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2024 DIGILAW 217 (PAT)

Anil Kumar v. State of Bihar

2024-02-27

RAJEEV RANJAN PRASAD, SHAILENDRA SINGH

body2024
ORDER Heard learned counsel for the appellants, learned counsel for the informant and Mr. Binod Bihari Singh, learned Additional PP and Mr. Ajay Mishra, learned Additional PP for the State. 2. The records of these three appeals have been placed before this Court for consideration of their prayer for suspension of sentence and release of the appellants on bail during pendency of the appeal. 3. The records of the learned trial court have been received and the State has filed a written objection in terms of proviso to sub-section (1) of Section 389 Cr.P.C. 4. By the impugned judgment and order dated 07.06.2023 and 10.07.2023 passed by learned Additional Sessions Judge-VI-cum-Special Judge, Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO’), Vaishali at Hajipur in POCSO G.R. No. 25 of 2021 arising out of Vaishali P.S. Case No. 260 of 2021, the learned trial court has convicted these appellants for the offences under Sections 302/34, 201/34 and 366/34 of the Indian Penal Code (in short ‘IPC’) and they have been ordered to undergo life imprisonment for the offence under Section 302/34 IPC and to pay a fine of Rs.20,000/-, for the offence under Section 201/34, they have been awarded a sentence of rigorous imprisonment for three years and to pay a fine of Rs.5,000/-, further for the offence under Section 366/34 IPC, the appellants have been sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/-. 5. For purpose of suspension of sentence and release of the appellants on bail, learned counsel for the appellants submits that the prosecution story suffers from some inherent inconsistencies and contradictions. 6. As per the prosecution story, on 28.06.2021 at about 12:00 A.M., the grand-daughters of the informant were sleeping in the room when the FIR named accused persons including these appellants along with three unknown persons took away his elder grand-daughter from her room forcibly. When the sister of the deceased tried to stop the accused persons, she was slapped and threatened. It is alleged that the accused persons kidnapped the deceased and committed gang rape on her and killed her. The informant alleges that his younger grand-daughter told about the incident next morning and the neighbours are also said to have seen a few persons on the last evening moving around the house of the informant. 7. It is alleged that the accused persons kidnapped the deceased and committed gang rape on her and killed her. The informant alleges that his younger grand-daughter told about the incident next morning and the neighbours are also said to have seen a few persons on the last evening moving around the house of the informant. 7. Learned counsel for the appellants submits that the informant of this case is PW-9, he happens to be the grand-father of the deceased. It is his statement that he came to know about the occurrence on 29.06.2021 at around 04:00-04:30 A.M. (morning), after that he started searching his grand-daughter but her whereabouts were not found anywhere. In paragraph ‘34’ of his cross-examination, he has stated that in the three hours of his search, he had also gone to the Baswari at about 06:00 A.M. but nothing was found there. He has stated that he went to the police station at 08:00-08:30 A.M. and gave a written application but it would appear that in this case as per the formal FIR (Exhibit ‘8’), information was given in the police station on 29.06.2021 at 23:30 Hours and FIR was accordingly registered on the same day at 23:30 Hours. It is, thus, submitted that there is an inordinate delay in giving information about the occurrence to the police station and registration of FIR only because the informant was not sure about who are to be named as accused in the case. 8. Learned counsel further submits that the informant was also asked about the time when the inquest report was prepared by police but he did not remember that. 9. Learned counsel points out that in this case, admittedly the mother (PW-2) and brother (PW-3) of the deceased were not in the house on 28.06.2021 when the alleged occurrence took place. The father of the victim was working at Mumbai, therefore, he was also not present. PW-9 who is the informant of the case was sleeping at the bathan which was at a distance of about fifty meter from the place of occurrence and it is a separate place. 10. Learned counsel submits that the solitary witness who is also a star witness of this case is the sister of the victim who had been examined as PW-8. 10. Learned counsel submits that the solitary witness who is also a star witness of this case is the sister of the victim who had been examined as PW-8. She has stated that at around 12:00 O’ Clock in the night, she heard her sister’s cry and when she woke up, she saw that Ramesh Kumar Bhagat, Akshay Kumar, Chandan Kumar, Vijay Bhagat, Anil Kumar and 2-3 unknown people forcefully entered her room and were taking away her sister (victim), she protested whereupon Ramesh Kumar Bhagat gave her 2-4 slaps and brandished a pistol at her temporal and asked her to sleep otherwise she would be killed. 11. Learned counsel submits that according to PW-8, her sister was taken away through the window which was not having any grill but was having doors (palla). It is submitted that it seems to be an incredible statement of PW-8 that all the accused persons took away the victim girl through the window. Prosecution witnesses were asked about the size of the window but they did not say anything about the size of the windows purposely. 12. Learned counsel submits that in the evidence of the mother of the victim (PW-2), it has come in course of her cross-examination that prior to the occurrence, the victim girl had left her house once, that is why it has been suggested to other prosecution witnesses that the victim had earlier eloped and on the date of occurrence, she might have been caught in her house with the boy with whom she had been in love whereafter she was killed by her own family members. The pattern of cross-examination in this case would suggest that it was a case of honor killing and later on, a concocted case was lodged with much delay. 13. Learned counsel for the appellants has placed before this Court Exhibit ‘6’ which is a copy of the response submitted by the informant (PW-9) to the Officer-in-Charge of Vaishali Police Station in which he has stated that despite hectic search made by him, he could not find any copy etc. of the victim girl and it seems that all her materials were burnt at the time of her cremation. of the victim girl and it seems that all her materials were burnt at the time of her cremation. Referring to Exhibit ‘6’, learned counsel submits that the kind of the hatred shown by the informant and his family towards the deceased in burning all such articles including her studies documents like the copy at the time of her cremation would only indicate that PW-9 and her family had lost all love and affection for the deceased. It is because of the hatred which they would be having against her, her entire articles were burnt at the time of cremation. 14. Learned counsel further submits that the postmortem report of the deceased suggested a ligature mark around the neck about ½” width present. The Forensic Science Laboratory (in short ‘FSL’) report as regards the nylon rope which was recovered from the place of occurrence says that the physical parameters i.e. diameter or width of the Exhibit about ½” (half inch) marked ‘E’ (the nylon rope) and width of the ligature mark around neck about ½” (half inch) as mentioned in the postmortem report of the deceased, it appears that the Exhibit marked ‘E’ could have been used for strangulation. 15. Learned counsel submits that in the FSL report, the dibba marked as ‘B’ which contained one old torn light brown gents janghiya said to be of accused Chandan Kumar, dibba marked ‘C’ which contained one chocolate brown color gents janghiya said to be of accused Anil Kumar and dibba marked ‘D’ contained one old dirty blue gamchha were examined but no semen could be detected in the exhibits marked ‘X/A’, ‘B’, ‘C’, ‘D’. Semen has been detected in the Exhibit marked ‘A’ which is the dibba containing one green gents janghiya of accused Ramesh Kumar. 16. Learned counsel submits that this is the reason why the learned trial court did not find it a case of gang rape and the appellants have not been convicted for the offence under Section 376D IPC. 17. It is the submission of learned counsel for the appellants that it is a case of false implication after lodging of the FIR at a much belated stage. 18. The prayer for suspension of sentence has been opposed by learned counsel for the informant and learned Additional PP for the State. 17. It is the submission of learned counsel for the appellants that it is a case of false implication after lodging of the FIR at a much belated stage. 18. The prayer for suspension of sentence has been opposed by learned counsel for the informant and learned Additional PP for the State. It is their common submission that no doubt PW-8 who is the sister of the victim is the solitary eye witness of this case, there is no reason as to why her statements be not believed. As regards her conduct in not immediately bringing the entire occurrence to the notice of her grand-mother and grand-father, learned counsel submits that after the occurrence, she got very scared and she felt dizzy and fainted and it is only when she became conscious, she told about the occurrence to her grandmother and her aunt next day in the morning at about 05:00 A.M. 19. Learned counsel submits that the learned trial court has convicted these appellants on the basis of cogent evidences which have proved their guilt beyond all reasonable doubts, hence, they do not deserve privilege of suspension of sentence and release on bail at this stage. 20. Having heard learned counsel for the parties and on perusal of the records, taking note of the materials on the record, particularly, the delay of more than sixteen hours in providing information after coming to know about the occurrence to the police station, the materials shown that on the same day, i.e. on 29.06.2021 at 06:00 O’ Clock, the informant had gone to the Baswari to search his grand-daughter (victim) but nothing was found there, the circumstances showing that earlier also the victim girl had eloped and she had left her house which has appeared in the cross-examination of PW-2 and despite the fact that the dead body was said to have been recovered from the Baswari which is in the village, no independent witness has been examined in this case to show the circumstances about recovery of the dead body of the victim from the Baswari, the allegation of gang rape has not been proved against these appellants, in the circumstances, this Court directs suspension of sentence and release of the appellants on bail during pendency of the appeal, on furnishing bail bond of Rs. 25,000/- (Rupees Twenty Five Thousand) each with two sureties of the like amount each to the satisfaction of learned Additional Sessions Judge-VI-cum-Special Judge, POCSO, Vaishali at Hajipur in connection with POCSO G.R. No. 25 of 2021 arising out of Vaishali P.S. Case No. 260 of 2021. 21. The fine imposed as part of sentence shall remain suspended during pendency of the appeal. 22. List this appeal for hearing on its turn.