IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) No.749 of 2020 Arising Out of PS. Case No.-626 Year-2013 Thana- MUFFASIL District- West Champaran ======================================================

Sikandar Patel S/o Sri Baidyanath Patel @ Baidhnath Raut Resident of Village- Mirzapur, P.S.-Bettiah Muffasil, District-West Champaran.

... ... Appellant/s Versus The State Of Bihar ... ... Respondent/s ======================================================

Appearance :

For the Appellant/s : Mr. Umesh Chandra Verma, Advocate For the Respondent/s : Mr. Syed Ashfaque Ahmad, APP ======================================================

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR

CAV JUDGMENT

Date : 20-12-2021 The sole appellant Sikandar Patel faced trial before the learned 1^st Additional Sessions Judge-cum-Special Judge, West Champaran, Bettiah, in connection with Bettiah Muffasil P.S. Case No.626 of 2013, corresponding to CIS No.10914 of 2014. By judgment dated 07.01.2020 the learned trial Judge found the appellant guilty for offences under Section 376 of the Indian Penal Code and Section 4 of the POCSO Act. By order of sentence dated 28.01.2020 ten years rigorous imprisonment besides fine of rupees fifteen thousand and in default of payment of fine two years rigorous imprisonment was awarded under both the heads. The sentences have been ordered to run concurrently.

The appellant has challenged the judgment of conviction and order of sentence above in this appeal.

2. The prosecution case, as disclosed in the first information report of the victim girl (PW 4), is that the victim, aged about 12 years, had gone to ease towards the field side at 8:00 PM on 28.09.2013. Near the field of one Nand Kishore Prasad the appellant caught her and dragged inside the paddy crop in the field of Nand Kishore Prasad and forcefully opened her lower garments and ravished her. The appellant threatened her not to disclose the occurrence to anyone and fled away. Thereafter, the victim went to her house but did not disclose about the occurrence to anyone due to fear. However, the family members realized some incident and took her to the police station where the FIR was lodged. After investigation the police submitted charge sheet against the appellant and appellant was put on trial.

3. During trial the prosecution examined five witnesses. PW 1 Suresh Raut and PW 2 Bipin Patel are co- villagers of the informant. However, they have deposed that they know nothing about the occurrence. These witnesses have been declared hostile by the prosecution. PW 3 Sudama Patel is father of the prosecutrix. Sudama Patel deposed that on the date of occurrence he was not in the village. After return the prosecutrix disclosed that the appellant had caught her arm. That much is the evidence of PW 3 who is not a hostile witness. PW 4, the prosecutrix, in her examination-in-chief supported what is stated in the first information report. However, on cross-examination she deposed that neither she nor her father had given any written report to the police. The report was penned down by Darogaji whose name she does not know. The written report was not read over to her. She further deposed that due to darkness at the time of occurrence and no light thereat she could not identify anyone by face. The villagers had also gone to the police station at the time of institution of FIR and they had got written name of the appellant. She had never any complain against the appellant nor she has. The appellant treats her as sister. Since appellant was her brother, she identified him in the Court.

4. PW 5 Dr. Rashmi Nand Kuliyar deposed that on

30.09.2013 she had examined the prosecutrix and found secondary sex character developed. Both breast developed, auxiliary and pubic hair present and no injury on her private parts. The hymen was old ruptured. On radiological report the victim was of around 15 years of age. No spermatozoa was there on pathological examination.

5. While recording the judgme