Shonu Kumar Paswan S/o Shivji Paswan vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Pat) 901

IN THE HIGH COURT OF JUDICATURE AT PATNA
BIRENDRA KUMAR, J.
Shonu Kumar Paswan S/o Shivji Paswan – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal (SJ) No. 5420 of 2019
Decided On : 01-12-2021

Advocates:
Advocate Appeared:
For the Appellants : Mr. Vikas Kumar Sharma, Mr. Subhash Kumar Jha.
For the Respondent: Mr. Sujit Kumar Singh.

Headnote:
Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Sections 366A and 376 – Juvenile Justice (Care and Protection of Children) Act, 2015 – Section 94 – Kidnapping and rape of minor girl – Testimony of eyewitnesses including victim would make it clear that victim had gone along with appellant with her freewill – Victim got seated on motorcycle of appellant as pillion and no one was there to prevent her from jumping of motorcycle or to make alarm – Other eyewitnesses were there to make alarm but they did not choose nor victim made any alarm, goes to show that she was not taken away by force – She travelled and stayed with appellant for two months at different places but she did not make any protest or alarm in spite of fact that she had sufficient opportunity while travelling in a bus along with co-passengers or travelling in a train along with co-passengers or staying in a room where others were there in vicinity – Only after institution of criminal case she appeared and levelled allegation against appellant – Victim was in consensual relationship with appellant and unless it is proved that she was a minor on date of occurrence her consent assumes importance to negate charges against appellant – Prosecution has relied only on approximate age of prosecutrix to prove that she was a minor – Mere opinion of approximate age cannot be relied upon in absence of evidence or report of Radiologist – Prosecution had failed to produce any school admission form which would have been primary evidence regarding age of prosecutrix – Though school leaving certificate was produced in that case which was obtained subsequent to institution of the FIR – Prosecution has not brought on record school document in support of age of victim though victim was a school going student as claimed by her elder sister – Conduct of victim would lead to only irresistible conclusion that she was in consensual relationship with appellant – None of charges stand proved against appellant – Promptness in lodging First Information Report is assurance regarding truthfulness of informants' version – If there is delay in lodging FIR and there is no reasonable explanation for the same it loses advantage of spontaneity – Appellant acquitted. (Paras 8 to 16)

JUDGMENT :

BIRENDRA KUMAR, J.

1. The sole appellant has questioned his conviction for offences under Sections 366A and 376 of the Indian Penal Code as well as under Section 4 of the POCSO Act, recorded by the learned Special Judge, Madhubani, in Jaynagar P.S. Case No. 168 of 2016, corresponding to G.R. No. 1548 of 2016. The judgment of conviction was passed on 24.09.2019 and by order of sentence dated 25.09.2019 the learned trial Judge awarded ten years rigorous imprisonment and a fine of rupees ten thousand for each of the three offences. Sentences are to run concurrently.

2. The prosecution case as disclosed in the written report of PW-7, Ashok Paswan, is that his daughter, aged about 12 years, had gone to the market on 09.07.2016, at about 5 P.M. along with her elder sister Chanda Kumari (PW-3) and a friend Sarita Kumari (PW-2). Sarita and Chanda went inside a shop whereas the daughter of the informant stayed on the road alone. In the meantime, the appellant came on a motorcycle and got the daughter of the informant seated on rear and kidnapped her. The two girls made alarm, however, the appellant had already fled away from there. The parents of the appellant were also alleged to be involved in the said kidnapping. The informant kept persuading the family members to bring back the girl, even panchaity was convened but it proved futile.

3. Thereafter, the written report was lodged on 23.07.2016. The victim suo motu appeared before the Mahila P.S. Madhubani and her medical examination was done on 27.08.2016 vide medical report as Exhibit-5 and her statement under Section 164 Cr.P.C. was recorded on 29.08.2016 before the Magistrate vide Exhibit-1.

4. During trial prosecution examined altogether ten witnesses which are fully referred in the trial Court Judgment.

5. Mr. Vikas Kumar Sharma, learned counsel for the appellant, contends that it is consistent version of the defence and it would be evident from the testimony of the prosecution witnesses especially PW-1 the victim girl that the matter was of affairs between the appellant and the victim. That is the reason that the so called victim never made any protest or alarm while travelling on public conveyances, such as, bus or train to different places along with the appellant. It would further appear that she stayed along with the appellant in Nepal for one month and, thereafter, at Delhi for one month. During the period she had sufficient opportunity to meet other people but she never made any complaint of any act of the appellant. Only interested witnesses have been produced and no independent witness has come to support the case of the prosecution though the alleged kidnapping took place in the market area. In fact, the victim was a major and the prosecution deliberately did not produce her school document in support of her date of birth nor her parents, who were examined as PW-5 Anila Devi and PW-7 Ashok Paswan, stated about her actual date of birth. The doctor has found secondary sexual character well developed vide evidence of PW-8 Dr. Gargi Singh and PW-9 Dr. Rama Jha. Though the medical Board opined that the victim was in between 16 to 17 years but the finding is based on radiological examination. Neither the radiological report was produced before the Court nor the expert who had performed the radiological examination was produced by the prosecution. The delay in FIR is deliberate one and chances of concoction cannot be ruled out because PW-7 in para-6 denied that he had ever convened any panchayat whereas he has stated in the written report (Exhibit-4) that the delay in lodging the FIR was due to Panchayat of the occurrence convened by him.

Learned counsel contends that PW-3 vide paragraph-6 has admitted that the victim was a student of Class-VII. Therefore, the prosecution should have brought the best evidence in support of date of birth of the victim to prove that the victim was a minor on the date of occurrence.

Reliance has been placed on the judgment of this Court in Arj