Patna High Court
Md. Suhail vs The State Of Bihar on 12 April, 2023
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4329 of 2022
Arising Out of PS. Case No.-336 Year-2017 Thana- BIKRAM District- Patna
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MD. SUHAIL Son of Md. Sarfaraz R/V- Mozakka, P.S- Bikram, Dist- Patna.
... ... Appellant/s
Versus
The State of Bihar Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr.Ajay Kumar Thakur, Advocate
: Mrs.Vaishnavi Singh, Advocate
: Mr.Malay Kumar Choudhary, Advocate
For the Respondent/s : Mr.Syed Ashfaque Ahmad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV JUDGMENT
Date : 12-04-2023
1. The present appeal has been directed against the
judgment of conviction dated 18.11.2022 and order of sentence
dated 23.11.2022 passed by learned Additional Sessions Judge-VII
cum Special Judge, Protection of Children from Sexual Offences
Act (hereinafter referred to as POCSO), Patna in Special (POCSO)
Case No. 178/2017 arising out of Bikram P.S. Case No. 336/2017
whereby the accused (appellant/convict) has been convicted for the
offence punishable under Section 6 of the POCSO Act and has
been sentenced to undergo rigorous imprisonment for ten years
alongwith fine of Rs.50,000/- (fifty thousand) for the said offence
and in default of payment of fine he has to suffer two months
additional imprisonment.
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2. The name of victim has not been disclosed in the
present judgment to protect her prestige and dignity.
3. A written report submitted to S.H.O., Bikram Police
Station in the district of Patna under the signature of informant is
the basis for registration of First Information Report (hereinafter
referred to as FIR).
4. According to written report of informant (PW-2), the
occurrence is of 17.11.2017 at about 5.00 P.M. for which
information was given on 19.11.2017 at about 9.30 hours and
immediately whereafter FIR was registered. The prosecution case,
in brief, is that the victim aged about 8 years was lured by the
accused (appellant/convict) with a promise to give lemon to her
and on the pretext of taking lemon, the victim went away with the
accused (appellant/convict). When the victim did not return, the
informant went out for searching her. It is claimed by the
informant that she saw that accused (appellant/convict) made an
attempt to commit rape upon the victim in the husk room. It is
further claimed by the informant that the accused
(appellant/convict) fled away from the spot after noticing the
presence of the informant. After that, the informant cautioned the
family members of accused (appellant/convict) but she did not get
any positive response. It is further claimed that she gave
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application to police station on 19.11.2017 as there was no male
member at her house.
5. On the basis of written report of informant, Bikram
P.S. Case No. 336/2017 dated 19.11.2017 was initially registered
under Sections 376/ 511 of the I.P.C. and later on Sections 4, 6 and
8 of the POCSO Act were added. Routine investigation followed.
Statement of witnesses came to be recorded and on completion of
investigation, charge sheet has been submitted against the accused
(appellant/convict) under Section 354-B of the I.P.C. and under
Sections 4, 6 and 8 of the POCSO Act. Thereafter, the learned trial
court took cognizance against the accused (appellant/convict)
under the aforesaid sections. The learned trial court was pleased to
frame charges under Section 376 of the I.P.C. and Sections 4 and 6
of the POCSO Act. The charges were read over and explained to
the accused (appellant/convict) to which he pleaded not guilty and
claimed to be tried.
6. In order to bring home guilt of the accused
(appellant/convict), prosecution has examined altogether ten
witnesses. PW-1 is victim, PW-2 is mother of the victim and
informant of this case, PW-3 is grand-father of the victim, PW.-4 is
father of the victim, PW-5 is Shahjad Alam, PW-6 is Santosh
Kumar, PW-7 is Dilip Kumar, PW-8 is Ajayuddin, PW-9 is Imam
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Victoriya Bano and PW-10 is Ram Chandra Paswan who is
Investigating Officer of this case. Following documentary
evidence came to be exhibited on behalf of the prosecution:-
Exhibit-P-1(PW-1) is statement of victim
under Section 164 of Cr.P.C.
Exhibit-P-2 (PW-2) is the signature of the
informant on written application.
Exhibit-P-2/1 (PW-10) is the endorsement
and signature of the S.H.O. of Bikram Police Station.
Exhibit-P-3 (PW-10) is a formal FIR.
Defence of the accused (appellant/convict) as gathered
from the line of cross examination of prosecution witnesses as well
as from statement under Section 313 of the Cr.P.C. is that of total
denial. However, no defence witness was examined at the trial.
7. After hearing the parties, the learned trial court was
pleased to convict the accused (appellant/convict) and to sentence
him as indicated in the opening paragraph of this judgment.
8. Heard Mr. Ajay Kumar Thakur, learned counsel for
the appellant at sufficient length of time and following
submissions were made on behalf of learned counsel for the
appellant:-
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Learned counsel for the appellant submitted that the
prosecution completely failed to discharge its onus of proving
beyond all reasonable doubt that the victim was minor on the date
of occurrence. He further submitted that prosecution has not
produced any material for the purpose of establishing the age of
the victim as per the Juvenile Justice Act nor there is any such age
determination by the learned trial court and in view of judgment of
Hon'ble Supreme Court in the case of Jarnail Singh v. State of
Haryana reported in (2013) 7 SCC 263, it will be deemed that
prosecution has failed to establish that victim was minor on the
date of occurrence and this view has also been upheld by this
Court in catena of judgments. He further submitted that said
POCSO Act is an stringent law and initial burden of the proof of
criminal charges always rest with the prosecution in the light of
settled criminal jurisprudence and prosecution is bound to prove
the charges beyond all reasonable doubts and the prosecution
cannot take benefit of the lapses on the part of the defence and
prosecution has to stand on its own leg even in cases where there
is provision of adverse burden of proof that would attract only on
the discharge of initial burden by the prosecution. He further
submitted that the prosecution is bound to prove the exact age of
the victim in the light of statutory provision of Juvenile Justice
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(Care and Protection of Children) Act, 2015 (hereafter referred to
as J.J. Act) as the present occurrence took place on 17.11.2017.
9. Learned counsel further submitted that there is no
medical examination of the victim. On the said point, learned
counsel submitted that PW-2 (mother of victim ) has clearly stated
that there was no injury upon the body of victim due to which
medical examination of victim was not conducted. He further
submitted that victim herself stated that her medical examination
was not conducted and on the said point PW-10 (I.O.) has stated
that victim was not medically examined nor any cloth was seized.
PW-10 (I.O.) has further stated that during course of investigation
he did not find any case under Section 376 of the IPC and charge
sheet has been submitted under the order of supervising authority.
On the said score, learned counsel submitted that the finding of
trial court regarding the offence of penetrative sexual assault
cannot be proved beyond reasonable doubt. He further submitted
that in the present case, no medical examination of the victim as
well as appellant has been done as per Section 164-A and Section
53-A of the Cr.P.C. respectively and there is no medical
examination of a child under Section 27 of the POCSO Act. On the
said score, he submitted that in the case of Chotkau vs. State of
U.P. reported in AIR 2022 SC 4688 it has been held that same is
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fatal to the prosecution and it has become settled principle of law
in the light of ruling observed by Hon'ble Supreme Court in catena
of judgments.
10. Learned counsel further submitted that prosecution
witnesses have not supported the prosecution case fully, in that
situation the appellant will get the benefit of doubt as it was held
in Veerendra vs. State of M.P. reported in AIR 2022 SC 3379. He
further submitted that in the present case, full fledged prosecution
witnesses, namely, 6, 8 and 10 have stated that no occurrence as
alleged by the prosecution has taken place and due to the existing
land dispute, present case has been lodged. Similarly, PW-10 (I.O.)
in para 8, 9 and 10 of his deposition stated that witnesses stated
that the present case is a false case lodged on account of land
dispute. In para 11, PW-10 (I.O.) has stated that victim has not
stated that appellant has committed any wrong with her and thus in
view of the judgment of Hon'ble Supreme Court in case of Raja
Ram vs. The State of Rajasthan reported in (2005) 5 SCC 272, the
statement made by the witnesses on behalf of prosecution will be
binding on the prosecution and the accused will get its benefit. On
the said score, learned counsel submitted that full fledged
prosecution witnesses have not supported the prosecution case
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which will be binding on the prosecution and the appellant will get
its benefit.
11. Learned counsel for the appellant further submitted
that the victim does not come within the category of sterling
witness. He further submitted that statement of victim is quite
contradictory with the statement of initial version of prosecution
story. In initial version, it has been claimed by the informant that
attempt of rape was made against the victim but during the course
of trial victim herself has stated that her private parts have been
penetrated by the appellant and she is feeling pain which is quite
inconsistent with the initial version of prosecution story and
attention was also drawn by the defence in para 14 and 15 towards
her previous statement as to whether she has stated before the
police that wrong was done to her by the appellant. In para 15 she
admitted that before police she has stated that when Suhail was
opening her pant, her mother arrived. PW-10 (I.O.) has stated in
para 11 that victim has not stated before him that appellant
committed wrong against her. On the said point statement of
victim is quite contradictory during the course of adducing
evidence before the court and statement given before the I.O. In
that way, learned counsel for the appellant submitted that
statement of victim is not trustworthy and reliable and the same
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does not inspire confidence. He further submitted that she is not a
witness of high calibre and she cannot be put under the category of
sterling witness.
12. Mr. Syed Ashfaque Ahmad, learned Additional
Public Prosecutor appearing for the State submitted that PW-1,
PW-2 and PW-3, PW-7 and PW-9 have supported the age of the
victim and stated that at the time of incident victim was minor and
same is admitted by the defence as no objection was raised on the
point of age of the victim during cross examination. He further
submitted that statement of victim was recorded under Section 164
of the Cr.P.C. and she has supported the story of prosecution. He
further submitted that PW-1, PW-2 and PW-3 have supported the
story of prosecution. Victim herself has supported the case of the
prosecution. Learned APP for the State further submitted that
solitary evidence of prosecutrix is sufficient to prove the case of
the prosecution. To buttress the said submission he referred
judgment of Hon'ble Supreme Court rendered in the case of
Krishan Kumar Malik vs. State of Haryana reported in (2011) 7
SCC 130. He further submitted that finding of trial court is just
and due appreciation of the evidence and impugned judgment is
based on sound principle of law and hence, the impugned
judgment does not require any interference.
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13. I have perused the impugned judgment, order of trial
court and lower court records. I have given my thoughtful
consideration to the rival contention made on behalf of the parties
as noted above.
14. Based on the scrutiny of evidence adduced at the
trial, I find substance in submission made on behalf of the
appellant that the prosecution failed to prove, beyond all
reasonable doubts, the fact that the victim was minor as on the date
of occurrence. The Hon'ble Supreme Court has held in case of
Jarnail Singh v. State of Haryana reported in (2013) 7 SCC 263
that "though Rule 12 of the Juvenile Justice (Care and Protection
of Children) Rules, 2007 have been framed under the provisions of
Juvenile Justice (Care and Protection of Children) Act, 2000
(hereinafter referred to as Act 2000) is applicable to determine the
age of child in conflict with law, the aforesaid provision should be
the basis for determination of age even of a child who is a victim
of crime. The Court remarked that there was hardly any difference
insofar as the issue of minority was concerned, between a child in
conflict with law, and a child who is a victim of crime. Paragraph
22 and 23 of the said decision in case of Jarnail Singh (supra) can
be usefully referred to for clarity:-
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"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
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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
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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 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
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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
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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 of a child who is
a victim of crime. For, in our view, there is hardly
any difference insofar 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, PW 6. 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
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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 child concerned 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
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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 child concerned, on
the basis of medical opinion."
15. The date of occurrence in the present case is
17.11.2017. It is pertinent to note that Act of 2007 has been repealed by the Juvenile Justice (Care and Protection of Children) Act, 2015, ('The Act of 2015' for short). Section 94 of the Act of 2015 lays down the procedure for determining juvenility. Relevant part of sub-section (2) of Section 94, which provides substantially similar procedure as was prescribed under 2007 Rules, reads as under:-
"(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 Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 18/36 Board shall be completed within fifteen days from the date of such order."
16. Apparently, no exercise was carried out by the prosecution to establish that the victim was minor as on the date of occurrence by following the procedure prescribed under the Act in the light of reasoning put forth by the Supreme Court in case of Jarnail Singh (Supra). In the case of Sunil vs. the State of Haryana reported in AIR 2010 SC 392, the Hon'ble Supreme Court observed that conviction cannot be based on an approximate age of the victim. In State of Madhya Pradesh vs. Munna @ Shambhoo Nath reported in (2016) 1 SCC 696, the Hon'ble Supreme Court held that the evidence of approximate age of the victim would not be sufficient to any conclusion about the exact age of the victim.
17. In the present case, the prosecutrix was a literate girl as she has signed everywhere. Therefore, she must have been getting education somewhere. It is not the prosecution case or evidence that prosecutrix did not attend any school. As a matter of fact, no effort was made by the prosecution to establish the age of the victim in accordance with statutory provision. In this way, the contention of learned counsel for the appellant as submitted in foregoing paragraphs is quite tenable and sustainable. Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 19/36
18. It is necessary to evaluate, analyze and screen out the evidences of witnesses adduced before the trial court in the light of offence punishable under Section 6 of POCSO Act.
19. PW-1 is the victim herself and in her deposition her age is mentioned as 8/9 years. Before taking the deposition of minor victim who is of 8/9 years, the court has made observation that the victim is competent to adduce evidence. Subsequently, the court also satisfied with answers given by the victim but the court is totally silent on specific questions that were put to her, consequently it defeats the very foundation of Section 118 of the Indian Evidence Act which reads as under:-
118. who may testify- All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
In this way, the court has departed from said procedure of recording evidence and has erroneously committed error on record.
Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 20/36 In the light of aforesaid discussion, it can well be concluded that trial judge who has a child witness before him should preserve on record question and answer which could help the higher courts or courts of appeal; to come to conclusion whether the trial court judge decision of competency was right or wrong.
The victim has stated that the appellant lured her with a promise to give lemon and she went away towards Kharhi with appellant where there was tree of lemon and she sat over there and the appellant did not come with lemon and the appellant sat upon the victim by disrobing her and the appellant closed her mouth. When on alarm the victim's mother came the appellant went away. The victim has deposed that she has stated all the matters to her mother that had been happened against her but in her version during course of adducing evidence she has stated that the appellant penetrated her private part after sitting on her body. Her statement in paragraph 3 during deposition is quite inconsistent with the initial version of story of prosecution which is narrated by none else than the victim mother and victim herself in paragraph 5 has stated that whatever occurrence happened against her, she has told to her mother. In the light of said version of victim her deposition as PW-1 is quite contradictory in nature. She has stated Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 21/36 in paragraph 11 that her statement was recorded in the court prior to this and she was taken away by the police for the said purpose. She has further stated that whatever she stated before the court was tutored to her by the police.
20. Statement of victim recorded under Section 164 Cr.P.C. is merely a tutor version in the light of paragraph 11 of deposition of PW-1 (victim) where it is clearly stated that the statement was recorded at the behest of police. She has also stated in paragraph 8 that the house of appellant is in front of her house and there was dispute with regard to drainage between houses of the appellant and victim. She has stated in paragraph 12 that no medical examination was conducted and it has been stated before the police in paragraph 14 that the appellant committed wrong against her and in paragraph 15, she has stated before the police that when her pant was being opened by the appellant, her mother came but her statement in paragraph 14 is totally negated by PW- 10 (I.O. of the case) in paragraph 11 that the victim has never stated that the appellant committed wrong against her.
21. The statement of victim recorded under Section 164 of the Cr.P.C. is merely a tutored version of the police as words were put to victim's mouth by the police itself and in this context, the statement of victim under Section 164 of the Cr.P.C. in which it Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 22/36 was recorded that she was lured by the police on the pretext of giving lemon and she was undressed and wrong was committed against her by the appellant. The aforesaid statement of victim lost its credibility and the same hits at the very root of the story of prosecution.
22. From perusal of statement of PW-10 (I.O.), it is crystal clear that victim's statement is totally inconsistent with the statement of PW-10 as stated in paragraph 11 of the deposition. From perusal of evidence adduced by PW-1, her statement is full of contradictions as initial version of story of prosecution is not consistent with the evidence adduced by the victim as mentioned in paragraph 3 that she was raped by the appellant. On the said point PW-2, who is the informant of the present case has stated in paragraph 13 of her cross-examination that body of victim does not have any injury, hence, medical examination was not conducted. In this way, the statement of victim is quite contradictory in nature with the statement of informant (PW-2).
23. PW-2 is mother of victim and informant of the case and she has stated before police in paragraph 11 that the appellant sat on the body of the victim after disrobing her (on said point attention of victim's mother has been drawn by defence) but on the said point PW-10 (I.O.) has totally negated the version of Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 23/36 PW-2 (informant) that victim's mother has not stated before PW- 10 that the appellant sat on the victim after disrobing her. In this way, her statement is also quite contradictory.
24. PW-3 is grand-father of the victim. This witness is not eye witness of the occurrence and he has heard from victim and her daughter-in-law that the victim was being thrashed and she was being forced for indecent conduct and appellant went away after noticing presence of informant's mother. In this way, the present witness is a hearsay witness.
25. PW-4 is father of the victim. This witness is not eye witness of the occurrence. This witness stated that he was informed through phone by his wife that occurrence took place against her daughter. He has stated that his daughter stated that she was raped by the appellant by disrobing her but his version in paragraph 1 has been negated by PW-10 (I.O.) in paragraph 12 that the father of the victim has never stated before him that there was an attempt to commit rape after undressing the victim. In this way, he is hearsay witness and his statement is quite inconsistent with the statement of PW-10 as stated in paragraph 12 of his deposition.
26. PW-5 is Shahjad Alam. This witness stated that he does not know about the occurrence and his statement was recorded by the police and he has stated that the appellant has been Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 24/36 falsely implicated on account of land dispute and he has been declared hostile.
27. PW-6 is Santosh Kumar. This witness stated that he knows the occurrence and he has heard that false charge of rape was made against the appellant. He has further stated that his statement was recorded by police. He further stated that there was land dispute between both sides and Md. Sonu @ Rafique threatened the appellant for dire consequences. This witness has not been declared hostile though he has not supported the case of the prosecution and his evidence is quite consistent with the evidence adduced by PW-10 (I.O.) in para-9 that said witness PW- 6 (Santosh Kumar) has stated before the PW-10 (I.O.) that Sonu @ Rafi induced the informant to file false case in thana by the victim and PW-2 has stated in para-9 that the written application was in the writing of Rafi. In this way the role of Rafi is quite visible in the present case but he has not been examined.
28. PW-7 is Dilip Kumar. This witness stated that he does not know the occurrence and he has been declared hostile.
29. PW-8 is Ajayuddin. This witness stated that his statement was recorded by the police and land dispute was going on between informant and family member of appellant and he has stated in para-3 of cross examination that appellant did not commit Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 25/36 any occurrence against the victim. The said witness has not been declared hostile by the prosecution though he has not supported the case of the prosecution and his evidence is fully consistent with the evidence of PW-10 (I.O.) as mentioned in para-10 that he has stated before the police that there was land dispute between the informant and appellant and no occurrence took place against the victim. In this way, the statement of this witness before the police is quite consistent with the statement adduced before the court and full fledged prosecution witness has supported the case of the defence.
30. PW-9 is Imam Victoriya Bano. This witness has stated that no occurrence took place against the victim. She stated that the police has recorded her statement. This witness has been declared hostile.
31. PW-10 (Ram Chandra Paswan) is Investigating officer of this case. This witness recorded the statement of PW-1 (victim), PW-2 (informant) and some other witnesses. This witness (I.O.) stated that nothing significant was found on spot during his investigation. This witness has stated that during the course of investigation medical examination of victim was not conducted nor clothes of victim were seized. He has stated in para-14 of his deposition that there was land dispute between appellant and Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 26/36 family of informant but he did not conduct any investigation on the said point and he did not find any case under Section 376 of IPC during course of the investigation and he submitted charge sheet on the order of supervising officer. In this way, the statement of PW-10 (I.O.) is crystal clear that neither medical examination of victim was conducted nor her clothes were seized.
32. From perusal of the FIR, it is crystal clear that occurrence took place on 17.11.2017 at about 5:00 PM and information regarding the said occurrence was given to concerned police station on 19.11.2017 at 9:30 hours when place of occurrence is merely 6 km. away from the concerned police station as she has made bald statement which is not categorical on the point of availability of male member. On the said point the PW-10 (I.O.) has stated in para-6 of his deposition that information was given to thana on 19.11.2017 though the occurrence took place on 17.11.2017 and it has been deposed by the PW-10 (I.O.) that there was column no. 8 in formal FIR for giving the reasoning for delay regarding belated information but the said column does not indicate any reason for belated information. The statements given by the informant as well as by the I.O. lack coherence and are not in synced with each other. In the light of aforesaid fact, the prosecution story is surrounded with the suspicion which clearly Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 27/36 reflected not only in the initial version of the prosecution story but same is admitted by the PW-10 (I.O.) that there is column for recording the reason of delay while sending belated information but the said column does not indicate any reason for belated information.
33. In the present case, it is necessary to cite a decision rendered by Hon'ble Supreme Court in the case of Rai Sandeep @ Deepu reported in 2012 (8) SCC 21 in which the Hon'ble Supreme Court said that before relying on the sole testimony of the prosecutrix, the court must be satisfied that the prosecutrix is a "sterling witness"
Para 22 of the judgment is being reproduced below:
"22. In our considered opinion, the 'sterling witness should be of a very high quality and caliber 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 Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 28/36 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 everyone 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 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 similar such tests to be applied, it can 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. Now the question is whether the prosecutrix of this case is a sterling witness. In the present case, the statement of Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 29/36 victim has already been discussed in foregoing paragraphs. Her statement is quite contradictory in nature on vital points. She herself stated in para 14 that she has stated before the police that appellant committed wrong against her. During the course of cross examination attention of this witness has been drawn by the defence on the aforesaid point and on the said point PW-10 who is I.O. of the case has stated in para 11 of his cross examination that victim has not made statement that wrong was committed against her by the appellant. The aforesaid contradictions on the said point are hitting the foundation of prosecution case and in that context, the version of PW-1 who is victim of the case gave fatal blow to the story of prosecution. In para 5 of her deposition victim has stated that whatever occurrence happened against her, she has told to her mother. The initial version of prosecution story is narrated by none else than the PW-2 (victim's mother) who stated that appellant made an attempt to commit rape which is totally inconsistent with the evidence of PW-1 (victim) as mentioned in para 3 of her deposition in which she has stated that her private parts have been penetrated by the appellant. The victim has stated in para 11 of her cross examination that her statement was recorded in the court prior to this and she was taken away by the police for the said purpose. She has further stated that whatever Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 30/36 she stated before the court was tutored to her by the police. In the light of victim's statement recorded at para 11 of her deposition indicates that her statement recorded under Section 164 of the Cr.P.C. is nothing but purely a tutor version of police and words were put to her mouth by the police which does not inspire confidence and statement under Section 164 of Cr.P.C. has lost its credibility for the purpose of corroboration and therefore, she cannot put into category of sterling witness. PW-2, the mother of victim has stated that there was no injury on the body of victim hence medical examination of victim was not conducted. PW-10 (I.O.) stated that neither medical examination of victim was conducted nor her clothes were seized.
35. Learned counsel of the appellant submitted that in light of Section 53A of the Cr.P.C., the appellant has not been examined and non examination of appellant was certainly fatal to the prosecution case.
36. I consider at this juncture useful to refer to Section 53 A of the Cr.P.C., which ordains that when a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 31/36 medical practitioner, as mentioned in the said provision. Section 53 A of the Cr.PC., read as under:-
53-A. Examination of person accused of rape by medical practitioner-(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 32/36
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause
(a) of sub-section (5) of that section.]
37. It is true that said provision is not mandatory in character, in court's opinion the said provision enables the Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 33/36 prosecution to conduct the examination of victim in a manner as to substantially establish a charge of committing an offence of rape.
38. In this respect, it is necessary to discuss oft quoted judgment of Hon'ble Supreme Court in case of Chotkau v. State of Uttar Pradesh reported in AIR 2022 SC 4688 whereby it has been observed that failure of the prosecution to subject the appellant to medical examination was certainly fatal to the prosecution's case especially when the ocular evidence was found to be not trustworthy.
39. The contention of appellant in the light of Section 29 of POCSO Act is quite tenable in the light of fact that there was failure on the part of prosecution to establish the essential fundamental facts to attract the provision of POCSO Act.
40. Learned counsel for the appellant further submitted that in the present case there is no compliance of Section 164-A of the Cr.P.C. as victim was not medically examined which is evident from the deposition of PW-1 (victim) herself, PW-2 (mother of the victim) and PW-10 (I.O.). On the said point, contention of learned counsel for the appellant is quite tenable and sustainable in the light of discussions made in foregoing paragraphs and the same was fatal to the prosecution case.
Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 34/36
41. From perusal of evidence adduced by PW-1 (victim), it is clear that she made contradictory statements on vital points and on this score, contention of learned APP for the State is not tenable and sustainable that victim comes under the category of sterling witness and her solitary evidence is sufficient to prove the case of the prosecution.
42. Now, in the light of evidence adduced by the prosecution, it is crystal clear that PW-6 Santosh Kumar and PW- 8 Ajayuddin are full fledged prosecution witnesses but they have not supported the case of the prosecution rather they have supported the defence case by deposing that there was land dispute between both sides and Rafi threatened the appellant for dire consequences and role of Rafi is quite visible in the statement of PW-2 (victim's mother) that the written report is in the writing of Rafi though he has not been examined on behalf of the prosecution. Further the deposition of PW-6 and PW-8 is quite consistent with the statement of I.O. who has deposed in the court as PW-10 and their version before the police is quite consistent with the evidence adduced before the court. The contention of learned counsel for the appellant that in the present case, PW-6 and PW-8 who are full fledged witnesses but they have not supported the case of the prosecution rather they have supported the case of Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 35/36 defence is quite tenable and sustainable in the light of judgment of Hon'ble Supreme Court rendered in Raja Ram (Supra) and Veerendra (Supra) and the same view is reiterated in Mukhtiar Ahmad Ansari Vs. State (NCT of Delhi), reported in (2005) 5 SCC 258.
43. It is worth to note here that the trial court has not given any finding regarding the charges framed under Section 376 of the IPC and Section 4 of the POCSO Act in concluding part of its judgment which is bad in the eye of law and the concerned court has passed the judgment of conviction under Section 6 of POCSO Act.
44. On all counts from the analysis of evidence adduced during trial, it is crystal clear that offence under Section 6 of the POCSO Act has not been proved beyond reasonable doubt and benefit of doubt goes in favour of the appellant.
45. In the result, in my view, prosecution case suffers from several infirmities, as noticed above, and it was not a fit case where conviction could have been recorded. The learned trial court fell in error of law as well as appreciation of facts of the case in view of settled criminal jurisprudence. Hence, impugned judgment of conviction and order of sentence are hereby set aside and this Patna High Court CR. APP (SJ) No.4329 of 2022 dt.12-04-2023 36/36 appeal stands allowed. The appellant is in custody. Let him be released forthwith, if he is not warranted in any other case.
(Alok Kumar Pandey, J) Amitkumar/-
Shahzad AFR/NAFR AFR CAV DATE 05.04.2023 Uploading Date 12.04.2023 Transmission Date 12.04.2023