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2023 DIGILAW 541 (JHR)

'X' v. State of Jharkhand

2023-04-19

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2023
ORDER : Shree Chandrashekhar, J. IA No. 3130 of 2020 IA No. 3130 of 2020 has been filed for grant of leave against the judgment of acquittal dated 25th January 2020 passed by the learned Additional Sessions Judge-I, Chatra in POCSO Case No.27 of 2018. 2. In view of the proviso to section 372 of the Code of Criminal Procedure, IA No. 3130 of 2020 is allowed. Criminal Appeal (V) No. 3 of 2020 3. The prosecutrix has challenged the judgment dated 25th January 2020 passed in POCSO Case No. 27 of 2018 by which Dipak Kumar Gupta has been acquitted of the charge under section 376 of the Indian Penal Code and under section 4 of the Prevention of Children from Sexual Offences Act. 4. On the basis of a written report of the prosecutrix given to the officer-in-charge of Itkhori Police Station on 1st April 2018, Itkhori PS Case No. 28 of 2018 was lodged against Dipak Kumar Gupta for committing the aforementioned offences. 5. During the trial, the prosecution has examined 11 witnesses including the mother, brother and cousin brother of the prosecutrix to support the prosecution case which is largely based on the testimony of the prosecutrix. 6. The prosecution case is that in the midnight of 1st March 2018 at about 1:00 AM the accused caught hold of the prosecutrix who had gone to a nearby field to answer the nature's call, put her in Alto Car belonging to Raj Kumar Sao and forcibly committed rape upon her. Except PW2, no witness has come to depose in the Court that he had seen the prosecutrix going towards the nearby field in the midnight of 1st March 2018 or he has seen the accused loitering around the house of Rajdeo Yadav where the prosecutrix had gone to sleep or seen the accused committing rape upon the prosecutrix. The medical evidence tendered through PW8 who clinically examined the prosecutrix on 1st April 2018 also does not provide any support to the prosecution story. The medical evidence tendered through PW8 who clinically examined the prosecutrix on 1st April 2018 also does not provide any support to the prosecution story. As provided under section 53-A of the Code of Criminal Procedure, the accused was not sent for his medical examination; the Car in which the prosecutrix was sexually assaulted has not been sent for chemical examination to find out any trace of rape having been committed inside the Car and, above all, there is no explanation by the prosecution for delay of one month in lodging the First Information Report. 7. PW1 who is the cousin brother, PW3 who is the mother and PW4 who is the brother of the prosecutrix have tendered evidence in the Court which does not provide any corroboration to the story of rape. 8. The age of the prosecutrix who according to the prosecution was a minor has been seriously contested by the respondent No.2 by producing the School Admission Register. He has also examined Sheo Kumar Pandey who was the Head Master of Utkramit Madhya Vidyalaya, Nawada, Itkhori. 9. In the aforesaid background, the learned trial Judge has held that the prosecution could not establish that the prosecutrix was a minor on the date of the occurrence. 10. The learned trial Judge has made discussions in this regard in the following manner : “10. In going through the written application cum FIR Exhibit 1 and formal FIR (Exhibit 6) this court finds that the occurrence taken place on 01.03.2018 but the FIR lodged after delay of one month on 01.04.2018 and the Minor prosecutrix (PW2) by her FIR application given one explanation regarding such delay that due to fear and threat of accused she has not stated the occurrence to anybody. However, the PW1 (Identify withheld) cousin brother of Minor Prosecutrix, at para 5 deposed that in next morning Minor prosecutrix stated about occurrence to daughter of Rajdeo Yadav (PW6) and at para 7 the PW1 deposed that he himself got information about the occurrence after one week from the Minor Prosecutrix herself and after 10 to 20 days the case was lodged. However, the PW3 (Identify withheld) mother of Minor Prosecutrix deposed that she has got knowledge after one week from the date of occurrence. However, the PW3 (Identify withheld) mother of Minor Prosecutrix deposed that she has got knowledge after one week from the date of occurrence. The PW3 (Identify withheld) brother of Minor Prosecutrix, at para 4 deposed that he got information about occurrence after 10 days from mobile call of his friend Sachin (not examined) and he informed his brother PW1. In such set of facts if the PW 1 (Identify withheld) cousin brother of Minor prosecutrix got knowledge about the occurrence after one week then why he has not informed the occurrence to any one else and why the FIR was not lodged after one week of occurrence dated 01.03.2018 and why it is lodged after delay of one month of 01.04.2018, there appears no explanation. Similarly, if the PW3 mother of Minor prosecutrix also got knowledge about the occurrence after one week then why she has not informed the matter to police and lodged the FIR and further if the PW 4 brother of Minor prosecutrix got knowledge about the occurrence after 10 days through his friend then why he has not lodged the case after 10 days and why this FIR lodged after delay of 01 month. Not only that in the FIR itself it is noted that the matter of occurrence flashed in the village on 27.03.2018 at 08.00 PM but on 27.03.2018 also any FIR was not lodged rather lodged on 01.04.2018 after further delay of 05 days. In such manner it is evident on the record that the occurrence taken place on 01.03.2018 but FIR lodged after delay of one month on 01.04.2018. In such manner it is evident on the record that the occurrence taken place on 01.03.2018 but FIR lodged after delay of one month on 01.04.2018. Normally any delay in lodging the FIR having no consequence but in the back ground of conduct of Minor prosecutrix PW 2 goes to show that she remain silent and not disclosed the occurrence to any body for such long period and further conduct of her family members PW 3 mother, PW 4 full brother and PW 1 cousin brother of Minor prosecutrix also goes to show that they have got knowledge about the alleged occurrence within a week but remain silent not lodged the FIR for a month, such delay in lodging FIR became very significant and goes to show that actual fact not brought on the record rather distorted and concocted facts brought on the record and thus the delaying of one month caused in lodging of FIR if read with the conduct of Minor prosecutrix and her family members and clubbed into the facts that the mother PW 3 of Minor prosecutrix having taken money on credit from the father of accused about 05 years ago and not refunded the same, put the entire case of prosecution in dark shadow of doubt. 10.1 Now coming to the age of the Minor prosecutrix (PW 2), in her FIR application (Exhibit 2) she has stated her age as 15 years and the prosecution brought one Photocopy of document Admission Card of Minor prosecutrix (PW 2) marked as Exhibit 11 with objection of defence that its original not brought on the record. In such admission Card issued by Jharkhand Academic Counsel, Ranchi for Annual Secondary Examination 2018 the date of birth of Minor prosecutrix noted as 07.05.2003 and if such document accepted then on the date of occurrence dated 01.03.2018 the age of Minor prosecutrix (PW 2) stands as 14 years, 09 months and 24 days However, the accused disputed such age of Minor prosecutrix by examining DW 1 Sheo Kumar Pandey, Head Master of Utkramit Madhya Vidyalaya, Nawada who also brought the School Admission Register of first attended School of Minor Prosecutrix PW 2 and proved its entry at Sr. No. 21 as Exhibit A in which the date of birth of Minor Prosecutrix entered as 07.05.1999 and taking into account such date of birth the age of Minor prosecutrix PW 2 on the date of occurrence dated 01.03.2018 stands as 18 years, 09 months & 24 days. The 11 Mr. Ravi Shanker Pandey is the Judicial Magistrate Ist Class, Chatra who recorded statement (Exhibit 13) of Minor prosecutrix PW 2 U/s 164 of Cr.P. Code in which he has noted the age of Minor prosecutrix as 15 years and deposed that he has not seen any birth certificate of Minor Prosecutrix PW 2, thus, the same also can not be accepted as her conclusive age The PW 8 Dr Rani Soren is the lady Medical officer of Sadar Hospital, Chatra medically examined the Minor Prosecutrix PW 2 on 01.04.2018 at 01:00 PM and issued her Medical Report (Exhibit 5) but in such Medical Report age of Minor prosecutrix not mentioned and the lady Medical Officer PW 8 deposed that for age determination of Minor Prosecutrix she has referred her to the Medical Board and deposed to have not found any evidence of resent sexual intercourse committed against Minor prosecutrix and not found any injury on her body or on her private part However, the age determination report of Medical Board not brought and proved on the record Thus, the Medical evidence also unable to establish the conclusive age of Minor prosecutrix PW 2. The Minor prosecutrix PW 2 examined on 25 09 2018 but on that day also she has stated her age as 15 years and as per her saying this court also noted her age as 15 years Thus, there appears no conclusive evidence on the record to establish the actual age of Minor prosecutrix PW 2 on the date of occurrence. The prosecution placed the Photocopy of document Exhibit 11 Admission Card issued by Jharkhand Academic Counsel but the accused objected the same as not admissible because it is a photocopy. however, the prosecution in spite of such objection unable to brought and proved its original. The prosecution placed the Photocopy of document Exhibit 11 Admission Card issued by Jharkhand Academic Counsel but the accused objected the same as not admissible because it is a photocopy. however, the prosecution in spite of such objection unable to brought and proved its original. On the other hand the accused by examining DW 1 Head Master and producing the Entry No. 21 (Exhibit 8) of the School Admission Register of first attended School of Minor prosecutrix succeeded to establish that the actual date of birth of Minor prosecutrix is 07.05.1999 against which the prosecution unable to bring any cogent material except one Photocopy Exhibit 11. Thus, it can be safely held that the prosecution unable to establish by conclusive evidence that on the date of occurrence the Minor prosecutrix was actually Minor”. 11. Finally, the learned trial Judge has held that the entire prosecution case has become doubtful and therefore benefit of doubt must go in favour of the accused. 12. The learned trial Judge has held as under : “11. The Minor prosecutrix PW 2 by her evidence deposed that the accused took her forcibly at 01.00 AM mid night and kept her in the same car for 03 hours and committed rape with her. However, due to delay of one month in lodging the FIR quite naturally any Medical evidence or any physical evidence can not be gathered for corroborating such allegations made by the Minor prosecutrix and the Doctor PW 8 Medically examined the Minor prosecutrix after one months delay on 01 04.2018 rightly not found any Medical evidence of rape or sexual intercourse committed with Minor prosecutrix PW 2. The investigation of this case also conducted in perfunctory manner, the Investigating Officer PW 10 deposed at para 11 that he has not investigated and can not say that in which room of the house of Rajdeo Yadav PW 6 the Minor prosecutrix was sleeping and he also can not say that in whose company the Minor prosecutrix PW 2 was sleeping in such night and he has not noted such facts in the case diary. The evidence of Investigating Officer PW 10 goes to show that he has neither inspected the house of PW 6 where the Minor prosecutrix PW 2 allegedly sleeping on the relevant night, nor examined any of the Child of such house of PW 6 including the Nishu Kumari about whom the Minor prosecutrix PW 2 and her mother and brothers deposed to have called the Minor prosecutrix PW 2 to sleep in her house and such Nishu Kumari is not examined as witness in this case and such facts admitted by the Investigating Officer PW 10 at para 10. It is case of prosecution and the witnesses also deposed that there was Panchayti held in the village but such facts also not investigated and the Investigating Officer PW 10 at para 10 admitted that he has not recorded statement of Mukhiya or Choukidar and any document of Panchayti not produced before him. The evidence of material witnesses PW 1 to 7 goes to establish that the present accused is a married man having 2 to 3 children and his wife also residing with him in his house, which is situated in the neighborhood of the first place of occurrence but any investigation about absence of accused from his house on the relevant date and time of occurrence also not made and such fact admitted by the Investigating Officer PW 10 at para 12 that he has not inquired from the wife, family members and children of the accused. This discussion also goes to show that the prosecution unable to brought any conclusive evidence that on the relevant night of date and time of occurrence dated 01.03.2018 at 01.00 O'Clock mid night the present accused left his wife, came out from his own house and committed the so called occurrence with Minor prosecutrix 12. It is prescribed U/s 29 of the POCSO Act to draw presumption of guilt of an accused facing trial of the offence of POCSO Act unless contrary is proved. Here in this case the evidence of prosecution discussed in detail and this court already discussed and held that the prosecution unable to bring cogent and conclusive evidence in order to establish that the Minor prosecutrix PW 2 was actually Minor on the date of occurrence. Here in this case the evidence of prosecution discussed in detail and this court already discussed and held that the prosecution unable to bring cogent and conclusive evidence in order to establish that the Minor prosecutrix PW 2 was actually Minor on the date of occurrence. This court also discussed and held that the prosecution unable to establish by conclusive evidence that in the night of occurrence dated 01 03 2018 the Minor prosecutrix was sleeping in the house of PW 6. This court further discussed in detail and already held that the prosecution further failed to establish that on the relevant night of occurrence the present accused was in possession of any Alto Car much less the Alto Car No. JH-02AK-8434 of PW 7 and used the same in the alleged crime. This court also discussed in detail and already held that the story as propounded in the FIR, which is registered after one mouth delay, is improbable and a single man like this accused can not supposed to took away a well grown girl in the manner suggested in the FIR application Exhibit 2. The material evidence on the record and the evidence of mother PW 3 and brother PW 4 goes to show that there was ill will in the mind of family of Minor prosecutrix because they have taken money of Rs. 5000 from father of this accused after keeping their land in Rehan and such land still not released. Apart from unexplained delay of one month in lodging the FIR the Investigation also not conducted properly, the car was not Chemically examined by the expert, and investigation not conducted from the house of PW 6 where the Minor prosecutrix allegedly sleeping in the night and any investigation not made from the house of accused that whether he was absent from his house on the relevant date and time of occurrence and very significantly any connection of the present accused with the Car allegedly used in the crime not established. The conduct of Minor prosecutrix PW 2 as well as her family members who remain silent for a long period of one month and not lodged the FIR in time force this court to held that the entire case of prosecution remain in doubt and benefit of such doubt must go in favour of accused and in such set of facts any presumption of guilt of present accused can not be drawn U/s 29 of the POCSO Act. In the result and outcome of the discussion this court finds no option but to held that the present accused Dipak Kumar Gupta is not guilty and accordingly acquitted from the charges U/s 376 of IPC & U/s 4 of the POCSO Act. The accused is in custody, directed to be released forthwith if not wanted in any other case. Office is directed to issue his release order at once”. 13. While exercising the powers under section 386 of the Code of Criminal Procedure the appellate Court shall always bear in mind that (i) there is a double presumption of innocence in favour of the accused (ii) appreciation of evidence by the trial Court which had the opportunity to observe demeanor of the witnesses should be accorded primacy and (iii) minor mistake, inconsistency, discrepancy etc. in the judgment under challenge should not be stretched too far to interfere with the acquittal. 14. In “Ghurey Lal v. State of Uttar Pradesh” (2008)10 SCC 450 the Hon'ble Supreme Court has held that the appellate Court in dealing with the cases in which the trial Courts have acquitted the accused should bear in mind that the trial Court's acquittal bolsters the presumption that he is innocent and, therefore, the appellate Court must give due weightage and consideration to the decision of the trial Court. Again in “State of Rajasthan v. Naresh @ Ram Naresh” (2009) 9 SCC 368 the Hon'ble Supreme Court has held that the order of acquittal should not be lightly interfered with even if the Court believes that there is some evidence pointing out the fingers towards the accused. 15. After going through the materials on record, we find that there is an intrinsic improbability in the prosecution's case. Dipak Kumar Gupta, aged about 31 years is married person having two children. 15. After going through the materials on record, we find that there is an intrinsic improbability in the prosecution's case. Dipak Kumar Gupta, aged about 31 years is married person having two children. There is not even an iota of evidence that he was chasing the prosecutrix or ever made any indecent gesture to outrage her modesty. According to the prosecution, the prosecutrix had gone to sleep in the house of PW6 because on that fateful night the parents of Nishu Kumari had gone to Mumbai. This is the case of the prosecution that the prosecutrix revealed to Nishu Kumari about sexual assault upon her by the accused after she came back to her house after about three hours. However, Nishu Kumari has not been produced in the Court for her evidence. The parents of the prosecutrix have come to know about the occurrence about a week or so but they also did not lodge any criminal case against the accused. This has also come in the evidence that the father of the prosecutrix had taken loan of Rs. 5000/-and in lieu thereof he had pawned his land and in connection therewith there was some dispute between the parties. 16. Mrs. Lily Sahay, the learned APP has submitted that a parent would not put at stake chastity of her minor daughter howsoever grave the instigation may be. True, but this is fundamental in criminal law that the prosecution must produce sufficient evidence to support the charge on each material aspect of the case and any failure thereof must lean towards extending benefit of doubt to the accused. 17. Having regard to the facts and circumstances in the case, we find no merit in this Criminal Appeal and, accordingly, Criminal Appeal (V) No.3 of 2020 is dismissed. 18. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.