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2022 Supreme(Pat) 689

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and KHATIM REZA, JJ.
Criminal Appeal (DB) Nos. 1306, 1192, 1218 of 2018
(23.11.2022)
Sudeep Vishwakarma (in 1306)
Annu Kumar (in 1192)
Parsan Vishwakarma (in 1218) ... Appellants
vs.
State of Bihar ... Respondents
(in all)

Advocates:
For the Appellants : M/s Baxi S.R.P. Sinha, Sr. Adv., Krishna Mohan, Praveen Kumar, Rajnish Kumar (in 1306, 1218); M/s Ajay Kumar Thakur, Md. Imteyaz Ahmad, Ritwik Thakur, Vishnavi Singh (in 1192)
For the Respondents: Ms. Shashi Bala Verma (in 1306, 1218); Sujit Kumar Singh (in 1192)

Headnote:

Code of Criminal Procedure, 1973 – Section 313 – Examination of accused – appellants were questioned on circumstances which appeared against them so as to enable them to explain the circumstances – further, appellants were present during the course of trial at the time of deposition and the gist of the circumstances appearing in the evidence were duly explained to them by the trial Court with an opportunity to them to make statements in defence – there is thus, no non-compliance of Section 313 of the Cr. P.C.. (Para 23)

Indian Penal Code, 1860 – Sections 376, 354 – D read with Section 34 and Prevention of Children from Sexual Offences Act (POCSO Act) – Section 6 – Rape of a minor girl – delay in lodging the FIR – admittedly Sudeep Vishwakarma was giving tuition to the victim – occurences taken place on 28.09.2016 and three days thereafter the FIR was lodged – explanation given in the FIR itself for such delay – the Courts cannot ignore the social reality that if a sexual offence is committed constituting an offence punishable under the POCSO Act, there is normal and natural tendency of the victim's family to conceal that occurrence to safeguard interest of the family prestige, avoid vilification and in the interest of the future of the victim, as well – as such, prosecution case is not doubtful because of delay in the registration of the FIR. (Para 25)

Prevention of Children from Sexual Offences Act, 2012 – Section 6 read with Sections 29 and 30 – Presumption against the accused – Section 29 of the POCSO Act casts a reverse burden on a person accused of an offence under Sections 3, 5, 7and 9, in view of the statutory presumption of commission of offence by such person under the said provision – in their case, prosecution proved the victim to be a minor aged 17 years – evidence of the victim appeared to be truthful – PO has been duly proved – defence of false implication for non-refund of the loan amount by the informant for lodging a false case of rape does not appear plausible – finding of guilt against appellant Sudeep Vishwakarma not require interference – Cr. App 1306/2018 dismissed – however, other appeals, Cri. App. Mos. 1192 & 1218/2018 allowed. (Paras 26 to 37)

Chakradhari Sharan Singh, J.—By the impugned judgment and order dated 12.09.2018/14.09.2018 passed by the learned Additional Sessions Judge-I- cum- Special Judge, POCSO, Munger in C.R. Case No. 2861 of 2016, arising out of East Colony P.S. Case No. 48 of 2016, G.R. No. 1710 of 2016, the appellants have been convicted and sentenced as under:—

Criminal Appeal (DB) No. 1306 of 2018

Appellant's name

Conviction under Section

Sentence

Imprisonment

Fine(Rs.)

In default of fine

Sudeep Vishwakarma

6 of POCSO Act

For life

25,000/-

S.I. for six months

354-D of IPC

RI for three years

5,000/-

S.I. for one month

Criminal Appeal (DB) No. 1192 of 2018

Annu Kumar

6 of POCSO Act

For life

25,000/-

S.I. for six months

Criminal Appeal (DB) No. 1218 of 2018

Parsan Vishwakarma

6 of POCSO Act

For life

25,000/-

S.I. for six months

2. Since all the three appeals preferred under Section 374(2) of the Code of Criminal Procedure, 1973 arise out of the same impugned judgment and order passed by the learned trial court, they have been heard together and are being disposed of by the present common judgment and order.

3. The victim's name has been concealed in the present judgment and she has been referred to as the victim (PW-2) for maintaining privacy of her identity to protect her dignity.

4. Victim's father (PW-1) is the informant, on whose written report submitted to the Station House Officer, East Colony, Jamalpur, the concerned East Colony P.S. Case No. 46 of 2016 came to be registered on 01.10.2016, disclosing commission of an offence punishable under Section 366-A of the Indian Penal Code.

5. To begin with, it would be apt to recount the initial version of the prosecution's case as unfolded in the written report of the informant. The informant (PW 1) alleged in his written report that appellant Sudeep Vishwakarma (Criminal Appeal (DB) No.1306 of 2018) was engaged as a tutor to teach the informant's minor daughter, the victim (PW-2). The appellant was teaching her for last three years. Nearly two months prior to the date of lodging of the complaint, the appellant Sudeep Vishwakarma had attempted to molest her. Upon learning this conduct of Sudeep Vishwakarma, he was disengaged from the work of giving private tuition to the victim. Despite that Sudeep Vishwakarma used to follow the victim. On 28.09.2016 at about 6.40 a.m., by putting the victim under threat and by enticing her, he (Sudeep Vishwakarma) took the victim to someone's house at a place called Mungraura. Thereafter, certain pressure mounted by the police, Sudeep Vishwakarma, upon dropping the victim near one Path Bhawan School, escaped. In the said occurrence, the father of Sudeep Vishwakarma, namely, Parsan Vishwakarma (appellant of Criminal Appeal (DB) No. 1218 of 2018) was also involved. To avoid ignonimity and public shame, the informant did not register any FIR on 28.09.2016. However, Sudeep Vishwakarma continued his misdeeds of molesting the victim even thereafter, which attempt could be neutralized because of the presence of the informant.

6. The victim's statement was subsequently recorded during the course of investigation and in the light of the nature of accusation made by her, a request was made before the concerned Magistrate to add Sections 376, 354-D read with Section 34 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act (POCSO Act for short). In view of addition of these provisions, the case was transferred to the learned Special Judge POCSO. Upon completion of investigation the police submitted charge-sheet on 30.10.2017 against the appellant Sudeep Vishwakarma and his father Parsan Vishwakarma for the offences punishable under Sections 366-A, 376, 354-D read with Section 34 of the Indian Penal Code and Section 6 of the POCSO Act, keeping the investig

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