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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and KHATIM REZA, JJ.
Cr. Appeal (DB) No. 813, 2121 of 2019
(9.1.2023)
Akhilesh Kumar & Anr (in 813)
Siko Yadav @ Suko Yadav
& Anr. (in 2121) ... Appellants
vs.
State of Bihar ... Respondents
(in both)
Protection of Children from Sexual Offences Act, 2012 – Sections 4 and 6 read with Sections 448, 376, 323, 504, 506 and 376D of Indian Penal Code, 1860 – Gang rape and criminal intimidation of minor girl – Conviction and sentence – Appellants are co-villagers of informant and victim – Though victim had not denied that rape was committed on her, she has not supported prosecution's case that appellants had committed rape – PWs have not supported prosecution case that rape upon victim was committed by appellants – Based on medical evidence it could though be concluded that victim was sexually assaulted, there is absolutely no evidence to indicate that appellants had committed such assault – Appellants acquitted. (Paras 14 to 18)
Chakradhari Sharan Singh, J. – As both these appeals arise out of the same judgment and order of the trial court which are impugned, they have been heard together and are being disposed of by the present common judgment and order
2. By the impugned judgment and order dated 29.04.2019/ 30.04.2019 passed by the learned Additional Sessions Judge-I-cum- Special Judge, Saharsa in POCSO 12 of 2018, corresponding to Mahila P.S. Case No. 11 of 2018, the appellants have been convicted and sentenced as under: –
Criminal Appeal DB No. 813 of 2019
| Akhilesh Kumar | Conviction under Section | Imprisonment | Sentence Fine (Rs.) | In default of fine |
|
| ||||
|
| 323 of the IPC | RI for one year | 1,000/- | RI for one month |
|
| 504 of the IPC | RI for two years | 2,000/- | RI for 2 months |
|
| 506 of the IPC | RI for three years | 3,000 | RI for 3 months |
|
| 376(D) of the IPC | RI for 20 years | 20,000/- | RI for 20 months |
|
| 448 of the IPC | RI for one year | 1,000/- | RI for one month |
|
| 6 of the POCSO Act | RI for ten year | 10,000/- | RI for 10 months |
| Nitish Kumar | Conviction under Section | Imprisonment | Sentence Fine (Rs.) | In default of fine |
|
| ||||
|
| 323 of the IPC | RI for one year | 1,000/- | RI for one month |
|
| 504 of the IPC | RI for two years | 2,000/- | RI for 2 months |
|
| 506 of the IPC | RI for three years | 3,000 | RI for 3 months |
|
| 376(D) of the IPC | RI for 20 years | 20,000/- | RI for 20 months |
|
| 448 of the IPC | RI for one year | 1,000/- | RI for one month |
|
| 6 of the POCSO Act | RI for ten year | 10,000/- | RI for 10 months |
Criminal Appeal (SJ) No. 2121 of 2019
| Siko Yadav @ Suko Yadav | Conviction under Section | Imprisonment | Sentence Fine (Rs.) | In default of fine |
|
| 323 of the IPC | RI for one year | 1,000/- | RI for one month |
|
| 504 of the IPC | RI for two years | 2,000/- | RI for 2 months |
|
| 506 of the IPC | RI for three years | 3,000 | RI for 3 months |
| Vijay Mahto | Conviction under Section | Imprisonment | Sentence Fine (Rs.) | In default of fine |
|
| 323 of the IPC | RI for one year | 1,000/- | RI for one month |
|
| 504 of the IPC | RI for two years | 2,000/- | RI for 2 months |
|
| 506 of the IPC | RI for three years | 3,000 | RI for 3 months |
3. The victim's name is not being disclosed in the present judgment and order so as to conceal her identity.
4. The sister-in-law (elder brother’s wife) of the victim(PW-4) is the informant on whose written report dated 09.02.2018 in relation to an occurrence which had taken place on 04.02.2018, the concerned Bakhtiarpur Mahila P.S. Case No. 11 of 2018 came to be registered levelling offences punishable under Sections 448, 376, 323, 504, 506 of the Indian Penal Code read with 34 thereof and Section 4 of the Protection of Children from Sexual Offences Act (POCSO Act for short), on 10.02.2018. The prosecution’s case as unfolded in the said written report of the informant (PW-4) is that in the night of 04.02.2018, she and the victim were sleeping in the same house but in different rooms. Other members of the family had gone to witness a fair, namely, Kamla Mela. Age of the victim has been described in the First Information Report as 14 years. At about 10:00 p.m., the appellants, Akhilesh Kumar and Nitish Kumar (Appellants No. 1 and 2 of Criminal Appeal (DB) No. 813 of 2019) entered into her house and at the point of gun, they took the victim to their house and committed rape on her one by one. When the informant woke up, she did not find the victim present in the house whereafter, she started searching for her. In the meanwhile, the informant’s husband and other family members returned and they too started searching the victim. In that course, they heard someone screaming in the house of appellant Akhilesh Kumar whereupon they went to his (appellant Akhilesh Kumar’s) house where they found th
Sexual assault on minor girl – There is absolutely no evidence to indicate that appellants had committed such assault – Appellants acquitted.
The main legal point established in the judgment is the requirement for the prosecution to provide conclusive evidence and corroborative evidence to establish the guilt of the accused beyond all reas....
The statutory presumption of guilt under Section 29 of the POCSO Act places the burden on the accused to prove their innocence in cases of sexual offences against children, which was upheld in this j....
Penetrative sexual assault on girl – Age of victim is a crucial factor in POCSO cases.
The prosecution must prove guilt beyond reasonable doubt, and the quality of evidence is essential in criminal law.
The prosecution must establish guilt beyond a reasonable doubt, with sufficient and credible evidence; failure to do so invalidates a conviction.
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