (P.W. 7) came. They thrashed on the door which got open. Thereafter, she went to her parents who were working in the paddy field three Kilometres away and narrated the incident. Her father (P.W. 10 Shambhu Chaudhary) went to the school but till then all had already gone. She admits that she had given a written information to the police on which she put her signature along with her father. She further disclosed that her statement under Section 164 Cr.P.C. was recorded by the Magistrate and the Doctor had examined her in the hospital.
Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 11/27 In cross-examination she stated that at the age of six, she was admitted in Class-1 in the said school. 150 to 200 boys and girls goes to that school. The prosecutrix used to go along with her friends Arti and Puja. She denied the suggestion that on the date of examination Arti and Puja were also in the school. She said that only seven girls had come to the school to attend Class-VIII examination. She could not remember the name of the girls but she identified them by their caste as they were co-villagers. She is specific that the incident took place in the new building of the school which contains two rooms on the ground floor and two on the first floor. No student attends the class on the ground floor. The incident against her took place in a room at the first floor. Nothing was there in that room including furniture or bed. She is specific that forcefully she was disrobed by the appellant and was ravished. In the cross-examination, the witness is specific that in that room there were two doors. One door was bolted from inside but the second door remained unbolted and the two students had opened the unbolted door and, at the time of opening the door, the appellant was ravishing her. She states that she had sustained injury at her elbow. She had not made any complaint about the incident to the Mukhiya or Sarpanch. She could not remember whether she was Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 12/27 wearing the same clothes at the time of medical examination which she was wearing at the time of incident. She denied that she levelled a false allegation. That much is the cross- examination of the prosecutrix.
17. P.W. 4 Ravi Ranjan Kumar has supported the occurrence as eyewitness. Ravi Ranjan Kumar is aged about ten years. The Court tested his capability and caliber to make statement and thereafter, being satisfied, started recording the statement. According to this witness, he heard the sound of weeping of a girl then he opened the door of the room and saw that the appellant was ravishing that girl. That girl was P.W. 11. Abhishek Kumar (P.W. 7) was also along with him. The witness stated that he is a student of Class-III in that school. He is specific that the prosecutrix is not her classmate. Only two teachers, the appellant and Naveen Sir was present on the day of incident in the school. The witness is specific that he had disclosed about the occurrence to the parents of the prosecutrix on the day of incident itself. There is nothing in the cross- examination of this witness to doubt his trustworthiness.
P.W. 7 Abhishek Kumar has admitted that the prosecutrix was a student in that school and the appellant was a teacher. However, he has denied any knowledge about any Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 13/27 incident which happened with the prosecutrix ten to eleven months ago. The witness has been declared hostile by the prosecution.
P.W. 3 Gyanti Devi and P.W. 10 Shambhu Chaudhary, the parents of the prosecutrix, have supported the case as hearsay witness about the occurrence. They heard from the prosecutrix as well as from P.W. 4 and P.W. 7. The prosecutrix has reported to her parents that P.Ws. 4 and 7 had opened the door then she could manage to escape from the room.
P.W. 12 Mira Kumari is the Investigating Officer of the case. She has supported the investigation done by her. The witness has admitted during cross-examination that while investigating the case, she could not see the attendance register of the prosecutrix of the day of incident. This lapse on the part of the Investigating Officer would not make any difference because it is not the case of the defence that the victim was not in the school on the date of incident.
P.W. 13 Akhilesh Das is a formal witness and has proved the school leaving certificate of the prosecutrix dated 27.04.2017 vide Ext. 4 wherein date of birth of the prosecutrix is mentioned as 4th of February, 2000. The witness deposed that Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 14/27 the entire columns have been filled by the Headmaster Yugal Kishor Singh (D.W. 1). D.W. 1 has also admitted that he had filled the columns of the school leaving certificate of the prosecutrix.
D.W. 14 Dr. Shakuntla Nag has deposed that though she found hymen of the prosecutrix ruptured, however, no other noticeable thing including injury or spermatozoa was there. Therefore, this was not a case of recent rape. The witness stated that on the basis of X-ray report, the age of the victim was above nineteen years. However, in cross-examination, she says that she cannot give definite opinion that rape was committed against the prosecutrix or not nor P.W. 14 was sure about the age of the victim (para 11) because the report was made on the basis of radiological examination.
D.W. 1 Yugal Kishor Singh appeared to prove the writing on the cheque issued by the appellant in favour of Ajay Kumar, son of local Chawkidar Lal Bahadur Rai to show that the said dispute was reason for the present case.
D.W. 2 Jamuna Yadav has deposed that father of the prosecutrix was doing agricultural work on the land of local Chawkidar Lal Bahadur. There was dispute between Ajay Yadav, son of Lal Bahadur and the appellant and no such Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 15/27 incident had taken against the prosecutrix.
18. It is well settled by a catena of judicial pronouncements that while appreciating the evidence of the victim of sexual assault, it should be treated on a par with the evidence of an injured witness. The reason is simple that a girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society. When, in face of these factors, the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. In normal course, the Indian Women has tendency to conceal such offence even before her family members much less before public or before the police. Therefore, testimony of the prosecutrix to some extent, stands on higher pedestal than that of an injured witness.
Corroboration is not an imperative component of judicial credence in every case of rape. Refusal to act on the testimony of the victim of sexual assault, in absence of corroboration as a rule, is adding insults to the injury. If the Doctor, who examined the victim, does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 16/27 If totality of the circumstances appearing on the record of the case discloses that the prosecutrix does not have strong motive to falsely implicate the person charged, the Court should ordinarily have no hesitation in accepting her evidence as no self-respecting women would come forward to make a self humiliating statement in casual manner.
"The Court ought to be mindful that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault, it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very sole of the helpless female. The Court, therefore, shoulders a greater responsibility and must deal with such cases with utmost sensitivity. The broader probabilities of the case should be examined. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, should not come in the way to otherwise reliable prosecution case." Reference may be made to State of Punjab Vs. Gurmit Singh and Ors reported in (1996)2 SCC 384 and Motilal Vs. State of M.P. reported in (2008)11 SCC
20. Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 17/27 At the same time in Raju & Ors Vs. State of Madhya Pradesh reported in (2008) 15 SCC 133, the Hon'ble Supreme Court cautioned by saying that no doubt, rape causes greater distress and humiliation to the victim, but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. Therefore, the accused must also be protected against the possibility of false implication.
"The Court should carefully see that the prosecutrix is consistent in her 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. The prosecutrix 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 person involved, as well as the sequence of it. If other witnesses are there, there must be consistent match with the version of every other witnesses. If the testimony of the prosecutrix withstands the aforesaid test, she would be treated as a "sterling witness" and no corroboration is needed to base the conviction on the sole testimony of the prosecutrix." Reference may be made to Rai Sandeep @ Deepu Vs. State (NCT of Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 18/27 Delhi) reported in (2012) 8 SCC 21.
19. In the case on hand, the prosecutrix is a sterling witness as she is consistent throughout and has withstood the test of cross-examination. Therefore, there is no need for corroboration of her testimony. However, she finds corroboration from trustworthy evidence of P.W. 4 Ravi Ranjan Kumar who is also an eyewitness of the occurrence. The medical report does not negate the claim of the prosecutrix. If the Doctor is not definite in its opinion, the trustworthy evidence of the prosecutrix and other witnesses cannot be disbelieved. It is highly unbelievable that for such a remote and distant differences between appellant and a co-villager, the prosecutrix would make a self degrading statement just to falsely implicate the appellant.
20. No doubt promptness, in lodging the first information report, is assurance regarding truthfulness of the informant's version. If there is delay in lodging the FIR and there is no reasonable explanation for the same it looses advantage of spontaneity. In Tulshidas Kanolkar Versus The State of Goa reported in AIR (2004) SC 978, the case was of sexual assault and in the matter of delayed information, the Hon'ble Supreme Court said as follows:-
Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 19/27 ".......... In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is waity enough to reject the plea of false implication or vulnerability of the prosecution case".
21. In the case on hand, the victim was totally unaware of the catastrophe which had befallen her. However, on the very same day, she reported the matter to her parents. P.W. 3, Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 20/27 the mother of the prosecutrix and is an illiterate lady. During cross-examination (para 8) she stated that she had disclosed about the incident to Chawkidar Lal Bahadur in the evening of the day of incident itself as Lal Bahadur was not in the village during whole day. Lal Bahadur advised not to lodge the case in the evening otherwise master (the appellant) would flee away. On the day of information to the police, the appellant was caught and then the case was lodged. That was the reason for delayed information to the police. The witness further deposed that after incident, the appellant did not come to school on Saturday. Sunday was a holiday and on Monday, he was apprehended by the villagers in the school itself.
Moreover, on different factual situation a witness reacts differently. If the mother or parents of the prosecutrix thought it proper to go by the advice of Lal Bahadur that in the event of reporting the matter to the police, the appellant might flee away. Therefore, the case would be lodged after apprehending the appellant in the school when the appellant would come to attend the school on Monday. It cannot be argued that the course of action was an unnatural conduct or unacceptable explanation. Therefore, in my view, the delay of two days in reporting the matter to the police has satisfactorily Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 21/27 been explained by the prosecution and there is no reason to imagine any concoction and manipulation in the FIR.
22. Plurality of the witness is not the requirement of law. In the case on hand, the prosecutrix is wholly reliable and corroborated by other reliable eyewitness and to a great extent by the medical evidence. Therefore, non-support of the prosecution case by some of the witnesses or for hostility of few witnesses, the testimony of the prosecutrix cannot be disbelieved.
23. In the case of Jarnail Singh vs The State of Haryana reported in 2013 Criminal Law Journal 3974, the Hon'ble Supreme Court said that the age of the victim of rape should be determined in the manner provided under Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007. There is no difference as regards minority between the child in conflict with law and the child who is victim of the crime. Rule 12 was adopted under Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which was applicable on the date of occurrence and the same read as follows:-
"Section 94 Presumption and determination of age.----(1) Where, it is Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 22/27 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 Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 23/27 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."
24. In the case on hand, the prosecution has produced the date of birth certificate from the school. The Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 24/27 genuineness of the certificate has not only been admitted by the Headmaster of the school vide D.W.1, rather it has not been challenged by the defence. Therefore, the best evidence of date of birth of the prosecutrix is on the record and only in absence of the aforesaid certificate, the medical opinion was to be looked into. Moreover, most of the prosecution witnesses including some of the hostile witnesses are specific that on the date of occurrence, the age of the prosecutrix was in between thirteen to fourteen years. The opinion of the Doctor does not show that she was sure about the age of the prosecutrix. Evidently, the prosecution has proved the age of the victim below eighteen years. Hence, the offence for which conviction has been recorded under the POCSO Act is applicable in the facts and circumstances of the case.
25. The cases relied upon by the learned Senior Counsel for the appellant and referred to above are not helpful in the facts and circumstances of this case as in both the referred cases several lapses in the prosecution evidence was noticed including the fact that the prosecutrix was not a "sterling witness".
26. To conclude;
(a) The prosecutrix of the case is a wholly reliable Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 25/27 witness as she is consistent throughout in support of the charge against the appellant and there is no evidence of any strong motive to make false attribution of the nature which would be a statement against the own chastity of the prosecutrix. Therefore, conviction of the appellant is sustainable only on the evidence of the prosecutrix itself.
(b) Moreover, the prosecutrix is corroborated by impeccable testimony of the eyewitness Ravi Ranjan Kumar and to a great extent, the prosecutrix finds corroboration from the testimony of the Doctor.
(c) The remoteness of the allegation and evidence of enmity between the appellant and son of a co-villager, even if assumed to be correct, does not inspire confidence that for that reason a minor girl would make a false statement against the appellant.
(d) The prosecution has successfully proved that the prosecutrix was a minor on the date of occurrence.
(e) Since corroboration is not the imperative component to prove the charge. Non-support of the case of the prosecution by some of the witnesses would not make any difference to place reliance on the trustworthy version of the prosecutrix.
Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 26/27 Therefore, in my view, the conviction of the appellant is founded on well proved evidences on the record which requires no interference.
27. The facts of this case, noticed above, clearly discloses that a case under Section 376(2)(f) of the India Penal Code is made out and proved against the appellant for which minimum punishment is rigorous imprisonment of ten years.
Likewise, the evidence on the record proves a case of aggravated penetrative sexual assault as defined under Section 5(f) of the Protection of Children from Sexual Offences Act, 2012 which reads as follows:-
"whoever being on the management or staff of an educational institution or religious institution, commits penetrative sexual assault on a child in that institution" comes within the definition of aggravated sexual assault and minimum punishment, prescribed under Section 6 of the Act, is ten years rigorous imprisonment.
The learned Trial Judge has awarded minimum punishment against the appellant. Hence, the Patna High Court CR. APP (SJ) No.3340 of 2019 dt.05-10-2021 27/27 sentences too requires no interference.
28. In the result, the trial court judgment and order of sentence are hereby affirmed and this appeal is dismissed.
(Birendra Kumar, J) Kundan/-
AFR/NAFR AFR CAV DATE 28.09.2021 Uploading Date 05.10.2021 Transmission Date 05.10.2021