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IN THE HIGH COURT OF JUDICATURE AT PATNA
CHAKRADHARI SHARAN SINGH and GUNNU ANUPAMA CHAKRAVARTHY, JJ.
Criminal Appeal (DB) No.139 of 2022
(7.11.2023)
Shravan Prasad @ Shravan Kumar ... Appellant
vs.
State of Bihar ... Respondent
Protection of Children from Sexual Offences Act, 2012 – Section 4 – Indian Penal Code, 1860 – Section 376(1) – Criminal Procedure Code, 1973 – Section 164 – Penetrative sexual assault upon minor girl – Life sentence – Evidence of victim and her father are inconsistent with each other as to age of victim as well as about learning incident by victim and also about seizure/non-seizure of blood stained clothes of victim – There was delay of two days in referring victim to medical examination – Evidence of Doctor not very specific about recent sexual present intercourse – Evidence of victim only disclose that accused had caught her from back – Rape was not committed by appellant against victim girl – Statements under Section 164 Cr.P.C, can be used for corroboration and contradiction and it is a weak piece of evidence – Trial court heavily relied on 164 statement of victim and convicted appellant which is not at all sustainable – Exact age of victim was not determined or proved by prosecution – Medical evidence do not support case of prosecution in any manner for offence punishable under Section 376 of IPC – Conviction imposed against appellant for Section 4 of POCSO Act and Section 376 of IPC are liable to be set aside – Appellant is liable to be convicted under Section 7 of POCSO Act and under Section 354(A)(i) of IPC – Rigorous imprisonment for a period of three years awarded – Appeal partly allowed. (Paras 19, 22, 23, 24, 30, 31, 32, 36 and 38)
Criminal Procedure Code, 1973 – Sections 161 and 164 – Evidence given in court under oath has great sanctity and same is called substantive evidence – Statements under 161 Cr.P.C can be only used for the purpose of contradiction and statements under Section 164 Cr.P.C, can be used for both corroboration and contradiction. (Para 29)
Gunnu Anupama Chakravarthy, J.—This criminal appeal has been preferred against judgment of conviction dated 04.12.2021 and order of sentence dated 08.12.2021 passed by the Learned Exclusive Special Judge (POCSO Act)-cum-7th Additional Sessions Judge, Gaya in POCSO Case No. 57 of 2018 (arising out of Mahkar PS Case No. 109 of 2018). By the judgment and order aforesaid, the appellant has been convicted and sentenced as under:—
Cr. Appeal (D.B.) No. 139 of 2022
| Convicted under | Sections | Imprisonment | Sentence Fine (Rs.) | In default of fine |
| Shravan Prasad @ Shravan Kumar | 4 of the POCSO Act | RI for life | Rs. 25,000/- | SI for six months |
|
| 376(1) of the IPC | No separate sentence |
|
|
2. As the matter relates to Section 376 of the Indian Penal Code and Section 4 of the POCSO Act, we are of the considered view that the names of the victim or the parents of the victim shall not be disclosed in the judgment in order to safeguard the identity of the victim girl as per the directions of the Hon’ble Supreme Court.
3. We have heard Mr. Ajay Kumar Thakur, learned counsel for the appellant and Ms. Shashi Bala Verma, learned APP for the State.
4. The criminal case was set into motion basing on the written application given by the father of victim, who is the informant (PW-1) dated 14.06.2018 to the Station House Officer, Mahkar P.S. at about 15.00 hours.
5. The brief contents culled out of the said application is that on 13.06.2018 at about 8.00 pm, when the daughter of the informant who was aged about 13 years went outside the house to attend the natural call, the appellant lifted her and took her away about half a kilometer and forcibly committed rape on her. Thereafter, he fled away from the place of occurrence. It is further alleged that the informant’s daughter, somehow reached her house and got fainted. After regaining consciousness she disclosed about the incident.
6. Basing on the report, the SHO, Mahkar P.S. Case registered the case against the appellant vide FIR bearing Mahkar PS Case No. 109 of 2018 dated 14.06.2018 for the offence punishable under Section 376(3) of IPC, under Sections 4, 12 of the POCSO Act and under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
7. During the course of investigation, the appellant was arrested on 22.06.2018 and was produced before the Chief Judicial Magistrate, Gaya. Further the appellant was remanded to judicial custody on the same day and since then he was in jail. Further, the investigating officer recorded the statements of the witnesses under Section 161 Cr.P.C and the statement of victim was also recorded under Section 164 Cr.P.C by the Learned Chief Judicial Magistrate. Later, victim was referred to medical examination. On completion of the investigation, chargesheet was filed u/s 6 of the POCSO Act, u/s 376(3) of Indian Penal Code and section 3(2)(v) of the SC/ST Act for which cognizance was taken by the court below on 04.09.2018. Further the trial court have framed charges against the appellant for the offences punishable under Section 4 of the POCSO Act, under Section 376(3) of the Indian Penal Code and under Section 3(2) (v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, read over and explained to the appellant on 01.03.2019 for which he pleaded not guilty and claimed to be tried.
8. During the course of trial, the prosecution has examined ten witnesses i.e., PWs-1 to PW-10 and got marked Exhibits 1 to 5.
| Prosecution witnesses | Relation |
| PW-1 | Father of victim |
| PW-2 | victim |
| PW-3 | Aunt of victim |
| PW-4 | Medical Officer |
| PW-5 | Co-villager |
| PW-6 | Investigating Officer |
| PW-7 | Cousin of the Victim |
| PW-8 | Police Official |
| PW-9 | Co-villager |
| PW-10 | Uncle of the victim |
Details of Exhibits
| Exhibit-1 | Written petition |
| Exhibit-2 | Signature of victim girl on the statement recorded under Section 164 Cr.P.C |
| Exhibit-3 | Medical examination report |
| Exhibit-4 | Formal FIR |
| Exhibit-5 | Letter n |
The judgment underscores the necessity of corroborative evidence in sexual assault cases, the importance of establishing the victim's age under the POCSO Act, and the need for reliable witness testim....
Point of Law – Kidnapping and abduction – Conviction - victim, who is found to be an unreliable witness - appellant is entitled for benefit of doubt
The prosecution must conclusively establish the victim's age under the POCSO Act, and inconsistencies in the victim's testimony can undermine the case against the accused, warranting acquittal.
The conviction under the POCSO Act requires substantial evidence beyond mere suspicion; failure to prove such evidence necessitates acquittal.
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