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IN THE HIGH COURT OF JUDICATURE AT PATNA
Aditya Kumar Trivedi, J.
Hasmuddin, S/o Mustakim Alam @ Mustakim Mian – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (SJ) No.2083, 2135, 2266 of 2017
Decided On : 16-02-2018
POCSO Act - Conviction under Section 4 and 6 - [POCSO Act] - [Section 4, Section 6] - The court found that the prosecution failed to substantiate its case beyond all reasonable doubt, and the evidence of the victim did not find consistency. The judgment of conviction was set aside, and all the appeals were allowed.
Fact of the Case:
The victim, aged about 15 years, alleged that she was raped by the appellants at a hotel after being lured by one of the appellants. The case was registered under Section 4 and 6 of the POCSO Act.
Finding of the Court:
The court found that the prosecution failed to substantiate its case beyond all reasonable doubt, as the evidence of the victim did not find consistency and the medical evidence did not support the allegation of recent sexual assault.
Issues: The issues revolved around the credibility of the victim's evidence, the lack of corroboration from other witnesses, and the medical evidence regarding the age and signs of sexual assault on the victim.
Ratio Decidendi: The court held that the prosecution must substantiate its case beyond all reasonable doubt, and inconsistencies in the victim's evidence and lack of corroboration affected the credibility of the case.
Final Decision: The judgment of conviction was set aside, and all the appeals were allowed, leading to the release of the appellants.
Cr. Appeal (S.J.) No.2083 of 2017 wherein Hasmuddin is the appellant, Cr. Appeal (S.J.) No.2135 of 2017 wherein Raj Kumar is the appellant and Cr. Appeal (S.J.) No.2266 of 2017 wherein Rahul Kumar @ Rahul is the appellant commonly originate against the judgment of conviction dated 19.06.2017 and order of sentence dated 22.06.2017 passed by the 1st Additional Sessions Judge-cum-Special Judge, West Champaran at Bettiah in Bettiah (Mufassil) P. S. Case No.450 of 2015, S.G.R. No.69 of 2015 whereby and whereunder all the appellants have been found guilty for an offence punishable under Section 4 of POCSO Act and sentenced to undergo R.I. for 10 years as well as fined of Rs.10,000/- and in default thereof, to undergo S.I. for one month, additionally, under Section 6 of the POCSO Act and sentenced to undergo R.I. for 10 years as well as to pay fine appertaining to Rs.10,000/- and in default thereof, to undergo S.I. for one month, additionally, with a further direction to run the sentences concurrently with a further direction that the period having undergone during course of trial will be set off in accordance with Section 428 of the Cr.P.C., accordingly, been heard together and are being decided by a common judgment.
2. Name withheld, the victim (PW-1) filed written report on 01.08.2015 at about 5.00 p.m. alleging inter alia that she happens to be aged about 15 years. She is resident of village-Khuda Nagar, P.S.-Town Motihari, District-East Champaran and for the present, she is residing with her sister at her sasural lying at village-Damkakola, P.S. Nautan. During course of in and fro from Motihari to the place of her sister, she developed acquaintance with Raj Kumar son of Sh. Surendra Sah @ Harendra Sah aged about 22 years, resident of mohalla-New Bus Stand, P.S. Town, Bettiah and on account thereof, they indulged in frequent conversation over mobile. Continuing with the aforesaid event, he used to call her at Bettiah where she used to enjoy his company and then, returned back to place, sasural of her sister. On 31.07.2015 at about 1.00 p.m., he (Raj Kumar) informed her to come ready and accordingly, she came at Nautan Chowk and was waiting for him. He came on bike. She accompanied him. He came to Bettiah Railway Station where his two friends were present since before whom, Raj Kumar disclosed as Rahul Kumar @ Rahul aged about 23 years son of Teeman Prasad and the another Hasmuddin aged about 25 years son of Mustakim Alam @ Mustakim Mian of New Bus Stand, P.S. Town Bettiah. Then thereafter, all the three took her to Raja Line Hotel where she was kept in a room. The owner of the hotel Rinku Kumar provided accommodation. When the hotel closed at about 11.00 p.m., Rahul Kumar, Hasmuddin and Masoom along with Raj Kumar raped her one by one. She raised cry, wept, but they have not listen and continued in raping her. Then thereafter, she was confined in a room. Today, at about 11.00 a.m., Raj Kumar and his associate took her to Imli Chowk and left her directing to go to her house. After their departure, anyhow she came to Police Station where submitted written report.
3. Bettiah Sadar (Mufassil) P. S. Case No.450 of 2015 was registered under Section 4, 6 of the POCSO Act followed with an investigation as well as submission of charge-sheet, which happens to be the basis for conduction of trial which concluded in a manner, subject matter of instant appeal.
4. Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial of the occurrence. However, neither ocular nor documentary evidence has been adduced on their behalf.
5. In order to substantiate its case, prosecution had examined altogether six PWs and those are PW-1, victim, PW-2, Sheikh Afsar, PW-3, Islamun Nesa, PW-4, Zikrullah, PW-5, Dr. Manju Jaiswal and PW-6, Om Prakash, the I.O. Side by side, had also exhibited the signature of informant over written report as Exhibit-1, her signature ove
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