Bipin Rajvanshi vs State Of Bihar - 2021 Supreme(Pat) 458

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 458

IN THE HIGH COURT OF JUDICATURE AT PATNA
Birendra Kumar, J.
Bipin Rajvanshi - Appellant
Versus
State Of Bihar - Respondent
Criminal Appeal (S J) No. 2662 of 2018
Decided On : 28-07-2021

Advocates Appeared:
Ajay Kumar Thakur, Advocate, Md Imteyaz Ahmad, Advocate, Bipin Kumar, Advocate

Headnote:
Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 363 and 376 – Kidnapping and rape of girl child – Conviction and sentence – Testimony of victim of rape stands at par with an injured witness and there is no need for corroboration of same if victim is found to be a sterling witness – In criminal trial prosecution is bound to prove charges against accused beyond reasonable doubts and not by preponderance of probabilities – Once prosecution failed to prove that victim was below 18 years of age, evidence of her consent, assumes importance – Conduct of victim goes to show that she has merely levelled allegation of use of force by appellant – Conduct of victim depicts that she had voluntarily accompanied appellant to different places without making any protest, alarm etc. – She never made any protest or alarm when accompanying with appellant in a bus or in a train where other passengers were available – There is serious contradiction as to from where victim was taken by appellant as per testimony of victim and testimony of prosecution witnesses – Benefit of doubt must go to accused – Impugned judgment of conviction and order of sentence set aside. (Paras 6 to 8)
Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Juvenile Justice (Care and Protection of Children) Rules, 2007 – Rule 12 – Age of victim of rape should be determined in manner provided under Rule 12 of Rules, 2007--There is no difference as regards minority between child in conflict with law and child who is victim of crime – Only in absence of school documents, other evidences are permissible to determine age of juvenile victim. (Paras 5 and 6)
(2016) 1 SCC 696; (2009) 9 SCC 248; 2013 CRI. L.J. 3976 – Relied.

JUDGMENT

Birendra Kumar, J. - The sole appellant Bipin Rajvanshi got conviction for offences under Sections 363 and 376 of the Indian Penal Code as well as under Section 6 of the POCSO Act by learned 1 st Additional Sessions Judge-cum-Special Judge (POCSO), Nawada, in POCSO Case No. 4 of 2016, arising out of Nardiganj P.S. Case No.173 of 2015. The learned trial Judge awarded rigorous imprisonment for five years for offence under Section 363 of the Indian Penal Code. A fine of rupees ten thousand and in default of payment of fine three months simple imprisonment was also ordered. No separate sentence was awarded under Section 376 of the Indian Penal Code considering the provisions of Section 42 of the POCSO Act; rather ten years rigorous imprisonment and a fine of rupees fifty thousand was awarded under Section 6 of the POCSO Act and in default of payment of fine six months rigorous imprisonment was ordered. The judgment of conviction dated 18.04.2018 and order of sentence dated 20.04.2018 are under challenge in this appeal.

2. The prosecution case as disclosed in the written report dated 10.12.2015 of Gaya Mistri (PW 3) is that on 04.12.2015, at about 12:00 Noon, Shabo Kumari and Manoj Kumar Rajvanshi, both daughter and son of Nande Rajvanshi, came to the house of the informant and asked the minor daughter of the informant to accompany for village Sobhiya where marriage of the appellant was to be solemnized. They further promised that they would return after solemnization of the marriage. Nande Rajvanshi and his wife were also present at that time. The appellant is Dewar of the daughter of Nande Rajvanshi. It is further disclosed that the appellant, who is disabled from one leg, was residing since last 2 to 3 months in village Nardidih, i.e., village of the informant, and was doing contract work at brick kiln in the village. After two days, the family members of Nande Rajvanshi returned but the daughter of the informant (PW 10) did not return. Then informant got suspicion that all have kidnapped to his daughter for the purpose of marriage. Thereafter informant and others started search out of the victim but did not succeed to get her traced out. Thereafter, FIR was lodged on 10.12.2015.

During investigation the appellant and the daughter of the informant were recovered by the police from the house of Naresh Rajvanshi in village Simarpole, P.S. Rujauli, District-Nawada vide evidence of Investigating Officer (PW 12) at para6. Then the statement of the victim was recorded under Section 164 Cr.P.C. before the Magistrate. The victim has admitted about her statement before the Magistrate, while being examined as PW 10. According to the statement of the victim under Section 164 Cr.P.C., on 04.12.2015 at about 10:00 AM, she was going to school when she reached at the bridge near Nardiganj P.S. the appellant was already standing there. The appellant caught her hand and forcefully took her in a bus. Both reached Patna and from Patna they took train for Mumbai. At Mumbai the appellant and the victim remained in the rented house for three days and the appellant was in physical relation with her. Thereafter, appellant came along with the victim to the village.

After investigation the police submitted charge sheet and accordingly the appellant was put on trial.

3. The prosecution examined altogether 12 witnesses. No defence evidence was produced. PW 1 Dinesh Prasad Singh, PW 2 Rekha Devi, the mother of the prosecutrix, PW 3 Gaya Mistri, the father of the victim girl, have consistently supported the manner of occurrence as disclosed in the FIR which is inconsistent with the statement of PW 10 regarding the place and manner of kidnapping of the victim. PW 4-Upendra Paswan, PW 5-Raj Kumar Rajvanshi, PW 6- Ratan Manjhi, PW 7-Nablesh Rajvanshi and PW 8-Shiv Rajvanshi have supported the prosecution case as hearsay witnesses. PW 9 Dr. Raj Kishore Prasad is a member of the Medical Board which had examined the victim along with PW 11 Dr. Sudha Kumari Sh