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2020 Supreme(Pat) 390
IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Md Nehal - Appellant
Versus
State of Bihar - Respondent
Criminal Appeal (Sj) No. 1460 of 2020
Decided On : 21-12-2020
Ajay Kumar Thakur, Advocate, Md Imteyaz Ahmad, Advocate, Sujeet Kumar Singh, Advocate
Headnote:
Protection of Children from Sexual Offences Act,2012 – Sections 6 and 42 – Indian Penal Code, 1860 – Section 376(1) – Rape of minor girl – Conviction and sentence – Deposition of PWs are inconsistent with claim of victim – Benefit of inconsistency would go in favour of accused – Promptness in lodging FIR is assurance regarding truth of informant's version – If there is delay in lodging FIR it loses advantage of spontaneity – Victim immediately reported the matter to her mother – However, matter was not reported to police – Non-corroboration of statement of victim with medical evidence is one of doubtful circumstance of prosecution case – Witness is specific that no occurrence of rape took place in his field – If a witness is not declared hostile by prosecution, defence can rely upon evidence of such witness and it would be binding on prosecution – Victim was in consensual physical relationship and prosecution has suppressed real fact – Overall available material on the basis of prosecution evidence would show that victim was having old physical relationship as found by doctor – It is a case of serious doubt on prosecution case and benefit must go to appellant – Impugned judgment and sentence set aside – Appeal allowed. (Paras 8, 9, 10, 11, 12, 14 and 15)
(2005) 5 SCC 272; (2005) 5 SCC 258; AIR 2004 SC 978; (2018) 9 SCC 248 – Relied.
JUDGMENT
Birendra Kumar, J. - The sole appellant Md. Nehal faced trial before the learned Special Judge under POCSO Act, Samastipur, in connection with Singhia P.S. Case No.76 of 2017, corresponding to Trial No.38 of 2020 for offences under Section 376(1) of the Indian Penal Code and under Section 6 of the POCSO Act.
2. By the impugned judgment and order dated 18.02.2020 and 20.02.2020 respectively the appellant was found guilty for both the above offences. However, only under Section 6 of the POCSO Act sentence was awarded considering provisions of Section 42 of the said Act. The learned trial Judge directed the appellant to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- (Fifty thousand). In default of payment of fine simple imprisonment of six months was ordered. The fine was ordered to be paid to the victim or her family members.
3. The prosecution case as disclosed in the written report of PW 10 Jannati Khatoon, the mother of the victim girl, is that on 11.05.2017 at about 4:30 PM, the victim aged about 13 years, had gone to answer the call of nature in the field-side. The appellant who is co-villager allegedly caught the victim from behind and committed rape against her. According to the informant, the victim was suffering from mental disability. After return to the home the victim disclosed everything what had happened with her. The people assembled for social resolution of the aforesaid act. However, the appellant refused to go by their verdict. Hence, the matter was reported to the police on 15.05.2017.
4. After investigation the police submitted charge sheet against the appellant and charges under the aforesaid counts were framed by the learned trial Judge.
5. The prosecution examined altogether 11 witnesses. PW 1 Dr. A.N. Sahi and PW 8 Dr. Kranti Kumari were Chairmen and Member of the Medical Board constituted for the medical examination of the victim. PW 2 Md. Chhotan supported the prosecution case as hearsay witness. PW 3 Lalan Prasad Singh and PW 4 Santosh Kumar Singh deposed that at the time of occurrence they were nearby the place of occurrence and no such occurrence had taken place. The maize field wherein the rape was allegedly committed belongs to PW 3 Lalan Prasad Singh. Though PW 3 has been declared hostile by the prosecution but the cross-examination of PW 3 by the prosecution does not reveal that in fact this witness was a hostile witness or he had made statement in the Court contrary to what he had stated before the police. PW 5 Md. Aziz deposed that on the next day of occurrence the villagers called Panchaity and it was decided that the appellant would marry with the victim girl. When the appellant refused, the matter was reported to police. PW 6 Md. Azad is father of the victim and is a hearsay witness on the actual occurrence. PW 7 Md. Badruddin is a co-villager who supported the prosecution case as hearsay witness and further deposed that he was one of the Punch in the matter and the Panchayat asked the appellant to marry with the victim girl and to pay Rs.2,50,000/- to Rs.3,00000/- as fine to the victim. The appellant refused. Hence, the matter was reported to the police. PW 9 is the victim girl herself. PW 11 Mantasha Praveen claims to be an eyewitness of the occurrence. However, she is not consistent in her statement to that of her statement before the police nor she is corroborated by the victim girl that she was also present along with the victim girl at the time of occurrence.
6. Mr. Ajay Kumar Thakur, learned counsel for the appellant, contends that the sole testimony of the victim girl is not reliable in view of the statement of PW 3 and PW 4 that at the time of occurrence they were watching their field nearby the place of occurrence and no such occurrence had taken place. These witnesses are prosecution witnesses and there is nothing in their deposition to doubt about the correctness of their statement. Learned counsel contends that the doctor did not find any sign of
