IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (SJ) No.2932 of 2019

Arising Out of PS. Case No.-43 Year-2018 Thana- INARWA District- West Champaran

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DEEPAK MAHTO @ Deepak Kumar, Son of Gudar Mahto, Resident of

Village- Khamhiya, P.S.- Inarwa, District- West Champaran.

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

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Appearance :

For the Appellant/s

:

Mr.N. K. Agrawal, Sr. Advocate.

Mr. Vijay Anand, Advocate.

For the Respondent/s

:

Mr. Zeyaul Hoda, APP.

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CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR

C.A.V. JUDGMENT

Date :12-04-2021

The sole appellant Deepak Mahto was charged under

Section 376 of the Indian Penal Code and Section 6 of the

POCSO Act in connection with Inarwa P.S. Case No. 43 of 2018

corresponding to CIS No. 218 of 2018. However the learned

trial Judge convicted the appellant for offence under Section 18

of the POCSO Act for the reason that the trial Judge was of the

view that no case of aggravated penetrative sexual assault was

made out rather a case of attempt to commit penetrative sexual

assault was proved against the appellant. Accordingly, the

learned Special Judge, POCSO, West Champaran at Bettiah

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sentenced the appellant to undergo rigorous imprisonment for

10 years and to pay a fine of Rs. 2 lacs. In default of payment of

fine, two years further imprisonment was ordered. Out of the

aforesaid fine amount, Rs.1 lac was ordered to go to the victim.

The judgment of conviction dated 12.06.2019 and order of

sentence dated 15.06.2019 are under challenge in this appeal.

2. The prosecution case as disclosed in the written

report (Ext.2) in the pen of Isteyaq is that the prosecutrix aged

about 13 years was in her house in village-Khamhiya, P.S.-

Inarwa, District-West Champaran. On 16.06.2018 at about 12

night, the appellant entered into her house and forcefully

established sexual relationship. The informant tried to make

alarm, but the appellant pressed on her mouth. Further

allegation is that the appellant lifted her and was carrying her to

commit her murder, but the family members came and the

appellant was apprehended and was handed over to the police.

3. On the basis of the statement aforesaid, Inarwa P.S.

Case No. 43 of 2018 was registered on 17.06.2018 under

Section 376 IPC and Section 6 of the POCSO Act vide Ext.-2.

4.

After investigation, the police submitted

chargesheet under Sections 376 and 511 of the Indian Penal

Code and Section 6 of the POCSO Act. Accordingly the

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appellant was put on trial.

In the statement recorded under Section 164 Cr.P.C.

on 18.06.2018, the prosecutrix stated that the appellant had not

ravished her rather attempted to commit rape, but he could not

succeed. A copy of the statement under Section 164 Cr.P.C. is

Ext.-X.

During trial, the prosecution examined altogether

seven witnesses. The medical examination report of the victim

is Ext.-5 on the record, whereas chargesheet submitted by the

police under Section 173 Cr.P.C. is Ext.-4. The production cum

seizure list is Ext.-3.

5. Learned counsel for the appellant contends that

none of the prosecution witnesses produced have supported any

allegation against the appellant, hence the case is of “no

evidence”, but the learned trial Judge misunderstood the legal

principles and relied upon the statement recorded under Section

154 Cr.P.C. as well as under Section 164 Cr.P.C. for coming to

the conclusion that the prosecution has proved the charge

against the appellant beyond reasonable doubt. Learned counsel

contends that Dr. K.M.P. Parwe who had performed radiological

examination of th