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2021 Supreme(Pat) 971
IN THE HIGH COURT OF JUDICATURE AT PATNA
BIRENDRA KUMAR, J.
Pawan Kumar Mahto @ Pawan Kumar Singh - Appellant
Versus
The State of Bihar - Respondent
Criminal Appeal (Sj) No. 4237 of 2018
Decided On : 23-03-2021
For the Appellant : Mr. Ramakant Sharma, Sr. Adv., Mr. Rakesh Kumar Sharma.
For the Respondent: Mr. Sujit Kumar Singh, APP.
Headnote:
Indian Penal Code, 1860 – Sections 366(A) & 376 & POCSO Act – Section 4 – inducing a minor girl and rape – conviction based on sole testimony of the prosecutrix – the law is well settled that the evidence of victim of sexual assault stands on a pars with the evidence of an injured witness – corroboration is not an imperative component of judicial credence in every case of rape – however, before relying on the sole testimony of the prosecutrix, the Court must be satisfied that the prosecutrix is a "sterling witness" – in the case on hand the conduct of the victim, in accompanying the accused persons even after commission of rape by them to the Jainagar Railway Station and boarding train there at alongwith the accused, relying on the statement of the accused that they would return after taking betel, leaves impression that she was a willing party – the victim met with an unknown person on train and accompanied him to Gujarat on assurance of that person to marry with her knowing well that someone had just cheated her, creates serious doubt that victim is not disclosing some more real facts – conduct of the father of the victim does not inspire confidence that the family members were unaware of the actual affairs and if they were really unaware, they levelled allegation against the appellant in an afterthought and pre-planned manner – on the touchstone of the test of "sterling witness" and on consideration of the testimony of the prosecutrix, she is not a "sterling witness" – there is lack of corroboration on material particulars – conviction set aside – appeal allowed. (Paras 10, 12, 15 & 16)
2005(5) SCC 272, 2005(5) SCC 258, (1996)2 SCC 384, (2008)15 SCC 133, 2012(8) SCC 21, 2016(1) SCC 696 – Referred.
JUDGMENT :
1. The sole appellant, above named, faced trial for offences under Sections 366(A) and 376 of the Indian Penal Code as well as for offence under Section 4 of the POCSO Act before learned Additional Sessions Judge-Ist-cum- Special Judge, Madhubani in connection with Babubarhi P.S.CaseNo.04 of 2016 corresponding to G.R.No.02 of 2016.
By the impugned judgment dated 24.09.2018, the learned Trial Judge found the appellant guilty for all the aforesaid offences and by the impugned order of sentence dated 01.10.2018, sentenced the appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.10,000/- under each of the offences under Sections 366(A)and 376 of the Indian Penal Code. In default of payment of fine, three months imprisonment was ordered.
Under Section 4 of the POCSO Act, the appellant was sentenced to 07 years rigorous imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine, three months imprisonment was ordered. The sentences have been directed to run concurrently.
2. The prosecution case as disclosed in the written report dated 09.01.2016 of Mr. Hari Narayan Yadav (P.W.8) is that on 05.01.2016 at about 6.00 P.M., his minor daughter, aged about 16 years, had gone towards east of her house to answer the call of nature but she did not return. The informant searched her hither and thither including to the relatives but she could not be found. On 08.01.2016, one Deo Narayan Yadav (P.W.4), a co-villager stated that the daughter of the informant was seen on a motorcycle with the appellant. The informant further disclosed that the daughter was carrying a mobile phone in which SIM card purchased in the name of appellant was being used. On the date of occurrence, the victim had talked to the appellant, hence had belief that the appellant had induced the victim to go with him and the appellant might throw her in flesh trade or use her for immoral purpose.
3. On the written report aforesaid, Babubarhi PS.CaseNo.04 of 2016 was registered and after completion of investigation, the police submitted chargesheet only against the appellant whereas investigation was kept pending against other co-accused.
4. During trial, the prosecution examined altogether 13 witnesses. P.W.1 Ram Autar Singh. P.W.2 Ram Vilash Mahto. P.W.9 Vijay Kumar Singh and P.W.10 Babloo Kumar Singh were tendered by the prosecution for cross examination.
P.W.1 stated that the victim used to sit at the shop of the appellant and there was dispute between the victim and the appellant for dues of the cost of articles purchased from the shop of the appellant. P.W.2 stated that appellant was not involved in the occurrence. P.W.9 deposed that he knows nothing about the occurrence and P.W.10 also deposed that he knows nothing about the occurrence.
5. In Raja Ram Vs. State of Rajasthan, reported in 2005 (5) SCC 272, the Hon'ble Supreme Court held that if a witness is not declared hostile by the prosecution, the defence can rely upon the evidence of such witness and it would be binding on the prosecution. The view in Raja Ram was reiterated in Mukhtiar Ahmad Ansari Vs. State (NCT of Delhi), reported in 2005 (5) SCC 258.
6. Thus the evidence of the aforesaid tendered witnesses on which the prosecution has relied upon, seriously tells upon the trustworthiness of the prosecution case because the witnesses have completely denied knowledge about the occurrence rather one of the witnesses stated that the appellant was not involved in the occurrence.
7. P.W.3 is the victim girl, her evidence would be discussed later on. P.W.4 Deo Narayan Yadav deposed that on 05.01.2016, when he was returning from the shop of the appellant as the shop was closed, he saw that the appellant, the victim and one Sanjay were going on a motorcycle. When the witness came to the village, he heard about the kidnapping of the victim, then he disclosed what he had seen. The witness was confronted with his statement before the police and the attention of Investigating Office
